TiNY Report

The DTA did very little in early November, but since then has been flooding its website with content. And the content is not always being posted by the DTA on Thursdays, which used to be the standard schedule. And that screws up TiNY’s production schedule. Who are we kidding? TiNY doesn’t have a schedule!

Rather than hit you with a mega-posting here, we’ll break the cases down into three episodes. This is the first episode in the series, but we’re not going to call it “Episode I.” Instead, it’s “Episode IV:  A New Hope.” Hey, if it was good enough for George Lucas, it’s good enough for TiNY. So:

About a month ago, in an administrative hearing agency far, far away …

[Cue TiNY’s theme music. If we had any. Which we don’t. TiNY is a blog, and like most blogs it doesn’t have any audio component. But if TiNY had theme music, it would be something topical like The Beatles’ “Tax Man” or The Kinks’ “Sunny Afternoon,” both of which are about the high levels of progressive taxes being imposed in the 1960s by the British Labor government headed by Harold Wilson. Feel free to fact-check me on this.]

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.

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. 

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.

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.

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.