West Seneca Ford, Inc. v. Commissioner of New York State Department of Taxation & Finance

198 A.D.2d 909, 604 N.Y.S.2d 459, 1993 N.Y. App. Div. LEXIS 11592

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1993
• Status: Published

Opinion

—Judgment insofar as appealed from unanimously reversed on the law without costs and petition dismissed. Memorandum: The petition challenging respondent’s assessment and collection of sales and use taxes should have been dismissed. The conciliation order issued on February 22, 1991 became binding upon petitioner unless petitioner filed a petition with the Division of Tax Appeals within 90 days (see, Tax Law § 170 [3-a] [e]; 20 NYCRR 4000.5 [c] [4]; 3000.3 [c]). A document is filed only when it is delivered to or received by the appropriate official (Matter of McBride v Regan, 125 AD2d 797, 798; Matter of Dolan v Levitt, 61 AD2d 1075). The records of the Division of Tax Appeals reveal that no petition was received from petitioner within 90 days following issuance of the conciliation order. By failing to exhaust administrative remedies available to it under the Tax Law, petitioner is barred from seeking further review of respondent’s determination (see, Matter of Halperin v Chu, 138 AD2d 915, 917, lv dismissed 72 NY2d 938; Matter of Yiouti Rest. v New York State Tax Commn., 135 AD2d 973). (Appeal from Judgment of Supreme Court, Erie County, Joslin, J. — Article 78.) Present — Green, J. P., Fallon, Boomer and Davis, JJ.