Section 11-671
§ 11-671 Application of subchapter. 1. General. The provisions of this
subchapter shall apply to the administration of and the procedures with
respect to the taxes imposed by subchapters two, three and four of this
chapter.
2. Definitions. As used in this subchapter: (a) the term "named
subchapters" means subchapters two, three and four of this chapter;
(b) The term "return" means a report or return of tax, but does not
include a declaration of estimated tax;
(c) The term "corporation" includes a corporation, association,
joint-stock company or other entity subject to tax under any of the
named subchapters; and
(d) The term "person" includes a corporation, association, company,
partnership, estate, trust, liquidator, fiduciary or other entity or
individual liable for the tax imposed by any of the named subchapters or
under a duty to perform an act under any of the named subchapters. Upon
notice to the commissioner of finance that any person is acting for any
corporation in a fiduciary capacity, such fiduciary shall assume the
powers, rights, duties and privileges of such corporation in respect of
a tax imposed by any of the named subchapters (except as otherwise
specifically provided and except that the tax shall be collected from
the estate or other assets of such corporation in the hands of such
fiduciary), until notice is given that the fiduciary capacity has
terminated.
Section 11-672
§ 11-672 Notice of deficiency. 1. General. If upon examination of a
taxpayer's return, the commissioner of finance determines that there is
a deficiency of tax, the commissioner may mail a notice of deficiency to
the taxpayer. If a taxpayer fails to file a tax return, the commissioner
of finance is authorized to estimate the taxpayer's city tax liability
from any information in the commissioner's possession, and to mail a
notice of deficiency to the taxpayer. A notice of deficiency shall be
mailed by certified or registered mail to the taxpayer, at its last
known address in or out of the city. If the taxpayer has terminated its
existence, a notice of deficiency may be mailed to its last known
address in or out of the city, and such notice shall be sufficient for
purposes of this subchapter. If the commissioner of finance has received
notice that a person is acting for the taxpayer in a fiduciary capacity,
a copy of such notice shall also be mailed to the fiduciary named in
such notice.
2. Notice of deficiency as assessment. After ninety days from the
mailing of a notice of deficiency or, if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of the
code and the taxpayer has requested a conciliation conference in
accordance therewith, after ninety days from the mailing of the
conciliation decision or the date of the commissioner's confirmation of
the discontinuance of the conciliation proceeding, such notice shall be
an assessment of the amount of tax specified therein, together with the
interest, additions to tax and penalties stated in such notice, except
only for any such tax or other amounts as to which the taxpayer has
within such ninety day period filed with the tax appeals tribunal a
petition under section 11-680 of this subchapter. If the notice of
deficiency or conciliation decision is addressed to a taxpayer whose
last known address is outside of the United States, such period shall be
one hundred fifty days instead of ninety days.
3. Restrictions on assessment and levy. No assessment of a deficiency
in tax and no levy or proceeding in court for its collection shall be
made, begun or prosecuted, except as otherwise provided in section
11-685 of this subchapter, until a notice of deficiency has been mailed
to the taxpayer, nor until the expiration of the time for filing a
petition with the tax appeals tribunal contesting such notice, nor, if a
petition with respect to the taxable year has been both served on the
commissioner of finance and filed with the tax appeals tribunal, until
the decision of the tax appeals tribunal has become final. For exception
in the case of judicial review of the decision of the tax appeals
tribunal, see subdivision three of section 11-681 of this subchapter.
4. Exceptions for mathematical errors. If a mathematical error appears
on a return (including an overstatement of the amount paid as estimated
tax), the commissioner of finance shall notify the taxpayer that an
amount of tax in excess of that shown upon the return is due, and that
such excess has been assessed. Such notice shall not be considered as a
notice of deficiency for the purposes of this section, subdivision six
of section 11-678 (limiting credits or refunds after petition to the tax
appeals tribunal), or subdivision two of section 11-680 of this
subchapter (authorizing the filing of a petition with the tax appeals
tribunal based on a notice of deficiency), nor shall such assessment or
collection be prohibited by the provisions of subdivision three of this
section.
5. Exception where federal or New York state change or correction is
not reported.
(a) If the taxpayer fails to comply with subchapter two or three of
this chapter in not reporting a change or correction or renegotiation,
or computation or recomputation of tax, increasing or decreasing its
federal or New York state taxable income, alternative minimum taxable
income or other basis of tax as reported on its federal or New York
state income tax return or in not reporting a change or correction or
renegotiation, or computation or recomputation of tax, which is treated
in the same manner as if it were a deficiency for federal or New York
state income tax purposes or in not filing an amended return or in not
reporting the execution of a notice of waiver executed pursuant to
subsection (d) of section six thousand two hundred thirteen of the
internal revenue code or pursuant to subdivision (f) of section one
thousand eighty-one of the tax law, instead of the mode and time of
assessment provided for in subdivision two of this section, the
commissioner of finance may assess a deficiency based upon such
increased or decreased federal or New York state taxable income,
alternative minimum taxable income or other basis of tax by mailing to
the taxpayer a notice of additional tax due specifying the amount of the
deficiency, and such deficiency, together with the interest, additions
to tax and penalties stated in such notice, shall be deemed assessed on
the date such notice is mailed unless within thirty days after the
mailing of such notice a report of the federal or New York state change
or correction or renegotiation, or computation or recomputation of tax,
or an amended return, where such return was required by subchapter two
or three, is filed accompanied by a statement showing wherein such
federal or New York state determination and such notice of additional
tax due are erroneous.
(b) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision six of section 11-678
(limiting credits or refunds after petition to the tax appeals
tribunal), or subdivision two of section 11-680 of this subchapter
(authorizing the filing of a petition with the tax appeals tribunal
based on a notice of deficiency), nor shall such assessment or the
collection thereof be prohibited by the provisions of subdivision three
of this section.
(c) If the taxpayer has terminated its existence, a notice of
additional tax due may be mailed to the taxpayer's last known address in
or out of the city, and such notice shall be sufficient for purposes of
this subchapter. If the commissioner of finance has received notice that
a person is acting for the taxpayer in a fiduciary capacity, a copy of
such notice shall also be mailed to the fiduciary named in such notice.
6. Waiver of restrictions. The taxpayer shall at any time (whether or
not a notice of deficiency has been issued) have the right to waive the
restrictions on assessment and collection of the whole or any part of
the deficiency by a signed notice in writing filed with the commissioner
of finance.
7. Two or more corporations. In case of a combined return under
subchapter two or a consolidated return under subchapter three of two or
more corporations, the commissioner of finance may determine a
deficiency of tax under subchapter two or subchapter three of this
chapter with respect to the entire tax due upon such return against any
taxpayer included therein. In the case of a taxpayer which might have
been included in such a return under subchapter two or subchapter three
of this chapter when the tax was originally reported, the commissioner
of finance may determine a deficiency of tax under subchapter two or
three of this chapter against such taxpayer and against any other
taxpayers which might have been included in such a return.
8. Deficiency defined. For the purposes of this subchapter, a
deficiency means the amount of the tax imposed by the named subchapters,
or any of them, less: (a) the amount shown as the tax upon the
taxpayer's return (whether the return was made or the tax computed by it
or by the commissioner of finance), and less (b) the amounts previously
assessed (or collected without assessment) as a deficiency and plus (c)
the amount of any rebates. For the purpose of this definition, the tax
imposed by subchapter two or three of this chapter and the tax shown on
the return shall both be determined without regard to any payment of
estimated tax; and a rebate means so much of an abatement, credit,
refund or other repayment (whether or not erroneous) as was made on the
ground that the amounts entering into the definition of a deficiency
showed a balance in favor of the taxpayer.
9. Exception where change or correction of sales and compensating use
tax liability is not reported.
(a) If a taxpayer fails to comply with subchapter two of this chapter
in not reporting a change or correction of its sales and compensating
use tax liability or in not filing a copy of an amended return or report
relating to its sales and compensating use tax liability, instead of the
mode and time of assessment provided for in subdivision two of this
section, the commissioner of finance may assess a deficiency based upon
such changed or corrected sales and compensating use tax liability, as
same relates to credits claimed under subchapter two of this chapter, by
mailing to the taxpayer a notice of additional tax due specifying the
amount of the deficiency, and such deficiency, together with the
interest, additions to tax and penalties stated in such notice, shall be
deemed assessed on the date such notice is mailed unless within thirty
days after the mailing of such notice a report of the state change or
correction or a copy of an amended return or report, where such copy was
required by subchapter two, is filed accompanied by a statement showing
wherein such state determination and such notice of additional tax due
are erroneous.
(b) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision six of section 11-678
(limiting credits or refunds after petition to the tax appeals
tribunal), or subdivision two of section 11-680 (authorizing the filing
of a petition with the tax appeals tribunal based on a notice of
deficiency), nor shall such assessment or the collection thereof be
prohibited by the provisions of subdivision three of this section.
(c) If the taxpayer has terminated its existence, a notice of
additional tax due may be mailed to its last known address in or out of
the city, and such notice shall be sufficient for purposes of this
subchapter. If the commissioner of finance has received notice that a
person is acting for the taxpayer in a fiduciary capacity, a copy of
such notice shall also be mailed to the fiduciary named in such notice.
Section 11-673
§ 11-673 Assessment. 1. Assessment date. The amount of tax which a
return shows to be due, or the amount of tax which a return would have
shown to be due but for a mathematical error, shall be deemed to be
assessed on the date of filing of the return (including any amended
return showing an increase of tax). If a notice of deficiency has been
mailed, the amount of the deficiency shall be deemed to be assessed on
the date specified in subdivision two of section 11-672 of this
subchapter if no petition is both served on the commissioner of finance
and filed with the tax appeals tribunal, or if a petition is so served
and filed, then upon the date when a decision of the tax appeals
tribunal establishing the amount of the deficiency becomes final. If a
report or an amended return filed pursuant to subchapter two or three of
this chapter concedes the accuracy of a federal or New York state
adjustment or change or correction or renegotiation or computation or
recomputation of tax, any deficiency in tax under subchapter two or
three of this chapter resulting therefrom shall be deemed to be assessed
on the date of filing such report or amended return, and such assessment
shall be timely notwithstanding section 11-674 of this chapter.
If a report filed pursuant to subchapter two of this chapter concedes
the accuracy of a state change or correction of sales and compensating
use tax liability, any deficiency in tax under subchapter two of this
chapter resulting therefrom shall be deemed assessed on the date of
filing such report, and such assessment shall be timely notwithstanding
section 11-674 of this chapter.
