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2011 MINUTES OF THE STATE BOARD OF EQUALIZATION 132

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2011 MINUTES OF THE STATE BOARD OF EQUALIZATION 132
132
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Tuesday, June 21, 2011
The Board met at its offices at 5901 Green Valley Circle, Culver City, at
9:30 a.m., with Mr. Horton, Chairman, Ms. Steel, Vice Chairwoman, Ms. Yee and Mr. Runner
present, Ms. Mandel present on behalf of Mr. Chiang in accordance with Government Code
section 7.9.
CORPORATE FRANCHISE AND PERSONAL INCOME TAXES HEARINGS
Gerald J. Marcil and Carol L. Marcil, 458832
2001, $307,466.00 Tax, $14,591.81 Post-Amnesty Penalty
For Appellant:
Gerald J. Marcil, Taxpayer
Layton L. Pace, Attorney
For Franchise Tax Board:
David Gemmingen, Tax Counsel
Ciro Immordino, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issues:
Whether appellant’s limited partnership satisfied the requirement for a “likekind” exchange pursuant to Internal Revenue Code section 1031.
Whether this Board has jurisdiction to hear and decide the appeal of the postamnesty penalty.
Appellant’s Exhibit:
Chart (Exhibit 6.1)
Respondent’s Exhibit: Miscellaneous Documents (Exhibit 6.2)
Action:
Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
Exhibits to these minutes are incorporated by reference.
Howard Brief, 530872
2004, $182,673.00 Assessment
For Appellant:
For Franchise Tax Board:
Howard Brief, Taxpayer
Ciro Immordino, Tax Counsel
David Gemmingen, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether appellant was the owner of property such that he is entitled to like-kind
exchange treatment with respect to the property under Internal Revenue Code section 1031.
Appellant’s Exhibit:
2004 IRS Form 8824, Like-Kind Exchanges (Exhibit 6.3)
Respondent’s Exhibit: 2004 FTB Form 565 C1 and Schedule K-1; and, 2004 IRS Form 1040
Schedule E (Exhibit 6.4)
Action:
Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
133
Tuesday, June 21, 2011
Jaroslav Marik and Jirina Marik, 547265
2004, $93,000.00 Claim for Refund
For Appellant:
Jaroslav Marik, Taxpayer
Ward R. Nyhus, Jr., Attorney
For Franchise Tax Board:
Raul Escatel, Tax Counsel
Bill Hilson, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether appellants have substantiated that they are entitled to a bad debt
deduction (or alternatively, an investment loss) for the 2004 tax year.
Appellant’s Exhibit:
Operating Agreement for University Village Housing, LLC (Exhibit 6.5)
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
Ms. Mandel introduced Rachel Dardashti, an intern from the Controller's
Los Angeles office.
Thomas Najarian and Tamar Najarian, 522166
2003, $24,217.00 Assessment
2004, $15,575.00 Assessment
2005, $17,917.00 Assessment
2006, $13,719.00 Assessment
For Appellant:
Meher Der Ohanessian, Representative
For Franchise Tax Board:
Sonia Deshmukh, Tax Counsel
Bill Hilson, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether the Franchise Tax Board correctly disallowed claimed loss deductions
for tax years 2003, 2004, 2005, and 2006 because appellant Thomas Najarian lacked sufficient
basis in the stock and debt of Thomas International Home Furnishings (TIHF), an S corporation.
Action:
Upon motion of Ms. Steel, seconded by Mr. Runner and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the appeal be submitted for decision, granting the appellant 30 days to submit supporting
documents with clarification from the Franchise Tax Board as to the specific documents being
requested, the Franchise Tax Board 30 days to respond, and the Appeals Division 30 days
thereafter to review the parties’ submissions and provide its recommendation to the Board.
The Board recessed at 12:30 p.m. and reconvened at 1:33 p.m. with Mr. Horton,
Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel present.
134
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Tuesday, June 21, 2011
PUBLIC HEARINGS
Proposed Adoption of Regulation 1685.5, Calculation of Estimated Use Tax – Use
Tax Table
Bradley Heller, Tax Counsel, Tax and Fee Program Division, Legal Department,
made introductory remarks regarding staff’s request for adoption of the proposed regulation to
implement the new use tax table provisions of Revenue and Taxation Code section 6452.1.
Robert Ingenito, Chief, Research and Statistics Section, Legislative and Research Division,
discussed new calculations for the alternative table. (Exhibit 6.6.)
Speakers were invited to address the Board, but there were none.
Action:
Ms. Yee moved to adopt the proposed regulation that was authorized for
publication at the April 2011 Business Taxes Committee as recommended by staff. The motion
failed for lack of a second.
The Board continued the public hearing to the July 2011 Board Meeting.
Ms. Yee directed staff to start focusing on planning for outreach for when the
table gets implemented.
Mr. Horton directed staff to track the legislative process and report the status to
Members, specifically if there are any significant changes.
Business Taxpayer’s Bill of Rights Hearings
Todd Gilman, Chief, Taxpayers’ Rights and Equal Employment Opportunity
Division, made introductory remarks regarding the Business Taxpayers’ Bill of Rights hearings.
Individuals have the opportunity to present ideas, concerns, and recommendations regarding
legislation, the quality of agency services, and issues related to the Board’s administration of its
tax programs, including sales and use taxes, environmental fees, fuel taxes, and excise taxes, and
any problems identified in the Taxpayers’ Rights Advocate’s Annual Report (Exhibit 6.7).
Speakers were invited to address the Board, but there were none.
Property Taxpayers’ Bill of Rights Hearings
Todd Gilman, Chief, Taxpayers’ Rights and Equal Employment Opportunity
Division, made introductory remarks regarding the Property Taxpayers’ Bill of Rights hearings.
Individuals have the opportunity to present ideas, concerns, and recommendations regarding
legislation, the quality of agency services, and issues related to the Board’s administration of its
tax programs, including state and county property tax programs, and any problems identified in
the Taxpayers’ Rights Advocate’s Annual Report (Exhibit 6.8).
Speaker:
Peter J. Fatooh, Representative, San Francisco Property Tax Appeals
(Exhibit 6.9)
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
135
Tuesday, June 21, 2011
Ms. Yee directed the Taxpayer Bill of Rights staff to work with the Board’s
Legal Department to examine further the intent of the provision of information under both of the
statutory sections (408 and 1606) and provide additional guidance.
Mr. Runner referred the matter to the Property Tax Committee.
Mr. Horton directed staff to resolve the issue expeditiously at the lowest level
possible.
