Raytheon Co. v. Commissioner of Revenue

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18-P-790 Appeals Court
18-P-1468
RAYTHEON COMPANY vs. COMMISSIONER OF REVENUE.
Nos. 18-P-790 & 18-P-1468.
Suffolk. June 3, 2019. - September 12, 2019.
Present: Green, C.J., Vuono, & Lemire, JJ.
Taxation, Abatement, Corporate excise, Commissioner of Revenue,
Appellate Tax Board: jurisdiction. Administrative Law,
Agency's interpretation of statute, Judicial review.
Statute, Construction. Notice, Timeliness.
Appeals from decisions of the Appellate Tax Board.
Donald-Bruce Abrams (John S. Brown also present) for the
taxpayer.
Kirk G. Hanson, Assistant Attorney General, & Pierce O.
Cray, Assistant Attorney General, for Commissioner of Revenue.
GREEN, C.J. These two related appeals raise questions
concerning the timeliness and scope of applications for
abatement of excise taxes filed by the Raytheon Company for the
years 2007 and 2012, respectively. In both cases, Raytheon
timely filed its return, but thereafter received notice of a
2
deficiency assessment from the Commissioner of Revenue
(commissioner), and filed an application for abatement
challenging the deficiency assessment. Raytheon timely appealed
the commissioner's denials of the abatement applications, and,
while the appeals were pending before the Appellate Tax Board
(board), subsequent events revealed in each instance that
Raytheon had in fact overpaid the taxes owed when it filed its
original returns. Although the commissioner abated the
deficiency assessments in full while the appeals to the board
were still pending, Raytheon argued that it was due further
abatements on the theories that (a) it had overstated its income
for 2007, and (b) it was entitled to recoup at once (in the form
of a tax refund) certain investment tax credits, rather than
carrying forward any credits remaining after the full abatement
of the 2012 deficiency assessment. After abating the deficiency
assessments, the commissioner moved to dismiss Raytheon's
appeals to the board, arguing that the appeals were untimely as
to any matter other than the deficiency assessments. The board
agreed and dismissed Raytheon's appeals for want of jurisdiction
over any amounts other than the deficiency assessments. On
appeal to this court, Raytheon contends that the board's
dismissal was incorrect because the deficiency assessments
necessarily encompassed not only the amounts stated in the
notices of deficiency assessment but also the amounts by which
3
Raytheon had overpaid its taxes in its original returns. In its
appeal concerning its 2012 return, Raytheon makes an additional
argument: that its application for abatement, which referenced
only the deficiency assessment for that return, was sufficient
to preserve its rights to claim an abatement of taxes reported
in its filed return because the application for abatement was
filed within three years after Raytheon had filed its return.1
See G. L. c. 62C, § 37. We affirm the decisions of the board in
both cases.
1. Factual Background. a. 2007 return. Raytheon filed a
corporate excise tax return for the 2007 tax year, reporting an
excise tax liability of $7,333,762.2 On November 15, 2011,
following an audit, the commissioner issued a notice of
assessment, notifying Raytheon that he had assessed it an
1 Raytheon's application for abatement concerning its 2007
return was filed more than three years after it had filed its
return, but less than two years after the deficiency assessment.
Accordingly, Raytheon presses no claim that it filed a timely
application for abatement of the tax reported in its 2007
return.
2 The record does not reflect the date on which Raytheon
filed its return. However, Raytheon has not argued that its
2012 abatement application was timely as to its original 2007
tax return under any of the time limits in G. L. c. 62C, § 37.
Nor did it argue (either to the commissioner, the board, or on
appeal to this court) that the commissioner's November 2011
notice of assessment was untimely as to Raytheon's filing of its
original 2007 tax return.
4
additional $650,752 of corporate excise tax, plus interest and
penalties, for the 2007 tax year.3
On January 12, 2012, Raytheon filed an application for
abatement of the deficiency assessment. Raytheon did not,
however, file any application for abatement directed to its
original 2007 tax return. The commissioner denied Raytheon's
abatement application in full on July 31, 2013. On September
20, 2013, Raytheon filed with the board a timely appeal from the
commissioner's denial.
