Small Claims Determination Form - New York Division Of Tax Appeals (Page 2 of 3) in pdf

was reported in the sales and use tax returns previously filed. On August 10, 1999 the Division issued to

petitioner a notice and demand for payment of tax due for each of the five quarters at issue. The table below

indicates the amounts reported in the two sets of sales and use tax returns along with the amounts of tax, interest

and penalty, if any, imposed by the notices and demands.

Return

Q/E

Txbl Sls

Tax

Tax per

Interest

Penalty

Total

Reported

Notice

original

2/95

$7,709

$631

amended

2/95

$13,491

$1,113

$481.66*

$290.98

$144.36

$435.34

original

5/95

$7,959

$652

amended

5/95

$13,928

$1,149

$478.87

$318.19

$149.12

$946.18

original

8/95

$8,086

$662

amended

8/95

$14,149

$1,167

$505.02

$198.34

$703.36

original

11/95

$9,197

$553

amended 11/95

$14,345

$1,184

$430.26

$155.69

$585.95

original

2/96

$9,399

$592

amended

2/96

$509.68

$169.19

$678.87

Totals

$1,923.83

$1,132.39

$293.48 $3,349.70

*paid with amended return

5. The record includes no documents showing petitioner's beer purchases for calendar year 1995 or the

comparison with reported taxable sales that the Division described in its letter to petitioner of July 22, 1998.

6. Petitioner was not present at the hearing and the only testimony presented on his behalf was that of his

representative,

Mr. Fein.

SUMMARY OF THE PARTIES' POSITIONS

7. Petitioner, through his representative, complained that he had never seen any records of the beer purchases

relied on by the Division and that the amended sales and use tax returns petitioner filed were coerced by the

Division. It is petitioner's position that the amended sales and use tax returns should be disregarded and that

petitioner's original sales and use tax returns be accepted as the basis for his liability.

8. The Division asserts that the amounts of tax stated as due on its notices and demands were self-assessed by

petitioner in his amended sales and use tax returns, and the tax plus penalty and interest is due and owing.

CONCLUSIONS OF LAW

A. A determination of tax must have a rational basis in order to be sustained upon review (Matter of Grecian

Square, Inc. v. State Tax Commission, 119 AD2d 948, 501 NYS2d 219). The source of the rational basis is the

presumption of correctness of the assessment that arises when no evidence is presented challenging the

assessment (Matter of Atlantic & Hudson Limited Partnership, Tax Appeals Tribunal, January 30, 1992). The

presumption of correctness attaches to a notice and demand properly issued by the Division, and the taxpayer

has the burden of demonstrating that such notice is incorrect (Matter of McKee, Tax Appeals Tribunal, June 27,

2002). In the matter here under review petitioner reported taxable sales in his amended sales and use tax returns

for four of the five quarters at issue that substantially exceeded the taxable sales he previously reported in his

timely filed sales and use tax returns for the same four quarters. Petitioner has produced no sales records as

required by Tax Law § 1135(a)(1) and, as a consequence, there is nothing in the record to support either group

of taxable sales figures reported by petitioner. Accordingly, petitioner has not met his burden of proof to show

Small Claims Determination Form - New York Division Of Tax Appeals Page 2

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