Summary
In Vespa v. State Tax Comm'n, 373 Mass. 857 (1977), a failure to request findings and report constituted a waiver of the right to appeal where the issue was the taxpayer's domicil.
Summary of this case from Supermarkets General Corp. v. Commissioner of RevenueOpinion
November 4, 1977.
Fred M. Dellorfano, Jr., for the taxpayer.
Mitchell J. Sikora, Jr., Assistant Attorney General, for the State Tax Commission.
This is an appeal by the taxpayer from a decision of the Appellate Tax Board refusing abatements of two assessments of additional tax made by the Commissioner of Corporations and Taxation in respect to the taxpayer's resident individual income tax return for the year 1970. The error claimed is that there is inadequate support for the Board's finding that the taxpayer was an "inhabitant of this commonwealth" during the taxable year, which rendered him amenable under G.L.c. 62, § 5 ( b) and ( c) (as in effect for 1970), to tax on business income resulting from the sale of real estate and on net capital gain arising from a corporate dissolution. We said in Beardsley v. Assessors of Foxborough, 369 Mass. 855, 856 n. 3 (1976), interpreting G.L.c. 58A, § 13 (describing the formal procedure): "The question whether the evidence warrants a finding made by the board is a question of law which may be considered by us only where (a) the issue has been raised before the board, (b) a party has requested `findings and report thereon' from the board, and (c) the record contains all the evidence which is necessary for our consideration of the question." See also New Bedford Gas Elec. Light Co. v. Assessors of Dartmouth, 368 Mass. 745, 748-751 (1975); Coomey v. Assessors of Sandwich, 367 Mass. 836, 839 (1975). In the present case we can discern from the record on appeal that the issue of the taxpayer's domicil was before the Board, but the record has been left fatally deficient in the other two respects. Accordingly, we may not disturb the Board's finding.
Decision of the Appellate Tax Board affirmed.