Joe is the Practice Leader for the firm's Sales & Use Tax and Abandoned Property Audits practices, as well as Co-Leader of the Brownfield Redevelopment practice. Joe counsels clients on a wide range of state and local taxation issues and represents taxpayers in disputes with the New York State Department of Taxation and Finance as well as the New York City Department of Finance. As the Sales & Use Tax Practice Leader, Joe’s practice focuses on sales and use tax issues, especially in the technology (software as a service, cloud computing, digital products, etc.), fine arts and construction industries. Joe is the primary author of our firm’s sales tax blog, All About Sales Tax. Joe is a contributing editor (New York Chapter) of the American Bar Association's Sales and Use Tax Deskbook. Together with other attorneys in the State and Local Tax (SALT) Practice, Joe is a contributing author to our firm's handbook, What To Expect In a New York Sales and Use Tax Audit. Written in a question and answer format, this handbook discusses the issues that arise in these types of audits. Joe also counsels clients regarding personal income tax planning and residency issues. He co-authored, with Mark S. Klein, the 2019 Guidebook to New York Taxes, a reference source of information on this topic and he writes a column for Tax Notes State called “The Endres Assessment."
He also advises clients with respect to various federal and state tax incentive-based programs such as the federal renewable energy investment and production tax credits, New York State's Start-Up NY Program, the Excelsior Program, the former Empire Zone Program, the Brownfield Tax Credit Program and the Historical Building Rehabilitation Tax Credit Program.
As the Abandoned Property Audits Practice Leader, Joe counsels clients in this area of law and has represented large corporations in complex compliance matters such as multistate abandoned property audits and voluntary disclosures.
Services
Education
University at Buffalo, B.A., magna cum laude
University at Buffalo School of Law, J.D., magna cum laude
Admissions
- New York
- New Jersey
Representative Work
- Assisting With Participation in the New York State Brownfield Cleanup Program
- Counsel to an Industrial Manufacturer in the New York State Brownfields Program Addressing Groundwater and Soil Vapor Intrusion Issues
- Management, Oversight, and Cleanup of Former Large Industrial Site
- Ongoing Representation of an International Lighting Manufacturer
- Resolved a NYS Sales and Use Tax Audit for Large Wine Store and Banquet Facility
Recognitions
- Listed, Best Lawyers in America (Tax Law) 2023 - 2025
- Listed, Buffalo Business First/Buffalo Law Journal’s Legal Elite of Western New York, 2018 - 2020
- Listed, Upstate New York Super Lawyers Rising Stars, 2013 - 2017
- Phi Beta Kappa and Phi Alpha Theta
- Former note and comment editor, Buffalo Law Review
- University at Buffalo School of Law Faculty Award (for work on the Buffalo Affordable Housing Clinic)
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In a decision with significant implications for the sales taxation of artwork, the New York Tax Appeals Tribunal ruled on February 28 that a $7 million painting (at least a one-half share in the painting) was validly acquired for resale resulting in a six-figure sales tax refund for a co-owner of the painting. Tribunal decisions on sales tax are significant in their own right, since they are somewhat rare and (as opposed to administrative law judge rulings) they become binding precedent. But the Objet LLC ruling should have particular relevance to the art industry since it tackles two issues that factor prominently in the high-stakes sales and related tax structuring that occur in the industry: one being the form-over-substance nature of sales tax, and the other being the proper analysis for determining when property is purchased “exclusively for resale”.
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New York State’s Brownfield Cleanup Program (“BCP”) has proven to be one of the state’s most successful programs for spurring private-sector remediation and development of contaminated properties. As a quick overview, the state provides refundable tax credits that partially offset the costs of remediating and then developing brownfields in the state. By any economic measure, the program has delivered an excellent rate of return on the state’s tax-credit investment. Since the program’s inception in 2003, the numbers are compelling:
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In 2015, the New York Tax Law was amended to provide exemptions from sales and use tax for certain sales of electricity generated by residential or commercial solar energy systems and sold under a written solar power purchase agreement (“PPA”) (See N.Y. Tax Law §§ 1115(ee)(2), 1115(ii)(2); see also TSB-M-15(5)S). These exemptions were in addition to the already existing sales tax exemptions for the sale and installation of residential and commercial solar energy systems equipment (See Tax Law §§ 1115(ee)(1), 1115(ii)(1); see also TSB-M-05(11)S and TSB-M-12(14)S).
