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.