TiNY Report for August 25, 2023

**Editor's Note: You can now subscribe to Taxes in New York (TiNY) to ensure you never miss an update! To sign up, scroll down the TiNY website and click on the "Subscribe Here" link about halfway down the right side of the page.**

There are one order and six determinations to report here. In the aggregate the six determinations make up 18 pages of jurisprudence, and all six end with, “It is ORDERED, on the motion of the supervising administrative law judge, that the petition is dismissed with prejudice as of this date.” So … nothing much to see here. 

Something I have been wondering about for a while: Why are certain petition resolutions nominated as “Orders” while others are nominated as “Determinations”? I had assumed that Orders resolve procedural motions, and determinations resolve substantive issues. But a summary determination can resolve a timeliness issue, so my assumption cannot be correct. And all of the “Determinations” this week resolve motions brought by the Supervising Administrative Law Judge (“SALJ”). Is it that Orders resolve non-final matters and Determinations resolve matters that may then be escalated to the Tribunal? Does it even matter? 

For fun this week (since there was nothing fun about the six determinations), I applied my creativity to identify a few new euphemisms for “dismissed.”

The Order is interesting, so it is addressed first, below. Unfortunately, I cannot editorialize about it because it is one of ours and TiNY’s “Joe Friday” policy applies.

Order

Matter of 74 Wythe Restaurant Company, LLC, ALJ Taylor, August 17, 2023; Div’s Rep. Aliza Chase, Esq.; Pet’s Rep. Joseph Endres, Esq.; Articles 28 and 29.

The Division performed an audit and issued a Notice. Petitioner challenged the Notice in a BCMS Conference, but the Conferee sustained the Notice. Petitioner filed a Petition. The Division answered. Post-Answer, Petitioner filed a Demand for a Bill of Particulars, “requesting clarification of the statutory basis for the Division’s assessment … .” The Division made a motion to vacate the Demand, “alleging it [sought] evidentiary material and attorney work product rather than an amplification of its answer.” 

And for what questions did Petitioner’s Demand seek answers? 

1.  Is the Division’s position that Petitioner’s receipts at issue are taxable under Tax Law § 1105(d)?
2. Is the Division’s position that Petitioner’s receipts at issue are taxable under Tax Law § 1105(f)(1)?
3. Is the Division’s position that Petitioner’s receipts at issue are taxable under Tax Law § 1105(f)(3)?
4.  Is the Division’s position that Petitioner’s receipts are taxable under a provision of the Tax Law other than Tax Law § 1105(d), (f)(1), and (f)(3) and, if so, what other provisions?

Judge Taylor denied the Division’s motion, finding, “The Division has failed to explain how a request to identify the section or sections of the Tax Law that provide the basis for its rationale to assert sales tax constitutes seeking evidentiary material or attorney work product. … [And] The Division’s answer, left unamplified, falls far short of fully and completely advising Petitioner, or the Division of Tax Appeals for that matter, of its defense.”

If this were not one of our cases, I would have much to say about the conclusions that might be drawn from the Division’s unwillingness to provide the statutory basis for a Notice it issues asserting a liability. But since this is one of our cases, it’s “just the facts, ma’am.  Just the facts.” 

Determinations

Matter of Champen II, SALJ Gardiner, August 17, 2023; Div’s Rep. Daniel Schneider, Esq.; Pet’s Rep. pro se; no Tax Law Article listed (not a good look).

The petition lacked: a) A reference to the Tax Law article in controversy; b) A list of the years in controversy; and c) A copy of the statutory notice being challenged. The formal deficiencies were not cured by Petitioner even after a written request. So the Judge dismissed the case.

Matter of Hutchinson, SALJ Gardiner, August 17, 2023; Div’s Rep. James Passineau, Esq.; Pet’s Rep. pro se; no Tax Law Article listed (still not a good look).

The petition lacked a copy of the Notice or BCMS Order at issue. This deficiency was not cured by Petitioner even after a written request. So the Judge terminated the petition with extreme prejudice.

Matter of Khodjaev, SALJ Gardiner, August 17, 2023; Div’s Rep. Amanda Alteri, Esq.; Pet’s Rep. pro se; Article 22.

The petition was unsigned and lacked a copy of the Notice or BCMS Order at issue. This deficiency was not cured by Petitioner even after a written request. So the Judge introduced Petitioner to Mr. Champen and Ms. Hutchinson who were already sitting on the dismissal couch at the Omega House.

Matter of Kwit, SALJ Gardiner, August 17, 2023; Div’s Rep. Daniel Schneider, Esq.; Pet’s Rep. pro se; Article 22.

The petition lacked a copy of the Notice or BCMS Order at issue. This deficiency was not cured by Petitioner even after a written request. So the Judge, adopting an Austrian accent, shined Petitioner on with an “Hasta la vista, baby.”

Matter of Niazi, SALJ Gardiner, August 17, 2023; Div’s Rep. Brandon Batch, Esq.; Pet’s Rep. pro se; Articles 28 and 29.

The petition lacked a copy of the Notice or BCMS Order at issue. This deficiency was not cured by Petitioner even after a written request. So the Judge recognized Petitioner’s petition’s redundancy and then rightsized it.

Matter of SB Royal, Inc., SALJ Gardiner, August 17, 2023; Div’s Rep. Brendan Roche, Esq.; Pet’s Rep. pro se; Articles 28 and 29.

The petition was unsigned and lacked a copy of the Notice or BCMS Order at issue. These deficiencies were not cured by Petitioner following a written request. So the Judge relegated the case to the dismissed league.

Comment