and votes to affirm in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. Subdivision (a) of section 1138 of the Tax Law refers only to situations where a return is not filed or is filed but is incorrect or insufficient (Matter of Parsons v State Tax Comm., 34 NY2d 190). The filing requirements of the section relate to persons who had the duty to file the return. This petitioner was not involved in the seller’s business when the disputed taxes arose and the imperatives of the section do not relate to it (Matter of Long Is. Reliable Corp. v State Tax Comm., 60 AD2d 727). It follows then that since this petitioner was not required to file a return, it is not a party that the section was intended to cover, and the determination against it was issued pursuant to unauthorized administrative procedures. The respondent is not without recourse against the petitioner. The proper course for respondent is an action to enforce payment brought in a court of law where the issues can be finally litigated (Matter of McMahan v State Tax Comm., 45 AD2d 624, mot for lv to app den 36 NY2d 646; Matter of Jamestown Lodge 1681 Loyal Order of Moose [Catherwood], 31 AD2d 981).