STATE OF NEW YORK
DIVISION OF TAX APPEALS
________________________________________________
In the Matter of the Petition
of
TEDDY'S
AT ARMORY SQUARE, INC.
ORDER
DTA NO. 823063
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, 2004 through November 30, 2007.
________________________________________________
Petitioner, Teddy's at Armory Square, 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, 2004 through November 30, 2007.
The Division of Taxation, by its representative, Daniel Smirlock, Esq. (Lori P. Antolick, Esq., of counsel) brought a motion dated August 5, 2009 seeking dismissal of the petition, or in the alternative, summary determination in its favor pursuant to 20 NYCRR 3000.5 and 3009.9(a)(i) and 3000.9(b). Accompanying the motion was the affidavit of Lori Antolick, dated August 5, 2009, and annexed exhibits supporting the motion. Petitioner, appearing by Suzanne Pfister, CPA, did not respond to the motion of the Division of Taxation. Accordingly, the 90-day period for issuance of this order commenced on September 4, 2009, the date on which petitioner's time to serve a response to the Division of Taxation's motion expired. After due consideration of the motion, and all pleadings and proceedings had herein, Winifred M. Maloney, Administrative Law Judge, renders the following order.
ISSUE
Whether the Division of Taxation's motion to dismiss or, in the alternative, motion for summary determination should be granted.
FINDINGS OF FACT
1. At issue in this proceeding is a Notice of Determination , Notice Number L-030626114-7, addressed to petitioner at Solvay, New York, which asserts additional sales and use taxes due in the amount $50,605.87, plus interest and penalty, for the period December 1, 2004 through November 30, 2007.
2. On May 15, 2009, petitioner's representative, Susan Pfister, CPA, filed a petition with the Division of Tax Appeals, challenging the auditor's methodology. The Division subsequently brought this motion, dated August 5, 2009, seeking dismissal of the petition or, in the alternative, summary determination in favor of the Division on the basis that the Division of Tax Appeals lacks jurisdiction of the matter because petitioner's protest of the statutory notice was filed more than 90 days from the date of issuance of the statutory notice. Petitioner did not reply to the motion.
3. In support of its motion for summary determination, the Division submitted: copies of the petition and the envelope in which it was sent by Federal Express priority overnight mail; a copy of the Division's amended answer dated August 5, 2009; a copy of the Notice of Determination; and the affidavit of Lori P. Antolick, Esq., the Division's representative.
4. The Division, in its amended answer, asserted among other things, that the Division of Tax Appeals lacked jurisdiction to review the Notice of Determination because the petition was filed more than 90 days from the date the notice was issued.
5. The Division of Taxation submitted no proof of mailing with respect to the Notice of Determination.
Such motion shall be supported by an affidavit, by a copy of the pleadings and by other available proof. The affidavit, made by a person having knowledge of the facts, shall recite all material facts and show that there is no material issue of fact, and that the facts mandate a determination in the moving party's favor (20 NYCRR 3000.9[b][1]; see also Tax Law § 2006[6]).
In reviewing a motion for summary determination, an administrative law judge is constrained by the following guidelines:
The motion shall be granted if, upon all the papers and proof submitted, the administrative law judge finds that it has been established sufficiently that no material and triable issue of fact is presented and that the administrative law judge can, therefore, as a matter of law, issue a determination in favor of any party. The motion shall be denied if any party shows facts sufficient to require a hearing of any material and triable issue of fact. Where it appears that a party, other than the moving party, is entitled to a summary determination, the administrative law judge may grant such determination without the necessity of a cross-motion (20 NYCRR 3000.9[b][1]; see also Tax Law § 2006[6]).
Furthermore, a motion for summary determination made before the Division of Tax Appeals is "subject to the same provisions as motions filed pursuant to section three thousand two hundred twelve of the CPLR." (20 NYCRR 3000.9[c]; see also Matter of Service Merchandise Co., Tax Appeals Tribunal, January 14, 1999.) Summary determination is a "drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Moskowitz v. Garlock, 23 AD2d 943, 259 NYS2d 1003, 1004 [1965]; see Daliendo v. Johnson, 147 AD2d 312, 543 NYS2d 987, 990 [1989]). Because it is the "procedural equivalent of a trial" (Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 AD2d 572, 536 NYS2d 177, 179 [1989]), undermining the notion of a "day in court," summary determination must be used sparingly (Wanger v. Zeh, 45 Misc 2d 93, 256 NYS2d 227, 229 [1965], affd 26 AD2d 729 [1966]). It is not for the court "to resolve issues of fact or determine matters of credibility but merely to determine whether such facts exist" (Daliendo v. Johnson, 543 NYS2d at 990). If any material facts are in dispute, if the existence of a triable issue of fact is "arguable," or if contrary inferences may be reasonably drawn from undisputed facts, the motion must be denied (Glick & Dolleck v. Tri-Pac Export Corp., 22NY2d 439, 293 NYS2d 93, 94 [1968]; Gerard v. Inglese, 11 AD2d 381, 206 NYS2d 879, 881 [1960]).
B. The absence of mailing documents raises material and triable issues of fact that simply cannot be resolved on a motion. Accordingly, the Division's motion is denied.
C. The Division of Taxation's motion to dismiss the petition or for summary determination is denied, and a hearing on the issues will be scheduled in due course.
DATED: Troy, New York
October 22, 2009