Commodore Hotel, Inc. v. Gerosa

Per Curiam. The Comptroller of the City of New York made a one-day check of petitioner’s records underlying its sales tax returns and found a deficiency for the day of a negligible amount. Tin’s amount was then multiplied over a three-year period and assessed as a deficiency against petitioner. Petitioner challenges the validity of a one-day check as a predicate for assessing the deficiency, and argues that it has fully discharged its duty as an unpaid tax collector by keeping records which are abundantly sufficient and calculated to produce as accurate a return as is humanly possible. The comptroller does not challenge the record keeping but contends that due care on the part of the taxpayer is not the test and that the liability to make an exactly accurate return is absolute. The comptroller also asserts that the one-day test was acquiesced in by petitioner. We would agree with the comptroller that due care is not the standard of satisfaction of a taxpayer’s responsibility. It is always open to the comptroller to establish an actual deficiency by satisfactory means. Adequate spot checks would serve as such means. The adequacy of a spot check would depend upon the nature of the records kept and the degree of the deficiency disclosed. A trivial deficiency discovered for one day would not serve as a criterion in the case of a taxpayer who has exercised the care demonstrated by the petitioner in this case, unless there were a stipulation that such a check was to be accepted as determinative. We do not find in this case the kind of acquiescence in the one-day check as would amount to a stipulation to accept it, And the one-day check is not sufficient in this case to warrant the assessment which has been made against petitioner. It may be that petitioner is subject to criticism for destruction of records during the five-year period between the assessment (1948) and the hearing (1953), but we do not find proof of a destruction of records within the three-year period for which the petitioner was required by law to preserve records which prevented respondent from making any further check or audit which he might wish to make, and we do not understand that respondent makes a point that there was any such prejudicial destruction of records during the three-year period. The absence of records upon which a check-back could be made at the time of the hearing does not warrant setting up an estoppel against petitioner and accepting an inadequate one-day audit as conclusive for a three-year period. The determination of the comptroller should therefore be annulled.