Here are the sales tax cases from the TiNY Blog for the week of June 6, 2024.
Decisions:
Matter of United Deli and Grocery (June 13, 2024); Div’s Rep. Elizabeth Lyons, Esq.; Pet’s Rep. Jonathan Koren, Esq.; Articles 28 and 29/Timy (Chris Doyle).
The Tribunal agreed with the ALJ that the Division proved both its standard mailing practices and that they were followed when it mailed the Notice to Petitioner’s last known address on February 28, 2022. Therefore, Petitioner’s petition filed on June 23, 2022, was late, and the DTA didn’t have the jurisdiction to hear the case.
On Exception, Petitioner raised the argument that the certified mailing record, which was part of the proof of mailing, was prepared ten days prior to the actual mailing of the notice and that such a gap between CMR preparation and mailing was not consistent with the Division’s standard practices. But the Tribunal found that the preparation of a CMR several days prior to the actual mailing date was standard practice, and thus the Division had proven proper mailing.
And here is a job I wouldn’t mind delegating to Artificial Intelligence: go through all of the decisions and determinations discussing timeliness and compare the affidavits summarized by the Commissioners/Judges to see if there are any discrepancies in what is claimed to be “standard procedures.”
Determinations:
Matter of 74 Wythe Restaurant Company LLC, et. al. (ALJ Taylor, June 6, 2024); Div’s Rep. Aliza Chase, Esq.; Pet’s Reps. Joseph Endres, Esq. and Ariele Dolittle, Esq.; Articles 28 and 29/Admission Charges (Chris Doyle).
There’s a lot here, and some of it is good beach reading. I particularly liked the passage in the Findings of Fact that starts with “The Division asserted that petitioner’s admission charges were taxable because ‘the concerts performed at the night club do not fall under the category of ‘live dramatic or musical arts’ performances.’” It continues with “On August 17, 2023, the [Judge] ordered the Division to provide the statutory basis or bases on which the Division based its determinations to assess additional sales tax. The Division responded on September 12, 2023, stating that it based its determination to assess sales tax on admission charges to Output on three alternative statutory provisions: Tax Law § 1105(d), (f)(1), or (f)(3).” And ends with “[the auditor] testified that she did not believe that she concluded that petitioner’s admission charges were subject to sales tax under Tax Law § 1105(d) and that she was unfamiliar with that particular section of the Tax Law.”
But because this is a Hodgson Russ case, TiNY will follow its “Joe Friday” policy and avoid my usual snarky editorial comments.
Petitioner operated a music venue that provided DJ-curated and -performed electronic musical entertainment. The Department viewed this as being something other than a live musical performance and thus subject to sales tax. You see, admission to some places of amusement and entertainment are subject to sales tax, but venues providing live musical entertainment are, by statute, excluded from the tax on admissions (with certain exceptions not relevant in this case). Petitioner brought in a PhD in electronic dance music as an expert witness. The Doctor testified that a DJ performance is a live musical performance, giving examples of the improvisational and creative elements that go into such performance. And the Doctor contrasted performance DJs and wedding DJs or radio DJs who simply play recorded songs.
Judge Taylor agreed that Petitioner’s admission charges to see DJs perform at its music venue were exempt from sales tax.
Just the facts, ma’am.
