About This Blog
Taxes in New York (TiNY) is a blog by the Hodgson Russ LLP State and Local Tax Practice Group members Chris Doyle, Peter Calleri, and Zoe Peppas. The weekly reports are intended to go out every Tuesday after the New York State Division of Tax Appeals (DTA) publishes 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.
Stay Connected
RSS Subscribe
LinkedIn ProfileTiNY Report for October 25, 2018 (covering DTA cases issued October 18)
This week we have two ALJ Determinations and nothing from the Tribunal (at least as of this posting).
DETERMINATIONS
Matter of Pulperia NYC Corp.; Judge: Galliher; Division’s Rep: Justine Clarke Caplan; Taxpayer’s Rep: pro se; Articles 28 and 29. The Division proved it properly mailed the Notice of Determination to Petitioner’s last known address. Petitioner did not timely-file its BCMS request. Case dismissed.
Matter of Yonkers Wholesale Beer Distributors, Inc. and Richard McDine; Judge: Galliher; Division’s Rep: Nicholas Behuniak; Taxpayer’s Rep: Michael Buxbaum; Articles 28 and 29. Corporate Petitioner YWBD was an alcoholic beverage wholesaler and operated a retail outlet for its sales. Corporate Petitioner’s president was individual Petitioner McDine. Pursuant to legislation enacted in 2009, alcoholic beverage wholesalers selling alcoholic beverages without collecting sales tax became required to file information returns with the Division. YWBD filed such information returns for the first fiscal year the returns were required, but did not file any other information returns after that, even though the Judge determined that YWBD filed its quarterly sales and use tax returns (Forms ST-100). Petitioner alleged at the hearing that such failure to file may have been the result of computer problems. On audit, the Division made several requests for Petitioner’s books and records, including substantiation for Petitioner’s non-taxable sales and completed and filed information returns. Petitioner did not, according to the Division, provide records or information returns sufficient to provide the auditors with an “audit trail” to confirm exempt sales. In addition, the auditors contacted YWBD’s suppliers to confirm purchases made by YWBD. When the auditors compared those purchases to YWBD’s sales, it discovered about $93 million (!) of unaccounted-for sales for the period under audit. The Division accepted YWBD’s gross and taxable sales as reported, but disallowed YWBD’s claim that the balance of its sales were non-taxable due to lack of substantiation. The Judge determined that, in absence of any substantiation or records, the Division’s audit method and result, including penalties and interest, should be upheld. The Judge also determined that YWBD’s failure to file the required information returns was willful. The Judge upheld penalties for YWBD’s failure to file such information returns and upheld the revocation of YWBD’s certificate of authority.
Comment
