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Empire Zone Status Can Be Revoked; No Vested or Actionable Right

The petitioner, the owner of a shopping mall, was certified as an empire zone business enterprise in 2002, and was thereby afforded certain tax benefits.  In 2009 the Empire Zone Designation Board revoked petitioner’s certification.  On appeal from an Article 78 proceeding, the Third Department affirmed the lower court’s determination that the respondents were not estopped from revoking the empire zone status because tax legislation is not a governmental promise:

Because “tax legislation is not a governmental promise,  [taxpayers  have]  no  vested  or  actionable right . . . to the benefit of a tax statute or regulation” … .   A claim of estoppel may only be asserted against a government agency in the rarest of situations and may not be invoked to prevent an agency from discharging its statutory duties … .  After the Legislature amended the Empire Zones Act, the Board discharged its statutory duty to review appeals of the … decisions to decertify empire zone business enterprises (see General Municipal Law §  959  [w]). Under these circumstances, where petitioner did not have  a vested right to continue receiving tax credits and  the Board  was  fulfilling its duty under the law, the court properly held that estoppel may not be invoked.  Matter of Greece Town Mall, LP v New York State, et al, 515207, Third Dept 4-25-13

 

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