Here are the sales tax cases from the TiNY Report for the week of November 18, 2024.
Order
Matter of Townhouse Builders Inc. (ALJ Luckina, October 31, 2024); Div’s Rep. Elizabeth Lyons, Esq.; Petitioner’s Rep. Herschel Friedman, CPA; Articles 28 and 29/Demand for a Bill of Particulars (Zoe Peppas).
Petitioner filed a petition at DTA in protest of a refund claim determination notice. The refund denial had argued Petitioner was not eligible for the refund and claimed additional information was needed. In response, Petitioner attached a statement to its petition with 36 separately numbered assertions of error made by the Division. The Division filed an Answer in response.
Petitioner then served the Division with a demand for a bill of particulars requesting the Division clarify statements made in the Division’s Answer, including information regarding the documents the Division considered in deciding to deny the claimed refund. The Division moved to vacate the demand, stating the demand sought “evidentiary material rather than an amplification of the Division’s answer, attorney work product, and particularization of issues upon which the Division does not bear the burden of proof.” Petitioner submitted an affidavit in opposition to the Division’s motion to vacate.
The use of a bill of particulars is to “prevent surprise at the hearing and to limit the scope of the proof.” Since it went well beyond that purpose, Petitioner’s demand was ruled by the ALJ to be overbroad. It sought evidentiary detail, questioned the Division’s legal interpretations, and sought particulars on issues for which the Division did not have the burden of proof.
On the other hand, the ALJ ruled that an Answer from the Division must fully and completely advise a petitioner of the Division’s defenses and if the Answer is too vague, the Division may be required to particularize its pleading. The Answer here was found by the Judge to lack some of the required specificity. It was unclear what documents were provided to and considered by Division when it denied the refund. And for Petitioner to be able to properly challenge the denial, it was crucial to clarify what documents were considered and why such documents were found to be insufficient or why additional documents were needed. The Judge found this fell squarely within the goal of a bill of particulars: “to prevent surprise at the hearing and to limit the scope of proof.”
The Division was accordingly directed to supply a bill of particulars to Petitioner in response to only two paragraphs of the Request that the Judge viewed as not being overbroad.
