Opinion
2012-03-20
In re MURPHY & O'CONNELL, Petitioner, v. TAX APPEALS TRIBUNAL, et al., Respondents.
Patrick J. Murphy, New York, for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Andrew G. Lipkin of counsel), for respondents.
Patrick J. Murphy, New York, for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Andrew G. Lipkin of counsel), for respondents.
ANDRIAS, J.P., SWEENY, MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, JJ.
Decision of respondent New York City Tax Appeals Tribunal, dated July 26, 2011, in relevant part, affirming an administrative law judge's (ALJ) determination to sustain a notice of determination asserting a deficiency for petitioner's New York City unincorporated business tax return for calendar year 2001, unanimously confirmed, the petition denied, and the proceeding pursuant to CPLR article 78, commenced in this court pursuant to CPLR 506(b)(4), dismissed, without costs.
The Tribunal's decision—that, pursuant to Administrative Code of City of N.Y. § 11–507(3), the contribution that petitioner made to a defined benefit plan for a partner is not deductible—was not arbitrary and capricious or contrary to law ( see Matter of Proskauer Rose, LLP v. Tax Appeals Trib. of City of N.Y., 57 A.D.3d 287, 288, 868 N.Y.S.2d 206 [2008]; Matter of Horowitz v. New York City Tax Appeals Trib., 41 A.D.3d 101, 102, 837 N.Y.S.2d 89 [2007], lv. denied 10 N.Y.3d 710, 859 N.Y.S.2d 395, 889 N.E.2d 82 [2008] ).
Respondent Commissioner of Finance of the City of New York is not a state department, board, bureau, officer, authority, or commission; therefore, he is not subject to article IV(§ 8) of the N.Y. Constitution ( see Matter of Smalls v. White Plains Hous. Auth., 34 Misc.2d 949, 951, 230 N.Y.S.2d 106 [1962] ). Further, respondents were not required to promulgate a rule pursuant to the City Administrative Procedure Act (New York City Charter § 1041 et seq.); they could, instead, develop guidelines in the course of adjudicating individual cases ( see Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health, 109 A.D.2d 140, 148, 490 N.Y.S.2d 636, [1985 Levine, J., dissenting in part], revd. 66 N.Y.2d 948, 498 N.Y.S.2d 780, 489 N.E.2d 749 [1985] ).
We have considered petitioner's remaining contentions and find them unavailing.