IN RE: EVERGREENE GARDENS (2022)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Tax Law § 2016) to review a determination of respondent Tax Appeals Tribunal sustaining a sales and use tax assessment imposed under Tax Law articles 28 and 29.

As required by local law, petitioner, a developer, engaged the services of a company for the provision of “guard and protective services” at a building construction site.  In connection therewith, the company charged and collected $14,978.78 in sales tax.  Petitioner applied to the Department of Taxation and Finance (hereinafter the Department) for a credit or refund of these taxes paid, arguing that the provided services were excluded from sales tax.  The Department denied the application.  Petitioner then filed a petition with the Division of Tax Appeals.  Following the Department's answer, the parties stipulated that the services provided by the company constituted “[p]rotective and detective services” within the meaning of Tax Law § 1105(c)(8) and that the only issue for resolution was whether such services were excluded from being taxed because they were provided in conjunction with a capital improvement.  Relying on (Matter of Robert Bruce McLane Assoc. Inc. v. Urbach, 232 A.D.2d 826, 649 N.Y.S.2d 487 [3d Dept. 1996]), an Administrative Law Judge upheld the Department's denial of petitioner's application.  Petitioner filed an exception to the Administrative Law Judge's determination, which respondent Tax Appeals Tribunal affirmed.  Petitioner thereafter commenced this CPLR article 78 proceeding seeking annulment of the Tribunal's determination.  We confirm.

The Tribunal's determination was rational in view of Matter of Robert Bruce McLane Assoc. v. Urbach, wherein we held that the security guard services provided at a construction site were taxable and that the capital improvement exemption set forth in Tax Law § 1105(c)(5) was inapplicable (see Matter of Robert Bruce McLane Assoc. v. Urbach, 232 A.D.2d at 828, 649 N.Y.S.2d 487).  Given that the taxed services here do not materially differ from the services provided in Matter of Robert Bruce McLane Assoc. v. Urbach, the Tribunal's determination will not be disturbed.  Petitioner fails to advance compelling reasons to overturn Matter of Robert Bruce McLane Assoc. v. Urbach, and the cases, advisory opinions and administrative decisions relied upon by petitioner are inapposite.  Petitioner's remaining contentions have been considered and are unavailing.

ADJUDGED that the determination is confirmed, without costs.

Aarons, J.

Garry, P.J., Lynch, Ceresia and Fisher, JJ., concur.