Licata v. Chu
Cases that cite this one
15 later published cases cite this decision.
- Thorbahn Ents., L.L.C. v. Ohio Dept. of Taxation (Ohio Ct. App. 2021)
- In re the Appeal of National Catastrophe Restoration, Inc. (Kan. Ct. App. 2012)
- Alexandre v. Commissioner of Revenue Services (Conn. 2011)
- Yilmaz, Inc. v. Director, Division of Taxation (New Jersey Tax Court 2005)
- Raemart Drugs, Inc. v. Wetzler (Appellate Division of the Supreme Court of New York 1990)
- Oak Beach Inn Corp. v. Wexler (Appellate Division of the Supreme Court of New York 1990)
- Continental Arms Corp. v. State Tax Commission (N.Y. 1988)
- Sloan's Supermarkets, Inc. v. Chu (Appellate Division of the Supreme Court of New York 1988)
- Arnmart Wholesale Beer Distributors, Inc. v. State Tax Commission (Appellate Division of the Supreme Court of New York 1988)
- Sol Wahba, Inc. v. New York State Tax Commission (Appellate Division of the Supreme Court of New York 1987)
- Guiragossian v. Chu (Appellate Division of the Supreme Court of New York 1987)
- S. H. B. Super Markets, Inc. v. Chu (Appellate Division of the Supreme Court of New York 1987)
- Ace Provision & Luncheonette Supply, Inc. v. Chu (Appellate Division of the Supreme Court of New York 1987)
- Snyder v. State Tax Commission (Appellate Division of the Supreme Court of New York 1985)
- Hennekens v. State Tax Commission (Appellate Division of the Supreme Court of New York 1985)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
OPINION OF THE COURT
Memorandum.
The judgment of the Appellate Division should be reversed and the determination of the State Tax Commission reinstated, with costs.
Petitioners’ sales tax records have as their source cash register tapes which show only total sales and sales tax collected by categories, although the tape given the customer itemized each transaction. Because respondent’s auditor could not determine from the tapes available whether tax had been charged on all taxable items and whether the proper tax had been charged in each instance, the auditor’s use of a test period and markup audit to estimate the tax due from petitioners was neither arbitrary nor without rational basis (Tax Law § 1138 [a] [1]; Matter of Markowitz v State Tax Commn., 54 AD2d 1023, affd 44 NY2d 684).
Petitioners also challenge the accuracy of the test audit because, they contend, a sufficient margin was not allowed for employee purchases, theft, waste and “loss leaders.” On that issue, however, the burden of proof was on petitioners (Matter of Petroleum Sales & Serv. v Bouchard, 64 NY2d 671, affg 98 AD2d 882), and they presented neither direct proof of such losses nor expert testimony establishing the extent of such losses regularly occurring in the industry.
Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, etc.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.