Posts by Christopher L. DoylePartner
There are an order and two determinations this week for your thoughtful consideration. The order refers to 36 separately numbered allegations of error by the Division. And, because I am of a certain age and it is Thanksgiving season, this triggered a memory of “Alice’s Restaurant Massacree” by Arlo Guthrie. The song was notable for its 1960s anti-establishment narrative and wry humor. It also took up one whole side of an album. For the benefit of you kids out there, albums were round vinyl media for delivering permanently embedded audio content. Back in the day, most album sides had between five to seven songs making up roughly 22 minutes of audio. In the 1970s and 1980s, we dinosaurs would re-record both sides of an album onto the single side of a 90-minute cassette tape so we could have two albums’ worth of music on one tape to play in our cars since there was no easy way to play a vinyl album in a moving vehicle.
TiNY has been off the air for the last few weeks while waiting for the DTA to provide enough content for us to prepare a Report with critical mass. Cases have been dribbling out recently, and over the last three weeks, there is just one Tribunal decision and one ALJ determination on which to report. We had hoped for more this week and were disappointed.
Still, the Decision and Determination were not process cases (i.e., neither case involved timeliness or other jurisdictional issues). So, at least there is some substance there.
The next TiNY Report will be post-election. Thank goodness. Talking heads of all stripes are launching their partisan grenades at a frequency that is impossible to ignore. Your editor yearns for simpler times when 95% of the news he needed came from the Weather Channel, ESPN, Tax Notes, Weekend Update, and the DTA website.
There were no decisions or determinations posted in the last two weeks. There was, however, an order posted each week.
And in other news: Prior to September 27, only lawyers, CPAs, enrolled agents, select employees and officers of businesses, and certain others (those with the Division of Tax Appeals’ permission) could represent taxpayers in matters before the DTA. As the result of a recent law change, taxpayers may now elect to be represented by their niece, babysitter, the kid who cuts their lawn, or anyone else who has achieved the wizened age of eighteen. Heaven help the first pimple-popping Rep that asks Judge Law to adjourn a hearing because it conflicts with their prom.
Welcome back, constant reader. There’s no snappy introduction this week since I have a lot of client work sitting on my desk. Instead, I have the following confessions:
I am a fan of the Buffalo Bills, and I am impressed by their control of the first three games. But … I am a fan of the Buffalo Bills, so I recognize that the records of the Bills’ first three opponents are a combined 2 wins and 7 losses. I am a fan of the Buffalo Bills, and I am optimistic, but only cautiously optimistic. I am a fan of the Buffalo Bills, so I believe that maybe this one time, Lucy will not pull the football off of the tee before I kick it.
There’s a bunch of jurisdictional boredom in last week’s cases. And there are a few nuggets: For instance, I admire the Tribunal for imposing, on its own motion, a frivolous petition penalty in one of the Decisions. And ALJ Chu-Fong dropped some breadcrumbs that might lead some COVID-era non-resident taxpayer-employees away from New York’s dark and ominous convenience of the employer forest and out into the sunshiny fields of bona fide business necessity. And with that overly long and tortured metaphor, I bid you adieu.
It seems like the DTA has been doing a bit of end-of-the-summer cleaning as we careen back into school-days mode. Most of the determinations posted over the last two weeks were summary dismissals of cases in which the petitions were deficient for a number of reasons. These determinations are very short, and our TiNY summaries are similarly brief. But there are a couple of cases that merited a more thorough analysis. So, enjoy!
The Kids are back to school and the DTA is back to issuing determinations and decisions that are mostly timies and dismissals for lack of jurisdiction. Matter of Bryant is of some interest in that the credit denial in that case was based on a lack of information from an agency that was not the NYS Tax Department. The taxpayer’s inability to get information from the other state agency was the reason he could not satisfy his burden of proving entitlement to the credit. It sounds like Petitioner made many attempts to get the information but was stymied. Did the information exist? Was the inability to retrieve the information due to some failure on the part of the other administrative agency? We’ll probably never know.
