Procedures
611.1. Self-Assessments, Deficiency Assessments.
611.2. Notice of Intent to Assess (NIA).
611.3. Receipt of the NIA.
611.4. When the NIA is Not Required.
611.5. Written Notice of Deficiency Assessment.
611.6. Double Assessment.
611.7. Jeopardy Assessment.
611.8. Personal Liability.
611.9. Contesting an Assessment.
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611.1. Self-Assessments, Deficiency Assessments

An assessment of a tax liability may come about in two ways: by self‑assessment or by a deficiency assessment made by DOR.  A self‑assessment occurs when a taxpayer files a return.  The tax is "deemed assessed" when the return is filed or required to be filed, whichever is later, and in the amount shown on the return or properly due, whichever is less.  See 830 CMR 62C.26.1.

If DOR determines, through audit or otherwise, that the full amount of a tax is not assessed or deemed assessed (as when no return has been filed), a deficiency assessment may be made.  DOR generally may assess the additional tax with interest and penalties at any time within three years of the time the return was filed or required to be filed, whichever is later.  See 830 CMR 62C.26.1 for circumstances in which DOR may make a deficiency assessment beyond the general three‑year limitation period.

DOR and the taxpayer may agree to extend the time for assessment beyond the three‑year period.  Consent is given by signing Form A-37, Consent Extending the Time for Assessment of Taxes (see AP 609), or Form B-37, Special Consent Extending the Time for Assessment of Taxes (see AP 628).

See, also, TIR 99-18 regarding waiver of G.L. c. 62C, § 33(c) late‑pay penalties and suspension of involuntary collection activities under G.L. c. 62C, § 32(e) when the taxpayer disputes the assessment (or any portion thereof) administratively within DOR or with the Appellate Tax Board or Probate Court.

611.2. Notice of Intent to Assess (NIA)

Before making a deficiency assessment, DOR generally must give notice of its intent to do so by sending the taxpayer a written Notice of Intent to Assess (NIA).  The NIA will inform the taxpayer that the taxpayer has 30 days thereafter to request a conference or settlement consideration with DOR.  The assessment itself may be made once the 30 days expire.  See 830 CMR 62C.26.1.

611.3. Receipt of the NIA

A properly mailed NIA will be presumed to have been received by the taxpayer.  The validity of a subsequent assessment is, however, unaffected by a taxpayer’s failure to receive the NIA. 

If the taxpayer disagrees with the NIA, the taxpayer may request a conference or settlement consideration with Office of Appeals.  The request must be postmarked within 25 days following the issuance of the NIA.  A request for a conference postmarked after the 25th day following the issuance of the NIA will be considered solely at the discretion of the Commissioner.  See AP 609.5 for information on appeal requests during the audit process.  See AP 628: Resolution of Disputes at the Office of Appeals for further details regarding the appeals process.

611.4. When the NIA is Not Required

No NIA is required:  (1) to correct arithmetic or clerical errors obvious on the face of the form; (2) if it is determined that a return filed is false or fraudulent; (3) if no return was filed; (4) if collection of a tax would be jeopardized by delay (see 611.7, below); or (5) if information from third party sources indicates omission of taxable income.”  See 830 CMR 62C.26.1 and TIR 03-18.

611.5. Written Notice of Deficiency Assessment


If DOR determines that a tax is owed, it must give written notice to the taxpayer of the amount due and the time when it must be paid.  This notice will be issued no earlier than 30 days after the issuance of the NIA, unless no NIA is required.  The Notice of Assessment will contain the amount of the assessment, including 30 days of interest calculated from the date of issuance of the Notice of Assessment, as provided by statute.  Failure to receive the Notice of Assessment does not affect the validity of the tax.  See 830 CMR 62C.26.1.  See, also, TIR 99-18 regarding waiver of G.L. c. 62C, § 33(c) late‑pay penalties and suspension of involuntary collection activities under G.L. c. 62C, § 32(e) when the taxpayer disputes the assessment (or any portion thereof) administratively within DOR or with the Appellate Tax Board or Probate Court.

611.6. Double Assessment

If DOR notifies a taxpayer that he or she has failed to file a return or has filed an incorrect or insufficient return, and the taxpayer fails to file a proper return within 30 days of the notice, or if DOR determines that a taxpayer has filed a fraudulent return, DOR may assess the tax at not more than double the amount determined to be due in addition to other penalties.  See 830 CMR 62C.26.1.

