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13-P-876 Appeals Court

GEORGE SCHUSSEL & another1 vs. COMMISSIONER OF REVENUE.

No. 13-P-876

Suffolk. June 4, 2014. - September 30, 2014.

Present: Graham, Meade, & Fecteau, JJ.

Taxation, Appellate Tax Board: findings, Income tax, Gross 

income. Words, “Tax-related.”

Appeal from a decision of the Appellate Tax Board. 

Francis J. DiMento for the taxpayers.

John M. Stephan, Assistant Attorney General, for 

Commissioner of Revenue.

GRAHAM, J. This is an appeal from an Appellate Tax Board 

(board) decision upholding the denial by the Commissioner of 

Revenue (commissioner) of a request for an abatement of double 

taxes assessed to George and Sandra Schussel (Schussels) for 

filing false or fraudulent income tax returns for the calendar 

years 1993, 1994, and 1995 (tax years at issue). The case 

 

1 Sandra Schussel.
2

presents three issues: first, whether the board erred as a 

matter of law in upholding the commissioner's double tax 

assessment based on the Schussels' false or fraudulent filings; 

second, whether the Schussels were entitled to amnesty from the 

double tax assessment; and third, whether the board erred as a 

matter of law in ruling that the seven-year look-back period for 

nonfiling taxpayers does not apply to the Schussels. We affirm.

Background. The facts are taken from the board's findings 

of fact and report. George2 received his bachelor's degree from 

the University of California in 1961. He attended graduate 

school at Harvard University, where he earned a master's degree 

and Ph.D. in 1966. Sandra, who was born and raised in Lynn, 

attended the Peter Brent Brigham Hospital nursing school in 

Boston and graduated in 1962. She practiced as a registered 

nurse at The Children's Hospital in Boston for six months before 

leaving to begin work as a flight attendant for American 

Airlines.

The Schussels met in 1964 and were married the following 

year. They lived in Cambridge while George completed his 

education at Harvard. After George became employed, the couple 

relocated several times. The couple lived in New Jersey when 

their first daughter was born in 1970. Later that year, the 

Schussels moved back to Massachusetts, and George secured a job 

 

2 We use first names to avoid confusion.
3

at American Mutual Insurance Company. In 1971, the family moved 

to Lynnfield.

In 1979, George founded his own company, Digital

Consulting, Inc. (DCI), which he incorporated in Massachusetts.

DCI organized, promoted, and conducted trade shows and 

conferences that were designed to teach guests how to utilize

the latest technological advancements to solve business and

government problems. The events were held in several major

cities in the United States, as well as in foreign countries.

During the tax years at issue, George operated DCI from an

office in Andover.

George testified to the board that, during the tax years at 

issue, he spent approximately 70 days a year in Massachusetts, 

80 days a year in Florida, 95 days a year traveling for 

business, and 120 days a year in New Hampshire. However, he 

testified at his deposition that he was in Massachusetts for 

about a third of each year, or nearly 120 days.

3

On February 26, 2004, George was indicted in the United 

States District Court for the District of Massachusetts on one 

 

3 Neither version of his testimony established that he spent 

at least 183 days a year in Massachusetts. As such, the 

Schussels could not be deemed Massachusetts residents for tax 

purposes by virtue of G. L. c. 62, § 1(f). Therefore, the 

question of the Schussels' residency for tax purposes turned on 

whether they were domiciled in Massachusetts during the tax

years at issue. In the proceedings below, they argued that they 

were not domiciled in Massachusetts. However, the Schussels 

have elected not to pursue this argument on appeal.
4

count of conspiracy and two counts of tax evasion, including 

that he filed a false and fraudulent income tax return for the 

tax year 1995. The parties agree that, based on Internal 

Revenue Service (IRS) letter 692 and form 4549-A,4 the Schussels' 

adjusted income was determined to be as follows: $1,661,709 for 

tax year 1993; $2,354,817 for tax year 1994; and $3,341,868 for 

tax year 1995. These amounts were known as of January 20, 2009, 

when form 4549-A was issued. George reported his Federal 

taxable income to be substantially less than these figures. In 

one instance, the 1995 Federal return reported income of only 

$1,030,785, a difference of $2,311,083 from the adjusted income 

for that year. On January 25, 2007, he was found guilty on all 

three charges. He served a prison sentence until he was granted 

a supervised release on February 1, 2011.