There were three determinations to report on this week, and a majority of them are not Timies! The two substantive cases address how to properly source income from a trade, business, or profession carried on, or previously carried on, in New York under Tax Law § 631. And in both cases, the Judges found that such sourcing needed to follow the path set forth in applicable regulations as required by the statute.
I didn’t watch any of the Olympics other than the part of the closing ceremonies when they cut from Paris to LA. But I heard that break dancing was an Olympic event in Paris for the first time – but it’s already been axed for the next Summer Games. Wow. Since the Summer Olympics are going to LA in 2028, maybe they can have an Olympic event like the contest at the end of “Eight Mile” when B-Rabbit resorts to a self-deprecating rap to dispatch Papa Doc. I liked that, so I’d probably watch something like that again. And like in Eight Mile, shouldn’t the audience (maybe the TV audience to avoid host-country bias) participate in the judging of certain Olympic events?
The IOC knows where to find me if it needs more suggestions.
The mental conversation I just conducted with myself:
“What should I write today about this TiNY Report being late again?”
“How about the truth? You have been diverting your non-billable attentions to the summer because ‘summertime is running out’ and ‘supplies are limited.’”
“No one cares about your personal life. How about ‘no excuses” since you have no excuses.”
“The Alice in Chains song ‘No Excuses?’ That’s a good one. For some reason that song reminds me of the Blues Traveler tune ‘The Mountains Win Again.’"
“Wow. 90s much?”
“Shut up.”
“No, you shut up.”
(nothingness)
We present a bunch of pent-up case summaries today, only a few of which have a worthwhile tale to tell. For my money (ed.: there’s actually no money involved) I recommend Saslaw, in which a pro se petitioner won a difficult responsible officer case; Rockaway Realty Associates, involving a local mortgage recording tax refund claim (a unicorn of a case if ever there was); and Lynch, discussing the limitation in the “548-day rule” prohibiting spouses from remaining in New York during the relevant period.
“It’s quiet. Too quiet.” This adage was first attributed to “The Lucky Texan” (1934), a western starring John Wayne, Barbara Sheldon, and Gabby Hayes. It is oft-repeated in movies (e.g., Shrek 2, Galaxy Quest, Sleepy Hollow) and television (Band of Brothers, Better Call Saul, The Wire).
It appears frequently. But the bit of dialogue including the trope that is most in-line with the ethos here at TiNY is:
“It sure is quiet out there.” “Yeah, too quiet.” “Looks like I picked the wrong week to quit sniffing glue.” (Airplane, 1980 – link here.)
Anyway, I was in the TiNY editorial offices on July 5, and it was quiet, too quiet. But quiet can be good, and in this case, it gave me some uninterrupted time to get caught up on a bunch of cases that were posted in June and were awaiting TiNY consideration.
There are five cases to summarize this week. Most address issues you’ve seen before. But, Matter of Vance touches on New York’s temporary de-coupling from the CARES Act and other post-March 1, 2020, Internal Revenue Code Amendments. I expect we’re going to see many cases in the future that discuss de-coupling issues since they are numerous, complex, and may produce anomalous results.
Next week we have a taxpayer victory on a sales tax issue to report. We know about it now because it was one of our cases. But, unfortunately, TiNY’s 13 or so loyal readers will need to wait until the next edition of TiNY.
We’ve enjoyed the steady flow of cases from the DTA of late. One of the reasons we write TiNY is that we are interested in how the judges and the Commissioners on the Tribunal view the cases. We have the most fun when we posit alternative views to get our readers to think critically about the cases and not simply accept them because the judges say this is how the law is supposed to work. It is less fun for us when we agree with the Judges since we don’t think we are bringing value to our twelve or so loyal readers to just report the news without providing insightful commentary. “We agree” is not insightful.
The decision and determination this week are not fun (for us, anyway). The order has a little entertainment value.