If the taxpayer disputes the assessment (or any portion thereof), the Commissioner will give written notice to the taxpayer by registered or certified mail of the requirement to deposit security with regard to the disputed assessment amount.  If the security deposit requirement is met, G.L. c. 62C, § 33(c) late‑pay penalties and involuntary collection activities will be suspended during the pendency of any appeals administratively within DOR or with the Appellate Tax Board or the Probate Court.  See G.L. c. 62C, § 32(e), and TIR 99-18.

For other applicable interest and penalty charges, see AP 612.

611.7. Jeopardy Assessment


If DOR determines that delay would jeopardize collection of a tax, it must assess the tax immediately, together with all interest and penalties.  The tax is then due and payable at once, and if it is not paid after demand DOR must initiate collection procedures which may include seizure.  If the taxpayer disputes the jeopardy assessment (or any portion thereof) the Commissioner will follow the procedures discussed in AP 611.6.

A determination that delay would jeopardize collection of a tax is based on the circumstances of the individual case.  This determination is left to DOR's discretion.  DOR might act, for example, if a taxpayer is arrested with substantial amounts of cash, its equivalent or contraband, which is determined to be unreported income;  if a taxpayer is or appears to be preparing to leave Massachusetts quickly or to go into hiding;  if a taxpayer is or appears to be attempting to put his or her property beyond the reach of Massachusetts tax jurisdiction by concealing it, dissipating it, or transferring it to some other person;  or if a taxpayer's financial solvency is or appears to be imperiled.  See 830 CMR 62C.26.1.

611.8. Personal Liability

If a corporation or partnership fails to pay any required tax under G.L. cc. 62B (withholding), 64G (rooms), 64H (sales) or 64I (use), DOR may determine that an officer, partner or employee who is or was charged with the duty of paying over taxes is personally liable for their payment.  See G.L. c. 62C, § 31A and DOR Directive 02-6.  If DOR so determines, it must first give the taxpayer notice of the proposed determination.  The taxpayer or the taxpayer's representative may apply to confer with DOR within 30 days of the issuance of the Notice of Proposed Determination of Personal Liability and Deemed Assessment.  If no conference is held, or if DOR decides after a conference that personal liability exists, a Notice of Determination of Personal Liability and Deemed Assessment will issue.  The person notified is then personally liable for the tax and a lien against his or her property arises in favor of the Commonwealth.  See 830 CMR 62C.31A.1.

Any person aggrieved by the tax or a determination of personal liability may apply for an abatement (i) within three years of the last day of filing a return for the tax; (ii) within two years of the date the tax was assessed; (iii) within one year of the date the tax was paid; or (iv) within 60 days of the date of the Notice of Determination of Personal Liability and Deemed Assessment, whichever is later.  See 830 CMR 62C.31A.1 and AP 627, Applications for Abatement, for more information.

In general, an aggrieved person who has not collected or withheld the tax assessed and who disputes the assessment (or any portion thereof) will not be obligated to pay the amount of the disputed tax, will not accrue G.L. c. 62C, § 33(c) late‑pay penalties and will not be subject to involuntary collection while the dispute is under appeal administratively within DOR or at the Appellate Tax Board or Probate Court.  See G.L. 62C, § 32(e) and TIR 99-18.

611.9. Contesting an Assessment

A taxpayer who disagrees with an assessment may file an application for abatement with DOR.  See 830 CMR 62C.37.1.  For more information on applications for abatement, see AP 627.  For more information on the abatement of penalties, see AP 633 and DD 12-7.  For more information on waiver of G.L. c. 62C, § 33(c) late‑pay penalties and suspension of involuntary collection activities under G.L. c. 62C, § 32(e) when the taxpayer disputes the assessment (or portion thereof) see TIR 99-18.


REFERENCES:
G.L. c. 62B
G.L. c. 62C, §§ 26, 27, 28, 29, 31, 31A, 32(e), 33(c)
G.L. c. 64G
G.L. c. 64H
G.L. c. 64I
830 CMR 62C.26.1
830 CMR 62C.31A.1
830 CMR 62C.37.1
TIR 99-18
TIR 03-18
DD 02-6
DD 12-7
AP 609, Verification of Returns through Audit
AP 612, Interest and Penalties
AP 627, Applications for Abatement
AP 628, Resolution of Disputes at the Office of Appeals
AP 633, Guidelines for the Waiver and Abatement of Penalties
Form A-37, Consent Extending the Time for Assessment of Taxes
Form B-37 (formerly AR-37), Special Consent Extending the Time for Assessment of Taxes