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

Small Claims Determination Form - New York Division Of Tax Appeals Page 3

that the notices and demands are incorrect.

B. The Division properly accepted petitioner's amended sales and use tax returns as evidence of the self-

assessment of the sales and use tax reported and unpaid (Matter of Vallone, Tax Appeals Tribunal, August 21,

2003). However, the absence from the record of an amended sales and use tax return for the quarter ending

February 29, 1996 serves to divest the Division's assessment of a rational basis for that quarter only (see, Matter

of Grecian Square, Inc. v. State Tax Commission, supra).

C. The Division's July 22, 1998 letter to petitioner gave assurance that penalties would be waived if petitioner

filed amended returns. Petitioner did file amended returns for no less than four of the five sales tax quarters at

issue, including the quarters ending February 28, 1995 and May 31, 1995. The notices and demands for those

two quarters impose penalties in the amounts of $144.36 and $149.12, respectively. In view of petitioner's

justifiable reliance to his detriment on the Division's letter, the Division is estopped from imposing the penalties

(see, Matter of Attea, Tax Appeals Tribunal, November 18, 1999). The Division is directed to cancel the

penalties imposed for the quarters ending February 28, 1995 and May 31, 1995, and to recompute interest at the

minimum rate as to those two quarters only.

D. The petition of Johnny De La Cruz is granted to the extent that the notice and demand issued for the sales tax

quarter ending February 29, 1996 is canceled, and the penalties are canceled as stated in Conclusion of Law

"C." In all other respects, the petition is denied and the notices and demands for the remaining four quarters are,

except for the penalties, sustained.

DATED: Troy, New York

May 12, 2005

/s/ Gary R. Palmer

ADMINISTRATIVE LAW JUDGE

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Small Claims Determination Form - New York Division Of Tax Appeals Page 3