In addition to challenging the nonincome measure of the
excise upon which the $650,752 deficiency assessment for the
2007 tax year was based, Raytheon also raised for the first time
in its appeal to the board a claim that it had overstated its
sales factor in its original 2007 return, resulting in an
overstatement of the income component of its corporate excise
for that tax year on that return. As a result of the alleged
sales factor overstatement in its 2007 tax return, Raytheon
claimed it was entitled to an additional abatement of $5,746,575
for the 2007 tax year, to be refunded from the taxes paid when
it originally filed its return.
3 The deficiency assessment was attributable to the
commissioner's inclusion, after audit, of certain property in
Raytheon's tangible personal property base, resulting in an
increase in the nonincome component of Raytheon's corporate
excise.
5
On December 14, 2015, the commissioner filed a partial
motion to dismiss, moving to dismiss so much of Raytheon's
appeal to the board as sought an abatement of portions of the
tax paid when it filed its 2007 return. The commissioner agreed
that Raytheon could use the sales factor adjustment argument as
a new legal theory to dispute the commissioner's tangible
property deficiency assessment of $650,752 for the 2007 tax
year. However, he argued that, because Raytheon had never
applied for an abatement of the tax originally reported on the
2007 return, any challenge to the original self-assessment for
2007 was time barred. After the board denied the commissioner's
motion, the commissioner abated the deficiency assessment in
full, and filed a second motion to dismiss what remained of
Raytheon's appeal -- in other words, its request for abatement
of portions of the tax it originally reported on, and paid with,
its 2007 return. On February 2, 2018, the board allowed the
commissioner's motion to dismiss, and Raytheon appealed.
b. 2012 return. Raytheon filed its 2012 corporate excise
return on August 29, 2013, reporting a tax due of $8,574,471.
On July 25, 2016, the commissioner sent to Raytheon a notice of
assessment for 2012 in the amount of $2,885,572, plus interest
and penalties, based on the commissioner's denial of a research
and development credit that Raytheon had claimed. Raytheon
applied for an abatement of the deficiency assessment on August
6
24, 2016. At thirty days after the deficiency assessment,
Raytheon's abatement application was filed well within the two-
year limit established by G. L. c. 62C, § 37, and also fell (by
five days) within three years after the date it had filed the
return.
The commissioner denied Raytheon's abatement application on
February 24, 2017. Raytheon then timely appealed to the board
from the commissioner's denial on March 24, 2017. On November
15, 2017, before any board action on Raytheon's abatement
application, Raytheon and the commissioner reached a settlement
regarding Raytheon's corporate excise liability for two previous
years: 2008 and 2009. Two aspects of that settlement had a
significant collateral effect on Raytheon's 2012 excise. First,
the settlement altered the calculation of the 2012 research and
development credit at issue in the commissioner's deficiency
assessment, leading him to reduce that assessment from
$2,885,572 to $119,929. Second, the settlement also resulted in
$2,737,091 worth of investment tax credit (ITC) "carryforwards"
from 2008 and 2009 available for certain uses in later tax
years, including 2012. The commissioner applied $119,929 of
those carryforwards to 2012 as a credit against the remaining
balance of the deficiency assessment, thereby reducing that
balance to zero. As a result, the commissioner abated the
deficiency assessment in full on April 12, 2018. The next day,
7
he moved to dismiss for lack of jurisdiction Raytheon's appeal
to the board from his earlier denial of the company's
application to abate the deficiency assessment.
