Matter of Murphy & O'Connell v Tax Appeals Trib.

Matter of Matter of Murphy & O'Connell v Tax Appeals Trib. 2012 NY Slip Op 02046 Decided on March 20, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 20, 2012
Andrias, J.P., Sweeny, Moskowitz, Freedman, Manzanet-Daniels, JJ.
7128

[*1]In re Murphy & O'Connell, TAT (E)06-18(UB) 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.

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 artical 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 NY § 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 AD3d 287, 288 [2008]; Matter of Horowitz v New York City Tax Appeals Trib., 41 AD3d 101, 102 [2007], lv denied 10 NY3d 710 [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 NY Constitution (see Matter of Smalls v White Plains Hous. Auth., 34 Misc 2d 949, 951 [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 AD2d 140, 148 [1985, Levine, J., [*2]dissenting in part], revd 66 NY2d 948 [1985]).

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 20, 2012

CLERK