Raytheon Co. v. Commissioner of Revenue

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18-P-790 Appeals Court
18-P-1468

RAYTHEON COMPANY vs. COMMISSIONER OF REVENUE.

Nos. 18-P-790 & 18-P-1468.

Suffolk. June 3, 2019. - September 12, 2019.

Present: Green, C.J., Vuono, & Lemire, JJ.

Taxation, Abatement, Corporate excise, Commissioner of Revenue,
Appellate Tax Board: jurisdiction. Administrative Law,
Agency's interpretation of statute, Judicial review.
Statute, Construction. Notice, Timeliness.

Appeals from decisions of the Appellate Tax Board.

Donald-Bruce Abrams (John S. Brown also present) for the
taxpayer.
Kirk G. Hanson, Assistant Attorney General, & Pierce O.
Cray, Assistant Attorney General, for Commissioner of Revenue.

GREEN, C.J. These two related appeals raise questions

concerning the timeliness and scope of applications for

abatement of excise taxes filed by the Raytheon Company for the

years 2007 and 2012, respectively. In both cases, Raytheon

timely filed its return, but thereafter received notice of a
 2

deficiency assessment from the Commissioner of Revenue

(commissioner), and filed an application for abatement

challenging the deficiency assessment. Raytheon timely appealed

the commissioner's denials of the abatement applications, and,

while the appeals were pending before the Appellate Tax Board

(board), subsequent events revealed in each instance that

Raytheon had in fact overpaid the taxes owed when it filed its

original returns. Although the commissioner abated the

deficiency assessments in full while the appeals to the board

were still pending, Raytheon argued that it was due further

abatements on the theories that (a) it had overstated its income

for 2007, and (b) it was entitled to recoup at once (in the form

of a tax refund) certain investment tax credits, rather than

carrying forward any credits remaining after the full abatement

of the 2012 deficiency assessment. After abating the deficiency

assessments, the commissioner moved to dismiss Raytheon's

appeals to the board, arguing that the appeals were untimely as

to any matter other than the deficiency assessments. The board

agreed and dismissed Raytheon's appeals for want of jurisdiction

over any amounts other than the deficiency assessments. On

appeal to this court, Raytheon contends that the board's

dismissal was incorrect because the deficiency assessments

necessarily encompassed not only the amounts stated in the

notices of deficiency assessment but also the amounts by which
 3

Raytheon had overpaid its taxes in its original returns. In its

appeal concerning its 2012 return, Raytheon makes an additional

argument: that its application for abatement, which referenced

only the deficiency assessment for that return, was sufficient

to preserve its rights to claim an abatement of taxes reported

in its filed return because the application for abatement was

filed within three years after Raytheon had filed its return.1

See G. L. c. 62C, § 37. We affirm the decisions of the board in

both cases.

1. Factual Background. a. 2007 return. Raytheon filed a

corporate excise tax return for the 2007 tax year, reporting an

excise tax liability of $7,333,762.2 On November 15, 2011,

following an audit, the commissioner issued a notice of

assessment, notifying Raytheon that he had assessed it an

1 Raytheon's application for abatement concerning its 2007
return was filed more than three years after it had filed its
return, but less than two years after the deficiency assessment.
Accordingly, Raytheon presses no claim that it filed a timely
application for abatement of the tax reported in its 2007
return.

2 The record does not reflect the date on which Raytheon
filed its return. However, Raytheon has not argued that its
2012 abatement application was timely as to its original 2007
tax return under any of the time limits in G. L. c. 62C, § 37.
Nor did it argue (either to the commissioner, the board, or on
appeal to this court) that the commissioner's November 2011
notice of assessment was untimely as to Raytheon's filing of its
original 2007 tax return.
 4

additional $650,752 of corporate excise tax, plus interest and

penalties, for the 2007 tax year.3

On January 12, 2012, Raytheon filed an application for

abatement of the deficiency assessment. Raytheon did not,

however, file any application for abatement directed to its

original 2007 tax return. The commissioner denied Raytheon's

abatement application in full on July 31, 2013. On September

20, 2013, Raytheon filed with the board a timely appeal from the

commissioner's denial.

