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.