Small Claims Determination Form - New York Division Of Tax Appeals Page 2
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33. Petitioner's spouse, Robin Branch-El-Vielot, also filed New York State and City resident income tax returns
for the years 2000, 2001 and 2002. The filing status claimed by Mrs. Vielot on her returns for each of the three
years in question was married filing separate return and each return claimed itemized deductions and one
dependent exemption. The address shown on each of Mrs. Vielot's return was the same as petitioner's, i.e., 1078
rd
East 43
Street, Brooklyn, NY 11210.
4. Upon review of petitioner's amended return for the 2002 tax year, the Division requested that petitioner
submit documentary evidence to substantiate the $14,442.00 of New York itemized deductions as claimed on
both the original and amended returns. Petitioner did not respond to the Division's request for documentary
evidence.
5. In 2003, the Division issued three statements of proposed audit changes to petitioner changing his filing
status from head of household to married filing separate return since "[m]arried taxpayers living at the same
address, who elect to file separate returns, must each claim the filing status 'Married Filing Separate Return' on
their New York returns." For the 2000 and 2001 tax years, the change in filing status reduced the allowable
standard deduction from $10,500.00 to $6,500.00. For the 2002 tax year, the Division disallowed as
unsubstantiated petitioner's claimed New York itemized deductions of $14,442.00 and, in lieu thereof, allowed
petitioner the $6,500.00 standard deduction available to an individual with a married filing separate return filing
status. The Division did allow petitioner to claim one dependent exemption for 2002 as claimed on his amended
return for this year.
6. Based on the statements of proposed audit changes, the Division issued three notices of deficiency to
petitioner asserting that additional New York State and City personal income tax was due, together with
interest, in the following amounts:
ITEM
2000
2001
2002
NYS tax due
$373.00
$423.00
$662.00
NYC tax due
164.00
149.00
300.00
Interest
76.95
60.22
35.63
Payments
-0-
-0-
494.00
Total
$613.95
$632.22
$503.63
7. Petitioner timely protested the three notices of deficiency by filing requests for conciliation conference with
the Division's Bureau of Conciliation and Mediation Services ("BCMS"). A conciliation conference, held on
March 17, 2004, resulted in all three notices of deficiency being sustained in full. BCMS issued three consents
to petitioner which, when combined, indicated that the tax and interest for all three years at issue totaled
$1,794.21 and that "[i]f payment is received after April 9, 2004, additional penalty and/or interest charges will
accrue." By two checks, each dated April 5, 2004, petitioner remitted payment of $1,796.00 and thus overpaid
his liability by $1.79. At the small claims hearing held herein, petitioner asserted that if he is unsuccessful in
proving that he is entitled to claim head of household status, he is still entitled to a refund of the $1.79
overpayment noted above. The Division did not present any evidence or argument regarding petitioner's
assertion of a refund in the sum of $1.79.
rd
8. The 1078 East 43
Street, Brooklyn, New York address shown on both petitioner's and his spouse's 2000,
2001 and 2002 tax returns was a two-family house owned by Margaret Vielot, petitioner's sister. Margaret
Vielot occupied the first floor of the residence, while petitioner, his spouse and their two daughters occupied the
second floor apartment.
SUMMARY OF THE PARTIES' POSITIONS
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9. Petitioner maintains that on June 30
of each year in question, he and his younger daughter, born in 1999,
moved from the second floor apartment to a basement apartment located at the same address. On January 1 of
the following year petitioner asserts that he and his daughter would move back to the second floor apartment.
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