In re Risoli v. Commissioner of Taxation

2 Citing cases

  1. Black v. N.Y. State Tax Appeals Tribunal

    206 A.D.3d 1482 (N.Y. App. Div. 2022)   Cited 2 times

    In determining whether petitioner was a responsible person for the time periods in question, the test is a factual one to be determined after consideration of a myriad of factors, including "whether the petitioner signed the tax return, derived a substantial part of his [or her] income from the corporation, or had the right to hire and fire employees. While no one factor is controlling, all must be considered" ( Matter of Malkin v. Tully, 65 A.D.2d 228, 231, 412 N.Y.S.2d 186 [1978] [citations omitted]; see Matter of Menik v. Roth, 280 A.D.2d 702, 702–703, 720 N.Y.S.2d 265 [2001] ; Matter of Risoli v. Commissioner of Taxation & Fin., 237 A.D.2d 675, 676, 654 N.Y.S.2d 218 [1997] ; Matter of Basch v. New York State Tax Commn., 134 A.D.2d 786, 787, 521 N.Y.S.2d 840 [1987] ). Notwithstanding evidence that could support a contrary determination, it is undisputed that petitioner was president, the majority shareholder, had check signing authority, was involved in daily field operations and derived a substantial part of his income from NECC.

  2. Black v. N.Y. State Tax Appeals Tribunal

    2023 N.Y. Slip Op. 5961 (N.Y. 2023)

    ," and "was authorized to sign checks" (65 A.D.2d at 231 [citations omitted]). This Court endorsed the use of the Malkin factors shortly after that case was decided (see Matter of MacLean v State Tax Commn., 49 N.Y.2d 920 [1980], affg on op below 69 A.D.2d 951, 951-952 [3d Dept 1979]). Because "[t]he factual nature of the determination precludes an exhaustive list of factors" (Matter of Basch v New York State Tax Commn., 134 A.D.2d 786, 787 [3d Dept 1987]), the list of factors considered in the state courts has evolved over time, just as it has in the federal courts. Additional relevant factors that have been considered include status as a corporate officer, shareholder and signatory on corporate bank accounts (see Matter of Menik, 280 A.D.2d at 703; Matter of Hopper v Commissioner of Taxation & Fin., 224 A.D.2d 733, 737 [3d Dept 1996], lv denied 88 N.Y.2d 808 [1996]), authority over the management of the corporation's affairs (see Matter of Menik, 280 A.D.2d at 703; Matter of Risoli v Commissioner of Taxation & Fin., 237 A.D.2d 675, 676 [3d Dept 1997]), authority to direct payment of corporate bills and to make payroll (see Matter of Fisher v State Tax Commn., 90 A.D.2d 910, 911 [3d Dept 1982]; Matter of McHugh v State Tax Commn., 70 A.D.2d 987, 988 [3d Dept 1979]), and whether the individual has direct involvement in attempting to resolve a corporation's financial problems, including tax liabilities (see Matter of Risoli, 237 A.D.2d at 676; Matter of Martin v Commissioner of Taxation & Fin., 162 A.D.2d 890, 891 [3d Dept 1990]). As in the federal courts, holding oneself out as a responsible person is also a relevant factor (see Matter of Martin, 162 A.D.2d at 891).