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State and Local Tax Blog

About This Blog

Taxes in New York (TiNY) is a blog by the Hodgson Russ LLP State and Local Tax Practice Group. The weekly reports are intended to go out within 24 hours of the Division of Tax Appeals’ (DTA) publication of 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.  

TiNY Report for January 16, 2020 (covering DTA cases issued January 9)

This week we have a handful of sales tax cases, much to Joe’s delight. Since some of them are less-than-exciting timies, we decided to let him off easy and spread the cases around this week, so you’ll get a bit from each of us. Unlike Joe (did we tell you that he likes sales tax . . . a lot?), we expect you’ll be able to contain your enthusiasm.

Also, from the DTA’s website:

“This year, Roberta Moseley Nero [President of the Tax Appeals Tribunal] received the Lawrence L. Lasser award in recognition of outstanding service to the National Conference of State Tax Judges at its annual meeting of state tax judges and tax tribunal members. This meeting is sponsored by the Lincoln Institute of Land Policy, a nonprofit organization that seeks to improve quality of life through the effective use, taxation, and stewardship of land. The award is named for Lawrence L. (Larry) Lasser, the first Presiding Judge of the Tax Court of New Jersey and one of the founders of the National Conference of State Tax Judges.”

Congratulations President Mosely Nero!

TiNY Report for January 9, 2020 (covering DTA cases issued January 2)

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I apologize for the extended length of last week’s offerings. Two of the cases were heavy lifts. As much as we strive for pithiness, every once in a while we must sacrifice conciseness for completeness. Not to worry: I am back at the helm this week with two quick-hitters (a determination and an order), one of which is a timy.  

TiNY Report for January 2, 2020 (covering DTA cases issued December 17 and 24)

Happy New Year TiNY readers! Not only has the year changed, but there are a few changes going on here at TiNY as well. You may have noticed a byline on the posts for the last few weeks and wondered what that was all about. Well, TiNY has added a new author to the mix, our own Joe Endres, to report on sales tax cases, and today is his debut!

TiNY Report for December 26, 2019 (covering DTA cases issued December 19)

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The Christmas Eve Massacre of 2019

'Twas the day before Christmas, sitting in my desk chair

I booted-up my computer to see what was there.

I logged onto Explorer and the DTA site,

Did the Tribunal post something on which I might write?

I found nothing from the Tribunal to mock or to praise.

But there were early postings from four ALJs!

And the quality of the rulings was better than usual,

With issues substantive and sometimes Constitutional.

In skimming the wisdom of unbiased fact-weighers

The sentiments expressed seemed anti-taxpayer

So I dutifully read and scoured each one

And now observe with confidence: No Petitioner won . . .

TiNY Report for December 19, 2019 (reporting on DTA cases issued December 12)

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I’m going out on a limb here, but I’m guessing that the DTA will not be issuing any cases next week because of the holiday – I may end up eating my words like I did after Thanksgiving. But as we gear up for the holidays, I thought it would be appropriate to do a holiday movie quote after each case - which may or may not be relevant or typical quotes you think of when you think holiday movie.

TiNY Report for December 12, 2019 (reporting on DTA cases issued December 5)

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There are three determinations and three orders this week.  But first, this rant:

The longer I do this tax thing, the more I appreciate the fine line state legislatures must walk.  Unlike the federal government, states typically are not permitted to “deficit spend.”  So for every dollar that goes out the door during a state’s fiscal year, a dollar has to come in the door.  In times of economic malaise, finding those dollars can be difficult.  And finding dollars became more difficult when the first President Bush said “read my lips,” making increases in tax rates and new taxes an easy target for every self-proclaimed fiscally conservative candidate, with a consequence of making it more difficult for career law-writers to raise tax rates.  So legislatures reach for gimmicks, and tax administrators stretch interpretations, all in the service of their state’s fiscal volcano whose growing hunger is assuaged—not by an increasing number of virgins—but instead by larger dump trucks of dollars. 

And while I appreciate the difficulty of legislating taxes, there are constant reminders of when it has been done poorly.  Cases in point:  Two of this week’s determinations consider the tobacco products tax under Tax Law Article 20.  New York has a slew of special taxes and tax compliance procedures applicable to the tobacco/cigarette industry.  Even if they were well-intentioned, these special laws have, I posit, the unintended consequence of fomenting illegal activity.  I can imagine you groaning “Lighten up-Francis.*  Surely you don’t mean that taxes create crime.”  But that is exactly what I mean.  Any time a state, through targeted taxes, makes a product two times more expensive when purchased in-state than when purchased in the surrounding states, profit-maximizing ne’er-do-wells are going to crank-up illegal smuggling activities.  In New York, think cigarettes.  In California, think gasoline.

Along the same lines, laws that make compliance more complex, expensive, and/or difficult discourage compliance.  No surprise there.

I don’t applaud or encourage illegal behavior.  But when a legislature enacts (or perpetuates) laws which make the economics (or the compliance environment) of a situation so lopsided as to discourage legal behavior, the causal relationship should be acknowledged.

And now, back to our regularly-scheduled programming.

* Meme from “Stripes” (1981).  Google it.

TiNY Report for December 5, 2019

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We are easing into the holiday season here, which is to say that we are trying to get as many things as humanly possible wrapped-up so we may better address the inevitable year-end client emergencies. The DTA is being a team player by not posting many decisions/determinations/orders. Indeed, there is nothing new on the DTA’s website as of this writing. That said, we’ll check the DTA’s website over the next few days to make sure it didn’t pull the old switcheroo on us and decide to start posting on Fridays.

This week is an ideal time to repost our “Disclaimer.” A link to our Disclaimer is always at the bottom of our TiNY webpage, but we expect it is rarely read. So, during slow news weeks like this, we sometimes post the Disclaimer so all of our readers understand TiNY’s limitations. In short: You shouldn’t rely on TiNY Reports for anything other than a quick overview of the cases addressed.

TiNY Report for December 2, 2019 (reporting on DTA cases issued November 21)

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Apparently the DTA doesn’t take Black Friday off.  Our office was closed that day, and I am Thankful for that (see what I did there?).  But the DTA was open for business, and, after a week without any cases, it posted five determinations on Friday. So, assuming the DTA posts cases on Thursday, you’ll get a double-dose of TiNY this week.  The Pilgrims should have had it so good!

TiNY Report for November 14, 2019 (reporting on DTA cases issued November 7)

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There’s a Decision this week that suggests that we often think the same way as the Tribunal. This is rewarding in many respects. First, it suggests that we can empathize with the Tribunal and the decisions it offers and thereby give our readers and clients better insight. It also suggests that the Tribunal members sometimes think like we think. Good times!

TiNY Report for November 7, 2019 (reporting on DTA cases issued October 31)

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After the almost 80 page determination last week, I think the DTA decided to take it easy this week, so we just have one determination. On the plus side, it’s not a timy and the petitioner prevailed.