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Matter of Marx v. Goodrich

Appellate Division of the Supreme Court of New York, Third Department
Jun 16, 1955
286 App. Div. 913 (N.Y. App. Div. 1955)

Opinion

June 16, 1955.


Proceeding under article 78 of the Civil Practice Act to review a determination of the State Tax Commission. The petition is so loosely drawn and so discursively argumentative in form that we are unable to see clearly the facts upon which petitioner relies in this proceeding under article 78 of the Civil Practice Act, reviewing the Tax Commission's determination that she is subject to a New York income tax. Petitioner alleges she was a resident of New Hampshire in the years 1937 to 1943, which are in issue here. The commission determined she was a resident of New York in those years and assessed a tax. Two hearings were held at which petitioner testified. She complains that the hearings were unduly delayed; but the petitioner admits she filed no returns for the years in question and the Statute of Limitations does not run in those circumstances (Tax Law, § 373, subd. 1). The assessments were made in 1945, and petitioner was given due notice of them and could then act in accordance with her rights. Part of the delay from that time on may be attributable to her, but whether it was or not the determination is not invalidated by the delay shown in this record. The facts thus alleged, so far as we are able to read them as facts and separate them from the legal arguments which are woven within them, show on their face that the commission acted in making and reviewing the assessments in accordance with the statute which gives it jurisdiction. Petitioner seems to argue that the commission is estopped by having decided in certain prior years that she was a nonresident from ruling for the years in question she was subject to the New York tax. Of course the duty of making annual tax assessments is to be viewed freshly for each year and may be decided differently than in previous years, either because the taxpayer's status has actually changed or because the tax officials become possessed of information to indicate it should be treated differently. The Special Term was clearly right in dismissing this petition which is defective on its face. Although the petition expressly disavows proceeding under subdivisions 6 or 7 of section 1296 of the Civil Practice Act, which deal with the sufficiency of the proof to sustain the determination, some of the petitioner's arguments suggest that an absence of proof is what she is complaining of. If she contends that there was no substantial evidence before the commission on which the determination was based, she should be able to review that question; but in that event such a contention should be pleaded in plain and concise language so that the record before the commission may be examined and reviewed. For that reason we would give petitioner an opportunity to plead over if she is so advised. Order modified by allowing petitioner to replead, and as thus modified affirmed, without costs. Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ., concur.


Summaries of

Matter of Marx v. Goodrich

Appellate Division of the Supreme Court of New York, Third Department
Jun 16, 1955
286 App. Div. 913 (N.Y. App. Div. 1955)
Case details for

Matter of Marx v. Goodrich

Case Details

Full title:In the Matter of EMILY MARX, Appellant, against ALLEN J. GOODRICH et al.…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 16, 1955

Citations

286 App. Div. 913 (N.Y. App. Div. 1955)

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