CORPORATE FRANCHISE AND PERSONAL INCOME TAXES HEARINGS
Gerald A. Hutchinson, 552085
2004, $71,926.20 Additional Tax
For Appellant:
For Franchise Tax Board:
Michael Leight, Attorney
Anjali Balasingham, Tax Counsel
David Gemmingen, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issues:
Whether appellant has shown that the Franchise Tax Board (FTB or respondent)
erred in disallowing appellant’s exclusion of gain from the sale of his home under Internal
Revenue Code (IRC) section 121.
Whether appellant has shown that the FTB erred by disallowing appellant’s
deduction of claimed expenditures for home improvements as an increase to the home’s adjusted
basis.
Whether appellant has shown that the FTB erred by disallowing a claimed
deduction for home mortgage interest in excess of the amounts allowed under IRC section 163.
Whether appellant has shown that the FTB abused its discretion by denying
appellant’s request for abatement of interest on the proposed additional tax.
Action:
Upon motion of Ms. Yee, seconded by Mr. Runner and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
Myers Power Products, Inc., 546913
2009, $34,902.24 Claim for Refund
For Appellant:
For Franchise Tax Board:
Stein K. Agee, Representative
Jane Perez, Tax Counsel
Karen Smith, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether appellant has shown reasonable cause for the abatement of the late
payment penalty.
Appellant’s Exhibit:
Miscellaneous Documents (Exhibit 6.10)
Action:
Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
136
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Tuesday, June 21, 2011
Sean S. Niknafs and Sima Mirhashemi, 529770
2004, $18,711.00 Assessment
For Appellant:
James G. LeBloch, Attorney
For Franchise Tax Board:
Adam Susz, Tax Counsel
Bill Hilson, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether appellants converted their home in Tustin, California, into property held
for the production of income in May of 2004 such that their mortgage interest deduction on the
Tustin home from May of 2004 to December of 2004 is not subject to the qualified residence
interest limitation set forth by Internal Revenue Code section 163, subdivision (h)(3).
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
The Board recessed at 3:55 p.m. and reconvened at 4:10 p.m. with Mr. Horton,
Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel present.
State-of-the-Art Technologies, Inc., 521969
2002, $2,973.40 Accuracy-Related Penalty
2003, $3,765.50 Accuracy-Related Penalty
For Appellant:
Sota Omoigui, Representative
Barry Moser, Representative
For Franchise Tax Board:
Diane Ewing, Tax Counsel
Jane Perez, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether appellant has shown reasonable cause for abatement of the accuracyrelated penalties.
Appellant’s Exhibit:
Miscellaneous Documents (Exhibit 6.11)
Action:
Upon motion of Ms. Yee, seconded by Mr. Runner and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
Charles E. Kohlhase, Jr., 547973
2000, $1,181.00 Claim for Refund
2001, $1,355.00 Claim for Refund
2002, $1,559.00 Claim for Refund
For Appellant:
For Franchise Tax Board:
Charles E. Kohlhase, Jr., Taxpayer
Karen Smith, Tax Counsel
Diane Ewing, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether respondent properly determined appellant’s claims for refund are barred
by the statute of limitations.
Appellant’s Exhibit:
Miscellaneous Documents (Exhibit 6.12)
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
137
Tuesday, June 21, 2011
Action:
Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
LEGAL APPEALS MATTERS, CONSENT
With respect to the Legal Appeals Matters Consent Agenda, upon a single
motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried, Mr. Horton, Ms. Steel,
Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board made the following orders:
Steve Kwon, 443204 (EH)
10-1-06 to 6-30-07, $ $48,797.57 Tax, $807.40 Late Payment Penalty, $5,609.60 Failure to File
Return Penalty, $4,605.58 Finality Penalty
Action:
Redetermine as recommended by the Appeals Division.
Cal-U-Rent of Thousand Oaks, Inc., 468292 (AR)
10-1-04 to 9-30-07, $29,402.60 Tax
Action:
Redetermine as recommended by the Appeals Division.
Outback Flight Services, Inc., 329124 (UT)
8-16-02, $127,435.98 Claim for Refund
Action:
Deny the claim for refund as recommended by the Appeals Division.
Ali Shahryarinejad, 418258 (AC)
4-1-06 to 6-30-07, $630,014.30 Tax, $46,100.20 Late Payment Penalty, $28,103.40 Failure to
File Return Penalty
Action:
Redetermine as recommended by the Appeals Division.
Beach City Market, Inc., 466431 (FH)
7-1-04 to 6-30-07, $6,566.66 Tax, $0.00 Penalty
Action:
Redetermine as recommended by the Appeals Division.
Victor Mora, 448667 (EA)
1-1-02 to 12-31-06, $72,349.81 Tax, $86.00 Failure-to-file Penalty, $7,148.96 Negligence
Penalty, $86.00 Amnesty Double-failure-to-file Penalty
Action:
Redetermine as recommended by the Appeals Division.
Elsie Ruth Edmond, 457736 (AS)
1-1-05 to 3-31-08, $25,002.64 Tax, $0.00 Penalty
Action:
Redetermine as recommended by the Appeals Division.
Dennab, Inc., 418584 (EH)
1-1-02 to 9-30-04, $104,534.39 Tax, $10,453.45 Negligence Penalty, $3,252.47 Amnesty Double
Negligence Penalty, $10,408.07 Finality Penalty, $3,207.11 Amnesty Double Finality Penalty,
$3,298.16 Amnesty Interest Penalty
Action:
Redetermine as recommended by the Appeals Division.
138
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Tuesday, June 21, 2011
Debra Lyn Holland, 474248 (FH)
7-1-04 to 2-15-08, $65,597.20 Tax, $7,404.18 Late Payment of Returns Penalty, $471.49 Finality
Penalty
Action:
Redetermine as recommended by the Appeals Division.
Arleen Dauber Robeson and Gerald Patrick Robeson, 308850 (ET)
3-1-98 to 3-31-99, $7,491.25 Tax, $1,872.80 Fraud Penalty
Chief Red Cloud, LLC, 298033, 308053, 308054 (ET)
5-1-01 to 1-31-02, $37,352.13 Tax, $3,735.21 Negligence Penalty
2-1-01 to 6-30-04, $104,865.79 Tax, $26,216.46 Fraud Penalty
4-1-99 to 4-30-01, $42,269.93 Tax, $10,550.43 Fraud Penalty
Chief Red Cloud, LLC, 308851 (ET)
8-28-03 to 6-30-04, $1,978.42 Tax, $494.62 Fraud Penalty, $197.94 Failure-to-File Penalty
Action:
Redetermine as recommended by the Appeals Division.
