NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-847
DESH, INC.1
vs.
COMMISSIONER OF REVENUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On October 18, 2022, the Commissioner of Revenue
(commissioner) mailed three letters to Desh, Inc. (Desh)
suspending Desh's licenses to sell tobacco and electronic
nicotine delivery systems for ninety days for failure to pay
excise taxes. The letters were sent by certified mail, without
a return receipt, through the United States Postal Service
(USPS), to the retail store (which is also Desh's principal
place of business).2 On November 3, 2022, Desh mailed a petition
to the Appellate Tax Board (board) challenging the suspension.
1 Doing business as Bob's Market.
2The retail location and principal place of business of Desh is 163 W. Wyoming Avenue, Melrose, Massachusetts. Under G. L. c. 62C, § 68 (§ 68), the petition must be filed
"within ten days after written notice of the decision has been
mailed or delivered to [Desh]." The commissioner filed a motion
to dismiss the petition, contending that it was not timely filed
and therefore the board did not have jurisdiction to hear the
appeal.3 Desh filed an opposition to the amended motion to
dismiss questioning, among other things, the adequacy of the
proof of delivery of the suspension letters.4 The board found
that the suspension letters were delivered on October 20, 2022,
and therefore Desh's petition was untimely. Concluding that it
lacked jurisdiction to hear the petition, the board dismissed
it. Desh filed a motion for reconsideration which the
commissioner opposed. The board denied the motion; this appeal
followed. We affirm.
Our review of a decision of the board is well settled. "We
will not modify or reverse a decision of the board if the
decision is based on both substantial evidence and a correct
3After the commissioner filed its motion to dismiss, the board held a hearing. Following that hearing, the hearing examiner allowed the commissioner to file an amended motion to dismiss which included an affidavit from Vincent Piccolo, a tax examiner employed by the commissioner who sent the suspension letters to Desh.
4We note that the suspension letters informed Desh that any appeal must be filed within ten days after receipt of the suspension letter, which conflicts with the provisions of § 68. The commissioner should take care to issue notices consistent with the requirements of the statute at issue.
2 application of the law." Boston Professional Hockey Ass'n, Inc.
v. Commissioner of Revenue, 443 Mass. 276, 285 (2005). In doing
so, "we recognize the [tax] board's expertise in the
administration of tax statutes and give weight to the [tax]
board's interpretations" (citation omitted). Adams v. Assessors
of Westport, 76 Mass. App. Ct. 180, 183 (2010). "We review
conclusions of law, including questions of statutory
construction, de novo" (citation omitted). Shrine of Our Lady
of La Salette Inc. v. Assessors of Attleboro, 476 Mass. 690, 696
(2017).
Desh contends that the commissioner failed to meet its
burden to establish the delivery and receipt of the suspension
letters. We note that under § 68, timeliness of Desh's petition
is calculated as ten days from either the date the suspension
letters were mailed or when they were delivered (emphasis
added). There is no contest about the date of mailing. The
record evidence established that Vincent Piccolo, a tax
examiner, responsible for, among other things, reviewing and
mailing suspension letters to tobacco retail license holders,
mailed the suspension letters to Desh on October 18, 2022. In
accordance with the commission's procedures, Piccolo sent the
letters certified mail with tracking that included a twenty-two
digit bar code identifier and delivery confirmation, but without
return receipts. After receiving the bar code identifiers,
3 Piccolo uploaded and entered this information into the
Department of Revenue computer system. The bar code identifiers
state that the three letters were "delivered, left with
individual" on October 20, 2022, at 12:05 P.M. (USPS tracking
information).5 There was no evidence of a signed receipt for the
delivery of the suspension letters.
Desh argues that the board erred in finding that the
suspension letters were delivered on October 20, 2022, because
the USPS tracking information was hearsay and not properly
authenticated. Additionally, Desh contends that (1) the
suspension letters were "not given to an officer or agent or
person in charge of the corporation," (2) both owners and
managers were away from the store when the suspension letters
were delivered, and (3) once found, its president immediately
called the board, attempted to hand deliver the petition, and
mailed the petition within "2-3 days after [receiving] the
[commissioner's] suspension notices, but well within the ten day
limit."