In response, Raytheon asserted that it should be allowed to
apply the remaining $2,617,162 in unused ITC carryforwards to
the tax it had paid with its 2012 return, and receive a refund
in that amount. In furtherance of that claim, Raytheon filed an
amended and restated petition in which it sought "to amend and
restate in its entirety the petition that Raytheon previously
filed . . . and to assert Raytheon's entitlement to an
additional abatement and refund." After hearing, the board
issued a decision with findings, dismissing Raytheon's appeal
for lack of jurisdiction, based on the fact that the
commissioner had abated in full the deficiency assessment that
was the subject of Raytheon's abatement application, and the
time for filing a new abatement application with the
commissioner had long since passed. This appeal followed, and
was paired for hearing with Raytheon's appeal from the board's
decision concerning the 2007 return.
2. Statutory and regulatory background. Assessment of
taxes is governed by G. L. c. 62C, § 26. Subparagraph (a) of
that section reads as follows:
"Taxes shall be deemed to be assessed at the amount shown
as the tax due upon any return filed under the provisions
of this chapter and on any amendment, correction or
8
supplement thereof, or at the amount properly due,
whichever is less, and at the time when the return is filed
or required to be filed, whichever occurs later."
Pursuant to Department of Revenue regulations, "The tax
declared on the return filed by the taxpayer is a self-
assessment of tax by the taxpayer." 830 Code Mass. Regs.
§ 62C.26.2(1)(a) (2017, eff. December 5, 2016).4 Once a self-
assessment occurs, the amount of tax declared on a tax return
generally "is accepted as the tax due from the taxpayer for the
tax period indicated on the return unless the self-assessed
amount is later adjusted, either by the Commissioner or by the
taxpayer." 830 Code Mass. Regs. § 62C.26.2(1)(a).5 Except for
adjustments to correct mathematical errors apparent on the face
of the return, most adjustments the commissioner makes are
"deficiency assessments" pursuant to G. L. c. 62C, § 26 (b) (1).6
4 Although § 62C.26.2 was not in effect when Raytheon filed
the tax returns now at issue, the statement is a general
description of the commissioner's views.
5 See note 4, supra.
6 In pertinent part, G. L. c. 62C, § 26 (b) (1), as
appearing in St. 2014, c. 165, § 100, provides:
"If the commissioner determines . . . that the full amount
of any tax has not been assessed or is not considered to be
assessed, the commissioner may, at any time within 3 years
after the date the return was filed or the date it was
required to be filed, whichever occurs later, assess the
same with interest as provided in [G. L. c. 62C, § 32]
. . . ."
9
Before making a deficiency assessment, the commissioner first
must give the taxpayer notice of his intent to assess, unless a
specific exception applies. After receiving notice of the
intent to assess, the taxpayer has thirty days to confer with
the commissioner regarding the intended assessment. See G. L.
c. 62C, § 26 (b) (1); 830 Code Mass. Regs. § 62C.26.1(6)(a)
(2004). After that thirty-day period, "the commissioner shall
assess the amount of tax remaining due to the commonwealth, or
any portion thereof, which the commissioner believes has not
been assessed." G. L. c. 62C, § 26 (b) (1), as appearing in St.
2014, c. 165, § 100.7
If a taxpayer believes the commissioner erred in making a
deficiency assessment or otherwise is aggrieved by the
assessment of a tax, the taxpayer may seek review pursuant to
G. L. c. 62C, § 37, which provides that "[a]ny person aggrieved
by the assessment of a tax, other than a tax assessed under
chapter 65 or 65A, may apply in writing to the commissioner" for
an abatement of that tax.
We note that in 2014 (after the commissioner's 2011
deficiency assessment and before the 2016 deficiency
assessment), § 26 was amended, substituting the word
"considered" for the word "deemed." The alteration does not
change our analysis.
7 Section 26 (b) was amended after the commissioner's first
deficiency assessment. See note 6, supra. The amendments to
the portion of par. (b) quoted above were not substantive.