Your TiNY editor-in-chief took some time away over the long weekend and that led to the late posting of this week’s TiNY Report. The delay gave us some time to reflect on Hodgson Russ’s slick replacement website. When we commented favorably on the new site to our marketing personnel, we were told this interesting tidbit: When the old site was converted to the new site, spell check was automatically run. And 99% of the flagged words were found in the TiNY blog. Further investigation disclosed that sometimes the authors of TiNY make up words (The shock! The horror!). And I was reminded (not for the first time) that Hodgson Russ blogs are informational and need to accurately recount legal developments without the use of humor, sarcasm, or hyperbole. Hodgson Russ blogs are not to entertain, they are to inform. They are not a linguistic playground on which the authors might vent pent-up frustrations brought about by years of straight-jacketed legal writing. And they should never besmirch the language of Shakespeare by creating words.
Right. If you feel that way, perhaps you should read TiNY’s disclaimer.
This week we’re covering four determinations for your consideration. Two of them—Maragh and Somers—are worth a listen-to. The other two are songs that you liked a little when they first came out but now detest because they have been overplayed on your favorite radio station.
Those of us on the West Coast of New York are enjoying summerlike conditions this week. We rarely get temperatures in the 80s consistently in May because the prevailing southwesterly winds blow across 250 miles of 50-degree Lake Erie water before reaching our editorial offices. Usually that results in a chill. But this week we have been treated to several days of unseasonable warmth as we roll into the holiday weekend. It would be perfect weather to stand outside of Key Bank Center and watch the Sabres play in the Eastern Conference Finals on a portable Jumbotron. But they would need to make the playoffs first. Maybe next year?
And as I wrote the revised version of the second-to-last sentence in the above paragraph, I paused to consider whether it was most appropriate to use the plural or singular verb form when referring to the Sabres hockey team. The same goes for the Bills, Giants, Jets, etc. When one uses a team name that ends in “s” to refer to the team (and not the individuals making up the team), isn’t the team name a singular proper noun? Shouldn’t it be “The Sabres was victorious in its last game” and not “The Sabres were victorious in their last game?” I notice that every journalist I read treats team names ending in “s” as plural. In fact, it seems like team names are always treated as plural (e.g., “The Minnesota Wild are on a losing streak.”). But that doesn’t make sense to me. “Team” is a single noun, right?
And this grammar conundrum, constant readers, is an indication of the lengths one will go to avoid entering one’s time charges and editing TiNY.
To our three Canadian subscribers: The TiNY editorial staff hopes you enjoyed your Victoria Day long weekend and expressed appropriate homage to the long-reigning (63-plus years, second only to Queen Elizabeth!) and now long-departed Queen. As per Ray Davies: “Canada to India, Australia to Cornwall, Singapore to Hong Kong, From the West to the East, From the rich to the poor, Victoria loved them all.”
There are three determinations to report on this week.
Wow, wow, WOW! Some meaty, substantive tax law issues are addressed in this week’s DTA output of two Tribunal decisions, two ALJ determinations, and one ALJ order. PALs, and successors, and SaaS, oh my. And ALJ Law establishes (chronological) order in his court. Enjoy.
The Rangers and the Knicks are in the second round of their respective playoffs. That doesn’t seem to happen very often. The internet says the last year this occurred was 2013. But we’ve had a total eclipse of the sun this year, so maybe both teams being in round two simultaneously is another sign of the forthcoming apocalypse.
In a similar vein, the firm has an office in Toronto, and I visit that city frequently and very much enjoy my time there. I was thus somewhat verklempt when the Bruins knocked the Maple Leafs out of the playoffs last week. I did watch some of that series, and it was a good one, going the distance. There’s not a lot on television that is more compelling to me than a game seven in the Stanley Cup playoffs.
We’re reporting on a decision, two ALJ determinations and a bonus New York City ALJ determination this week.
Before getting into the cases, let us acknowledge that the better-late-than-never politicos in Albany have passed the 2024-25 New York State Program Budget and it has already been signed by the Governor. The Governor stuck to her “no increased tax rates on the wealthy” position even in the face of strong head winds produced by the leadership in the Assembly and Senate. Good for her. Look: She understands that New York can impose higher taxes on the wealthy, but that New York can’t compel the wealthy to pay those taxes when they may be avoided by moving to Florida, Tennessee, or Texas. And she understands it is relatively easy for the wealthy to move to states where they can pay less. So much less than a few years’ worth of tax savings for a moderately high-income person is enough to buy a really nice house in south Florida. Thank goodness there are still some in Albany who consider taxation a pragmatic endeavor.
