
    In the Matter of the Estate of Kurt O. Liehs, Deceased. State Tax Commission, Appellant; Helen T. Liehs, as Executrix of Kurt O. Liehs, Deceased, Respondent.
   Order unanimously reversed on the law without costs and motion granted. Memorandum: The New York State Tax Commission contends that Surrogate’s Court erred in denying its motion for a supplemental order fixing tax in the estate of Kurt O. Liehs. We agree.

After the death of Kurt O. Liehs on November 17, 1979, his executrix filed a Federal estate tax return indicating a taxable estate of $131,037.07 with no Federal estate tax due. Based on this return a pro forma order was entered in Surrogate’s Court on September 10, 1980 fixing New York estate tax of $1,362.22 on a taxable estate of $131,037.07. The Internal Revenue Service, upon review of the Federal return, increased the Federal taxable estate to $141,276.47, which still resulted in no Federal estate tax. The executrix was notified by a closing letter dated August 17, 1981 of the upward adjustment and the acceptance of the return. The State Tax Commission was never notified by the executrix of this increase. Upon discovery of the increase the Commission on August 21, 1986 moved for a supplemental tax order pursuant to Tax Law § 962 to fix the decedent’s taxable estate in conformity with the Federal determination at $141,276.47, resulting in a tax of $1,976.58 plus interest and penalty.

The closing letter accepting the return and increasing the taxable Federal estate was a final determination of the items adjusted (Tax Law § 961 [b] [4]; [c]; § 962 [b] [5] [A] [i]). The executrix, by failing to contest the Federal audit, accepts those results as the final Federal determination (Matter of Pedersen, 100 Misc 2d 450, 452). Additionally, as the executrix did not notify the Commission within 90 days of such change or correction, and state wherein it is erroneous, she has conceded the accuracy of that determination (Tax Law § 962 [c]). (Appeal from order of Onondaga County Surrogate’s Court, Reagan, S.—estate tax.) Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.  