INTRODUCTION:

The Department issued TIR 01-5 in response to the Supreme Judicial Court's (SJC) decision in EMC Corporation v. Commissioner of Revenue, 433 Mass. 568 (March 22, 2001) (" EMC Corporation"). The EMC decision concerned the commencement date of the two year statute of limitations period under G.L. c. 62C, § 37 for applying for an abatement of tax that had been assessed by the Commissioner under G.L. c. 62C, § 26(b). This Directive clarifies the application of that case and the TIR.

ISSUE:

Does the rule in the EMC Corporation case and TIR 01-5 apply to "self assessments" under G.L. c. 62C, § 26(a)?

DIRECTIVE:

No. The EMC Corporation decision and TIR 01-5 apply only to audit assessments pursuant to G.L. c. 62C, § 26(b)-(e), (h)-(j) and §§ 28, 29, 30 and 30A and not self assessments pursuant to G.L. c. 62C, § 26(a).

DISCUSSION:

TIR 01-5 discussed the decision in EMC Corporation, in which the SJC found that the language of G.L. c. 62C, § 37 was ambiguous and ruled that the Legislature did not intend to abandon the prior standard which used the date the Notice of Assessment was sent as the operative date for the beginning of the statute of limitations period for abatement applications. [1] The purpose of this Directive is to clarify that TIR 01-5 only applies to assessments made by the Commissioner pursuant to G.L. c. 62C, § 26(b)-(e), (h)-(j) and §§ 28, 29, 30 and 30A and not to taxes assessed under § 26(a). The EMC Corporation case does not apply to "self assessed" taxes (which occur when a taxpayer files a tax return with the Department). "Self assessed" taxes are deemed to be assessed at the time the return is filed, or required to be filed, whichever occurs later. See G.L c. 62C, § 26(a).

/s/Henry Dormitzer
Henry Dormitzer
Commissioner of Revenue

HD:MTF:wm

January 7, 2008

DD 08-1



[1] Due to technological improvements in the Department's computer systems, currently the date of the assessment and the date of the Notice of Assessment are the same in most cases. See 830 CMR 62C.26.1(6)(f), as amended.