Taxes in New York (TiNY) is a blog by the Hodgson Russ LLP State and Local Tax Practice Group members Chris Doyle, Peter Calleri, and Zoe Peppas. The weekly reports are intended to go out every Tuesday after the New York State Division of Tax Appeals (DTA) publishes new ALJ Determinations and Tribunal Decisions. In addition to the weekly reports, TiNY may provide analysis of and commentary on other developments in the world of New York tax law.

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TiNY Report for February 12, 2024
NY state flag and the word TAXES made out of money

I am writing this on the day after “Super Sunday,” a day which for many Americans is “Mediocre Monday.” I read in the news that a poll indicated 17 million of us were planning to call in sick for work today, and I observed that the parking garage near my office was pretty empty this morning. Not me. I need to get out another edition of the TiNY report for my twelve or so loyal readers!

But before I get to the cases, let me make this pop culture observation: 2023’s Super Sunday commercials were much better than 2024’s. The 2024 Budweiser Clydesdale ad was pretty derivative, borrowing heavily from prior years’ efforts. And “Rudolph the Red Nosed Reindeer?”  Not a solid effort. And most of the other commercials seemed like an effort to vomit into my TV as many famous people as possible in a 45 second window. Along these lines, I thought the Dunkin’ ad was worthy of comment. I love watching J-Lo, Ben Affleck, and Matt Damon act. Heck, I’d be in heaven just watching them read me the instructions for programming my Roomba. But the Dunkin’ ensemble commercial didn’t resonate with me, and I was really turned off when Tom Brady was added to the mess.

And normally I’d feel the same lack of appreciation toward a commercial featuring Western New York native Rob Gronkowski (Tom Brady’s Travis Kelce) in the totally irrelevant “Kick of Destiny” field goal challenge … except that FanDuel nimbly tacked on a Happy-Gilmore-esque homage to Carl Weathers who was in the K-o-D teaser commercials, and who passed away on February 1. It was both wry and poignant, which are two words that I rarely use when describing TV commercials.

On the other hand, I thought Disney+’s commercial featuring some of the more iconic phrases from its video library was pretty classy. A plain white screen with text. No voice-over. Understated background music. And some of the best-known quotes in video-dom. It had me at “When you wish upon a star.” Of course, it may not rise to the level of “Typical timey. Typical result.” But not everyone has my ear for catchy phrasing.

The DTA batted for the cycle on February 8, posting a decision, a determination and an ALJ order.


Matter of Kofman (February 1, 2024); Div’s Rep. Peter Ostwald, Esq.; Pet’s Rep. pro se; Article 22.

A rare timey involving whether a Tribunal exception was filed within the required 30 days. Because (I guess) the Tribunal knows when the DTA mailed the determination to Petitioners, there were no affidavits needed to prove the DTA’s general process for mailing determinations and that they were followed in this instance. Instead, the Tribunal simply stated: “In this case, the Administrative Law Judge’s determination was properly mailed to petitioners by certified mail on April 20, 2023.” And then: “Therefore, an exception to the determination of the Administrative Law Judge, or an application for an extension of time to file an exception, was due to be filed on or before May 22, 2023. Petitioners’ exception was received by the Tribunal after this due date. Accordingly, its deemed filing date is the date of the USPS postmark stamped on its envelope, here May 23, 2023. Although late by only one day, this date is nonetheless beyond the 30-day deadline for filing an exception with the Tribunal.” (Citations omitted). I recall cases in which the Division was on the receiving end of a Tribunal timeliness beat-down. So, the Tribunal is harsh, but consistent, on the issue.


Matter of Goldenberg (ALJ Taylor, February 1, 2024); Div’s Rep. Michelle Milavec, Esq.; Pet’s Rep. Brian Ketcham, Esq.; Article 22.

Judge Taylor granted summary determination in favor of the Division, finding that Petitioner did not file a timely challenge to the Division’s refund denial. There is something hinky about the chronology in this case.

According to the Judge, Petitioners claimed a refund for their 2016 taxes of more than $100,000 on a personal income tax return filed July 15, 2020. Most of the claimed refund was based on refundable credits. Apparently, however, Doc Brown and a DeLorean were involved because on February 27, 2019, more than a year before the credits were claimed on a return, the Division issued an Account Adjustment Notice disallowing the credits (huh?). And then on March 1, 2021, The Division issued a Notice of Disallowance which disallowed the credits again. Following a Conciliation Conference sustaining the disallowance, Petitioners filed a timely petition, and the Division moved for summary determination.

The Judge found that Article 22 refunds are limited to the taxes paid within the three years preceding the filing of a refund claim plus any properly granted extensions for filing a return. Since, for 2016, the refundable credits would have been deemed to have accrued on April 15, 2017, the refund claim was required to have been filed no later than April 15, 2020.   

Petitioners argued that the April 15 deadline was extended by the Governor due to the pandemic, and cited to New York Executive Order No. 202.12, and an email thread between Petitioners and a Division employee asking for an extension of time to file the refund claim.

The Judge disagreed. And because the Judge is a judge, he gets the last word.

I remain confused about the genesis of the February 2019 Notice of Account Adjustment. In my experience, such Notices are only sent out in response to a filed return. But if there was a return filed prior to February 2019, it clearly would have been timely. So, I wonder if “2019” is a typo. If it is not a typo, then whether Petitioners filed a 2016 return prior to the one they filed in July 2020 is a question of fact and a hearing should be held to address it.   

ALJ Order

Matter of Noranjo (ALJ Baldwin, February 1, 2024); Div’s Rep. Adam Roberts, Esq.; Pet’s Rep. pro se; Articles 22, 28 and 29.

Apparently, Petitioner was not very good at filing and paying taxes for the businesses he owned, and maybe some other aspects of life. 

The Division issued a Notices and Demand numbers L-*****9237 on November 23, 2010, and L-*****4193 on March 22, 2013. Judge Baldwin determined that the DTA did not have jurisdiction to adjudicate the validity of those notices because the DTA’s jurisdiction is limited to addressing Notices of Deficiency and Notices of Determination. Since the DTA did not have jurisdiction over Notices and Demand, the Judge dismissed those claims.

The Division’s records also indicated that it had issued nine Notices of Deficiency for tax periods ranging from 2010 to 2014. These notices were due to the Division’s determination that Petitioner was a responsible office who willfully refrained from remitting income taxes for the employees of a few different businesses. And the Division issued two Notices of Estimated Determination for sales taxes. It may have been difficult for Petitioner to have been a de facto responsible officer for some of the later periods since he was in federal prison for six-plus years beginning March 14, 2013.

The Judge found that the Division proved its standard processes for mailing and that those processes were followed by the Division with respect to six of the Notices sent to Petitioner, and since the request for Conciliation Conference with respect to those notices was filed long after the 90-day deadline had passed, Judge Baldwin granted summary judgement in favor of the Division for those Notices.

However, strikeouts appearing in the certified mailing records (CMRs) used to record the mailing of five of the Notices were not explained to the satisfaction of the Judge, so the Judge ordered that the parties adjudicate the merits of those Notices in a formal hearing.  The strikeouts related to notices that were “pulled” from the batch prior to actual mailing. 

And then there was this conclusion of law: “Petitioner’s argument that he did not receive the notices because he was incarcerated when some of the notices were issued is of no avail. The 90-day period of limitations is not tolled for a period of incarceration.

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