If a notice of additional tax due, as prescribed in subdivision five
of section 11-672 of this chapter, has been mailed, the amount of the
deficiency shall be deemed to be assessed on the date specified in such
subdivision unless within thirty days after the mailing of such notice a
report of the federal or New York state adjustment or change or
correction or renegotiation or computation or recomputation of tax, or
an amended return, where such return was required by subchapter two or
three of this chapter, is filed accompanied by a statement showing
wherein such federal or New York state determination and such notice of
additional tax due are erroneous.
If a notice of additional tax due, as prescribed in subdivision nine
of section 11-672 of this subchapter, has been mailed, the amount of the
deficiency shall be deemed to be assessed on the date specified in such
subdivision unless within thirty days after the mailing of such notice a
report of the state change or correction, or a copy of an amended return
or report, where such copy was required by subchapter two of this
chapter, is filed accompanied by a statement showing wherein such state
determination and such notice of additional tax due are erroneous.
Any amount paid as a tax or in respect of a tax, other than amounts
paid as estimated tax, shall be deemed to be assessed upon the date of
receipt of payment notwithstanding any other provisions.
2. Other assessment powers. If the mode or time for the assessment of
any tax under the named subchapters (including interest, additions to
tax and assessable penalties) is not otherwise provided for, the
commissioner of finance may establish the same by regulations.
3. Estimated tax. No unpaid amount of estimated tax under subchapter
two or three of this chapter shall be assessed.
4. Supplemental assessment. The commissioner of finance may, at any
time within the period described for assessment, make a supplemental
assessment, subject to the provisions of section 11-672 of this
subchapter where applicable, whenever it is ascertained that any
assessment is imperfect or incomplete in any material respect.
5. Cross reference. For assessment in case of jeopardy, see section
11-685 of this subchapter.
Section 11-674
§ 11-674 Limitations on assessment. 1. General. Except as otherwise
provided in this section, any tax under the named subchapters shall be
assessed within three years after the return was filed (whether or not
such return was filed on or after the date prescribed).
2. Time return deemed filed. For the purposes of this section, a
return of tax filed before the last day prescribed by law or by
regulations promulgated pursuant to law for the filing thereof shall be
deemed to be filed on such last day.
3. Exceptions.
(a) Assessment at any time. The tax may be assessed at any time if:
(1) no return is filed,
(2) a false or fraudulent return is filed with intent to evade tax,
(3) in the case of the tax imposed under subchapter two or three of
this chapter, the taxpayer fails to file a report or amended return
required thereunder, in respect of an increase or decrease in federal or
New York state taxable income, alternative minimum taxable income or
other basis of tax or federal or New York state tax, or in respect of a
change or correction or renegotiation or in respect of the execution of
a notice of waiver report of which is required thereunder, or
computation or recomputation of tax, which is treated in the same manner
as if it were a deficiency for federal or New York state income tax
purposes, or
(4) in the case of the tax imposed under subchapter two of this
chapter, the taxpayer fails to file a report or amended return or report
required thereunder, in respect of a change or correction of sales and
compensating use tax liability, relating to the purchase or use of items
for which a sales or compensating use tax credit against the tax imposed
by subchapter two was claimed.
(b) Extension by agreement. Where, before the expiration of the time
prescribed in this section for the assessment of tax, both the
commissioner of finance and the taxpayer have consented in writing to
its assessment after such time, the tax may be assessed at any time
prior to the expiration of the period agreed upon. The period so agreed
upon may be extended by subsequent agreements in writing made before the
expiration of the period previously agreed upon.
(c) Report of federal or New York state change or correction. In the
case of the tax imposed under subchapter two or three of this chapter,
if the taxpayer files a report or amended return required thereunder, in
respect of an increase or decrease in federal or New York state taxable
income, alternative minimum taxable income or other basis of tax or
federal or New York state tax, or in respect of a change or correction
or renegotiation, or in respect of the execution of a notice of waiver
report of which is required thereunder, or computation or recomputation
of tax, which is treated in the same manner as if it were a deficiency
for federal or New York state income tax purposes, the assessment (if
not deemed to have been made upon the filing of the report or amended
return) may be made at any time within two years after such report or
amended return was filed. The amount of such assessment of tax shall not
exceed the amount of the increase in city tax attributable to such
federal or New York state change or correction or renegotiation, or
computation or recomputation of tax. The provisions of this paragraph
shall not affect the time within which or the amount for which an
assessment may otherwise be made.
(d) Deficiency attributable to carry back. If a deficiency of tax
under subchapter two of this chapter is attributable to the application
to taxpayer of a net operating loss carry back or a capital loss carry
back, it may be assessed at any time that a deficiency for the taxable
year of the loss may be assessed.
(e) Recovery of erroneous refund. An erroneous refund shall be
considered an underpayment of tax on the date made, and an assessment of
a deficiency arising out of an erroneous refund may be made at any time
within two years from the making of the refund, except that the
assessment may be made within five years from the making of the refund
if it appears that any part of the refund was induced by fraud or
misrepresentation of a material fact.
(f) Request for prompt assessment. The tax shall be assessed within
eighteen months after written request therefor (made after the return is
filed) by the taxpayer or by a fiduciary representing the taxpayer, but
not more than three years after the return was filed, except as
otherwise provided in this subdivision and subdivision four. This
subdivision shall not apply unless:
(1) (A) such written request notifies the commissioner of finance that
the taxpayer contemplates dissolution at or before the expiration of
such eighteen-month period, (B) the dissolution is in good faith begun
before the expiration of such eighteen-month period, (C) the dissolution
is completed;
(2) (A) such written request notifies the commissioner of finance that
a dissolution has in good faith been begun, and (B) the dissolution is
completed; or
(3) a dissolution has been completed at the time such written request
is made.
(g) Change of the allocation of taxpayer's income or capital. No
change of the allocation of income or capital upon which the taxpayer's
return (or any additional assessment) was based shall be made where an
assessment of tax is made during the additional period of limitation
under subparagraph three or four of paragraph (a), or under paragraph
(c), (d) or (i); and where any such assessment has been made, or where a
notice of deficiency has been mailed to the taxpayer on the basis of any
such proposed assessment, no change of the allocation of income or
capital shall be made in a proceeding on the taxpayer's claim for refund
of such assessment or on the taxpayer's petition for redetermination of
such deficiency.
(h) Report concerning waste treatment facility. Under the
circumstances described in subparagraph three of paragraph (g) of
subdivision eight of section 11-602 of this chapter, the tax may be
assessed within three years after the filing of the report containing
the information required by such paragraph.
(i) Report of changed or corrected sales and compensating use tax
liability. In the case of a tax imposed under subchapter two of this
chapter, if the taxpayer files a report or amended return or report
required thereunder, in respect of a change or correction of sales and
compensating use tax liability, the assessment (if not deemed to have
been made upon the filing of the report) may be made at any time within
two years after such report or amended return or report was filed. The
amount of such assessment of tax shall not exceed the amount of the
increase in city tax attributable to such state change or correction.
The provisions of this paragraph shall not affect the time within which
or the amount for which an assessment may otherwise be made.
4. Omission of income on return. The tax may be assessed at any time
within six years after the return was filed if a taxpayer omits from
gross income required to be reported on a return under any of the named
subchapters an amount properly includable therein which is in excess of
twenty-five per centum of the amount of gross income stated in the
return.
For the purposes of this subdivision:
(a) the term "gross income" means gross income for federal income tax
purposes as reportable on a return under subchapter two of this chapter
and "gross earnings", "gross income," "gross operating income" and
"gross direct premiums less return premiums," as those terms are used in
whichever of the named subchapters is applicable;
(b) there shall not be taken into account any amount which is omitted
in the return if such amount is disclosed in the return, or in a
statement attached to the return, in a manner adequate to apprise the
commissioner of finance of the nature and amount of such item.
5. Suspension of running of period of limitations. The running of the
period of limitations on assessment or collection of tax or other amount
(or of a tranferee's liability) shall, after the mailing of a notice of
deficiency, be suspended for the period during which the commissioner of
finance is prohibited under subdivision three of section 11-672 of this
subchapter from making the assessment or from collecting by levy.
Section 11-675
§ 11-675 Interest on underpayment. 1. General. If any amount of tax is
not paid on or before the last date prescribed in whichever of the named
subchapters is applicable for payment, interest on such amount at the
underpayment rate set by the commissioner of finance pursuant to section
11-687 of this subchapter, or, if no rate is set, at the rate of seven
and one-half percent per annum shall be paid for the period from such
last date to the date paid, whether or not any extension of time for
payment was granted. Interest under this subdivision shall not be paid
if the amount thereof is less than one dollar.
2. Exception as to estimated tax. This section shall not apply to any
failure to pay estimated tax under subchapter two or subchapter three of
this chapter.
3. Exception for mathematical error. No interest shall be imposed on
any underpayment of tax due solely to mathematical error if the taxpayer
files a return within the time prescribed in whichever of the named
subchapters is applicable (including any extension of time) and pays the
amount of underpayment within three months after the due date of such
return, as it may be extended.
4. Suspension of interest on deficiencies. If a waiver of restrictions
on assessment of a deficiency has been filed by the taxpayer, and if
notice and demand by the commissioner of finance for payment of such
deficiency is not made within thirty days after the filing of such
waiver, interest shall not be imposed on such deficiency for the period
beginning immediately after such thirtieth day and ending with the date
of notice and demand.
5. Tax reduced by carry back. If the amount of tax under subchapter
two for any taxable year is reduced by reason of a carryback of a net
operating loss or a capital loss, such reduction in tax shall not affect
the computation of interest under this section for the period ending
with the filing date for the taxable year in which the net operating
loss or capital loss arises. Such filing date shall be determined
without regard to extensions of time to file.
6. Interest treated as tax. Interest under this section shall be paid
upon notice and demand and shall be assessed, collected and paid in the
same manner as the taxes under the named subchapters. Any reference in
this subchapter to the tax imposed by the named subchapters, or any of
them, shall be deemed also to refer to interest imposed by this section
on such tax.
7. Interest on penalties or addition to tax. Interest shall be imposed
under subdivision one in respect to any assessable penalty or addition
to tax only if such assessable penalty or addition to tax is not paid
within ten days from the date of the notice and demand therefor under
subdivision two of section 11-683 of this subchapter in such case
interest shall be imposed only for the period from such date of the
notice and demand to the date of payment.
8. Payment within ten days after notice and demand. If notice and
demand is made for payment of any amount under subdivision two of
section 11-683 of this subchapter, and if such amount is paid within ten
days after the date of such notice and demand, interest under this
section on the amount so paid shall not be imposed for the period after
the date of such notice and demand.
9. Limitation on assessment and collection. Interest prescribed under
this section may be assessed and collected at any time during the period
within which the tax or other amount to which such interest relates may
be assessed and collected respectively.
