Opinion
October 26, 1987
Appeal from the Surrogate's Court, Richmond County (D'Arrigo, S.).
Ordered that the order is affirmed, with costs payable by the appellant executor personally.
Contrary to the appellant's contention, the pro forma order dated October 9, 1985, which had fixed the net State estate tax was not res judicata as between the parties (see, Tax Law § 249-x; Matter of Ford, 198 Misc. 69, mot to dismiss appeal granted 278 App. Div. 1029; Matter of McNeil, 53 Misc.2d 677; see also, Matter of Scrimgeour, 175 N.Y. 507). Specifically, the October 9, 1985 pro forma order was based upon a tax return submitted by the executor and not "pleadings framing issues"; it "was granted and entered without even a semblance of a determination of any of the present questions as issues before the court at that time" (see, Matter of Ford, supra, at 76). Accordingly, after the executor apparently ignored the letters from the New York State Tax Commission, challenging the amount of net State estate tax reported on the return, and requesting that the executor submit an amended pro forma order to the Surrogate's Court, the Commission could properly seek review of the pro forma order dated October 9, 1985, in the Surrogate's Court on the ground that the State estate tax return was false and incomplete (see, Tax Law § 249-x; see also, Matter of McNeil, supra).
We have considered the appellant's other argument and find it to be without merit. Lawrence, J.P., Weinstein, Kooper and Sullivan, JJ., concur.