On Thursday, November 13, 2025, the New York State Bar Association’s Tax Section put together a one-hour panel event focused on discussing the “Practice and Procedure” of adjudicating tax disputes in New York. We listened in and thought you’d like to hear about it! The panel covered three areas:
- Discussion of Division of Tax Appeals petitions, procedure, and hearings.
- The filing of an exception with the Tax Appeals Tribunal and its procedure.
- A Q&A discussion, fielding some questions from the audience.
If you weren’t able to attend—or if you did, but want a review anyway—here are the notes on how the event went and what was discussed.
The event’s agenda states that it was “designed for taxpayers’ counsels and representatives to provide unique insights into how such proceedings are adjudicated, from the initial petitioner through to ALJ determinations and ultimate TAT decision.” The unique insights were provided by an esteemed group of panelists: all three commissioners of the Tax Appeals Tribunal (President Jonathan S. Kaiman, Kevin A. Cahill, and Cynthia M. Monaco), along with Supervising Administrative Law Judge Donna M. Gardiner, and the Secretary of the Tribunal, Richard B. Ancowitz.
After the introduction of the commissioners, Judge Gardiner provided a detailed description of the procedures for filing a petition and explained how the process works thereafter. Here’s a summary:
- In order to file a petition, the taxpayer must have a written notice advising them of a tax deficiency, a determination of tax due, or a denial of a refund or credit application.
- A filed petition is processed by the Petition Intake Unit of the Division of Tax Appeals, who issue an acknowledgement letter and then sends the petition to the Department of Taxation and Finance (DTF), where a member of their Office of Counsel files and serves an answer, which is due within 75 days.
- Once the answer is filed, the matter proceeds to the Hearing Support Unit, where the Chief Clerk sends out a case assignment letter which provides the ALJ selection and the date of the first pre-hearing conference. At this conference a hearing date is set and the parties are given an opportunity to focus on the exact issue. They are required to provide a hearing memorandum within 10 days of the hearing, where they list what witnesses are to be called and what documents are to be introduced into evidence.
- The hearing itself proceeds in the following steps: First, DTF begins by entering the jurisdictional documents into evidence and then stating the issue or issues before the ALJ. Next, the taxpayer may either agree with the statement of issues or reframe the issues from their perspective. Then, whichever side has the burden of proof (most often the taxpayer) will begin by presenting their case, including calling witnesses to testify and introducing documents into evidence. Once one side concludes, the other side presents its case. After the presentation of both sides, the ALJ will go off the record and set up a deadline for briefs. Once the presentation of evidence closes, a party cannot rely on something not contained in the record later on. After the last brief is filed, the ALJ has six months to render their determination.
After Judge Gardiner presented on the Division of Tax Appeals process, she briefly discussed small claim proceedings, explaining that these are venues for tax disputes that are under a certain threshold. The main differences are that small claim proceedings are overseen by a presiding officer, the proceedings are recorded but no written transcript is available, the presiding officer has three months to render a determination, and, most importantly, all small claim determinations are final and binding—meaning there is no ability for an appeal or further review.
The next section of the program was presented by Mr. Ancowitz, who discussed the appeal process. He began by outlining the statutory provisions of tax appeals, found in Tax Law § 2000 et seq., and the rules of the Tribunal, found in 20 NYCRR 3000 et seq. The process of appealing a determination is, he outlined, as follows:
- The process begins with the filing of a document called an exception, which is analogous to a notice of appeal. The exception is a jurisdictional document that, with or without proper filing, closes off the Tribunal from reviewing the matter. It was emphasized that this document must be filled out with the specifics of what is being challenged in the determination.
- After the filing of an exception, there is a briefing process, which is started by the party (usually the taxpayer) who is seeking the exception. The opposing party (usually DTA) then files a response. Finally, the exception-seeker files a reply.
- The party seeking an exception then has the ability to seek oral arguments. If oral arguments are sought, each party gets 15 minutes to make their presentations, and the party that brought the exception has the option to reserve up to five minutes for a reply.
- The Tribunal has six months to issue a decision, which is measured from the date of oral arguments, if they were held, or, if they were not held, from the date of the last brief’s filing.
Mr. Ancowitz additionally discussed the limitations of the Tribunal—only considering the matters that are contained in the record below. Parties are not able to advance other, or new, issues. He, as Tribunal Secretary, also pointed out that making specific references to focus the Tribunal on why the ALJ’s determination was in error or what the legal arguments are is good practice when drafting and filing briefs.
There are three other aspects that Mr. Ancowitz touched on before turning to the Q&A portion of the program. First, he discussed a recent amendment that allowed anyone over the age of 18 to represent another person, as long as a proper power of attorney was filed. Second, he mentioned the next step in the appeal process, if review of the Tribunal’s decision is sought. This is by following CPLR Article 78 (along with Tax Law § 2016) to have an appellate division of the Supreme Court review the matter. Third, and finally, Mr. Ancowitz stated that he is in the process of assembling an advisory panel to consider updates and modernizations to the current rules of practice and procedure.
The final part of the event was a Q&A session, during which questions were submitted by audience members. At the outset of the program, it was mentioned that the audience should not submit questions dealing with substantive issues, but rather just questions regarding practice and procedure.
Q: Do the ALJs find that the audit has been taking an increasingly aggressive position and interpretation on sales tax, especially in the issue of capital improvements?
The answer by Judge Gardiner was that, while not specifically able to answer this question, she believes that auditors often read the tax law and regulations in black and white, unable to provide discretion. She continued by stating that: if the taxpayer (not the taxpayer’s representative) takes an opportunity to have a discussion with the auditor, it is often helpful and can provide a more accurate picture to them.
Q: Whether rules regarding discovery might be added or considered during the new review?
Mr. Ancowitz answered this one. Although he was unsure exactly what discovery rules might be up for consideration, he provided that anyone should feel free to email the Secretary’s office to either ask about being on the advisory panel or to provide suggestions regarding new rules. The question was followed up with another one focused on WebEx and virtual depositions, which, without more context, was difficult to answer, said Judge Gardiner.
Q: What is the best way for current law students to gain experience if they are interested in tax disputes and controversies?
Judge Gardiner stated that obtaining a job with a private firm specializing in state and local tax issues is likely a great way to gain some critical experience. Additionally, she stated that both the Office of Counsel and the Department of Tax Appeals have tax law student interns.
Q: Commissioner Monaco posed a question to Mr. Ancowitz regarding best practices in filing an exception?
He answered that following the process and not letting an exception take on a life of its own is best, reiterating his earlier comments about being concise and not objecting to everything under the sun. Instead, focus the Tribunal on what the real issues are and tie that to specific references to the record below as the basis for the objection. Commissioner Monaco added that she particularly thinks it is a good practice to ensure that your brief and exception match each other.
The program did exactly as advertised: discussing practice and procedure from an original petition filing all the way up to an Article 78 petition.
Disclaimer:
This blog is a form of attorney advertising. Hodgson Russ LLP provides this information as a service to its clients and other readers for educational purposes only. Nothing in this blog should be construed as, or relied upon, as legal advice or as creating a lawyer-client relationship.