Although the Schussels owned and maintained a Massachusetts 

corporation and a residence in Lynnfield, they failed to file 

any Massachusetts personal income tax returns, whether resident 

or nonresident, from 1988 to June, 2007. On May 15, 2007, the 

commissioner issued a notice of failure to file personal income 

taxes with the Department of Revenue (department). The notice 

was sent to the Schussels' attorney tax preparers. Only then 

did the Schussels file State returns for the tax years at issue. 

 

4 IRS form 4549-A indicates "Income Tax Discrepancy 

Adjustments."
5

However, the returns filed with the department were based on the 

Federal returns, which had been deemed false or fraudulent and 

led to George's convictions.

On January 20, 2009, the commissioner applied the immediate 

assessment, double tax assessment, and jeopardy assessment 

provisions of G. L. c. 62C, §§ 26(d), 28, and 29, respectively. 

Approximately one month later, the commissioner inadvertently 

issued a tax amnesty notice to the Schussels. The amnesty

notice indicated that if, by a specified date, they paid the 

full amount of tax and interest assessed under the immediate 

assessment provision, the commissioner would waive the unpaid 

penalties and the interest associated with those penalties. The 

Schussels timely paid the amounts due, and the commissioner 

waived the penalties and related interest. This waiver saved

the Schussels $905,215.32. The amount due, as indicated by the 

amnesty notice, did not include the double tax assessed under 

§ 28. The commissioner did not waive the double tax assessment.

The Schussels appealed the commissioner's double tax 

assessment to the board, pursuant to G. L. c. 58A, § 7, and 

G. L. c. 62C, § 39(c), arguing that the commissioner's refusal 

to grant an abatement was in error. The board found that the 

commissioner's application of the double assessment provision in 

G. L. c. 62C, § 28, was justified by the Schussels' "reckless 

indifference to the obligation to file accurate taxes."
6

Discussion. 1. Standard of review. "Findings of the 

board are final, see G. L. c. 58A, § 13, and will not be 

disturbed if they are supported by sufficient evidence." 

General Mills, Inc. v. Commissioner of Rev., 440 Mass. 154, 161 

(2003). "Our review of the sufficiency of the evidence is 

limited to 'whether a contrary conclusion is not merely a 

possible but a necessary inference from the findings.'" Olympia 

& York State St. Co. v. Assessors of Boston, 428 Mass. 236, 240 

(1998), quoting from Kennametal, Inc. v. Commissioner of Rev., 

426 Mass. 39, 43 (1997), cert. denied, 523 U.S. 1059 (1998).

"If supported by sufficient evidence, we will not reverse a 

decision of the board unless it is based on an incorrect 

application of the law." Syms Corp. v. Commissioner of Rev., 

436 Mass. 505, 511 (2002). "In reviewing mixed questions of 

fact and law, the board's expertise in tax matters must be 

recognized, and its decisions are due 'some deference.'" Koch

v. Commissioner of Rev., 416 Mass. 540, 555 (1993), quoting from 

McCarthy v. Commissioner of Rev., 391 Mass. 630, 632 (1984).

2. Double tax assessment. General Laws c. 62C, § 28, 

inserted by St. 1976, c. 415, § 22, states, in relevant part,

"If a person . . . has filed a false or fraudulent return

or has filed a return with a willful attempt in any manner 

to defeat or evade the tax, the commissioner may determine 

the tax due, according to his best information and belief, 

and may assess the same at not more than double the amount 

so determined, which additional tax shall be in addition to 

the other penalties provided by this chapter."
7

The board found that the Schussels'

"intent to evade taxes was evident from the fact that, 

despite working in Massachusetts for a Massachusetts 

company, the [Schussels] failed to file any Massachusetts 

income tax returns, not even nonresident returns, from 1988 

until June of 2007, when the [Schussels] finally, upon 

receipt of the Failure to File Notice, filed returns for 

the tax years at issue. When they did file their 

Massachusetts returns, the [Schussels] first reported 

income amounts that were determined to be fraudulent in 

federal court and grossly under-reported the true amount of 

total income earned by over $5,500,000.00."

The board also determined that the Schussels were 

Massachusetts residents for tax purposes during the tax years at 

issue. From these findings, the board concluded that the 

commissioner was justified in imposing a double tax assessment 

because the facts established that the Schussels knowingly filed 

false or fraudulent returns or intended to evade taxes during

the tax years at issue.

