The opinion
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13-P-876 Appeals Court
GEORGE SCHUSSEL & another1 vs. COMMISSIONER OF REVENUE.
No. 13-P-876
Suffolk. June 4, 2014. - September 30, 2014.
Present: Graham, Meade, & Fecteau, JJ.
Taxation, Appellate Tax Board: findings, Income tax, Gross
income. Words, “Tax-related.”
Appeal from a decision of the Appellate Tax Board.
Francis J. DiMento for the taxpayers.
John M. Stephan, Assistant Attorney General, for
Commissioner of Revenue.
GRAHAM, J. This is an appeal from an Appellate Tax Board
(board) decision upholding the denial by the Commissioner of
Revenue (commissioner) of a request for an abatement of double
taxes assessed to George and Sandra Schussel (Schussels) for
filing false or fraudulent income tax returns for the calendar
years 1993, 1994, and 1995 (tax years at issue). The case
1
Sandra Schussel.
2
presents three issues: first, whether the board erred as a
matter of law in upholding the commissioner's double tax
assessment based on the Schussels' false or fraudulent filings;
second, whether the Schussels were entitled to amnesty from the
double tax assessment; and third, whether the board erred as a
matter of law in ruling that the seven-year look-back period for
nonfiling taxpayers does not apply to the Schussels. We affirm.
Background. The facts are taken from the board's findings
of fact and report. George2 received his bachelor's degree from
the University of California in 1961. He attended graduate
school at Harvard University, where he earned a master's degree
and Ph.D. in 1966. Sandra, who was born and raised in Lynn,
attended the Peter Brent Brigham Hospital nursing school in
Boston and graduated in 1962. She practiced as a registered
nurse at The Children's Hospital in Boston for six months before
leaving to begin work as a flight attendant for American
Airlines.
The Schussels met in 1964 and were married the following
year. They lived in Cambridge while George completed his
education at Harvard. After George became employed, the couple
relocated several times. The couple lived in New Jersey when
their first daughter was born in 1970. Later that year, the
Schussels moved back to Massachusetts, and George secured a job
2
We use first names to avoid confusion.
3
at American Mutual Insurance Company. In 1971, the family moved
to Lynnfield.
In 1979, George founded his own company, Digital
Consulting, Inc. (DCI), which he incorporated in Massachusetts.
DCI organized, promoted, and conducted trade shows and
conferences that were designed to teach guests how to utilize
the latest technological advancements to solve business and
government problems. The events were held in several major
cities in the United States, as well as in foreign countries.
During the tax years at issue, George operated DCI from an
office in Andover.
George testified to the board that, during the tax years at
issue, he spent approximately 70 days a year in Massachusetts,
80 days a year in Florida, 95 days a year traveling for
business, and 120 days a year in New Hampshire. However, he
testified at his deposition that he was in Massachusetts for
about a third of each year, or nearly 120 days.3
On February 26, 2004, George was indicted in the United
States District Court for the District of Massachusetts on one
3
Neither version of his testimony established that he spent
at least 183 days a year in Massachusetts. As such, the
Schussels could not be deemed Massachusetts residents for tax
purposes by virtue of G. L. c. 62, § 1(f). Therefore, the
question of the Schussels' residency for tax purposes turned on
whether they were domiciled in Massachusetts during the tax
years at issue. In the proceedings below, they argued that they
were not domiciled in Massachusetts. However, the Schussels
have elected not to pursue this argument on appeal.
4
count of conspiracy and two counts of tax evasion, including
that he filed a false and fraudulent income tax return for the
tax year 1995. The parties agree that, based on Internal
Revenue Service (IRS) letter 692 and form 4549-A,4 the Schussels'
adjusted income was determined to be as follows: $1,661,709 for
tax year 1993; $2,354,817 for tax year 1994; and $3,341,868 for
tax year 1995. These amounts were known as of January 20, 2009,
when form 4549-A was issued. George reported his Federal
taxable income to be substantially less than these figures. In
one instance, the 1995 Federal return reported income of only
$1,030,785, a difference of $2,311,083 from the adjusted income
for that year. On January 25, 2007, he was found guilty on all
three charges. He served a prison sentence until he was granted
a supervised release on February 1, 2011.
