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Articles & Seminar Materials
- June 5 NYS Tax Litigation Seminar: Completion Certificate June 2, 2025
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- June 5 CPE Seminar: NYS Tax Litigation — Practice & Procedure April 28, 2025
- March 13 CPE Seminar: Supplementary Materials March 4, 2025
- Income Taxation of New York Trusts & 2025 Planning Strategies March 4, 2025
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Category Archives: NYS Tax Litigation
From Washington & Albany — Washington: New Taxes Arrive; Governor Cuomo: NY Taxes Too High
I. From Washington A rainbow of new federal income taxes arrived on January 1, 2014, led by the new 3.8 percent “Medicare” tax imposed by IRC §1411. Although enacted as part of the health care legislation of President Obama, … Continue reading
Posted in From Washington, NYS Dept. of Tax'n & Finance, NYS Tax Litigation
Tagged affordable care act, applicable exclusion amount, capital gains tax, division of tax appeals, estate planning, final regulations net investment income tax, income tax, medicare surtax, new york estate tax, nonresident trusts, payroll tax, phaseout of itemized deductions, President Obama, probate, tax legislation, tax planning
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From Federal Courts, NYS Courts & NYS Tax Tribunals: Recent Developments & 2013 Decisions of Note
I. Federal Courts The Supreme Court in United States v. Windsor declared unconstitutional Section 3 of the Defense of Marriage Act of 1996 (DOMA), as violating the due process clause of the Fifth Amendment, which guarantees every person equal protection … Continue reading
Posted in Federal Tax Litigation, From the Courts, Litigation, NYS Dept. of Tax'n & Finance, NYS Tax Litigation, NYS Tax Litigation, Sales Tax Litigation, Tax Planning
Tagged abuzaid v. mattox, Amazon v. nys tax appeals tribunal, division of tax appeals, matter of xerox corp. v. tax appeals tribunal, NYS Tax Litigation, obergfell v. kasich, syring v. u.s., tax appeals tribunal, tax litigation, u.s. v. blake, U.S. v. Windsor
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Tax News & Comment — May 2013
Posted in Asset Protection, Asset Protection Trusts, Criminal Penalties, Delaware Asset Protection Trusts, Divorce, Estate Litigation, Exclusion of Gain From Sale of Residence, Executor and Trustee Commissions, Federal Tax Litigation, Fiduciaries, Litigation, New York Criminal Tax, New York State Income Tax, NYS Dept. of Tax'n & Finance, NYS Penalties, NYS Tax Litigation, NYS Tax Litigation, Prenuptial Agreements, Property Transactions, Tax News & Comment, Treatises
Tagged categories of criminal tax fraud New York, constructive trust, equitable distribution new york, Executor Commissions, fiduciary commissions, IRS rulings, marital property, Medicare, new york criminal tax fraud, PLR 201310002, prenuptial agreement, separate property, Social Security, tax planning for divorce, treasury report on medicare and social security 2012, Trustee Commissions
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New York State Tax Litigation
View Outline: New York State Tax Litigation view outline: New York State Tax Litigation New York State Tax Litigation © 2011 David L. Silverman, J.D., LL.M. (Taxation) Law Offices of David L. Silverman 2001 Marcus Avenue, Suite 265A South Lake … Continue reading
Posted in New York State Tax Litigation, NYS Tax Litigation, Treatises
Tagged Article 78 Review Tax Appeals, BCMS Conciliation Conference, Matter of Chartair, New York State Division of Tax Appeals, New York State Tax Audits, NYS Sales Tax, NYS Sales Tax Disputes, NYS Tax Audits, tax appeals tribunal, Tax Appeals Tribunal Rules of Practice & Procedure
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New York State Tax Litigation
View Outline: New York State Tax Litigation view outline: New York State Tax Litigation New York State Tax Litigation © 2011 David L. Silverman, J.D., LL.M. (Taxation) Law Offices of David L. Silverman 2001 Marcus Avenue, Suite 265A South Lake … Continue reading
Posted in NYS Tax Litigation, Treatises
Tagged Article 78 Review Tax Appeals, BCMS Conciliation Conference, Matter of Chartair, New York State Division of Tax Appeals, New York State Tax Audits, NYS Sales Tax, NYS Sales Tax Disputes, NYS Tax Audits, tax appeals tribunal, Tax Appeals Tribunal Rules of Practice & Procedure
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Winning a Sales Tax Dispute in the Division of Tax Appeals
With the lure of interest, penalties, and large revenues upon which the sales tax is based, the Department of Taxation aggressively pursues sales tax revenue through audit. To emerge victorious in a sales tax dispute, the taxpayer should be conversant with some important principles involving sales tax litigation. Continue reading
Posted in NYS Tax Litigation, Sales Tax Litigation