On appeal, the Schussels put forth three arguments in 

support of their position that the evidence does not support the 

board's finding that they knowingly filed false or fraudulent 

returns or intended to evade taxes.5 They contend, therefore, 

that upholding the double tax assessment was in error. We 

reject each of the Schussels' arguments and conclude that the 

 

5 We note that the Schussels' primary argument below was 

that the nonresident returns filed were not false or fraudulent 

because the Schussels had a good faith basis to believe that 

they were domiciled in New Hampshire during the tax years at 

issue. However, the Schussels have abandoned this argument on 

appeal. See note 3, infra.
8

board's affirmation of the commissioner's double tax assessment 

did not constitute error.

First, they argue that each of the three returns filed with 

the department carried a rider, which should have precluded a 

finding that they knowingly filed false or fraudulent returns. 

The rider indicated that George had been federally indicted for 

tax evasion, and that the proper amount, characterization, and 

source of gross income were the subject of a pending appeal.

6

They assert that the rider was attached to the State tax 

returns for two reasons: (1) to put the commissioner on notice 

of the appeal as to gross income, which the Schussels sought to 

preserve, and (2) to indicate that the income reported on the 

State tax returns may not be the correct amounts, due to the 

disputed income figures. The Schussels argue that reporting the 

lesser, disputed income and attaching the rider was the only way 

to preserve their right to challenge the findings of their true 

income. We disagree.

The Schussels underreported their State tax liability in 

two ways; first, by using the fraudulent Federal return as a 

 

6 The rider stated in full: "Taxpayer is currently a party 

to a criminal tax case brought by the U.S. Attorney's Office for 

which the details can be found at United States District Court 

for the District of Massachusetts, Docket No. 04-10060. Items 

of gross income determined purusant [sic] to said case are the 

subject of a pending appeal regarding amount, characterization 

and source. Income which is the subject of said case/appeal has 

not been reported on this return due to the uncertaintities

[sic] described above."
9

basis to calculate their Massachusetts income, and second, by

erroneously filing as nonresidents, which would permit them to 

pay only a fraction of their true taxable income to the 

Commonwealth.

The Schussels had a duty to provide a more accurate report 

of their earned income to the department, particularly after the 

verdict in the Federal case had been issued. They could have 

preserved their right to change the amounts entered on the State 

returns. As the commissioner suggests, the Schussels should 

have used amounts similar to those found in IRS form 4549-A when 

filing returns with the department. If those figures were later 

found to be overstated, resulting in overpayments to the 

Commonwealth, the Schussels could then submit a request for 

abatement and the return of their excess payment. This is 

especially true where the Schussels had already neglected to pay 

personal income taxes to the Commonwealth for approximately 

twenty years.

Next, the Schussels argue that where a tax attorney 

prepares returns on behalf of his clients, which returns he 

believes to be accurate based on his full knowledge of the 

relevant facts, then that, together with the explicit disclosure 

prepared by the tax attorney and appended to the returns, 

precludes the imposition of penalties based on a failure to 

disclose. This argument is without merit and does not shield 
10

them from liability. The Schussels rely solely on Scagel v.

Commissioner of Rev., 13 Mass. App. Tax Bd. Rep. 38 (1990), to 

support their proposition.

In Scagel, the board found that the taxpayers specifically 

disclosed all relevant facts related to their domicile to their

accountant and relied on the accountant's advice in filing a 

nonresident return. Id. at 42. The board ruled that the 

taxpayers had a good faith basis for filing a nonresident return 

and, thus, the commissioner failed to meet his burden of proving 

that they filed a false or fraudulent return. Id. at 48.

Here, the board appropriately rejected the application of

Scagel, where it explicitly found that

"the [Schussels'] failure to file returns and gross 

underreporting of income earned amounted to more than a 

mere act of negligence as in Scagel and instead amounted to 

a reckless indifference to the obligation to file accurate 

taxes which constituted intent to evade taxes as the Board 

found in [Peter Ruggiero, Inc. v. Commissioner of Rev., 18 

Mass. App. Tax Bd. Rep. 19 (1995)]."

We also note that the Schussels were considered Massachusetts 

residents for tax purposes during the tax years at issue. 

Therefore, in contrast to Scagel, the Schussels cannot contend 

that they had a good faith basis for filing nonresident returns. 

