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1993-3 N.Y. Tax Cas. J-1 (1993)

handle is hein.nytax/nytcas0020 and id is 1 raw text is: 1993 New York Tax Cases J-1 STATE OF NEW YORK DIVISION OF TAX APPEALS In the Matter of the Petition of GEORGE E. BAILEY DETERMINATION DTA NO. 806321 for Redetermination of a Deficiency or for Refund of Personal Income Tax under Article 22 of the Tax Law for the Year 1976. Petitioner George E. Bailey, 1016 Glenwood Boulevard, Schenectady, New York 12308 filed a petition for redetermination of a deficiency or for refund of personal income tax under Article 22 of the Tax Law for the year 1976. A hearing was held before Catherine H. Bennett, Administrative Law Judge, at the offices of the Division of Tax Appeals, 500 Federal Street, Troy, New York on October 17, 1991 at 9:15 A.M., with all briefs to be submitted by April 24, 1992. Petitioner, who appeared =g x, submitted a suppiemental affidavit on January 31, 1992. The Division of Taxation, appearing by William F. Collins, Esq. (Arnold M. Glass, Esq., of counsel), .ave notice that it would not submit a brief on May 7, 1992. ISSUES I. Whether petitioner is subject to a penalty imposed pursuant to Tax Law § 685(g) as a person who willfully failed to collect, truthfully account for and pay overwithholding taxes due. I. If so, whether petitioner is liable for the entire penalty or whether the Division of Taxation should attempt to collect a proportionate share thereof from the other corporate officer and shareholder. III. Whether Article 3-A of the Lien Law precludes the Division of Taxation from proceeding against petitioner. FINDINGS OF FACT 1. Bailey Construction Company, Inc. (Bailey Construction), incorporated in 1969, is a construction company operating primarily as a general contractor performing public improvement contracts for governmental entities. Petitioner, George E. Bailey, president of the corporation, and his wife, Constance Bailey, secretary-treasurer, were sole owners of Bailey Construction, each holding a 50 percent share of the corporation's stock. Petitioner drew a salary from Bailey Construction and was responsible for designing and bidding projects, and providing oversight for purchasing and

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