Opinion
90556.
Decided and Entered February 26, 2004.
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 sustained a sales and use tax assessment imposed under Tax Law articles 28 and 29.
Rupert Moore, New York City, petitioner pro se.
Eliot Spitzer, Attorney General, Albany (Julie S. Mereson of counsel), for respondents.
Before Cardona, P.J., Mercure, Peters, Mugglin and Kane, JJ.
MEMORANDUM AND JUDGMENT
In November 1995, the Department of Taxation and Finance issued a notice of determination to petitioner, the owner and operator of a liquor store, seeking payment of past due sales and use taxes, interest and penalties totaling over $71,000. That notice stated that if petitioner failed to request a conciliation conference or petition for a tax appeals hearing within 90 days, the tax would "become finally and irrevocably fixed." Petitioner requested a courtesy conference regarding the determination in December 1997, but did not request a conciliation conference until January 2000, which request was denied as untimely. Petitioner filed a petition for redetermination of a deficiency in May 2000 with the Division of Tax Appeals, which was also dismissed as untimely. Respondent Tax Appeals Tribunal affirmed the dismissal. Petitioner then commenced this CPLR article 78 proceeding to challenge the Tribunal's holding.
We confirm. The deadline to request a conciliation conference or petition for redetermination of a notice of determination assessing sales and use taxes is 90 days from the mailing of the notice of determination ( see Tax Law § 1138[a][1]). While petitioner argues that he did not receive the notice of determination, the mailing of the notice creates a rebuttable presumption that the notice was received ( see Tax Law § 1147[a][1]; Matter of Roebling Liqs. v. Commissioner of Taxation Fin., 284 A.D.2d 669, 671, appeal dismissed 97 N.Y.2d 637, cert denied 537 U.S. 816; Matter of Mareno v. State of New York Tax Commn., 144 A.D.2d 114, 115). Petitioner's denial of receipt here, unsupported by evidence, did not sufficiently rebut that presumption ( see Matter of Cavalieri v. Commissioner of State of N.Y. Dept. of Taxation Fin., 250 A.D.2d 973, 975). In any event, petitioner knew of the assessment by December 1997, when he requested a courtesy conference regarding it. Inasmuch as he failed to request a conciliation conference or petition for redetermination until 2000, we cannot say that the Tribunal erred in dismissing the petition.
Cardona, P.J., Peters, Mugglin and Kane, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.