Although the Schussels owned and maintained a Massachusetts
corporation and a residence in Lynnfield, they failed to file
any Massachusetts personal income tax returns, whether resident
or nonresident, from 1988 to June, 2007. On May 15, 2007, the
commissioner issued a notice of failure to file personal income
taxes with the Department of Revenue (department). The notice
was sent to the Schussels' attorney tax preparers. Only then
did the Schussels file State returns for the tax years at issue.
4
IRS form 4549-A indicates "Income Tax Discrepancy
Adjustments."
5
However, the returns filed with the department were based on the
Federal returns, which had been deemed false or fraudulent and
led to George's convictions.
On January 20, 2009, the commissioner applied the immediate
assessment, double tax assessment, and jeopardy assessment
provisions of G. L. c. 62C, §§ 26(d), 28, and 29, respectively.
Approximately one month later, the commissioner inadvertently
issued a tax amnesty notice to the Schussels. The amnesty
notice indicated that if, by a specified date, they paid the
full amount of tax and interest assessed under the immediate
assessment provision, the commissioner would waive the unpaid
penalties and the interest associated with those penalties. The
Schussels timely paid the amounts due, and the commissioner
waived the penalties and related interest. This waiver saved
the Schussels $905,215.32. The amount due, as indicated by the
amnesty notice, did not include the double tax assessed under
§ 28. The commissioner did not waive the double tax assessment.
The Schussels appealed the commissioner's double tax
assessment to the board, pursuant to G. L. c. 58A, § 7, and
G. L. c. 62C, § 39(c), arguing that the commissioner's refusal
to grant an abatement was in error. The board found that the
commissioner's application of the double assessment provision in
G. L. c. 62C, § 28, was justified by the Schussels' "reckless
indifference to the obligation to file accurate taxes."
6
Discussion. 1. Standard of review. "Findings of the
board are final, see G. L. c. 58A, § 13, and will not be
disturbed if they are supported by sufficient evidence."
General Mills, Inc. v. Commissioner of Rev., 440 Mass. 154, 161
(2003). "Our review of the sufficiency of the evidence is
limited to 'whether a contrary conclusion is not merely a
possible but a necessary inference from the findings.'" Olympia
& York State St. Co. v. Assessors of Boston, 428 Mass. 236, 240
(1998), quoting from Kennametal, Inc. v. Commissioner of Rev.,
426 Mass. 39, 43 (1997), cert. denied, 523 U.S. 1059 (1998).
"If supported by sufficient evidence, we will not reverse a
decision of the board unless it is based on an incorrect
application of the law." Syms Corp. v. Commissioner of Rev.,
436 Mass. 505, 511 (2002). "In reviewing mixed questions of
fact and law, the board's expertise in tax matters must be
recognized, and its decisions are due 'some deference.'" Koch
v. Commissioner of Rev., 416 Mass. 540, 555 (1993), quoting from
McCarthy v. Commissioner of Rev., 391 Mass. 630, 632 (1984).
2. Double tax assessment. General Laws c. 62C, § 28,
inserted by St. 1976, c. 415, § 22, states, in relevant part,
"If a person . . . has filed a false or fraudulent return
or has filed a return with a willful attempt in any manner
to defeat or evade the tax, the commissioner may determine
the tax due, according to his best information and belief,
and may assess the same at not more than double the amount
so determined, which additional tax shall be in addition to
the other penalties provided by this chapter."
7
The board found that the Schussels'
"intent to evade taxes was evident from the fact that,
despite working in Massachusetts for a Massachusetts
company, the [Schussels] failed to file any Massachusetts
income tax returns, not even nonresident returns, from 1988
until June of 2007, when the [Schussels] finally, upon
receipt of the Failure to File Notice, filed returns for
the tax years at issue. When they did file their
Massachusetts returns, the [Schussels] first reported
income amounts that were determined to be fraudulent in
federal court and grossly under-reported the true amount of
total income earned by over $5,500,000.00."
The board also determined that the Schussels were
Massachusetts residents for tax purposes during the tax years at
issue. From these findings, the board concluded that the
commissioner was justified in imposing a double tax assessment
because the facts established that the Schussels knowingly filed
false or fraudulent returns or intended to evade taxes during
the tax years at issue.
