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revision and are superseded by the advance sheets and bound volumes of the Official Reports.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, Supr eme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108

- 1750; (617) 557

- 1030; SJCReporter @ sjc.state.ma.us 1 3

- P
- 876 Appeals Court GEORGE SCHUSSEL & another 1 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.”

A ppeal 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 ( b oard) decision upholding the denial by the Commissioner of
Revenue ( c ommissioner) of a requ est 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 t hree issues: first, whether the b oard erred as a matter of law in upholding the c ommissioner's double tax assessment b ased on the Schussels' false or fraudulent filings; second, whether the Schussels were entitled to amnesty from the double tax assessment ; and third, w hether the b oard erred as a matter of law in ruling that the seven

- year look

- back period for nonfiling taxpayers does not apply to the Schussels
. W e affirm
. Background
. The facts are taken from the b oard's f indings of f act and r eport . George 2 received his b achelor's d egree from the U niversity of California in 1961. He a ttended graduate school at Harvard University, where he earned a m aster's d egree 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 me t 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 move d 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 h is own c ompany, Digital Consulting, Inc
. (DCI) , which he incorporated in Massachusetts
. DCI organized, promoted, and conduc ted trade shows and

c onferences that were designed to teach guests how to ut i lize 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 o perated DCI from an office in Andover
. George testified to the b oard 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 Massac husetts 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 Massachuset ts . 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) l etter 692 and f orm 4549

- A, 4 the Schussels'

a djusted i ncome w as 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 a djusted i ncome for that year. On January 25, 2007, he was found guilty on all three charges. He served a prison s entence until he was granted a supervised re lease 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 residen t or nonresident, from 1988 to June , 2007
. On May 15, 2007, the

c ommissioner issued a n otice of f ailure to f ile personal income taxes with the Department of Revenue ( d epartment). The notice
was sent to the Schussels' a ttorney tax prepa rers . Only then di d the Schussels file S tate returns for the tax years at issue
.

4 IRS f orm 4549

- A indicates "Income Tax Discrepancy Adjustments."5

However, the return s filed with the d epartment were based on the Federal returns, which had been deemed false or fraudulent and led to George's conviction s . On January 20, 2009, the c ommissioner applied the immediate assessment, double tax assessment, and jeopardy assessment provisions of G
. L . c . 62C, §§ 26( d ), 28, and 29, respectively. Appr oximately one month later, the c ommissioner inadvertently issued a t ax a mnesty n otice to the S chussels
. The amnesty notice indicated that if , by a specified date, they paid the full amount of tax and interest assessed un der the immediate assessment provision, the c ommissioner would waive the unpaid penalties and the interest associated with those penalties
. The Schussels timely paid the amounts due , and the c ommissioner 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. Th e c ommissioner did not waive the double tax assessment . The Schussels appealed the c ommissioner 's double tax
assessment to the b oard , pursuant to G . L . c . 58A, § 7 , and
G . L . c . 62C, § 39( c ), arguing that the c ommissioner's refusal to grant an abatement was in error
. The b oard found that the

c ommissioner's application of the double assessment provision in G. L. c. 6 2 C, § 28 , was justified by the Schussels' " reckless indifference to the obli gation 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 necessa ry inference from the findings
. ' " Olympia & York State St
. Co . v . Assessors of Boston , 428 Mass
. 236, 240 (1998) , quoting from Kennametal, Inc
. v . Comm issioner 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 C orp . v. Commissioner of Rev ., 436 Mass. 505, 511 (2002). " In reviewing mixed questions of fact and law, th e 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 assessme nt . G eneral 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 b oard found t hat 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 fraudule nt in federal court and grossly under

