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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 August 15, 2019 (reporting on a DTA Order issued August 8)

By on

As of this writing, there’s nothing posted by the Tribunal and the ALJs have posted only one Order.  Not only is it a “timy,” but it’s a timy-squared!

ALJ ORDER

Matter of Bruno; Judge: DiFiore; Division’s Rep: Colleen McMahon; Petitioners’ Rep.: Pro Se; Article 22. 

A timy-squared? What the heck is that? Read on!

The petitioners filed their petition on August 8, 2018. The petition protested: (1) a Notice of Deficiency dated February 24, 2014; (2) a Notice of Additional Tax Due dated January 31, 2018 and (3) a Notice and Demand dated March 12, 2018. Since the petition was filed well after the 90-day time limit had run on the Notice of Deficiency (timy to the first power), and the other two notices were not of a type that would have given the DTA jurisdiction, the DTA issued a Notice of Intent to Dismiss (“NOITD”). The deadline to respond to the NOITD was May 23, 2019. The petitioners never responded to the NOITD, but the Division responded via a courier-delivered submission received by the DTA one day too late on May 24.  Timy-squared! 

And what happens when there is a timy-squared? Is it like a Ghostbuster-esque crossing of the proton streams (“Try to imagine all life as you know it stopping instantaneously and every molecule in your body exploding at the speed of light”)? As it turns out, the result is not so dramatic. The judge dismissed the petition to the extent that it challenged the Notice of Additional Tax Due and the Notice and Demand since those notices don’t confer jurisdiction on the DTA.  The judge also refused to take into consideration the Division’s late-filed response, and let the petition go forward to the extent it challenged the Notice of Deficiency since the Division failed to prove that the Notice of Deficiency was properly mailed to the petitioners’ last known address.

I expect the Division will file its Answer and then make a motion for summary determination on timeliness grounds.

And TiNY takes this opportunity to welcome Judge DiFiore, since, we think, this is her first order or determination. Judge: We may, rarely, express disagreement with your decisions, and if we do, please do not take umbrage. Even though we don’t always say it, our critiques are always with due respect to the authority of the judges and commissioners before whom we appear and an appreciation for the good work that they do.

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