ALJ ORDER
Matters of Scarfi and Metro Enterprises Corp.; Judge: Russo; Division’s Rep: Osborne Jack; Taxpayer’s Rep: Alvan Bobrow; Articles 28 and 29 (by Chris Doyle).
According to the Order, Petitioner moved to: (1) reopen the record and reargue, (2) recuse the Division’s counsel, and (3) correct the hearing transcript. Judge Russo denied the first two requests and granted the third. I am “Joe Friday-ing” (“If you please ma’am, nothing but the facts”) this summary.
The motion requesting that the record be reopened and the case reargued is interesting from a process standpoint. The Judge noted that the regulations require such a motion be filed within thirty days after a determination has been served. Since no determination had yet been issued in this matter, the Judge found that the motion to reopen/reargue was too early. That’s a timy of a different color!
The motion to recuse Division’s counsel was based on Petitioner’s allegation that the Division’s counsel became an essential fact witness as a result of his filing a declaration in a federal civil court case. The determination doesn’t explain what was in the declaration, but I expect it is the same declaration described in Matter of Capeci et. al , an order related to which may be found here. The Judge denied this motion, finding Petitioner’s argument to be without merit because (1) the taxpayer involved in the federal civil court case was not Petitioner; (2) Division’s counsel had not been called to testify at the hearing; and (3) it is common practice for attorneys to submit declarations in support of motions in federal civil court cases.
The Judge did, however, agree to correct the transcript.
