Orner v. Commissioners of New York Tax Appeals Tribunal

Appellate Division of the Supreme Court of New York

Orner v. Commissioners of New York Tax Appeals Tribunal

270 A.D.2d 92, 704 N.Y.S.2d 469, 2000 N.Y. App. Div. LEXIS 2815

Appellate Division of the Supreme Court of the State of New York·Decided March 14, 2000·Published·Cited by 1 cases

Opinion

—Determination of respondent Commissioners of the City of New York Tax Appeals Tribunal, dated April 7, 1998, affirming a determination of the Administrative Law Judge dated October 22, 1996, which, after a hearing, sustained two notices of determination issued by the New York City Commissioner of Finance against petitioner for deficiencies of $2,111.62 and $1,205.28 in Unincorporated Business Tax, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed, with costs.

Respondents’ determination that petitioner failed to meet his burden of establishing by clear and convincing evidence that he had a regular place of business outside the City of New York (see, Administrative Code of City of NY § 11-508 [former (a)]; 19 RCNY 28-07 [b]; Matter of Liberman v Gallman, 41 NY2d 774, 777) is supported by the record. It was respondents’ prerogative to reject petitioner’s testimony as incredible, particularly since his testimony was not supported by specific and contemporaneous documentation (see, Matter of Liberman v Gallman, supra, at 779; Matter of Kramer, Rosen & Co. v O’Cleireacain, 191 AD2d 231; and see, Matter of Wachsman v New York State Commr. of Taxation & Fin., 241 AD2d 708, 709-710; Matter of Labadie Sales Corp. v New York City Dept. of Fin., 201 AD2d 291, 291).

Petitioner’s contention that he was deprived of due process is not supported by the record. Concur — Rosenberger, J. P., Mazzarelli, Ellerin, Lerner and Friedman, JJ.

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—Determination of respondent Commissioners of the City of New York Tax Appeals Tribunal, dated April 7, 1998, affirming a determination of the Administrative Law Judge dated October 22, 1996, which, after a hearing, sustained two notices of determination issued by the New York City Commissioner of Finance against petitioner for deficiencies of $2,111.62 and $1,205.28 in Unincorporated Business Tax, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed, with costs.

Respondents’ determination that petitioner failed to meet his burden of establishing by clear and convincing evidence that he had a regular place of business outside the City of New York (see, Administrative Code of City of NY § 11-508 [former (a)]; 19 RCNY 28-07 [b]; Matter of Liberman v Gallman, 41 NY2d 774, 777) is supported by the record. It was respondents’ prerogative to reject petitioner’s testimony as incredible, particularly since his testimony was not supported by specific and contemporaneous documentation (see, Matter of Liberman v Gallman, supra, at 779; Matter of Kramer, Rosen & Co. v O’Cleireacain, 191 AD2d 231; and see, Matter of Wachsman v New York State Commr. of Taxation & Fin., 241 AD2d 708, 709-710; Matter of Labadie Sales Corp. v New York City Dept. of Fin., 201 AD2d 291, 291).

Petitioner’s contention that he was deprived of due process is not supported by the record. Concur — Rosenberger, J. P., Mazzarelli, Ellerin, Lerner and Friedman, JJ.

Orner v. Commissioners of New York Tax Appeals Tribunal, 270 A.D.2d 92, 704 N.Y.S.2d 469, 2000 N.Y. App. Div. LEXIS 2815 (N.Y. Ct. App. 2000).

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