IN RE THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, pet-ap, v. JAMES J. WRYNN, ETC., resres

9494. IN RE THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, pet-ap, v. JAMES J. WRYNN, ETC., resres McDermott Will & Emery LLP, New York (Arthur R. Rosen of counsel), for ap — Eric T. Schneiderman, Attorney General, New York (Brian A. Sutherland of counsel), for res — Judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered April 25, 2012, which denied the petition for an order annulling a determination of respondent Superintendent of Insurance, dated November 18, 2010, denying petitioner's claim for a refund of retaliatory taxes for tax year 2003 in the amount of $2,935,493 and cancellation of an assessment of retaliatory taxes for tax year 2007 in the amount of $4,266,551, and dismissed the proceeding brought pursuant to CPLR Article 78, unanimously affirmed, without costs.

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9494. IN RE THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, pet-ap, v. JAMES J. WRYNN, ETC., resres McDermott Will & Emery LLP, New York (Arthur R. Rosen of counsel), for ap — Eric T. Schneiderman, Attorney General, New York (Brian A. Sutherland of counsel), for res — Judgment, Supreme Court, New York County (Peter H. Moulton, J.), entered April 25, 2012, which denied the petition for an order annulling a determination of respondent Superintendent of Insurance, dated November 18, 2010, denying petitioner’s claim for a refund of retaliatory taxes for tax year 2003 in the amount of $2,935,493 and cancellation of an assessment of retaliatory taxes for tax year 2007 in the amount of $4,266,551, and dismissed the proceeding brought pursuant to CPLR Article 78, unanimously affirmed, without costs.

For the 1995 tax year, petitioner initially paid $22,663,988 in franchise taxes. In 2006, it was determined that petitioner had misapprehended the amount of the net operating loss (NOL) deduction it was entitled to take for that tax year, resulting in an increase of its franchise tax liability for 1995 to $31,015,708. Petitioner paid the difference — $8,351,720 — and it is this sum for which petitioner now seeks a credit. This sum is not, however, an “overpayment” for purposes of Insurance Law §9109, which defines an overpayment as a payment “in excess of the amount legally chargeable against it” (Insurance Law §9109[a] [1]). Far from making an overpayment for 1995, petitioner made an underpayment — an amount less than the “amount legally chargeable against it” (id.). Accordingly, petitioner cannot recover any refund of its additional franchise tax payment under Insurance Law §9109.

IN RE THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, pet-ap, v. JAMES J. WRYNN, ETC., resres

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