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State and Local Tax Blog

About This Blog

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.  

TiNY Report for July 2, 2020 (reporting on DTA cases issued June 25)

By on

Pretty small output from the DTA this week, but maybe that’s just the DTA’s present to us (well, me) before a long weekend.

From all your authors at TiNY, we hope everyone has a safe and socially distant Fourth of July Weekend!

DETERMINATIONS

Matters of Hejaji; Judge Connolly; Division’s Rep: Michele Milavec; Taxpayer’s Rep: pro se; Article 22 (by Emma Savino)

The Division issued Petitioner a Notice of Deficiency dated November 6, 2018. Petitioner filed his request for conciliation conference on August 5, 2019. BCMS issued an order dismissing the request as untimely. Petitioner then filed a timely petition. Despite the slight differences in the spelling of Petitioner’s last name on the Notice (Alhejaji instead of Al Hejaji), the Judge found that the Division proved both its standard procedures and that they were followed when it mailed the Notice to Petitioner’s last known address on November 6, 2018. So, the Judge sustained the dismissal of Petitioner’s request for conciliation conference as untimely. 

Matters of Gerwitz; Judge Connolly; Division’s Rep: Karry Culihan; Taxpayers’ Rep: Yussie Steier; Article 22 and Tax Law § 171-v Driver License Suspension (by Emma Savino)

The Gerwitz determinations are boomerangs, both having been before the DTA previously on motions to dismiss that were partially granted and partially denied (our summary of “round 1” may be found here). Petitioners were previously married – hence the two determinations. Since the issues addressed in both determinations are the same, I’m going to once again summarize the cases together.

Mr. Gerwitz filed a petition protesting four Notices and the validity a 60-day Notice of Proposed Driver License Suspension (“NOPDLS). Ms. Gerwitz also filed a petition which protested 2 Notices, both of which were also issued to Mr. Gerwitz, as well as the validity of a 60-day NOPDLS.

The February 13, 2020 Orders dismissed both petitions with respect to the NOPDLSs and all of the Notices, except one which was issued to both Petitioners.The Order allowed the matter to proceed with respect to that Notice because the Division failed to introduce proof of mailing or even provide a copy of the Notice.

Since the parties failed to previously provide a copy of the Notice at issue, it was assumed in the prior Orders that it was a Notice of Deficiency. With its motion at issue here, the Division submitted a copy of the Notice, and it was, in fact, a Notice and Demand, and not a Notice of Deficiency. The Judge found that the DTA does not have the authority to adjudicate protests of a notice and demand, and since it was the sole remaining issue in the petitions, the Judge dismissed both petitions.

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