On appeal, the Schussels put forth three arguments in
support of their position that the evidence does not support the
board's finding that they knowingly filed false or fraudulent
returns or intended to evade taxes.5 They contend, therefore,
that upholding the double tax assessment was in error. We
reject each of the Schussels' arguments and conclude that the
5
We note that the Schussels' primary argument below was
that the nonresident returns filed were not false or fraudulent
because the Schussels had a good faith basis to believe that
they were domiciled in New Hampshire during the tax years at
issue. However, the Schussels have abandoned this argument on
appeal. See note 3, infra.
8
board's affirmation of the commissioner's double tax assessment
did not constitute error.
First, they argue that each of the three returns filed with
the department carried a rider, which should have precluded a
finding that they knowingly filed false or fraudulent returns.
The rider indicated that George had been federally indicted for
tax evasion, and that the proper amount, characterization, and
source of gross income were the subject of a pending appeal.6
They assert that the rider was attached to the State tax
returns for two reasons: (1) to put the commissioner on notice
of the appeal as to gross income, which the Schussels sought to
preserve, and (2) to indicate that the income reported on the
State tax returns may not be the correct amounts, due to the
disputed income figures. The Schussels argue that reporting the
lesser, disputed income and attaching the rider was the only way
to preserve their right to challenge the findings of their true
income. We disagree.
The Schussels underreported their State tax liability in
two ways; first, by using the fraudulent Federal return as a
6
The rider stated in full: "Taxpayer is currently a party
to a criminal tax case brought by the U.S. Attorney's Office for
which the details can be found at United States District Court
for the District of Massachusetts, Docket No. 04-10060. Items
of gross income determined purusant [sic] to said case are the
subject of a pending appeal regarding amount, characterization
and source. Income which is the subject of said case/appeal has
not been reported on this return due to the uncertaintities
[sic] described above."
9
basis to calculate their Massachusetts income, and second, by
erroneously filing as nonresidents, which would permit them to
pay only a fraction of their true taxable income to the
Commonwealth.
The Schussels had a duty to provide a more accurate report
of their earned income to the department, particularly after the
verdict in the Federal case had been issued. They could have
preserved their right to change the amounts entered on the State
returns. As the commissioner suggests, the Schussels should
have used amounts similar to those found in IRS form 4549-A when
filing returns with the department. If those figures were later
found to be overstated, resulting in overpayments to the
Commonwealth, the Schussels could then submit a request for
abatement and the return of their excess payment. This is
especially true where the Schussels had already neglected to pay
personal income taxes to the Commonwealth for approximately
twenty years.
Next, the Schussels argue that where a tax attorney
prepares returns on behalf of his clients, which returns he
believes to be accurate based on his full knowledge of the
relevant facts, then that, together with the explicit disclosure
prepared by the tax attorney and appended to the returns,
precludes the imposition of penalties based on a failure to
disclose. This argument is without merit and does not shield
10
them from liability. The Schussels rely solely on Scagel v.
Commissioner of Rev., 13 Mass. App. Tax Bd. Rep. 38 (1990), to
support their proposition.
In Scagel, the board found that the taxpayers specifically
disclosed all relevant facts related to their domicile to their
accountant and relied on the accountant's advice in filing a
nonresident return. Id. at 42. The board ruled that the
taxpayers had a good faith basis for filing a nonresident return
and, thus, the commissioner failed to meet his burden of proving
that they filed a false or fraudulent return. Id. at 48.
Here, the board appropriately rejected the application of
Scagel, where it explicitly found that
"the [Schussels'] failure to file returns and gross
underreporting of income earned amounted to more than a
mere act of negligence as in Scagel and instead amounted to
a reckless indifference to the obligation to file accurate
taxes which constituted intent to evade taxes as the Board
found in [Peter Ruggiero, Inc. v. Commissioner of Rev., 18
Mass. App. Tax Bd. Rep. 19 (1995)]."
We also note that the Schussels were considered Massachusetts
residents for tax purposes during the tax years at issue.
Therefore, in contrast to Scagel, the Schussels cannot contend
that they had a good faith basis for filing nonresident returns.
Moreover, their failure to file returns for a period of
approximately twenty years and their subsequent underreporting
of income cannot be rectified by their alleged reliance on tax
preparers.
