Mark P. JENCO v. COMMISSIONER OF REVENUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The pro se taxpayer was assessed sales and use tax on two front end loaders. He filed a timely abatement application for tax years 2007 and 2008, which the Commissioner of Revenue (commissioner) denied on February 1, 2016. The taxpayer thereafter had sixty days to file an appeal with the Appellate Tax Board (board) if he was dissatisfied with the outcome of the abatement proceeding.
On December 1, 2016, the taxpayer filed a second abatement application raising the same issues as the first abatement application. It was denied by the commissioner on the ground that the issues raised had already been raised in the previous application. On November 19, 2017, the taxpayer filed a third abatement application concerning the same periods, raising the same issues as the previous two applications. The commissioner denied the third application again on the ground that the issues raised had already been raised and the application for abatement denied. The taxpayer filed an appeal with the board within sixty days of that decision.
The commissioner moved to dismiss, and the board allowed the motion, concluding that it lacked jurisdiction to hear this appeal. In particular, it concluded that it could not hear the merits of the original denial of an abatement because no appeal had been filed within sixty days of that denial. It further concluded, correctly, that the appeal period could not be extended by filing a new abatement application on the same grounds as the application that had already been denied.
The taxpayer argues strenuously before us that the amounts of sales or use tax assessed are in error. With respect to one front end loader, he argues that it was a private sale to which the sales and use tax does not apply, and with respect to the other, he argues that the amount he actually paid for the front end loader, which may give rise to some amount of sales or use tax, was lower than the amount on which the assessed tax was based.
While we appreciate these arguments, and the strength with which the taxpayer makes them, we cannot address them if the board lacked jurisdiction to do so. The first question before us, then, is whether the board's conclusion that it lacked jurisdiction was in error.
The board's conclusion that it lacked jurisdiction was based on a finding of fact that the taxpayer did not file an appeal with the board within sixty days of the original denial of his petition for abatement. The sixty-day time period is jurisdictional; if an appeal was not filed within sixty days of that decision, the board cannot hear the appeal, and we must affirm its decision declining to do so.
The commissioner argues that the board's finding of fact on the matter is “final.” Coomey v. Assessors of Sandwich, 367 Mass. 836, 839 (1975). Although deference is certainly owed to a fact finding by the board, see Commissioner of Revenue v. Houghton Mifflin Co., 396 Mass. 666, 670 (1986), we need not defer to a factual finding that is unsupported by substantial evidence. See Tambrands, Inc. v. Commissioner of Revenue, 46 Mass. App. Ct. 522, 526 (1999). See also New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981) (“A finding of the board must be set aside if the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary” [quotation and citation omitted]).
The question comes down to whether the finding that no appeal was taken in a timely manner was unsupported by substantial evidence. The evidence before the board on this factual question was this: The taxpayer produced three United States Postal Service return receipts. One was addressed to the commissioner. It showed a date of delivery of March 31, 2016, and was signed upon receipt by someone named Ellen Sugarman. Two were addressed to the board. One of these showed a delivery date of March 31, and, although the delivery date shown does not include a year, its tracking number is close to that of the item sent to the commissioner; the other showed no delivery date. Both were signed by Pat Braun.
These three return receipts indicate that items were sent by the taxpayer to the board and to the commissioner that were received within sixty days of the initial denial of the abatement. The taxpayer asserts in his brief that these are evidence that he filed his appeal timely, and served the commissioner. He avers that there would have been no other reason for him to send return receipt requested mail to the board and the commissioner.
This evidence, of course, is consequential. It does not appear that the board held an evidentiary hearing. The board wrote, however, “after a thorough search of its records, the [b]oard found no indication that the [taxpayer] filed such an appeal or paid the required filing fee. The [c]ommissioner also has no record of receiving a copy of a timely filed docketed appeal. Further, despite several requests from the [b]oard, the [taxpayer] failed to provide a canceled check or other evidence that he paid the required filing fee or filed his appeal in a timely manner.”
The latter sentence is incorrect. The return receipts which, the commissioner informs us, were indeed provided to the board, are certainly evidence that is consistent with the taxpayer having filed a timely appeal from the initial denial of his petition for abatement. And, in the absence of an evidentiary hearing, the board does not explain the basis for its knowledge about the commissioner's records. Agencies and courts unfortunately do lose documents, and the only actual evidence before the board was that the taxpayer had filed his appeal timely. The board's decision states that the board repeatedly requested evidence of payment of the filing fee, but that the taxpayer provided none. We do not know from the record whether the taxpayer responded but had no further evidence, or failed to respond. In his brief before us, pro se taxpayer asserts that the check was cashed, but that “I checked with my bank to see if they could find the cancelled check and they had told me that it's too far back and also that [account] was closed over three years ago.” We are not in a position to know whether it is possible for the taxpayer to obtain a copy of a cancelled check from a closed account or how he might go about doing so, nor do we decide whether it would be fair to require him to do so. What we can conclude is that given what was in the record, the board could not find, without an evidentiary hearing, that the return receipts were not proof of filing of a timely appeal.
Our conclusion is based on what is in the record, but we note that the pro se taxpayer submitted a supplement to the appendix that contains what appears to be a date-stamped copy of his appeal showing that it was received by the board on March 31, 2016.2 Of course, we do not make findings of fact on appeal. But this document, among whatever other evidence the taxpayer puts forward, must be considered by the board on remand. If, as appears, it is a genuine, date-stamped copy of an appeal from the original denial of the taxpayer's petition for abatement, the board has jurisdiction and must hear the merits of the taxpayer's appeal.
Consequently, the order of the board dismissing the appeal for want of jurisdiction is vacated and the case is remanded for further proceedings consistent with this memorandum and order. If the commissioner insists that no appeal was timely filed, the commissioner may seek an evidentiary hearing before the board at which that factual issue may be explored and resolved, including by testimony of the individuals whose signatures the return receipts appear to contain; if the commissioner concludes the appeal was timely filed, or chooses not to contest the point, the board shall address the merits of the appeal.
vacated and remanded
2. The motion to allow that filing is allowed.
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