Kulbir Singh Khangura, 567266 (ET)
December 16, 2010, $192.00 Approximate Value
Action:
Determined that staff properly seized the tobacco products.
Harish Gulati, 563805 (ET)
December 2, 2010, $138.75 Approximate Value
Action:
Determined that staff properly seized the tobacco products.
USA Liquor of Bakersfield, LLC, 565979 (ET)
December 29, 2010, $ 113.00 Approximate Value
Action:
Determined that staff properly seized the tobacco products.
Maria Josefina Valdez, 563791 (ET)
November 9, 2010, $137.00 Approximate Vale
Action:
Determined that staff properly seized the tobacco products.
Sharaf Nagi Ali, 565985 (ET)
January 13, 2011, $154.00 Approximate Value
Action:
Determined that staff properly seized the tobacco products.
CORPORATE FRANCHISE AND PERSONAL INCOME TAX MATTERS, CONSENT
With respect to the Corporate Franchise and Personal Income Tax Matters
Consent Agenda, upon a single motion of Ms. Yee, seconded by Ms. Steel and unanimously
carried, Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board made
the following orders:
Farhad Alamolhoda, 485964
2006, $6,383.75 Claim for Refund
Action:
Sustain the action of the Franchise Tax Board.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
139
Tuesday, June 21, 2011
Virginia H. Atherton, 538072
2003, $418.00 Claim for Refund
2004, $2,151.00 Claim for Refund
2005, $484.00 Claim for Refund
2006, $3,158.00 Claim for Refund
2007, $1,040.00 Claim for Refund
Action:
Sustain the action of the Franchise Tax Board.
Cristilita S. Bautista, 535766
2007, $803.00 Claim for Refund
Action:
Sustain the action of the Franchise Tax Board.
Briancroner.com, LLC, 536357
2006-2008, $800.00 in tax per tax year
UOFNOBS.com, LLC, 536359
2007-2008, $800.00 in tax per tax year
Greekbod.com, LLC, 536362
2007-2008, $800.00 in tax per tax year
Adglu.com, LLC, 536363
2007-2008, $800.00 in tax per tax year
Vapper.com, LLC, 536364
2007-2008, $800.00 in tax per tax year
Action:
Sustain the action of the Franchise Tax Board with modification to delete all
penalties, including interest on such penalties, as to each appellant for each respective tax year, as
conceded by the Franchise Tax Board.
Sidney Corrie, Jr., 535336
2003, $12,711.00 Tax
2004, $2,818.00 Tax
Action:
Sustain the action of the Franchise Tax Board.
The Cozy Stove & Spa Company, Inc., 546395
2008, $482.35 Claim for Refund
Action:
Sustain the action of the Franchise Tax Board.
Elias Gallegos III, 547977
2007, $749.00 Tax, $179.75 Late Filing Penalty
Action:
Sustain the action of the Franchise Tax Board and impose a $750.00 frivolous
appeal penalty.
Carolyn Gereau, 479768
2005, $133.96 Proposed Interest Assessment
Action:
Sustain the action of the Franchise Tax Board.
Kizna Goodie, 510022
2008, $284.00 Claim for Refund
Action:
Sustain the action of the Franchise Tax Board.
140
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Tuesday, June 21, 2011
Janice Healey, 514427
2005, $930.00 Tax
Action:
Sustain the action of the Franchise Tax Board.
Robert Jeavons, 467572
1994, $12,799.00 Claim for Refund
Action:
Sustain the action of the Franchise Tax Board.
Prabhakar Kotla, 510830
2006, $666.50 Late Filing Penalty
Action:
Sustain the action of the Franchise Tax Board.
Shantai S. Mackey, 514014
2008, $648.00 Claim for Refund
Action:
Dismissed for lack of jurisdiction.
Daniel J. Moncino II, 466930
2006, $3,009.43 Claim for Refund for Late Payment Penalty
Action:
Sustain the action of the Franchise Tax Board with modification that the $155.00
collection cost recovery fee is removed.
Marta E. Percolla, 467005
2007, $525.00 Claim for Refund
Action:
Sustain the action of the Franchise Tax Board.
Catherine A. Perez, 514767
2000, $13,522.93 Claim for Refund
2001, $16,871.00 Claim for Refund
2003, $16,738.35 Claim for Refund
Action:
Sustain the action of the Franchise Tax Board.
John Reese, 510808
2004, $1,489.00 Tax
Action:
Sustain the action of the Franchise Tax Board.
Todd K. Sand and Jennifer N. Memo, 536773
2006, $456.00 Proposed Assessment
Action:
Sustain the action with concession by the Franchise Tax Board to modify the
assessment to $420.00 in additional tax.
John Albert Schram III, 491626
2005, $498.00 Proposed Assessment
Action:
Sustain the action of the Franchise Tax Board.
Christopher A. Suarez, 536739
2006, $2,390.00 Proposed Assessment
Action:
Sustain the action of the Franchise Tax Board.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
141
Tuesday, June 21, 2011
Robert Vernick and Myriam Vernick, 539077
2007, $767.00 Tax
Action:
Modify the action as conceded by the Franchise Tax Board so that assessment is
reduced to $744.00 plus applicable interest.
Matthew Wharton and Stephanie Wharton, 513919
2005, $167.40 Accuracy-related Penalty
Action:
Sustain the action of the Franchise Tax Board.
Ali Reza Zakeri, 535357
2007, $1,576.00 Tax
Action:
Sustain the action of the Franchise Tax Board.
Jeanette L. Dixon, 476764
2006, $409.00 Tax, $102.25 Late Filing Penalty, $102.25 Notice and Demand Penalty, $122.00
Filing Enforcement Fee, $750.00 Frivolous Appeal Penalty
Action:
Deny the petition for rehearing.
Lee Gale, 258580
1993, $26,741.00 Tax, $5,348.20 Accuracy-Related Penalty
1994, $5,178.00 Tax, $1,035.60 Accuracy-Related Penalty
Action:
Deny the petition for rehearing.
Clovus M. Sykes, 529645
2007, $3,170.00 Tax, $792.50 Demand Penalty, $792.50 Late Filing Penalty, $119.00 Filing
Enforcement Fee, $2,500.00 Frivolous Appeal Penalty
Action:
Deny the petition for rehearing.