10
Strict time limits govern when a taxpayer may apply for an
abatement. Specifically, unless the commissioner and taxpayer
agree to extend the period for assessment pursuant to G. L.
c. 62C, § 27, the taxpayer must apply for the tax abatement "(1)
within 3 years from the date of filing of the return, taking
into account [G. L. c. 62C, § 79 (a)]; (2) within 2 years from
the date the tax was assessed or deemed to be assessed; or (3)
within 1 year from the date that the tax was paid, whichever is
later." G. L. c. 62C, § 37.8 Furthermore, the commissioner's
regulations provide that "[i]f more than three years have
expired from the date of filing of the original return, taking
into account . . . G. L. c. 62C, § 79 . . . (a), and an
application for abatement is filed within two years of an
assessment the Commissioner will grant an abatement up to the
amount of that assessment." 830 Code Mass. Regs. § 62C.37.1(4)
(2016, eff. November 30, 2015).9 Additionally, if a taxpayer
8 General Laws c. 62C, § 79 (a), provides that "[a]ny return
filed before the last day prescribed for the filing thereof
shall be considered as filed on such last day."
9 At the time Raytheon submitted its application for an
abatement of its 2007 deficiency assessment, the first phrase in
the commissioner's regulations just quoted read as follows:
"If more than three years have expired from the due date of
the return, determined without regard to any extension of
time, and an application for abatement is filed within two
years of an assessment the Commissioner will grant an
abatement up to the amount of that assessment."
11
believes it has overreported the amount of tax due on its tax
return, it may seek a refund of that overpayment either by
filing an application for abatement of the overpayment, pursuant
to G. L. c. 62C, § 36, or by filing an amended tax return that
reduces the tax reported as due. See 830 Code Mass. Regs.
§ 62C.26.2(1)(a).10 However, an amended return that reduces the
tax reported as due still must be filed within the statute of
limitations applicable to an abatement application under G. L.
c. 62C, § 37. See 830 Code Mass. Regs. § 62C.26.2(3)(a) (2017,
eff. December 5, 2016).11 Where necessary to protect the
830 Code Mass. Regs. § 62C.37.1(4) (2006). In the circumstances
of this case, the 2016 amendment to the regulation, substituting
the phrase "date of filing" for the phrase "due date," does not
bear on the timeliness of Raytheon's abatement applications.
10Section 62C.26.2, titled "Amended Returns," was added to
830 Code Mass. Regs. effective December 5, 2016, after Raytheon
had filed its August 2016 abatement application. As to the
regulations governing amended returns in effect when Raytheon
filed its abatement applications, see 830 Code Mass. Regs.
§ 62C.37.1(5)(b) (2008, eff. Nov. 3, 2006) (taxpayer may file
amended return or write letter to Department of Revenue calling
to commissioner's attention the overpayment); 830 Code Mass.
Regs. § 62C.37.1(1)(a) (2016, eff. Nov. 30, 2015) (as to
business tax filers, amended return may not serve as vehicle for
seeking abatement, except as specified by commissioner).
11Title 830 Code Mass. Regs. § 62C.26.2(3)(a) also provides
that "an amended return that reduces the tax reported to be due
is also subject to the statute of limitations under M.G.L. c.
62C, § 36," which provides various statutes of limitation
applicable to applications for an abatement or refund of an
overpayment of tax, depending on whether a return has or has not
been timely filed. Under § 36, when the return has been timely
filed (as was the case here with Raytheon's 2007 tax return),
the statute of limitations within which the taxpayer must seek a
12
taxpayer's statutory rights of appeal, the commissioner will
deem an amended return that reduces a self-assessment to be an
abatement application. 830 Code Mass. Regs. § 62C.26.2(5)
(2017, eff. December 5, 2016).
3. Discussion. a. Deficiency assessment. Common to
Raytheon's claims in both appeals is its contention that the
respective deficiency assessments necessarily encompassed not
only the amounts stated in the notices of deficiency assessment,
but also the difference between the amount Raytheon self-
reported on its return when originally filed and the amount
"properly due," after taking into account all adjustments or
credits that were or could have been applied -- and particularly
including even those that did not become known until after the
date on which Raytheon could have filed an application for
abatement of the taxes due on that return. Raytheon
acknowledges that we considered and rejected a similar claim in
RHI Holdings, Inc. v. Commissioner of Revenue, 51 Mass. App. Ct.