While we are sympathetic to Desh's argument and note the
amount of taxpayer resources expended on this appeal (as
compared to the resources needed to conduct a hearing on the
5 Desh's president confirmed that the suspension letters were delivered to the correct address but contests the date that they were delivered.
4 petition), we are constrained to affirm. Using the date that
the suspension letters were mailed, the petition was untimely.
See G. L. c. 62C, § 68. On this basis alone, we could affirm
the board's decision. Noting that the statute provides for
either the date of mailing or the date of delivery as the
operative date for determining the petition's timeliness, we
turn to Desh's claim that the commissioner failed to prove when
the suspension letters were delivered. Before doing so, we
observe that if the commissioner had used certified mail, with a
return receipt, there would likely be no argument about when the
suspension letters were delivered.6 However, the commissioner's
procedures do not mandate such a practice. To determine the
date of receipt, the board used the so-called postmark rule
which provides that "[t]he date of the postmark on the sender's
receipt is treated as the postmark date . . . ." 831 Code Mass.
Regs. § 1.13(1)(b) (2007). It was therefore not error for the
board to apply the postmark rule and find, using the USPS
tracking information, that the suspension letters were delivered
on October 20, 2022.7
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-847
DESH, INC.1
vs.
COMMISSIONER OF REVENUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On October 18, 2022, the Commissioner of Revenue
(commissioner) mailed three letters to Desh, Inc. (Desh)
suspending Desh's licenses to sell tobacco and electronic
nicotine delivery systems for ninety days for failure to pay
excise taxes. The letters were sent by certified mail, without
a return receipt, through the United States Postal Service
(USPS), to the retail store (which is also Desh's principal
place of business).2 On November 3, 2022, Desh mailed a petition
to the Appellate Tax Board (board) challenging the suspension.
1 Doing business as Bob's Market.
2The retail location and principal place of business of Desh is 163 W. Wyoming Avenue, Melrose, Massachusetts. Under G. L. c. 62C, § 68 (§ 68), the petition must be filed
"within ten days after written notice of the decision has been
mailed or delivered to [Desh]." The commissioner filed a motion
to dismiss the petition, contending that it was not timely filed
and therefore the board did not have jurisdiction to hear the
appeal.3 Desh filed an opposition to the amended motion to
dismiss questioning, among other things, the adequacy of the
proof of delivery of the suspension letters.4 The board found
that the suspension letters were delivered on October 20, 2022,
and therefore Desh's petition was untimely. Concluding that it
lacked jurisdiction to hear the petition, the board dismissed
it. Desh filed a motion for reconsideration which the
commissioner opposed. The board denied the motion; this appeal
followed. We affirm.
Our review of a decision of the board is well settled. "We
will not modify or reverse a decision of the board if the
decision is based on both substantial evidence and a correct
3After the commissioner filed its motion to dismiss, the board held a hearing. Following that hearing, the hearing examiner allowed the commissioner to file an amended motion to dismiss which included an affidavit from Vincent Piccolo, a tax examiner employed by the commissioner who sent the suspension letters to Desh.
4We note that the suspension letters informed Desh that any appeal must be filed within ten days after receipt of the suspension letter, which conflicts with the provisions of § 68. The commissioner should take care to issue notices consistent with the requirements of the statute at issue.
2 application of the law." Boston Professional Hockey Ass'n, Inc.
v. Commissioner of Revenue, 443 Mass. 276, 285 (2005). In doing
so, "we recognize the [tax] board's expertise in the
administration of tax statutes and give weight to the [tax]
board's interpretations" (citation omitted). Adams v. Assessors
of Westport, 76 Mass. App. Ct. 180, 183 (2010). "We review
conclusions of law, including questions of statutory
construction, de novo" (citation omitted). Shrine of Our Lady
of La Salette Inc. v. Assessors of Attleboro, 476 Mass. 690, 696
(2017).
