TiNY Report for August 30, 2018 (covering DTA cases issued August 23)

This week:  2 ALJ Determinations and 2 Orders.  Nothing from the Tribunal (at least not as of this writing).  All the matters involve a timeliness issue in one form or another.  You know our feelings on timeliness cases, and you can imagine we were not very entertained when reading these.  Thus, you’ll understand if this report is somewhat more bereft of humor than our usual offerings. 

Oh, and Judge Gardiner gets our “Portraits in Courage” award for dealing with three of these clunkers in one week.

DETERMINATIONS

Matter of Lin; Judge: Law; Division’s Rep: Melanie Spaulding; Taxpayer’s Rep: Steve Niu; Articles 28 and 29.  The Division proved it mailed the Notice of Determination to Petitioner’s last known address.  Petitioner mailed the BCMS request 6 months after the Notice was issued, which was past the 90-day deadline to file.  The Judge dismissed the BCMS request as untimely filed. (click)

Matter of Mostovoi; Judge: Gardiner; Division’s Rep: Michele Milavec; Taxpayer’s Rep: pro se; Article 22.  A Notice of Deficiency was previously issued to Petitioner, which Petitioner protested and lost.  Petitioner appealed that Determination, and the Tribunal affirmed.  Petitioner then filed a DTA petition protesting a consolidated statement of tax liabilities.  The assessment number on the original Notice that had been protested was the same as that on the consolidated statement of tax liabilities.  A year later, the Supervising ALJ issued a Notice of Intent to Dismiss based on the DTA’s lack of jurisdiction over the petition.  The Judge held that the copy of the consolidated statement of tax liabilities was not the type of statutory notice granting the DTA jurisdiction over the matter.  The Judge also held that, because Petitioner previously protested the Notice and the liability had already been subject to DTA adjudication, Petitioner had exhausted the pre-payment options and the case was dismissed. (click)

ORDERS

Matter of Kalinsky; Judge: Gardiner; Division’s Rep: Peter Ostwald; Taxpayer’s Rep: unknown; Article 22.  Petitioner filed a DTA petition protesting both a Notice and Demand and a Notice of Deficiency.  Notices and Demands are not the type of statutory notices which grant the DTA jurisdiction over a matter (I think I am identifying a theme).  With respect to the Notice of Deficiency, Petitioner conceded he did not timely file his petition.  However, the Division conceded it had no proof of mailing the Notice.  So, the Judge held Petitioner had a right to a hearing on the Notice of Deficiency.  (CLICK)

Matter of Ranieri; Judge: Gardiner; Division’s Rep: Christopher O’Brien; Taxpayer’s Rep: unknown; Article 22.  Petitioner was issued four assessments for the 2000-2003 tax years (the “original assessments”).  Petitioner thereafter filed her NY returns for the 2000-2003 years without payment, the original assessments were canceled, and four new Notices and Demand (the “subsequent assessments”) were issued for the late-filed, non-payment returns.  All eight assessments (the four original and four subsequent assessments) were reflected on a Statement of Consolidated Tax Liabilities Petitioner submitted with her petition.  Petitioner filed a DTA petition protesting the initial four assessments.  Attached to the petition was the Consolidated Statement of Tax Liabilities that set forth 10 assessment numbers, including the eight notice numbers described above.  The Division submitted an updated Consolidated Statement of Tax Liabilities.  The Judge determined the initial four assessments were no longer at issue because they had been canceled with a zero balance.  With respect to three of the four Notices and Demand reflected in the subsequent assessments, the Judge determined they could not be protested since taxpayers can’t protest Notices and Demand (see above).  However, based on a review of the updated Consolidated Statement of Tax Liabilities, the Judge held the Notice and Demand for the 2000 year was no longer a Notice and Demand because it was listed as a Notice that was “not yet subject to collection.”  The balance due for that assessment was also shown as zero on the updated consolidated statement of liabilities.  As there was not enough information in the record regarding the Notice and Demand for 2000, the Judge held she could not dismiss the case with respect to that assessment.  The Division was directed to file its answer.  (BANG!)

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