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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 March 30, 2017

By on

One Tribunal Decision and two ALJ Determinations were issued on March 23.  There were no Orders. All involve timeliness. The last one is a little interesting. The other two, not so much.

DECISIONS:

Matter of Rodriguez; TAT; Division’s Rep: Christopher O’Brien; Taxpayer’s Rep:  Pro se; Article 22.  The dismissal of the petition was sustained.  Taxpayer failed to report a federal change, and the Division subsequently asserted a liability—as it is permitted to do—using a Notice of Additional Tax Due.  The Tribunal confirmed that Tax Law §173-a(2) denies taxpayers the right to  challenge a Notice of Additional Tax Due at the DTA. 

DETERMINATIONS:

Matter of Ahmed; Judge Galliher; Division’s Rep: Adam Roberts; Taxpayer’s Rep:  Jacqueline Kafedjian; Articles 28 and 29.  The case was dismissed on timeliness grounds.  Proper mailing to the taxpayer’s last known address and the taxpayer’s representative was proven through Peltier affidavits with the typical attachments.  The taxpayer’s evidence (USPS tracking information) corroborated the delivery of the Notices. 

Matter of Carm’s Pizza Corp.; Judge Galliher; Division’s Rep: Lori Antolick; Taxpayer’s Rep: Harold Seligman; Articles 9-A, 28 and 29.  Taxpayer admits receiving the Notice, but claims the 90-day period should be extended because Taxpayer’s original Rep fell ill.  And the mailing of the Notice to the Taxpayer’s last known address was proven through Peltier affidavits and attachments (which, I suppose, were not necessary since the Taxpayer did not deny receipt of the Notice).  In dismissing the case the ALJ noted that the Tribunal and Judges are permitted to extend deadlines only if there is no statutory prohibition to the extension of said deadline.  The Judge viewed the 90-day limits in Tax Law §§ 1138(a)(1) and 170(3-a)(a) as prohibitions.  Interestingly, neither of the cited sections contains an explicit prohibition.  So maybe there is an argument to pursue here. 

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