There are two Determinations and two Orders this week. Of the three timies, two were resolved against the Division, which is statistically unusual. The other case involves the State’s dubious sales tax acceleration rule for motor vehicle leases. This case shows another instance in which New York is unjustly enriched by the lease rule which, in operation, results in New York collecting sales tax on lease payments even when the vehicle is registered outside of the State for extended periods during the lease. That’s just wrong.
And this week TiNY continues on its mission to disprove the adage that “sarcasm is the lowest form of wit” by offering a pun that would fit easily under the belly of even the most gravity-bound sarcastic comment.
Eclipse mania was dampened at TiNY’s editorial offices by the presence of clouds. In Western New York, we were supposed to enjoy a spectacular view of the totality for several minutes. But after two days of nothing but clear skies, the clouds moved in to darken the skies before the eclipse could darken the skies. And then, two hours after the event, bright sunny skies again. So, yeah, another situation in which Western New York approached the pinnacle only to be beaten down in the last moment. Add “cloud-obscured” to “thirteen seconds,” “wide right,” and “no goal.”
Two orders and one determination this week. The two orders are atypical timies. The determination is a typical timy.
I have an active imagination, and I use it to fill in the knowledge gaps I experience from not being privy to facts.
I reviewed this week’s cases and, unburdened with any facts or direct knowledge, imagined the following scenario which may not be accurate at all: In early 2023, the Powers That Be are informed that the then-current Supervising Administrative Law Judge is retiring and a new SALJ needs to be appointed. The appointee and the retiring SALJ get together and discuss a peaceful transition of power. Maybe the appointee asks: “What annoys you most about the job?” And the retiring SALJ says “I really don’t know what to do about petitions that arrive without the required information and attachments and are therefore facially invalid.” The appointee develops a system for addressing the issue: the DTA attempts to contact the petitioners by telephone and mail to give the petitioners an opportunity to cure the deficiencies in their petitions, and if there is no response or an inadequate response, the SALJ dismisses the petition. This works great for addressing deficient petitions if a telephone number has been provided. But there’s a bunch of petitions without telephone numbers that also need to be addressed. The appointee (now the new SALJ) develops a system to deal with those too but gives those petitioners more time to cure their petitions’ deficiencies since the petitioners or their advisors may only be contacted by mail, and the New SALJ determines that it is fairer to give those petitioners additional time. Plus, the appointee is busy with other administrative matters like keeping up with the steady flow of newly filed deficient petitions.
About a year after her appointment, and coincidentally a year (plus or minus) since letters were sent by the DTA to certain petitioners that filed facially deficient petitions, the new SALJ decides the time has come to start dismissing the insufficient petitions. Her first year of experience has taught her an important lesson: in the absence of applicable rules, she may chart her own course as long as it is even-handed and provides due process to the petitioners. So, she devises a new short-form “Determination Dismissing Petition” which she uses to dismiss facially deficient petitions, with prejudice. And that leads to the four one-page determinations posted on the Division’s website on March 28, 2024, and summarized below.
If the reality is close to what I imagine, kudos to SALJ Gardiner for devising a streamlined process for addressing facially deficient petitions so these can be removed from the docket.
In J.R.R. Tolkien’s “The Hobbit,” Bilbo and Gollum engage in a riddle contest. One of the riddles, edited (clumsily) for context, follows:
This thing all things devours; Birds, beasts, trees, flowers; Gnaws iron, bites steel; Grinds hard stones to meal; Case is dismissed when its limit missed; Slays king, ruins town, And beats mountain down.
One Decision this week. And if you are good at riddles, you probably guessed it involves time.
Greetings. Your editor-in-chief is a little late to the game this week. Was Sunday’s St. Patrick’s Day the culprit? Good guess, but no. I was taking a few days off this week and needed to push TiNY a couple of days past our normal Tuesday deadline to get a few client projects off my desk.