In addition to challenging the nonincome measure of the

excise upon which the $650,752 deficiency assessment for the

2007 tax year was based, Raytheon also raised for the first time

in its appeal to the board a claim that it had overstated its

sales factor in its original 2007 return, resulting in an

overstatement of the income component of its corporate excise

for that tax year on that return. As a result of the alleged

sales factor overstatement in its 2007 tax return, Raytheon

claimed it was entitled to an additional abatement of $5,746,575

for the 2007 tax year, to be refunded from the taxes paid when

it originally filed its return.

3 The deficiency assessment was attributable to the
commissioner's inclusion, after audit, of certain property in
Raytheon's tangible personal property base, resulting in an
increase in the nonincome component of Raytheon's corporate
excise.
 5

On December 14, 2015, the commissioner filed a partial

motion to dismiss, moving to dismiss so much of Raytheon's

appeal to the board as sought an abatement of portions of the

tax paid when it filed its 2007 return. The commissioner agreed

that Raytheon could use the sales factor adjustment argument as

a new legal theory to dispute the commissioner's tangible

property deficiency assessment of $650,752 for the 2007 tax

year. However, he argued that, because Raytheon had never

applied for an abatement of the tax originally reported on the

2007 return, any challenge to the original self-assessment for

2007 was time barred. After the board denied the commissioner's

motion, the commissioner abated the deficiency assessment in

full, and filed a second motion to dismiss what remained of

Raytheon's appeal -- in other words, its request for abatement

of portions of the tax it originally reported on, and paid with,

its 2007 return. On February 2, 2018, the board allowed the

commissioner's motion to dismiss, and Raytheon appealed.

b. 2012 return. Raytheon filed its 2012 corporate excise

return on August 29, 2013, reporting a tax due of $8,574,471.

On July 25, 2016, the commissioner sent to Raytheon a notice of

assessment for 2012 in the amount of $2,885,572, plus interest

and penalties, based on the commissioner's denial of a research

and development credit that Raytheon had claimed. Raytheon

applied for an abatement of the deficiency assessment on August
 6

24, 2016. At thirty days after the deficiency assessment,

Raytheon's abatement application was filed well within the two-

year limit established by G. L. c. 62C, § 37, and also fell (by

five days) within three years after the date it had filed the

return.

The commissioner denied Raytheon's abatement application on

February 24, 2017. Raytheon then timely appealed to the board

from the commissioner's denial on March 24, 2017. On November

15, 2017, before any board action on Raytheon's abatement

application, Raytheon and the commissioner reached a settlement

regarding Raytheon's corporate excise liability for two previous

years: 2008 and 2009. Two aspects of that settlement had a

significant collateral effect on Raytheon's 2012 excise. First,

the settlement altered the calculation of the 2012 research and

development credit at issue in the commissioner's deficiency

assessment, leading him to reduce that assessment from

$2,885,572 to $119,929. Second, the settlement also resulted in

$2,737,091 worth of investment tax credit (ITC) "carryforwards"

from 2008 and 2009 available for certain uses in later tax

years, including 2012. The commissioner applied $119,929 of

those carryforwards to 2012 as a credit against the remaining

balance of the deficiency assessment, thereby reducing that

balance to zero. As a result, the commissioner abated the

deficiency assessment in full on April 12, 2018. The next day,
 7

he moved to dismiss for lack of jurisdiction Raytheon's appeal

to the board from his earlier denial of the company's

application to abate the deficiency assessment.

