89 A.D.2d 729 | N.Y. App. Div. | 1982
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of respondent State Tax Commission imposing certain sales and use taxes upon petitioner pursuant to articles 28 and 29 of the Tax Law. Petitioner Flah’s of Syracuse, Inc., is a retailer of clothing and related accessories, and at issue in the present proceeding are various improvements made during the period 1973 through 1975 at three of petitioner’s retail outlets located in Baldwinsville, Utica and De Witt, New York. Each of the three stores was located on leased premises, and the improvements made thereafter basically involved the construction of perimeter walls with other improvements, such as lighting, mirrors and wall racks, affixed thereto. Based upon an audit of petitioner’s books which revealed that petitioner had not paid sales taxes on the sums expended for the subject improvements, the Sales Tax Division of the Department of Taxation and Finance issued a notice of determination of additional sales and use taxes due from petitioner in the amount of $28,519.91, plus interest and penalty of $12,063.03, for a total of $40,582.94. At petitioner’s request, a hearing was then held on this matter after which, by decision of November 28,1980, respondent concluded that the additions and modifications to the stores in question were not capital improvements exempt from sales tax, but rather were purchases of tangible personal property and services subject to tax tinder section 1105 (subds [a], [c]) of the Tax Law. Accordingly, respondent sustained the notice of determination with two modifications, deleting an error made in the audit wherein an invoice was counted twice, and reduced the penalty and interest due to the minimum. The instant proceeding followed, and we initially consider a motion by respondent to vacate the filing of an amicus curiae brief by the New York State Bankers’ Association on the ground that the brief contains among its appendices three documents which are not a part of the record on appeal. Two of the documents in question, a memorandum from the Tax Department to its auditors regarding the decision by respondent in this case and a form of a store and office lease, are obviously evidentiary in nature, and, therefore, since they are not part of the record on appeal, they will not be considered by this court in this proceeding. The third document, a report of the New York State Bar Associa