11
Finally, the Schussels contend that the board's subsidiary
finding that they "grossly under-reported the true amount of
total income earned by over $5,500,000.00" was erroneous and
unsupported by the record because no taxing authority determined
with finality the true amount of income earned during the tax
years at issue. However, as we previously concluded, the
Schussels should have used figures more closely tied to those
found by the IRS in form 4549-A when determining their
Massachusetts taxable income. An analysis of the difference
between the adjusted income and the total income reported on
their returns for the tax years at issue results in the exact
amount found to be lacking by the board -- $5,558,736.7 The
board could also rely on the fact that in the Federal case, the
jury found, in accordance with the judge's instructions, that
there was "a substantial tax due in addition to what was shown
to be due on the return."8 It is important to note that the
7
Pursuant to form 4549-A, the following adjustments were
made to the Schussels' income for tax years 1993, 1994, and
1995, respectively: $1,661,709, $2,354,817, and $3,341,868.
These amounts total $7,358,394. The total income, as reported
by the Schussels on form 1-NR, Massachusetts nonresident income
tax return, for 1993, 1994, and 1995 were as follows: $358,880,
$383,417, and $1,057,361, respectively. The total income
reported equals $1,799,658. Therefore, the difference between
the adjusted income and total income reported was in fact
$5,558,736.
8
Although the term "substantial" was not defined by the
Federal judge, the board's finding that the Schussels' income
was underreported by more than $5 million was supported by the
12
board is not required to find the exact amount of underreported
income before concluding that the Schussels intended to evade
taxes by underreporting their income.
We conclude that the board's findings were supported by
substantial evidence. Furthermore, the findings provide
sufficient support for the board's conclusion that the
commissioner did not err in assessing the double tax. Thus, we
affirm the board's ruling, where the decision was not arbitrary
or capricious, or based on any other error of law, particularly
where the board's expertise on tax matters entitles its
decisions to some deference. See Koch, 416 Mass. at 555.
3. Application of the amnesty program. In accordance with
her authority under St. 2008, c. 461, the commissioner
"established a two-month amnesty program commencing on March 1,
2009, and ending on April 30, 2009," DOR Technical Information
Release (TIR) 09-3 (February 19, 2009), reprinted in 5 Official
MassTax Guide (West 2014). The purpose of the program was to
encourage the full payment of delinquent tax obligations to the
Commonwealth. The program applied to individuals with existing
tax liabilities from tax years ending on or before December 31,
2007. Under the program, the commissioner was authorized to
waive all unpaid penalties imposed on a taxpayer for failure to
record. The adjusted income and total income figures in the
record provide more than a sufficient basis for the board's
finding.
13
timely file a return, failure to file a proper return, and
failure to timely pay a tax liability, so long as the taxpayer
paid the full amount of the tax and interest identified by the
commissioner. However, "[t]he commissioner's authority to waive
penalties during the amnesty period shall not apply to any
taxpayer who, before the start date of the amnesty program
selected by the commissioner, was the subject of a tax-related
criminal investigation or prosecution." St. 2008, c. 461.
The commissioner issued a tax amnesty notice to the
Schussels on February 25, 2009, despite the fact that George was
subject to a tax-related criminal prosecution in Federal court
prior to the start of the amnesty program. The Schussels paid
the full amount of tax and interest identified in the tax
amnesty notice, which resulted in a waiver of penalties assessed
under G. L. c. 62C, § 33. The commissioner later discovered the
error, but did not seek to recoup the amount of the penalties,
saving the Schussels more than $900,000.
The Schussels also sought amnesty for the double assessment
penalties assessed by the commissioner pursuant to G. L. c. 62C,
§ 28. The commissioner denied their request. Relying on St.
2008, c. 461, and TIR 09-3, the board agreed with the
commissioner and concluded that George's Federal conviction for
tax evasion made him ineligible for the amnesty program.
The Schussels argue on appeal that the board's ruling was
14
in error because George's Federal proceedings did not constitute
"a tax-related criminal investigation or prosecution" within the
meaning of St. 2008, c. 461. Specifically, they argue that the
amnesty program only excludes taxpayers under investigation or
prosecution by the Commonwealth, not the Federal government.
