Waldes v. State Tax Commission
| Decision Date | 19 July 1962 |
| Citation | 17 A.D.2d 47,230 N.Y.S.2d 757 |
| Parties | Application of George WALDES, Petitioner, v. The STATE TAX COMMISSION of the State of New York, Respondent, to review a determination made after a hearing in the matter of income tax of petitioner for the year 1941. Application of Ica Waldes BUSEK, Petitioner, v. The STATE TAX COMMISSION of the State of New York, Respondent, to review a determination made after a hearing in the matter of income tax of petitioner for the year 1941. Application of Anna LUDVIK, Petitioner, v. The STATE TAX COMMISSION of the State of New York, Respondent, to review a determination made after a hearing in the matter of income tax of petitioner for the year 1941. Application of Milo WALDES, Petitioner, v. The STATE TAX COMMISSION of the State of New York, Respondent, to review a determination made after a hearing in the matter of income tax of petitioner for the year 1941. |
| Court | New York Supreme Court — Appellate Division |
Rubin, Baum & Levin, New York City (Frederick Baum, New York City, of counsel), for petitioners.
Louis J. Lefkowitz, Atty. Gen. (Robert W. Bush, Albany, of counsel), for respondent.
Before BERGAN, P. J., and GIBSON, HERLIHY, REYNOLDS and TAYLOR, JJ.
This is a consolidation of four proceedings under Article 78 of the Civil Practice Act to review the determination of the respondent commission which denied refunds to petitioners of personal income taxes for the year 1941 upon the sole ground that the Statute of Limitations for 1941 war losses had run. The merits of the claims have not been determined.
Each of the petitioners herein timely filed a New York State tax return for the calendar year 1941 and paid the tax due thereon. In December of 1950 each petitioner timely filed a claim for a refund of 1941 taxes with the Federal authorities based upon war losses suffered in 1941. In August of 1957 the United States Treasury Department determined that the petitioners were entitled to the war loss deductions for 1941. Petitioners then duly filed Form IT-115 with the State Income Tax Bureau, pursuant to § 367 of the Tax Law, notifying the State of the final determination of the Federal authorities. The petitioners had never filed any application for revision or refund of their New York State income taxes for 1941 based upon war losses prior to 1957 although, as mentioned above, they filed in 1950 with the Federal government.
The State Tax Commission determined that pursuant to Section 3 of Chapter 533 of the Laws of 1944, Chapter 183 of the Laws of 1950, the time for filing an application in regard to war losses for the calendar year 1941 had expired on April 15, 1951, the Legislature not having further extended the act.
Section 3 of the act provided that a refund must be sought within one year after the effective day of the act.
The legislation was originally enacted so as to conform the State Tax treatment for deductions of war losses and recoveries or restitutions on account thereof with that of the Federal government under existing Federal law.
The petitioners contend that they are entitled to a refund on the basis of Sections 367(2) and 373(4) of the Tax Law (Chapter 93 of the Laws of 1949) regardless of the time limitations set forth in Chapter 533 of the Laws of 1944, Chapter 183 of the Laws of 1950.
Section 3 of Chapter 533 of the Laws of 1944 specifically revived the otherwise barred right to a refund for the year 1941 insofar as it was for a war loss.
Chapter 93 of the Laws of 1949, which added Sections 367(2) and 373(4) to the Tax Law, amended Section 367 as follows:
'If the amount of net income for any year of any taxpayer as returned to the United States treasury department is changed or corrected by the commissioner of internal revenue or other officer of the United States or other competent authority, or where a renegotiation of a contract or subcontract with the United States results in a change in net income, such taxpayer shall report such change or corrected net income, or the results of such renegotiation, within ninety days after the final determination of such change or correction or renegotiation, or as required by the tax commission * * *.'
Section 373(4), in effect, provides that where the taxpayer complies with Section 367(2), the Tax Commission shall recompute the New York State tax for the year involved and shall allow any refund due on New York taxes as a result of such change, regardless of what year might be involved.
Following the enactment of Chapter 93 of the Laws of 1949, Article 571-a of the New York State Personal Income Tax Regulations was promulgated by the Department of Taxation and Finance. Subdivisions (a) and (d) of the article provided that the Tax Commission, within one year after the reporting of a change in the amount of net income as returned to the United States, would issue an assessment or refund as the case might require notwithstanding the limitation of time within which such refund or assessment might otherwise be made. Subdivision (g) of the...
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