Ouziel v. State, No. M-55836

CourtNew York Court of Claims
Writing for the CourtFRANCIS T. COLLINS
Citation667 N.Y.S.2d 872,174 Misc.2d 900
Parties, 1997 N.Y. Slip Op. 97,657 Bernard OUZIEL, Movant, v. STATE of New York, Defendant. Motion
Decision Date23 October 1997
Docket NumberNo. M-55836

Page 872

667 N.Y.S.2d 872
174 Misc.2d 900, 1997 N.Y. Slip Op. 97,657
Bernard OUZIEL, Movant,
v.
STATE of New York, Defendant.
Motion No. M-55836.
Court of Claims of New York.
Oct. 23, 1997.

Page 873

Bernard Ouziel, Great Neck, movant pro se.

Dennis C. Vacco, Attorney General (Risa L. Viglucci, Albany, of counsel), for defendant.

FRANCIS T. COLLINS, Judge.

The application of movant for an order pursuant to subdivision 6 of section 10 of the Court of Claims Act permitting him to serve a late claim is denied.

The proposed claim 1 alleges that on October 17, 1996 the New York State Department of Taxation and Finance levied against movant's bank account and was paid therefrom the sum of $22,361.46. The levy was made pursuant to a determination by the Department that movant was a responsible person of 92-73 Queens Blvd. Car Wash, Inc., which corporation failed to timely pay sales taxes. Pursuant to an amnesty program the total sum claimed was later reduced to $19,967.72, plus interest. Movant alleges that he was not an officer or responsible person of the corporation.

The record before the Court discloses that notices of determination of taxes due were issued to movant on January 9, 1995. On May 3, 1995, movant wrote to the Tax Compliance Division stating that while he was a shareholder of the corporation, he was not an

Page 874

officer. Movant recited in the letter that the corporation had failed to file sales tax returns for two years. Movant requested that the demands against him be withdrawn since he was not a person responsible for the collection of sales taxes by the corporation. On October 7, 1995, movant wrote to the Department requesting that his letter be considered a notice of appeal. That request was repeated in a letter of December 15, 1995. On January 13, 1997, movant requested a conciliation conference. In an order issued on March 7, 1997, the Department denied the request for a conciliation conference in the following language:

The Tax Law requires that a request be filed within 90 days from the date of the statutory notice. Since the notices were issued on January 9, 1995, but the request was not received until January 16, 1997, or in excess of 90 days, the request is late filed.

The request filed for a Conciliation Conference is denied.

Movant asserts that during June of 1997 he was advised by someone from the Attorney General's office that his only recourse was to file a claim in this Court. This motion ensued.

The Attorney General opposes the application, contending that: movant has failed to offer any valid excuse for his delay in filing; movant has failed to exhaust his administrative remedies; movant's judicial remedy is an Article 78 proceeding before the Appellate Division of the Third Judicial Department; movant has failed to petition the Division of Tax Appeals for a review within 90 days of the March 7, 1997 denial of his request for a conciliation conference; this Court lacks subject matter jurisdiction as it has no authority to review administrative decisions; estoppel is not available against the State; and this claim is premature.

Section 1133 of the Tax Law provides that every person responsible for the collection of sales and use taxes imposed by Article 28 of the Tax Law is personally responsible for the payment of such taxes. Thus, a corporate officer or employee responsible for the collection of sales taxes on behalf of the corporation can be compelled personally to pay such taxes if the corporation fails to file tax returns (Massa v. New York Tax Com'n, 102 A.D.2d 968, 477 N.Y.S.2d 838). Pursuant to Tax Law § 1138(a)(3)(B) the Commissioner shall determine the amount of sales tax owed by a responsible person when the corporation has failed to file a return or pay its taxes. The Department issues a determination to the responsible individual, and the statute provides, "Such determination shall finally and irrevocably fix the tax and liability for the tax with respect to such person unless such person, within ninety days after the giving of notice of such determination, shall apply to the tax commission for a hearing". Here, Exhibit B of the proposed claim sets forth that the notices of determination that movant was responsible for the payment of the corporation's sales taxes were issued on January 9, 1995. The first request by movant for a hearing contained in this record is his letter of October 7, 1995, a date well past the 90-day time frame. Had movant timely pursued his administrative tax appeal he could have obtained review of any adverse determination by way of an Article 78 proceeding commenced in the Appellate Division of the Third Judicial Department within four months of being notified of the adverse determination (Tax Law § 2016; Matter of Waite v. Tax Appeals Tribunal of the State of New York, 225 A.D.2d 962, 639 N.Y.S.2d 584; Matter of Hopper v. Commissioner of Taxation and Finance, 224 A.D.2d 733, 637 N.Y.S.2d 494; Matter of Landau v. Tax Appeals Tribunal of the State of New York, 214 A.D.2d 857, 625 N.Y.S.2d 343). Movant did not timely pursue his administrative remedy and any Article 78 proceeding he now attempts to...

