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State and Local Tax Blog

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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 July 26, 2018 (covering DTA cases from July 19)

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Last week, in an effort to make the TiNY Report even more fun to read, I wrote something implying that Sturtevant, Wisconsin is a fictional municipality.  The outpouring of criticism (well, the one email) I received was mind-blowing.  Having posted for more than a year with absolutely no replies from our twelve (or so) readers, I was shocked to find an email from Sturtevant Village Board President Jayme Hoffman in my mailbox castigating me for poking fun at his “bucolic hamlet in Racine County in your self-serving and pretentious tax blog”, and “demeaning our 10,000-plus citizens”.  Jayme demanded a retraction, although he said a printed apology would be acceptable.

So, Jayme, here it is:  I’m sorry that I made fun of the name of your village, which to me looked like a fake name and when I sounded it out reminded me of the sound my lawnmower makes when I am trying to start it for the first time in the Spring (rar rar, rar rar, sturtevant…[pull out the choke]…rar rar, rar rar, sturtevant…[push the choke back in]…rar rar, rar varoom!).  Sturtevant is obviously a real place with real people, and it was wrong for me to make fun of its name even though I am confident that most of our regular readers would have understood I was just kidding. 

And to TiNY’s regular readers:  I apologize for the previous two paragraphs which are almost entirely fictional:  Jayme didn’t contact me, though he is the president of the Sturtevant Village Board (for more information see http://www.sturtevant-wi.gov/ ); outside of Hodgson Russ lawyers, no one has ever emailed a response about a TiNY Report; my lawnmower doesn’t have a manual choke; TiNY probably doesn’t even have twelve (or so) readers; and I am not really apologizing because I assume the fine folks of Sturtevant can recognize and take a joke and none of them read TiNY anyway. 

And because of my textual meanderings you have probably already guessed it is a slow DTA week.  There’s only one Determination and one Decision .

ALJ DETERMINATION

Matter of Brinson; Judge: Friedman; Division’s Rep: Christopher O’Brien; Taxpayer’s Rep: pro se; Article 22.  Supervising ALJ Friedman dismissed the petition following a Notice of Intent to Dismiss.  The petition was insufficient in most regards:  From the Findings of Fact:  “2. The petition did not have the required statutory document attached, specifically, a notice of deficiency, notice of determination, license or registration denial, or refund denial notice.  3. The petition did not reference any notice or assessment identification number.  4. The petition did not reference the tax article involved.  5. The petition did not have a copy of a conciliation order.  6. On November 17, 2017, the Division of Tax Appeals sent a letter to petitioner informing her of the items missing from her petition and that failure to correct it within 30 days  may result in dismissal. Additional requests for a copy of the notice at issue or its number were made by the Division of Tax Appeals to petitioner, to no avail.  7. Petitioner did not cure the deficiencies in her petition.”

Not much to see here, but there is a little something that made my spidey-sense tingle.  According to the Facts Found, Petitioner gave the DTA none of the ministerial information that would allow it to fulfill its function.  And yet…the DTA knew enough that the caption of the case says it’s “for Redetermination of a Deficiency or for Refund of Personal Income Tax under Article 22 of the Tax Law for the Years 2013 through 2015.”  If the DTA had access to the tax and years information already, why require this pro se petitioner to reproduce it?  I am not throwing grenades here.  I expect that, among its other deficiencies, the Petition was late and it truly deserved to be dismissed.  And it seems like the Petitioner was totally unresponsive.  And I believe in the necessity of process.  It just looks a little weird to me that at least some of the information the absence of which the DTA found made the petition deficient was, apparently, readily available to the DTA from other sources.

TRIBUNAL DECISION

Matter of Nastasi; Division’s Rep: Kileen Davies; Taxpayer’s Rep: Joseph Gulant; Article 8 Proposed License Suspension.  The Tribunal affirmed the ALJ’s summary determination in favor of the Division.  The Division showed that its process was in conformity with the applicable statutes and Petitioner failed to allege any of the six statutory defenses that would permit Petitioner to avoid the suspension of his license.  “Significant hardship” is not one of the six statutory defenses.

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