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1996-2 N.Y. Tax Cas. J-1 (1996)

handle is hein.nytax/nytcas0033 and id is 1 raw text is: 1996 New York Tax Cases J-1 STATE OF NEW YORK DIVISION OF TAX APPEALS In the Matter of the Petition of JOSEPH A. AND SUSAN E. BANCO DETERMINATION DTA NO. 813926 for Redetermination of a Deficiency or for Refund of Personal Income Tax under Article 22 of the Tax Law for the Years 1986, 1987 and 1988. Petitioners, Joseph A. and Susan E. Banco, 798 Langley Road, Amsterdam, New York 12010, filed a petition for redetermination of a deficiency or for refund of personal income tax under Article 22 of the Tax Law for the years 1986, 1987 and 1988. The Division of Taxation (the Division), by its representative, Steven U. Teitelbaum, Esq. (Herbert M. Friedman, Jr., Esq., of counsel), brought a motion dated October 20, 1995, returnable November 20, 1995, for an order directing the entry of summary determination in favor of the Division on the ground that petitioners failed to file a refund claim on their 1986, 1987 and 1988 personal income taxes within the three-year statute of limitations prescribed by Tax Law § 687. Petitioners, appearing pro se, did not respond to the motion. Upon review of all the papers filed in connection with this motion, Daniel J. Ranalli, Assistant Chief Administrative Law Judge, renders the following determination. FINDINGS OF FACT 1. In support of its motion for summary determination, the Division submitted an affidavit of its representative in which the Division asserts that, since petitioners did not file a refund claim on their 1986, 1987 and 1988 personal income taxes within three years from the time the returns were filed or two years from the time the taxes were paid, whichever was later, as directed by Tax Law § 687, petitioners' refund claim should be barred as untimely, the petition before the Division of Tax Appeals denied with prejudice and the motion for summary determination granted. The Division notes in its affidavit that while in June of 1994, former Governor Mario Cuomo authorized the payment of refunds to all taxpayers who (1) paid personal income tax on their Federal pension income and (2) had filed timely refund claims pursuant to Tax Law § 687, petitioners here failed to meet the second requirement. The Division argues that state statutory law concerning refunds controls in the instant case as the United States Supreme Court's decisions in Davis v. Michigan Department of Treasury (489 US 803, 103 L Ed 2d 891) and its progeny refused to require the retroactive application of

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