663 N.Y.S.2d 684 | N.Y. App. Div. | 1997
Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Tax Law § 2016) to review a determination of respondent Tax Appeals Tribunal which sustained a sales and use tax assessment imposed under Tax Law articles 28 and 29.
In 1987, the State Department of Taxation and Finance
Petitioner then petitioned for administrative relief, claiming that he was not required to seek a hearing within 90 days of the issuance of the notices of determination since they were barred by the Statute of Limitations as they were issued after June 20, 1990. Tax Law § 1138 (a) (former [1]) provided that a notice of determination became final and binding unless, within 90 days after giving the notice, the taxpayer applied to the Division of Tax Appeals for a hearing, and Tax Law § 170 (3-a) (a) gives taxpayers the right to request a conciliation conference provided the right to request a hearing has not elapsed. In light of this the Administrative Law Judge and respondent Tax Appeals Tribunal determined, inter alia, that because petitioner’s request for a conference was untimely the notices became final, thereby depriving the Tribunal of jurisdiction to address petitioner’s claim. Accordingly, his petition was dismissed and this CPLR article 78 proceeding ensued.
In this proceeding, petitioner has recast his argument to fit within the doctrine of equitable estoppel. He points out that the notices, dated May 15,1990 but mailed on August 14,1990, advised him that they were final unless he applied for a hearing “within 90 days from the date of this notice”. He claims that, by mailing notices that were backdated by more than 90
Absent unusual circumstances that would support a finding of “manifest injustice”, the doctrine is not applied in matters involving the collection of taxes (see, Matter of AGL Welding Supply Co. v Commissioner of Taxation & Fin., 238 AD2d 734, 736, lv denied 90 NY2d 808; Matter of Rashbaum v Tax Appeals Tribunal, 229 AD2d 723, 725; Matter of Walsh v Tax Appeals Tribunal, 196 AD2d 367, 370). The record does not support a finding of “manifest injustice” as it does not indisputably establish that petitioner is not responsible for the payment of the subject taxes. Moreover, there is no evidentiary support for his claim that he was misled by the inaccurate notices.
We shall not consider petitioner’s contention that the Department did not establish proper mailing of the notices since this issue was not raised in the administrative forum (see, Matter of Mera v Tax Appeals Tribunal, 204 AD2d 818, 821).
Crew III, J. P., Peters, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
Tax Law § 1147 (a) (1) provides that the period of time for giving notice “shall commence to run from the date of mailing” of a notice of determination.