Procedure
 629: Appeals from Denial of Application for Abatement - Appellate Tax Board
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629. Appeals from Denial of Application for Abatement - Appellate Tax Board

A taxpayer whose application for abatement has been denied in whole or in part or deemed denied under G.L. c. 58A, § 6 may appeal the denial to the Appellate Tax Board (ATB) by filing a petition within 60 days of the Commissioner's notice of denial or within six months of a deemed denial. See AP 627.9 for explanation of denials and deemed denials. The taxpayer must pay a minimum fee of $65 (or 10¢ per $100 of Abatement requested if greater to a maximum of $5,000) to the ATB when the petition is filed. 831 CMR 1.10. A copy of the petition must be served on the Commissioner by mailing or hand delivering such petition to the Department of Revenue's Litigation Bureau. A taxpayer may appeal a denial or deemed denial to the ATB regardless of whether the tax being contested has been paid ( see AP 627.2); in most cases, filing the petition will stay collection of the tax.

The ATB is an administrative board, independent of the Department of Revenue. The ATB makes determinations after holding proceedings that are similar to those held by a court. An ATB hearing is open to the public and is conducted in accordance with the ATB's Rules of Practice and Procedure. See 831 CMR 1.00. The ATB has jurisdiction to hear all appeals of abatement denials and partial denials for taxes assessed under General Laws chapters 60A, 62 through 64K, inclusive, 65A through 65C, inclusive, 121A, § 10 and 138, § 21. The ATB has exclusive jurisdiction to hear appeals of abatement denials or partial denials regarding valuation questions for estate taxes under G.L. c. 65C [ see G.L. c. 62C, § 39(a)] and for valuation questions relating to the inheritance tax under G.L. c. 65, § 26.

For estate tax abatement denials or partial denials, except for valuation issues, the taxpayer may appeal to the probate court having jurisdiction over the decedent's estate. The taxpayer must file the appeal with the probate court within sixty days of the date on the abatement denial notice or six months from the date of a deemed denial. An appeal to the probate court is made by filing a complaint with the probate court and serving a summons and complaint upon both the Commissioner of Revenue and the Office of the Attorney General of the Commonwealth of Massachusetts as provided by the Massachusetts Rules of Civil Procedure Rule 4(d)(3).

The inheritance tax has a different appeal procedure from most other tax types. A taxpayer is not required to file an Abatement Application with the Commissioner in order to appeal an inheritance tax issue. In fact, if a taxpayer chooses to file an Abatement Application for an inheritance tax issue, the determination of the Commissioner is final. There is no appeal from this abatement determination. However, under the inheritance tax, the taxpayer has the right to by-pass the Abatement Application process and appeal the assessment of an inheritance tax directly to the probate court having jurisdiction over the decedent's estate. The taxpayer may file an appeal to the probate court within one year of payment of the tax. The taxpayer's petition is a complaint in equity. Upon filing with the probate court, the taxpayer must serve copies of the summons and complaint upon both the Commissioner of Revenue and the Boston Office of the Attorney General of the Commonwealth of Massachusetts as provided by the Massachusetts Rules of Civil Procedure Rule 4(d)(3).

The ATB or probate court may abate the tax assessed in whole or in part. If an abated tax has been paid, the taxpayer is entitled to a refund plus interest calculated on the amount of the refunded payment determined by the decision of the Board or Court from the date of the decision by the Board or Court. See G.L. c. 62C, § 37. In addition, after the timely and proper filing of a Petition with the ATB or a Complaint with the Probate Court, the Commissioner has the authority to settle the claim or claims of the taxpayer(s) pursuant to G.L. c. 62C, § 37C.

For more information on filing a petition with the ATB, see the Rules of Practice and Procedure of the Appellate Tax Board, reprinted in this volume. For information on appealing ATB decisions, see AP 630, Appeals from Appellate Tax Board Decisions. Information about the Appellate Tax Board can be found at www.mass.gov/atb.

For more information about filing a complaint with the probate court contact the equity section of the Registrar of Probate's Office at the probate court that has jurisdiction over the estate of the decedent, the original decedent in the case of inheritance taxes. Contact information for probate courts can be found at: www.mass.gov/courts/courtsandjudges/courts/probateandfamilycourt.

REFERENCES:
G.L. c. 7, § 3B
G.L. c. 58A, §§ 1 et seq.
G.L. c. 60A
G.L. chs. 62 through 64K, inclusive
G.L. chs. 65A through 65C, inclusive
G.L. c. 121A, § 10
G.L. C. 138, § 21
831 CMR 1.00 et seq, Rules of Practice and Procedures of Appellate Tax Board
TIR 99-18
AP 627, Applications for Abatement
AP 630, Appeals from Appellate Tax Board Decisions
Massachusetts Rules of Civil Procedure
Ross v. State Tax Commission, Appellate Tax Board Docket No. 90023, Findings of Fact and Report promulgated on May 16, 1979