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Huang v. New York State Tax Appeals Tribunal

State of New York Supreme Court, Appellate Division Third Judicial Department


December 17, 2009

IN THE MATTER OF DAISY HUANG, PETITIONER,
v.
NEW YORK STATE TAX APPEALS TRIBUNAL ET AL., RESPONDENTS.

The opinion of the court was delivered by: Cardona, P.J.

MEMORANDUM AND JUDGMENT

Calendar Date: October 13, 2009

Before: Cardona, P.J., Spain, Lahtinen, Stein and McCarthy, JJ.

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 dismissed petitioner's exception to the determination of an Administrative Law Judge as untimely.

In order for an appeal to respondent Tax Appeals Tribunal to be timely, it must be filed within 30 days after the giving of notice of the determination of the Administrative Law Judge (hereinafter ALJ) (see Tax Law § 2006 [7]; 20 NYCRR 3000.23 [a]). Here, the record establishes that petitioner's exception to the ALJ's determination dismissing her petition, which was issued September 13, 2007, was not filed with the Tribunal until October 17, 2007. Inasmuch as petitioner's appeal to the Tribunal exceeded the 30-day statutory period, the Tribunal correctly concluded that it was without jurisdiction to review the ALJ's determination (see Tax Law § 2006 [7]; Matter of De Milt v Tax Appeals Trib. of State of N.Y., 232 AD2d 824 [1996], lv denied 89 NY2d 816 [1997]). Accordingly, petitioner's argument addressing the merits of the underlying determination denying her request for a tax refund in connection with a rescinded real estate transaction is not properly before this Court.

We have reviewed petitioner's remaining contentions and find them to be without merit.

Spain, Lahtinen, Stein and McCarthy, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20091217

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