It seems like the DTA has been doing a bit of end-of-the-summer cleaning as we careen back into school-days mode. Most of the determinations posted over the last two weeks were summary dismissals of cases in which the petitions were deficient for a number of reasons. These determinations are very short, and our TiNY summaries are similarly brief. But there are a couple of cases that merited a more thorough analysis. So, enjoy!
Determinations
Matter of Burkard (ALJ Baldwin, August 29, 2024); Div’s Rep. Maria Matos, Esq.; Pet’s Rep. pro se; Article 22/Motion for Summary Determination (Chris Doyle).
Here’s what I surmise after reading the determination and making some logical inferences: Petitioner is on disability, and most of his monthly disability income is seized to pay child support. He generally has very little taxable income and no disposable income. He has been living on friend’s couches.
In 2022, he filed his 2019 personal income tax return reporting that he owed $536, but he did not pay that amount because he had no money. He was compelled to file a return so his daughters could attend school.
Anyway, the Division audited his return and reduced the tax owed to $156 plus penalties and interest. Great, right?
But Petitioner can’t afford to pay even that amount. And his inability to pay was pretty much his entire defense to the Division’s motion for summary determination.
Judge Baldwin agreed with the Division that there was no issue of triable fact since Petitioner did not dispute the amount he owed. Accordingly, the Judge granted the Division’s motion for summary determination.
I have no idea whether Petitioner was telling the truth in his letters to the court, but it seems like he has been kicked around pretty good. At the same time, the Division seems to have gone out of its way to reduce petitioner’s tax as much as possible.
I feel bad for Petitioner and want to reward the Division for what looks to me like meritorious behavior. Is there a TiNY solution to this TiNY problem? Check future blogs to see how this plays out.
Matter of TEG HC, Inc. (ALJ Behuniak, August 29,2024); Div’s Rep Collen McMahon, Esq.; Pet’s Rep. Darren Thomas, CPA; Article 24-A/PTET refund (Chris Doyle).
In 2021, Petitioner was an S corporation that elected into New York’s pass-through entity tax regime. It made an estimated tax payment of $86,000 on December 13, 2021. Petitioner filed an extension request without any additional payment on March 12, 2022. Then it filed its PTET return and paid the balance of the PTET it owed on September 14, 2022. Ho hum.
Turns out that Petitioner estimated a little low since it paid a PTET estimate of $86,000, but owed PTET of $2.4 million!
The Division issued a Notice of Demand for additional interest of $90,000. Penalties were not asserted. Petitioner challenged the Notice of Demand in both a Conciliation Conference and thereafter in a Petition for an ALJ hearing.
Judge Behuniak found that Tax Law § 173-a (2) explicitly denies recipients of properly issued Notices and Demands from challenging the amounts shown due on such notices through a hearing before the Division of Tax Appeals. Accordingly, the Judge summarily granted the Division’s motion to dismiss the petition. Given that the procedural rules of Article 22 generally apply to the PTET, one would expect that the interest could be paid, and then Petitioner could pursue a refund claim which could be heard by the DTA. But one might also expect that Petitioner will not prevail in that refund claim.
Matter of Weiner ; Matter of Preiss; Matter of Langiulli (Supervising ALJ Gardiner, August 29, 2024); Article ?/DTA’s jurisdiction (Zoe Peppas).
For all the cases, Petitioners filed ALJ petitions. However, Petitioners failed to provide copies of the statutory notices at issue along with their petitions. The Division requested copies of the statutory notices at issue, and none were provided to the Division. All three petitions were, accordingly, dismissed with prejudice.
Matter of Union Square Café II, LLC (Supervising ALJ Gardiner, September 5, 2024); Articles 28 and 29/DTA’s jurisdiction (Pete Calleri).
The petition in this matter was signed by an unqualified representative in violation of 20 NYCRR 3000.3(b)(7), and Petitioner failed to attach a copy of the statutory notice being protested as required by 20 NYCRR 3000.3(b)(8). The DTA made written requests that Petitioner remedy these errors, but Petitioner did not provide the information requested. Accordingly, the petition was dismissed.
Matter of Maltbie (Supervising ALJ Gardiner, September 5, 2004); Articles 28 and 29/DTA’s jurisdiction (Pete Calleri).
The petition in this matter was signed by an unqualified representative in violation of 20 NYCRR 3000.3(b)(7). The DTA made a written request that Petitioner remedy the error, but Petitioner did not sign the petition. Accordingly, the petition was dismissed.
Matter of Cimaglia (Supervising ALJ Gardiner, September 5, 2024); Articles 28 and 29/DTA’s jurisdiction (Pete Calleri).
The petition in this matter did not include a taxpayer identification number in violation of 20 NYCRR 3000.3(b)(10). The DTA made a written request that Petitioner remedy this error, but Petitioner did not provide the information requested. Accordingly, the petition was dismissed.
Matter of Hill (Supervising ALJ Gardiner, September 5, 2024); Article 22/DTA’s jurisdiction (Pete Calleri).
The petition in this matter did not include a copy of the statutory notice being protested in violation of NYCRR 3000.3(b)(8). The DTA made a written request that Petitioner remedy this error, but Petitioner did not provide the information requested. Accordingly, the petition was dismissed.
Matter of Gordon (Supervising ALJ Gardiner, September 5, 2024); Article 22/DTA’s jurisdiction (Pete Calleri).
The petition in this matter did not include a copy of the statutory notice being protested in violation of NYCRR 3000.3(b)(8). The DTA made a written request that Petitioner remedy this error, but Petitioner did not provide the information requested. Accordingly, the petition was dismissed.
