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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 June 18, 2020 (reporting on DTA cases issued June 8)

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Below are Emma’s reports on a Tribunal decision and a very rare Tribunal order. The last time we saw a Tribunal order was in 2018.

But before we get into all that, let me tell a true story about my trip back to the office on Friday. My visit to the office was necessary because I needed to get out a document with a “wet” signature. While I was there, I looked through the hard-copy mail that had been previously scanned and emailed to me. I do this from time to time to make sure that no time sensitive documents have missed my consideration. One of the documents was a Notice and Demand for $500,000 issued to one of our residency clients. It should not have been issued because the client (through Hodgson Russ) filed a timely request for conciliation conference. And once we drew the Department’s attention to the error, the Notice was promptly and courteously rescinded. The point of this story is not that a Notice had been issued in error, or that it had been rescinded, but that the Department sent an insert with the Notice requesting that my nonresident client sign up at to be a New York organ donor.

There’s nothing wrong with being an organ donor. I am registered with New York as an organ donor.  And if you are reading this and live in New York, I encourage you to register as a donor too (just go to the link in the last paragraph). But it seems a little over the top for New York to ask a person who moved (or even just claimed to have moved) out of the State for a literal “pound of flesh” in addition to resident taxes and interest. It used to be that penalties were rare. Now penalties are the norm and the State wants your kidneys too!


Matter of Obus; Division’s Rep.: Linda Farrington; Petitioners’ Rep.: Glenn NewmanArticle 22 (by Emma Savino).

This one involves a motion filed by our shop, so I’m going to “Joe Friday” it. (ed. the last “Dragnet” episode was aired about twenty years before Emma was born.)

The ALJ issued a determination denying Petitioners’ petition, which we wrote about here. So Petitioners filed an exception, along with briefs. Hodgson Russ LLP filed a notice of motion for leave to appear and file an amicus curiae brief and participate in oral argument, along with an affirmation in support of the motion and the proposed amicus curiae brief (PACB). Petitioners urged that the motion be granted, and the Division urged that it be denied.

The Tribunal has the discretion to decide whether to accept a PACB, and, since there are no rules governing the filing of a PACB, the Tribunal looked for guidance from the rules for filing a PACB before the Court of Appeals. The criteria for acceptance by the Court of a PACB includes that: the motion demonstrate that the parties are not capable of a full and adequate presentation and the movant could remedy this; the movant could identify law or arguments that might otherwise not be considered by the court; or the brief would otherwise be of assistance to the court.

The Division argued that the PACB would not be of further assistance because of the public availability of Hodgson Russ’s blogs and articles on the issue. The Tribunal found this unpersuasive as the fact that there are other means of obtaining the information is not the relevant issue. The Division also argued that acceptance of the PACB would lead to confusion on the issue because the PACB cannot be based on the entire record because, unlike civil cases, the record is not publicly available. The Tribunal again found this unpersuasive as the circumstances were the same in a prior case where a PACB had been accepted by the Tribunal. Thus, the Tribunal determined that the PACB met the criteria.

The Division also argued that the PACB was untimely, and relied on the Court of Appeals rules for the timing of filing for amicus curiae relief. The Court’s rules require a PACB return date no later than the filing date for the respondent’s submission on the appeal, the analog of which would be the date the Division’s brief in opposition to Petitioner’s exception was due. However, the Tribunal found that the Court of Appeal’s rules on timing of PACBs does not work for the tax appeals exception process. Rather, the Tribunal determined, based on prior case law, that the motion must be filed “sufficiently in advance of the argument.”  Since Hodgson’s PACB was filed long before the scheduled oral argument, the Tribunal granted Hodgson’s motion to file the amicus curiae brief.

But the Tribunal denied Hodgson’s motion to participate at oral argument. The Tribunal again noted that this was within its discretion, and that Hodgson had failed to present “extraordinary reasons” for its participation in oral argument.


Matter of ColemanDivision’s Rep: Hannelore Smith; Petitioner’s Rep: pro se; Article 22 and Driver’s License Suspension under Tax Law Section 171-v (by Emma Savino).  

Petitioner challenged both the Notice of Proposed Driver License Suspension (“NOPDLS”) and the underlying assessment in this case. In the determination, which we wrote about here, the ALJ found that the Division proved its standard mailing practices but not that they were followed when it mailed the Notice of Deficiency (“NOD”) to Petitioner’s last known address on November 7, 2017. The Division was able to overcome this by demonstrating that the NOD was actually delivered and accepted by Petitioner on November 10, 2017. So the ALJ found that the petition filed on June 11, 2018, was untimely insofar as it challenged the NOD. The ALJ found that the portion of the petition challenging the NOPDLS was timely, but that Petitioner failed to allege any of the enumerated defenses.

The Tribunal agreed with the ALJ that the Division had proved its standard mailing practices, that they were not followed, and that this was overcome by the Division’s proof of delivery of the NOD to Petitioner on November 10, 2017. Since the petition was received 3 months late, the Tribunal determined it was not a timely challenge to the NOD, even after considering Petitioner’s claim that a letter sent before the issuance of the NOD was an informal protest, and dismissed the petition with respect to the NOD.

With respect to the NOPDLS, the Tribunal agreed that the protest of the proposed suspension was timely filed. The Tribunal noted that Tax Law § 171-v (5), which provides the enumerated grounds on which a NOPDLS can be protested, was amended and the amendment became effective July 11, 2019. The amendment added additional grounds upon which a taxpayer can protest a NOPDLS, including a demonstration of receiving public assistance. Since the law was amended during the pendency of Petitioner’s exception, the Tribunal contacted the parties to see if it was applicable to Petitioner. In response, Petitioner provided a notice dated December 30, 2019, indicating that her application for public assistance had been accepted. Thereafter, the Division advised Petitioner that she was approved for the exemption from the driver’s license suspension program. Thus, Petitioner’s challenge to the 60-day notice was deemed moot and the NOPDLS canceled.

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