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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.  

TiNY Report for September 10, 2020 (reporting DTA cases issued September 3)

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The DTA’s “month of misery” continues with five more determinations and an order dealing with (mostly) timeliness issues.  I feel like Bill Murray three-quarter’s of the way through “Groundhog Day.”  But instead of “I Got You Babe” by Sonny and Cher, the radio is playing “Time after Time” by Cyndi Lauper, and the chorus lyrics have been bastardized into something like:

If you’re late and you file, you will get dismissed, timy after timy.  Then TiNY will post a brief summary, timy after timy.

I don’t know exactly how the song goes, because in my imagination, I have already  busted-up the clock radio from which the song emanates. 

ALJ ORDER

Matters of West 20th Enterprises Corporation, Pacific Club Holdings, Inc., Sushi Fun Dining & Catering, Inc., and Dominica O’Neill; Judge Law; Division’s Rep.: David Gannon; Petitioners’ Rep.: Alvan Bobrow; Articles 28 and 29 (by Chris Doyle)

A hearing was held on March 5, 2020.  At the end of the hearing, the record was left open so Petitioners could submit three affidavits from current or former entertainers and two deposition transcripts from a Fair Labor Standards Act suit brought against a related club. Two weeks after the hearing ended, Petitioners’ attorney served a subpoena on the Division. The Division made a motion to quash the subpoena.

Judge Law found that the Division’s motion was brought in the wrong forum.  A motion to quash may be brought in the DTA only for a subpoena issued by the DTA.  But a motion to quash an attorney’s subpoena must be brought in New York Supreme Court.  Accordingly, the Division’s motion to quash was denied.

However, the Judge went out of his way to find that, if he had the jurisdiction to rule on the Division’s motion, he would have granted it since: (1) discovery at the DTA is limited; (2) an attorney’s subpoena can’t be used to obtain government records; and (3) the subpoena was issued two weeks after the hearing was over, and the record was not left open for any of the documents sought by the subpoena.

DETERMINATIONS

Matter of Abdelhamid and Mohamed; Judge Galliher; Division’s Rep.: Mary Hurteau; Petitioners’ Rep.: pro se; Article 22 (by Chris Doyle)

Judge Galliher granted the Division’s motion to dismiss/ for summary determination.  The Judge found that the Division proved both its standard mailing practices and that they were followed when the Division mailed the Notice of Determination to Petitioners’ last known address on January 3, 2019.  Petitioners’ request for Conciliation Conference filed on August 5, 2019 was therefore a few months too late.

Matter of Allaham and Dahabi; Judge Law; Division’s Rep.: Mary Hurteau; Petitioners’ Rep.: pro se; Article 22 (by Chris Doyle)

Judge Law granted the Division’s motion to dismiss/ for summary determination.  The Judge found that the Division proved both its standard mailing practices and that they were followed when the Division mailed the Notice of Determination to Petitioners’ last known address on January 3, 2019.  Petitioners’ request for Conciliation Conference filed on August 5, 2019 was therefore a few months too late.

Matter of Ikhmayes and Akdeir; Judge: Connolly; Division’s Rep.: Mary Hurteau; Petitioners’ Rep.: pro se; Article 22 (by Chris Doyle)

Judge Connolly granted the Division’s motion to dismiss/ for summary determination.  The Judge found that the Division proved both its standard mailing practices and that they were followed when the Division mailed three Notices of Determination to Petitioners’ last known address on January 7, 2019.  Petitioners’ requests for Conciliation Conference filed on August 5, 2019 and August 16, 2019 were therefore a few months too late.

Matter of Stoica; Judge: Galliher; Division’s Rep.: Anita Luckina; Petitioners’ Rep.: pro se; Article 29-A (by Chris Doyle)

The Judge found that the Division proved both its standard mailing practices and that they were followed when the Division mailed six notices of estimated deficiency to Petitioner’s last known address on February 22, 2017; May 17, 2017; August 16, 2017; January 16, 2018; February 15, 2018; and May 31, 2018, respectively.   The petition, filed on March 7, 2019, challenging those Notices was therefore late, so the Judge sustained the Division’s motion for summary determination and dismissed the petition.

Matter of The Dumpling Cove, LLC; Supervising ALJ Friedman; Division’s Rep.: Karry Culihan; Petitioners’ Rep.: Kereith Mair; Articles 28 and 29 (by Chris Doyle)

Petitioner filed its petition seeking to challenge the Division’s tax warrant.  The DTA issued a notice of intent to dismiss. 

Noting that the DTA is a forum of limited jurisdiction, and that challenging warrants falls outside the scope of the DTA’s jurisdiction, the Judge dismissed (with prejudice) the petition.  The warrant reflected tax Petitioner agreed to in a consent, so there’s that too.

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