In re the Estate of Bruck , 4 Misc. 2d 1080 ( 1957 )

John D. Bennett, S.

This is a motion to reduce the penalty of 10% to 6% pursuant to subdivision 1 of section 249-z of the Tax Law which reads: “ In case the time of payment has not been extended by the tax commission and the tax or any portion thereof is subject to interest at the rate of ten per centum per annum, such interest may be reduced by the surrogate to six per centum per annum, if by reason of claims made upon the estate, necessary litigation or other unavoidable cause of delay the tax cannot be determined and paid as herein provided, but such reduction of interest shall be only for the period during which such cause of delay was operative ”.

The sole ground urged for this relief is a statement in the moving affidavit that the executor ‘1 believed that it was not necessary to file estate tax returns in this estate ’ ’. The affidavit does not, even prima facie, comply with the requirements of the statute (see Matter of Eisenberg, 184 Misc. 387; Matter of Wormser, 51 App. Div. 441; Matter of Platt, 8 Misc. 144; cf. Matter of Minniss, 207 Misc. 327).

The foregoing authorities require that the motion be denied.

Submit order on notice.