Moreover, their failure to file returns for a period of 

approximately twenty years and their subsequent underreporting 

of income cannot be rectified by their alleged reliance on tax 

preparers.
11

Finally, the Schussels contend that the board's subsidiary 

finding that they "grossly under-reported the true amount of 

total income earned by over $5,500,000.00" was erroneous and 

unsupported by the record because no taxing authority determined 

with finality the true amount of income earned during the tax 

years at issue. However, as we previously concluded, the 

Schussels should have used figures more closely tied to those 

found by the IRS in form 4549-A when determining their 

Massachusetts taxable income. An analysis of the difference 

between the adjusted income and the total income reported on 

their returns for the tax years at issue results in the exact 

amount found to be lacking by the board -- $5,558,736.7 The 

board could also rely on the fact that in the Federal case, the 

jury found, in accordance with the judge's instructions, that 

there was "a substantial tax due in addition to what was shown 

to be due on the return."

8 It is important to note that the 

 

7 Pursuant to form 4549-A, the following adjustments were 

made to the Schussels' income for tax years 1993, 1994, and 

1995, respectively: $1,661,709, $2,354,817, and $3,341,868. 

These amounts total $7,358,394. The total income, as reported 

by the Schussels on form 1-NR, Massachusetts nonresident income 

tax return, for 1993, 1994, and 1995 were as follows: $358,880, 

$383,417, and $1,057,361, respectively. The total income 

reported equals $1,799,658. Therefore, the difference between 

the adjusted income and total income reported was in fact

$5,558,736.

8 Although the term "substantial" was not defined by the 

Federal judge, the board's finding that the Schussels' income 

was underreported by more than $5 million was supported by the 
12

board is not required to find the exact amount of underreported 

income before concluding that the Schussels intended to evade 

taxes by underreporting their income.

We conclude that the board's findings were supported by 

substantial evidence. Furthermore, the findings provide 

sufficient support for the board's conclusion that the 

commissioner did not err in assessing the double tax. Thus, we 

affirm the board's ruling, where the decision was not arbitrary 

or capricious, or based on any other error of law, particularly 

where the board's expertise on tax matters entitles its 

decisions to some deference. See Koch, 416 Mass. at 555.

3. Application of the amnesty program. In accordance with 

her authority under St. 2008, c. 461, the commissioner 

"established a two-month amnesty program commencing on March 1, 

2009, and ending on April 30, 2009," DOR Technical Information 

Release (TIR) 09-3 (February 19, 2009), reprinted in 5 Official 

MassTax Guide (West 2014). The purpose of the program was to 

encourage the full payment of delinquent tax obligations to the 

Commonwealth. The program applied to individuals with existing 

tax liabilities from tax years ending on or before December 31, 

2007. Under the program, the commissioner was authorized to 

waive all unpaid penalties imposed on a taxpayer for failure to 

 

record. The adjusted income and total income figures in the 

record provide more than a sufficient basis for the board's 

finding.
13

timely file a return, failure to file a proper return, and 

failure to timely pay a tax liability, so long as the taxpayer 

paid the full amount of the tax and interest identified by the 

commissioner. However, "[t]he commissioner's authority to waive 

penalties during the amnesty period shall not apply to any 

taxpayer who, before the start date of the amnesty program 

selected by the commissioner, was the subject of a tax-related 

criminal investigation or prosecution." St. 2008, c. 461.

The commissioner issued a tax amnesty notice to the 

Schussels on February 25, 2009, despite the fact that George was 

subject to a tax-related criminal prosecution in Federal court 

prior to the start of the amnesty program. The Schussels paid 

the full amount of tax and interest identified in the tax 

amnesty notice, which resulted in a waiver of penalties assessed 

under G. L. c. 62C, § 33. The commissioner later discovered the 

error, but did not seek to recoup the amount of the penalties, 

saving the Schussels more than $900,000.

The Schussels also sought amnesty for the double assessment 

penalties assessed by the commissioner pursuant to G. L. c. 62C, 

§ 28. The commissioner denied their request. Relying on St. 

2008, c. 461, and TIR 09-3, the board agreed with the 

commissioner and concluded that George's Federal conviction for 

tax evasion made him ineligible for the amnesty program. 

The Schussels argue on appeal that the board's ruling was 
14

in error because George's Federal proceedings did not constitute

"a tax-related criminal investigation or prosecution" within the 

meaning of St. 2008, c. 461. Specifically, they argue that the 

amnesty program only excludes taxpayers under investigation or 

prosecution by the Commonwealth, not the Federal government.

