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2009-2 N.Y. Tax Cas. J-1 (2009)

handle is hein.nytax/nytcas0063 and id is 1 raw text is: 2009 New York Tax Cases J-1 STATE OF NEW YORK DIVISION OF TAX APPEALS In the Matter of the Petition of CJEFA PIZZA, INC. DETERMINATION DTA NO. 821644 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 March 1, 2001 through February 29, 2004. Petitioner, Cjefa Pizza, 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 March 1,2001 through February 29, 2004. A hearing was commenced 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 6,2007 at 10:30 A.M. and continued to conclusion at the same location on December 7,2008 at 9:30 A.M., with all briefs to be submitted by July 18, 2008, which date began the six-month period for the issuance of this determination. Petitioner appeared at hearing by Barry Leibowicz, Esq. The Division of Taxation appeared by Daniel Smirlock, Esq. (Osborne K. Jack, Esq., of counsel). ISSUE I. Whether the Division of Taxation properly estimated petitioner's taxable restaurant sales. II. Whether penalties were properly imposed. FINDINGS OF FACT 1. Petitioner operates a restaurant and pizzeria named Intermezzo in Fort Salonga on Long Island. During the three-year period at issue, petitioner reported gross sales of $2,223,537.00, of which $2,180,840.00 were reported as taxable sales. 2. By an appointment letter dated March 25,2004, the Division of Taxation (Division) notified petitioner that its New York State Sales and Use Tax Records have been scheduled for a field audit for the three-year period of March 1, 2001 through February 29, 2004. The Division's auditor was an experienced employee who, in the course of his 31 years with the Division, had conducted 350 to 400 sales

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