There are just two jurisdictional determinations to discuss. No surprises here.
“Mr. Speaker, the Editor-in-Chief of the TiNY Report.”
“Thank you. According to our subscriber statistics, TiNY added two loyal readers since last year. But we lost one of our original twelve to retirement. So, the net gain in loyal readers is plus-one, and our loyal readership is now thirteen!
“During the last year, the Editor-in-Chief undertook a mental ‘walk about’ a couple of times, leaving TiNY readers in a lurch. Now we have two additional writers to make certain we don’t go off the rails again.
“To summarize, the state of the TiNY Report is strong.”
And now back to our regularly scheduled programming.
In other New York State tax news: The New York State Assembly and Senate are working on their “one-house” budget bills so budget negotiations can progress as the April 1 deadline approaches. Some media outlets (e.g., Spectrum News) have said that the Democrats who control the Senate and Assembly are reportedly considering new “wealth taxes” as part of their discussions. If you are an appraiser or a state tax lawyer (like us!), new wealth taxes will be great for business. But, in the long run, such taxes will simply accelerate the movement of wealthy individuals out of the State, which is bad news for New York. And, along those lines, State Comptroller Thomas DiNapoli and Business Council President Heather Briccetti Mulligan had a joint Op-Ed published in the New York Daily News on Friday, March 8. The Op-Ed discussed New York’s recent and significant out-migration, particularly among those working in the financial service industry, and what that might mean for the State’s fiscal stability. And it ain’t good. The not-so-subtle message to the Legislature: “Be very careful. New York is teetering on the edge of the abyss.” Briccetti Mulligan is the leader of the State’s most visible and important pro-business association. DiNapoli is a Democrat. When they get together on an issue, legislators should take note.
But at least TiNY is in good shape, right?
A Tribunal decision and two ALJ timies were issued by the DTA on March 7, 2024. The Tribunal decision was on a cigarette tax penalty issue. Those sometimes get my blood a-boil, but this one did not. Am I mellowing?
Not likely.
I tried to think of something clever to write about this being the first TiNY Report ever covering cases posted on “Leap Day,” but I was unable to come up with anything. I have consulted the internet and the next year during which Leap Day falls on a Thursday is 2052. I’m pretty sure I won’t be writing for TiNY at that point. But I come from long-lived stock, so there’s a chance I’ll still be reading it during my nursing home breakfast of stewed prunes and Jack Daniels. What? If I make it to 2052, you’re going to tell me I can’t have whiskey for breakfast? Good luck with that.
There are exciting changes here at the TiNY editorial offices. My colleagues, Zoe Peppas and Peter Calleri, have agreed to help out on some of the case summaries. This week’s edition includes examples of our new authors’ work, and they seem worthy of TiNY’s high editorial standards. I hope you agree.
As editor-in-chief, I get to hold the pen last. So, TiNY’s twelve (or so) loyal readers should continue to blame me for anything written in TiNY that is wrong, offensive, or just plain stupid. And absent special acknowledgement, the introductory paragraphs will continue to be written by yours truly. We wouldn’t want to deprive you of my wit.
We are also revising our editorial schedule since we followed the old schedule only accidentally. Under our new schedule, we’ll post our summaries on the Tuesday following the Thursday the cases are issued by the DTA.
Finally, TiNY’s “Portraits in Courage” award this week goes to the Honorable Jennifer Baldwin, who was the Division’s advocate in Matter of E. & J. Gallo Winery and the ALJ in Matter of Charles.
This week: An observation from the middle of the road. Feel free to ignore it and skip directly to the case summaries if you correctly assume I am woefully ill-equipped to provide any sort of political commentary and should stick to tax.
Hi. I’m Chris, and I think I may be a “bothsider.”