Desh contends that the commissioner failed to meet its
burden to establish the delivery and receipt of the suspension
letters. We note that under § 68, timeliness of Desh's petition
is calculated as ten days from either the date the suspension
letters were mailed or when they were delivered (emphasis
added). There is no contest about the date of mailing. The
record evidence established that Vincent Piccolo, a tax
examiner, responsible for, among other things, reviewing and
mailing suspension letters to tobacco retail license holders,
mailed the suspension letters to Desh on October 18, 2022. In
accordance with the commission's procedures, Piccolo sent the
letters certified mail with tracking that included a twenty-two
digit bar code identifier and delivery confirmation, but without
return receipts. After receiving the bar code identifiers,
3 Piccolo uploaded and entered this information into the
Department of Revenue computer system. The bar code identifiers
state that the three letters were "delivered, left with
individual" on October 20, 2022, at 12:05 P.M. (USPS tracking
information).5 There was no evidence of a signed receipt for the
delivery of the suspension letters.
Desh argues that the board erred in finding that the
suspension letters were delivered on October 20, 2022, because
the USPS tracking information was hearsay and not properly
authenticated. Additionally, Desh contends that (1) the
suspension letters were "not given to an officer or agent or
person in charge of the corporation," (2) both owners and
managers were away from the store when the suspension letters
were delivered, and (3) once found, its president immediately
called the board, attempted to hand deliver the petition, and
mailed the petition within "2-3 days after [receiving] the
[commissioner's] suspension notices, but well within the ten day
limit."
While we are sympathetic to Desh's argument and note the
amount of taxpayer resources expended on this appeal (as
compared to the resources needed to conduct a hearing on the
5 Desh's president confirmed that the suspension letters were delivered to the correct address but contests the date that they were delivered.
4 petition), we are constrained to affirm. Using the date that
the suspension letters were mailed, the petition was untimely.
See G. L. c. 62C, § 68. On this basis alone, we could affirm
the board's decision. Noting that the statute provides for
either the date of mailing or the date of delivery as the
operative date for determining the petition's timeliness, we
turn to Desh's claim that the commissioner failed to prove when
the suspension letters were delivered. Before doing so, we
observe that if the commissioner had used certified mail, with a
return receipt, there would likely be no argument about when the
suspension letters were delivered.6 However, the commissioner's
procedures do not mandate such a practice. To determine the
date of receipt, the board used the so-called postmark rule
which provides that "[t]he date of the postmark on the sender's
receipt is treated as the postmark date . . . ." 831 Code Mass.
Regs. § 1.13(1)(b) (2007). It was therefore not error for the
board to apply the postmark rule and find, using the USPS
tracking information, that the suspension letters were delivered
on October 20, 2022.7
6 The commissioner should reconsider this practice, particularly where here the record suggests that the USPS "does not warrant or represent that the information [from its website] is accurate or reliable."
7 Applying the postmark rule, the commissioner found that Desh delivered its petition to the board on November 3, 2022 (the date of the USPS postmark), and not the date the petition
5 To the extent that Desh argues that the board erred in
considering the USPS tracking information because it is hearsay,
we are not persuaded. Passing on the question of whether USPS
tracking information is admissible as a business record, see
Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005), "in the
context of administrative proceedings, hearsay evidence bearing
indicia of reliability constitutes admissible and substantial
evidence." Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 638 (2011). See also Kyle
K. v. Department of Children and Families, 103 Mass. App. Ct.
452, 460 (2023).
The board properly concluded that Desh's petition was
untimely and therefore it did not have jurisdiction to consider
was received by the board (November 4, 2022). Desh would have benefitted from this rule if the petition was otherwise timely.
6 it. See Commissioner of Revenue v. A.W. Chesterton Co., 406
Mass. 466, 467 (1990).8,9
Decision of Appellate Tax Board affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Meade, Blake & Brennan, JJ.10),
Clerk
Entered: June 25, 2024.
8Desh also argues that service was inadequate under Mass. R. Civ. P. 4 (d) (2), as amended, 370 Mass. 918 (1976). This argument fails because the board is not subject to the Rules of Civil Procedure. See 831 Code Mass. Regs. § 1.37 (2007). See also WorldWide TechServs., LLC v. Commissioner of Revenue, 479 Mass. 20, 31-32 (2018) (board's practices and procedures to conform to those applied in equity cases before adoption of Rules of Civil Procedure).
9For the reasons herein, the order denying the motion for reconsideration is affirmed.
10 The panelists are listed in order of seniority.