Matter of Stephen C. Insalaco v Commissioner of Taxation and Finance

Matter of Insalaco v Commissioner of Taxation & Fin. 2005 NY Slip Op 09356 [24 AD3d 897] December 8, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of Stephen C. Insalaco, Sr., Petitioner, v Commissioner of Taxation and Finance et al., Respondents.

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Cardona, P.J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Tax Law § 2016) to review a determination of respondent Tax Appeals Tribunal which denied petitioner's request for a refund of personal income tax.

Petitioner has received a pension from the Eastman Kodak Company since his 1986 retirement therefrom. In April 2001, petitioner filed an amended income tax return seeking refunds for the years 1992 through 1996 based upon what he claimed to be the erroneous inclusion of his pension income as subject to personal income tax. An Administrative Law Judge denied petitioner's application on the ground that the controlling limitations period had expired. Respondent Tax Appeals Tribunal thereafter sustained the denial, prompting this CPLR article 78 proceeding.

Tax Law § 687 (a) explicitly states that a claim for a refund for overpayment of income tax must be filed by the taxpayer within the latter of "three years from the time the return was filed [or] two years from the time the tax was paid." The failure to file a claim within the prescribed period of time mandates that the requested refund be disallowed (see Tax Law § 687[*2][e]). Here, there is no dispute that petitioner's application for a refund was not made until well after the governing limitations period had elapsed. Moreover, assuming without deciding that an equitable tolling of the limitations period is permissible, upon our review of the record, we find no basis for such a toll. Accordingly, the Tribunal's determination must be left undisturbed. Petitioner's remaining contentions have been examined and deemed to be lacking in merit.

Mercure, Spain, Carpinello and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.