Small Claims Determination Form - New York Division Of Tax Appeals (Page 3 of 3) in pdf

Small Claims Determination Form - New York Division Of Tax Appeals Page 3

Petitioner argues that he made this move each year solely for tax purposes and that he qualifies for head of

household filing status since he maintained a separate permanent residence for more than one-half of each tax

year for his dependent daughter.

10. The Division maintains that petitioner has failed to submit any documentary evidence, such as a lease, rent

payments and separate utility bills, to show that he maintained a separate residence in a basement apartment

located at 1078 East 43

Street, Brooklyn, New York, and that, absent any supporting documentary evidence,

petitioner has failed to meet his burden of proof.

CONCLUSIONS OF LAW

A. Tax Law § 689(e) places the burden of proof on petitioner to show that the notices of deficiency issued by

the Division are incorrect. In the instant matter, petitioner's position that he and his daughter spent slightly less

than one-half of each tax year living in the second floor apartment with the rest of the family and then moved,

for the balance of the year, to a basement apartment in the same house certainly strains reason and credibility.

Without one piece of documentary evidence to support petitioner's unusual, to say the least, living arrangement,

it cannot be found that he has sustained his burden of proof to show that he maintained a separate permanent

residence for more than one-half of each tax year for his dependent daughter. Accordingly, petitioner is not

entitled to claim head of household filing status for the three years in dispute.

B. Petitioner has also failed to submit any documentary evidence to support the $14,442.00 of New York

itemized deductions as claimed on his 2002 tax return and therefore the Division properly disallowed same as

unsubstantiated.

C. In accordance with Finding of Fact "7" petitioner has overpaid the tax and interest due for the three years at

issue by $1.79. Petitioner has requested and is entitled to a refund of this amount.

D. The petition of Clandis Vielot is granted to the extent indicated in Conclusion of Law "C", the Division is

directed to refund to petitioner the sum of $1.79 together with such interest as is allowed by law, and that,

except as so granted, the petition is in all other respects denied.

DATED: Troy, New York

May 12, 2005

/s/ James Hoefer

PRESIDING OFFICER

[Back to

Top][What's

New?][Home]

Small Claims Determination Form - New York Division Of Tax Appeals Page 3