10. Interest on erroneous refund. Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner of finance, shall bear interest at the underpayment rate
set by the commissioner of finance pursuant to section 11-687 of this
subchapter, or, if no rate is set, at the rate of seven and one-half
percent per annum from the date of the payment of the refund, but only
if it appears that any part of the refund was induced by fraud or a
misrepresentation of a material fact.
11. Satisfaction by credits. If any portion of a tax is satisfied by
credit of an overpayment, then no interest shall be imposed under this
section on the portion of the tax so satisfied for any period during
which, if the credit had not been made, interest would have been
allowable with respect to such overpayment.
Section 11-676
§ 11-676 Additions to tax and civil penalties. 1. * (a) Failure to
file return. (A) In case of failure to file a return under the named
subchapters on or before the prescribed date (determined with regard to
any extension of time for filing), unless it is shown that such failure
is due to reasonable cause and not due to willful neglect, there shall
be added to the amount required to be shown as tax on such return five
percent of the amount of such tax if the failure is for not more than
one month, with an additional five percent for each additional month or
fraction thereof during which such failure continues, not exceeding
twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return (determined with regard
to any extension of time for filing), unless it is shown that such
failure is due to reasonable cause and not due to willful neglect, the
addition to tax under subparagraph (A) of this paragraph shall not be
less than the lesser of one hundred dollars or one hundred percent of
the amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
* NB Amended Ch. 765/85 § 62, language juxtaposed per Ch. 907/85 § 14
(b) Failure to pay tax shown on return. In case of failure to pay the
amounts shown as tax on any return required to be filed under the named
subchapters on or before the prescribed date (determined with regard to
any extension of time for payment), unless it is shown that such failure
is due to reasonable cause and not due to willful neglect, there shall
be added to the amount shown as tax on such return one-half of one
percent of the amount of such tax if the failure is not for more than
one month, with an additional one-half of one percent for each
additional month or fraction thereof during which such failure
continues, not exceeding twenty-five percent in the aggregate. For the
purpose of computing the addition for any month the amount of tax shown
on the return shall be reduced by the amount of any part of the tax
which is paid on or before the beginning of such month and by the amount
of any credit against the tax which may be claimed upon the return. If
the amount of tax required to be shown on a return is less than the
amount shown as tax on such return, this paragraph shall be applied by
substituting such lower amount.
(c) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under the named subchapters which is not
so shown (including an assessment made pursuant to subdivision one of
section 11-673 of this subchapter) within ten days of the date of a
notice and demand therefor, unless it is shown that such failure is due
to reasonable cause and not due to willful neglect, there shall be added
to the amount of tax stated in such notice and demand one-half of one
percent of such tax if the failure is not for more than one month, with
an additional one-half of one percent for each additional month or
fraction thereof during which such failure continues, not exceeding
twenty-five percent in the aggregate. For the purpose of computing the
addition for any month, the amount of tax stated in the notice and
demand shall be reduced by the amount of any part of the tax which is
paid before the beginning of such month.
* (d) Limitations on additions. (A) With respect to any return, the
amount of the addition under paragraph (a) of this subdivision shall be
reduced by the amount of the addition under paragraph (b) of this
subdivision for any month to which an addition applies under both
paragraphs (a) and (b). In any case described in subparagraph (B) of
paragraph (a) of this subdivision, the amount of the addition under such
paragraph (a) shall not be reduced below the amount provided in such
subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph (c) of this subdivision shall be reduced by
the amount of the addition under paragraph (a) of this subdivision
(determined without regard to subparagraph (B) of such paragraph (a))
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
* NB Amended Ch. 765/85 § 62, language juxtaposed per Ch. 907/85 § 14
* 2. Deficiency due to negligence. (a) If any part of a deficiency is
due to negligence or intentional disregard of this subchapter or any of
the named subchapters or rules or regulations thereunder (but without
intent to defraud), there shall be added to the tax an amount equal to
five percent of the deficiency.
(b) There shall be added to the tax (in addition to the amount
determined under paragraph (a) of this subdivision) an amount equal to
fifty percent of the interest payable under subdivision one of section
11-675 with respect to the portion of the deficiency described in such
paragraph (a) which is attributable to the negligence or intentional
disregard referred to in such paragraph (a), for the period beginning on
the last date prescribed by law for payment of such deficiency
(determined without regard to any extension) and ending on the date of
the assessment of the tax (or, if earlier, the date of the payment of
the tax).
(c) If any payment is shown on a return made by a payor with respect
to dividends, patronage dividends and interest under subsection (a) of
section six thousand forty-two, subsection (a) of section six thousand
forty-four or subsection (a) of section six thousand forty-nine of the
internal revenue code of nineteen hundred fifty-four, respectively, and
the payee fails to include any portion of such payment in gross income,
as that term is defined in paragraph (a) of subdivision four of section
11-674, any portion of an underpayment attributable to such failure
shall be treated, for purposes of this subdivision, as due to negligence
in the absence of clear and convincing evidence to the contrary. If any
addition to tax is imposed under this subdivision by reason of the
preceding sentence, the amount of the addition to tax imposed by
paragraph (a) of this subdivision shall be five percent of the portion
of the underpayment which is attributable to the failure described in
the preceding sentence.
* NB Amended Ch. 765/85 § 62, language juxtaposed per Ch. 907/85 § 14
3. Failure to file declaration or underpayment of estimated tax. If
any taxpayer fails to file a declaration of estimated tax under
subchapter two or three of this chapter, or fails to pay all or any part
of an amount which is applied as an installment against such estimated
tax, it shall be deemed to have made an underpayment of estimated tax.
There shall be added to the tax for the taxable year an amount at the
underpayment rate set by the commissioner of finance pursuant to section
11-687 of this subchapter, or, if no rate is set, at the rate of seven
and one-half percent per annum upon the amount of the underpayment for
the period of the underpayment but not beyond the fifteenth day of the
third month following the close of the taxable year. The amount of the
underpayment shall be, with respect to any installment of estimated tax
computed on the basis of the preceding year's tax, the excess of the
amount required to be paid over the amount, if any, paid on or before
the last day prescribed for such payment or, with respect to any other
installment of estimated tax, the excess of the amount of the
installment which would be required to be paid if the estimated tax were
equal to ninety percent of the tax shown on the return for the taxable
year (or if no return was filed, ninety percent of the tax for such
year) over the amount, if any, of the installment paid on or before the
last day prescribed for such payment. In any case in which there would
be no underpayment if "eighty percent" were substituted for "ninety
percent" each place it appears in this subdivision, the addition to the
tax shall be equal to seventy-five percent of the amount otherwise
determined. No underpayment shall be deemed to exist with respect to a
declaration or installment otherwise due on or after the termination of
existence of the taxpayer.
4. Exception to addition for underpayment of estimated tax. The
addition to tax under subdivision three with respect to any underpayment
of any amount which is applied as an installment against estimated tax
under subchapter two or three of this chapter shall not be imposed if
the total amount of all payments of estimated tax made on or before the
last date prescribed for the payment of any such amount equals or
exceeds the amount which would have been required to be paid on or
before such date if the estimated tax were whichever of the following is
the least:
(a) The tax shown on the return of the taxpayer for the preceding
taxable year, if a return showing a liability for tax was filed by the
taxpayer for the preceding taxable year and such preceding year was a
taxable year of twelve months, or
(b) An amount equal to the tax computed at the rates applicable to the
taxable year, but otherwise on the basis of the facts shown on the
return of the taxpayer for, and the law applicable to, the preceding
taxable year, or
(c) (i) An amount equal to ninety per centum of the tax for the
taxable year computed by placing on an annualized basis the taxable
income:
(1) for the first three months or the first five months of the taxable
year, in the case of the installment required to be paid in the sixth
month,
(2) for the first six months or the first eight months of the taxable
year, in the case of the installment required to be paid in the ninth
month, and
(3) for the first nine months or the first eleven months of the
taxable year, in the case of the installment required to be paid in the
twelfth month.
(ii) For purposes of subparagraph (i) the taxable income shall be
placed on an annualized basis by:
(1) multiplying it by twelve (or, in the case of a taxable year of
less than twelve months, the number of months in the taxable year) and
(2) dividing the resulting amount by the number of months in the
taxable year (three, five, six, eight, nine or eleven, as the case may
be) referred to in subparagraph (i), or
(d) (i) If the base period percentage for any six consecutive months
of the taxable year equals or exceeds seventy percent, an amount equal
to ninety percent of the tax determined in the following manner:
(A) take the taxable income for all months during the taxable year
preceding the filing month,
(B) divide such amount by the base period percentage for all months
during the taxable year preceding the filing month,
(C) determine the tax on the amount determined under clause (B), and
(D) multiply the tax determined under clause (C) by the base period
percentage for the filing month and all months during the taxable year
preceding the filing month.
(ii) For purposes of subparagraph (i):
(A) the base period percentage for any period of months shall be the
average percent which the taxable income for the corresponding months in
each of the three preceding taxable years bears to the taxable income
for the three preceding taxable years. The commissioner of finance may
by regulations provide for the determination of the base period
percentage in the case of reorganizations, new corporations, and other
similar circumstances, and
(B) the term "filing month" means the month in which the installment
is required to be paid.
5. (a) Except as provided in paragraph (b) hereof, paragraphs (a) and
(b) of subdivision four of this section shall not apply in the case of
any corporation (or any predecessor corporation) which had entire net
income, or the portion thereof allocated within the city, of one million
dollars or more for any taxable year during the three taxable years
immediately preceding the taxable year involved.
(b) The amount treated as the estimated tax under paragraphs (a) and
(b) of subdivision four of this section shall in no event be less than
seventy-five percent of the tax shown on the return for the taxable year
beginning in nineteen hundred eighty-three or, if no return was filed,
seventy-five percent of the tax for such year.
6. Deficiency due to fraud. (a) If any part of a deficiency is due to
fraud, there shall be added to the tax an amount equal to two times the
deficiency.
(c) The addition to tax under this subdivision shall be in lieu of any
other addition to tax imposed by subdivision one or two.
7. Additional penalty. Any person who with fraudulent intent shall
fail to pay under the named subchapters any tax, or to make, render,
sign or certify any return or declaration of estimated tax, or to supply
any information within the time required by or under any of the named
subchapters, shall be liable to penalty of not more than one thousand
dollars, in addition to any other amounts required under this subchapter
to be imposed, assessed and collected by the commissioner of finance.
The commissioner of finance shall have the power, in his or her
discretion, to waive, reduce or compromise any penalty under this
subdivision.