Chapter 461 of St. 2008 and TIR 09-3 do not provide a 

definition of "tax-related." "Our duty is to give these 

somewhat ambiguous words . . . a reasonable construction which 

will carry out what we perceive to be the legislative intention. 

Although we recognize the principle that ambiguities in taxing 

statutes are to be resolved in favor of the taxpayer, we do not 

regard that principle as controlling in this case." Ogden 

Suffolk Downs, Inc. v. Boston, 18 Mass. App. Ct. 101, 104 (1984)

(citations omitted).

The Schussels suggest that "tax-related" refers only to 

Massachusetts taxes because the main purpose of the exception to 

the program was to prevent the commissioner's waiver of 

penalties from compromising any pending or subsequent criminal

investigation or prosecution by the Commonwealth. They argue

that the exception was put in place to prevent, for example, a 

situation in which the commissioner waives the penalties 

assessed against a taxpayer that also happens to be the subject 

of a State criminal investigation or prosecution because the 

waiver might adversely affect the Commonwealth's investigation. 
15

The Schussels argue further that the Legislature's use of the 

word "tax" throughout the tax statutes refers only to 

Massachusetts taxes, and that there is no good reason to apply 

the term more broadly in this context.

The commissioner asserts that "tax-related," as it applies 

to the amnesty program, was meant to include those 

investigations and prosecutions at both the State and Federal 

levels. The board implicitly upheld the commissioner's 

interpretation by concluding that the Schussels did not qualify 

for amnesty under this exception.

"Tax," as defined by G. L. c. 62C, § 1, inserted by St. 

1976, c. 415, § 22, means "any tax, excise, interest, penalty, 

or addition to tax imposed by this chapter or the statutes 

referred to in section two." General Laws c. 62C, § 2, inserted 

by St. 1976, c. 415, § 22, states that "[t]he provisions of this 

chapter shall . . . apply to the taxes imposed by chapter sixty 

A; by chapters sixty-two through sixty-five C, inclusive; by 

section ten of chapter one hundred and twenty-one A; by section 

twenty-one of chapter one hundred and thirty-eight; and by any 

act in addition thereto or amendment thereof."

The literal interpretation of the term supports the 

position of the commissioner and the board; "tax-related"

literally means of or relating to tax, which is quite broad. 

Moreover, the commissioner is vested with the sole discretion to 
16

determine the scope of the amnesty program.

9 The board's

conclusion that the commissioner's interpretation was consistent 

with St. 2008, c. 461, and TIR 09-3 was not error. See Koch, 

416 Mass. at 555, quoting from McCarthy v. Commissioner of Rev., 

391 Mass. at 632 (board entitled to "some deference"). See also 

Xtra, Inc. v. Commissioner of Rev., 380 Mass. 277, 281 (1980)

(no reversible error where board construes legislative purpose 

broadly).

We adopt the commissioner's definition of "tax-related." 

This construction of the amnesty exception serves a dual 

purpose. First, it prevents the commissioner from compromising 

pending or subsequent criminal investigations or prosecutions by 

the Commonwealth, as the Schussels suggest. Second, it 

precludes those taxpayers who are under Federal investigation or 

prosecution from potentially defrauding the Commonwealth in a 

derivative manner, described below.

Massachusetts taxpayers use the gross income reported on 

their Federal tax returns as a basis to determine and report 

their Massachusetts taxable income. See G. L. c. 62, §§ 2, 6F. 

As such, if a taxpayer files a false or fraudulent Federal 

return, or underreports earned income, the error or fraud may 

 

9 "Chapter 461 of the Acts of 2008 provides that the 

Commissioner of Revenue shall establish a two-month amnesty 

program during the fiscal year ending June 30, 2009 (the 

'Amnesty Program') and determine the scope thereof." TIR 09-3.
17

pass through to the corresponding State return. The end result 

would be that the Commonwealth would collect less taxes than 

were actually owed. We cannot conclude that the Legislature or 

the department desired to leave open the possibility that 

amnesty would be given to a taxpayer subject to a tax-related 

Federal investigation or prosecution where those proceedings may 

also reveal a false or fraudulent State tax return. To the 

contrary, we have no doubt that the Legislature and department 

would seek to preclude such a result by also prohibiting the 

commissioner from waiving penalties against taxpayers that are 

the subject of a Federal tax investigation or prosecution.

