New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Michael MacLeod v Robert l. Megna, as Commissioner of Taxation and Finance

 In this Article 78 case, the court reviewed a decision of the Tax Appeal Tribunal which uphold sales and use tax assessment required under Tax Law articles 28 and 2.

Petitioner was the president and sole shareholder of MJM Studios of New York, Inc. This was a New Jersey company that specialized in creating architectural enhancements of buildings in numerous states.

Respondent informed petitioner that they would be conducting a field audit and required access to all MJM’s records. Petitioner could not provide access to the records because they were in possession of a bankruptcy trustee. The auditor made several attempt to contact the bankruptcy trustee and also made several more requests of petitioner to provide the records. After the unsuccessful attempts, the auditor calculated an estimated sales and use tax based on deposits in MJM’s bank records and he adjusted through MJM’s franchise tax returns to include only New York sales. Following a conference, the assessed amount was reduced. In addition to a hearing, the Department agreed to further reduce the assessed amount.

The Tax Appeal Tribunal affirmed the tax assessment. Due to a statutory presumption that all money received by MJM for products and services were taxable, petitioner has the burden of establishing by “clear and convincing evidence” that the money was not taxable and the assessment was erroneous. He failed to prove that the capital improvement exemption applies.

Even though the records were in possession of the trustee, there was no evidence that petitioner attempted to retrieve the records for the auditor.Due to the lack of documentation from petitioner, the auditor needed to come up with its own method to determine the tax assessment.

The determination is confirmed, without costs, and petition dismissed.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In the Matter of Mark Scott v Brian Fischer, as Commissioner of Correctional Services, et al.

In this Article 78 cases, petitioner sought review of respondent’s conclusion which found petitioner guilty of violating certain prison disciplinary rules.

During a pat frisk of petitioner by a correction officer, petitioner seemed to have swallowed a foreign object that he was hiding in his mouth. He was, then, escorted to the hospital for an x-ray.

The x-ray revealed a razor blade wrapped in some type of material in his stomach. For the next few days, petitioner was placed on a contraband watch, but no razor blade turned up. In a misbehavior report, petitioner was charged with the following: (1) possessing a weapon, (2) possessing contraband, (3) violating search and frisk procedures and (4) possessing gang material. However, he was found of everything but of possessing gang material.

The determination was supported by the following substantial evidence: x-ray taken at the hospital, the misbehavior report, the testimony of the correction officer who authorized it, the testimony of the lieutenant who ordered the pat frisk, the testimony of the sergeant who was present at the pat frisk and the testimony of the nurse who reviewed the x-ray.

Petitioner, however, states that the determination is not supported by substantial evidence because the x-ray taken two days after the incident did not show any object in the petitioner stomach, nor was any contraband recovered.

The courts determination was confirmed, without costs, and petition was dismissed

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78

• Email This
• Print
• Comments
• Trackbacks
• Share Link