38 Mass. App. Ct. 360 | Mass. App. Ct. | 1995
In its fiscal 1984 and 1985 corporate excise tax returns,
As to Ainslie’s 1985 return, the commissioner assessed interest and penalties adding up to $13,990.
1. Consequence of failure of taxpayer to ask for findings. When deciding cases, the Appellate Tax Board, under the governing statute, makes findings at its option. General Laws c. 58A, § 13, as amended through St. 1985, c. 314, § 1, provides that the board “may make findings of fact and report thereon in writing.” A party may, however, request the board
The board rendered its decision on January 14, 1994, without findings, announcing simply that, “The decision is for the [a]ppellee.” The taxpayer did request findings of fact but not until February 1, 1994, eight days after the time for doing so had run out. The board notified the taxpayer that the request for findings of fact and report was untimely and solicitously reminded the taxpayer that it had until February 14, 1994, to claim an appeal to this court. On that day Ainslee did, indeed, file its notice of appeal. That appeal, however, cannot debate the question whether the evidence admits of a finding implicit in the board’s decision,
Ainslie’s returns were prepared by a tax preparer, its accountant. The 1984 return (on Form 355A) showed computation of a tax of $3,226
As matters developed, the tax payable on the 1985 return was a great deal more, namely, $88,902. The far higher amount was the consequence of a sale of real estate by Ainslie which was concluded on June 27, 1986, thirty-four days before the end of the fiscal year for which Ainslie later filed its 1985 return. Ainslie’s position on appeal before us seems to be that, given the advice of its tax preparer on the 1984 return and the lateness in the fiscal year of the income pro
There are two flaws in that position. The first is that it presupposes the board should not impute to Ainslie the basic error of its tax preparer in connection with the 1984 return, causing the tax payable with that return to be understated. To the contrary, on standard agency principles, the taxpayer is chargeable with errors — and the consequences of those errors — of the preparer who made out the return on its behalf. Restatement (Second) of Agency § 144 (1958). Cf. Curran v. Commissioner of Rev., 23 Mass. App. Ct. 965 (1987). Were it otherwise, one might easily imagine that the errors of tax preparers would be enthusiastically encouraged by their tax-paying clients. The second flaw is that Ainslie, after it knew it would have a substantial tax for the 1985-1986 year, even though that year was just about closed out, could have filed a late declaration of estimated tax but did not. There is nothing about the undisputed facts, therefore, that required the board to relieve Ainslie of its interest and penalties for failure to file the requisite declarations and to pay the installments of tax in accordance with those declarations.
3. Computation of the interest. In a reply brief to the Commonwealth’s brief as appellee, the taxpayer argues that, in any event, it should not be chargeable with interest under G. L. c. 63B, § 6, as if the tax liability of $88,902 had been known from the beginning of the 1985-1986 year. Neither in the pleadings nor in argument was that point raised in the proceedings before the board. The point, therefore, is lost on appeal. Towle v. Commissioner of Rev., 397 Mass. 599, 602-603 (1986), & cases cited. See New Boston Garden Corp. v. Assessors of Boston, 24 Mass. App. Ct. 122, 127 n.3 (1987); Chirillo v. Commissioner of Rev., 25 Mass. App. Ct. at 100-101, & cases cited. Nor do we consider any issue raised for the first time in an appellant’s reply brief. Assessors of
Decision of the Appellate Tax
Board affirmed.
Ainslie Corporation filed its corporate excise tax returns on the basis of a fiscal year ending July 31. What the parties and we refer to as the 1984 return covered the period August 1, 1984, through July 31, 1985, and the 1985 return covered the period August 1, 1985, through July 31, 1986.
The full text of G. L. c. 63B, § 2, as amended through St. 1978, c. 514, § 150, is as follows: “Every corporation shall file a declaration of its estimated tax for the taxable year if its estimated tax for such taxable year can reasonably be expected to exceed one thousand dollars. The declaration, sworn to by such officer of the corporation who is required to sign its return under section eleven or twelve of chapter sixty-two C, shall contain such pertinent information and be in such form as the commissioner may prescribe.”
General Laws c. 63B, §§ 6 & 8, have since been repealed by St. 1990, c. 121, §§ 33 and 34, respectively, and, by St. 1990, c. 150, § 369 (which amended St. 1990, c. 121, § 102), the repeal was made applicable to taxable years commencing on or after January 1, 1990.
Interest in the amount of $9,545 under G. L. c. 63B, § 6, and $4,445 on account of the penalty under G. L. c. 63B, § 8, for nonfiling.
“The board’s decision imports a finding of all subsidiary facts necessary to support it.” Roda Realty Trust v. Assessors of Belmont, 385 Mass. 493, 495 (1982). See also Assessors of Kingston v. Sgarzi, 367 Mass. 840, 843-844 (1975). We recognize that the Sgarzi and Roda Realty Trust opinions were decided under the informal procedure authorized under G. L. c. 58A, § 7A, in connection with real estate tax evaluation cases before the Appellate Tax Board, but the principle is equally applicable to the standard formal procedure before the board in cases where the board makes no subsidiary findings.
Based not on income, but based on a multiple — $2.60 per $1,000 — of the taxpayer’s tangible property, which was stated at $1,240,736.
By St. 1988, c. 202, §§ 14 & 34, the minimum excise was increased to $400 for tax years beginning January 1, 1989.