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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.  

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TiNY Report for July 13, 2017

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3 ALJ Determinations and 2 DTA orders.  Nothing from the Tribunal.


Matter of Bitefood, Ltd.; Judge Russo; Division’s Rep: Lori Antolick; Taxpayer’s Rep: Aaron Young; Articles 28 & 29.  Taxpayer did not timely file its DTA petition.  The Division sufficiently proved proper mailing procedures, that they were followed, and satisfied the “last known address” requirement.   The taxpayer’s DTA petition was filed outside of the 90-day time limit so the Judge dismissed the petition.

Matter of Garrison Protective Services, Inc.; Judge Law; Division’s Rep: Michael Hall; Taxpayer’s Rep: Charles Bogle and Brooke Anthony; Articles 28 & 29.  The issue in this case was whether a private entity was an agent of a New York governmental agency and whether its purchase of security services from the taxpayer was exempt from sales tax.  The Division argued the contractual language stated the private entity was an independent contractor, and thus couldn’t be an agent of the New York City Housing Authority (“NYCHA”), but the Judge held this did not preclude a finding of agency.  The Judge determined there was an agency relationship between the private entity and the  NYCHA because the record clearly established a fiduciary relationship as the NYCHA had a high degree of direction and control over the private entity.  Such as, the NYCHA had to approve almost everything the private entity did to fulfill its management responsibilities, and the Judge found the NYCHA was the true beneficiary of the tax exemption.  Though the Division asserted the security services were only ancillary to the private entity’s management responsibilities, the contracts between the private entity and the NYCHA included a provision providing for a security plan approved by the NYCHA for the health and welfare of the NYCHA’s tenants, employees, and property.  Thus, the security service was an integral part of the contracts.  The security services were also exempt from sales tax because they were purchased for resale from the private entity to the NYCHA.

Matter of Pons; Judge Friedman; Division’s Rep: Linda Jordan; Taxpayer’s Rep: Pro Se; Article 22.  Taxpayer’s petition challenging a Notice of Demand was dismissed because Notices of Demand can’t be challenged.


Matter of Doyle (no, not your favorite author of TiNY Report!); Judge Russo; Division’s Rep: Linda Jordan; Taxpayer’s Rep: Dean Nasca; Article 41.  The taxpayers were not entitled to an award of costs because their application was untimely filed outside of the 30-day limit after the final judgment in the action.  The Division also met its burden to prove it was justified in issuing the Notice of Deficiency because the taxpayers failed to respond to the Division’s requests.  The Judge noted the taxpayers claimed an excess amount of costs.  Additionally, the taxpayers did not establish their net worth was under $2 million at the time the action was filed as required by statute.

Matter of Zheng; Judge Russo; Division’s Rep: Mary Hurteau; Taxpayer’s Rep: Pro Se; Article 22.  The Division’s Notice of Intent to Dismiss petition was withdrawn.  The Division failed to establish its standard mailing procedures or that they were followed to mail the Relief From Joint Liability Determination to the taxpayer’s last known address.  The Division’s affidavits lacked description of the mailing procedures, there was no mailroom employee affidavit describing such procedures, the postmark on the CMR wasn’t legible (CMR is a certified mail record, used to verify something was mailed), and the Division failed to produce the supposed cover sheet usually sent with such notices.  The Judge held the absence of such mailing cover sheet raised a material issue of whether the Division’s mailing procedures were followed.  The Division also lacked sufficient evidence to prove the Notice was mailed to the taxpayer’s last known address.


In other news, the Division of Tax Appeals has updated and renumbered its forms.  A chart cross-referencing the old and new form numbers, along with each form PDF, can be found here:  Electronic filing not permitted.  All forms must contain an original signature and be filed by mail, authorized delivery service, or in person.  Here is a quick summary of the old and new forms:

Current Form #

Previous Form #





















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