SALES AND USE TAX MATTERS, REDETERMINATIONS AND RELIEF OF
PENALTIES, CONSENT
With respect to the Sales and Use Tax Matters, Redeterminations and Relief of
Penalties, Consent Agenda, upon a single motion of Ms. Yee, seconded by Ms. Steel and
unanimously carried, Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes,
the Board made the following orders:
County Sanitation Dist – Orange Co., 547413 (EA)
7-1-06 to 6-30-09, $117,679.43
Action:
Approve the redetermination as recommended by staff.
Ira Stanley, 447520 (EA)
4-1-98 to 3-31-01, $477,676.99
Action:
Approve the redetermination as recommended by staff.
S. Hessam Salarfar, 470298 (EH)
1-1-05 to 12-31-07, $100,457.12
Action:
Approve the redetermination as recommended by staff.
142
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Tuesday, June 21, 2011
Home Shopping LP, 567242 (OH)
4-1-10 to 6-30-10, $136,428.50
Action:
Approve the relief of penalty as recommended by staff.
SALES AND USE TAX MATTERS, CREDITS, CANCELLATIONS AND REFUNDS,
CONSENT
With respect to the Sales and Use Tax Matters, Credits, Cancellations and
Refunds, Consent Agenda, upon a single motion of Ms. Yee, seconded by Ms. Steel and
unanimously carried, Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes,
the Board made the following orders:
Barry Lee Collier, 482400 (AR)
1-1-97 to 9-30-03, $109,628.21
Action:
Approve the credit and cancellation as recommended by staff.
County of L.A. Auditor, 553596 (AA)
1-1-10 to 6-30-10, $107,405.00
Action:
Approve the refund as recommended by staff.
Williams-Sonoma, Inc., 559965 (BH)
1-1-03 to 6-30-07, $118,902.11
Action:
Approve the refund as recommended by staff.
Charles Schwab & Co., Inc., 557597 (BH)
1-1-06 to 12-31-08, $145,632.78
Action:
Approve the refund as recommended by staff.
County of Riverside Aud-Controllers, Lois Henry, 487900 (EH)
1-1-03 to 3-31-06, $231,153.64
Action:
Approve the refund as recommended by staff.
Food’N Fuel, Inc., 556245 (EH)
7-1-10 to 9-30-10, $174,098.62
Action:
Approve the refund as recommended by staff.
Inland Empire Architectural Specialties, Inc., 563898 (EH)
7-1-07 to 6-30-10, $109,077.54
Action:
Approve the refund as recommended by staff.
American Material Mgt. Alliance, Inc., 552905 (EH)
1-1-08 to 3-31-10, $1,302,676.80
Action:
Approve the refund as recommended by staff.
Fry’s Electronics, Inc., 563520 (GH)
7-1-06 to 6-30-09, $686,937.41
Action:
Approve the refund as recommended by staff.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
143
Tuesday, June 21, 2011
Mercedes-Benz USA, LLC, 567416 (KH)
11-29-10 to 3-11-11, $286,898.00
Action:
Approve the refund as recommended by staff.
Agilent Technologies, Inc., 562280 (GH)
1-1-01 to 6-30-05, $139,720.35
Action:
Approve refund as recommended by staff.
Wells Fargo Dealer Services, Inc., 554767 (EA)
7-1-10 to 12-31-10, $2,576,952.00
Action:
Approve the refund as recommended by staff.
Arrowhead Central Credit Union, 538738 (EH)
10-1-09 to 6-30-10, $780,595.00
Action:
Approve the refund as recommended by staff.
Schoolsfirst Federal Credit Union, 497594 (EA)
4-1-06 to 12-31-09, $1,156,231.76
Action:
Approve the refund as recommended by staff.
Americredit Financial Service, Inc., 553634 (OH)
4-1-10 to 9-30-10, $1,093,210.00
Action:
Approve the refund as recommended by staff.
Lobel Financial Corporation, 554396 (EA)
7-1-10 to 12-31-10, $198,778.00
Action:
Approve the refund as recommended by staff.
Pacific Service Credit Union, 553644 (CH)
4-1-10 to 9-30-10, $151,106.00
Action:
Approve the refund as recommended by staff.
Olson Precast Company, 561785 (EH)
1-1-07 to 12-31-09, $125,169.02
Action:
Approve the refund as recommended by staff.
Akka Corporation, 568761 (EA)
7-1-10 to 12-31-10, $122,258.00
Action:
Approve the refund as recommended by staff.
A-L Financial Corp., 553645 (EA)
7-1-10 to 12-31-10, $177,929.00
Action:
Approve the refund as recommended by staff.
Progeny Marketing Innovations, Inc. 518745 (OH)
4-01-06 to 9-30-07, $284,748.32
Action:
Approve the refund as recommended by staff.
144
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Tuesday, June 21, 2011
Affinion Benefits Group, LLC, 495398 (OH)
10-1-07 to 9-30-10, $448,840.39
Action:
Approve the refund as recommended by staff.
Dwayne Nash Industries, Inc., 554679 (KH)
1-1-09 to 12-31-09, $160,191.00
Action:
Approve the refund as recommended by staff.
SPECIAL TAXES MATTERS, REDETERMINATIONS AND RELIEF OF PENALTIES,
CONSENT
With respect to the Special Taxes Matters, Redeterminations and Relief of
Penalties, Consent Agenda, upon a single motion of Ms. Yee, seconded by Ms. Steel and
unanimously carried, Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes,
Ms. Mandel not participating in accordance with Government Code section 7.9 in Philadelphia
Indemnity Insurance Co., 562682; and, Fire Insurance Exchange, 562689; the Board made the
following orders:
U S Smokeless Tobacco Brands, Inc., 151452, 163664, 170086, 197348 (ET)
7-1-98 to 6-30-01, $297,654.45
Action:
Approve the redetermination as recommended by staff.
Philadelphia Indemnity Insurance Co., 562682 (ET)
4-1-10 to 6-30-10, $153,549.80
Action:
Approve the relief of penalty as recommended by staff. Ms. Mandel not
participating in accordance with Government Code section 7.9.
Fire Insurance Exchange, 562689 (ET)
7-1-10 to 9-30-10, $538,290.80
Action:
Approve the relief of penalty as recommended by staff. Ms. Mandel not
participating in accordance with Government Code section 7.9.
