Zuckerman v. Tax Appeals Tribunal of State

• Decision Date: 11 July 2019
• Docket Number: 526059
• Citation: 174 A.D.3d 1073,105 N.Y.S.3d 599
• Parties: In the Matter of Michael ZUCKERMAN et al., Petitioners, v. TAX APPEALS TRIBUNAL OF the STATE of New York et al., Respondents.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1073

105 N.Y.S.3d 599

In the Matter of Michael ZUCKERMAN et al., Petitioners,

v.TAX APPEALS TRIBUNAL OF the STATE of New York et al., Respondents.

526059

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 28, 2019

Decided and Entered: July 11, 2019

Michael Zuckerman and Shari Zuckerman, Shohola, Pennsylvania, petitioners pro se.

Letitia James, Attorney General, Albany (Robert M. Goldfarb of counsel), for Commissioner of Taxation and Finance, respondent.

Before: Egan Jr., J.P., Lynch, Clark, Devine and Pritzker, JJ.

MEMORANDUM AND JUDGMENT

Pritzker, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Tax Law § 2016 ) to review a determination of respondent Tax Appeals Tribunal sustaining sales and use tax assessments imposed under Tax Law articles 28 and 29.

Petitioner Titan Elevator & Lifts LLC engages in the purchase, sale, installation and servicing of, among other things, elevators and dumbwaiters. Titan was not registered as a sales tax vendor and did not pay sales or compensating use taxes on the purchase of the elevators or other products it installed. In January 2010, the Department of Taxation and Finance notified petitioner Shari Zuckerman, a partner in Titan, that a sales and use tax field audit would be conducted of Titan's financial books and records, and it required Titan to provide various records for the audit period of December 1, 2003 to November 30, 2009. Numerous written requests for production of records followed.

Following the audit, the Department determined that Titan's sales and purchase records were inadequate because it did not provide the sales records for the entire audit period; specifically, Titan failed to provide sales or purchase invoices for the years 2004 through 2006, 2008 and 2009. Using the 2007 tax year as its test period because that was the only year for which Titan provided sale invoices, the Department concluded that Titan did not pay sales tax on elevators and dumbwaiters during the audit period. The Department also concluded that all of Titan's services and maintenance sales were taxable because Titan failed to adequately document that the elevators being serviced were utilized by individuals with disabilities. Because sales tax was not paid or reported, Titan was assessed tax deficiencies on all materials used for capital improvements for the entire audit period.

In May 2012, the Department sent notices of determination to petitioners that assessed sales and use taxes totaling approximately $204,700, plus interest and penalties. Petitioners thereafter filed petitions for redetermination, and, following a hearing, an Administrative Law Judge (hereinafter ALJ) sustained the notices of determination, finding that petitioners failed to establish by clear and convincing evidence that the Department's method of estimating the sales tax was unreasonable or erroneous and that petitioners failed to establish their entitlement to a sales tax exemption for medical and prosthetic aids. Petitioners thereafter filed an exception to the ALJ's determination. Following oral argument, respondent Tax Appeals Tribunal affirmed the ALJ's decision and sustained the notices of determination, concluding, among other things, that the Department properly used the 2007 sales invoices and expense purchases to estimate Titan's tax liability, that the tax exemption was inapplicable and that penalties were appropriately imposed. Petitioners then commenced this CPLR article 78 proceeding challenging the Tribunal's determination.

It is well settled that "this Court's review of the Tribunal's determination is limited to whether ‘it has a rational basis and is supported by substantial evidence’ " ( Matter of Spiezio v. Commissioner of Taxation & Fin. of the State of N.Y., 165 A.D.3d 1502, 1503, 86 N.Y.S.3d 780 [2018], quoting Matter of HDV Manhattan, LLC v. Tax Appeals Trib. of the State of N.Y., 156 A.D.3d 963, 965, 67 N.Y.S.3d 313 [2017] ; see Matter of Prima Asphalt Concrete, Inc. v. New York State Tax Appeals Trib., 162 A.D.3d 1281, 1282, 79 N.Y.S.3d 696 [2018], lv denied 32 N.Y.3d 914, 2019 WL 192008 [2019] ). "Upon review, this Court will defer to the Tribunal's determinations regarding witness credibility and the weight to be accorded the evidence" ( Matter of Ingle v. Tax Appeals Trib. of the Dept. of Taxation & Fin. of the State of N.Y., 110 A.D.3d 1392, 1393, 973 N.Y.S.2d 877 [2013] [citations omitted]; see Matter of Wolkowicki v. New York State Tax Appeals Trib., 136 A.D.3d 1223, 1230–1231, 25 N.Y.S.3d 445 [2016] ).

