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2005-2 N.Y. Tax Cas. J-1 (2005)

handle is hein.nytax/nytcas0055 and id is 1 raw text is: 2005 New York Tax Cases J-1 STATE OF NEW YORK DIVISION OF TAX APPEALS In the Matter of the Petition of MOPAK SERVICE CENTER, INC. DETERMINATION DTA NO. 819386 for Revision of a Determination or for Refund of Sales and Use Taxes under Articles 28 and 29 of the Tax Law for the Period December 1, 1997 through November 30, 2000. Petitioner, Mopak Service Center, Inc., filed a petition for revision of a determination or for refund of sales and use taxes under Articles 28 and 29 of the Tax Law for the period December 1, 1997 through November 30, 2000. A hearing was held before Frank W. Barrie, Administrative Law Judge, at the offices of the Division of Tax Appeals, 641 Lexington Avenue, New York, New York, on December 30, 2003 at 10:30 A.M., with all briefs to be submitted by August 6, 2004, which date began the six- month period for the issuance of this determination. Petitioner appeared by Charlotte Betts, Esq. The Division of Taxation appeared by Christopher C. O'Brien, Esq. (Jennifer A. Murphy, Esq. of counsel). ISSUES I. Whether the Division of Taxation properly estimated petitioner's taxable fuel sales. II. Whether petitioner has substantiated that it overreported nonfuel sales so that it is entitled to an offset against any additional sales tax due on its gasoline sales. FINDINGS OF FACT 1. Petitioner, Mopak Service Center, Inc., operated a Texaco gasoline station at Franklin Street and 7th Street in Garden City on Long Island during the period at issue. The station had eight pumps for fuel sales, four for self-service and four for full service, and also had four repair bays where car repairs were performed. The business was run as an S corporation by a family, including the 100% shareholder, Philip Fiorentine, Sr., and his two sons, Phil and Joe, and his daughter-in-law, Patti Fiorentine. On the corporation's U.S. income tax returns for 1998 and 1999, the corporation reported salaries and wages of $72,800.00 for each of these respective years, reflecting no employment of individuals other than the above-mentioned family members according to Ms. Fiorentine. The operation went out of business soon after Mr. Fiorentine stepped aside, and his two sons took over.

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