In response, Raytheon asserted that it should be allowed to

apply the remaining $2,617,162 in unused ITC carryforwards to

the tax it had paid with its 2012 return, and receive a refund

in that amount. In furtherance of that claim, Raytheon filed an

amended and restated petition in which it sought "to amend and

restate in its entirety the petition that Raytheon previously

filed . . . and to assert Raytheon's entitlement to an

additional abatement and refund." After hearing, the board

issued a decision with findings, dismissing Raytheon's appeal

for lack of jurisdiction, based on the fact that the

commissioner had abated in full the deficiency assessment that

was the subject of Raytheon's abatement application, and the

time for filing a new abatement application with the

commissioner had long since passed. This appeal followed, and

was paired for hearing with Raytheon's appeal from the board's

decision concerning the 2007 return.

2. Statutory and regulatory background. Assessment of

taxes is governed by G. L. c. 62C, § 26. Subparagraph (a) of

that section reads as follows:

"Taxes shall be deemed to be assessed at the amount shown
as the tax due upon any return filed under the provisions
of this chapter and on any amendment, correction or
 8

supplement thereof, or at the amount properly due,
whichever is less, and at the time when the return is filed
or required to be filed, whichever occurs later."

Pursuant to Department of Revenue regulations, "The tax

declared on the return filed by the taxpayer is a self-

assessment of tax by the taxpayer." 830 Code Mass. Regs.

§ 62C.26.2(1)(a) (2017, eff. December 5, 2016).4 Once a self-

assessment occurs, the amount of tax declared on a tax return

generally "is accepted as the tax due from the taxpayer for the

tax period indicated on the return unless the self-assessed

amount is later adjusted, either by the Commissioner or by the

taxpayer." 830 Code Mass. Regs. § 62C.26.2(1)(a).5 Except for

adjustments to correct mathematical errors apparent on the face

of the return, most adjustments the commissioner makes are

"deficiency assessments" pursuant to G. L. c. 62C, § 26 (b) (1).6

4 Although § 62C.26.2 was not in effect when Raytheon filed
the tax returns now at issue, the statement is a general
description of the commissioner's views.

5 See note 4, supra.

6 In pertinent part, G. L. c. 62C, § 26 (b) (1), as
appearing in St. 2014, c. 165, § 100, provides:

"If the commissioner determines . . . that the full amount
of any tax has not been assessed or is not considered to be
assessed, the commissioner may, at any time within 3 years
after the date the return was filed or the date it was
required to be filed, whichever occurs later, assess the
same with interest as provided in [G. L. c. 62C, § 32]
. . . ."
 9

Before making a deficiency assessment, the commissioner first

must give the taxpayer notice of his intent to assess, unless a

specific exception applies. After receiving notice of the

intent to assess, the taxpayer has thirty days to confer with

the commissioner regarding the intended assessment. See G. L.

c. 62C, § 26 (b) (1); 830 Code Mass. Regs. § 62C.26.1(6)(a)

(2004). After that thirty-day period, "the commissioner shall

assess the amount of tax remaining due to the commonwealth, or

any portion thereof, which the commissioner believes has not

been assessed." G. L. c. 62C, § 26 (b) (1), as appearing in St.

2014, c. 165, § 100.7

If a taxpayer believes the commissioner erred in making a

deficiency assessment or otherwise is aggrieved by the

assessment of a tax, the taxpayer may seek review pursuant to

G. L. c. 62C, § 37, which provides that "[a]ny person aggrieved

by the assessment of a tax, other than a tax assessed under

chapter 65 or 65A, may apply in writing to the commissioner" for

an abatement of that tax.

We note that in 2014 (after the commissioner's 2011
deficiency assessment and before the 2016 deficiency
assessment), § 26 was amended, substituting the word
"considered" for the word "deemed." The alteration does not
change our analysis.

