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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.  

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TiNY Report for December 13, 2018 (covering DTA cases issued December 7)

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Just one Order from the Tribunal this week on which to write.  So we are embellishing this week’s TiNY Report with a joke and a pop-culture quiz.


Matter of Murphy; Division’s Rep: Brian McCann; Taxpayer’s Rep: Kathleen O’Connell; Article 22.  It is hard to resist the gravity of all these Irish names strung together.   So…Patrick Murphy, Kathleen Murphy, Brian McCann and Kathleen O’Connell are having a pint or two in an old Irish pub.  As their conversation at the bar wanes a voice softly says “Brian, that’s a handsome green blazer you’d be wearin’.  You look like you just won the Masters Golf Tournament.”  The bartender is far away, there is no one else in the bar and the four cannot identify the source of the voice.  After some brief exclamations, silence again envelops the group, and the unidentified voice murmurs “It is difficult to decide which Kathleen is the more beautiful.”   Again, there is no one in whisper-range, and the four react with confusion and fright.

The bartender, noticing the group’s disquietude, walks from the other end of the bar and asks “Is there a problem?”  Patrick explains about the disembodied voice and asks if the pub is haunted.  Pointing down at a bowl on the bar the bartender replies: “No.  That’s just the peanuts.  They’re complimentary.”

The Division was not complimenting the Tribunal after this Order.  In a prior Decision, the Tribunal ruled that the Division could not challenge the ERISA-qualification of an employee stock ownership plan (ESOP) established for the benefit of Petitioners.  The Tribunal found that both it and the Division were preempted by ERISA from addressing the question of whether the ESOP was a trust qualified under Code § 401(a).  The Division filed a motion to reargue. 

In denying the Division’s motion, the Tribunal recognized that reargument is “designed to afford a party an opportunity to establish that [the Tribunal] overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law.”  But it is not intended to allow new arguments to be made. The Tribunal found that the Division was primarily posing new arguments in its motion.  And, with a nod to its obligation to provide final decisions, denied the motion.  

The Decision was a little reminiscent of the following monolog: “’I strenuously object!’  Is that how it’s done?  Hmmm?  ‘Objection Your Honor!’  ‘Overruled’  ‘No, no, no…I STRENUOUSLY OBJECT.’  'Oh! You strenuously object.  Then I’ll take some time to reconsider.’”  Can you guess the play/movie?

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