* 8. Additions treated as tax. The additions to tax and penalties
provided by this section shall be paid upon notice and demand and shall
be assessed, collected and paid in the same manner as taxes, and any
reference in this subchapter to tax imposed by any of the named
subchapters shall be deemed also to refer to the additions to tax and
penalties provided by this section. For purposes of section 11-672 of
this subchapter, this subdivision shall not apply to:
(a) any addition to tax under subdivision one except as to that
portion attributable to a deficiency;
(b) any addition to tax under subdivision three or fourteen; and
(c) any additional penalties under subdivisions seven and twelve.
* NB Amended Ch. 765/85 § 62, language juxtaposed per Ch. 907/85 § 14
9. Determination of deficiency. For purposes of subdivisions two and
six the amount shown as the tax by the taxpayer upon its return shall be
taken into account in determining the amount of the deficiency only if
such return was filed on or before the last day prescribed for the
filing of such return, determined with regard to any extension of time
for such filing.
* 10. Person defined. For purposes of subdivisions seven and twelve,
the term "person" includes an individual, corporation or partnership or
an officer or employee of any corporation (including a dissolved
corporation), or a member or employee of any partnership, who as such
officer, employee, or member is under a duty to perform the act in
respect of which the violation occurs.
* NB Amended Ch. 765/85 § 62, language juxtaposed per Ch. 907/85 § 14
* 11. Substantial understatement of liability. If there is a
substantial understatement of tax for any taxable year, there shall be
added to the tax an amount equal to ten percent of the amount of any
underpayment attributable to such understatement. For purposes of this
subdivision, there is a substantial understatement of tax for any
taxable year if the amount of the understatement for the taxable year
exceeds the greater of ten percent of the tax required to be shown on
the return for the taxable year or five thousand dollars. For purposes
of the preceding sentence, the term "understatement" means the excess of
the amount of the tax required to be shown on the return for the taxable
year, over the amount of the tax imposed which is shown on the return,
reduced by any rebate (within the meaning of subdivision eight of
section 11-672). The amount of such understatement shall be reduced by
that portion of the understatement which is attributable to the tax
treatment of any item by the taxpayer if there is or was substantial
authority for such treatment, or any item with respect to which the
relevant facts affecting the item's tax treatment are adequately
disclosed in the return or in a statement attached to the return. The
commissioner of finance may waive all or any part of the addition to tax
provided by this subdivision on a showing by the taxpayer that there was
reasonable cause for the understatement (or part thereof) and that the
taxpayer acted in good faith.
* NB Amended Ch. 765/85 § 62, language juxtaposed per Ch. 907/85 § 14
* 12. Aiding or assisting in the giving of fraudulent returns,
reports, statements or other documents. (a) Any person who, with the
intent that tax be evaded, shall, for a fee or other compensation or as
an incident to the performance of other services for which such person
receives compensation, aid or assist in, or procure, counsel, or advise
the preparation or presentation under, or in connection with any matter
arising under this chapter of any return, report, declaration, statement
or other document which is fraudulent or false as to any material
matter, or supply any false or fraudulent information, whether or not
such falsity or fraud is with the knowledge or consent of the person
authorized or required to present such return, report, declaration,
statement or other document shall pay a penalty not exceeding ten
thousand dollars.
(b) For purposes of paragraph (a) of this subdivision, the term
"procures" includes ordering (or otherwise causing) a subordinate to do
an act, and knowing of, and not attempting to prevent, participation by
a subordinate in an act. The term "subordinate" means any other person
(whether or not a director, officer, employee, or agent of the taxpayer
involved) over whose activities the person has direction, supervision,
or control.
(c) For purposes of paragraph (a) of this subdivision, a person
furnishing typing, reproducing, or other mechanical assistance with
respect to a document shall not be treated as having aided or assisted
in the preparation of such document by reason of such assistance.
(d) The penalty imposed by this subdivision shall be in addition to
any other penalty provided by law.
* NB Added Ch. 765/85 § 62, language juxtaposed per Ch. 907/85 § 14
13. Failure to file report of information relating to certain interest
payments. In case of failure to file the report of information required
under subdivision two-a of section 11-605 of this chapter, unless it is
shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the tax a penalty of five
hundred dollars.
14. Failure to include on return information relating to issuer's
allocation percentage. Where a return is filed but does not contain (1)
the information necessary to compute the taxpayer's issuer's allocation
percentage, as defined in subparagraph one of paragraph (b) of
subdivision three of section 11-604 of this chapter, where the same is
called for on the return, or, (2) the taxpayer's issuer's allocation
percentage, where the same is called for on the return but where all of
the information necessary for the computation of such percentage is not
called for on the return, then unless it is shown that such failure is
due to reasonable cause and not due to willful neglect there shall be
added to the tax a penalty of five hundred dollars.
15. False or fraudulent document penalty. Any taxpayer that submits a
false or fraudulent document to the department shall be subject to a
penalty of one hundred dollars per document submitted, or five hundred
dollars per tax return submitted. Such penalty shall be in addition to
any other penalty or addition provided by law.
Section 11-677
§ 11-677 Overpayment. 1. General. The commissioner of finance, within
the applicable period of limitations, may credit an overpayment of tax
and interest on such overpayment against any liability in respect of any
tax imposed by any of the named subchapters of this chapter or on the
taxpayer who made the overpayment, and the balance shall be refunded out
of the proceeds of the tax.
2. Credits against estimated tax. The commissioner of finance may
prescribe regulations providing for the crediting against the estimated
tax under subchapter two or three of this chapter for any taxable year
of the amount determined to be an overpayment of tax under any such
subchapter for a preceding taxable year. If any overpayment of tax is so
claimed as a credit against estimated tax for the succeeding taxable
year, such amount shall be considered as a payment of the tax under
subchapter two or three of this chapter for the succeeding taxable year
(whether or not claimed as a credit in the declaration of estimated tax
for such succeeding taxable year), and no claim for credit or refund of
such overpayment shall be allowed for the taxable year for which the
overpayment arises.
3. Rule where no tax liability. If there is no tax liability for a
period in respect of which an amount is paid as tax, such amount shall
be considered an overpayment.
4. Assessment and collection after limitation period. If any amount of
tax is assessed or collected after the expiration of the period of
limitations properly applicable thereto, such amount shall be considered
an overpayment.
5. Assignment of overpayment. A credit for an overpayment of tax under
any of the named subchapters may be assigned by the taxpayer to a
corporation liable to pay taxes under any of the named subchapters, and
the assignee of the whole or any part of such credit, on filing such
assignment with the commissioner of finance, shall thereupon be entitled
to credit upon the books of the commissioner of finance for the amount
thereof on its current account for taxes, in the same manner and to the
same effect as though the credit had originally been allowed in its
favor.
6. Notwithstanding article fifty-two of the civil practice law and
rules or any other provision of law to the contrary, the procedures for
the enforcement of money judgments shall not apply to the department of
finance, or to any officer or employee of such department, as a
garnishee, with respect to any amount of money to be refunded or
credited to a taxpayer under this chapter.
Section 11-678
§ 11-678 Limitations on credit or refund. 1. General. Claim for credit
or refund of an overpayment of tax under any of the named subchapters
shall be filed by the taxpayer within three years from the time the
return was filed or two years from the time the tax was paid, whichever
of such periods expires the later, or if no return was filed within two
years from the time the tax was paid. If the claim is filed within the
three year period, the amount of the credit or refund shall not exceed
the portion of the tax paid within the three years immediately preceding
the filing of the claim plus the period of any extension of time for
filing the return. If the claim is not filed within the three year
period, but is filed within the two year period, the amount of the
credit or refund shall not exceed the portion of the tax paid during the
two years immediately preceding the filing of the claim. Except as
otherwise provided in this section, if no claim is filed, the amount of
a credit or refund shall not exceed the amount which would be allowable
if a claim had been filed on the date the credit or refund is allowed.
For special restriction in a proceeding on a claim for refund of tax
paid pursuant to an assessment made as a result of: (a) a net operating
loss carryback, or (b) an increase or decrease in federal or New York
state taxable income or other basis of tax or federal or New York state
tax, or (c) a federal or New York state change or correction or
renegotiation, or computation or recomputation of tax, which is treated
in the same manner as if it were a deficiency for federal or New York
state income tax purposes, see paragraph (g) of subdivision three of
section 11-674 of this subchapter.
2. Extension of time by agreement. If any agreement under the
provisions of paragraph (b) of subdivision three of section 11-674 of
this subchapter (extending the period of assessment of tax) is made
within the period prescribed in subdivision one for the filing of a
claim for credit or refund, the period for filing a claim for credit or
refund, or for making credit or refund if no claim is filed, shall not
expire prior to six months after the expiration of the period within
which an assessment may be made pursuant to the agreement or any
extension thereof. The amount of such credit or refund shall not exceed
the portion of the tax paid after the execution of the agreement and
before the filing of the claim or the making of the credit or refund, as
the case may be, plus the portion of the tax paid within the period
which would be applicable under subdivision one if a claim had been
filed on the date the agreement was executed.
3. Notice of change or correction of federal or New York state income
or other basis of tax. If a taxpayer is required by subchapter two or
three of this chapter to file a report or amended return in respect of
(a) a decrease or increase in federal or New York state taxable income,
alternative minimum taxable income or other basis of tax or federal or
New York state tax, (b) a federal or New York state change or correction
or renegotiation, or computation or recomputation of tax, which is
treated in the same manner as if it were an overpayment for federal or
New York state income tax purposes, claim for credit or refund of any
resulting overpayment of tax shall be filed by the taxpayer within two
years from the time such report or amended return was required to be
filed with the commissioner of finance. If the report or amended return
required by subchapter two or three of this chapter is not filed within
the ninety day period therein specified, no interest shall be payable on
any claim for credit or refund of the overpayment attributable to the
federal or New York state change or correction. The amount of such
credit or refund:
(c) shall be computed without change of the allocation of income or
capital upon which the taxpayer's return (or any additional assessment)
was based, and
(d) shall not exceed the amount of the reduction in tax attributable
to such decrease or increase in federal or New York state taxable
income, alternative minimum taxable income or other basis of tax or
federal or New York state tax or to such federal or New York state
change or correction or renegotiation, or computation or recomputation
of tax.
This subdivision shall not affect the time within which or the amount
for which a claim for credit or refund may be filed apart from this
subdivision.
4. Overpayment attributable to net operating loss carry back or
capital loss carry back. A claim for credit or refund of so much of an
overpayment under subchapter two of this chapter as is attributable to
the application to the taxpayer of a net operating loss carry back or a
capital loss carry back shall be filed within three years from the time
the return was due (including extensions thereof) for the taxable year
of the loss, or within the period prescribed in subdivision two in
respect of such taxable year, or within the period prescribed in
subdivision three, where applicable, in respect to the taxable year to
which the net operating loss or capital loss is carried back, whichever
expires the latest. Where such claim for credit or refund is filed after
the expiration of the period prescribed in subdivision one or in
subdivision two where applicable, in respect to the taxable year to
which the net operating loss or capital loss is carried back, the amount
of such credit or refund shall be computed without change of the
allocation of income or capital upon which the taxpayer's return (or any
additional assessment) was based.