- reported the true amount of total income earned by over $5,500,000.00." The b oard also determined that the Schussels were Massachusetts residents for tax purposes during the tax years at issue. From these findings, the b oard concluded that the

c ommissioner 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 , t he Schussels put forth three arguments in support of their position that the evidence do es not support the b oard's finding that the y 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

b oard's affirmation of the c ommissioner's double tax assessment did not constitute error. First, they argue that each of the three returns filed with the d epartment carried a rider , which should have precluded a finding that they knowingly filed false o r fraudulent returns. The rider indicated that George had been federally indicted for tax evasion, and that t he proper amount, characterization, and source of gross income were the subject of a pending appeal
. 6
The y assert that the rider was attached to the S tate tax returns for two reasons: (1) to put the c ommissioner 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
S tate tax returns may not be the correct amounts , due to the disputed income figures
. The Schussels argue that reporting the less er, disputed income and attaching the rider was the only way to preserve their right to challenge the finding s of their true income. We disagree.
T he Schussels underreported their S tate tax liability in two ways; first, by using the fraudulent Federal re turn 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 pur u s an t [ 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 uncertaint it ies [ 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.
T he Schussels had a duty to provide a more accurate report of their earned income to the d epartment, particularly after the verdict in the Federal case had been issued. The y could have preserved their right to change the amounts entered on the S tate
return s . A s the c ommissioner suggests, the Schu ssels sh ould have used amounts similar to those found in IRS form 4549

- A when filing returns with the d epartment. I f 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
p repares 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 i mposition of penalties based on a failure to disclose. This argument is without merit and does not shield10

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 b oard 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 b oard r uled that the taxpayers had a good faith basis for filing a nonresident return and, thus, the c ommissioner failed to meet his burden of proving that they fil ed a false or fraudulent return
. Id . at 48. Here, the b oard 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 acc urate taxes which constituted intent to ev ade 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 du ring 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 b oard'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
S chussels should have used figures more close ly tied to those found by the IRS in f orm 4549

- A when determining their Massachusetts taxable income. A n analysis of the difference between the a djusted i ncome and the t otal i ncome reported on their returns for the tax years at issue results in the exact amount found to be lacking by the b oard

- - $5,558,736. 7 T he b oard could also rel y 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 f orm 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 t otal i ncome , as reported by the Schussels on f orm 1

- NR, Massach usetts n onresident i ncome t ax r eturn, for 1993, 1994, and 1995 were as follows : $358,880 , $ 383,417 , and $1,057,361, respectiv ely. The t otal i ncome reported equals $ 1,799 , 658. The refore, the difference between the a djusted i n come and t otal i ncome reported wa s in fact $5,558,736.

8 Although the term "substantial" was not defined by the F ederal judge , the b oard's finding that the Schussels' income was underreported by mo re than $5 million was supported by the12

b oard is not required to find the exact amount of under reported income before concluding that the Schussels i ntended to evade taxes by under reporting their income. We conclude that t he b oard's finding s were supported by substantial evidence . Furthermore, the findings provide sufficient support for the b oard's conclusion that the

c ommissioner did not err in assessing the double tax. Thus, w e affirm the b oar d's ruling, where the decision was not arbitrary

or capricious, or based on any other error of la w, particularly where the b oard's expertise on tax matters entitles its decisions to some deference. S ee Koch , 416 Mass. at 555
. 3
. Application of the amnesty program . In accordance with her authority under St. 2008, c. 461, the c ommissioner

" 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, 200 9), 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 c ommi ssioner wa s authorized to waive all unpaid penalties imposed on a taxpayer for failure to

record. The adjusted income and total income f igures in the record provide more than a sufficient basis for the b oard'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
pa id the full amount of the tax and interest identified by the

c ommissioner
. 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 c ommissioner issued a t ax a mnesty n otice 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 Sc hussels paid the full amount of tax and interest identified in the t ax

a mnesty n otice , which resulted in a waiver of penalties assessed under G . L . c . 62C, § 33
. The c ommissioner later discovered the
error, but did not seek to recoup the amount of the penalties, saving the Schussels more than $900,000.
T he Schussels also sought amnesty for the double assessment penalties assessed by the c ommissioner pu rsuant to G . L . c . 62C, § 28 . The c ommissioner denied their request
. Relying on St. 2008, c. 461 , and TIR 09

