J. HENRY SCHRODER BANK & TRUST COMPANY N/K/A IBJ SCHRODER BANK & TRUST COMPANY TAT (E) (CR) - ORDER

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1 J. HENRY SCHRODER BANK & TRUST COMPANY N/K/A IBJ SCHRODER BANK & TRUST COMPANY - ORDER -07/03/96 J. HENRY SCHRODER BANK & TRUST COMPANY N/K/A IBJ SCHRODER BANK & TRUST COMPANY TAT (E) (CR) - ORDER NEW YORK CITY TAX APPEALS TRIBUNAL APPEALS DIVISION COMMERCIAL RENT TAX - EXCEPTION DISMISSED; TRIBUNAL HAD PREVIOUSLY ISSUED NOTICE OF INTENT TO DISMISS THE EXCEPTION (THE "NOTICE") ON THE BASIS THAT THE ENTITY THAT FILED THE EXCEPTION WAS NOT A PARTY TO THE MATTER AND DID NOT HAVE STANDING TO FILE AN EXCEPTION. THE NOTICE PROVIDED TIME PERIODS FOR THE PARTIES TO RESPOND; SINCE NO SUBMISSIONS WERE RECEIVED THE EXCEPTION WAS DISMISSED. JULY 3, 1996

2 New York City Tax Appeals Tribunal x In the Matter of ORDER J. HENRY SCHRODER BANK & TRUST TAT (E) (CR) COMPANY N/K/A IBJ SCHRODER BANK & TRUST COMPANY Petitioner x Through the filing of an Exception dated September 27, 1995, and signed by Mr. Constantine Angelos, Schroders Incorporated ("Schroders") seeks to appeal from the Determination of an Administrative Law Judge, dated August 31, 1995, to the extent that such Determination sustained Commercial Rent Tax ("CRT") deficiencies asserted against J. Henry Schroder Bank & Trust Company ("JHSBT") [now known as IBJ Schroder Bank & Trust Company ("IBJ")]. Attached to the Exception was a copy of a Power of Attorney, stating that IBJ appointed "Constine (sic) Angelos" "its true and lawful attorney to appear on its behalf..." On October 2, 1995, the Tribunal sent a letter to Mr. Angelos requesting that he "either confirm that Schroders... was listed in error as 'Party taking exception' or explain how Schroders... is a party in the above-referenced matter." The letter also requested that Mr. Angelos confirm that he satisfies one of the requirements contained in 20 RCNY 1-03 of the Rules of Practice and Procedure of the New York City Tax Appeals Tribunal (the "Rules") regarding the representation of taxpayers i.e., that he is a licensed practitioner or the taxpayer's officer or employee. In response, Mr. Angelos submitted a letter, dated October 11, 1995 in which he stated that (a) Schroders was the parent company

3 of JHSBT for the CRT periods at issue (June 1, 1982 through May 31, 1985); (b) 51% of the stock of JHSBT was sold to the Industrial 1 Bank of Japan, Limited on December 31, 1985 ; and (c) on January 1, 1987, the name of JHSBT was changed to IBJ. Mr. Angelos also stated that, pursuant to a Purchase Agreement, Schroders assumed all responsibility for any and all taxes of JHSBT up to December 2 31, Mr. Angelos further informed the Tribunal that (a) he had been an employee of both Schroders and JHSBT/IBJ and an officer of JHSBT/IBJ; (b) he retired from JHSBT/IBJ on March 31, 1987; and (c) he has been an outside consultant for Schroders since his retirement. On November 13, 1995, the New York City Tax Appeals Tribunal issued a Notice of Intent to Dismiss the Exception (the "Notice"). Such Notice referenced 169.d of the New York City Charter which requires that the Commissioners of the Tribunal review "... at the request of any party the determination rendered by an administrative law judge," provided that such request is made "within thirty days of the giving of notice of such determination..." (emphasis added). The Notice was premised on the fact that it appeared to the Tribunal that Schroders was not a party to this matter and did not have standing to file an Exception, irrespective of any claimed private agreement between the entities providing that Schroders was liable for any unpaid taxes of JHSBT during this tax period. The Notice also stated that the Tribunal would permit IBJ (as successor to JHSBT) and Schroders to submit a brief, on or before 1Although the letter stated that the sale took place on December 31, 1995, the Tribunal received a telephone call from Schroders indicating that the year should be Although the letter stated that Schroders assumed liability for JHSBT's taxes up to December 31, 1995, it appears that the year should be 1985 based on the previous correction made by Schroders (see footnote 1). -2-

4 December 4, 1995, setting forth any legal authority upon which they relied to support the contention that Schroders was a proper party to file an Exception, or, in the alternative, the Tribunal would allow IBJ to file a motion, on or before January 4, 1996, in the form of a letter signed by an officer or an authorized representative, indicating that IBJ wished to adopt the Exception filed nunc pro tunc. With regard to representation, the Tribunal noted that Mr. Angelos had represented IBJ at the former Bureau of Hearings of the New York City Department of Finance pursuant to a Power of Attorney which had not been revoked. However, based on the information contained in Mr. Angelos' letter, he did not currently meet any of the requirements contained in the Rules regarding the representation of taxpayers and he could not represent either IBJ or Schroders before the Tribunal. Accordingly, the Notice stated that a new Power of Attorney would be required. The Tribunal specifically noted that "in the interest of fairness, this notice seeks to afford the parties sufficient time to unravel the technical irregularities in this matter, so that a proper exception can be filed and a proper representative authorized to appear for the appropriate party." However, the Notice stated that, if neither a brief nor a motion was filed, the Tribunal would issue an Order dismissing the Exception. To date, no submissions have been received from either IBJ or Schroders relating to the issue of whether Schroders was a proper party to file an Exception in this matter or whether IBJ wished to adopt the Exception nunc pro tunc. -3-

5 ACCORDINGLY, IT IS ORDERED that the Exception herein be dismissed. SO ORDERED. Dated July 3, 1996 New York, New York MARK FRIEDLANDER Commissioner and President SUSAN GROSSMAN Commissioner JOHN TRUBIN Commissioner -4-