Noonan’s Notes Blog is written by a team of Hodgson Russ tax attorneys led by the blog’s namesake, Tim Noonan. Noonan’s Notes Blog regularly provides analysis of and commentary on developments in the world of New York tax law.

New York State Tax Department Again Tries to Tackle Federal Issues

As I have often found in practice, these “federal tax audits” can be very difficult, in large part because New York tax auditors are generally not trained on federal tax issues. Thus, often when these issues arise, the questions and conclusions we hear from the auditors often are inconsistent with the general application of federal tax rules. Some of these issues came to a head in a Matter of Steve and Linda Horn, a recent decision issued our of New York’s Tax Appeals Tribunal case. The issue in that case was whether or not the taxpayers’ S corporation was engaged in for-profit businesses, thus allowing deductions for claimed losses against their New York taxable income. The taxpayers were successful both at the administrative law judge level and then at the Tribunal level. And the analysis of the 58‑page decision is fairly interesting, since it reads more like a federal tax case than a New York tax case. Overall, the taxpayer was able to establish that under applicable federal tax rules, the S corporation was engaged in appropriate for-profit activities and therefore all losses were allowed.

A couple of comments:

First, this certainly requires practitioners to develop a different skill set, if they do not already have it. Thankfully, though my practice is almost exclusively based on state and local issues, I am able to lean on my federal tax counterparts in the firm for assistance when these issues arise. I often find this gives us an advantage over the New York auditors who are usually only trained in New York taxes. This can be frustrating sometimes too, since we do not believe that the New York auditors are often on the right track on these federal tax issues. The Horn case could be a good example of that, where the right federal tax analysis prevailed.

Another interesting issue arises, however, if it turns out the Tax Department is correct. Does that mean the taxpayer has to immediately report the changes to the federal government? The answer, quite simply, is no. There is no “upstream” reporting of New York tax changes to the federal government. We are told that the Tax Department reports such changes to the IRS, but in practice we rarely, if ever, see the IRS following up on New York adjustments. So that is something to keep in mind as well.

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