SPECIAL TAXES MATTERS, CREDITS, CANCELLATIONS AND REFUNDS,
CONSENT
With respect to the Special Taxes Matters, Credits, Cancellations and Refunds,
Consent Agenda, upon a single motion of Ms. Steel, seconded by Ms. Yee and unanimously
carried, Mr. Horton, Ms. Steel, Ms. Yee and Mr. Runner voting yes, Ms. Mandel not participating
in accordance with Government Code section 7.9, the Board made the following orders:
Northwestern Mutual Life Ins. Co., 551094 (ET)
1-1-08 to 12-31-08, $507,110.94
Action:
Approve the refund as recommended by staff. Ms. Mandel not participating in
accordance with Government Code section 7.9.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
145
Tuesday, June 21, 2011
Northwestern Mutual Life Ins. Co., 552166 (ET)
1-1-09 to 12-31-09, $1,172,384.00
Action:
Approve the refund as recommended by staff. Ms. Mandel not participating in
accordance with Government Code section 7.9.
Willis Insurance Services of California, Inc., 564987 (ET)
1-1-09 to 12-31-09, $128,521.98
Action:
Approve the refund as recommended by staff. Ms. Mandel not participating in
accordance with Government Code section 7.9.
FINAL ACTION ON CORPORATE FRANCHISE AND PERSONAL INCOME TAXES
HEARINGS HELD JUNE 21, 2011
Gerald J. Marcil and Carol L. Marcil, 458832
Final Action: Ms. Yee moved to sustain the action of the Franchise Tax Board. Ms. Mandel
made a substitute motion to defer consideration of the matter to the following day. The substitute
motion unanimously carried, Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting
yes.
Howard Brief, 530872
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and duly carried, Mr. Horton,
Ms. Yee and Ms. Mandel voting yes, Ms. Steel and Mr. Runner voting no, the Board sustained
the action of the Franchise Tax Board.
Jaroslav Marik and Jirina Marik, 547265
Final Action: Ms. Steel moved to attribute the million dollar loss to the 2009 tax year. The
motion was seconded by Ms. Yee with an amendment that the motion be subject to verification of
the tax basis, but no vote was taken.
Upon motion of Ms. Yee, seconded by Ms. Steel and duly carried, Mr. Horton,
Ms. Steel, Ms. Yee and Ms. Mandel voting yes, Mr. Runner voting no, the Board sustained the
action of the Franchise Tax Board.
The Board directed the Franchise Tax Board to work with the appellants to
determine when it would be appropriate to claim the loss deduction given the facts presented
during the hearing.
Gerald A. Hutchinson, 552085
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board sustained the
action of the Franchise Tax Board.
Myers Power Products, Inc., 546913
Final Action: Mr. Runner moved to reverse the action of the Franchise Tax Board. The motion
was seconded by Ms. Steel but failed to carry, Ms. Steel and Mr. Runner voting yes, Mr. Horton,
Ms. Yee and Ms. Mandel voting no.
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2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Tuesday, June 21, 2011
Upon motion of Ms. Yee, seconded by Ms. Mandel and duly carried, Mr. Horton,
Ms. Yee and Ms. Mandel voting yes, Ms. Steel and Mr. Runner voting no, the Board sustained
the action of the Franchise Tax Board.
Sean S. Niknafs and Sima Mirhashemi, 529770
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and duly carried, Mr. Horton,
Ms. Yee, Mr. Runner and Ms. Mandel voting yes, Ms. Steel voting no, the Board sustained the
action of the Franchise Tax Board.
State-of-the-Art Technologies, Inc., 521969
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board sustained the
action of the Franchise Tax Board.
CORPORATE FRANCHISE AND PERSONAL INCOME TAXES HEARING
Bill Kells, 546539
2005, $548.00 Tax
For Appellant:
For Franchise Tax Board:
No Appearance
Jaclyn Appleby, Tax Counsel
Diane Ewing, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issues:
Whether appellant has shown error in proposed assessment from the Franchise
Tax Board (FTB) based on adjustments to appellant’s itemized deductions and Schedule CA
adjustments for 2005.
Whether appellant has shown error in the FTB’s assessment of interest on the
proposed assessment of additional tax due.
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board sustained the
action of the Franchise Tax Board.
FINAL ACTION ON CORPORATE FRANCHISE AND PERSONAL INCOME TAXES
HEARING HELD JUNE 21, 2011
Charles E. Kohlhase, Jr., 547973
Final Action: Mr. Runner moved to reverse the action of the Franchise Tax Board. The motion
was seconded by Ms. Steel but failed to carry, Ms. Steel and Mr. Runner voting yes, Mr. Horton,
Ms. Yee and Ms. Mandel voting no.
Upon motion of Ms. Yee, seconded by Ms. Mandel and duly carried, Mr. Horton,
Ms. Yee and Ms. Mandel voting yes, Ms. Steel and Mr. Runner voting no, the Board sustained
the action of the Franchise Tax Board.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
147
Tuesday, June 21, 2011
ANNOUNCEMENT OF CLOSED SESSION
The Board recessed at 5:54 p.m. and reconvened immediately in closed session
with Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel present.
CLOSED SESSION
The Board met to discuss settlements (Rev. & Tax. Code §§ 6901, 7093.5,
30459.1 and 50156.11) and personnel matters (Gov. Code § 11126(a)).
The Board recessed at 5:58 p.m. and reconvened immediately in open session
with Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel present.
The Board recessed at 6:00 p.m.
The foregoing minutes are adopted by the Board on September 21, 2011.
Note: The following matters were removed from the calendar prior to the meeting: Marilyn S.
Kwolek, 518196; Gayle Barrett and Douglas Barrett, 538085; Franklin Casco, Jr., 512009; and,
Dean Mike and Theresa Mike, 382833.
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2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Wednesday, June 22, 2011
The Board met at its offices at 5901 Green Valley Circle, Culver City at
9:30 a.m., with Mr. Horton, Chairman, Ms. Steel, Vice Chairwoman, Ms. Yee and Mr. Runner
present, Ms. Mandel present on behalf of Mr. Chiang in accordance with Government Code
section 7.9.
CORPORATE FRANCHISE AND PERSONAL INCOME TAXES HEARINGS
Klaus W. Wang, 441035
2003, $132,753.00 Assessment
For Appellant:
Klaus Wang, Taxpayer
John O. Kent, Attorney
For Franchise Tax Board:
Maria Brosterhous, Tax Counsel
Ann Hodges, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether appellant has shown that the Franchise Tax Board (FTB or respondent)
erred by not allowing damages awarded in a settlement agreement to be excluded from his
taxable income.
Appellant’s Exhibit:
Miscellaneous Documents (Exhibit 6.13)
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel and Ms. Yee, Ms. Mandel voting yes, Mr. Runner absent, the Board
submitted the appeal for decision.
Exhibits to these minutes are incorporated by reference.
The Board recessed at 10:49 a.m. and reconvened at 10:58 a.m. with Mr. Horton,
Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel present.