Tagged arbitrary and capricious, audit methodology, auditor, books and records, extended audit period, external indices, extrapolation, hearing, Matter of Chartair 411 N.Y.S.2d 41, Matter of Christ Cella 477 NYS2d 858, Matter of James G. Kennedy 509 N.Y.S.2d 199, Matter of King Crab 522 N.Y.S.2d 978, Matter of W.T. Grant Company 2 NY2d 196, Matter of Yonkers Plumbing 403 N.Y.S.2d 792, NYS-DTF, rational basis, sales tax litigation, supporting records, test period, test period audit, understatement of tax, virtually impossible
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Article 78 Review of Tax Appeals Tribunal
Printer-friendly PDF: Article 78 Review of Tax Appeals Tribunal II.wpd A. Pre-Tribunal Adjudication The Bureau of Conciliation and Mediation Services (BCMS) comprises a separate operating bureau within the Division of Taxation, and reports directly to the Commissioner of Taxation and … Continue reading
Declaratory Relief Against NYS Department of Taxation & Finance in State Supreme Court
Tax disputes involving New York State are normally adjudicated in the New York State administrative tax tribunals. A “conciliation conference,” presided over by a “conferree” who is actually an employee of the Department of Taxation, usually commences the pas de deux. From there, the taxpayer may seek a hearing before an administrative law judge in the Division of Tax Appeals. An exception to an adverse decision by the ALJ may be taken to the Tax Appeals Tribunal. If the taxpayer loses, he may roll the dice again and appeal to the Appellate Division, Third Department, in Albany via an Article 78 proceeding. Leave to appeal to the Court of Appeals, rarely granted, may be sought if the taxpayer in the Appellate Division. In recent years, the U.S. Supreme Court has granted certiorari to relatively few petitioners involving substantive state tax issues. Continue reading
Northern District Finds Successive Tax Penalties Imposed by NYS-AG and NYS-DTF to be Unconstitutional
Finding that Tax Law § 481(1)(b)(i) effectively operates as a criminal penalty, the Northern District held that the assessment of a tax penalty by the Department of Taxation and Finance under § 481(1)(b)(i) following the taxpayer’s previous prosecution and conviction … Continue reading
APPEALING A DETERMINATION OF THE TAX APPEALS TRIBUNAL
The Tax Appeals tribunal sits as the final administrative tax tribunal. A CPLR Article 78 proceeding is the “dotted line” in the flowchart that brings the tax dispute out of administrative tribunal system and into the New York judicial court system. From a tax petitioner’s standpoint, Article 78 is far from perfect: it possesses treacherous statutes of limitations, it is inherently capable of providing only narrowly circumscribed relief, and it imposes onerous bonding requirements. Still, like the Spirit of St. Louis, Article 78 will at least take the taxpayer into the courtroom of the Appellate Division, where counsel may be able to convince the Court of reversible error below.
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COLLECTION OF RESPONSIBLE PERSON ASSESSMENT BARRED UNTIL JUDGMENT
Printer-friendly PDF: Collection of Responsible Person Assessment is Barred Until Judgment.wpd Tax Law §1138(a)(1) sets forth the procedure in which (i) sales tax is determined; (ii) the determination is mailed to the taxpayer (“Notice of Determination”); and (iii) 90-day appeal … Continue reading
Summary Determination May Enhance Tax Appeals Prospects
Printer-friendly PDF: Summary Determination May Enhance Tax Appeals Prospects.wpd Motions for Summary Judgment are common in civil practice. Any party may so move after issue has been joined if no triable issue of fact exists. CPLR 3212. Section 3000.9(c) of … Continue reading
Tax Appeals Tribunal Finds Pole Dancing Not Exempt from Sales Tax as a “Dramatic or Musical Arts Performance”
The Tax Appeals Tribunal by decision dated April 14, 2010, granting the exception of the Division of Taxation, reversing the Determination of ALJ Catherine Bennett, and sustaining the Notice of Determination, held that admission charges imposed on patrons to enter … Continue reading
Posted in NYS Tax Litigation
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Tax Appeals Tribunal Rejects Division’s Methodology as Lacking Rational Basis
Finding that the Division’s estimated methodology for determining taxable sales lacked a rational basis, the Tax Appeals Tribunal in two recent cases cancelled sales tax assessments. This office handled the appeal in the most recently decided case, In the Matter of Gulzar A. Khan and Ishtiaq Khan, DTA Nos. 820701 and 820702 (Sept. 4, 2008). Continue reading
IRS & NYS DTF Matters — August 2014
I. IRS Matters – August 2014 On July 11, a second federal judge ordered the IRS to account for missing emails of former director Lois Lerner. U.S. District Court Judge Reggie Walton has demanded an affidavit from an “appropriate official” … Continue reading →