(a) Prerequisites.
1. Return. Any taxpayer filing an application for abatement of an assessed tax shall have filed, at or before the time of filing the application, a tax return for the period to which the application relates as required by M.G.L. c. 62C. Filing a return is not a prerequisite if the abatement application is founded on the assertion that no return is required.
2. Assessment. No application for abatement should be filed until the tax is actually assessed. Only upon actual assessment is a person "aggrieved by the assessment of a tax” within the meaning of M.G.L. c. 62C, § 37.
Example: The Commissioner determines that Vendor A has not reported fully the gross receipts from sales at retail as required by M.G.L. chs. 62C and 64H. After the return is filed, the Commissioner timely notifies A of the Commissioner’s intention to make an additional assessment pursuant to M.G.L. c. 62C, § 26 (b). No assessment has actually been made. Vendor A should not file an application for abatement until and unless the tax is actually assessed by the Commissioner.
(b) Form of Application. Except as noted in 830 CMR 62C.37.1(1)(a) and (5)(d), infra, each applicant shall file an Application for Abatement, either electronically using MTC or on a paper form, and shall set forth, in addition to taxpayer identification,
1. the type of tax,
2. the taxable periods,
3. the amount of abatement requested, and
4. the specific facts and contentions of law relied upon. See 830 CMR 62C.37.1(6) for substantiation requirements.
(c) Waiver of Time Limitation. Unless an applicant strikes the consent clause of the application or otherwise withdraws consent in writing, the filing of an application for abatement, including an amended return treated as an abatement application, by an applicant shall act as a waiver of the right to treat the Commissioner's failure to act on the application prior to six months from the date of filing as a denial of the application pursuant to M.G.L. c. 58A, § 6. This waiver may be withdrawn at any time in writing by the applicant, in which event the application, unless previously acted upon by the Commissioner, shall be deemed to be denied at the expiration of the six months or on the date of withdrawal, whichever is later.
(d) Change in Federal Taxable Income, Federal Tax Credits, or Federal Taxable Estate or in Tax Liability to Another State or Jurisdiction. A taxpayer should follow the procedures in 830 CMR 62C.30.1 and 830 CMR 62C.30A.1, respectively to report such changes.
(e) Stay of Involuntary Collection. The filing of an application for abatement shall stay involuntary collection of the disputed portion of tax imposed by M.G.L. chs. 62, 63, 64A through 64F, 64J through 65C, and by M.G.L. c. 138, § 21 and trustee taxes imposed by M.G.L. c. 62B and by M.G.L. c. 64G through 64I, provided that the taxes imposed under these chapters were not withheld by the employer or collected by the vendor. The statute of limitations for collection of taxes in M.G.L. c. 62C, § 65, and the date of termination of tax liens in M.G.L. c. 62C, § 50, is extended by the period that collection of the tax is stayed by M.G.L. c. 62C, § 32(e). Interest and penalties under M.G.L. c. 62C, §§ 33(a) and 33(b) will continue to accrue. The stay expires on the date on which any right of appeal from a refusal or deemed refusal by the Commissioner to grant an abatement of such tax expires without any appeal to the ATB or the probate court having been filed, or as otherwise provided in M.G.L. c. 62C, § 32(e).
(f) Multiple Claims.
1. A taxpayer shall file a separate application for abatement of each tax, penalty or additional assessment or portion thereof for each taxable period; however, where the tax is due on other than an annual basis the taxpayer may file one application combining taxable periods of each calendar year. If different issues are raised on the combined application, the application must clearly specify which issues are related to each of the periods. A taxpayer using MassTaxConnect may file a dispute for multiple periods on the same account at the same time.
2. A taxpayer should combine all challenges to an assessment in a single abatement application. However, a taxpayer may file a subsequent application for abatement concerning the same tax and taxable period as a previous application so long as the taxpayer intends to challenge a portion of the tax different from that challenged in the previous application. A taxpayer may not file a second application for abatement which puts in issue the identical item of tax for a given period as challenged in a previous application.
The following list illustrates but does not exhaust situations in which a timely second abatement application, concerning the same tax and taxable period as a previous application, would be considered by the Commissioner:
a. The first application for abatement from a business corporation challenges an assessment by the Department (deficiency assessment) resulting from a final determination by the federal government of a change in the corporation's net taxable income due to disallowance of entertainment expenses, and the second application challenges apportionment of the corporation's net income.
b. The first application for abatement challenges a deficiency assessment based on under reporting the number of dependents on a personal income tax return, and the second application challenges the deficiency assessment based on an understatement of the taxpayer's social security deduction.
c. The first application for abatement from an executor liable for the M.G.L. c. 65C estate tax challenges the Commissioner’s determination of the value of decedent's real estate and the second application for abatement challenges the Commissioner’s determination of the value of decedent's closely held business.
3. The Commissioner would not consider a later application for abatement in the following illustrative cases:
a. Taxpayer fails to file an appeal to the Appellate Tax Board within 60 days of the denial of the abatement and, in an attempt to revive the taxpayer’s lapsed right of appeal, files an identical second application for abatement with the Commissioner.
b. The first application for abatement challenges the Commissioner's deficiency assessment based on an interpretation of M.G.L. c. 62 as imposing a tax on interest income from New York City bonds, the second application requests an abatement of the Commissioner’s tax assessment based on the same interest income on the ground that the statute is unconstitutional.