- 3, the b oard agreed with the commissioner and concluded that George's Fed eral conviction for tax evasion made him inelig ible for the amnesty program.
T he Schussels argue on appeal that the b oard's ruling was14

in error because George's F ederal proceedings did not constitute "a tax

- related criminal investigation or prosecution" within the meaning of St. 2008, c. 461
. Speci fically, 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 gi ve 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, w e 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 tax es because the main purpose of the exception to the program was to prevent the c ommissioner'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 c ommissioner waive s the penalties assessed against a taxpayer that also happens to be the subject of a S tate criminal investigation or prosecution because the waiver might adversely affect the Common wealth's investigation
.15

The Schussels argue further that the L egislature'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 c ommissi oner asserts that "tax

- related ," as it applies to the amnesty program, was meant to include those investigations and prosecutions at both the S tate and Federal levels. The b oard implicitly upheld the c ommissioner's interpretation by concluding that the Sc hussels 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 c hapter 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 amendmen t thereof." The literal interpretation of the term supports the position of the c ommissioner and the b oard; " tax
- related " literally means of or relating to tax, which is quite broad. Moreover, t he c ommissioner is vested with the sole discretion to16

determine the scope of the amnesty program
. 9 T he board's conclusion that the commissioner's interpretation was co nsistent 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 ( b oard entitled to " some deference " ) . See also Xtra, Inc . v. Commissioner of Rev ., 380 Mass. 277, 281 (1980) (no reversible error where b oard construes legislative purpose broadly)
. We adopt the c ommissioner's definition of "tax

- related
. " This construction of the amnesty exception serves a dual purpose. First, it prevents the c ommissioner 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 defra uding the Commonwealth in a derivativ e manner , described below
. Massachusetts taxpayer s 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 S tate return. The end result would be that the Commonwealth would collect less taxes than were actually owed. W e can not conclude that the L egislature or the d epartment 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 fraudule nt S tate tax return. To the contrary, we have no doubt t hat the L egislature and d epartment would seek to preclude such a result by also prohibiting the

c ommissioner from waiving penalties against taxpayers that a re the subject of a Federal tax investigati on or prosecution. Furthermore , this construction of the disputed language is more consistent with the purpose s of the tax statute s and the d epartment'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 migh t 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 overemphas izing its effect upon the other terms appearing in the statute, so that the enactment considered as a18

whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature").
4
. Seven
- yea r l ook

- back period
. By statute, the limitations period on the assessment of taxes, interest, and penalties does not begin to run unless the taxpayer file s a return . G eneral 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 informa tion and belief
. " However, the c ommissioner has establishe d a policy of limiting the time after which a non filing taxpayer will be assessed to seven years following the failure to file
. See TIR 01

- 8 (June 15, 2001), reprinted in 5 O fficial 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

c ommissioner declined to apply the seven

- year look

- back period, which the Schussels claim was error . The b oard concluded th at the c ommissioner did not err because although more than seven years had passed, the c ommissioner is authorized to disregard the look

- back period under circumstances described in p art VI of TIR 01

- 8
. The Schussels argue that the b oard's ruling was error because " the meager factual basis underpinning the Board's19

determination is insufficient to invoke the exceptions" provided in p art 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 r eturns 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 b oard found that the c ommissioner's records, which ar e 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 Schu ssels' income was grossly under reported
. The b oard's findings were supported by ample evidence and, thus, c annot be described as "meager." See General Mills, I nc . v . Commissioner of Rev ., 440 Mass
. at 161
. The b oard's decision was not arbitrary or capricious, nor20

does it give rise to any other error of law
. Therefore , we uphold the b oard's ruling that "t he 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, p art VI, the c ommissioner did not err in disregarding the look

- back period and as sessing the Schussels accordingly. Conclusion
. The b oard's decision, upholding the

c ommissioner'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 arbitra ry or capricious
. Furthermore, the Schussels cannot escape liability on the ground that the seven

- year look

- back period precluded the c ommissioner from issuing assessments
. The Schussels' fraud brought them within an exception to the limitation period, allowing the

c ommissioner to disregard the look

- back policy
. Thus, we affirm the d ecision of the Appellate Tax Board
. So ordered
.