Goldner v. State Tax Commission , 400 N.Y.S.2d 381 ( 1977 )

Herlihy, J. (concurring in part and dissenting in part).

I agree with the majority that the determination of the State Tax Commission must be confirmed as to the disallowance of deductions from gross income, but I disagree with the conclusion that insofar as the assessment was based on additional income it must be annulled.

It is well established that as to the assessment, all that is necessary is that it be founded upon a sound basis. "[W]e are required to confirm the determination if there are facts to sustain the determination which indicate that it was not arbitrary or capricious”. (Matter of Hillman v State Tax Comm., 30 AD2d 362, 364.) It has been held that "[t]he burden of proof to overcome tax assessments rests upon the taxpayer”. (Matter of Grace v New York State Tax Comm., 37 NY2d 193, 195.)

While the evidence in this case may be hearsay or not verified by direct evidence on behalf of the State, nevertheless, the burden was on the taxpayer petitioner. The hearing was held for his benefit to challenge the assessment and not for the purpose of requiring the State to establish its position by legally competent proof prior to evidence on behalf of petitioner requiring such action. In the present case there was nothing presented by petitioner except his self-serving testimony and, as noted by the majority, the respondent could reject that evidence on credibility. The evidence before the respondent was more than adequate from a probative standpoint to justify the assessment in the first instance.

The determination should be confirmed in its entirety.

Greenblott, J. P., Mahoney and Mikoll, JJ., concur with Kane, J.; Herlihy, J., concurs in part and dissents in part in an opinion.

Determination modified by annulling so much thereof as imposed additional personal income taxes on petitioner based on the understatement of his gross income for the year 1956; matter remitted to respondent for further proceedings not inconsistent herewith, and, as so modified, confirmed, without costs.