Horne Equipment Corp. v. McGoldrick , 168 Misc. 59 ( 1938 )

McLaughlin (Charles B.), J.

Section 7 of the statute imposing a sales tax provides for a review by certiorari of a determination by the comptroller of the amount of tax due after a hearing held by him. Section 10 of the same statute provides for a review by certiorari of a determination by the Comptroller of an application for a refund of a tax erroneously or illegally collected. In the court’s opinion the provisions for certiorari contained in section 10 were not intended to apply to a case where the comptroller had already held a hearing under section 7 and made a determination which was not sought to be reviewed within the time specified in that section. Put somewhat differently, section 10 was intended to cover cases other than those dealt with in section 7. Proceedings to review the comptroller’s denial of a refund under section 10 would not bring up for review the hearing held and determination had under section 7, but would only involve the comptroller’s determination of the application for a refund under section 10. If the petitioner, which has already had a hearing resulting in an adverse determination under section 7, should be permitted to review the comptroller’s determination of its refund application under section 10, the hearing and determination under section 7 would prove wholly abortive and futile.

In view of the failure to institute proceedings to review the comptroller’s determination under section 7 within the time specified in said section, said determination of the tax by the comptroller became binding upon the petitioner and the latter may not, by paying the tax and then applying for a refund, obtain a second opportunity to secure a favorable decision from the comptroller and likewise extend its time to review the comptroller’s ruling.

The cross-motion to dismiss the petition is accordingly granted and the application for an order of certiorari denied.