681, 686-687 (2001), but observes that the specific argument it
now advances was not pressed by the taxpayer or addressed by
refund of an overpayment is the same as for abatements under
§ 37. See G. L. c. 62C, § 36 ("A request for a refund or credit
of an overpayment of tax where the required return was timely
filed shall be made within the period permitted for abatement
for that return under section 37").
13
this court in that opinion. We nonetheless are unpersuaded by
Raytheon's argument.
We first review, in summary, the circumstances and analysis
in the RHI Holdings case, as background for the present appeals.
In RHI Holdings, the taxpayer filed an abatement application in
1988, within two years after the date of a 1986 deficiency
assessment, but more than three years after filing its original
tax returns in 1982 and 1984. RHI Holdings, 51 Mass. App. Ct.
at 682-683. RHI sought to amend its abatement application so as
to recompute the combined net income it had reported in its
original tax returns, in the wake of an intervening decision of
the Supreme Judicial Court in a different matter that rejected
the commissioner's previously prescribed method for apportioning
combined net income of multistate entities. Id. at 683. The
commissioner allowed the recalculation but only up to the amount
of the deficiency assessment because RHI's abatement application
was untimely as to the self-assessments that occurred when the
original returns were filed. Id. The board upheld the
commissioner's decision, and this court affirmed, holding that
because the abatement application was filed nearly four years
after the "deemed assessment" that occurred when the tax return
was filed in 1984, RHI's abatement application was untimely as
to both the 1982 and 1984 "deemed assessments" and timely only
as to the subsequent deficiency assessment. Id. at 686. We
14
rejected the taxpayer's assertion that the term "assessment," as
used in G. L. c. 62C, § 37, "necessarily means 'the full amount
of any tax due, including any tax deemed to be assessed on the
return plus any subsequent additional tax due on audit,'"
concluding that such a construction "would render much of the
language of § 37 meaningless or surplusage." Id. at 686-687,
689. Instead, in order to challenge the assessment of any
particular tax, the taxpayer must file a timely abatement
application as to each unique act of assessment. Id. at 689.
Much of the analysis in RHI Holdings applies with equal
force to the present case. However, Raytheon now contends that
the discussion in RHI Holdings overlooked a critical element, by
treating the "deemed assessment" in the originally-filed tax
return as equal to the amount self-reported on the return
originally filed by the taxpayer. Instead, Raytheon asserts,
G. L. c. 62C, § 26 (a), directs that the "deemed assessment" is
"the amount shown as the tax due upon any return filed . . . or
. . . the amount properly due, whichever is less" (emphasis
added). Accordingly, Raytheon insists, the amount self-reported
with the return is the "deemed assessment" only if it is the
amount "properly due," and in circumstances (such as those in
the present case) where the self-reported amount reflects an
overpayment (albeit unknown as such until long after the return
was filed), the "deemed assessment" is the lower amount
15
"properly due," after exclusion of the overpayment. Since the
only taxes ever assessed before the notice of deficiency
assessment were those deemed assessed at the lower amount, the
argument continues, any subsequent deficiency assessment must be
for the difference between the amount "deemed assessed" (and
"properly due") with the original return and the total amount
shown as unpaid in the notice of deficiency assessment,
regardless of the amount of the deficiency described in the
notice of assessment itself. From that premise, Raytheon
concludes that its application for abatement, directed to the
deficiency assessment, encompassed both the amount stated in the
notice of assessment and the amount it overpaid with its
originally filed return.
We reject the foundational suggestion in Raytheon's
argument that the amount of the "deemed assessment" when a
taxpayer files a return with self-reported income is open to
redetermination after the statutorily prescribed time limit for
the taxpayer to seek an adjustment of its tax liability, and
that the amount of the assessment imposed by a notice of
deficiency assessment is other than the amount set forth in the
notice. To be sure, a taxpayer may seek abatement of taxes
assessed and paid with its initial return, including the amount
of any overpayment, or may seek to amend its return, and, if
allowed, any such abatement or amendment will redetermine the
16
amount of the deemed assessment established by the filed return.
