A review of the Matter of Miriam Snyder and the Non-Service of Notice Defense to License Suspension.
What Does NYS Have to Do to Suspend My License?
Recent case law confirms that you should fight back if you are surprised by a license suspension for unpaid taxes, when you did not receive notice of it 60-days in advance. This is an opportunity to fight back, make the Tax Department prove mailing of the notice, and renew discussions for a collection alternative like an installment payment plan, offer-in-compromise, or currently-not-collectable status. An Administrative Law Judge allowed a taxpayer's case to proceed on the basis that the State Tax Department had failed to verify that they provided her with notice before suspending her license. Matter of Miriam Snyder, DTA No. 826108 (N.Y.S. Div. of Tax App., Jan 8, 2015); see also Matter of Miriam Snyder, DTA No. 826108 (N.Y.S. Div. of Tax App., Jun. 25, 2015). In a Jan. 8, 2015 decision, ALJ Dennis M. Galliher concluded that there was no evidence that the required 60-day notice of intent to make a referral to the Department of Motor Vehicles for license suspension had been sent and received by the taxpayer, putting her on notice of the proposed suspension.
What Does Miriam Snyder's Case Tell Me About Defending License Suspension?
The ALJ also found that because the taxpayer did not receive advanced notice of the proposed suspension, the tax liabilities in question were not fixed, and the taxpayer's rights to administrative or judicial review had not been exhausted. A New York taxpayer has a right to exercise all of their administrative/judicial challenges before a license suspension takes place. Thus, the ALJ sent the matter to a hearing and the New York State Department of Taxation and Finance voluntarily abandoned the proceeding. The New York State Department of Taxation and Finance provided a letter to the ALJ stating: "Please take notice that the Division of Taxation, after review of the above-captioned matter regarding the [60-day notice], hereby agrees to cancel the aforementioned [60-day notice], as of this date." As a result, on February 18, 2015, an Order of Discontinuance was issued by the Division of Tax Appeals decreeing the 60-day Notice to be canceled and the proceeding (i.e., the petition challenging the 60-day Notice) to be discontinued with prejudice. Why did this happen? The New York State Department of Taxation and Finance realized that the taxpayer was destined to win. The facts were as follows: 1. The 60-Day Notice pursuant to Tax Law ? 171-v was dated Nov. 13, 2013 and was addressed to petitioner in Bronx, New York 10467. 2. The 60-Day Notice claimed that Ms. Miriam Snyder from the Bronx had $31,889.06 of delinquent tax liabilities from the 2000, 2001, 2002 and 2003 tax periods. 3. There was no competent evidence from the New York State Department of Taxation as to when the notice was mailed or if it was mailed, such as a return receipt, proof of delivery to USPS, etc., and thus NYSDT could only rely on advising the Court of its usual mailing procedures, but could not even verify its procedures were actually followed in this case to rebut an allegation that the mailing did not take place. 4. Miriam Notice first learned of the proposed license suspension when she received a proposed suspension of her license on January 15, 2014 when she received an Order of Suspension from DMV.
How Will the Court React to NYS's Failure to Prove Service of the Notice?
ALJ Dennis M. Galliher analyzes the issue as follows: "I. The Division may meet its burden of proving proper mailing by providing evidence of its standard mailing procedure, corroborated by direct testimony or documentary evidence of mailing (see Matter of Accardo, Tax Appeals Tribunal, August 12, 1993). The mailing evidence is two-fold, and to prove the fact and and date of mailing of the subject notice, the Division must make the following showing: "first, there must be proof of a standard procedure used by the Division for the issuance of the statutory notices by one with knowledge of the relevant procedures; and second, there must be proof that the standard procedure was followed in the particular instance in question." (Matter of United Water New York, Inc., Tax Appeals Tribunal, April 1, 2004; see Matter of Katz). J. The record on this motion includes no evidence by which mailing of the 60-Day Notice on November 8, 2013, as claimed, can be verified. The fact that the claimed date of mailing is set forth on the face of the Notice, coupled with the bare assertion by affidavit that the Notice was mailed on such date, is plainly insufficient to establish the fact of proper mailing (i.e., mailing by first class mail on the date claimed per Tax Law ? 171-v). In fact, the McNamara affidavit speaks of a "correspondence trigger date," an "additional ten days... to allow for processing and mailing," and a 75 day "clock" date. However, these terms are not further explained or tied in any manner to a description of the regular process by which such 60-Day Notices are mailed.7 Without proof of the date on which the subject Notice was issued to petitioner, the 60-day period within which petitioner was entitled to file a protest was not triggered. In turn, when petitioner received actual notice of the proposed suspension of her license via the January 15, 2014 Order of Suspension (see Finding of Fact 3), she filed her Request." [Fn 7] The giving of notice via mailing by first class mail, per Tax Law ? 171-v, differs from the more usual statutory requirement imposed upon the Division of giving notice via mailing by certified or registered mail (see e.g., Tax Law ?? 1138[a]; 685[a]). Notwithstanding distinctions between these methods of mailing, including that the latter allows an expedient method to establish both physical delivery of the item allegedly mailed into the custody of the USPS and, via USPS Form 3811-A, subsequent delivery information (or confirmation) with respect to the item, it remains that the record herein provides no basis to support a conclusion that the 60-Day Notice concerning petitioner was in fact mailed to her as claimed on November 8, 2013 or on any other particular date. Matter of Miriam Snyder, DTA No. 826108 (N.Y.S. Div. of Tax App., Jan. 8, 2015, pgs. 13-14).
How Did Things Work Out for Ms. Snyder?
As a result of this reasoning on ALJ Dennis M. Galliher's part, and his allowing Ms. Snyder's petition to go forward, the Department of Taxation chose to abandon the action and re-file a new 60-Day Notice, rather than moving forward. After having accomplished all of this, on her own, without an attorney, Ms. Snyder took the bold step of applying on March 12, 2015 for an Order under Tax Law ? 3030 for an award of administrative and litigation costs. Under Tax Law ? 3030, reasonable administrative costs included reasonable fees paid in connection with the administrative proceeding, but incurred after the issuance of notice or other document giving rise to the taxpayer's right to a hearing. (Tax Law ? 3030[c][B]). The statute also provides fees for the services of an individual who is authorized to practice before the Division of Tax Appeals are treated as fees for the services of an attorney (Tax law ? 3030[c]). The ALJ did not award Ms. Snyder prevailing party costs and attorney's fees because she handled the matter herself and did not properly itemize the time spent and rate for the work as required. Tax Law ? 3030(c)(5)(A)(ii)(I). The takeaway from this rather extraordinary case before the Division of Tax Appeals is that you should fight back if you are surprised with a license suspension you did not receive notice of. By fighting back, you can avoid license suspension (or reverse it) and can renew the discussions to finalize a collection alternative such as an installment agreement, offer-in-compromise, or currently-not-collectable status.
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