Chapter 461 of St. 2008 and TIR 09-3 do not provide a
definition of "tax-related." "Our duty is to give these
somewhat ambiguous words . . . a reasonable construction which
will carry out what we perceive to be the legislative intention.
Although we recognize the principle that ambiguities in taxing
statutes are to be resolved in favor of the taxpayer, we do not
regard that principle as controlling in this case." Ogden
Suffolk Downs, Inc. v. Boston, 18 Mass. App. Ct. 101, 104 (1984)
(citations omitted).
The Schussels suggest that "tax-related" refers only to
Massachusetts taxes because the main purpose of the exception to
the program was to prevent the commissioner's waiver of
penalties from compromising any pending or subsequent criminal
investigation or prosecution by the Commonwealth. They argue
that the exception was put in place to prevent, for example, a
situation in which the commissioner waives the penalties
assessed against a taxpayer that also happens to be the subject
of a State criminal investigation or prosecution because the
waiver might adversely affect the Commonwealth's investigation.
15
The Schussels argue further that the Legislature's use of the
word "tax" throughout the tax statutes refers only to
Massachusetts taxes, and that there is no good reason to apply
the term more broadly in this context.
The commissioner asserts that "tax-related," as it applies
to the amnesty program, was meant to include those
investigations and prosecutions at both the State and Federal
levels. The board implicitly upheld the commissioner's
interpretation by concluding that the Schussels did not qualify
for amnesty under this exception.
"Tax," as defined by G. L. c. 62C, § 1, inserted by St.
1976, c. 415, § 22, means "any tax, excise, interest, penalty,
or addition to tax imposed by this chapter or the statutes
referred to in section two." General Laws c. 62C, § 2, inserted
by St. 1976, c. 415, § 22, states that "[t]he provisions of this
chapter shall . . . apply to the taxes imposed by chapter sixty
A; by chapters sixty-two through sixty-five C, inclusive; by
section ten of chapter one hundred and twenty-one A; by section
twenty-one of chapter one hundred and thirty-eight; and by any
act in addition thereto or amendment thereof."
The literal interpretation of the term supports the
position of the commissioner and the board; "tax-related"
literally means of or relating to tax, which is quite broad.
Moreover, the commissioner is vested with the sole discretion to
16
determine the scope of the amnesty program.9 The board's
conclusion that the commissioner's interpretation was consistent
with St. 2008, c. 461, and TIR 09-3 was not error. See Koch,
416 Mass. at 555, quoting from McCarthy v. Commissioner of Rev.,
391 Mass. at 632 (board entitled to "some deference"). See also
Xtra, Inc. v. Commissioner of Rev., 380 Mass. 277, 281 (1980)
(no reversible error where board construes legislative purpose
broadly).
We adopt the commissioner's definition of "tax-related."
This construction of the amnesty exception serves a dual
purpose. First, it prevents the commissioner from compromising
pending or subsequent criminal investigations or prosecutions by
the Commonwealth, as the Schussels suggest. Second, it
precludes those taxpayers who are under Federal investigation or
prosecution from potentially defrauding the Commonwealth in a
derivative manner, described below.
Massachusetts taxpayers use the gross income reported on
their Federal tax returns as a basis to determine and report
their Massachusetts taxable income. See G. L. c. 62, §§ 2, 6F.
As such, if a taxpayer files a false or fraudulent Federal
return, or underreports earned income, the error or fraud may
9
"Chapter 461 of the Acts of 2008 provides that the
Commissioner of Revenue shall establish a two-month amnesty
program during the fiscal year ending June 30, 2009 (the
'Amnesty Program') and determine the scope thereof." TIR 09-3.
17
pass through to the corresponding State return. The end result
would be that the Commonwealth would collect less taxes than
were actually owed. We cannot conclude that the Legislature or
the department desired to leave open the possibility that
amnesty would be given to a taxpayer subject to a tax-related
Federal investigation or prosecution where those proceedings may
also reveal a false or fraudulent State tax return. To the
contrary, we have no doubt that the Legislature and department
would seek to preclude such a result by also prohibiting the
commissioner from waiving penalties against taxpayers that are
the subject of a Federal tax investigation or prosecution.
