Here are the sales tax cases from the TiNY Report for the week of August 20, 2024.
Determinations:
Matter of E Cars USA Inc. (ALJ Russo, August 8, 2024); Div’s Rep. Bruce Lennard, Esq.; Pet’s Rep. Lawrence Cole, CPA; Articles 28 and 29/Timy when a fraud penalty is asserted (Chris Doyle).
Petitioner challenged a Notice asserting a fraud penalty by filing a request for conciliation conference on September 11, 2023. The Notice carried a date of March 15, 2023, so the Conciliation Conferee issued an Order dismissing the Request as untimely. Petitioner challenged that Order by filing a timely Petition.
Judge Russo granted the Division’s motion for summary determination and sustained the Order dismissing the case. The Judge found that the Division established its standard procedures and that they were followed when the Division mailed the Notice to Petitioner’s last known address on March 15, 2023. The Judge also determined that a special 30-day deadline for filing the BCMS Request or DTA petition applied because the Notice asserted a fraud penalty. Accordingly, Petitioner’s request for Conciliation conference was many months late instead of only a few months late.
This case caused me to take a closer look at the statute (Tax Law § 2008.2(a)(iii)) imposing the special 30-day deadline. While the Judge’s determination appears correct on the merits, I wonder about the proper process in these cases. The statute requires a hearing be scheduled in ten days, and there is no provision for interlocutory motions like the motion for summary determination at issue in this case. While such motions are not prohibited, mandating a hearing be scheduled in ten days seems to preclude that possibility. It also precludes the possibility of an answer. Hmm.
