Determination Form - New York Division Of Tax Appeals printable pdf download

STATE OF NEW YORK

DIVISION OF TAX APPEALS

________________________________________________

In the Matter of the Petitions

DETERMINATION

ROCKWELLS RESTAURANT CORP.

DTA NOS. 819724 &

819752

for Revision of Determinations or for Refund of Sales

and Use Taxes under Articles 28 and 29 of the Tax Law

for the Periods November 30, 2002 through February 23,

2003 and May 31, 1998 through August 31, 2000.

________________________________________________

Petitioner, Rockwells Restaurant Corp, 97 Brookby Road, Scarsdale, New York 10583, filed petitions for

revision of determinations or for refund of sales and use taxes under Articles 28 and 29 of the Tax Law for the

periods November 30, 2002 through February 23, 2003 and May 31, 1998 through August 31, 2000.

On September 29, 2004, petitioner, Rockwells Restaurant Corp., by its president, Stephen Robins, and the

Division of Taxation by Christopher C. O'Brien, Esq. (Jennifer A. Murphy, Esq., of counsel) waived a hearing

and agreed to submit this case for determination, with all documents and briefs to be submitted by the parties by

February 7, 2005, which date began the six-month period for the issuance of this determination. After review of

the evidence and arguments presented, Frank W. Barrie, Administrative Law Judge, renders the following

determination.

ISSUES

I. Whether tax amnesty has been granted to petitioner in regard to certain statutory notices at issue.

II. Whether penalties were properly imposed on statutory notices which were not paid under tax amnesty.

FINDINGS OF FACT

1. During the period at issue, petitioner owned and operated restaurants known as Rockwells American

Restaurants in three different locations in Westchester County, i.e., Tuckahoe, Pelham and Larchmont.

Petitioner's quarterly taxable sales ranged from $831,000.00 for the period December 1, 2002 to February 28,

2003 to $1,000,000.00 for the period September 1, 2002 to November 30, 2002. Given its volume of sales,

petitioner was required to file, on a part-quarterly or monthly basis, a tax return known as a Part Quarterly ST-

809. Consequently, for each of the first two months of a quarter, petitioner was required to file an ST-809, and

then a final return for all three months of the quarter known as a Quarterly ST-810. This final return reports

sales tax due for the final month and also functions as a reconciliation of the total sales tax due for the quarter.

2. A total of ten sales tax quarters are at issue in this consolidated proceeding, eight by the petition designated

DTA No. 819752, and two by the petition designated DTA No. 819724. Of the ten sales tax quarters at issue,

only one, June 1, 2000 to August 31, 2000, involved late payment of petitioner's tax liability for its Part-

Quarterly ST-809 for June 1, 2000 to June 30, 2000. For the nine other quarters at issue, petitioner filed part-

quarterly (ST-809) and quarterly (ST-810) sales and use tax returns without remittance of the tax reported due.

Fourteen checks tendered by petitioner with its part-quarterly and quarterly returns in payment of the tax due

were dishonored by its bank. An additional eight sales tax returns were filed with no accompanying check or

other remittance. The Division of Taxation ("Division") has not contested the amount of sales tax reported due

by petitioner on its returns.

3. The Division issued eight notices and demands for payment of tax due with reference to the eight sales tax

Determination Form - New York Division Of Tax Appeals