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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.  

TiNY Report for July 3, 2019 (reporting on DTA cases published June 27)

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As I was rushing to finalize some pre-holiday work, I paused to check the DTA’s website, and guess what I found? Two ALJ determinations and an Order posted a day early (picture fireworks and cheering)!!

ALJ ORDER

Matter of Allen; Judge Friedman; Division’s Rep.: Stephanie Lane; Petitioners’ Rep.: pro se;  Article 22. 

Petitioners filed their petition challenging a March 2, 2018 Conciliation Order on June 2, 2018. This was after the 90-day deadline had run because March and May have 31 days. C’est dommage! 

But wait. The Division proved its standard mailing practices but not that they were followed because the certified mailing record didn’t have legible postmarks on every page. Uh-oh. So the Judge went to the certified mail receipt cards offered by the Division to see when the taxpayers and their then-representative actually received the Order. According to the USPS Form 3811-A offered by the Division, Petitioners received their copy of the order on March 3, 2018. So the petition was still too late. Aww man.

But, again, wait. The Form 3811-A for Petitioners’ then-representative indicated that he didn’t get his copy of the Order until March 16, 2018. And since in the absence of adequate proof of mailing the DTA tolls the running of the 90-day limit until both the Petitioners and their representative have received copies of the Order, the 90-day period did not commence until March 16, which made the June 2 petition a timely one. Phew.

The Notice of Intent to Dismiss was rescinded.

DETERMINATIONS

Matter of Supreme Blends Healthy Eatery, Inc.; Judge: Friedman; Division’s Rep.: Jessica DiFiore; Petitioner’s Rep.: pro se;  Articles 28 and 29. 

The petition did not include a complete copy of the Notice being protested; it was signed by an unidentified individual; and it did not provide a contact phone number. And the petition appeared to have been filed late. The DTA sent a letter to Petitioner requesting that Petitioner provide a copy of the Notice and cure the other deficiencies in the petition. The letter was returned as undeliverable.  Supervising ALJ Friedman then issued a notice of intent to dismiss the petition. 

Since the petition was not in proper form when it was delivered to the DTA, and Petitioner never cured the deficiencies in the petition, the Judge dismissed the petition, with prejudice.

Matter of Yim; Judge: Gardiner; Division’s Reps.: Michelle W. Milavec and Charles Fishbaum; Petitioners’ Rep.: pro se;  Article 22. 

The issue in this case was whether Petitioner was a domiciliary of New York in 2010. Petitioner testified that he was a New York domiciliary from 1970 to 2009. In July 2009, Petitioner, a doctor, took a position at a VA facility in Michigan. He bought a car, obtained a driver’s license, eventually rented an apartment, voted, and joined a church in Michigan. But his spouse remained in their New York home, and, eventually, Petitioner returned to New York in 2011 to accept a new job. Subsequently, he took jobs in South Dakota and Georgia.

Key quotes: “When asked what items he brought from New York when he moved to Michigan, petitioner testified that he only brought a backpack. Petitioner testified that he left all his belongings in New York. He joked that, according to his wife, a lot of his belongings were trash, but they were dear to him and he kept them in New York.”  “[Petitioner] testified that better job opportunities motivated him to accept lucrative positions outside of New York. He explained that ‘we have certain ties to families and we go back no matter how long you try to cut.’”

The Division’s day count had Petitioner in New York for about 70 days in 2010.

The Judge found that Petitioner had not satisfied his burden of showing a change of his domicile away from New York by clear and convincing evidence. Judge Gardiner noted the following, all of which seemed to suggest that Petitioner’s domicile remained in New York: (1) he maintained a home in New York; (2) he testified that he moved away only to better support his family; (3) he left all of his near and dear items (even if they were trash) in New York when he left for Michigan with just a backpack; (4) there was a lack of evidence that Petitioner intended to make Michigan his permanent home as evidenced by the fact that Petitioner left Michigan when his employment contract there ended and established no personal ties there; and (5) Petitioner explained that his family ties in New York dictated his return to New York.

Also, Petitioner didn’t file any briefs.

Enjoy your July 4th holiday!

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