(Download) "Matter John J. Massa v. New York State Tax Commission" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Matter John J. Massa v. New York State Tax Commission
- Author : Supreme Court of New York
- Release Date : January 21, 1984
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 70 KB
Description
Appeal from a judgment of the Supreme Court at Special Term (Klein, J.), entered August 26, 1983 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents motion to dismiss the petition for lack of jurisdiction. para. On December 24, 1982, respondent rendered a decision on petitioners appeal from three notices of determination and demand for payment of sales and use taxes. On April 19, 1983, petitioner instituted this CPLR article 78 proceeding to review respondents determination. Respondent then moved to dismiss the petition, alleging that Supreme Court did not have jurisdiction because petitioner had failed to comply with the requirements of section 1138 (subd [a], par [4]) of the Tax Law. That statute requires any individual challenging a sales and use tax assessment in a CPLR article 78 proceeding to first file an undertaking, for the amount of tax assessed, with respondent. Special Term, holding that the undertaking requirement was jurisdictional and could not be waived by the courts, granted the motion to dismiss. This appeal by petitioner ensued. para. Petitioner contends that Special Term erred when it dismissed the petition and ruled that his failure to file an undertaking deprived the court of jurisdiction. This contention must be rejected, as it is well settled that the requirement of an undertaking prior to judicial review is a "strict condition precedent" to a CPLR article 78 proceeding (Matter of Parsons v State Tax Comm., 34 N.Y.2d 190, 197). Indeed, even a nonadvertent delay in the filing of the undertaking is fatal to Special Terms jurisdiction (see Matter of Penney Co. [102 A.D.2d 968 Page 969]
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