7 Section 26 (b) was amended after the commissioner's first
deficiency assessment. See note 6, supra. The amendments to
the portion of par. (b) quoted above were not substantive.
 10

Strict time limits govern when a taxpayer may apply for an

abatement. Specifically, unless the commissioner and taxpayer

agree to extend the period for assessment pursuant to G. L.

c. 62C, § 27, the taxpayer must apply for the tax abatement "(1)

within 3 years from the date of filing of the return, taking

into account [G. L. c. 62C, § 79 (a)]; (2) within 2 years from

the date the tax was assessed or deemed to be assessed; or (3)

within 1 year from the date that the tax was paid, whichever is

later." G. L. c. 62C, § 37.8 Furthermore, the commissioner's

regulations provide that "[i]f more than three years have

expired from the date of filing of the original return, taking

into account . . . G. L. c. 62C, § 79 . . . (a), and an

application for abatement is filed within two years of an

assessment the Commissioner will grant an abatement up to the

amount of that assessment." 830 Code Mass. Regs. § 62C.37.1(4)

(2016, eff. November 30, 2015).9 Additionally, if a taxpayer

8 General Laws c. 62C, § 79 (a), provides that "[a]ny return
filed before the last day prescribed for the filing thereof
shall be considered as filed on such last day."

9 At the time Raytheon submitted its application for an
abatement of its 2007 deficiency assessment, the first phrase in
the commissioner's regulations just quoted read as follows:

"If more than three years have expired from the due date of
the return, determined without regard to any extension of
time, and an application for abatement is filed within two
years of an assessment the Commissioner will grant an
abatement up to the amount of that assessment."
 11

believes it has overreported the amount of tax due on its tax

return, it may seek a refund of that overpayment either by

filing an application for abatement of the overpayment, pursuant

to G. L. c. 62C, § 36, or by filing an amended tax return that

reduces the tax reported as due. See 830 Code Mass. Regs.

§ 62C.26.2(1)(a).10 However, an amended return that reduces the

tax reported as due still must be filed within the statute of

limitations applicable to an abatement application under G. L.

c. 62C, § 37. See 830 Code Mass. Regs. § 62C.26.2(3)(a) (2017,

eff. December 5, 2016).11 Where necessary to protect the

830 Code Mass. Regs. § 62C.37.1(4) (2006). In the circumstances
of this case, the 2016 amendment to the regulation, substituting
the phrase "date of filing" for the phrase "due date," does not
bear on the timeliness of Raytheon's abatement applications.

10Section 62C.26.2, titled "Amended Returns," was added to
830 Code Mass. Regs. effective December 5, 2016, after Raytheon
had filed its August 2016 abatement application. As to the
regulations governing amended returns in effect when Raytheon
filed its abatement applications, see 830 Code Mass. Regs.
§ 62C.37.1(5)(b) (2008, eff. Nov. 3, 2006) (taxpayer may file
amended return or write letter to Department of Revenue calling
to commissioner's attention the overpayment); 830 Code Mass.
Regs. § 62C.37.1(1)(a) (2016, eff. Nov. 30, 2015) (as to
business tax filers, amended return may not serve as vehicle for
seeking abatement, except as specified by commissioner).

11Title 830 Code Mass. Regs. § 62C.26.2(3)(a) also provides
that "an amended return that reduces the tax reported to be due
is also subject to the statute of limitations under M.G.L. c.
62C, § 36," which provides various statutes of limitation
applicable to applications for an abatement or refund of an
overpayment of tax, depending on whether a return has or has not
been timely filed. Under § 36, when the return has been timely
filed (as was the case here with Raytheon's 2007 tax return),
the statute of limitations within which the taxpayer must seek a
 12

taxpayer's statutory rights of appeal, the commissioner will

deem an amended return that reduces a self-assessment to be an

abatement application. 830 Code Mass. Regs. § 62C.26.2(5)

(2017, eff. December 5, 2016).

3. Discussion. a. Deficiency assessment. Common to

Raytheon's claims in both appeals is its contention that the

respective deficiency assessments necessarily encompassed not

only the amounts stated in the notices of deficiency assessment,

but also the difference between the amount Raytheon self-

reported on its return when originally filed and the amount

"properly due," after taking into account all adjustments or

credits that were or could have been applied -- and particularly

including even those that did not become known until after the

date on which Raytheon could have filed an application for

abatement of the taxes due on that return. Raytheon

acknowledges that we considered and rejected a similar claim in

RHI Holdings, Inc. v. Commissioner of Revenue, 51 Mass. App. Ct.

