Order
Matter of 74 Wythe Restaurant Company, LLC, ALJ Taylor, August 17, 2023; Div’s Rep. Aliza Chase, Esq.; Pet’s Rep. Joseph Endres, Esq.; Articles 28 and 29.
The Division performed an audit and issued a Notice. Petitioner challenged the Notice in a BCMS Conference, but the Conferee sustained the Notice. Petitioner filed a Petition. The Division answered. Post-Answer, Petitioner filed a Demand for a Bill of Particulars, “requesting clarification of the statutory basis for the Division’s assessment … .” The Division made a motion to vacate the Demand, “alleging it [sought] evidentiary material and attorney work product rather than an amplification of its answer.”
And for what questions did Petitioner’s Demand seek answers?
- Is the Division’s position that Petitioner’s receipts at issue are taxable under Tax Law § 1105(d)?
- Is the Division’s position that Petitioner’s receipts at issue are taxable under Tax Law § 1105(f)(1)?
- Is the Division’s position that Petitioner’s receipts at issue are taxable under Tax Law § 1105(f)(3)?
- Is the Division’s position that Petitioner’s receipts are taxable under a provision of the Tax Law other than Tax Law § 1105(d), (f)(1), and (f)(3) and, if so, what other provisions?
Judge Taylor denied the Division’s motion, finding, “The Division has failed to explain how a request to identify the section or sections of the Tax Law that provide the basis for its rationale to assert sales tax constitutes seeking evidentiary material or attorney work product. … [And] The Division’s answer, left unamplified, falls far short of fully and completely advising Petitioner, or the Division of Tax Appeals for that matter, of its defense.”
If this were not one of our cases, I would have much to say about the conclusions that might be drawn from the Division’s unwillingness to provide the statutory basis for a Notice it issues asserting a liability. But since this is one of our cases, it’s “just the facts, ma’am. Just the facts.”
Determinations
Matter of Niazi, SALJ Gardiner, August 17, 2023; Div’s Rep. Brandon Batch, Esq.; Pet’s Rep. pro se; Articles 28 and 29.
The petition lacked a copy of the Notice or BCMS Order at issue. This deficiency was not cured by Petitioner even after a written request. So the Judge recognized Petitioner’s petition’s redundancy and then rightsized it.
Matter of SB Royal, Inc., SALJ Gardiner, August 17, 2023; Div’s Rep. Brendan Roche, Esq.; Pet’s Rep. pro se; Articles 28 and 29.
The petition was unsigned and lacked a copy of the Notice or BCMS Order at issue. These deficiencies were not cured by Petitioner following a written request. So the Judge relegated the case to the dismissed league.
