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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 January 9, 2020 (covering DTA cases issued January 2)

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I apologize for the extended length of last week’s offerings. Two of the cases were heavy lifts. As much as we strive for pithiness, every once in a while we must sacrifice conciseness for completeness. Not to worry: I am back at the helm this week with two quick-hitters (a determination and an order), one of which is a timy.  


Matter of Alston; Judge: Russo; Division’s Rep: Kathleen Korycinski; Taxpayer’s Rep: pro se; Article 22 and Tax Law § 171-v Driver License Suspension (by Chris Doyle). 

The petition challenged both a Notice of Deficiency and a 60-day Notice of Proposed Driver License Suspension. The Division moved to dismiss on timeliness grounds. This is, I guess, the sequel to the July 18, 2019 Order by Judge Russo denying the Division’s motion to dismiss because the Division failed to prove mailing due to the fact that the certified mailing record had unexplained conflicting postmarks. You can read about that order here

After the Judge’s Order was issued, the Division moved for summary determination on timeliness grounds. Petitioner did not respond, thereby conceding there were no triable issues of fact. The Judge found that the Division had proven both its standard mailing practices and that they were followed to mail both the Notice of Deficiency and the 60-day Notice of Proposed Driver License Suspension to Petitioner’s last known address. Since the Petition was mailed more than 90 days after the mailing of the Notice of Deficiency and more than 60 days after the mailing of the 60-day Notice of Proposed Driver License Suspension, Judge Russo granted summary determination in favor of the Division.


Matters of Scarfi and Metro Enterprises Corp.; Judge: Russo; Division’s Rep: Osborne Jack; Taxpayer’s Rep: Alvan Bobrow; Articles 28 and 29 (by Chris Doyle).  

According to the Order, Petitioner moved to: (1) reopen the record and reargue, (2) recuse the Division’s counsel, and (3) correct the hearing transcript. Judge Russo denied the first two requests and granted the third. I am “Joe Friday-ing” (“If you please ma’am, nothing but the facts”) this summary.

The motion requesting that the record be reopened and the case reargued is interesting from a process standpoint. The Judge noted that the regulations require such a motion be filed within thirty days after a determination has been served. Since no determination had yet been issued in this matter, the Judge found that the motion to reopen/reargue was too early. That’s a timy of a different color!

The motion to recuse Division’s counsel was based on Petitioner’s allegation that the Division’s counsel became an essential fact witness as a result of his filing a declaration in a federal civil court case. The determination doesn’t explain what was in the declaration, but I expect it is the same declaration described in Matter of Capeci et. al , an order related to which may be found here (and our write-up of that order here). The Judge denied this motion, finding Petitioner’s argument to be without merit because (1) the taxpayer involved in the federal civil court case was not Petitioner; (2) Division’s counsel had not been called to testify at the hearing; and (3) it is common practice for attorneys to submit declarations in support of motions in federal civil court cases.

The Judge did, however, agree to correct the transcript.

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