But the time for such a request or amendment is strictly limited
in time by G. L. c. 62C, § 37, to three years after the date on
which the return is filed. Unless and until such an abatement
is made, the taxes deemed assessed by the filing of the return
are simply those reported on, and paid with, the return. And
once the time for seeking an abatement of those self-reported
taxes has passed, the reported amount may not thereafter be
adjusted. We also conclude, consistent with our holding in RHI
Holdings, that an application for abatement filed with reference
to a deficiency assessment initiates a request for abatement
only of the amount stated in, and therefore imposed by, that
assessment.
Our conclusions are consistent with familiar canons of
statutory construction. As we summarized in RHI Holdings, 51
Mass. App. Ct. at 685-686:
"'The board is an agency charged with the administration of
tax law to whose interpretation of tax statutes we may give
weight.' A.W. Chesterton Co. v. Commissioner of Rev., 45
Mass. App. Ct. 702, 710 (1998). See, e.g., McCarthy v.
Commissioner of Rev., 391 Mass. 630, 632 (1984). Further,
'[w]herever possible, we give meaning to each word in the
legislation [at issue]; no word in a statute should be
considered superfluous.' International Org. of Masters,
Mates & Pilots v. Woods Hole, Martha's Vineyard & Nantucket
S.S. Authy., 392 Mass. 811, 813 (1984). See Chatham Corp.
v. State Tax Commn., 362 Mass. 216, 219 (1972) (every word
in a legislative enactment, including a tax statute, is to
be given force and effect). Also, however, it 'is a
familiar principle that tax laws are to be strictly
construed,' McCarthy v. Commissioner of Rev., supra at 632;
17
and, to 'whatever extent the statute is ambiguous, we
construe it in favor of the taxpayer.' Electronics Corp.
of America v. Commissioner of Rev., 402 Mass. 672, 675
(1988)."
Raytheon's proposed construction of the amount "deemed
assessed" with a taxpayer's self-reported return would
significantly undermine § 37's imposition of limitation periods,
in much the same way as we observed the taxpayer's argument
would have done in RHI Holdings. See 51 Mass. App. Ct. at 689.
And, contrary to Raytheon's contention, its proposed
construction is not required to lend meaning to the portion of
G. L. c. 62C, § 26, setting the deemed assessment at the amount
"properly due," if lower than the amount reported with the
return; a timely application for abatement, or a timely amended
return, resulting in a lower tax due, would correspondingly
adjust the deemed assessment to the lower amount. Moreover,
limiting the abatement available in an application directed to a
deficiency assessment to the amount of the deficiency assessment
is consistent with the express provisions of the commissioner's
regulations, which provide that
"[i]f more than three years have expired from the date of
filing of the original return, taking into account . . .
G. L. c. 62C, § 79 . . . (a), and an application for
abatement is filed within two years of an assessment the
Commissioner will grant an abatement up to the amount of
that assessment" (emphasis supplied).
18
830 Code Mass. Regs. § 62C.37.1(4).12
For the foregoing reasons, the deficiency assessments on
Raytheon's 2007 and 2012 returns assessed only the amounts
stated in the notices of those assessments, and did not operate
to impose a new assessment of any amount overpaid with the 2007
and 2012 returns. Accordingly, Raytheon's applications for
abatement of the deficiency assessments on its 2007 and 2012
returns were effective only to abate any amounts imposed by the
notices of those assessments, and the board properly declined
jurisdiction over Raytheon's claims concerning other amounts.
b. 2012 return. Raytheon's application for abatement of
the deficiency assessment on its 2012 return was filed within
three years after its 2012 return. As we explained in our
discussion of background facts, although the application made no
mention of any request to abate the taxes reported on Raytheon's
2012 return, subsequent events furnished Raytheon with
significant ITC carryforwards for application in later years,
and Raytheon thereafter sought to amend its application for
12Earlier versions of the regulation were cited with
approval in RHI Holdings, 51 Mass. App. Ct. at 688, and in
Electronics Corp. of Am., 402 Mass. at 677. In Electronics
Corp., the court cited the regulation as a safeguard against the
"unintended or absurd result" by which a taxpayer could use a
timely application for abatement following payment of additional
taxes to seek abatement not only of the additional taxes paid,
but also of taxes previously paid, after the time for seeking
abatement of the previously paid taxes had expired. Id.
