Summary
holding that ownership interest listed on tax returns "was insufficient, without more, to satisfy petitioner's burden, since corporate and personal tax returns, even when filed with government agencies, are not in and of [themselves] determinative"
Summary of this case from Shyer v. ShyerOpinion
2012-10-18
In re Azmina BHANJI, etc., Petitioner–Appellant, v. Abbas K. BALUCH, Respondent–Respondent, John/Jane Doe Individuals, et al., Respondents.
Farrell Fritz, P.C., New York (Peter A. Mahler of counsel), for appellant. Rosenbaum & Rosenbaum, P.C., New York (George David Rosenbaum of counsel), for respondent.
Farrell Fritz, P.C., New York (Peter A. Mahler of counsel), for appellant. Rosenbaum & Rosenbaum, P.C., New York (George David Rosenbaum of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, FREEDMAN, RICHTER, ABDUS–SALAAM, JJ.
Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 18, 2011, which, after a framed issue hearing, denied the petition for dissolution of Flytime Tours & Travel, Inc., and dismissed the proceeding, unanimously affirmed, without costs.
In this special proceeding in which petitioner seeks, inter alia, the judicial dissolution of Flytime, a New York corporation organized in 1984, petitioner has failed to establish that she is the owner of a 50% interest in Flytime, as required by Business Corporation Law § 1104(a) ( see e.g. Artigas v. Renewal Arts Realty Corp., 22 A.D.3d 327, 327–328, 803 N.Y.S.2d 12 [1st Dept. 2005] ). There is no evidence to support petitioner's testimony that she and respondent orally agreed that she would have a 50% interest in Flytime once the corporation was formed. While it is undisputed that Flytime did not issue any stock certificates, or have any shareholder agreement or organizational meeting, there is also no evidence, other than petitioner's conclusory testimony, that petitioner paid consideration for her purported stock interest ( see Matter of Heisler v. Gingras, 90 N.Y.2d 682, 687, 665 N.Y.S.2d 59, 687 N.E.2d 1342 [1997] ). Flytime's federal tax return for the year 2000, which indicated that she was a 50% owner of the corporation was insufficient, without more, to satisfy petitioner's burden, since corporate and personal tax returns, even when filed with government agencies, are “not in and of [themselves] determinative” (Matter of Heisler, 90 N.Y.2d at 688, 665 N.Y.S.2d 59, 687 N.E.2d 1342). Notably, the federal tax return was inconsistent with the NYC tax return for that same year, which indicates that respondent owns 100% of the corporation. It is also noteworthy that petitioner declined to submit her own personal tax return for in camera review.
The remaining documents on which petitioner relies either do not indicate what percentage of the corporate shares she owns or contradict her unequivocal testimony that she has owned a 50% share in Flytime since its inception. On the other hand, respondent presented documents and testimony in favor of a conclusion that he is the sole owner of the corporation.