EDWARD FREDKIN & another vs. STATE TAX COMMISSION.

The taxpayers filed a timely joint individual income tax return for the calendar year 1971, and the Commissioner of Corporations and Taxation gave notice of intention to assess and additional tax. On November 16, 1972, the taxpayers filed a timely application for abatement of the additional tax, and on November 17, 1972, the State Tax Commission sent them by certified mail a decision denying the application. On January 8, 1973, the Commission denied a second application filed on January 4, and on January 19, 1973, it denied a hearing on a motion to reconsider dated January 9. On February 2, 1973, the taxpayers appealed to the Appellate Tax Board. The board first denied the Commission's plea in bar setting forth the foregoing facts, but at the later hearing on the merits reconsidered

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and allowed the plea in bar. 1. Under its Rule 37, the board was authorized to reconsider its first ruling on the plea in bar, particularly since the plea went to the jurisdiction of the board. See Fall River v. State Tax Comm'n, 367 Mass. 681, 683 (1975); Peterson v. Hopson, 306 Mass. 597, 601-602 (1940). 2. The taxpayers had thirty days to appeal from the Commission's decision of November 17, 1972. G. L. c. 62, Section 45. Further applications after the time had run did not avoid the time limit. Boston Five Cents Sav. Bank v. Assessors of Boston, 313 Mass. 762, 764-766 (1943). Under G. L. c. 62, Sections 37, 43, no "hearing" before the Commission was "required" within the meaning of the definition of an "adjudicatory proceeding" in G. L. c. 30A, Section 1 (1), and even if a hearing were required, the case is not one where the Commission "fails to act" within the meaning of G. L. c. 58A, Section 6. The taxpayers' contention that under G. L. c. 62, Section 43, the return itself was an application for abatement of the additional tax, on which the Commission failed to act within six months, is an afterthought lacking in merit.

Decision affirmed.