As I write this, Comedian/Activist Jon Stewart is being lambasted by some for the content of his first Daily Show episode following a nine-year hiatus. In the episode Mr. Stewart took to task the presumptive presidential candidates from both major parties in a style that has been referred to as “bothsidesism” by certain commentators. Mr. Stewart doesn’t need me to defend him. He’s demonstrated that he can hold his own in pretty much any argument.* And the commendable ratings his return to the Daily Show attracted suggest that maybe there is a significant swath of “bothsider” Americans who: 1. Have healthy senses of humor, priority and proportion; 2. Appreciate when our late night talking heads identify and pillory hypocrites of every ilk biasing only in favor of whomever seems the most awkward or tone-deaf at the moment; and 3. Wonder how the heck the vociferous occupants of both extreme ends of the political spectrum were allowed to hijack political discourse and policy-making away from the occupants of the middle of the spectrum who now find themselves disenfranchised even though they hold an overwhelming majority.
Our Founding Fathers should have been less worried about the tyranny of the majority and more worried about the tyranny of the unrelentingly loud.
There were a decision and three determinations posted on February 15.
I am writing this on the day after “Super Sunday,” a day which for many Americans is “Mediocre Monday.” I read in the news that a poll indicated 17 million of us were planning to call in sick for work today, and I observed that the parking garage near my office was pretty empty this morning. Not me. I need to get out another edition of the TiNY report for my twelve or so loyal readers!
But before I get to the cases, let me make this pop culture observation: 2023’s Super Sunday commercials were much better than 2024’s. The 2024 Budweiser Clydesdale ad was pretty derivative, borrowing heavily from prior years’ efforts. And “Rudolph the Red Nosed Reindeer?” Not a solid effort. And most of the other commercials seemed like an effort to vomit into my TV as many famous people as possible in a 45 second window. Along these lines, I thought the Dunkin’ ad was worthy of comment. I love watching J-Lo, Ben Affleck, and Matt Damon act. Heck, I’d be in heaven just watching them read me the instructions for programming my Roomba. But the Dunkin’ ensemble commercial didn’t resonate with me, and I was really turned off when Tom Brady was added to the mess.
And normally I’d feel the same lack of appreciation toward a commercial featuring Western New York native Rob Gronkowski (Tom Brady’s Travis Kelce) in the totally irrelevant “Kick of Destiny” field goal challenge … except that FanDuel nimbly tacked on a Happy-Gilmore-esque homage to Carl Weathers who was in the K-o-D teaser commercials, and who passed away on February 1. It was both wry and poignant, which are two words that I rarely use when describing TV commercials.
On the other hand, I thought Disney+’s commercial featuring some of the more iconic phrases from its video library was pretty classy. A plain white screen with text. No voice-over. Understated background music. And some of the best-known quotes in video-dom. It had me at “When you wish upon a star.” Of course, it may not rise to the level of “Typical timey. Typical result.” But not everyone has my ear for catchy phrasing.
The DTA batted for the cycle on February 8, posting a decision, a determination and an ALJ order.
Over the past two weeks the Groundhog did not see his shadow, and there have been a decision, a determination, and two ALJ orders. None of these developments seem particularly noteworthy to me, but you may find something interesting, constant reader.
And now I can forget (for the umpteenth time) how to spell “Punxsutawney” for another year.
There’s only one Determination to analyze from last week, and it involves earned income credits. I don’t have a great love for these types of cases since: (1) they are generally fact-based cases that rarely involve subtle legal issues that require parsing the Tax Law to determine the proper application of the statute, (2) the petitioners often represent themselves resulting in positions that are not properly-framed or argued, (3) most of these cases are resolved based on the burden of proof, and those types of cases either bore or frustrate me; (4) the cost/benefit analysis of litigating these cases is illogical; (5) and I despair for the people who need to rely on earned income credits. The whole area of law just makes me sad.
And then I read this case, and I got a little mad too. Or maybe my emotional state is a Buffalo Bills play-off loss hangover.
I’m trying to get back into my normal rotation again, and the DTA accommodated me by posting four ALJ determinations yesterday. Three are ho-hums, but Time Warner is an interesting study of what happens when the digital economy collides with an analog statute. In a more rational world, the Legislature would recognize that antiquated statutes haven’t kept pace and would pass new laws that more clearly apply to modern transactions. But as my colleagues frequently remind me: “We don’t live in Christopia.” So, we are stuck with the Division and the courts trying to pound round-peg modern transactions into square-hole legacy laws. The result is an inefficient mess.
