Citation Numbers: 101 Misc. 2d 868
Judges: Cobb
Filed Date: 10/22/1979
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Beginning June 1, 1973 with the knowledge and approval of the respondent, petitioner began to pay sales and use taxes directly to the State upon taxable "inventory” items it had purchased as such items were withdrawn from its inventory, while prior to that day, such taxes had been paid as such
The respondent, however, on May 12, 1975, issued a notice of determination and demand for payment of sales and use tax due for a sum equal to the credit which petitioner had taken on those returns for taxes it had paid on any item purchased prior to May 31, 1970 upon the ground that the three-year Statute of Limitations set forth in subdivision (a) of section 1139 of the Tax Law was an absolute bar to the allowance of any credit for such taxes, and after a hearing had been had upon the application of the petitioner, the respondent commission upheld its original determination in all respects except that interest and a penalty on the deficiency were waived. This CPLR article 78 proceeding was then instituted to review the latter determination.
The respondent says that petitioner has raised a substantial evidence issue, and, accordingly, this proceeding should be transferred to the Appellate Division of this Judicial Department pursuant to CPLR 7804 (subd [g]), and prior to the submission by petitioner of its reply affirmation, the court believes that a transfer would have been appropriate. However, petitioner’s reply affirmation states, in part, that "[t]he petitioner does not dispute the findings of fact as contained in respondent’s Determination dated February 14, 1979; rather the petitioner disputes the relevance and applicability of the legal standard (i.e. the Statute of Limitations contained in Tax Law Section 1139) used by the respondent to affirm the Sales Tax Bureau’s assessment of additional sales and use tax”, and
Subdivision (a) of section 1139 of the Tax Law imposes a three-year Statute of Limitations upon claims for a refund or credit of "any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid”. The credit which petitioner sought and respondent disallowed is not for taxes which were erroneously, illegally or unconstitutionally collected or paid, but for taxes which, at the time they were paid, were unquestionably due and owing. Accordingly, it is apparent that the commission has misconstrued the statute and since its subject determination was bottomed upon that erroneous construction, the court will grant a judgment which annuls the determination complained of and remits this proceeding to the respondent for further proceedings not inconsistent with this opinion.