5. Failure to file claim within prescribed period. No credit or refund
shall be allowed or made, except as provided in subdivision six of this
section or subdivision four of section 11-681 of this subchapter, after
the expiration of the applicable period of limitation specified in this
subchapter, unless a claim for credit or refund is filed by the taxpayer
within such period. Any later credit shall be void and any later refund
erroneous. No period of limitations specified in any other law shall
apply to the recovery by a taxpayer of moneys paid in respect of taxes
under the named subchapters.
6. Effect of a petition to tax appeals tribunal. If a notice of
deficiency for a taxable year has been mailed to the taxpayer under
section 11-672 of this subchapter and if the taxpayer files a timely
petition with the tax appeals tribunal under section 11-680 of this
subchapter, the tax appeals tribunal may determine that the taxpayer has
made an overpayment for such year (whether or not it also determines a
deficiency for such year). No separate claim for credit or refund for
such year shall be filed, and no credit or refund for such year shall be
allowed or made, except:
(a) as to overpayment determined by a decision of the tax appeals
tribunal which has become final; and
(b) as to any amount collected in excess of an amount computed in
accordance with the decision of the tax appeals tribunal which has
become final; and
(c) as to any amount collected after the period of limitation upon the
making of levy for collection has expired; and
(d) as to any amount claimed as a result of a change or correction
described in subdivision three.
7. Limit on amount of credit or refund. The amount of overpayment
determined under subdivision six shall, when the decision of the tax
appeals tribunal has become final, be credited or refunded in accordance
with subdivision one of section 11-677 of this subchapter and shall not
exceed the amount of tax which the tax appeals tribunal determines as
part of its decision was paid:
(a) after the mailing of the notice of deficiency, or
(b) within the period which would be applicable under subdivision one,
two or three, if on the date of the mailing of the notice of deficiency
a claim had been filed (whether or not filed) stating the ground upon
which the tax appeals tribunal finds that there is an overpayment.
For special restriction on credit or refund in a proceeding on a
petition for redetermination of a deficiency where the notice of
deficiency is issued as a result of (i) a net operating loss carryback,
or (ii) an increase or decrease in federal or New York state taxable
income or other basis of tax or federal or New York state tax, or (iii)
a federal or New York state change or correction or renegotiation, or
computation or recomputation of tax, which is treated in the same manner
as if it were a deficiency for federal or New York state income tax
purposes, see paragraph (g) of subdivision three of section 11-674 of
this subchapter.
8. Early return. For purposes of this section, any return filed before
the last day prescribed for the filing thereof shall be considered as
filed on such last day, determined without regard to any extension of
time granted the taxpayer.
9. Prepaid tax. For purposes of this section, any tax paid by the
taxpayer before the last day prescribed for its payment (including any
amount paid by the taxpayer as estimated tax for a taxable year) shall
be deemed to have been paid by it on the fifteenth day of the third
month following the close of the taxable year the income of which is the
basis for tax under subchapter two or three of this chapter, or on the
last day prescribed in part one of subchapter three or subchapter four
for the filing of a final return for such taxable year, or portion
thereof, determined in all cases without regard to any extension of time
granted the taxpayer.
10. Cross reference. For provision barring refund of overpayment
credited against tax of a succeeding year, see subdivision two of
section 11-677 of this subchapter.
11. Notice of change or correction of sales and compensating use tax
liability. (a) If a taxpayer is required by subchapter two of this
chapter to file a report or amended return in respect of a change or
correction of its sales and compensating use tax liability, claim for
credit or refund of any resulting overpayment of tax shall be filed by
the taxpayer within two years from the time such report or amended
return was required to be filed with the commissioner of finance. The
amount of such credit or refund shall be computed without change of the
allocation of income or capital upon which the taxpayer's return (or any
additional assessment) was based, and shall not exceed the amount of the
reduction in tax attributable to such change or correction of sales and
compensating use tax liability.
(b) This subdivision shall not affect the time within which or the
amount for which a claim for credit or refund may be filed apart from
this subdivision.
Section 11-679
§ 11-679 Interest on overpayment. 1. General. Notwithstanding the
provisions of section three-a of the general municipal law, interest
shall be allowed and paid as follows at the overpayment rate set by the
commissioner of finance pursuant to section 11-687 of this subchapter,
or, if no rate is set, at the rate of six percent per annum upon any
overpayment in respect to the tax imposed by any of the named
subchapters:
(a) from the date of the overpayment to the due date of an amount
against which a credit is taken;
(b) from the date of the overpayment to a date (to be determined by
the commissioner of finance) preceding the date of a refund check by not
more than thirty days, whether or not such refund check is accepted by
the taxpayer after tender of such check to the taxpayer. The acceptance
of such check shall be without prejudice to any right of the taxpayer to
claim any additional overpayment and interest thereon.
(c) Late and amended returns and claims for credit or refund.
Notwithstanding paragraph (a) or (b) of this subdivision, in the case of
an overpayment claimed on a return of tax which is filed after the last
date prescribed for filing such return (determined with regard to
extensions), or claimed on an amended return of tax or claimed on a
claim for credit or refund, no interest shall be allowed or paid for any
day before the date on which such return or claim is filed.
(d) Interest on certain refunds. To the extent provided for in
regulations promulgated by the commissioner of finance, if an item of
income, gain, loss, deduction or credit is changed from the taxable year
or period in which it is reported to the taxable year or period in which
it belongs and the change results in an underpayment in a taxable year
or period and an overpayment in some other taxable year or period, the
provisions of paragraph (c) of this subdivision with respect to an
overpayment shall not be applicable to the extent that the limitation in
such paragraph on the right to interest would result in a taxpayer not
being allowed interest for a length of time with respect to an
overpayment while being required to pay interest on an equivalent amount
of the related underpayment. However, this paragraph shall be not
construed as limiting or mitigating the effect of any statute of
limitations or any other provision of law relating to the authority of
such commissioner to issue a notice of deficiency or to allow a credit
or refund of an overpayment.
(e) Amounts of less than one dollar. No interest shall be allowed or
paid if the amount thereof is less than one dollar.
2. Advance payment of tax and estimated tax. The provisions of
subdivisions eight and nine of section 11-678 of this subchapter
applicable in determining the date of payment of tax for purposes of
determining the period of limitations on credit or refund, shall be
applicable in determining the date of payment for purposes of this
section.
3. Tax refund within three months of claim for overpayment. If any
overpayment of tax imposed by any of the named subchapters is credited
or refunded within three months after the last date prescribed (or
permitted by extension of time) for filing the return of such tax on
which such overpayment was claimed or within three months after such
return was filed, whichever is later, or within three months after an
amended return was filed claiming such overpayment or within three
months after a claim for credit or refund was filed on which such
overpayment was claimed, no interest shall be allowed under this section
on any such overpayment. For purposes of this subdivision, any amended
return or claim for credit or refund filed before the last day
prescribed (or permitted by extension of time) for the filing of the
return of tax for such year or period shall be considered as filed on
such last day.
4. Refund of tax caused by carryback. For purposes of this section, if
any overpayment of tax imposed by subchapter two of this chapter results
from a carryback of a net operating loss or a net capital loss, such
overpayment shall be deemed not to have been made prior to the filing
date for the taxable year in which such net operating loss or net
capital loss arises. Such filing date shall be determined without regard
to extensions of time to file. For purposes of subdivision three of this
section any overpayment described herein shall be treated as an
overpayment for the loss year and such subdivision shall be applied with
respect to such overpayment by treating the return for the loss year as
not filed before claim for such overpayment is filed. The term "loss
year" means the taxable year in which such loss arises.
5. No interest until return in processible form.
(a) For purposes of subdivisions one and three of this section, a
return shall not be treated as filed until it is filed in processible
form.
(b) For purposes of paragraph (a) of this subdivision, a return is in
a processible form if:
(A) such return is filed on a permitted form, and
(B) such return contains:
(i) the taxpayer's name; address, and identifying number and the
required signatures, and
(ii) sufficient required information (whether on the return or on
required attachments) to permit the mathematical verification of tax
liability shown on the return.
6. Cross reference. For provision with respect to interest after
failure to file a report of federal or New York state change or
correction or amended return under subchapter two or three, see
subdivision three of section 11-678 of this subchapter.
Section 11-680
§ 11-680 Petition to tax appeals tribunal. 1. General. The form of a
petition to the tax appeals tribunal, and further proceedings before the
tax appeals tribunal in any case initiated by the filing of a petition,
shall be governed by such rules as the tax appeals tribunal shall
prescribe. No petition shall be denied in whole or in part without
opportunity for a hearing on reasonable prior notice. Such hearing and
any appeal to the tribunal sitting en banc from the decision rendered in
such hearing shall be conducted in the manner and subject to the
requirements prescribed by the tax appeals tribunal pursuant to sections
one hundred sixty-eight through one hundred seventy-two of the charter.
A decision of the tax appeals tribunal shall be rendered, and notice
thereof shall be given, in the manner provided by section one hundred
seventy-one of the charter.
2. Petition for redetermination of a deficiency. Within ninety days,
or one hundred fifty days if the notice is addressed to a taxpayer whose
last known address is outside of the United States, after the mailing of
the notice of deficiency authorized by section 11-672 of this
subchapter, or if the commissioner of finance has established a
conciliation procedure pursuant to section 11-124 of the code and the
taxpayer has requested a conciliation conference in accordance
therewith, after ninety days from the mailing of the conciliation
decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding, the taxpayer may file a
petition with the tax appeals tribunal for redetermination of the
deficiency. Such petition may also assert a claim for refund for the
same taxable year or years, subject to the limitations of subdivision
seven of section 11-678 of this subchapter. For special restriction
where the notice of deficiency relates to a proposed assessment made as
a result of: (a) a net operating loss carry back or a capital loss carry
back, (b) an increase or decrease in federal or New York state taxable
income or other basis of tax or federal or New York state tax, or (c) a
federal or New York state change or correction or renegotiation, or
computation or recomputation of tax, which is treated in the same manner
as if it were a deficiency for federal or New York state income tax
purposes, see paragraph (g) of subdivision three of section 11-674 of
this subchapter.
