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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 November 1, 2018 (covering DTA case issued October 23)

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Patient readers:

I don’t know what to tell you.  Nara and I checked the website eight gazillion times last week and saw no new cases.  So this is what I started to write last Thursday:

When I went to the DTA’s website this morning I was greeted by the visual equivalent to the sound of crickets.  As of this writing, nothing new has been published there since the Tribunal’s October 22nd Amicus Brief Order on which we reported in Tuesday’s TiNY Extra!

Having no new cases on which to report is awkward for me.  It’s like seeing your best friend from college for the first time in twenty years and blanking on anything to talk about other than what your kids are doing (Mine are doing just fine, by the way.  Thanks for asking!). 

There were a couple of cases at the Third Department on which I could have reported.  But one was litigated by our office, may be destined for the Court of Appeals, and opining on it seems like an unnecessary risk.  And the other was kind of a yawner.  So I thought, maybe, we wouldn’t publish a TiNY Report for November 1.

Then I looked this morning (Monday, November 5) and found a new Tribunal decision posted for October 23rd!  Did we miss this?  Did the Tribunal post it just today?  I don’t know and I don’t care.  I’m just happy we have something on which to write.

TRIBUNAL DECISION

Matter of Silverstein; Division’s Rep: David Gannon; Taxpayer’s Rep: Elaine Platt; Articles 28 and 29

Petitioner was found in a prior Tribunal decision (Silverstein I) involving the same tax periods to have been the responsible officer of Metro Auto Leasing, that Metro had significant unreported car sales, and the Division’s method of estimating the tax was reasonable.  In addition, in a criminal matter involving the same tax periods, Petitioner pled guilty and as part of his guilty plea admitted he was a responsible person of Metro.  In this case, Petitioner argued—you guessed it—that  he was not a responsible person of Metro(!), that the Division audited the wrong corporation and the Division’s method of estimating taxes was unreasonable.  The ALJ granted the Division’s motion for summary determination on the ground of collateral estoppel.  For you non-lawyers out there, collateral estoppel is a doctrine that prohibits multiple litigation of the same issue.  Here, the Tribunal agreed with the ALJ that, since the legal issues and tax periods were the same in Silverstein I and this case, it was appropriate to bind Petitioner by the results of Silverstein I. 

Not that this was an issue, but I have often expressed concern about the Division and DTA asserting the fraud penalty when there is no clear connection between the fraud and the underpayment of tax.  That would not have been a problem in this case since Petitioner admitted in his criminal plea that the goal of his fraud was the non-payment of taxes.

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