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After several years of failed bills, Florida has finally joined the other 43 states that have passed economic nexus threshold for sales and use tax purposes in the wake of the U.S. Supreme Court’s decision in South Dakota v. Wayfair Inc. On April 19, 2021, Governor Ron DeSantis signed S.B.50 that enacted legislation imposing a sales tax collection requirement on both remote sellers and marketplace providers.
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Here are the sales tax cases from the TiNY blog for the week of March 25, 2021.
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Because this was handled by Hodgson Russ, we’ll forego editorializing and provide just the facts.
By way of summary: Petitioner paid sales tax on purchases of concrete used in foundation work for building projects. Petitioner then sought a refund for the sales tax it paid, claiming that the concrete purchases qualified as nontaxable installations of capital improvements. The ALJ determined that the transactions constituted taxable purchases of tangible personal property because it was Petitioner, and not the concrete vendor, who was responsible for the installation of the concrete.
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We lumped these two cases together because they present pretty much identical facts, legal issues, and outcomes. Indeed, the opinion sections of each decision contain virtually identical structure and language. The issue in these cases was whether security services provided at real property construction projects were taxable.
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The sales taxation of exotic dancing and transactions conducted in adult entertainment establishments has a long history before the Division of Tax Appeals and the New York courts. This case presents the most recent chapter.
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This case examines the operation of New York’s resale exemption and the limits of the protection conferred by resale exemption certificates.
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When it comes to sales tax, form matters. And in this case, the imprecise and somewhat contradictory evidence regarding the form of what should have been a nontaxable equity purchase caused the Judge to sustain a sizable sales tax bill.
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The issue in this case is whether the sale of laser technology used to treat dermatological ailments and related services constituted a taxable lease of tangible property or the provision of a nontaxable service. Petitioner provided to its dermatologist customers an ultraviolet light excimer laser system that generated and delivered targeted ultraviolet light to treat various skin conditions. Petitioner did not characterize the transactions as leases, nor did the customers receive the lasers for a set amount of time. Rather, Petitioner “consigned” the lasers to its customers and charged for “treatment codes,” which allowed the lasers to be used and treatments to be administered.
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Petitioner provided marketing analysis services that the Division viewed to be taxable information services. Specifically, Petitioner helped its customers measure their advertising effectiveness by (1) surveying consumers or internet users who had seen a particular advertisement and those who had not seen the ad, (2) comparing and analyzing the results, and (3) informing its clients as to how well the ad performed and what the clients could do to improve ad performance. At first blush, there seems to be significant similarity to the MarketShare Partners, LLC case we reviewed a few weeks ago. In that case, the taxpayer was a marketing analytics firm that enabled large companies to measure, predict, and improve the impact of their marketing spend. The ALJ concluded that the main service was a nontaxable marketing consulting service rather than a taxable information service. So we’d expect a similar result in this case, right? Not so fast . . .
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A fight might be brewing over the Division’s longtime conclusion that IT monitoring services can constitute taxable protective services. Here, Petitioner offered managed and monitored security services, giving customers information to prevent, detect, respond to, and predict cyberattacks. The question in the case was whether these services constituted either taxable protective and detective services or taxable information services.
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After weeks of being absent from TiNY (in part due to Chris Doyle’s encroachment on my territory), I’m back in a big way. The Division of Tax Appeals issued a whopper of a sales tax determination – 55 pages! It addresses one of the most perplexing issues in all of New York sales tax – the proper characterization of a technology product – is it a nontaxable service, taxable information, or taxable software? Let’s dive in.
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The New York State Tax Department released new guidance last week in TSB-M-20(2)S addressing potential avenues for relief for those assessed as responsible persons for sales tax. This new TSB-M largely mirrors amendments to Tax Law § 1133(a) that were enacted as part of the budget legislation for fiscal 2018-2019 which we covered here and here. That legislation established statutory relief for certain limited partners and LLC members who were assessed and held jointly and severally liable for sales tax assessments solely by virtue of their interest in a partnership or LLC. To qualify for relief, eligible limited partners and LLC members must principally show that: (i) they were not under a duty to act for the LLC or partnership in complying with the requirements of the sales tax; and (ii) their ownership interest and the percentage of their distributive share of the profits and losses of the LLC or partnership are each less than 50%.