3. Petition for refund. A taxpayer may file a petition with the tax
appeals tribunal for the amounts asserted in a claim for refund if:
(a) the taxpayer has filed a timely claim for refund with the
commissioner of finance,
(b) the taxpayer has not previously filed with the tax appeals
tribunal a timely petition under subdivision two for the same taxable
year unless the petition under this subdivision relates to a separate
claim for credit or refund properly filed under subdivision six of
section 11-678 of this subchapter, and
(c) either: (1) six months have expired since the claim was filed, or
(2) the commissioner of finance has mailed to the taxpayer, by
registered or certified mail, a notice of disallowance of such claim in
whole or in part.
No petition under this subdivision shall be filed more than two years
after the date of mailing of a notice of disallowance, unless prior to
the expiration of such two year period it has been extended by written
agreement between the taxpayer and the commissioner of finance. If a
taxpayer files a written waiver of the requirement that the taxpayer be
mailed a notice of disallowance, the two year period prescribed by this
subdivision for filing a petition for refund shall begin on the date
such waiver is filed.
(d) If the commissioner of finance has established a conciliation
procedure pursuant to section 11-124 of the code, a taxpayer which is
eligible to file a petition for refund with the tax appeals tribunal
pursuant to this subdivision may request a conciliation conference prior
to filing such petition, provided the request is made within the time
prescribed for filing the petition. Notwithstanding anything in this
subdivision to the contrary, if the taxpayer has requested a
conciliation conference in accordance with the procedure established
pursuant to section 11-124 of the code, a petition for refund may be
filed no later than ninety days from the mailing of the conciliation
decision or the date of the commissioner's confirmation of the
discontinuance of the conciliation proceeding.
4. Assertion of deficiency after filing petition.
(a) Petition for redetermination of deficiency. If a taxpayer files
with the tax appeals tribunal a petition for redetermination of a
deficiency, the tax appeals tribunal shall have power to determine a
greater deficiency than asserted in the notice of deficiency and to
determine if there should be assessed any addition to tax or penalty
provided in section 11-676 of this subchapter, if claim therefor is
asserted at or before the hearing under rules of the tax appeals
tribunal.
(b) Petition for refund. If the taxpayer files with the tax appeals
tribunal a petition for credit or refund for a taxable year, the tax
appeals tribunal may:
(1) determine a deficiency for such year as to any amount of
deficiency asserted at or before the hearing under rules of the tax
appeals tribunal and within the period in which an assessment would be
timely under section 11-674 of this subchapter, or
(2) deny so much of the amount for which credit or refund is sought in
the petition, as is offset by other issues pertaining to the same
taxable year which are asserted at or before the hearing under rules of
the tax appeals tribunal.
(c) Opportunity to respond. A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the commissioner of
finance under this subdivision.
(d) Restriction on further notices of deficiency. If the taxpayer
files a petition with the tax appeals tribunal under this section, no
notice of deficiency under section 11-672 of this subchapter may
thereafter be issued by the commissioner of finance for the same taxable
year, except in case of fraud or with respect to an increase or decrease
in federal or New York state taxable income, alternative minimum taxable
income or other basis of tax or federal or New York state tax or a
federal or New York state change or correction or renegotiation, or
computation or recomputation of tax, which is treated in the same manner
as if it were a deficiency for federal or New York state income tax
purposes, required to be reported under subchapter two or three of this
chapter or with respect to a state change or correction of sales and
compensating use tax liability required to be reported under subchapter
two of this chapter.
5. Burden of proof. In any case before the tax appeals tribunal under
this subchapter, the burden of proof shall be upon the petitioner except
for the following issues, as to which the burden of proof shall be upon
the commissioner of finance:
(a) whether the petitioner has been guilty of fraud with intent to
evade tax;
(b) whether the petitioner is liable as the transferee of property of
a taxpayer, but not to show that the taxpayer was liable for the tax;
(c) whether the petitioner is liable for any increase in a deficiency
where such increase is asserted initially after a notice of deficiency
was mailed and a petition under this section filed, unless such increase
in deficiency is the result of an increase or decrease in federal or New
York state taxable income, alternative minimum taxable income or other
basis of tax or federal or New York state tax or a federal or New York
state change or correction or renegotiation, or computation or
recomputation of tax, which is treated in the same manner as if it were
a deficiency for federal or New York state income tax purposes, required
to be reported under subchapter two or three of this chapter, and of
which increase, decrease, change or correction or renegotiation, or
computation or recomputation, the commissioner of finance had no notice
at the time he or she mailed the notice of deficiency or unless such
increase in deficiency is the result of a change or correction of sales
and compensating use tax liability required to be reported under
subchapter two of this chapter, and of which change or correction the
commissioner of finance had no notice at the time he or she mailed the
notice of deficiency; and
(d) whether any person is liable for a penalty under subdivision
twelve of section 11-676.
6. Evidence of related federal or state determination. Evidence of a
federal or state determination relating to issues raised in a case
before the tax appeals tribunal under this section shall be admissible,
under rules established by the tax appeals tribunal.
7. Jurisdiction over other years. The tax appeals tribunal shall
consider such facts with relation to the taxes for other years as may be
necessary correctly to determine the tax for the taxable year, but in so
doing shall have no jurisdiction to determine whether or not the tax for
any other year has been overpaid or underpaid.
Section 11-681
§ 11-681 Review of tax appeals tribunal's decision. 1. General. A
decision of the tax appeals tribunal sitting en banc shall be subject to
judicial review at the instance of any taxpayer affected thereby in the
manner provided by law for the review of a final decision or action of
administrative agencies of the city. An application by a taxpayer for
such review must be made within four months after notice of the decision
is sent by certified mail, return receipt requested, to the taxpayer and
the commissioner of finance.
2. Judicial review exclusive remedy. The review of a decision of the
tax appeals tribunal provided by this section shall be the exclusive
remedy available to any taxpayer for the judicial determination of the
liability of the taxpayer for the taxes imposed by the named
subchapters.
3. Assessment pending review; review bond. Irrespective of any
restrictions on the assessment and collection of deficiencies, the
commissioner of finance may assess a deficiency determined by the tax
appeals tribunal in a decision rendered pursuant to section one hundred
seventy-one of the charter after the expiration of the period specified
in subdivision one, notwithstanding that an application for judicial
review in respect of such deficiency has been duly made by the taxpayer
unless the taxpayer, at or before the time the taxpayer's application
for review is made, has paid the deficiency, has deposited with the
commissioner of finance the amount of the deficiency, or has filed with
the commissioner of finance a bond (which may be a jeopardy bond under
subdivision eight of section 11-685 of this subchapter) in the amount of
the portion of the deficiency (including interest and other amounts) in
respect of which the application for review is made and all costs and
charges which may accrue against the taxpayer in the prosecution of the
proceeding, including costs of all appeals, and with surety approved by
a justice of the supreme court of the state, conditioned upon the
payment of the deficiency (including interest and other amounts) as
finally determined and such costs and charges. If, as a result of a
waiver of the restrictions on the assessment and collection of a
deficiency, any part of the amount determined by the tax appeals
tribunal is paid after the filing of the review bond, such bond shall,
at the request of the taxpayer, be proportionately reduced.
4. Credit, refund or abatement after review. If the amount of a
deficiency determined by the tax appeals tribunal is disallowed in whole
or in part by the court of review, the amount so disallowed shall be
credited or refunded to the taxpayer, without the making of claim
therefor, or, if payment has not been made, shall be abated.
5. Date of finality of tax appeals tribunal decision. A decision of
the tax appeals tribunal shall become final upon the expiration of the
period specified in subdivision one for making an application for
review, if no such application has been duly made within such time, or
if such application has been duly made, upon expiration of the time for
all further judicial review, or upon the rendering by the tax appeals
tribunal of a decision in accordance with the mandate of the court on
review. Notwithstanding the foregoing, for the purpose of making an
application for review, the decision of the tax appeals tribunal shall
be deemed final on the date the notice of decision is sent by certified
mail to the taxpayer and the commissioner of finance.
Section 11-682
§ 11-682 Mailing rules; holidays; miscellaneous. 1. Timely mailing.
(a) If any return, declaration of estimated tax, claim, statement,
notice, petition, or other document required to be filed, or any payment
required to be made, within a prescribed period or on or before a
prescribed date under authority of any provision of this subchapter or
of the named subchapters is, after such period or such date, delivered
by United States mail to the commissioner of finance, tax appeals
tribunal, bureau, office, officer or person with which or with whom such
document is required to be filed, or to which or to whom such payment is
required to be made, the date of the United States postmark stamped on
the envelope shall be deemed to be the date of delivery. This
subdivision shall apply only if the postmark date falls within the
prescribed period or on or before the prescribed date for the filing of
such document, or for making the payment, including any extension
granted for such filing or payment, and only if such document or payment
was deposited in the mail, postage prepaid, properly addressed to the
commissioner of finance, tax appeals tribunal, bureau, office, officer
or person with which or with whom the document is required to be filed
or to which or to whom such payment is required to be made. If any
document is sent by United States registered mail, such registration
shall be prima facie evidence that such document was delivered to the
commissioner of finance, tax appeals tribunal, bureau, office, officer
or person to which or to whom addressed. To the extent that the
commissioner of finance or, where relevant, the tax appeals tribunal
shall prescribe by regulation, certified mail may be used in lieu of
registered mail under this subdivision. Except as provided in paragraph
(b) of this subdivision, this subdivision shall apply in the case of
postmarks not made by the United States postal service only if and to
the extent provided by regulations of the commissioner of finance or,
where relevant, the tax appeals tribunal.
(b) (i) Any reference in paragraph (a) of this subdivision to the
United States mail shall be treated as including a reference to any
delivery service designated by the secretary of the treasury of the
United States pursuant to section seventy-five hundred two of the
internal revenue code and any reference in paragraph (a) of this
subdivision to a United States postmark shall be treated as including a
reference to any date recorded or marked in the manner described in
section seventy-five hundred two of the internal revenue code by a
designated delivery service. If the commissioner of finance finds that
any delivery service designated by such secretary is inadequate for the
needs of the city, the commissioner may withdraw such designation for
purposes of this title. The commissioner may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in paragraph (a) of this subdivision to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
paragraph (a) of this subdivision to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance. Notwithstanding the foregoing, any withdrawal of designation
or additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
(ii) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in paragraph (a) of this
subdivision. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the
commissioner of finance is inadequate for the needs of the city, the
commissioner of finance may withdraw such designation for purposes of
this title. Notwithstanding the foregoing, any withdrawal of designation
or additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
2. Last known address. For purposes of this subchapter, a taxpayer's
last known address shall be the address given in the last return filed
by it, unless subsequently to the filing of such return the taxpayer
shall have notified the commissioner of finance of a change of address.