681, 686-687 (2001), but observes that the specific argument it

now advances was not pressed by the taxpayer or addressed by

refund of an overpayment is the same as for abatements under
§ 37. See G. L. c. 62C, § 36 ("A request for a refund or credit
of an overpayment of tax where the required return was timely
filed shall be made within the period permitted for abatement
for that return under section 37").
 13

this court in that opinion. We nonetheless are unpersuaded by

Raytheon's argument.

We first review, in summary, the circumstances and analysis

in the RHI Holdings case, as background for the present appeals.

In RHI Holdings, the taxpayer filed an abatement application in

1988, within two years after the date of a 1986 deficiency

assessment, but more than three years after filing its original

tax returns in 1982 and 1984. RHI Holdings, 51 Mass. App. Ct.

at 682-683. RHI sought to amend its abatement application so as

to recompute the combined net income it had reported in its

original tax returns, in the wake of an intervening decision of

the Supreme Judicial Court in a different matter that rejected

the commissioner's previously prescribed method for apportioning

combined net income of multistate entities. Id. at 683. The

commissioner allowed the recalculation but only up to the amount

of the deficiency assessment because RHI's abatement application

was untimely as to the self-assessments that occurred when the

original returns were filed. Id. The board upheld the

commissioner's decision, and this court affirmed, holding that

because the abatement application was filed nearly four years

after the "deemed assessment" that occurred when the tax return

was filed in 1984, RHI's abatement application was untimely as

to both the 1982 and 1984 "deemed assessments" and timely only

as to the subsequent deficiency assessment. Id. at 686. We
 14

rejected the taxpayer's assertion that the term "assessment," as

used in G. L. c. 62C, § 37, "necessarily means 'the full amount

of any tax due, including any tax deemed to be assessed on the

return plus any subsequent additional tax due on audit,'"

concluding that such a construction "would render much of the

language of § 37 meaningless or surplusage." Id. at 686-687,

689. Instead, in order to challenge the assessment of any

particular tax, the taxpayer must file a timely abatement

application as to each unique act of assessment. Id. at 689.

Much of the analysis in RHI Holdings applies with equal

force to the present case. However, Raytheon now contends that

the discussion in RHI Holdings overlooked a critical element, by

treating the "deemed assessment" in the originally-filed tax

return as equal to the amount self-reported on the return

originally filed by the taxpayer. Instead, Raytheon asserts,

G. L. c. 62C, § 26 (a), directs that the "deemed assessment" is

"the amount shown as the tax due upon any return filed . . . or

. . . the amount properly due, whichever is less" (emphasis

added). Accordingly, Raytheon insists, the amount self-reported

with the return is the "deemed assessment" only if it is the

amount "properly due," and in circumstances (such as those in

the present case) where the self-reported amount reflects an

overpayment (albeit unknown as such until long after the return

was filed), the "deemed assessment" is the lower amount
 15

"properly due," after exclusion of the overpayment. Since the

only taxes ever assessed before the notice of deficiency

assessment were those deemed assessed at the lower amount, the

argument continues, any subsequent deficiency assessment must be

for the difference between the amount "deemed assessed" (and

"properly due") with the original return and the total amount

shown as unpaid in the notice of deficiency assessment,

regardless of the amount of the deficiency described in the

notice of assessment itself. From that premise, Raytheon

concludes that its application for abatement, directed to the

deficiency assessment, encompassed both the amount stated in the

notice of assessment and the amount it overpaid with its

originally filed return.

We reject the foundational suggestion in Raytheon's

argument that the amount of the "deemed assessment" when a

taxpayer files a return with self-reported income is open to

redetermination after the statutorily prescribed time limit for

the taxpayer to seek an adjustment of its tax liability, and

that the amount of the assessment imposed by a notice of

deficiency assessment is other than the amount set forth in the

notice. To be sure, a taxpayer may seek abatement of taxes

assessed and paid with its initial return, including the amount

of any overpayment, or may seek to amend its return, and, if

allowed, any such abatement or amendment will redetermine the
 16

amount of the deemed assessment established by the filed return.