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The NYS Department of Taxation and Finance issued a new advisory opinion today concluding that a contractor installing a new floor for a tenant at JFK Airport can purchase glue tax free because the glue becomes an “integral component part” of real property owned by an exempt entity. JFK Airport is owned by the Port Authority of New York and New Jersey.
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In a blog post published earlier this year, we noted the fact that the number of sales tax advisory opinions published by the New York State Tax Department had diminished precipitously over the past few years, to the point that, in 2019, the Department published only one advisory opinion. Just four years earlier, it had published 53. Because sales tax is such a fact-specific tax (a subtle change in underlying facts can cause a transaction to go from being nontaxable to taxable[1]), and because the stakes are so high (possible personal liability for those running the business), we pleaded with the Department to return to its previous level of activity and to start churning out advisory opinions. We indicated that the “[t]the students are here. We’re waiting for the master to (re)appear.”
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The upcoming legislative session is coming into focus with the recent issuance of the Governor’s Executive Budget (you can see our review here). Below is our review of the sales and use tax legislation that has been introduced so far this year along with the corresponding bill numbers. Two broad themes emerge: (1) New York is looking to increase revenue by taxing luxury and high end items, and (2) numerous local sales taxes have been extended.
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I’m not exactly sure where the aphorism in the title of this post comes from, but its message is clear: when you’re ready to know something, you’ll seek out a way to learn it. Well, I’ve been ready to learn everything there is to know about New York sales tax for a long time. And in years past, the New York State Tax Department has been a wonderful master. It has provided me with numerous ways to learn the complex rules governing New York sales tax. This information includes sales tax Publications, Bulletins, Memorandums, Guidances, Notices, form instructions, and Advisory Opinions.
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Here are the sales tax cases from the TiNY Blog for the week of February 13, 2020.
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Every now and then, we’re going to do a deep dive into a sales tax case that we previously reported on in the TiNY Blog. We keep the more abridged version in the TiNY Blog because, according to Chris Doyle, “Joe, your interest in the sales tax is at best annoying, and at worst pathological.”
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Here are the sales tax cases from the TiNY Blog for the week of January 16, 2020.
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Here are the sales tax cases from the TiNY Blog for the week of January 9, 2020
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Here are the sales tax cases from the TiNY Blog for the week of January 2, 2020.
Happy New Year TiNY readers! Not only has the year changed, but there are a few changes going on here at TiNY as well. You may have noticed a byline on the posts for the last few weeks and wondered what that was all about. Well, TiNY has added a new author to the mix, our own Joe Endres, to report on sales tax cases, and today is his debut!
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/practices-sales-use-tax-attorneys.htmlWe’ve discussed New York’s economic nexus rules for sales tax purposes several times in this blog. You can review these previous articles here, here and here. But, after a flurry of initial activity and confusion, now that these rules have seemingly settled, we thought it would be a good time to provide a more comprehensive recap of the state of economic nexus in New York.
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On June 20, 2019, both the NYS Assembly and Senate passed bills that made significant changes to the state’s treatment of two hot tax issues: the taxation of global intangible low-taxed income (“GILTI”), and the state’s threshold for establishing economic nexus for sales tax purposes. According to the Senate and Assembly websites, the legislation was signed into law by Governor Cuomo on June 24th.
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The New York State Division of Taxation and Finance (the “Department”) issued information entitled “FAQs related to registration requirement for businesses with no physical presence in NYS” (“FAQs”) on May 1, 2019 to address questions concerning sales tax collection by businesses without a physical presence in New York.
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New York’s Brownfield Cleanup Program (“BCP”) is one of the more effective tax-based incentive programs offered by the state. The BCP allows participants to remediate a contaminated piece of real property in exchange for tax credits that can total up to 50% of the qualified remediation costs incurred to clean the property, and 24% of the qualified construction costs incurred to develop the property after it has been remediated. These tax credits can be the difference between a lucrative development and one that is economically unfeasible.
