168 Misc. 59 | N.Y. Sup. Ct. | 1938
Section 7 of the statute imposing a sales tax provides for a review by certiorari of a determination by the comptroller of the amount of tax due after a hearing held by him. Section 10 of the same statute provides for a review by certiorari of a determination by the Comptroller of an application for a refund of a tax erroneously or illegally collected. In the court’s opinion the provisions for certiorari contained in section 10 were not intended to apply to a case where the comptroller had already held a hearing under section 7 and made a determination which was not sought to be reviewed within the time specified in that
In view of the failure to institute proceedings to review the comptroller’s determination under section 7 within the time specified in said section, said determination of the tax by the comptroller became binding upon the petitioner and the latter may not, by paying the tax and then applying for a refund, obtain a second opportunity to secure a favorable decision from the comptroller and likewise extend its time to review the comptroller’s ruling.
The cross-motion to dismiss the petition is accordingly granted and the application for an order of certiorari denied.