New York – Appeal Dismissed Due to Late Filing

SALT Report 1314 –  A New York taxpayer filed a petition with the Division of Tax Appeals challenging a sales and use tax assessment for the period of June 1, 1988 through August 31 1991. The taxpayer is requesting a refund in the amount of $732,501.45, plus penalties and interest.

The taxpayer’s petition alleges the following:

  • He never received a copy of the Notice of Determination at his last known address, by certified mail, as required by law, and
  • He never received a Conciliation Order
In New York, taxpayer’s may challenge an assessment of sales and use taxes by either:
  • Filing a request for a conciliation conference with BCMS or,
  • Bypassing the BCMS conciliation conference option and filing a petition for a hearing with the Division of Tax Appeals.
For either option, New York law requires the taxpayer to file a request for a BCMS conference or a petition requesting a hearing within 90-days of receiving the statutory notice assessing the tax (Tax Law § 1138[a] § 170[3-1][e]).
The DTA submitted evidence that the taxpayer did, in fact, receive a conciliation conference notice and that a conciliation order had been properly mailed to the taxpayer’s last known address by certified mail on November 3, 1995.  However, the taxpayer did not file a petition appealing the order until May 7, 2010, which was clearly outside of the 90 day period.
Therefore, the New York Tax Appeals Tribunal determined that there was no jurisdiction to proceed because the appeal was not filed in a timely manner and the taxpayer’s petition was dismissed.
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