Richard Palmquist, 526815
2005, $7,467.00 Assessment
For Appellant:
Richard Palmquist, Taxpayer
Amber Bridges, Representative
For Franchise Tax Board:
Jaclyn Appleby, Tax Counsel
Diane Ewing, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether appellant has established error in respondent’s proposed assessment,
which is based on a federal determination.
Appellant’s Exhibit:
2005 Individual Returns (Exhibit 6.14)
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
149
Wednesday, June 22, 2011
Joe L. Santos, 445970
2003, $1,914.00 Assessment
For Appellant:
For Franchise Tax Board:
Jason Peart, Representative
Jane Perez, Tax Counsel
Karen Smith, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether respondent abused its discretion in refusing to abate interest.
Action:
Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
Tawfik H. Rizkallah, 536082
2007, $2,027.00 Assessment
For Appellant:
Tawfik Rizkallah, Taxpayer
Amber Bridges, Representative
For Franchise Tax Board:
Jaclyn Appleby, Tax Counsel
Diane Ewing, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether appellant has established that he qualifies for head of household filing
status for 2007.
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
Maricel B. Hernandez, 521850
2008, $210.00 Claim for Refund
For Appellant:
For Franchise Tax Board:
Maya Harel, Representative
Jaclyn Appleby, Tax Counsel
Diane Ewing, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether appellant has shown she is entitled to the Child and Dependent Care
Expenses credit for 2008.
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
Dennis LeVine and Dawn LeVine, 529697
2007, $4,024.96 Claim for Refund
For Appellant:
For Franchise Tax Board:
Dennis P. LeVine, Taxpayer
Diane Ewing, Tax Counsel
Jane Perez, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issues:
Whether appellants have shown reasonable cause for the abatement of the late
filing penalty.
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2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Wednesday, June 22, 2011
Whether appellants have demonstrated that reasonable cause exists for the
abatement of the failure to file upon demand penalty.
Whether appellants have shown that the underpayment of estimated tax penalty
should be waived.
Action:
Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board submitted the
appeal for decision.
The Board recessed at 1:19 p.m. and reconvened at 1:29 p.m. with Mr. Horton,
Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel present.
FINAL ACTION ON CORPORATE FRANCHISE AND PERSONAL INCOME TAXES
HEARING HELD JUNE 21, 2011
Gerald J. Marcil and Carol L. Marcil, 458832 (Continued)
Final Action: Upon motion of Ms. Yee, seconded by Mr. Horton and duly carried, Mr. Horton,
Ms. Yee and Ms. Mandel voting yes, Ms. Steel and Mr. Runner voting no, the Board sustained
the action of the Franchise Tax Board.
FINAL ACTION ON CORPORATE FRANCHISE AND PERSONAL INCOME TAXES
HEARINGS HELD JUNE 22, 2011
Klaus W. Wang, 441035
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and duly carried, Mr. Horton,
Ms. Yee, Mr. Runner and Ms. Mandel voting yes, Ms. Steel voting no, the Board sustained the
action of the Franchise Tax Board.
Richard Palmquist, 526815
Final Action: Upon motion of Mr. Runner, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the appeal be submitted for decision, granting the appellant 30 days to submit supporting
documents, the Franchise Tax Board 30 days to respond, and the Appeals Division 30 days
thereafter to review the parties’ submissions and provide its recommendation to the Board.
Joe L. Santos, 445970
Final Action: Upon motion of Ms. Mandel, seconded by Ms. Yee and duly carried, Mr. Horton,
Ms. Yee and Ms. Mandel voting yes, Ms. Steel and Mr. Runner voting no, the Board sustained
the action of the Franchise Tax Board.
Mr. Horton directed staff to ask the Franchise Tax Board to do an analysis to
make a determination, on an overall basis, the impact of workload on the timeliness of resolving
their cases and whether there is a way to accelerate the process.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
151
Wednesday, June 22, 2011
Tawfik H. Rizkallah, 536082
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and duly carried, Mr. Horton,
Ms. Yee, Mr. Runner and Ms. Mandel voting yes, Ms. Steel voting no, the Board sustained the
action of the Franchise Tax Board.
Maricel B. Hernandez, 521850
Final Action: Upon motion of Ms. Steel, seconded by Mr. Runner and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
$600 in childcare expenses be allowed and otherwise sustained the action of the Franchise Tax
Board.
Dennis LeVine and Dawn LeVine, 529697
Final Action: Ms. Mandel moved that the appeal be submitted for decision, granting the
appellant 30 days to submit supporting documents, the Franchise Tax Board 30 days to respond,
and the Appeals Division 30 days thereafter to review the parties’ submissions and provide its
recommendation to the Board. Ms. Mandel withdrew her motion.
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board reversed the
action of the Franchise Tax Board.
The Board recessed at 1:50 p.m.
The foregoing minutes are adopted by the Board on September 21, 2011.
Note: The following matters were removed from the calendar prior to the meeting: Matt T.
Knudstrup and Deborah E. Knudstrup, 342390; Shirley J. Carter, 518429; Ruben Juarez,
514090, 514195; Vista Pacific Townhomes Association, Inc., 522642; and, Marie R. Sanders,
522825.
152
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Thursday, June 23, 2011
The Board met at its offices at 5901 Green Valley Circle, Culver City at
9:30 a.m., with Mr. Horton, Chairman, Ms. Steel, Vice Chairwoman, Ms. Yee and Mr. Runner
present, Ms. Mandel present on behalf of Mr. Chiang in accordance with Government Code
section 7.9.
PUBLIC COMMENT
Speaker:
William M. Connell, Military Veteran and owner of All American Surf Dogs
(Exhibit 6.15)
Exhibits to these minutes are incorporated by reference.
SALES AND USE TAX APPEALS HEARINGS
Boris Khodzhoyan, 405900 (AP)
1-1-03 to 12-31-05, $175,472.37 Tax, $17,584.31 Negligence Penalty
For Petitioner:
Akop Baltayan, Attorney
Rubina Arutyunyan, Representative
For Sales and Use Tax Department:
Scott Lambert, Hearing Representative
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issues:
Whether adjustments are warranted to the unreported taxable sales established on
a markup basis.
Whether any of petitioner’s sales were exempt sales in foreign commerce.
Whether petitioner was negligent.
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
James Alan LaBarge, 422110 (UT)
7-13-05, $20,033.78 Tax, $0.00 Failure to File Penalty
For Petitioner:
James Alan LaBarge, Taxpayer
Cris J. Wenthur, Attorney
For Sales and Use Tax Department:
Scott Claremon, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether use tax is due on the purchase price of vessel.
