Application for abatement; hearing; notice of decision

Section 37. Any 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, on a form approved by the commissioner, for an abatement thereof at any time:

# (1)

within 3 years from the date of filing of the return, taking into account paragraph (a) of section 79;

# (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; provided, however, that where the commissioner and the taxpayer have agreed to extend the period for assessment of a tax pursuant to section 27, the period for abatement or for abating such tax shall not expire prior to the expiration period within which an assessment may be made pursuant to such agreement or any extension thereof; and provided further that any abatement that would result in a refund of tax, including a credit of such refund against another liability, is subject to section 36 to the extent of such refund or credit. The applicant shall, at the time of filing its abatement application, include and attach to it all supporting information, documents, explanations, arguments and authorities that will reasonably enable the commissioner to determine whether the applicant is entitled to the abatement requested. The applicant shall not be considered to have submitted a completed written abatement application until the date on which all such information reasonably requested from the applicant and reasonably necessary for a decision has been furnished to the commissioner. If the commissioner has made a written request to the applicant for additional information, not then contained in the taxpayer's pending abatement application, and the applicant fails to provide such information within 30 days after such request, or within any extended period allowed by the commissioner, that application shall be considered incomplete and shall be denied without prejudice to its timely renewal. The commissioner shall give such applicant written notice that the denial is based upon the lack of sufficient information to grant the taxpayer's abatement application. In a case in which the commissioner has denied an abatement application based upon incomplete supporting information, no interest under section 40 shall begin to accrue upon any such claim which is appealed to the appellate tax board or to a probate court under section 39 before the date on which a decision on such claim on the merits is rendered by the board or court in favor of the taxpayer. The commissioner shall, if requested, give the applicant a hearing upon his application; and if the commissioner finds that the tax is excessive in amount or illegal, he shall abate the tax, in whole or in part, accordingly. The commissioner shall give notice to the applicant of his decision upon the application. The commissioner shall, if requested, give the applicant a hearing upon his application if the applicant has not already had a pre-assessment hearing under subsection (b) of section 26; unless the applicant first establishes to the satisfaction of the commissioner that a further hearing is necessary either due to the availability of new factual information or new legal precedent not available to the applicant at the time of the conference permitted under said subsection (b) of said section 26; and if the commissioner finds that the tax is excessive in amount or illegal, he shall abate the tax, in whole or in part, accordingly. The commissioner shall give notice to the applicant of his decision upon the application. If such person is an operator as defined in section 1 of chapter 64G, a vendor as defined in section 1 of chapter 64H or section 1 of chapter 64I or a direct broadcast satellite service provider as defined in section 1 of chapter 64M who has collected such tax, no actual refund of money shall be made to such person until he establishes to the satisfaction of the commissioner, under such regulations as the commissioner may prescribe, that he has repaid to the purchaser the amount for which the application for refund is made. In the case of a combined report filed pursuant to section 32B of chapter 63, the principal reporting corporation may act under this section as the agent for any and all corporations that participated in or were required to participate in such filing. In the case of such combined report, the commissioner may offset against an abatement with respect to such corporation, as determined by the commissioner under this section, additional excise that is due or determined to be due under said chapter 63 from any corporation that participated in or was required to participate in the combined report filing, whether that additional excise due may result from the application of the income or non-income measures of the corporate excise or to the minimum excise tax and whether or not the additional tax is based on issues related to the abatement. Offsets based on issues unrelated to the abatement may reduce or eliminate such abatement, but in no case shall such offset give rise to a net amount of tax due where an assessment would otherwise be barred as untimely.

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