Ariele focuses her practice on state and local tax matters, including civil and criminal tax controversies, with an emphasis on New York State tax litigation. Her experience includes personal income, franchise, sales and use, and fuel taxes. Ariele has successfully represented clients before state agencies and in state and federal court actions and appeals. She also advises clients on tax planning, residency planning, and other administrative law matters.
A considerable portion of Ariele’s practice centers on state residency and allocation issues. This includes advising clients prospectively as they are planning a move to a new location, and also representing individuals facing state residency audits and appeals. Ariele also counsels business owners regarding complex multistate tax and allocation issues, which often accompany residency changes.
Ariele also has significant experience handling matters under the New York State Freedom of Information Law (FOIL) and the federal Freedom of Information Act (FOIA). She frequently uses FOIL and FOIA to obtain records from state and federal agencies, and has also successfully appealed a host of agency determinations denying FOIA and FOIL requests.
In addition to her legal practice, Ariele is a frequent speaker on state and local tax issues to local and national audiences. She also co-authors the New York Tax Litigation chapter in Thomson Reuters’ Commercial Litigation in New York State Courts treatise.
Prior to joining Hodgson Russ, Ariele was a law clerk at the New York State Division of Tax Appeals and Tax Appeals Tribunal.
Representative Work
Recognitions
- Listed, Best Lawyers in America Ones to Watch (Litigation & Controversy - Tax) 2023-2024
- Listed, Best Lawyers in America Ones to Watch (Tax Law) 2023 - 2024
- Listed, Upstate New York Super Lawyers Rising Stars (Tax) 2017 - 2023
- Albany Law School of Union University Class of 2012 Tax Law Prize
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We’re back to our regularly scheduled programming. For the last two weeks, we took a break from tracking legislative developments to provide a summary of the proposed tax changes in Governor Cuomo’s Executive Budget for fiscal year 2022. In addition to our overall summary of the Executive Budget, we also took an in-depth look at some of the more noteworthy changes. (See here, here, and here.)
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Welcome to our second post dedicated to providing a summary of the proposed tax changes in Governor Cuomo’s Executive Budget for fiscal year 2022. The Executive Budget proposes to enact new taxes, credits, and other initiatives, aimed largely at mitigating the revenue shortfalls caused by the COVID-19 pandemic, and are broken down into the following categories:
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We’re back! This week, we have dedicated the post to providing a summary of the proposed tax changes in Governor Cuomo’s Executive Budget for fiscal year 2022. We’ve already covered some of the proposed tax changes in the Executive Budget that came out late last month (see here, here, and here). The Budget Proposal sets forth new taxes, credits, and other initiatives, aimed largely at mitigating the revenue shortfalls caused by the COVID-19 pandemic, and are broken down into the following categories:
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We’re back with another update on recently-introduced tax legislation. As discussed last week, we continue to see bills reintroduced that expired at the end of the last session. Two of the more interesting proposals include repealing New York’s estate tax and another so-called “millionaire’s tax.” We’ve also been following the proposed tax changes in the Governor’s Budget proposal that came out earlier this week (see here, here, and here), and next week we’ll dedicate our update to an overall summary of the Budget proposals.
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We’re back with another update on recently-introduced tax legislation. As discussed last week, we continue to see bills reintroduced that expired at the end of the last session. Two of the more interesting proposals include a bill addressing the taxability of carried interest for investment management services and another proposing a new personal income surcharge on high-income residents of New York City.
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With the start of New York’s new Legislative Session for the 2021-22 term, we are eagerly anticipating the introduction of new tax legislation and we plan to cover those developments here. We’ll be tracking all noteworthy legislative developments on a weekly or bi-weekly basis, and this is our first installment of 2021.
As expected, we are already seeing bills reintroduced that expired at the end of the last session. Given the uptick in working remotely due to COVID-19, one of the more interesting proposals addresses the tax treatment of telecommuting employees. While some of these efforts may fail, New York is experiencing multibillion-dollar revenue shortfalls and will be increasingly looking to businesses and high earners to ease the revenue shortfalls being faced due to the COVID-19 pandemic.
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This blog post will cover several noteworthy, recently-introduced pieces of New York tax legislation. While these bills are set to expire today at the end of the current legislative session, these bills may be reintroduced when the new legislative session begins in January 2021. If ultimately passed, these new pieces of legislation could have a significant impact on New York taxpayers, so we plan to keep these bills on our radar and track their progression through the legislative process when the new session begins.
