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State and Local Tax Blog

About This Blog

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 26, 2019 (reporting on DTA cases issued September 19)

By on

Every single Decision and Determination this week is a timy. So this week, instead of the TiNY Report, I think it is more accurate to call it the Timy Report.

Also, we noticed that Finding of Fact 1 of the four “Towers” determinations from last week still refers to a petition with “a United States Postal Service (USPS) postmark dated December 18, 2019.”  If that is a correct date, then USPS postmarks have been proven to be fallible. If that is not a correct date, then we can only assume that none of TiNY’s readers has reached out to the ALJ in those cases to let him know there is a typo.  

DECISIONS

Matter of Clinton Gourmet Corp.; Division’s Rep.: Justine Clarke Caplan; Petitioner’s Rep.: Israrul Hasan; Articles 28 and 29.

The Tribunal agreed with the ALJ’s Determination (which we wrote about here) that the Division proved it properly mailed the Notice of Determination to Petitioner’s last known address, and the Petition was filed after the 90-day limitation period. Petitioner argued on exception that it never received a copy of the Notice of Determination, but provided no evidence of this.

Petitioner had also requested a Conciliation Conference simultaneously with its filing of the Petition, unbeknownst to the DTA. Petitioner alleged that it filed a revised Petition and attached the Conciliation Order dismissing its request as untimely, but this Petition was not included in the record before the ALJ. And because of this, the revised Petition could not be considered by the Tribunal. The Tribunal did, however, note that even if it had been part of the record, the underlying protest of the Notice of Determination would be untimely. In the end, the Tribunal affirmed the ALJ’s dismissal of the Petition.

Matter of Robo’s Pizza, Inc.; Division’s Rep: Justine Clark Caplan; Petitioner’s Rep: pro se; Articles 28 and 29.

The Division proved it properly mailed the Conciliation Order to the Petitioner’s last known address on April 14, 2017. Petitioner filed its Petition on March 27, 2018, and it claimed the conferee did not advise it of the 90-day limitation period. The Tribunal reasoned that because the Conciliation Order does not have to be actually received to begin the statute of limitations, Petitioner’s claim that the conferee did not advise it of the limitations period cannot toll the statute of limitations either (this wasn’t the clearest logic, but I can see how the Tribunal got there). Thus, because the Petition was filed more than 90 days after the issuance of the Conciliation Order, it was untimely, and the Tribunal dismissed the Petition.

Matter of Chimiak; Division’s Rep: Justine Clark Caplan; Petitioner’s Rep: pro se; Articles 28 and 29.

This is the responsible officer companion case to Matter of Robo’s Pizza, Inc. (above), and we wrote about both Determinations here.

The Division proved it properly mailed the Conciliation Order to Petitioner at his last known address on April 14, 2017. The Order was returned as unclaimed, and Petitioner did not file his Petition until June 18, 2018. The Tribunal found that the Order was returned as unclaimed.  Petitioner alleged that he was never informed of the 90-day limitations period for filing a petition, and would have made certain he filed a timely petition if he had been so informed. However, the Tribunal found that whether Petitioner was informed of the 90-day time limit was irrelevant for the purpose of tolling the statute of limitations as proper mailing of the Order started the 90-day period during which a petition was required to have been filed, and that period was not tolled by Petitioner’s failure to be advised of the time limit. Thus, the Tribunal found that because Petitioner filed its Petition over a year after the Order was mailed, it was untimely and the Tribunal dismissed the Petition.

DETERMINATIONS

Matter of Elite Furniture Warehouse Corp.Judge: Behuniak; Division’s Rep.: Adam Roberts; Petitioner’s Rep.: J. Vincent Reppert; Articles 28 and 29.

The Division proved its standard procedures and that they were followed when it mailed a Notice of Determination to Petitioner’s last known address and to Petitioner’s representative on November 28, 2017. Petitioner alleged that it filed a BCMS request on February 1, 2018, and included with its Petition an affirmation of its representative which indicated that he filed the BCMS request by regular mail and made numerous attempts to follow up with the Division to schedule a conference. The representative’s assistant later faxed a copy of the BCMS request in June 2018. The Division did not receive the request until June 22, 2018, which was well after the 90-day deadline. Because the Petitioner filed the request by regular mail, it could not produce conclusive evidence of timely filing, so the Judge dismissed the Petition as untimely.

Pro tip: always send filings with hard deadlines by certified mail – it’s worth the $3.50.

Matter of Weinstock.Judge: Connolly; Division’s Reps.: Melanie Spaulding and Hannelore Smith; Petitioner’s Rep.: Alan Goodman; Articles 28 and 29 and Driver’s License Suspension, Tax Law Section 171-v. 

The Division proved its standard mailing procedures and that they were followed to mail 5 Notices of Deficiency to Petitioner at his last known address on April 18, 2018. Petitioner filed a Petition dated November 6, 2018, but it did not contain a postmark. The Petition was received by the Division of Tax Appeals on November 13, 2018, and the Judge found it was not timely because it was “received on November 13, 2019, or 120 days after that prescribed filing date.” (eds. This looks like another typo since, well, that date is two months in the future, but filing on November 13, 2018 would still be late). 

As for the driver’s license suspension, all five notices were found to be fixed and final by the date the Division issued the 60-day notice. Because Petitioner did not assert any of the six enumerated substantive bases for relief from the suspension, it was determined that there was no dispute as to the facts or any basis in law to grant the Petition. So the Judge denied the Petition and sustained the notices and the driver’s license suspension.

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