On 20 December 1979, the Audit Division of the State Tax Commission issued a Notice of Determination and Demand for Payment of Sales and Use Taxes Due for the period 1 June 1976 through 31 August 1979. Petitioner filed a petition for revision of that determination and for refund of sales and use taxes under Articles 28 and 29 of the Tax Law.
A New York Probate Lawyer said on 21 November 1985, a hearing was held. On 28 May 1986, a decision was made which modified the Determination but left an amount due of $83,884.58. On 28 May 1986, the Commission notified petitioner of the Decision and advised that petitioner had now exhausted his right of review at the administrative level.
Under the Tax Law, a proceeding in court to review an adverse decision by the State Tax Commission may be instituted only under Article 78 of the Civil Practice Law and Rules and must be commenced in the Supreme Court of the State of New York, Albany County, within 4 months from the date of notice.
Thus, an application for an Order extending the statute of limitations to allow the petitioner to commence an Article 78 proceeding against the State Tax Commission (Commission) has been instituted.
The papers submitted on the motion showed that the sole proprietor of the Petitioner-Corporation died on 30 September 1982; that under the terms of his Last Will and Testament admitted to Probate (a proceeding for a will contest, if any) in Kings County, New York, an undivided one-half interest in the restaurant, bar and grill located is given to his wife, individually and in trust for his daughter. The wife is designated as Executrix (for estate administration purposes) and Trustee in the Will. It was the operation of a business at these premises which lead to the sales tax question.
Here, no proceeding under Article 78, CPLR, has been commenced. The application to extend the Statute of Limitations has been brought by the mother alleging that the daughter is an infant, age 13, who has been adversely affected by the Commission’s Decision.
Under the rules, the subject proceeding must be commenced within four months after the final determination or with leave of the court where the petitioner, or the person whom he represents at that time, was under a disability, as specified. In such a case, the proceeding must be commenced within two years.
In the instant case, the sole shareholder of the corporation died after the initial Determination and before the final decision of the Commission. A Long Island Probate Lawyers said from the record, many things were not clear which might necessitate an evidentiary hearing at some point, if the court grants the relief sought. The court is mindful of the provision of the Tax Law, which required payment of all taxes, penalties and interest, together with the filing of an undertaking as a condition precedent to commencing an Article 78 proceeding.
Thus, the motion to extend the time in which to institute a proceeding under Article 78, CPLR, to review the decision of the Commission, is granted upon the condition that petitioner comply with the requirement of the Tax Law. All rights are reserved to the Commission to raise any and all defenses including the defense of Statute of Limitations in the Article 78 proceeding, if such a proceeding is commenced.
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