TiNY Report for June 7, 2018 (covering DTA cases from May 31)

One ALJ Determination this week, by which one author of this blog was highly alarmed. . . at least initially.

Matter of Walzer; Judge: Russo; Division’s Rep:  Peter Ostwald; Taxpayer’s Rep:  pro se; Article 22.  The parties in this pro se residency case originally agreed to “submit” the case for a determination on the documents without a hearing.  However, a month before the deadline to submit documents and briefs to the Judge, the Division brought a motion for summary determination, and six months later the Judge issued a summary determination in favor of the Division.  Why would one of the TiNY authors think that weird?   The case involved whether Petitioner was a resident of New York State in 2008, and also involved the efficacy of his amended returns.  Summary determination can only be granted when there are NO questions of fact.  And residency is certainly a question of fact.  So, one of the TiNY authors (there’s only two, and Nara’s writing this, so it probably isn’t her) raised a concern that the Judge might have summarily ruled inappropriately *gasp!*.  The alarmed author (I won’t disclose his name, but it rhymes with “Chris”) rationalized that, if the case involves residency, and residency is an inherently fact-based inquiry, doesn’t that mean that the Judge should not have granted a motion for summary determination?  And was it inappropriate for the Division to move for summary determination after it had consented to submit the case?   Was the Division taking advantage of a poor, innocent pro se taxpayer?! 

Well, you can’t roll a bowling ball down the halls of this Firm without hitting a litigator (Note to self:  Suggest to Recruiting Committee that “litigator bowling” be one of our summer associate events).  So the TiNY author who doesn’t see government conspiracy around every corner (her name rhymes with “Nara”) consulted with a few of the litigators in our firm.  The litigators confirmed that there was nothing out of the ordinary here, and there was nothing improper about the Judge’s determination.  According to our litigators (1) a party can bring a motion for summary determination at any time after issue has been joined if the party is confident it can win on the motion (i.e. the party is reasonably certain it can show there are no issues of fact and it will prevail as a matter of law); and 2) a judge may not, sua sponte, make a determination that there are material issues of fact requiring a hearing in the absence of some showing by the non-moving party that there are such factual issues.  In short, to derail a summary determination motion the non-moving party must substantiate that there are issues of fact that need to be fleshed-out, or that the moving party hasn’t shown that it is entitled to judgement on the substantive legal issue—the judge cannot simply intuit that there are factual issues based on nothing more than the nature of the issue in the case.  Unfortunately, the Judge here found that Petitioner “failed to present any evidentiary proof” to refute that he was a New York resident for 2008, and did not present “any cogent or credible evidence to substantiate his claim. . .”  As a result, the Judge granted summary determination.    

So folks, this week’s mystery has been solved. . . *COUGH*  Someone was wrong, but it wasn’t Judge Russo.  It was the senior (actually very, very senior) TiNY author who was mistaken. *COUGH COUGH* . . . Editorially, I would like to put on the record that the senior author’s legal analysis is generally spot on and that he is a reputable TiNY author, SALT partner, and #1 Boss-of-the-Year in case anyone is looking for stuff to put in this TiNY author’s year-end associate review. . .

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