TiNY Report for March 7, 2019 (covering DTA cases issued February 28)

They say “March comes in like a lion and goes out like a lamb.”  But the DTA’s first-week-in-March, one-determination/two-decision output looks a lot like the lion Dorothy Gale befriends on her Oz-trek: one better suited to mint jelly than the stalk-and-kill.  The sole determination this week is on a license suspension issue, and the two Tribunal decisions are on timeliness issues (yay…growl…roar…).

ALJ DETERMINATION

Matter of Bess; Judge: Russo; Division’s Rep: Hannelore Smith; Petitioners’ Rep: Michael Buxbaum; Tax Law § 171-v.  

Petitioner challenged a notice of proposed driver license suspension by filing a timely request for conciliation conference.  After the conferee sustained the Notice, Petitioner filed his timely petition.  In it, Petitioner did not assert one of the six statutorily-required defenses (Tax Law § 171-v [5] [i] - [vi]), but instead alleged that the Division violated Tax Law § 171-v (3) by failing to mail to his last known address a notice with a clear statement of past-due liabilities, a notification that the taxpayer’s information will be referred to the DMV in 60 days, and a statement regarding how the taxpayer can avoid license suspension by paying the liability or entering into a payment plan.

It is not clear exactly what aspect of the Notice Petitioner found deficient, but it was noted that the tax liability was reduced significantly at an informal courtesy conference after the Notice was issued.  So, perhaps Petitioner was arguing that the notice did not have a clear statement of the past-due liability.

Judge Russo explained the proof provided by the Division on the license suspension process, and, in particular, the steps followed by the Division to produce and then issue a notice of proposed driver license suspension.  The Judge’s explanation wasn’t captivating, but it was thorough.  And it provided a comprehensive behind-the-scenes view of the steps taken by the Division before a Notice is issued.  The Judge determined that the Division had proved its standard practices, and that they were followed when mailing the Notice at issue to petitioner.  The Judge also found that the Notice satisfied the formal requirements: it was mailed to Petitioner’s last known address and it included all of the statutorily-required information.

Accordingly, the Division’s motion for summary determination was granted.

Matter of Goutos; Division’s Rep: Christopher O’Brien; Petitioners’ Rep: pro se; Article 22.  The Tribunal affirmed the ALJ’s determination that the Division proved both its standard mailing practices and that they were followed to mail the Notice of Deficiency to Petitioner’s last known address on November 3, 2015, thereby making untimely his Petition filed on August 14, 2017.  Petitioner also argued that his petition ought to be deemed timely-filed because he was misled regarding the necessity of filing a petition by his former representative.  The Tribunal found the latter argument unpersuasive, calling the facts alleged “unsubstantiated,” and noting that, even if true, the facts alleged would not provide a basis for the suspension of the statute of limitations for filing a petition.  

Matter of Olshanetskiy; Divisiom’s Rep: Christopher O’Brien; Petitioners’ Rep: pro se; Article 22.  Petitioner was a partner of Dr. Goutos (see above) in Dellorso, Goutos & Olshanetskiy Physicians, P.C.  The Division was found to have proved both its standard mailing practices and that they were followed to mail the Notice of Deficiency to Petitioner’s last known address on November 3, 2015, thereby making untimely his Petition filed on August 14, 2017 (this sounds so familiar).  Petitioner also argued that his petition ought to be deemed timely-filed because he was misled regarding the necessity of filing a petition by his former representative (I think I am experience déjà vu).  The Tribunal found the latter argument unpersuasive, calling the facts alleged “unsubstantiated,” and noting that, even if true, the facts alleged would not provide a basis for the suspension of the statute of limitations for filing a petition (and with a tip of my hat to “Groundhog Day,” cue Sonny and Cher’s “I got you babe”).  

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