We turn first to petitioners' contention that the indirect tax audit methodology used by the Department was erroneous. "Every person required to collect tax shall keep records of every sale ... and of all amounts paid, charged or due thereon and of the tax payable thereon, in such form as [respondent] [C]ommissioner of [T]axation and [F]inance may by regulation require" ( Tax Law § 1135[a][1] ). "Upon an audit of a taxpayer's transactions, the [Department] is required to request appropriate records and undertake a sufficient investigation thereof in order to determine whether such materials are capable of supporting a complete audit" ( Matter of Wolkowicki v. New York State Tax Appeals Trib., 136 A.D.3d at 1228, 25 N.Y.S.3d 445 [internal quotation marks and citation omitted]; compare Matter of King Crab Rest. v. Chu, 134 A.D.2d 51, 52–53, 522 N.Y.S.2d 978 [1987] ). However, "[s]hould the records produced by the taxpayer prove to be insufficient to verify taxable sales receipts and conduct a complete audit" ( Matter of Wolkowicki v. New York State Tax Appeals Trib., 136 A.D.3d at 1228, 25 N.Y.S.3d 445 [internal quotation marks and citation omitted] ), the Department is permitted to estimate the tax due "from such information as may be available" ( Tax Law § 1138[a][1] ; see Matter of MacLeod v. Megna, 75 A.D.3d 928, 930, 905 N.Y.S.2d 376 [2010] ). "Where, as here, an indirect audit method has been employed, the taxpayer challenging such an audit has the burden of establishing by clear and convincing evidence that the audit method or tax assessment was erroneous" ( Matter of Blackhat Chimney & Fireplace, Inc. v. Tax Appeals Trib. of the State of N.Y., 145 A.D.3d 1213, 1214, 43 N.Y.S.3d 198 [2016] [internal quotation marks and citations omitted]; accord Matter of Hwang v. Tax Appeals Trib. of the State of N.Y., 105 A.D.3d 1151, 1153, 963 N.Y.S.2d 423 [2013].

It is clear from the record that the Department requested certain documents pertaining to the years at issue numerous times, but petitioners failed to produce – for several years – many of those documents, including a general ledger, merchandise purchase invoices, sales invoices, exemption documents supporting nontaxable sales and a cash receipts journal. In fact, petitioners failed to provide the sales or purchase invoices for all but one of the years being audited. Petitioners' failure to provide these documents so that the Department could properly audit Titan gave the Department authority to create reasonable methods to estimate the tax liability (see Matter of Wolkowicki v. New York State Tax Appeals Trib., 136 A.D.3d at 1228–1230, 25 N.Y.S.3d 445 ). As such, the Department properly utilized the 2007 tax year as the test period to gather much of its estimates, because it was the only year for which petitioners provided sufficient information, and petitioners have failed to establish that this audit method was unreasonable or that the amount of tax assessed was inaccurate (see id. at 1229–1230, 25 N.Y.S.3d 445 ; Matter of Hwang v. Tax Appeals Trib. of the State of N.Y., 105 A.D.3d at 1153, 963 N.Y.S.2d 423 ). Given these facts, we find that it was wholly appropriate for the Department to utilize an indirect audit methodology (see Matter of Blackhat Chimney & Fireplace, Inc. v. Tax Appeals Trib. of the State of N.Y., 145 A.D.3d at 1214–1215, 43 N.Y.S.3d 198 ; Matter of Wolkowicki v. New York State Tax Appeals Trib., 136 A.D.3d at 1229, 25 N.Y.S.3d 445 ).

Likewise, we find petitioners' assertion that they are entitled to the medical equipment or prosthetic device tax exemption equally unavailing. "The taxpayer seeking an exemption bears the burden of demonstrating entitlement" ( Matter of Lake Grove Entertainment, LLC v. Megna, 81 A.D.3d 1191, 1192, 917 N.Y.S.2d 725 [2011] [citation omitted]; see Matter of 21 Club, Inc. v. Tax Appeals Trib. of State of N.Y., 69 A.D.3d 996, 997, 892 N.Y.S.2d 659 [2010] ), "and, unless that burden is met, the statute authorizing the exemption will be strictly construed against the taxpayer, although the interpretation should not be so narrow and literal as to defeat its settled purpose" ( Matter of XO N.Y., Inc. v. Commissioner of Taxation & Fin., 51 A.D.3d 1154, 1155, 856 N.Y.S.2d 310 [2008] [internal quotation marks and citations omitted]; see Matter of CBS Corp. v....