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Public relations firms often advise clients to release controversial or negative news late in the day on Friday. People are less likely to pay attention to such news over the weekend and by the time Monday rolls around, the news cycle has typically moved on. That might have been what the New York State Department of Taxation and Finance had in mind when, at 4:39 PM on Friday, March 9th, it released its first sales tax advisory opinion of the year. In TSB-A-19(1)S, the Tax Department announced for the first time that an online marketplace can be held liable for the sales tax due on transactions that the marketplace facilitated. In other words, the Tax Department can hold both the individual vendor using the marketplace infrastructure and the marketplace itself liable for tax due on sales made through the marketplace. This is a dramatic, and we anticipate controversial, change in Tax Department policy.
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New York is one of the most, if not the most, aggressive states when it comes to tax enforcement. That’s why it was a bit confusing when the New York State Department of Taxation and Finance (the “Tax Department”) remained uncharacteristically silent following the landmark Supreme Court decision in South Dakota v. Wayfair. But that’s finally changed! On January 15, 2019, the Tax Department issued a Notice explaining its position on economic nexus for sales tax purposes. In this article, we’ll (1) provide a brief review of how the Wayfair case changed tax administration, (2) discuss New York’s new guidance, and (3) address some of the potential issues that are likely to arise as a result of this new guidance.
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The renewal period for Highway Use Tax registrations is just around the corner. The Tax Department, ever mindful of the leverage this affords, just sent out a slew of computer-generated notices that inform taxpayers with outstanding tax liabilities that the Department cannot issue them a renewed Certificate of Registration and decals until the liabilities are resolved.
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On March 7, 2018, the NY Tax Department issued its first income tax advisory opinion of the year. The content of the advisory opinion, a review of the rules governing the timing of the tax credits associated with the state’s Brownfield Cleanup Program, isn’t particularly noteworthy. What struck us here at Noonan’s Notes, and made the opinion blog-worthy, is the timing of the opinion. Though the Tax Department has many functions (e.g., return design and processing, enforcement/audit, tax collection, etc.), this opinion may illustrate that additional resources should be allocated to its interpretation and education functions.
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The New York State Department of Taxation and Finance issued a press release on September 26, reminding website designers and software developers of a sales tax exemption and warning them not to “miss out.” According to the press release, no state or local sales tax will be charged on the purchase of computer system hardware when it’s used more than 50% of the time to:
- Design and develop computer software for sale;
- Provide website design and development services for sale; or
- Provide a combination of the two uses described above.
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Just a friendly reminder that the first deadline for New York’s annual abandoned property due diligence mailings is quickly approaching. Here’s a quick recap of the deadlines and the rules governing New York’s abandoned property law.
If you’re a holder of abandoned property, you must file an annual report detailing the property and must remit the property to the state. A “holder” of abandoned property is any organization that possesses property legally owned by another. Most businesses hold some form of abandoned property whether they know it or not.
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The term “cloud computing” is broad enough to cover a vast array of transactions, all of which use the Internet in some fashion. Two of the most prevalent forms of cloud computing are “software as a service” (SaaS) and “infrastructure as a service” (IaaS). SaaS refers to transactions where software is accessed by a customer remotely over the Internet. The customer does not receive a copy of the software, and the software does not reside on the customer’s hardware. Rather, the customer gains access to the software typically by using its own Internet browser. IaaS refers to transactions where a customer remotely accesses hardware over the Internet. The customer never takes physical possession of the hardware. Rather, the customer accesses the service provider's hardware instead of purchasing and maintaining its own hardware.
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On May 18, 2015, the U.S. Supreme Court declared Maryland's resident tax credit structure unconstitutional because it subjected income earned outside the state to potential double taxation. The Supreme Court concluded in a 5 to 4 decision in Comptroller of the Treasury of Maryland v. Wynne that this structure impermissibly favored income earned within Maryland over income earned outside the state. According to the court, this effectively created a tariff that violated the dormant Commerce Clause of the U.S. Constitution.
