20 CRR-NY 3000.4NY-CRR
20 CRR-NY 3000.4
20 CRR-NY 3000.4
3000.4 Pleadings; amended pleadings.
(a) Purpose.
The purpose of the pleadings is to give the parties and the Division of Tax Appeals fair notice of the matters in controversy and the basis for the parties' respective positions. All pleadings shall be liberally construed so as to do substantial justice.
(b) Answer.
(1) The office of counsel shall serve an answer on the petitioner or the petitioner's representative, if any, within 75 days from the date the supervising administrative law judge acknowledged receipt of a petition in proper form. Upon written request, the supervising administrative law judge may extend the time to serve an answer to no more than 90 days. A copy of the answer with proof of service on the petitioner or petitioner's representative, if any, shall be filed with the supervising administrative law judge within the same period prescribed for serving the answer.
(2) The answer as drawn shall contain numbered paragraphs corresponding to the petition, and shall fully and completely advise the petitioner and the Division of Tax Appeals of the defense. It shall contain:
(i) a specific admission or denial of each statement contained in the petition; however, if the Division of Taxation is without knowledge or information sufficient to form a belief as to the truth of a statement, then the answer shall so state, and such statements shall have the effect of a denial;
(ii) a statement of any additional facts to be proven by the Division of Taxation either as a defense, or for affirmative relief, or to sustain any issue raised in the petition upon which the Division of Taxation has the burden of proof; and
(iii) the relief sought by the Division of Taxation.
(3) Material allegations of fact set forth in the petition which are not expressly admitted or denied in the answer shall be deemed to be admitted.
(4) Where the Division of Taxation fails to answer within the prescribed time all material allegations of fact set forth in the petition shall be deemed to be admitted.
(c) Reply.
The petitioner may serve a reply on the office of counsel. A copy of the reply with proof of service on the office of counsel shall be filed with the supervising administrative law judge within the period prescribed for service of the reply. When a reply has been filed, or after expiration of the 20 days, the controversy shall be deemed to be at issue and will be scheduled for a hearing.
(d) Amended pleadings.
(1) General. Either party may amend a pleading once without leave at any time before the period for responding to it expires, or within 20 days after service of a pleading responding to it. After such time, a pleading may be amended only by the written consent of the adverse party or by the consent of the supervising administrative law judge or the administrative law judge or presiding officer assigned to the matter. Leave shall be freely given upon such terms as may be just, including the granting of continuances. Except as otherwise ordered by the supervising administrative law judge or the administrative law judge or presiding officer assigned to the case, there shall be an answer or reply to an amended pleading if an answer or reply is required to the pleading being amended. Service of such answer shall be made within 75 days after service of the amended petition, and service of a reply shall be made within 20 days after service of the amended pleading to which it responds. No amendment shall be allowed under this subdivision after the expiration of the time for filing the petition, if such amendment would have the effect of conferring jurisdiction on the division of tax appeals over a matter which otherwise would not come within its jurisdiction under the petition as then on file.
(2) Amendment to conform to the evidence.
(i) Issues tried by consent. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. The administrative law judge or presiding officer, upon motion of any party at any time, may allow such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues; but failure to amend does not affect the result of the trial of these issues.
(ii) Other evidence. If evidence is objected to at the hearing on the ground that it is not within the issues raised by the pleadings, then the administrative law judge or presiding officer may receive the evidence and at any time allow the pleadings to be amended to conform to the proof, and shall do so freely when justice so requires and the objecting party fails to satisfy the administrative law judge or presiding officer that the admission of such evidence would prejudice such party in maintaining such party's position on the merits.
(3) Relation back of amendments. When an amendment of a pleading is permitted, it shall relate back to the time of filing of that pleading, unless the administrative law judge or presiding officer shall order otherwise either on motion of a party or on his or her own initiative.
20 CRR-NY 3000.4
Current through September 30, 2022
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