Procedure
629: Appeals from Denial or Deemed Denial of Application for Abatement to the Appellate Tax Board
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629. Appeals from Denial or Deemed Denial of Application for Abatement to the Appellate Tax Board

A taxpayer whose application for abatement has either been denied in whole or in part by the Commissioner under G.L. c. 62C, §§ 36, 37 or 38, or deemed denied under G.L. c. 58A, § 6 (collectively, an “abatement denial”), may appeal the abatement denial to the Appellate Tax Board (ATB or Board) by filing a petition within 60 days of the date of the Commissioner's notice of abatement denial, as provided by G.L. c. 62C, § 39,  or within six months of a deemed denial, as provided by G.L. c. 58AC, § 6.  [See AP 627.9 for explanation of denials and deemed denials.]  The taxpayer must pay a minimum fee of $65.00, or $0.10 per $100.00 of Abatement requested, if greater, to a maximum of $5,000.00 upon filing a petition with the ATB.  [See 831 CMR 1.10.]  A copy of the ATB date-stamped petition must be served on the Commissioner by mailing or hand delivering such petition to the Department of Revenue's Litigation Bureau, P.O. Box 9565, 100 Cambridge Street, 7th Floor, Boston, MA 02114.  A taxpayer may appeal an abatement 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.  [See G.L. c. 62C, § 32.]

The ATB is an administrative board within the Executive Office of Administration and Finance, independent of the Department of Revenue.  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 for taxes assessed under General Laws chapters 60A, 62 through 64K, 65A through 65C,  121A, § 10, and 138, § 21.

The ATB has exclusive jurisdiction over abatement denials of any tax assessed under the foregoing statutes, except for the estate tax (G.L. c. 65C) and the inheritance tax (G.L. c. 65).

Taxpayers seeking an abatement of tax from the Commissioner of Revenue related to any tax or excise specified in G. L. c. 62C, § 2 may have their case heard under the small claims procedure of the ATB.  Unless the taxpayer affirmatively requests that the case be heard under the formal procedure contained in G.L. c. 58A, § 7, the small claims procedure under G.L. c. 58A, § 7B shall govern any case in which the amount of tax in dispute does not exceed:

a.    $25,000.00 for any taxable year, in the case of a tax imposed by taxable year;

b.    $25,000.00 for any calendar year, in the case of a tax imposed by calendar year;

c.    $25,000.00 for any calendar year, in the case of a tax imposed by G.L. c. 64A through 64J and G.L. c. 138, § 21;

d.    $25,000.00 in the case of a tax imposed by G.L. c. 65C; or

e.    $25,000.00 for any taxable event or transaction in the case of any other tax. 

For the purposes of G.L. c. 58A, § 7B, the amount of any tax or excise in dispute does not include any interest, penalty or addition to tax imposed by G.L. c. 62C or any statute referred to in G.L. c. 62C, § 2.  If only the imposition or the amount of interest and/or penalties is in dispute, the interest and penalties shall not exceed $25,000.00 for any period or transaction as specified in 831 CMR 1.06(1)(a) through (e).

If the amount in dispute exceeds the above limitations, but not substantially, and the taxpayer is willing to limit the potential abatement to the applicable qualifying amount, the small claims procedure may be elected in accordance with G.L. c. 58A, § 7B(f).  Amounts in dispute exceeding the qualifying limits by 10% or less shall be presumed not to be substantial for these purposes.  At any time at least 30 days prior to the commencement of the hearing, a party who previously filed, on or after January 1, 1999, a petition under the formal procedure pursuant to G.L. c. 58A, § 7, but who qualified or now wants to elect the small claims procedure, may request by motion that the proceeding be transferred to the small claims procedure.  Decisions issued under the small claims procedure shall not be reviewed by any court and shall not be used as precedent in any other case.

At any time before the commencement of a hearing under the small claims procedure, the Board on its own motion or at the request of the Commissioner of Revenue, in accordance with G.L. c. 58A, § 7B(e), order the small claims designation removed and the proceedings transferred to the formal procedure.  In appeals where the Commissioner established that there is a recurring issue of law and the aggregate tax at issue, taking into account other similarly situated taxpayers, is over $250,000.00, or the Board determines that the issue to be addressed is not suitable for small-claims resolution, the appeal will be transferred to the formal procedure.

With respect to the estate tax, the ATB has exclusive jurisdiction to hear appeals of abatement denials regarding the value of an asset of the estate.  [See G.L. c. 62C, § 39(a)].  For all other matters arising under G.L. c. 65C (other than the valuation of an asset), a taxpayer may appeal an estate tax abatement denial either to the ATB or to the probate court having jurisdiction over the decedent’s estate.  A taxpayer must file an appeal to the ATB or Probate court within sixty days of the date on the notice of abatement denial, or within six months from the date of a deemed denial.  The same procedures apply as described above for filing a petition with the ATB.  To initiate an appeal to the probate court, a taxpayer must file a complaint with the probate court and then serve 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).

Effective January 1, 1976, the inheritance tax (G.L. c. 65) was suspended for the estates of decedents dying after that date, but remains in force and effect for the estates of decedents dying before that date.  [See St. 1975, c. 684, § 97.]  Inheritance tax issues are exempt from the mandatory abatement application/ATB appeal process [See G.L. c. 62C, § 37], and the probate court having jurisdiction of the estate of the decedent is granted jurisdiction over all questions relative to the inheritance tax [See G.L. c. 65, § 30] except for questions regarding the valuation of an asset of the estate [See G.L. c. 65, § 25].  The taxpayer may elect to apply to the Commissioner for an abatement, in which case the decision of the Commissioner is final with no further right of appeal [See G.L. c. 65, § 27A].  Within two months of the date of the Commissioner’s determination of the value of an asset of the estate, the taxpayer may request the Commissioner to alter the determination, and the Commissioner’s failure to act on such a request within two months is deemed a denial.  [See c. 65, § 26]  The taxpayer may then appeal to the ATB which shall appraise the value of the property and make a return thereof to the probate court.  The ATB’s factual findings are binding on the probate court, unless vitiated by error of law.  [See Boston Safe Deposit & Trust Co. v. Commissioner of Revenue, 13 Mass. APP. Ct. 492 495 (Mass. App. Ct. 1982.)]  The taxpayers must file a written objection to the ATB’s return with the probate court, and serve the Commissioner 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).

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 or an objection to the ATB’s determination of value under G.L. c. 65, § 26 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. c. 62 through 64K
G.L. c. 65A through 65C
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

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