19
abatement of the deficiency assessment to seek abatement of the
taxes originally paid with the return, through application of
those carryforwards. Raytheon's separate argument regarding its
2012 return asserts that its application for abatement of the
deficiency assessment was sufficient to preserve its rights to
claim an abatement of other taxes paid with its original 2012
return because the application was filed within three years
after Raytheon had filed its return.
We consider Raytheon's argument foreclosed by the Supreme
Judicial Court's observation in Liberty Life Assur. Co. v. State
Tax Comm'n, 374 Mass. 25, 28 (1977), that "[i]in a hearing
before the board, an appellant may advance legal theories and
present facts not relied on before the commission, but the
appellant may not present a request for abatement of a portion
of an excise not involved in any respect in its application to
the commission." Accordingly, as the commissioner argues in his
brief, it is immaterial for purposes of the present appeal that,
at the time it applied for abatement of the 2016 deficiency
assessment, Raytheon could have submitted a timely application
for abatement of the taxes it reported and paid with its 2012
return, because it did not do so; the only application for
abatement was directed to the 2016 deficiency assessment.
Electronics Corp. of Am., 402 Mass. at 674-677, and
Supermarkets Gen. Corp. v. Commissioner of Revenue, 402 Mass.
20
679, 682-685 (1988), are not to the contrary. Both cases
confirm the proposition that a taxpayer may take advantage of
any of the limitations periods applicable to the taxpayer's
circumstances, but neither suggests that an application for
abatement of taxes imposed by a specific assessment may operate
to request abatement of a different assessment.
Finally, we reject Raytheon's suggestion that the
commissioner was obliged to accept its request to amend and
restate its application for abatement of the 2016 deficiency
assessment to include an application for abatement of the taxes
reported and paid with its 2012 return, after expiration of the
limitations period applicable to the latter, under 831 Code
Mass. Regs. § 1.14 (2007), with "relation back" to the date it
filed its application for abatement of the deficiency
assessment.13 As a threshold matter, the question of leave to
amend is subject to the discretion of the commissioner, and
Raytheon made no motion for leave to amend and has advanced no
compelling rationale in this appeal to support a conclusion that
denial of such a motion would be an abuse of discretion. In any
event, Raytheon cites no authority to support its contention
13 In pertinent part, 831 Code Mass. Regs. § 1.14 provides:
"Parties may amend their pleadings at any time before the
decision of the Board, by consent of the adverse party or
by leave of the Board."
21
that an amendment to an application for abatement of one
assessment may be used as a vehicle, with "relation back," to
raise a claim, which otherwise would be time barred, for
abatement of a different assessment. Cf. Sears, Roebuck & Co.
v. State Tax Comm'n, 370 Mass. 127, 129-130 (1976) (appeals to
board under G. L. c. 64F, § 23, and G. L. c. 64H, § 22, as then
in effect; see now G. L. c. 62C, § 39).14
The decisions of the appellate tax board are affirmed.
So ordered.
14Similarly unavailing is Raytheon's suggestion that the
board should have considered its time-barred request for
abatement of the taxes paid with its 2012 return as a matter of
"equity and good conscience." G. L. c. 58A, § 7. Whatever such
considerations might encompass, they do not overcome statutorily
established jurisdictional limits. See Veolia Energy Boston,
Inc. v. Assessors of Boston, 95 Mass. App. Ct. 26, 29 (2019).