Furthermore, this construction of the disputed language is 

more consistent with the purposes of the tax statutes and the 

department's policies -- that amnesty should not be available to 

those taxpayers that defraud the Commonwealth and that it is to 

be given only in exchange for payment of all outstanding taxes 

and interest owed to the Commonwealth. Were we to adopt the 

Schussels' position, amnesty might be given in exchange for 

less, where the taxpayer's Massachusetts tax liability may have 

been underreported. See Bolster v. Commissioner of Taxn., 319 

Mass. 81, 84-85 (1946) ("None of the words of a statute is to be 

regarded as superfluous, but each is to be given its ordinary 

meaning without overemphasizing its effect upon the other terms 

appearing in the statute, so that the enactment considered as a 
18

whole shall constitute a consistent and harmonious statutory 

provision capable of effectuating the presumed intention of the 

Legislature").

4. Seven-year look-back period. By statute, the 

limitations period on the assessment of taxes, interest, and 

penalties does not begin to run unless the taxpayer files a 

return. General Laws c. 62C, § 26(d), inserted by St. 1976, 

c. 415, § 22, provides, 

"In the case of a false or fraudulent return filed with 

intent to evade a tax or of a failure to file a return, the 

commissioner may make an assessment at any time, without 

giving notice of his intention to assess, determining the 

tax due according to his best information and belief."

However, the commissioner has established a policy of limiting 

the time after which a nonfiling taxpayer will be assessed to 

seven years following the failure to file. See TIR 01-8 (June 

15, 2001), reprinted in 5 Official MassTax Guide (West 2014).

Here, the most recent tax year at issue, 1995, was more 

than seven years removed from the date of assessment, but the 

commissioner declined to apply the seven-year look-back period, 

which the Schussels claim was error. The board concluded that 

the commissioner did not err because although more than seven 

years had passed, the commissioner is authorized to disregard 

the look-back period under circumstances described in part VI of 

TIR 01-8. The Schussels argue that the board's ruling was error 

because "the meager factual basis underpinning the Board's 
19

determination is insufficient to invoke the exceptions" provided 

in part VI.

Part VI provides, in relevant part,

 "In certain instances described below, when a taxpayer has 

not filed tax returns, and the Commissioner believes that 

the taxpayer's circumstances do not merit the application 

of a look-back period of seven years or less, the 

Commissioner will assess such taxpayer for all taxable 

periods for which a return is due. In general, a taxpayer 

will be assessed for all taxable periods for which a return 

is due in each of the following instances, or in instances 

involving similarly egregious circumstances:

". . . 

"3. a knowing or willful failure to file returns with the 

intent to avoid the payment of tax;

"4. a willful neglect to file returns despite reasonable 

cause to know of a filing responsibility."

The board found that the commissioner's records, which are 

not disputed by the Schussels, indicate that the Schussels "did 

not file any personal income tax returns with Massachusetts from 

calendar year 1989 forward, until the Commissioner issued the 

Notice of Failure to File on May 15, 2007." Furthermore, the 

Schussels filed tax returns only after George was convicted of

Federal tax evasion, and when those returns were filed, the 

Schussels' income was grossly underreported. The board's 

findings were supported by ample evidence and, thus, cannot be 

described as "meager." See General Mills, Inc. v. Commissioner 

of Rev., 440 Mass. at 161.

The board's decision was not arbitrary or capricious, nor 
20

does it give rise to any other error of law. Therefore, we 

uphold the board's ruling that

"the fact that the [Schussels] owned and were employed by a 

Massachusetts company gave the [Schussels] 'a reasonable 

cause to know of a filing responsibility' with respect to, 

at least, nonresident tax returns. By failing to file 

those income tax returns, the [Schussels] displayed at 

least 'a willful neglect to file returns,' if not 'a 

knowing or willful failure to file returns with the intent 

to avoid the payment of tax."

Thus, in accord with TIR 01-8, part VI, the commissioner 

did not err in disregarding the look-back period and assessing 

the Schussels accordingly.

Conclusion. The board's decision, upholding the 

commissioner's double tax assessment and denial of amnesty for 

the penalties assessed under G. L. c. 62C, § 28, was supported 

by the evidence and was not otherwise arbitrary or capricious. 

Furthermore, the Schussels cannot escape liability on the ground 

that the seven-year look-back period precluded the commissioner 

from issuing assessments. The Schussels' fraud brought them 

within an exception to the limitation period, allowing the 

commissioner to disregard the look-back policy. Thus, we affirm 

the decision of the Appellate Tax Board.

So ordered.