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2000-2 N.Y. Tax Cas. J-1 (2000)

handle is hein.nytax/nytcas0045 and id is 1 raw text is: 2000 New York Tax Cases J-1 STATE OF NEW YORK DIVISION OF TAX APPEALS In the Matter of the Petition of KENNETH SCHUCK TRUCKING, INC. DETERMINATION DTA NO. 816129 for Revision of a Determination or for Refund of Highway Use Tax under Article 21 of the Tax Law for the Period April 1, 1990 through June 30, 1995.' Petitioner, Kenneth Schuck Trucking, Inc., 1030 Blue Barn Road, Allentown, Pennsylvania 18104, filed a petition for revision of a determination or for refund of highway use tax under Article 21 of the Tax Law for the period April 1, 1990 through June 30, 1995. A hearing was commenced before Catherine M. Bennett, Administrative Law Judge, at the offices of the Division of Tax Appeals, 500 Federal Street, Troy, New York, on June 15, 1998 at A.M., June 16, 1998 at 9:15 A.M., and June 17, 1999 at 10:15 A.M.; with a continuation at the offices of the Division of Tax Appeals at 641 Lexington Avenue, New York, New York on September 16, 1998 at 10:15 A.M., September 17, 1998 at 9:30 A.M., and continued to its conclusion on January 8, 1999 at 10:30 A.M., with all briefs to be submitted by July 17, 1999, which date began the six-month period for the issuance of this determination. Petitioner appeared by Joseph T. Bambrick, Jr. & Associates, P.C. (Joseph T. Bambrick, Esq.). The Division of Taxation appeared by Terrence M. Boyle, Esq. (John Matthews, Esq., of counsel). ISSUES I. Whether the Division of Taxation conducted a proper test period audit of petitioner's business operations. II. Whether an assessment of truck mileage tax and fuel use tax is a violation of the Commerce Clause of the United States Constitution. FINDINGS OF FACT 1. The Division of Taxation (Division) issued two notices of determination to petitioner, Kenneth Schuck Trucking, Inc., (Schuck), dated January 29, 1996. The first is an assessment of highway use tax, specifically truck mileage tax (TMT), in the amount of $263,906.57, plus interest and penalty in the amounts of $60,297.46 and $71,093.46, respectively, totaling $395,297.49, for the period April 1, 1990 through June 30, 1995. The original amount of TMT Post-hearing it was determined by the Division of Taxation that petitioner was not advised of an extension of the audit period beyond June 30, 1994, nor were records requested for such extended period. Pursuant to Adamides v. Chu (134 AD2d 776, 521 NYS2d 826), the tax assessed by the Division based upon an asserted lack of books and records, for the four quarters between July 1, 1994 and June 30, 1995, is canceled.

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