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Nexus
Review
The sales tax is a “transactions tax,” i.e., liability for the tax occurs at the time of the transaction The tax becomes due at the time of transfer of title to or possession of (or both) tangible personal property or at the time of the rendition of a qualified service (20 NYCRR 525.2 [a] [2]). The sales tax is also a “destination tax,” that is, the point of delivery or point at which possession is transferred by the vendor to the purchaser, or his designee, controls both the incidence of tax and its rate (20 NYCRR 525.2 [a] [3]
Audit
Representation
The failure to timely provide a certificate of capital improvement is not determinative of capital improvement status. What must be determined is whether the work performed by petitioner qualified as a capital improvement under the three-prong test set forth in Tax Law § 1101(b)(9)(i).
The capital improvement provision in Tax Law § 1105[c][5] is not to be viewed as an exception as to which the taxpayer bears the burden of proof, rather is to be construed under the rule that “[a] statute which levies a tax is to be construed most strongly against the government and in favor of the citizen”
DTA
Representation
Tax Law § 1139(b) provides, in relevant part, as follows:
If an application for refund or credit is filed with the commissioner of taxation and finance as provided in subdivision (a) of this section, the commissioner of taxation and finance shall grant or deny such application in whole or in part within six months of receipt of the application in a form which is able to be processed and shall notify such applicant by mail accordingly. Such determination shall be final and irrevocable unless such applicant shall, within ninety days after the mailing of notice of such determination, petition the division of tax appeals for a hearing. (Emphasis added.)
Tax Law §1139(b) thus mandates that the Division either grant or deny a refund application, in whole or in part, within six months of receipt of the application in a form which is able to be processed.