3. Last day a Saturday, Sunday or legal holiday. When the last day
prescribed under authority of this subchapter or the named subchapters
(including any extension of time) for performing any act falls on a
Saturday, Sunday, or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
4. Certificate; unfiled return. For purposes of this subchapter and
sections one hundred sixty-eight through one hundred seventy-two of the
charter, the certificate of the commissioner of finance to the effect
that a tax has not been paid, that a return or declaration of estimated
tax has not been filed, or that information has not been supplied, as
required by or under the provisions of this chapter, shall be prima
facie evidence that such tax has not been paid, that such return or
declaration has not been filed, or that such information has not been
supplied.
Section 11-683
§ 11-683 Collection, levy and liens. 1. Collection procedures. The
taxes imposed by the named subchapters shall be collected by the
commissioner of finance, and he or she may establish the mode or time
for the collection of any amount due him or her thereunder if not
otherwise specified. The commissioner of finance shall, upon request,
give a receipt for any sum collected thereunder. The commissioner of
finance may authorize banks or trust companies which are depositaries or
financial agents of the city to receive and give a receipt for any tax
imposed under the named subchapters in such manner, at such times, and
under such conditions as the commissioner of finance may prescribe; and
the commissioner of finance shall prescribe the manner, times and
conditions under which the receipt of such tax by such banks and trust
companies is to be treated as payment of such tax to the commissioner of
finance.
2. Notice and demand for tax. The commissioner of finance shall as
soon as practicable give notice to each taxpayer liable for any amount
of tax, addition to tax, penalty or interest, which has been assessed
but remains unpaid, stating the amount and demanding payment thereof.
Such notice shall be left at the principal office of the taxpayer in the
city or shall be sent by mail to such taxpayer's last known address.
Except where the commissioner of finance determines that collection
would be jeopardized by delay, if any tax is assessed prior to the last
date (including any date fixed by extension) prescribed for payment of
such tax, payment of such tax shall not be demanded until after such
date.
3. Issuance of warrant after notice and demand. If any corporation or
other person liable under the named subchapters for the payment of any
tax, addition to tax, penalty or interest neglects or refuses to pay the
same within ten days after notice and demand therefor is given to such
corporation or other person under subdivision two, the commissioner of
finance may within six years after the date of such assessment issue a
warrant directed to the sheriff of any county of the state, or to any
officer or employee of the department of finance, commanding him or her
to levy upon and sell the real and personal property of such corporation
or other person for the payment of the amount assessed, with the cost of
executing the warrant, and to return such warrant to the commissioner of
finance, and pay to the commissioner the money collected by virtue
thereof within sixty days after the receipt of the warrant. If the
commissioner of finance finds that the collection of the tax or other
amount is in jeopardy, notice and demand for immediate payment of such
tax may be made by the commissioner of finance and upon failure or
refusal to pay such tax or other amount the commissioner of finance may
issue a warrant without regard to the ten-day period provided in this
subdivision.
4. Copy of warrant to be filed and lien to be created. Any sheriff or
officer or employee who receives a warrant under subdivision three shall
within five days thereafter file a copy with the clerk of the
appropriate county. The clerk shall thereupon enter in the judgment
docket, in the column for judgment debtors, the name of the taxpayer
mentioned in the warrant, and in appropriate columns the tax or other
amounts for which the warrant is issued and the date when such copy is
filed; and such amount shall thereupon be a binding lien upon the real,
personal and other property of the taxpayer.
5. Judgment. When a warrant has been filed with the county clerk the
commissioner of finance shall, on behalf of the city, be deemed to have
obtained judgment against the taxpayer for the tax or other amounts.
6. Execution. The sheriff or officer or employee shall thereupon
proceed upon the judgment in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued against
property upon judgments of a court of record, and a sheriff shall be
entitled to the same fees for his or her services in executing the
warrant, to be collected in the same manner. An officer or employee of
the department of finance may proceed in any county or counties of this
state and shall have all the powers of execution conferred by law upon
sheriffs, but shall be entitled to no fee or compensation in excess of
actual expenses paid in connection with the execution of the warrant.
7. Foreign corporations. Where a notice and demand under subdivision
two shall have been given to a foreign corporation or other person who
is not then a resident, and it appears to the commissioner of finance
that it is not practicable to find in the state property of such foreign
corporation or nonresident person sufficient to pay the entire balance
of tax or other amount owing by such foreign corporation or
nonresidential person, the commissioner of finance may, in accordance
with subdivision three, issue a warrant directed to an officer or
employee of the department of finance, a copy of which warrant shall be
mailed by certified or registered mail to such foreign corporation or
nonresident person at its last known address, subject to the rules of
mailing provided in subdivision one of section 11-672. Such warrant
shall command the officer or employee to proceed in New York county, and
he or she shall, within five days after receipt of the warrant, file the
warrant and obtain a judgment in accordance with this section. Thereupon
the commissioner of finance may authorize the institution of any action
or proceeding to collect or enforce the judgment in any place and by any
procedure that a civil judgment of the supreme court of the state of New
York could be collected or enforced. The commissioner of finance may
also, in his or her discretion, designate agents or retain counsel for
the purpose of collecting, outside the state, any unpaid taxes,
additions to tax, penalties or interest which have been assessed under
this subchapter or under any of the named subchapters, against foreign
corporations or other non-resident persons, may fix the compensation of
such agents and counsel to be paid out of money appropriated or
otherwise lawfully available for payment thereof, and may require of
them bonds or other security for the faithful performance of their
duties, in such form and in such amount as the commissioner of finance
shall deem proper and sufficient.
8. Action by city for recovery of taxes. Action may be brought by the
corporation counsel of the city at the instance of the commissioner of
finance to recover the amount of any unpaid taxes, additions to tax,
penalties or interest which have been assessed under this subchapter or
under the named subchapters within six years prior to the date the
action is commenced.
9. Release of lien or vacating warrant. The commissioner of finance,
if he or she finds that the interests of the city will not thereby be
jeopardized, and upon such conditions as the commissioner of finance may
require, may release any property from the lien of any warrant or vacate
such warrant for unpaid taxes, additions to tax, penalties and interest
filed pursuant to subdivision four or seven of this section, and such
release or vacating of the warrant may be recorded in the office of any
recording officer in which such warrant has been filed. The clerk shall
thereupon cancel and discharge as of the original date of docketing the
vacated warrant.
10. Lien from due date of return. (a) In addition to any other lien
provided for in this section, each tax imposed by the named subchapters
shall become a lien on the date on which the return is required to be
filed (without regard to any extension of time for filing such return),
except that such tax shall become a lien not later than the date the
taxpayer ceases to be subject to the tax imposed by any of the named
subchapters, or to do business in this state in a corporate or organized
capacity. Each such tax shall be a lien and binding upon the real and
personal property of the taxpayer, or of a transferee liable to pay the
same, until the same is paid in full, except that no lien for any
additional tax assessed pursuant to this subchapter shall be enforceable
against property which prior to the issuance to the taxpayer of a notice
of deficiency under section 11-672 of this subchapter had been
transferred in good faith to a bona fide transferee for value. But the
lien of each such tax shall be subject to the lien of any mortgage
indebtedness existing against real property previous to the time when
the tax became a lien and where such mortgage indebtedness has been
incurred in good faith and was not given, directly or indirectly, to any
officer or stockholder of the corporation owning such real property,
whether as a purchase money mortgage or otherwise, and shall also be
subject to the lien of local taxes and assessments, without regard to
when the lien for such taxes and assessments may have accrued. If the
return is filed and the tax shown on the report to be due is paid on or
before the date on which the report is required to be filed, without
regard to any extensions of time for filing such report, the lien shall
not be enforceable against the interest of any purchaser or mortgagee in
property which is thereafter, but prior to the issuance to the taxpayer
of a notice of deficiency under section 11-672 of this subchapter
transferred to a bona fide purchaser for value, or mortgaged where the
mortgage indebtedness is incurred in good faith and the mortgage is not
given, directly or indirectly, to any officer or stockholder of the
corporation. In any action to foreclose any such mortgage, or to
foreclose the lien of local taxes or assessments, to which the people of
the state, or the city shall have been made a party defendant by reason
of the existence of a lien for any such tax, or if no such tax was due
or was a lien at the time of the commencement of such action and the
filing of the notice of pendency thereof but such a tax becomes due or
becomes a lien subsequent to the time of the commencement of such action
and the filing of the notice of pendency thereof, such real property
shall be sold and conveyed in such action free from any such tax lien,
and any such tax lien may become a lien on any surplus moneys which may
result from such sale, to be determined in the proceedings for the
distribution of such surplus moneys. Where title to real property passes
from an individual, or from a corporation owing no tax, to another
corporation which is in default for such tax, the lien herein provided
shall not be enforceable except as to any equity after the prior
mortgage or purchase money mortgage encumbrance.
(b) The commissioner of finance may, upon application made to the
commissioner and the payment of a fee of twenty-five dollars, release
any real property from the lien under this subdivision, provided payment
be made to the commissioner of finance of such a sum as the commissioner
of finance shall deem adequate consideration for such release, or
deposit be made of such security or such bond be filed as the
commissioner of finance shall deem proper to secure payment of any such
tax. The application for such release shall contain an accurate
description of the property to be released together with such
information as the commissioner of finance may require. Such release may
be recorded in any office in which conveyances of real estate are
entitled to be recorded.
(c) All taxes, additions to tax, penalties and interest which have
become a lien under this subdivision shall cease to be a lien after the
expiration of twenty years from the date they become due and payable,
except that taxes, additions to tax, penalties and interest which have
become a lien under this subdivision (1) as to real estate in the hands
of persons who are owners thereof who would be purchasers in good faith
but for such taxes, additions to tax, penalties or interest and (2) as
to the lien on real estate of mortgages held by persons who would be
holders thereof in good faith but for such taxes, additions to tax,
penalties or interest, as against such purchasers or holders, shall
cease to be a lien after the expiration of ten years from the date they
become due and payable. The limitations herein provided for shall not
apply to any transfer from a corporation to a person or corporation with
intent to avoid payment of any taxes, or where with like intent the
transfer is made to a grantee corporation, or any subsequent grantee
corporation, controlled by such grantor or which has any community of
interest with it, either through stock ownership or otherwise.
Section 11-684
§ 11-684 Transferees. 1. General. The liability, at law or in equity,
of a transferee of property of a taxpayer for any tax, additions to tax,
penalty or interest due the commissioner of finance under this
subchapter or under the named subchapters, shall be assessed, paid, and
collected in the same manner and subject to the same provisions and
limitations as in the case of the tax to which the liability relates,
except that the period of limitations for assessment against the
transferee shall be extended by one year for each successive transfer,
in order, from the original taxpayer to the transferee involved, but not
by more than three years in the aggregate. The term transferee includes,
in case of successive transfers, donee, heir, legatee, devisee,
distributee, and successor by merger, consolidation or other
reorganization.