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
Frank Allen Randazzo, 421497 (UT)
2-19-05, $10,883.00 Tax
For Petitioner:
Frank Allen Randazzo, Taxpayer
Howard S. Borenstein, Attorney
For Sales and Use Tax Department:
Scott Claremon, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether the purchase and use of the motor home is subject to use tax.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
153
Thursday, June 23, 2011
Action:
Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
The Board recessed at 11:42 a.m. and reconvened at 1:37 p.m. with Mr. Horton,
Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel present.
Jeff's Exotic Fish, Inc., 484114 (AS)
1-1-05 to 2-1-07, $85,534.56 Tax, $8,553.43 Negligence Penalty
Jeff's Exotic Fish, Costa Mesa, LLC, 484115 (EA)
8-1-05 to 12-31-07, $50,699.31 Tax, $5,069.92 Negligence Penalty
Jeff's Exotic Fish, Costa Mesa, Inc., 484116 (EA)
1-1-05 to 12-31-37, $77,401.15 Tax, $7,740.12 Negligence Penalty
For Petitioners:
Jeff Majdali, Taxpayer
For Sales and Use Tax Department:
Cary Huxsoll, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issues:
Whether adjustments are warranted to the disallowed claimed exempt sales in
interstate commerce or the claimed nontaxable sales for resale.
Whether petitioners were negligent.
Action:
Upon motion of Ms. Yee, seconded by Mr. Runner and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
.City of Los Angeles-Controller, 489155, 509958 (AA)
10-1-02 to 3-31-06, $578,056.57 Tax, $504,101 Claim for Refund
For Petitioner/Claimant:
Daniel Whitley, Representative
Ricky Deguchi, Representative
Bruce Truitt, Witness
For Sales and Use Tax Department:
Scott Lambert, Hearing Representative
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether adjustments are warranted to the understatement.
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the claim and petition be submitted for decision.
Karen Renee Cullinane, 470168 (EH)
7-1-06 to 10-31-07, $39,403.00 Tax, $3,940.30 Late Payment Penalty
For Taxpayer:
Karen Cullinane, Taxpayer
For Sales and Use Tax Department:
Andrew Kwee, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issues:
Whether taxpayer is personally liable as a responsible person for the unpaid
liabilities of Cullinane Group, Inc. (CGI) pursuant to Revenue and Taxation Code section 6829
for the period July 1, 2006, through October 31, 2007.
Whether taxpayer has established reasonable cause sufficient for relieving the
late-payment penalties originally assessed against CGI.
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2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Thursday, June 23, 2011
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
Edmundo Gonzalez, 470281 (FH)
1-1-06 to 3-31-08, $104,444.43 Tax, $7,253.00 Finality Penalties
For Petitioner:
Edmundo Gonzalez, Taxpayer
For Sales and Use Tax Department:
Andrew Kwee, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issues:
Whether petitioner is personally liable as a responsible person for the unpaid
liabilities of Intellitruss of California, LLC, pursuant to Revenue and Taxation Code section 6829.
Whether the finality penalties should be relieved.
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
Housewares International, Inc., 464830
Diane Olson, Chief, Board Proceedings Division, stated for the record that the
taxpayer’s representative requested that the above-named petition be postponed and that the
postponement request has been granted. Therefore, the matter is rescheduled to the October
meeting in Culver City.
FINAL ACTION ON SALES AND USE TAX APPEALS HEARINGS HELD
JUNE 23, 2011
Boris Khodzhoyan, 405900 (AP)
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be redetermined as recommended by the Appeals Division.
James Alan LaBarge, 422110 (UT)
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and duly carried, Mr. Horton,
Ms. Yee and Ms. Mandel voting yes, Ms. Steel and Mr. Runner voting no, the Board ordered that
the petition be redetermined as recommended by the Appeals Division.
Frank Allen Randazzo, 421497 (UT)
Final Action: Upon motion of Ms. Mandel, seconded by Ms. Yee and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be redetermined as recommended by the Appeals Division.
Jeff's Exotic Fish, Inc., 484114 (AS)
Jeff's Exotic Fish, Costa Mesa, LLC, 484115 (EA)
Jeff's Exotic Fish, Costa Mesa, Inc., 484116 (EA)
Final Action: Upon motion of Mr. Runner, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the redetermination be recalculated for a reduction of the measure by 43 percent for stores 2 and 3
and that the petition otherwise be redetermined as recommended by the Appeals Division.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
155
Thursday, June 23, 2011
City of Los Angeles-Controller, 489155, 509958 (AA)
Final Action: Upon motion of Mr. Horton, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision, granting the petitioner 30 days to file supporting
documents, the Department 30 days to respond, and the Appeals Division 30 days thereafter to
review the parties’ submissions and provide its recommendation to the Board. Further, the Board
gave discretion to the Department to extend its time contingent on the Department’s decision to
expand the audit period.
Karen Renee Cullinane, 470168 (EH)
Final Action: Mr. Runner moved that the petition be granted. The motion was seconded by
Ms. Steel but failed to carry, Ms. Steel and Mr. Runner voting yes, Mr. Horton, Ms. Yee and
Ms. Mandel voting no.
Ms. Yee moved that the petition be redetermined as recommended by the
Appeals Division. The motion was seconded by Ms. Mandel. Ms. Steel made a substitute motion
to find that the petitioner is not liable for unpaid liabilities incurred by Cullinane Group, Inc., for
the period July 1, 2006, through February 14, 2007, and that the petition otherwise be
redetermined as recommended by the Appeals Division. The substitute motion was seconded by
Ms. Yee and unanimously carried, Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel
voting yes.
Edmundo Gonzalez, 470281 (FH)
Final Action: Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be redetermined as recommended by the Appeals Division. Further, the Board
ordered staff to attempt to collect, if possible, against any assets that are available from
Intellitruss of California, LLC.
The Board recessed at 5:06 p.m.
The foregoing minutes are adopted by the Board on September 21, 2011.
Note: The following matters were removed from the calendar prior to the meeting: RC Marketing,
Inc., 461615, 377842; Shantilli, LLC, 434838; and, Enyinnaya Christian Ojogho, 396268,
414889.
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2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Friday, June 24, 2011
The Board met at its offices at 5901 Green Valley Circle, Culver City at
9:35 a.m., with Mr. Horton, Chairman, Ms. Steel, Vice Chairwoman, Ms. Yee and Mr. Runner
present, Ms. Mandel present on behalf of Mr. Chiang in accordance with Government Code
section 7.9.