I’ve been off the air for a while. I took a vacation abroad that put me behind schedule, and it took until the holidays to dig out. But that wasn’t the only thing that was going on. During my vacation, the DTA issued a determination on one of our cases. As regular readers know, I try to “Joe Friday” the cases in which Hodgson represents the taxpayer. But I found this particular determination so irksome that I couldn’t objectively describe it.
And I froze-up. Yep, full-on “bloggers block.” Couldn’t write up a DTA case … for months.
But it’s time to get back on the horse. I am going to cover all the December cases in this edition of TiNY. I don’t plan on going back before then and covering the other cases that fell through the cracks. And the next time I get jammed-up like this, I’m just going to list the determination/decision’s name, indicate it is a Hodgson Russ case and not write it up.
A warm Fall “hello” to TiNY’s twelve (or so) regular readers. TiNY postings are sporadic, and in the past you have needed to search our website from time-to-time to see if a new TiNY was posted. That seemed silly to us. So we have a new way to make your access to TiNY easier. If you go to the TiNY page of the Hodgson Russ website there’s a new link in the “About this Blog” box labeled “Subscribe Here to Never Miss a TiNY Blog.” That link will take you to a registration form, and if you fill in the requested information, you’ll get a link to TiNY sent to you by email every time we push out a new issue. Then you won’t need to check back on our website to see if we’ve posted a new TiNY. You’re welcome.
My good colleagues in the Firm’s marketing group won’t like me saying this, but I gotta be me, and I don’t care if you enter fictitious information in the “Name” and “Company” lines of the registration form. I don’t want your personal information; I just want to make it easier for you to read TiNY. And I think the only thing I need for that is an email address. So, feel free to get creative with your entries on all of the lines other than the one for an email address. And thank you Mr. Bunny (first name “Bugs;” email b.bunny325@gmail.com); I’m truly honored that someone as famous as you cares to read my blathering.
As a third generation (on my father’s side) sailing enthusiast, I would be remiss if I did not acknowledge the passing of Jimmy Buffet. A parrot-head I was not. But I did like a whole lot of his music.
An order and 13(!) Determinations were posted on August 31. Four determinations were posted on September 7. Our headliner this issue is 100+ page magnum opus on a pre-reform Article 9-A case penned by Judge Maloney. But first, the Order.
**Editor's Note: You can now subscribe to Taxes in New York (TiNY) to ensure you never miss an update! To sign up, scroll down the TiNY website and click on the "Subscribe Here" link about halfway down the right side of the page.**
There are one order and six determinations to report here. In the aggregate the six determinations make up 18 pages of jurisprudence, and all six end with, “It is ORDERED, on the motion of the supervising administrative law judge, that the petition is dismissed with prejudice as of this date.” So … nothing much to see here.
Something I have been wondering about for a while: Why are certain petition resolutions nominated as “Orders” while others are nominated as “Determinations”? I had assumed that Orders resolve procedural motions, and determinations resolve substantive issues. But a summary determination can resolve a timeliness issue, so my assumption cannot be correct. And all of the “Determinations” this week resolve motions brought by the Supervising Administrative Law Judge (“SALJ”). Is it that Orders resolve non-final matters and Determinations resolve matters that may then be escalated to the Tribunal? Does it even matter?
For fun this week (since there was nothing fun about the six determinations), I applied my creativity to identify a few new euphemisms for “dismissed.”
There were four ALJ determinations posted on August 17, 2023. All were pre-hearing process determinations. How does one make interesting the analysis of three process dismissals and a timy dismissal? Try writing them up as haiku! For those unfamiliar with the format, haiku are brief poems in three lines and seventeen syllables. The first and third lines of a haiku are five syllables, and the middle line is seven syllables. They are intended to express, in elegant brevity, the essence of something the writer observed. History will, no doubt, judge me harshly for attempting to apply the haiku structure to TiNY case summaries.
