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DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the doctrine of tax estoppel prevented defendants from asserting facts contrary to the information provided in the Real Property Transfer Report (RPT report). Plaintiff had a right of first refusal on the sale of defendants’ commercial property. Defendants sold the property without giving plaintiff the right of first refusal, claiming it was not a bona fide sale because the same person controlled the seller and the buyer, an allegation negated by the RPT report:

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Under the doctrine of tax estoppel, ” [a] party to litigation may not take a position contrary to a position taken in [a] tax return’ ” … . Here, 428 Co. and SS jointly submitted a Real Property Transfer Report (RPT report) … to the Department of Taxation and Finance in which they certified that the transfer of the subject property was not a “sale between related companies or partners in business.”  …

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The sworn statements made in the RPT report further estop defendants from asserting that various mortgage assumptions worth over $2 million constituted part of the purchase price, and that plaintiff was therefore unwilling to purchase the property “at the same price and under the same terms” … . The instructions for the tax form require that any mortgage assumptions be listed as part of the “Full Sale Price” on the RPT report, and [defendants] did not do so here. … [Defendants] listed only a cash sale price of $238,493 as the “Full Sale Price” on the RPT report, and it is undisputed that plaintiff was ready, willing, and able to purchase the property for that amount. Amalfi, Inc. v 428 Co., Inc., 2017 NY Slip Op 06770, Fourth Dept 9-29-17

 

REAL ESTATE (DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/CONTRACT LAW (REAL ESTATE, RIGHT OF FIRST REFUSAL, DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/TAX LAW  (DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/TAX ESTOPPEL (DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

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