SALES AND USE TAX APPEALS HEARING
Lona Marie Lee, 390217 (AA)
1-1-03 to 12-31-05, $39,399.28 Tax
For Petitioner:
Lona M. Lee, Taxpayer
Floyd McCutcheon, Representative
For Sales and Use Tax Department:
Scott Lambert, Hearing Representative
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether adjustments are warranted to the audited amount of unreported taxable
sales.
Action:
Upon motion of Ms. Yee, seconded by Mr. Runner and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
SPECIAL TAXES APPEALS HEARINGS
George Alfonos Youssef, 354991 (ET)
1-1-00 to 4-30-02, $418,260.53 Tax, $41,826.05 Failure to File Penalty
For Petitioner:
Mark D. Pastor, Attorney
For Property and Special Taxes Department:
Pamela Mash, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issues:
Whether petitioner is liable for tax on purchases and distributions of untaxed
tobacco products.
Whether relief of the failure-to-file penalty is warranted.
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
Hassan Antonios Mahfood, 351999 (ET)
4-1-99 to 2-28-03, $39,492.46 Tax, $0.00 Failure to File Penalty
For Petitioner:
Hassan Antonios Mahfood, Taxpayer
Michel Shashaty, Attorney
For Property and Special Taxes Department:
Pamela Mash, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether petitioner distributed untaxed tobacco products from an unlicensed outof-state vendor and is therefore liable for excise tax on those distributions.
Action:
Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
157
Friday, June 24, 2011
PETITIONS FOR RELEASE OF SEIZED PROPERTY
Zartosht, Inc., 554941 (ET)
August 24, 2010 Seizure Date, $788.42 Approximate Value
For Petitioner:
Mehdi Behmard, Representative
For Property and Special Taxes Department:
Pamela Mash, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether the tobacco products should be forfeited because they are described by
Business and Professions Code section 22974.3, subdivision (b).
Action:
Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
The Board recessed at 11:57 a.m. and reconvened at 12:07 p.m. with Mr. Horton,
Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel present.
Egyptian Company, LLC, 562693 (ET)
November 3, 2010 Seizure Date,:$212.50 Approximate Value
For Petitioner:
Nabil Khalil, Taxpayer
For Property and Special Taxes Department:
Pamela Mash, Tax Counsel
Contribution Disclosures pursuant to Government Code section 15626: None were disclosed.
Issue:
Whether the tobacco products should be forfeited because they are described by
Business and Professions Code section 22974.3, subdivision (b).
Action:
Upon motion of Ms. Yee, seconded by Ms. Steel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be submitted for decision.
FINAL ACTION ON SALES AND USE TAX APPEALS HEARING HELD
JUNE 24, 2011
Lona Marie Lee, 390217 (AA)
Final Action: The Board deferred consideration of the matter to later in the day.
FINAL ACTION ON SPECIAL TAXES APPEALS HEARINGS HELD JUNE 24, 2011
George Alfonos Youssef, 354991 (ET)
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be redetermined as recommended by the Appeals Division.
Hassan Antonios Mahfood, 351999 (ET)
Final Action: Mr. Runner moved to adjust the audit to reflect the 24 shipments that were
recorded as shipped to the taxpayer’s store but not received by the taxpayer. The motion was
seconded by Ms. Steel but failed to carry, Ms. Steel and Mr. Runner voting yes, Mr. Horton,
Ms. Yee and Ms. Mandel voting no.
158
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
Friday, June 24, 2011
Upon motion of Ms. Yee, seconded by Ms. Mandel and duly carried, Mr. Horton,
Ms. Yee and Ms. Mandel voting yes, Ms. Steel and Mr. Runner voting no, the Board ordered that
the petition be redetermined as recommended by the Appeals Division.
FINAL ACTION ON PETITIONS FOR RELEASE OF SEIZED PROPERTY HELD
JUNE 24, 2011
Zartosht, Inc., 554941 (ET)
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board determined
that staff properly seized the tobacco products.
Egyptian Company, LLC, 562693 (ET)
Final Action: Upon motion of Ms. Yee, seconded by Ms. Mandel and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board determined
that staff properly seized the tobacco products.
OTHER ADMINISTRATIVE MATTERS
Executive Director’s Report
David Gau, Deputy Director, Property and Special Taxes Department, provided a
report regarding time extensions to Alpine, Colusa, Lassen, Los Angeles, Madera, San Joaquin,
Santa Cruz, Sonoma, Sutter, Tehama and Yolo Counties to complete and submit the 2011/12
Local Assessment Roll, pursuant to Revenue and Taxation Code section 155 (Exhibit 6.16).
David Gau, Deputy Director, Property and Special Taxes Department, provided a
progress report regarding the CROS project to replace BOE’s two current tax legacy technology
systems (Exhibit 6.17).
Exhibits to these minutes are incorporated by reference.
FINAL ACTION ON SALES AND USE TAX APPEALS HEARING HELD
JUNE 24, 2011
Lona Marie Lee, 390217 (AA) (Continued)
Final Action: Upon motion of Ms. Yee, seconded by Mr. Runner and unanimously carried,
Mr. Horton, Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel voting yes, the Board ordered that
the petition be redetermined as recommended by the Appeals Division.
The Board recessed at 12:35 p.m. and reconvened at 1:06 p.m. with Mr. Horton,
Ms. Steel, Ms. Yee, Mr. Runner and Ms. Mandel present.
2011 MINUTES OF THE STATE BOARD OF EQUALIZATION
159
Friday, June 24, 2011
SPECIAL PRESENTATION
Presentation of Board Resolution to Honorable Matthew K. Fong (Deceased)
On behalf of the Board, Mr. Horton presented a Board Resolution in memory of
Honorable Matthew K. Fong, former Board of Equalization Member, Fourth District, and former
California State Treasurer. Members made complementary remarks regarding their experiences
with Mr. Fong and his achievements, as well as his exceptional work with the Board of
Equalization, and the State of California. Diane Olson, Chief, Board Proceedings Division, read
the resolution into the record (Exhibit 6.18).
The Board adjourned at 1:09 p.m. in memory of Honorable Matthew K. Fong,
who passed away Wednesday, June 1, 2011, at his home in Pasadena, California, at the age of
57 years old.
The foregoing minutes are adopted by the Board on September 21, 2011.
Note: The following matters were removed from the calendar prior to the meeting: Vincent
Millhouse, 434901, 450539; Vincent Millhouse and Lisa D. Smith, 434902; and, Ahsan Atiq
Rehman, 377576, 528881.
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