TiNY Report for August 20, 2020 (reporting on DTA cases issued August 13)

There are just two ALJ orders and a Determination this week. Even with the light output we are a few days late publishing. And this is totally the senior editor’s fault (who is writing here) as I was helping my son change his domicile from the City to Miami, FL. “The City” in this instance is Bethesda, MD. So there is no need for my friends at the Division to investigate further. But as a consequence of rendering assistance to my son, I am now compelled to quarantine in my home for the next several days. As it turns out, my quarantining is just like my non-quarantining: I spend my days in the living room with my computer and two monitors talking taxes with people on the phone.

In any event, I will try to get these out to our twelve regular readers more promptly in the future.

DETERMINATION

Matter of Cilione; Judge Gardiner; Division’s Rep.: Mary Humphrey; Taxpayer’s Rep.: pro se; Articles 28 and 29 (by Emma Savino)

Judge Gardiner found that the Division proved both its standard mailing practices and that they were followed when it mailed the notice at issue to Petitioner’s last known address on November 14, 2018. Petitioner’s petition filed on July 17, 2019, was therefore late. Accordingly, the Judge granted the Division’s motion to dismiss.

ORDERS

Matter of Feinstein and Lioliou; Judge Connolly; Division’s Rep.: Hannelore Smith; Taxpayers’ Rep.: Danette Montanaro; Article 22 and Tax Law § 171-v Driver License Suspension (by Emma Savino)

Petitioners timely filed their petition challenging both the issuance of two Notices of Deficiency and a 60-day Notice of Proposed Driver License Suspension (“NOPDLS”). Petitioners had filed a BCMS request and received a conciliation order dismissing the request as untimely. The Division moved to dismiss the petition on timeliness grounds. Petitioner did not respond, thereby conceding there were no triable issues of fact. Judge Connolly found that the Division proved both its standard mailing practices and that they were followed when it mailed the Notices of Deficiency to Petitioners’ and their representative’s last known addresses on January 30, 2019. While the Division did not submit proof of the date of Petitioners’ filing of their BCMS request, the Judge determined that the affirmation of the Division’s representative was sufficient to establish that the request was filed in “June 2019”, and even using June 1, 2019, the request would have been late. Accordingly, the Judge granted the Division’s motion to dismiss with respect to the Notices of Deficiency.

As for the NOPDLS, the Judge found that the NOPDLS did not satisfy section 171-v’s requirements because the NOPDLS did not recite three of the eight enumerated grounds for protesting the notice. Because of this, the Judge determined that a material question of fact exists as to whether Petitioners were prejudiced by the defect in the NOPDLS, and accordingly denied the Division’s motion with respect to the NOPDLS.

Matter of Global Foundries U.S., Inc.; Judge Gardiner; Division’s Rep.: Bruce Lennard; Taxpayer’s Reps.: Glenn Newman and Harold Iselin; Article 9-A (by Emma Savino)

Petitioner filed a petition for a refund of Empire Zone Investment Tax Credits for 2012 and 2014 on February 19, 2019. The Division filed a motion for partial summary determination on the grounds that Petitioner’s claim for refund for the 2012 tax year was untimely. Petitioner asserted that an informal refund claim had been made prior to its formal claim, which was made by filing an amended CT-3 for the 2014 tax year on July 18, 2018. The Division claimed that the filing of the CT-3 was Petitioner’s first claim for a refund.

An informal refund claim has 3 elements:  (1) it must provide the taxing authority with notice that the taxpayer is asserting a right to a refund; (2) it must describe the legal and factual basis for the requested refund; and (3) it must have a written component. The determination of whether these element have been met is made on a case-by-case basis. Since there remained a question of fact as to whether Petitioner made an informal refund claim, the Judge denied the motion for partial summary determination and allowed this claim to go to formal hearing.

Comment