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The New York State Tax Department released new guidance last week in TSB-M-20(2)S addressing potential avenues for relief for those assessed as responsible persons for sales tax. This new TSB-M largely mirrors amendments to Tax Law § 1133(a) that were enacted as part of the budget legislation for fiscal 2018-2019 which we covered here and here. That legislation established statutory relief for certain limited partners and LLC members who were assessed and held jointly and severally liable for sales tax assessments solely by virtue of their interest in a partnership or LLC. To qualify for relief, eligible limited partners and LLC members must principally show that: (i) they were not under a duty to act for the LLC or partnership in complying with the requirements of the sales tax; and (ii) their ownership interest and the percentage of their distributive share of the profits and losses of the LLC or partnership are each less than 50%.
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Late last week, New York’s Attorney General Letitia James filed a Superseding Complaint against a photo and video equipment retailer, B&H Foto & Electronics Corp., in New York County Supreme Court. The Superseding Complaint alleges various violations by the retailer under New York State’s Tax Law, False Claims Act, and the Executive Law, spanning the past two decades. A whistleblower actually filed the qui tam civil suit under seal in early 2016, after which New York State was given time to investigate the matter. But it wasn’t until just recently that the Attorney General’s office notified the court of its decision to supersede the whistleblower’s complaint and, in doing so, converted the whistleblower’s complaint into a civil enforcement action by the Attorney General.
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As the kids were out trick-or-treating last night, The New York Times dropped yet another bombshell concerning ongoing potential tax issues for President Trump. But this one did not concern requests for copies of his tax returns; this one was generated by the President himself.
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Last week, New York’s highest court issued a disappointing blow to our New York “Wynne challenges,” the two cases brought to challenge the double taxation scheme that applies to taxpayers who are dual residents in New York and another state. In both cases, Chamberlain and Edelman (previously covered here), we argued that the U.S. Supreme Court’s 2015 decision in Comptroller v. Wynne upended New York’s prior precedent on this issue (Tamagni v. Tax Appeals Tribunal). But the Court declined to hear the taxpayers’ appeals from the lower court decisions, and did so by way of two two-sentence orders with no analysis or explanation.
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The renewal period for Highway Use Tax registrations is just around the corner. The Tax Department, ever mindful of the leverage this affords, just sent out a slew of computer-generated notices that inform taxpayers with outstanding tax liabilities that the Department cannot issue them a renewed Certificate of Registration and decals until the liabilities are resolved.
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As state tax lawyers, we are often asked for advice on navigating different—and often competing—state tax schemes. The law in this area is subject to a handful of constitutional limitations. For instance, the Commerce Clause requires (among other things) that state taxes be fairly apportioned. So in the case of nonresidents and other out-of-state or multistate taxpayers, many state tax schemes determine the taxability of a transaction or person based on the numbers of days spent in the taxing state. Consequently, our advice to nonresident taxpayers often turns on the number of “days” involved. This concept of counting “days” is actually pretty important in our world! But one thing that can be interesting in these cases is seeing how different states treat seemingly similar situations or transactions.
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New Tribunal Case Offers Up a New Framework for Answering this Question
New York’s two-part test for statutory residency has been heavily litigated over the years, and one of the biggest issues has involved the determination as to whether a taxpayer maintained a “permanent place of abode.” In 2014, the State’s highest court in Gaied v. NYS Tax Appeals Tribunal struck down the Tax Department’s overly-broad interpretation of “permanent place of abode” in favor of a more sensible interpretation. In doing so, the High Court declared that in order for a place to constitute a permanent place of abode (“PPA”), “there must be some basis to conclude that the dwelling was utilized as the taxpayer’s residence.” And later in the decision, the Court opined that to qualify as a PPA, “the taxpayer must, himself, have a residential interest in the property”
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On October 17, 2017, the New York State Division of Tax Appeals and Tax Appeals Tribunal (collectively “DTA”) submitted its annual report to the Governor and heads of the Senate and Assembly for the 2016-17 fiscal year. Numbers-wise, we don’t see a tremendous change over last year in the outcomes of Administrative Law Judge and Tax Appeals Tribunal cases.
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For years, there have been whispers about a big 2017 tax issue for hedge-fund managers. What’s the deal?
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Last Friday, members of the NYS Legislature introduced a bill aimed at clarifying the definition of “permanent place of abode” under Tax Law § 605(b)(1)(B) for statutory residency purposes. Under that statute, a person is generally taxable as a resident if they meet a two-pronged test: (1) maintain a “permanent place of abode” in New York and (2) spend more than 183 days in New York.
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For years, practitioners and taxpayers have struggled with the cumbersome, four-page power-of-attorney form that the New York Tax Department has required taxpayers to use when they wanted to appoint a representative to help them with their tax matter.
But this week, the NYS Tax Department rolled out a new web application where POAs can be filed online.
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Over the weekend of April 8-9 the Legislature passed the Budget for New York’s 2107-18 fiscal year which started April 1. On April 10, the Governor signed the legislation.
