W. T. Wang, Inc. v. New York State Department of Taxation & Finance

— Order, Supreme Court, New York County (Kirschenbaum, J.), entered May 7, 1981, denying defendant’s motion to dismiss the complaint for failure to exhaust administrative remedies, reversed, on the law, without costs, and the motion granted. Appeal from order of Supreme Court, New York County (Taylor, J.), entered June 8,1981 (108 Misc 2d 641), denying defendant’s motion for change of venue to Albany County, dismissed, without costs, as academic. Plaintiff, publisher of a Chinese language newspaper in New York City, paid the city sales tax imposed on local telephone calls and collected by New York Telephone (not a party) from August to December, 1979. In April, 1980, plaintiff filed a claim with defendant, pursuant to section 1139 of the Tax Law, seeking a refund of $68.84, citing exemption from sales tax under section 1115 (subd [b], par [i] of the Tax Law. That provision exempts from taxation “Telephony and telegraphy and telephone and telegraph service used by newspapers * * * if the charge for such services is a toll charge or a charge for mileage services, including the associated station terminal equipment.” The following month defendant rejected all but $1.40 of the claimed refund. Defendant’s letter also apprised plaintiff that the latter had 90 days in which to apply to the State Tax Commission for a hearing to challenge defendant’s determination, in accordance with subdivision (b) of section 1139 of the Tax Law. That statute authorizes a CPLR article 78 proceeding to review the determination of the State Tax Commission. Further, section 1140 of the Tax Law establishes an article 78 proceeding as the exclusive remedy for reviewing such tax liability, specifically providing that other remedies such as an action for a declaratory judgment are not to be utilized to enjoin or review a tax liability determination. In July, 1980, plaintiff petitioned for administrative review of the sales tax refund determination before defendant’s sales tax bureau. Without waiting for this administrative procedure to run its course, plaintiff then in September commenced the instant declaratory judgment action in Supreme Court, New York County. CPLR 506 (subd [b], par 2) provides that a proceeding against the State Tax Commission, which is the alter ego of defendant (Tax Law, § 170), shall be commenced in Supreme Court, Albany County. In October, 1980 defendant demanded a change of venue of the instant action to Albany County pursuant to CPLR 506 (subd [b], par 2). Plaintiff resisted with an affidavit of proper county (CPLR 511, subd [b]). Defendant then proceeded by motion in November for an order changing venue to Albany County, urging that plaintiff had failed to exhaust its then-pending administrative remedies. In April, 1981, Acting Justice Taylor denied the motion for a change of venue, noting that the instant action was not a “premature” article 78 proceeding, as 826 defendant had urged, and thus CPLR 506 (subd [b], par 2) was inapplicable. Justice Taylor concluded that this declaratory judgment action raised different and more general issues than the mere determination of entitlement to a tax refund, which would be addressed in an article 78 proceeding. Rather, Justice Taylor saw the declaratory judgment action as seeking an interpretation of various terminology in the tax statute, such as the definition of “toll charge[s]”, “associated station terminal equipment” and “mileage services”. An order was not entered on Justice Taylor’s April 24 decision until June 8, 1981. In the interim, defendant had moved to dismiss the complaint for failure to exhaust administrative remedies then pending to review the correctness of the imposition of tax, citing subdivision (b) of section 1139 and section 1140 of the Tax Law. Justice Kirschenbaum denied this motion on May 4, solely on the ground that Justice Taylor’s decision, 10 days earlier, constituted the law of the case that a declaratory judgment action maintained independently of an administrative proceeding was authorized as a remedy. Within two weeks, well before entry of the Taylor order, plaintiff entered and served the Kirschenbaum order, and defendant took its appeal therefrom. It is unnecessary to consider whether Justice Taylor’s conclusions, on a change of venue motion, as to the availability of a declaratory judgment action as an alternative to a special proceeding in this instance, constituted the law of the case, binding on Justice Kirschenbaum in passing on the motion to dismiss where the question was directly at issue. It is not binding upon us. A declaratory judgment action is an inappropriate vehicle for challenging tax assessment determinations where taxpayers have failed to exhaust their administrative remedies (Slater v Gallman, 38 NY2d 1; New York State Rest. Assn, v State Tax Comm., 66 AD2d 977), especially where that administrative process has already been commenced. Plaintiff’s apprehension that an administrative proceeding will not adequately clarify the statutory terms in question for future controversies is unfounded. The correctness and applicability of a tax and its formula are all appropriate subjects for review in an article 78 proceeding (Berkshire Fine Spinning Assoc, v City of New York, 5 NY2d 347, app dsmd 361 US 3.) As stated in that case (5 NY2d at p 359): “A taxpayer may and frequently does (see Matter of New Yorker Mag. v. Gerosa, 3 NY 2d 362, supra) raise in an article 78 proceeding all possible questions of constitutionality, applicability, correctness of formula and of tax.” Further, inasmuch as taxation is a governmental operation, subsequent taxpaying litigants will be adequately protected in similar situations under principles of stare decisis (Matter of Jones v Berman, 37 NY2d 42). Concur — Sullivan, Ross and Fein, JJ.