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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 27, 2017 (covering DTA cases published on July 20)

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Got to the office.  Booted up my computer.  Grabbed a cup of coffee.  Went through the overnight emails.  Called up the DTA website before 9:00 , and everything was posted.  THANK YOU DTA.  The faster you post, the faster I blog.  So we are a full day ahead of schedule this week.

Nothing from the Tribunal to report.  But the ALJ unit gave us three determinations and one order.  Judge Gardiner was busy, busy, busy and adjudicated three of the cases.


Matter of Taveras; Judge Gardiner; Division’s Rep: Adam Roberts; Taxpayer’s Rep: Pro se; Articles 28 & 29.  Petitioner failed to attach a Notice or a BCMS Order to his petition, but listed the Notice number being challenged.  In response to inquiries from the DTA, Petitioner sent in a copy of the cover letter from BCMS that would have included the BCMS Order—but not the Order itself.  The Supervising ALJ sent the parties a Notice of Intent to Dismiss citing the failure of Petitioner to submit a petition conforming to DTA regulations.  Judge Gardiner found that the DTA’s regulations were flexible enough to treat the petition as providing fair notice of the controversy, and if the Division wanted to challenge the Petition on timeliness grounds, it was incumbent on the Division to provide proof of mailing.  Since the Division provided no proof of mailing of the Notice or the BCMS Order, the Judge withdrew the Notice of Intent to Dismiss and ordered the Division to file an Answer.


Matter of Mozeb; Judge Russo; Division’s Rep: M. Greg Jones; Taxpayer’s Rep: Timothy Alnwick; Article 20.  The ALJ found that the Division proved through affidavits its standard mailing procedures, that they were followed in this instance, and that the Notice of Determination was mailed on February 2, 2016.  It was undisputed that Petitioner’s Request for a conciliation conference was filed on June 6, 2016, after the 90-day deadline for filing same had lapsed.  Accordingly, the ALJ granted the Division’s motion for summary determination.  The Petitioner did not respond to the motion, so he was deemed to have conceded that no issue of fact requiring a hearing existed and conceded the accuracy of the affidavits.    

Matter of Pugliese; Judge Gardiner; Division’s Rep: Robert Maslyn; Taxpayer’s Rep: Gary Kanaley; Articles 28 & 29. Suds.  Rinse.   Repe…WHOA!  Here is an interesting twist on the timeliness case!  Petitioner was assessed sales tax as a responsible officer.  The assessment included fraud penalties.  Therefore a 30-day time limit for filing a BCMS request or an ALJ petition applied.  Petitioner admits he did not file a timely challenge to the original notice.  But then Petitioner paid the tax liability for one of the quarter’s  included in the notice, filed a refund claim within two years of that payment, and then filed a timely BCMS request (that was denied) following the Division’s denial of the refund claim.  In considering the Division’s motion for summary determination on the timeliness issue, the ALJ found that: “Tax Law § 1139(c) clearly requires that an application for refund must be made within two years of payment of the full tax assessed. Since petitioner has not made payment of the tax assessed, the conciliation order dismissing request was properly issued.”  Accordingly, the Judge granted the Division’s motion.

Matter of Radice and Shearer; Judge Gardiner; Division’s Rep: Peter Ostwald; Taxpayer’s Rep: Pro se; Article 22.   Not a timeliness case.  Hooray!  Petitioners and the Division agreed to submit this day-count case without a hearing, with all briefs and documents to be submitted by May 1, 2017.  The parties then agreed to a joint stipulation of facts.  In April, after the ink dried on the stipulation of facts, the Division filed a motion for summary determination.  Hmm.   Petitioners did not respond to the motion.  We assume Petitioners were spouses filing on a joint return since there was only one DTA number assigned to the case.  What was stipulated?  Petitioners were NJ domiciliaries.  Radice was a lawyer working in NYC in 2011-12.  Shearer was a doctor completing her residency in NYC during the same time period.  In June 2007, Shearer entered into a month-to-month “license” for an apartment in NYC.  The apartment was provided for full-time employees of the hospital at which Shearer was a resident.  The apartment was used by Petitioners for the entire audit period.  The license agreement said the apartment needed to be Shearer’s primary residence, and during the audit period Petitioners continually and uninterruptedly resided at the apartment.  Petitioners did not submit any proof in the case other than the Stipulation of facts.  The Judge granted the Division’s motion for summary determination, finding that Petitioners were statutory residents for the audit years because they were present in NYS/NYC for more than 183 days in each of the years and had a permanent place of abode in NYC during those years.  The Judge explicitly found that the amendment of Regulation § 105.20(e) effective in 2008 meant that the so-called “temporary stay” rule was not in effect during the years under audit.

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