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Governor Cuomo’s proposed budget legislation for fiscal 2017-18 was released on January 18, 2017. In his briefing that evening, the governor remarked that one of the “main aspects of this budget is tax policy.” That’s certainly one way to captivate the attention of tax practitioners!
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The NYS Tax Department’s ongoing efforts to combat identify theft and deter fraud have yielded a new requirement for this filing season. Beginning with the 2016 tax year, all e-filed personal income tax returns must provide certain information from the taxpayer’s state-issued driver’s license or non-driver ID.
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Chicago lawyer Stephen Diamond has made quite a name for himself in recent years for his perceived abuse of the Illinois False Claims Act (“FCA”). Many believe Diamond is misusing the FCA or is using it for self-serving reasons not consistent with the FCA’s intent.
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Chicago lawyer Stephen Diamond has made quite a name for himself in recent years for his perceived abuse of the Illinois False Claims Act (“FCA”). Many believe Diamond is misusing the FCA or is using it for self-serving reasons not consistent with the FCA’s intent.
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Chicago lawyer Stephen Diamond has made quite a name for himself in recent years for his perceived abuse of the Illinois False Claims Act (“FCA”). Many believe Diamond is misusing the FCA or is using it for self-serving reasons not consistent with the FCA’s intent.
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Chicago lawyer Stephen Diamond has made quite a name for himself in recent years for his perceived abuse of the Illinois False Claims Act (“FCA”). Many believe Diamond is misusing the FCA or is using it for self-serving reasons not consistent with the FCA’s intent.
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Chicago lawyer Stephen Diamond has made quite a name for himself in recent years for his perceived abuse of the Illinois False Claims Act (“FCA”). Many believe Diamond is misusing the FCA or is using it for self-serving reasons not consistent with the FCA’s intent.
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Last week, Governor Cuomo announced the latest round of grants to
district attorneys’ offices in 29 New York State counties under the Crimes
Against Revenue Program (also known as “CARP”). The program provides substantial monetary grants to district attorneys’ offices in the state to investigate and prosecute crimes against the public fisc. - Blog Post
A noteworthy determination was issued earlier this month by one of the Division of Tax Appeals’ administrative law judges. Judge Bennett found in Matter of Chery that the Division of Taxation improperly denied the petitioning taxpayer’s status as a real estate professional, as reported on his federal income tax return. Consequently, the taxpayer was entitled to claim Schedule E rental losses from two rental properties – not only on his federal return, but on his New York State return as well.This case highlights some of the hazards of a trend we’re seeing with increasing frequency: the New York State Tax Department conducting audits focused on taxpayers’ federal income tax returns. This case and others beg the question: to what extent, if any, should New York State auditors be auditing federal tax returns?
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Earlier this month, the Annual Report of the New York State Division of Tax Appeals and Tax Appeals Tribunal for fiscal 2014-15 was submitted to the governor and the heads of the Senate and Assembly. Last year, we offered our analysis of the report for fiscal 2013-14. Keeping with that tradition, there are a few things to note about this year’s report.First and foremost: according to the numbers, it is getting tougher to win. Considerably tougher, actually. Here’s the analysis of Administrative Law Judge determinations from this year’s report, as compared to the numbers in the two prior years:
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Earlier this year, Governor Cuomo announced that 28 district attorneys’ offices around the state would receive grants totaling nearly $15 million under New York’s Crimes Against Revenue Program (CARP), which provides substantial monetary grants to district attorneys’ offices in the state to investigate and prosecute crimes against the public fisc. Using CARP funds, DAs in cash-strapped counties can secure resources for staff and other expenses to investigate and prosecute tax crimes. From what we’re seeing, they’re doing just that. - Blog Post
In a few short years, marijuana has gone from being widely regarded as an illicit drug to being legalized for medical purposes in 23 states and for recreational purposes in four states – with others expected to follow suit in short order. New York State jumped on the bandwagon last year with the enactment of the Compassionate Care Act (the Act), a highly-regulated medical marijuana program. In fact, the Department of Health is currently accepting applications from would-be “registered organizations” (ROs) aspiring to be among the five ROs to receive the department’s blessing to cultivate and dispense medical marijuana from up to four locations around the state. So why would sophisticated tax bloggers like us care? As tax nerds, we see tax issues everywhere! Indeed, the potential for states to grow tax revenue from marijuana sales has been a selling point on much of the state-level marijuana legislation from the outset. The potential is great: Colorado collected over $50 million in tax revenues and related fees in its first year. New York State, never one to forego a new tax, adds a new Article 20-B to the Tax Law under the Compassionate Care Act. Article 20-B imposes a 7% excise tax on every sale of medical marijuana by an RO to a “certified patient” or “designated caregiver” – both defined terms under the Act. That’s a pretty high tax rate…
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