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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.  

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TiNY Report for September 20, 2018 (covering DTA cases issued September 13)

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There’s one ALJ Determination on a timeliness issue and one Tribunal decision regarding domicile this week.


Matter of Apriceno; Judge: Russo; Division’s Rep: Jennifer Hink-Brennan; Taxpayer’s Rep: pro se; Article 22.  The Division proved it properly mailed the Notice of Determination to Petitioner’s last known address on February 24, 2017.  Petitioner faxed-in his BCMS request on May 30, 2017, 5 days after the 90-day deadline had elapsed.  The Judge sustained the BCMS Order dismissing the BCMS request as untimely filed.


Matter of Wiesen; Division’s Rep: Peter Ostwald; Taxpayer’s Rep: pro se/Brian Gordon; Article 22.  In a 49-page decision, the Tribunal affirmed the ALJ’s determination that Petitioner failed to prove a change of domicile from New York City to West Palm Beach.  Petitioner submitted the case, and as we noted when we reported on the ALJ Determination, it is very difficult to win a domicile case without having the taxpayer testify.  Key quote from the Tribunal:  “Additionally, as discussed previously, we have discounted documents in evidence that do state that petitioner vacated the [New York City] apartment in 2007 because such documents lack credibility.  As our cases show, credible testimony, coupled with those documents might have met petitioner’s burden of proof. The absence of any such testimony, that is, the absence of petitioner’s own words, is thus a significant factor in our conclusion that he has not met his burden of proof [of a domicile change].” The Tribunal rebuffed Petitioner’s attempts to submit additional evidence after oral argument.  The Tribunal did, however, reverse the ALJ’s finding that Petitioner had business ties in New York City.  So at least Petitioner has that going for him, which is nice.

The Tribunal’s stated factors differ somewhat from those listed in the field audit guidelines.  The Tribunal says it attaches significance to the following: (1) The retention and use of a permanent place of abode in New York; (2) The location of business activity; (3) The location of family ties; and (4) The location of social and community ties.  Notably absent are the “relative time” and “near and dear items” factors.  Hmmm.

The Tribunal also found that Petitioner had not proven entitlement to certain Schedule C deductions, and sustained penalties. 

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