To continue reading

Request your trial
18 practice notes
  • Esposito v. State, No. 116864.
    • United States
    • New York Court of Claims
    • December 27, 2011
    ...contrary contention, judicial review of an administrative determination would not have been necessary ( cf.Ouziel v. State of New York, 174 Misc.2d 900 [1997] ). This is consistent with the rule that “[a] cause of action for conversion accrues when all of the facts necessary to sustain the ......
  • Castino v. Commissioner of Taxation & Fin., 2005 NY Slip Op 52214(U) (NY 11/28/2005), 13478-2005.
    • United States
    • New York Court of Appeals
    • November 28, 2005
    ...he had either paid the tax or posted an undertaking. Horner has been cited with approval by the Court of Claims (see, Ouziel v. State, 174 Misc 2d 900, 667 N.Y.S.2d The Court acknowledges that a corporate officer's personal liability for a corporate taxpayer's unpaid sales and use taxes may......
  • V.G. v. Hanley, 85127/2020
    • United States
    • United States State Supreme Court (New York)
    • October 21, 2020
    ...F. Supp. 2d 708, 710 [S.D.N.Y. 2003] ; Bock v. Cooperman , 89 A.D.2d 539, 452 N.Y.S.2d 629, 630 [1st Dept., 1982] ; Ouziel v. State , 174 Misc. 2d 900, 905-906, 667 N.Y.S.2d 872, 876-877 [N.Y. Ct. Cl., 1997] ; Vanderbilt Museum v. American Asso. of Museums , 113 Misc.2d 502, 449 N.Y.S.2d 39......
  • Eastchester Rehab & HealthCare v. State, # 2012-040-024
    • United States
    • New York Court of Claims
    • April 24, 2012
    ...annulling a determination of an administrative agency then the primary relief sought is not money damages" (Ouziel v State of New York, 174 Misc 2d 900, 905 [Ct Cl 1997]). The Court concludes that the proposed Claim is beyond the subject matter jurisdiction of the Court of Claims as the pri......
  • Request a trial to view additional results
18 cases
  • Esposito v. State, No. 116864.
    • United States
    • New York Court of Claims
    • December 27, 2011
    ...contrary contention, judicial review of an administrative determination would not have been necessary ( cf.Ouziel v. State of New York, 174 Misc.2d 900 [1997] ). This is consistent with the rule that “[a] cause of action for conversion accrues when all of the facts necessary to sustain the ......
  • Castino v. Commissioner of Taxation & Fin., 2005 NY Slip Op 52214(U) (NY 11/28/2005), 13478-2005.
    • United States
    • New York Court of Appeals
    • November 28, 2005
    ...he had either paid the tax or posted an undertaking. Horner has been cited with approval by the Court of Claims (see, Ouziel v. State, 174 Misc 2d 900, 667 N.Y.S.2d The Court acknowledges that a corporate officer's personal liability for a corporate taxpayer's unpaid sales and use taxes may......
  • V.G. v. Hanley, 85127/2020
    • United States
    • United States State Supreme Court (New York)
    • October 21, 2020
    ...F. Supp. 2d 708, 710 [S.D.N.Y. 2003] ; Bock v. Cooperman , 89 A.D.2d 539, 452 N.Y.S.2d 629, 630 [1st Dept., 1982] ; Ouziel v. State , 174 Misc. 2d 900, 905-906, 667 N.Y.S.2d 872, 876-877 [N.Y. Ct. Cl., 1997] ; Vanderbilt Museum v. American Asso. of Museums , 113 Misc.2d 502, 449 N.Y.S.2d 39......
  • Eastchester Rehab & HealthCare v. State, # 2012-040-024
    • United States
    • New York Court of Claims
    • April 24, 2012
    ...annulling a determination of an administrative agency then the primary relief sought is not money damages" (Ouziel v State of New York, 174 Misc 2d 900, 905 [Ct Cl 1997]). The Court concludes that the proposed Claim is beyond the subject matter jurisdiction of the Court of Claims as the pri......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT