Schussel, et al. v. Commissioner of Revenue (Lawyers Weekly No. 10-107-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11807 GEORGE SCHUSSEL & another[1] vs. COMMISSIONER OF REVENUE. Suffolk. March 3, 2015. – July 1, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Taxation, Appellate Tax Board: findings, Income tax, Gross income, Income tax returns. Words, “Tax-related.” Appeal from a decision of the Appellate Tax Board. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Francis J. DiMento for the taxpayers. John M. Stephan, Assistant Attorney General, for Commissioner of Revenue. LENK, J. Since the 1970s, George and Sandra Schussel[2] have owned property and business interests in Massachusetts, and have had other close ties to the Commonwealth. The Schussels, who are married, filed no Massachusetts tax returns between 1989 and 2007. In 2007, George was convicted of Federal conspiracy and tax evasion charges in the United States District Court for the District of Massachusetts. The Commissioner of Revenue (commissioner) then issued the Schussels a notice of failure to file Massachusetts income tax returns for the years 1993, 1994, and 1995. When the Schussels subsequently filed tax returns for those years, the returns were determined by the commissioner to be “false or fraudulent,” or to have been filed “with a willful attempt . . . to defeat or evade the tax.” See G. L. c. 62C, § 28. Accordingly, the commissioner imposed a “double assessment” against the Schussels. The Schussels submitted a request for abatement of the double assessment, which the commissioner denied. The commissioner’s decisions were upheld by the Appellate Tax Board (board), and the Appeals Court affirmed. See Schussel v. Commissioner of Revenue, 86 Mass. App. Ct. 419, 431 (2014). We allowed the Schussels’ petition for further appellate review. Before us, the Schussels claim two errors. First, they contend that they were not properly subject to a double assessment. They note, in this context, that their tax returns were prepared for them by an attorney, and that they attached a “rider” to those returns, stating that the sums reported were the subject of Federal criminal proceedings against George. The Schussels’ second claim is that they were entitled to relief from the double assessment under an amnesty program established by the commissioner in 2009, pursuant to St. 2008, c. 461 (2009 amnesty program). Although the 2009 amnesty program does not apply to “any taxpayer who . . . […]