Horner v. State of New York

In Horner v. State of New York (125 Misc 2d 1 [Sup Ct, Albany County 1984] affd 107 AD2d 64 [3d Dept 1985] the court found a futility exception to the exhaustion requirement because the plaintiff in that case was asserting that he was not personally liable for the tax and that to require him to deposit the tax or post a bond would have caused him financial ruin. After Horner was decided, the Legislature amended section 1138. It provided for an administrative determination as to whether someone was personally liable for sales tax and eliminated the requirement that the tax be deposited or a bond posted when such determination was judicially challenged. (See L 1985, ch 65, 82, 83.)