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 (and our write-up of that order 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.