The DTA snuck a few cases onto the website late on July 27, and I am just getting around to them now with the cases that dropped on August 3. There’s a Tribunal decision on a substantive legal issue, so, yay. And Judge Maloney, before whom I have appeared at least a couple of times, dropped a petitioner-favorable combination determination on a case involving the dark years between 2007 and 2014 when combination was all about substantial intercompany transactions.
According to Mentalfloss.com, the most covered pop song of all time is “Yesterday” by the Beatles. The most covered DTA issue is “Timy,” and this week’s rendition comes from a new voice (at least new to me), Judge Alexander Chu-Fong. His version sounds a lot like all the other versions I’ve heard.
Constant reader: Your TiNY correspondent was vacationing in Kingston, Ontario, Canada, last weekend. And I decided to not risk the wrath of Correspondent Spouse by working on TiNY during my time away. But now I am back. And … there were an order and two ALJ determinations posted. The order is not your ordinary timy, one of the determinations is a very ordinary timy, and the other determination involves a sales tax license revocation dispute.
A Tribunal Decision and an ALJ Determination were posted last week.
With respect to the Tribunal decision, in its write-up of the ALJ’s determination, TiNY provided the Tribunal with a road map to reverse what seemed to me to be (with due respect to the ALJ) an errant grant of summary determination. But, I guess my analysis was wrong (hey, it happens).
The best thing I can write about the DTA’s production this week is that I get to use both of the words TiNY has created in the same sentence. This week there is one Tribunal decision and one ALJ determination, and they are a timy and a costy, respectively. And, as Forrest Gump once mused, that’s all I have to say about that.
“It is a truth universally acknowledged, that a lawyer in possession of extra time, must be in want of a blog.”
And with that paraphrase, I welcome you, constant reader, to the “Pride and Prejudice” edition of TiNY.
I expressed a lack of sympathy for the plight of the petitioners involved in the cases I summarized last week. As I started reading through this week’s DTA production, my thinking was much more “on brand.” I am, after all, on “Team Taxpayer,” and I tend to revert to that norm absent some really annoying taxpayer antics. Anyway, I was easing back into my pro-taxpayer comfort zone when I read the last determination summarized below, and BAM!, I was blown right back into wondering just what-the-heck some Petitioners are thinking. And, not for the first time, I wondered whether the $500 frivolous pleading penalty is really a big enough deterrent.
I missed posting the May 4 edition of TiNY. I summarize the three timies that hit the DTA’s website on “Star Wars Day,” below. I couldn’t cover those cases that week because I was too busy helping the Hodgson Russ team get out our Alert on the revenue portions of the 2023-24 State Budget enacted during the first few days of May. And since TiNY is all about the Division of Tax Appeals, let me offer this slice of that Budget Alert:
This week the DTA posted three ALJ Determinations. What recent popular culture moment involves three? How about this week’s episode of “Ted Lasso” (SPOILER ALERT!) in which he informs the team of the four key aspects of the Total Football strategy the team is adopting? The four aspects are conditioning, versatility, awareness, and a fourth to be determined. So, really there are only three, at least for now. In any case, our theme for this week’s TiNY is borrowed from Coach Ted.
Sorry, loyal readers, but client work takes precedence, and I had a load these past few months. In addition, we have been hiring and training new colleagues here to be able to serve the rising tide of clientele seeking to move out of New York, or who are being audited merely because they had the temerity to move out of New York. And New Yorkers are not the only folks who feel disrespected by the internal tax laws of their states of residence; our residency client-base in states like California, Connecticut, Illinois, Massachusetts, and New Jersey has been growing too.
Loyal Readers: There are no cases on which to report this week, but it looks like I missed an ALJ Determination decided November 17 when I prepared last week’s report. It is summarized below.
My Thanksgiving dinner is mostly-digested and the snow on my lawn has mostly-melted. It is back to my regularly-scheduled programming, and this week my visit to the Division of Tax Appeals' website disclosed that the Tribunal posted two decisions and the ALJs issued three orders.
TiNY is back with commentary and analysis on another group of DTA cases.
TiNY is back after a brief public sabbatical! In this blog, we're taking a look at three weeks worth of recent cases.