Fargnoli v. Murphy — 55 Misc. 2d 545

Majority

p. 545

In the Matter of Louis Fargnoli et al., Doing Business as Fargnoli Brothers, et al., Petitioners, v. Joseph H. Murphy et al., Constituting the State Tax Commission, Respondents.

Supreme Court, Special Term, Albany County,

September 5, 1967.

Shamulka & Shamulka for petitioners. Louis J. Lefkowits, Attorney-General (Edwin R. Oberwager of counsel), for respondents.

The petitioners seek to set aside assessments of income taxes for 1958, 1959 and 1960 upon the ground that the Statute of Limitations (Tax Law, § 373, subd. 4) had run. It appears that after an audit by the Federal Internal Revenue Bureau the latter made assessments for additional Federal income taxes due for the years stated above. The

p. 546

petitioners thereafter and on June 24, 1964, gave notice thereof to the respondents pursuant to sections 367 and 659 of the Tax Law, and the respondents on August 31, 1964 and March 15, 1965 issued assessments for New York State income taxes respecting the additional income shown.

Subdivision 4 of section 373 provides that when a taxpayer reports a change or correction in taxable income by the Federal Internal Revenue Bureau the respondents are to have one year thereafter to recompute the amount of tax due. The language, “provided, however, the provisions of this subdivision shall not affect the time wihtin which an assessment may otherwise be made ”, is not inconsistent with the foregoing and does not negate the authority conferred. (See, also, Tax Law, § 659; § 683, subd. [c]; and the State Tax Commission Regulations, § 571-a, subds. [a], [d] [20 NYCRR 270.21(a), (d)].) The assessments were timely made. The application is denied.