But the time for such a request or amendment is strictly limited

in time by G. L. c. 62C, § 37, to three years after the date on

which the return is filed. Unless and until such an abatement

is made, the taxes deemed assessed by the filing of the return

are simply those reported on, and paid with, the return. And

once the time for seeking an abatement of those self-reported

taxes has passed, the reported amount may not thereafter be

adjusted. We also conclude, consistent with our holding in RHI

Holdings, that an application for abatement filed with reference

to a deficiency assessment initiates a request for abatement

only of the amount stated in, and therefore imposed by, that

assessment.

Our conclusions are consistent with familiar canons of

statutory construction. As we summarized in RHI Holdings, 51

Mass. App. Ct. at 685-686:

"'The board is an agency charged with the administration of
tax law to whose interpretation of tax statutes we may give
weight.' A.W. Chesterton Co. v. Commissioner of Rev., 45
Mass. App. Ct. 702, 710 (1998). See, e.g., McCarthy v.
Commissioner of Rev., 391 Mass. 630, 632 (1984). Further,
'[w]herever possible, we give meaning to each word in the
legislation [at issue]; no word in a statute should be
considered superfluous.' International Org. of Masters,
Mates & Pilots v. Woods Hole, Martha's Vineyard & Nantucket
S.S. Authy., 392 Mass. 811, 813 (1984). See Chatham Corp.
v. State Tax Commn., 362 Mass. 216, 219 (1972) (every word
in a legislative enactment, including a tax statute, is to
be given force and effect). Also, however, it 'is a
familiar principle that tax laws are to be strictly
construed,' McCarthy v. Commissioner of Rev., supra at 632;
 17

and, to 'whatever extent the statute is ambiguous, we
construe it in favor of the taxpayer.' Electronics Corp.
of America v. Commissioner of Rev., 402 Mass. 672, 675
(1988)."

Raytheon's proposed construction of the amount "deemed

assessed" with a taxpayer's self-reported return would

significantly undermine § 37's imposition of limitation periods,

in much the same way as we observed the taxpayer's argument

would have done in RHI Holdings. See 51 Mass. App. Ct. at 689.

And, contrary to Raytheon's contention, its proposed

construction is not required to lend meaning to the portion of

G. L. c. 62C, § 26, setting the deemed assessment at the amount

"properly due," if lower than the amount reported with the

return; a timely application for abatement, or a timely amended

return, resulting in a lower tax due, would correspondingly

adjust the deemed assessment to the lower amount. Moreover,

limiting the abatement available in an application directed to a

deficiency assessment to the amount of the deficiency assessment

is consistent with the express provisions of the commissioner's

regulations, which provide that

"[i]f more than three years have expired from the date of
filing of the original return, taking into account . . .
G. L. c. 62C, § 79 . . . (a), and an application for
abatement is filed within two years of an assessment the
Commissioner will grant an abatement up to the amount of
that assessment" (emphasis supplied).
 18

830 Code Mass. Regs. § 62C.37.1(4).12

For the foregoing reasons, the deficiency assessments on

Raytheon's 2007 and 2012 returns assessed only the amounts

stated in the notices of those assessments, and did not operate

to impose a new assessment of any amount overpaid with the 2007

and 2012 returns. Accordingly, Raytheon's applications for

abatement of the deficiency assessments on its 2007 and 2012

returns were effective only to abate any amounts imposed by the

notices of those assessments, and the board properly declined

jurisdiction over Raytheon's claims concerning other amounts.