Here's a quick review of the facts of the case. Brian and Karen Wynne are Maryland residents. Like most states, Maryland taxes residents on their worldwide income regardless of its source. In other words, Maryland residents can pay tax on income earned outside Maryland. In 2006, Brian Wynne owned stock in a Subchapter S corporation that operated and earned income in other states. In fact, the S corporation filed income tax returns in 39 states. The Wynnes reported the income that flowed through to them from the S corporation on their Maryland income tax returns but also claimed an income tax credit for taxes paid to other states. Almost every state tax code contains a similar credit. These credits are designed to avoid double taxation and to allow for the proper allocation of the tax burden to the jurisdiction where the income was earned.
The problem in the case arose because Maryland imposed two taxes, a state tax and a county tax. Despite imposing two taxes, the Maryland credit for taxes paid to other states only applied to the state tax, not the county tax. Thus, the Wynnes ended up being double taxed on the S corporation income. They paid tax to the states where the income was earned, and they paid the Maryland county tax on the same income. According to the Supreme Court, this scheme violated the dormant Commerce Clause of U.S. Constitution.
This case is notable for several reasons:
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Seventy Hodgson Russ attorneys have been named to the 2013 Upstate New York Super Lawyers (59 Hodgson Russ attorneys) and New York Metro Super Lawyers (11 Hodgson Russ attorneys).
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Multimedia & Podcasts
- Stupid Sales Tax Rules
Have you ever really looked into some of the distinctions between what makes an item taxable or nontaxable in New York? Well, we have, and some of the rules are just plain outrageous. Joe is joined by Mark Klein, Joe Endres, and Josh Lawrence to discuss some of New York State’s silliest sales tax rules. You’ll be shocked at how the tiniest difference can result in a hefty sales tax bill. The panel shares stories about some of the niche sales tax issues that have come up on audit.
- New York State Brownfield Program (Part 2): Tax Credits
Joe continues his conversation with Hodgson Russ partners Michael Hecker and Joseph Endres, as the trio discusses the dynamic Brownfield Program. The conversation shifts to the sizeable tax credits available to developers looking to take advantage of the Brownfield Program. Joe Endres highlights how these credits are calculated, claimed, and what scrutiny the tax department may use when reviewing Brownfield credit claims.
- New York State Brownfield Program (Part 1): Cleanup & Compliance
Joe is joined by Hodgson Russ LLP partners Michael Hecker and Joseph Endres to discuss the ins and outs of New York State’s Brownfield Program. Federal and State Brownfield Cleanup Programs (BCPs) present unique opportunities for revival of contaminated properties in economically blighted communities and turning barriers to development into productive commercial or industrial sites. These programs also serve as one of the tools that may be used alongside a wide array of other economic development programs to leverage dollars and investment for various types of redevelopments, while providing essential protections against long-term risk. Brownfield projects require a step-by-step understanding of the process in order to ensure those undertaking the project receive the maximum benefits available. Mike shares his expertise on the regulatory and operational compliance required to undertake a Brownfield Project, and the steps to be completed long before the benefit of the Brownfield tax credit can be received.
- Introduction to Sales Tax (Part 3): Audits
Our introduction to sales tax series comes to a close with an in depth discussion on the audit process. Have you ever wondered what happens in a New York State sales tax audit? Joe Tantillo and Joe Endres break down the ins and outs of the audit process. They discuss the rights of the taxpayer, audit procedure, and potential outcomes.
- Introduction To Sales Tax (Part 2): If I Sell It, Will They Tax?
The two Joes continue their sales tax discussion by venturing into the topic of taxability. They discuss the basics of the taxation of sales of tangible personal property versus sales of services. And Joe Endres poses some interesting hypotheticals about the applicability of the New York State sales tax.
- Introduction To Sales Tax (Part 1): Nexus
Joe is joined by sales tax expert and SALT attorney, Joe Endres, for the first part of our Introduction to Sales Tax Series. The pair discuss one of the most important issues in the world of sales tax: nexus. Often a threshold issue for companies trying to determine the taxability of their sales, nexus is the connection between a seller and a state that requires the seller to register then collect and remit sales tax in the state. Whether a seller has nexus with a given state can be a complicated matter even for the most experienced tax professionals. The two Joes break down the law of nexus and analyze the complexities of the law.