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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.  

TiNY Report for April 13, 2017

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Surprisingly, DTA posted early this week.  Five determinations, one TAT decision, one DTA order.

DETERMINATIONS:

Matter of Abramowitz; Judge Friedman; Article 22.  The taxpayer protested a notice and demand.  Taxpayers can’t protest notice and demands, so on the supervising ALJ’s own motion the taxpayer’s petition was dismissed.

Matter of Mostovoi; Judge Friedman; Article 7 of the Real Property Tax Law.  The taxpayer petitioned seeking a refund of a STAR property tax exemption, but DTA has no jurisdiction over such matters so the petition was dismissed on the supervising ALJ’s own motion.

Matter of Guru Kirpa Corporation; Judge Bennett; Division’s Rep: Justine Clarke Caplan; Taxpayer’s Rep: Pro se; Articles 28 and 29.  The case was dismissed on timeliness grounds.  The Division adequately proved proper mailing to the taxpayer’s last known address (even without the usual Peltier affidavit).

Matter of Tuohy; Judge Russo; Division’s Rep: Christopher O’Brien; Taxpayer’s Rep: Pro se; Article 22.  The case was dismissed on timeliness grounds.  The Division had a slight hiccup in proving proper mailing, due to things like an incomplete CMR (Certified Record of Presort Mail-Assessments Receivable), however, it was able to prove proper mailing with other evidence.  It helps when the taxpayer admits he received the notice.  

Matter of Munjal; Judge Friedman; Division’s Rep: Hannelore Smith; Taxpayer’s Rep: Anthony LoBiondo; Article 8 § 171-v.  Notice of proposed driver license suspension was sustained.  The taxpayer was issued a notice of determination as a responsible person for a company (for which a timely challenge was not made), and later was issued a consolidated statement of tax liabilities.  Prior to this case the taxpayer was the subject of a criminal tax investigation with regard to unpaid sales tax by the company, a result of which was an order consenting to the forfeiture of some $57K, which was seized as part of the criminal matter.  The taxpayer argued first that he was not the taxpayer that owed the tax, but the Judge disagreed and found the notice of determination was issued to the taxpayer himself and became fixed and final because there was no timely challenge.  The taxpayer also argued the tax due was satisfied by the forfeiture agreement and so the license suspension notice was cancelled.  However, the Judge found the notice asserted penalties and interest, which weren’t challenged or paid, and the forfeiture was a criminal sanction and not for a civil liability including penalties and interest.   

DECISIONS:

Matter of Rubinos; TAT; Division’s Rep: Christopher O’Brien; Taxpayer’s Rep: Pro se; Article 22.  The case was dismissed on timeliness grounds.  The taxpayer admitted filing her BCMS request late, but argued she relied on her accountant to timely file it.  The Tribunal affirmed the ALJ’s decision, finding the Division adequately proved proper mailing, and although the notice was actually received later than the date asserted the BCMS request was still not timely filed.  The Tribunal noted the taxpayer couldn’t alleviate her responsibility to timely file by blaming her accountant.

ORDERS:

Matter of Palter; Judge Bennett; Division’s Rep: Howard Beyer; Taxpayer’s Rep: Pro se; Articles 28 and 29.  This one is interesting.  A notice of intent to dismiss taxpayer’s DTA petition was withdrawn due to triable issues of fact.  The taxpayer, (who, contrary to the captions of the case, is Sonya Keyser) filed a DTA petition on September 29 to review a conciliation order allegedly issued to her on June 24 (more than 90 days prior).  The taxpayer separately sent a letter to BCMS on September 16  (i.e. within the 90 days) indicating a desire to challenge the conciliation order.  Although the taxpayer did not file her petition until after the statutory 90 days expired, Judge Bennett found there was a triable issue of fact due to the Division’s evidence submitted to establish its mailing procedures had been followed.  The conciliation order was mailed to a “Sonya Palter” at the taxpayer’s Staten Island address, but only a “Sonya Keyser” was known to live there.  “Palter” was the taxpayer’s maiden name.  The taxpayer had been married for 16 years and only went by and resided under “Keyser” at the Staten Island address, where she had lived for 11 years.  The Judge found that mailing the conciliation order to an address where the taxpayer never resided under the name it was addressed to raised a material fact as to the last-known-address issue.  Additionally, the Judge found that the taxpayer’s letter to BCMS might be a timely protest to the conciliation order (which was within the 90 days), and this also raised a material and triable issue of fact as it was correspondence that appeared to make a timely protest. 

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