b. 2012 return. Raytheon's application for abatement of

the deficiency assessment on its 2012 return was filed within

three years after its 2012 return. As we explained in our

discussion of background facts, although the application made no

mention of any request to abate the taxes reported on Raytheon's

2012 return, subsequent events furnished Raytheon with

significant ITC carryforwards for application in later years,

and Raytheon thereafter sought to amend its application for

12Earlier versions of the regulation were cited with
approval in RHI Holdings, 51 Mass. App. Ct. at 688, and in
Electronics Corp. of Am., 402 Mass. at 677. In Electronics
Corp., the court cited the regulation as a safeguard against the
"unintended or absurd result" by which a taxpayer could use a
timely application for abatement following payment of additional
taxes to seek abatement not only of the additional taxes paid,
but also of taxes previously paid, after the time for seeking
abatement of the previously paid taxes had expired. Id.
 19

abatement of the deficiency assessment to seek abatement of the

taxes originally paid with the return, through application of

those carryforwards. Raytheon's separate argument regarding its

2012 return asserts that its application for abatement of the

deficiency assessment was sufficient to preserve its rights to

claim an abatement of other taxes paid with its original 2012

return because the application was filed within three years

after Raytheon had filed its return.

We consider Raytheon's argument foreclosed by the Supreme

Judicial Court's observation in Liberty Life Assur. Co. v. State

Tax Comm'n, 374 Mass. 25, 28 (1977), that "[i]in a hearing

before the board, an appellant may advance legal theories and

present facts not relied on before the commission, but the

appellant may not present a request for abatement of a portion

of an excise not involved in any respect in its application to

the commission." Accordingly, as the commissioner argues in his

brief, it is immaterial for purposes of the present appeal that,

at the time it applied for abatement of the 2016 deficiency

assessment, Raytheon could have submitted a timely application

for abatement of the taxes it reported and paid with its 2012

return, because it did not do so; the only application for

abatement was directed to the 2016 deficiency assessment.

Electronics Corp. of Am., 402 Mass. at 674-677, and

Supermarkets Gen. Corp. v. Commissioner of Revenue, 402 Mass.
 20

679, 682-685 (1988), are not to the contrary. Both cases

confirm the proposition that a taxpayer may take advantage of

any of the limitations periods applicable to the taxpayer's

circumstances, but neither suggests that an application for

abatement of taxes imposed by a specific assessment may operate

to request abatement of a different assessment.

Finally, we reject Raytheon's suggestion that the

commissioner was obliged to accept its request to amend and

restate its application for abatement of the 2016 deficiency

assessment to include an application for abatement of the taxes

reported and paid with its 2012 return, after expiration of the

limitations period applicable to the latter, under 831 Code

Mass. Regs. § 1.14 (2007), with "relation back" to the date it

filed its application for abatement of the deficiency

assessment.13 As a threshold matter, the question of leave to

amend is subject to the discretion of the commissioner, and

Raytheon made no motion for leave to amend and has advanced no

compelling rationale in this appeal to support a conclusion that

denial of such a motion would be an abuse of discretion. In any

event, Raytheon cites no authority to support its contention

13 In pertinent part, 831 Code Mass. Regs. § 1.14 provides:

"Parties may amend their pleadings at any time before the
decision of the Board, by consent of the adverse party or
by leave of the Board."
 21

that an amendment to an application for abatement of one

assessment may be used as a vehicle, with "relation back," to

raise a claim, which otherwise would be time barred, for

abatement of a different assessment. Cf. Sears, Roebuck & Co.

v. State Tax Comm'n, 370 Mass. 127, 129-130 (1976) (appeals to

board under G. L. c. 64F, § 23, and G. L. c. 64H, § 22, as then

in effect; see now G. L. c. 62C, § 39).14

The decisions of the appellate tax board are affirmed.

So ordered.

14Similarly unavailing is Raytheon's suggestion that the
board should have considered its time-barred request for
abatement of the taxes paid with its 2012 return as a matter of
"equity and good conscience." G. L. c. 58A, § 7. Whatever such
considerations might encompass, they do not overcome statutorily
established jurisdictional limits. See Veolia Energy Boston,
Inc. v. Assessors of Boston, 95 Mass. App. Ct. 26, 29 (2019).