Slater v. Gallman

• Decision Date: 20 November 1975
• Citation: 38 N.Y.2d 1,377 N.Y.S.2d 448
• Parties: , 339 N.E.2d 863 Irwin SLATER, Appellant, v. Norman F. GALLMAN, Individually and as Acting Commissioner of the Department of Taxation and Finance of the State of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 448

377 N.Y.S.2d 448

38 N.Y.2d 1, 339 N.E.2d 863

Irwin SLATER, Appellant, v. Norman F. GALLMAN, Individually and as Acting Commissioner of the Department of Taxation and Finance of the State of New York, et al., Respondents.

Court of Appeals of New York.

Nov. 20, 1975.

Alfred S. Julien, Stuart A. Schlesinger and David Jaroslawicz, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz and David H. Berman, New York City, of counsel), for respondents. JASEN, Judge.

On this appeal the principal issue is whether a taxpayer may challenge, by means of an action for declaratory judgment, an assessment made by the State Tax Commission, even though he has not first pursued the administrative review prescribed by statute. We conclude that since the taxpayer here failed to exhaust his administrative remedies, he may not challenge the assessments through this procedural vehicle.

The Tax Commission, utilizing information obtained from Federal audit reports, determined that the appellant had filed no income tax returns for the years 1944--1949. On the basis of this information, the commission estimated his income for those years and made appropriate assessments of the unpaid taxes, together with penalties and interest. Section 373 of the Tax Law specifically empowers the Tax Commission to make this type of assessment, and where no return has been filed, provides that the assessment may be made 'at any time'. (Tax Law, § 373, subd. 1.)

Where an assessment has been made in a case where no return was filed, section 374 of the Tax Law grants the taxpayer one year from the date of notification to apply for administrative review of the assessment The notice of assessment carries a reminder of this one-year period of limitations. Section 375 of the Tax Law provides that, after exhausting his administrative remedies pursuant to section 374, a taxpayer may seek further review pursuant to CPLR article 78. This same section provides that this is the exclusive remedy available to any taxpayer.

Rather than pursue these administrative remedies, the appellant herein chose instead to commence this action in which he sought a judgment declaring, Inter alia, that the assessments and the notices of assessments were 'illegal, void and of no force or effect'. His failure to first pursue his administrative remedies is, of course, fatal to his claim. (Young Men's Christian Assn. v. Rochester Pure Waters Dist., 37 N.Y.2d 371, 372 N.Y.S.2d 633, 334 N.E.2d 586.) To be sure, a tax assessment may be reviewed in a manner other than that provided by statute where the constitutionality of the statute is challenged or a claim is made that the statute by its own terms does not apply (Matter of First Nat. City Bank v. City of New York, 36 N.Y.2d 87, 92--93, 365 N.Y.S.2d 493, 496--497, 324 N.E.2d 861, 863--865; Richfield Oil Corp. v. City of Syracuse, 287 N.Y. 234, 239, 39 N.E.2d 219, 221) and where the assessment is wholly fictitious and is made without any factual basis solely to extend a period of limitations (Brown v. New York State Tax Comm., 199 Misc. 349, 353--354, 99 N.Y.S.2d 73, 77--78, affd. 279 App.Div. 837, 109 N.Y.S.2d 626, affd. 304 N.Y. 651, 107 N.E.2d 510). Since this is not such a case, the appellant was therefore bound by section 375 of the Tax Law (Peters v. State Tax Comm., 18 A.D.2d 886, 237 N.Y.S.2d 613, affd. 13 N.Y.2d 1148, 247 N.Y.S.2d 139, 196 N.E.2d 568).

In addition to considering the merits of this appeal, we feel that this case presents and appropriate opportunity to comment on a matter that concerns us greatly, namely, the quality, length and content of briefs presented to this court. Although this is an extreme example, unfortunately it is not always the rare case in which we receive poorly written and excessively long briefs, replete with burdensome, irrelevant, and immaterial matter. Although counsel candidly admits that his 284-page brief is 'unusually long', his claim that it is 'meticulously structured, thoroughly documented, exhaustively researched, carefully analyzed and comprehensively presented' seems too self-congratulatory. His argument wanders aimlessly through myriad irrelevant matters of administrative and constitutional law, pausing only briefly to discuss the issues raised by this appeal. ^* The brief pursues, in seemingly endless fashion, matters not properly before this court for the simple reason that they were not raised below. (See, e.g., Flagg v. Nichols, 307 N.Y. 96, 99, 120 N.E.2d 513, 514.) This is in contrast to the brief filed on behalf of the Tax Commission which, even though consisting of only 21 pages (including preliminary material in addition to a 14-page argument on the merits), cogently and...