Fredkin v. State Tax Commission

Massachusetts Supreme Judicial Court

Fredkin v. State Tax Commission

343 N.E.2d 380, 369 Mass. 973, 1976 Mass. LEXIS 1119

CourtMassachusetts Supreme Judicial Court

DecidedMarch 3, 1976

StatusPublished

Cited by2 cases

This text of 343 N.E.2d 380 (Fredkin v. State Tax Commission) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fredkin v. State Tax Commission, 343 N.E.2d 380, 369 Mass. 973, 1976 Mass. LEXIS 1119 (Mass. 1976).

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Opinion

The taxpayers filed a timely joint individual income tax return for the calendar year 1971, and the Commissioner of Corporations and Taxation gave notice of intention to assess an additional tax. On November 16, 1972, the taxpayers filed a timely application for abatement of the additional tax, and on November 17, 1972, the State Tax Commission sent them by certified mail a decision denying the application. On January 8, 1973, the Commission denied a second application filed on January 4, and on January 19, 1973, it denied a hearing on a motion to reconsider dated January 9. On February 2,1973, the taxpayers appealed to the Appellate Tax Board. The board first denied the Commission’s plea in bar setting forth the foregoing facts, but at the later hearing on the merits recon[974]*974sidered and allowed the plea in bar. 1. Under its Buie 37, the board was authorized to reconsider its first ruling on the plea in bar, particularly since the plea went to the jurisdiction of the board. See Fall River v. State Tax Comm’n, 367 Mass. 681, 683 (1975); Peterson v. Hopson, 306 Mass. 597, 601-602 (1940). 2. The taxpayers had thirty days to appeal from the Commission’s decision of November 17,1972. G. L. c. 62, § 45. Further applications after the time had run did not avoid the time limit. Boston Five Cents Sav. Bank v. Assessors of Boston, 313 Mass. 762, 764-766 (1943). Under G. L. c. 62, §§ 37, 43, no “hearing” before the Commission was “required” within the meaning of the definition of an “adjudicatory proceeding” in G. L. c. 30A, § 1 (1), and even if a hearing were required, the case is not one where the Commission “fails to act” within the meaning of G. L. c. 58A, § 6. The taxpayers’ contention that under G. L. c. 62, § 43, the return itself was an application for abatement of the additional tax, on which the Commission failed to act within six months, is an afterthought lacking in merit.

Andrew Egendorf for the taxpayers. Howard Whitehead, Assistant Attorney General, for the State Tax Commission.

Decision affirmed.

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The taxpayers filed a timely joint individual income tax return for the calendar year 1971, and the Commissioner of Corporations and Taxation gave notice of intention to assess an additional tax. On November 16, 1972, the taxpayers filed a timely application for abatement of the additional tax, and on November 17, 1972, the State Tax Commission sent them by certified mail a decision denying the application. On January 8, 1973, the Commission denied a second application filed on January 4, and on January 19, 1973, it denied a hearing on a motion to reconsider dated January 9. On February 2,1973, the taxpayers appealed to the Appellate Tax Board. The board first denied the Commission’s plea in bar setting forth the foregoing facts, but at the later hearing on the merits recon[974]*974sidered and allowed the plea in bar. 1. Under its Buie 37, the board was authorized to reconsider its first ruling on the plea in bar, particularly since the plea went to the jurisdiction of the board. See Fall River v. State Tax Comm’n, 367 Mass. 681, 683 (1975); Peterson v. Hopson, 306 Mass. 597, 601-602 (1940). 2. The taxpayers had thirty days to appeal from the Commission’s decision of November 17,1972. G. L. c. 62, § 45. Further applications after the time had run did not avoid the time limit. Boston Five Cents Sav. Bank v. Assessors of Boston, 313 Mass. 762, 764-766 (1943). Under G. L. c. 62, §§ 37, 43, no “hearing” before the Commission was “required” within the meaning of the definition of an “adjudicatory proceeding” in G. L. c. 30A, § 1 (1), and even if a hearing were required, the case is not one where the Commission “fails to act” within the meaning of G. L. c. 58A, § 6. The taxpayers’ contention that under G. L. c. 62, § 43, the return itself was an application for abatement of the additional tax, on which the Commission failed to act within six months, is an afterthought lacking in merit.

Andrew Egendorf for the taxpayers. Howard Whitehead, Assistant Attorney General, for the State Tax Commission.

Decision affirmed.

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Bluebook (online)

343 N.E.2d 380, 369 Mass. 973, 1976 Mass. LEXIS 1119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fredkin-v-state-tax-commission-mass-1976.

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