Furthermore, this construction of the disputed language is
more consistent with the purposes of the tax statutes and the
department's policies -- that amnesty should not be available to
those taxpayers that defraud the Commonwealth and that it is to
be given only in exchange for payment of all outstanding taxes
and interest owed to the Commonwealth. Were we to adopt the
Schussels' position, amnesty might be given in exchange for
less, where the taxpayer's Massachusetts tax liability may have
been underreported. See Bolster v. Commissioner of Taxn., 319
Mass. 81, 84-85 (1946) ("None of the words of a statute is to be
regarded as superfluous, but each is to be given its ordinary
meaning without overemphasizing its effect upon the other terms
appearing in the statute, so that the enactment considered as a
18
whole shall constitute a consistent and harmonious statutory
provision capable of effectuating the presumed intention of the
Legislature").
4. Seven-year look-back period. By statute, the
limitations period on the assessment of taxes, interest, and
penalties does not begin to run unless the taxpayer files a
return. General Laws c. 62C, § 26(d), inserted by St. 1976,
c. 415, § 22, provides,
"In the case of a false or fraudulent return filed with
intent to evade a tax or of a failure to file a return, the
commissioner may make an assessment at any time, without
giving notice of his intention to assess, determining the
tax due according to his best information and belief."
However, the commissioner has established a policy of limiting
the time after which a nonfiling taxpayer will be assessed to
seven years following the failure to file. See TIR 01-8 (June
15, 2001), reprinted in 5 Official MassTax Guide (West 2014).
Here, the most recent tax year at issue, 1995, was more
than seven years removed from the date of assessment, but the
commissioner declined to apply the seven-year look-back period,
which the Schussels claim was error. The board concluded that
the commissioner did not err because although more than seven
years had passed, the commissioner is authorized to disregard
the look-back period under circumstances described in part VI of
TIR 01-8. The Schussels argue that the board's ruling was error
because "the meager factual basis underpinning the Board's
19
determination is insufficient to invoke the exceptions" provided
in part VI.
Part VI provides, in relevant part,
"In certain instances described below, when a taxpayer has
not filed tax returns, and the Commissioner believes that
the taxpayer's circumstances do not merit the application
of a look-back period of seven years or less, the
Commissioner will assess such taxpayer for all taxable
periods for which a return is due. In general, a taxpayer
will be assessed for all taxable periods for which a return
is due in each of the following instances, or in instances
involving similarly egregious circumstances:
". . .
"3. a knowing or willful failure to file returns with the
intent to avoid the payment of tax;
"4. a willful neglect to file returns despite reasonable
cause to know of a filing responsibility."
The board found that the commissioner's records, which are
not disputed by the Schussels, indicate that the Schussels "did
not file any personal income tax returns with Massachusetts from
calendar year 1989 forward, until the Commissioner issued the
Notice of Failure to File on May 15, 2007." Furthermore, the
Schussels filed tax returns only after George was convicted of
Federal tax evasion, and when those returns were filed, the
Schussels' income was grossly underreported. The board's
findings were supported by ample evidence and, thus, cannot be
described as "meager." See General Mills, Inc. v. Commissioner
of Rev., 440 Mass. at 161.
The board's decision was not arbitrary or capricious, nor
20
does it give rise to any other error of law. Therefore, we
uphold the board's ruling that
"the fact that the [Schussels] owned and were employed by a
Massachusetts company gave the [Schussels] 'a reasonable
cause to know of a filing responsibility' with respect to,
at least, nonresident tax returns. By failing to file
those income tax returns, the [Schussels] displayed at
least 'a willful neglect to file returns,' if not 'a
knowing or willful failure to file returns with the intent
to avoid the payment of tax."
Thus, in accord with TIR 01-8, part VI, the commissioner
did not err in disregarding the look-back period and assessing
the Schussels accordingly.
Conclusion. The board's decision, upholding the
commissioner's double tax assessment and denial of amnesty for
the penalties assessed under G. L. c. 62C, § 28, was supported
by the evidence and was not otherwise arbitrary or capricious.
Furthermore, the Schussels cannot escape liability on the ground
that the seven-year look-back period precluded the commissioner
from issuing assessments. The Schussels' fraud brought them
within an exception to the limitation period, allowing the
commissioner to disregard the look-back policy. Thus, we affirm
the decision of the Appellate Tax Board.
So ordered.