2. Exceptions.
(a) If before the expiration of the period of limitations for
assessment of liability of the transferee, a claim has been filed by the
commissioner of finance in any court against the original taxpayer or
the last preceding transferee based upon the liability of the original
taxpayer, then the period of limitation for assessment of liability of
the transferee shall in no event expire prior to one year after such
claim has been finally allowed, disallowed or otherwise disposed of.
(b) If, before the expiration of the time prescribed in subdivision
one or the immediately preceding paragraph of this subdivision for the
assessment of the liability, the commissioner of finance and the
transferee have both consented in writing to its assessment after such
time, the liability may be assessed at any time prior to the expiration
of the period agreed upon. The period so agreed upon may be extended by
subsequent agreements in writing made before the expiration of the
period previously agreed upon. For the purpose of determining the period
of limitation on credit or refund to the transferee or overpayments of
tax made by such transferee or overpayments of tax made by the
transferor as to which the transferee is legally entitled to credit or
refund, such agreement and any extension thereof shall be deemed an
agreement and extension thereof referred to in subdivision two of
section 11-678 of this subchapter. If the agreement is executed after
the expiration of the period of limitation for assessment against the
original taxpayer, then in applying the limitations under subdivision
two of section 11-678 of this subchapter on the amount of the credit or
refund, the period specified in subdivision one of section 11-678 of
this subchapter shall be increased by the period from the date of such
expiration to the date of the agreement.
3. Period for assessment against certain transferors. For purposes of
this section, if any person is deceased or is a corporation which has
terminated its existence, the period of limitation for assessment
against such person or corporation shall be the period that would be
effect had death or termination of existence not occurred.
4. Evidence. The commissioner of finance shall use his or her powers
to make available to the transferee evidence necessary to enable the
transferee to determine the liability of the original taxpayer and of
any preceding transferees, but without undue hardship to the original
taxpayer or preceding transferee. See subdivision five of section 11-680
of this subchapter for rule as to burden of proof.
Section 11-685
§ 11-685 Jeopardy assessments. 1. Authority for making. If the
commissioner of finance believes that the assessment or collection of a
deficiency will be jeopardized by delay, the commissioner shall,
notwithstanding the provisions of section 11-672 of this subchapter
immediately assess such deficiency (together with all interest,
penalties and additions to tax provided for by law), and notice and
demand shall be made by the commissioner of finance for the payment
thereof.
2. Notice of deficiency. If the jeopardy assessment is made before any
notice in respect of the tax to which the jeopardy assessment relates
has been mailed under section 11-672 of this subchapter, then the
commissioner of finance shall mail a notice under such section within
sixty days after the making of the assessment.
3. Amount assessable before decision of the tax appeals tribunal. The
jeopardy assessment may be made in respect of a deficiency greater or
less than that of which notice is mailed to the taxpayer and whether or
not the taxpayer has theretofore filed a petition with the tax appeals
tribunal. The commissioner of finance may, at any time before tax
appeals tribunal renders its decision, abate such assessment, or any
unpaid portion thereof, to the extent that the commissioner believes the
assessment to be excessive in amount. The tax appeals tribunal may in
its decision redetermine the entire amount of the deficiency and of all
amounts assessed at the same time in connection therewith.
4. Amounts assessable after decision of the tax appeals tribunal. If
the jeopardy assessment is made after the decision of the tax appeals
tribunal is rendered, such assessment may be made only in respect of the
deficiency determined by the tax appeals tribunal in its decision.
5. Expiration of right to assess. A jeopardy assessment may not be
made after the decision of the tax appeals tribunal has become final or
after the taxpayer has made an application for review of the decision of
the tax appeals tribunal.
6. Collection of unpaid amounts. When a petition has been filed with
the tax appeals tribunal and when the amount which should have been
assessed has been determined by a decision of the tax appeals tribunal
which has become final, then any unpaid portion, the collection of which
has been stayed by bond, shall be collected as part of the tax upon
notice and demand from the commissioner of finance, and any remaining
portion of the assessment shall be abated. If the amount already
collected exceeds the amount determined as the amount which should have
been assessed, such excess shall be credited or refunded to the taxpayer
as provided in section 11-677 of this subchapter without the filing of
claim therefor. If the amount determined as the amount which should
have been assessed is greater than the amount actually assessed, then
the difference shall be assessed and shall be collected as part of the
tax upon notice and demand from the tax appeals tribunal.
7. Abatement if jeopardy does not exist. The commissioner of finance
may abate the jeopardy assessment if the commissioner finds that
jeopardy does not exist. Such abatement may not be made after a decision
of the tax appeals tribunal in respect of the deficiency has been
rendered or, if no petition is filed with the tax appeals tribunal,
after the expiration of the period for filing such petition. The period
of limitation on the making of assessments and levy or a proceeding for
collection, in respect of any deficiency, shall be determined as if the
jeopardy assessment so abated had not been made, except that the running
of such period shall in any event be suspended for the period from the
date of such jeopardy assessment until the expiration of the tenth day
after the day on which such jeopardy assessment is abated.
8. Bond to stay collection. The collection of the whole or any amount
of any jeopardy assessment may be stayed by filing with the commissioner
of finance, within such time as may be fixed by regulation, a bond in an
amount equal to the amount as to which the stay is desired, conditioned
upon the payment of the amount (together with interest thereon) the
collection of which is stayed at the time of which, but for the making
of the jeopardy assessment, such amount would be due. Upon the filing of
the bond the collection of so much of the amount assessed as is covered
by the bond shall be stayed. The taxpayer shall have the right to waive
such stay at any time in respect of the whole or any part of the amount
covered by the bond, and if as a result of such waiver any part of the
amount covered by the bond is paid, then the bond shall at the request
of the taxpayer, be proportionately reduced. If any portion of the
jeopardy assessment is abated, or if a notice of deficiency under
section 11-672 of this subchapter is mailed to the taxpayer in a lesser
amount, the bond shall, at the request of the taxpayer, be
proportionately reduced.
9. Petition to tax appeals tribunal. If the bond is given before the
taxpayer has filed its petition under section 11-680 of this subchapter,
the bond shall contain a further condition that if a petition is not
filed within the period provided in such section, then the amount, the
collection of which is stayed by the bond, will be paid on notice and
demand at any time after the expiration of such period, together with
interest thereon from the date of the jeopardy notice and demand to the
date of notice and demand under this subdivision. The bond shall be
conditioned upon the payment of so much of such assessment (collection
of which is stayed by the bond) as is not abated by a decision of the
tax appeals tribunal which has become final. If the tax appeals tribunal
determines that the amount assessed is greater than the amount which
should have been assessed, then the bond shall, at the request of the
taxpayer, be proportionately reduced when the decision of the tax
appeals tribunal is rendered.
10. Stay of sale of seized property pending tax appeals tribunal's
decision. Where a jeopardy assessment is made, the property seized for
the collection of the tax shall not be sold:
(a) if subdivision two is applicable, prior to the issuance of the
notice of deficiency and the expiration of the time provided in section
11-680 of this subchapter for filing a petition with the tax appeals
tribunal, and
(b) if a petition is filed with the tax appeals tribunal (whether
before or after the making of such jeopardy assessment), prior to the
expiration of the period during which the assessment of the deficiency
would be prohibited if subdivision one were not applicable.
Such property may be sold if the taxpayer consents to the sale, or if
the commissioner of finance determines that the expenses of conservation
and maintenance will greatly reduce the net proceeds, or if the property
is perishable.
11. Interest. For the purpose of subdivision one of section 11-675 of
this subchapter, the last date prescribed for payment shall be
determined without regard to any notice and demand for payment issued
under this section prior to the last date otherwise prescribed for such
payment.
12. Early termination of taxable year. If the commissioner of finance
finds that a taxpayer designs quickly to remove its property from this
state, or to conceal its property therein, or to do any other act
tending to prejudice or to render wholly or partly ineffectual
proceedings to collect the tax for the current or the preceding taxable
year unless such proceedings be brought without delay, the commissioner
of finance shall declare the taxable period for such taxpayer
immediately terminated, and shall cause notice of such finding and
declaration to be given the taxpayer, together with a demand for
immediate payment of the tax for the taxable period so declared
terminated and of the tax for the preceding taxable year so much of such
tax as is unpaid, whether or not the time otherwise allowed by law for
filing return and paying the tax has expired; and such taxes shall
thereupon become immediately due and payable. In any proceeding brought
to enforce payment of taxes made due and payable by virtue of the
provisions of this subdivision, the finding of the commissioner of
finance made as herein provided, whether made after notice to the
taxpayer or not, shall be for all purposes presumptive evidence of
jeopardy.
13. Reopening of taxable period. Notwithstanding the termination of
the taxable period of the taxpayer by the commissioner of finance, as
provided in subdivision twelve, the commissioner of finance may reopen
such taxable period each time the taxpayer is found by the commissioner
of finance to have received income, within the current taxable year,
since the termination of such period. A taxable period so terminated by
the commissioner of finance may be reopened by the taxpayer if it files
with the commissioner of finance a true and accurate return under any of
the named subchapters for such taxable period, together with such other
information as the commissioner of finance may by regulations prescribe.
14. Furnishing of bond where taxable year is closed by the
commissioner of finance. Payment of taxes shall not be enforced by any
proceedings under the provisions of subdivision twelve prior to the
expiration of the time otherwise allowed for paying such taxes if the
taxpayer furnishes, under regulations prescribed by the commissioner of
finance, a bond to insure the timely making of returns with respect to,
and payment of, such taxes or any taxes for prior years.
Section 11-686
* § 11-686 Criminal penalties; cross-reference. For criminal
penalties, see chapter forty of this title.
* NB Added Ch. 765/85 § 66, language juxtaposed per Ch. 907/85 § 14
Section 11-687
§ 11-687 General powers of the commissioner of finance. 1. General.
The commissioner of finance shall administer and enforce the tax imposed
by the named subchapters and the commissioner is authorized to make such
rules and regulations, and to require such facts and information to be
reported, as the commissioner may deem necessary to enforce the
provisions of this subchapter and of the named subchapters; and the
commissioner may delegate the commissioner's powers and functions under
all subchapters of this chapter to one of the commissioner's deputies or
to any employee or employees of his or her department.
2. Examination of books and witnesses. The commissioner of finance,
for the purpose of ascertaining the correctness of any return, or for
the purpose of making an estimate of tax liability of any corporation,
shall have power to examine or to cause to have examined, by any agent
or representative designated by the commissioner for that purpose, any
books, papers, records or memoranda bearing upon the matters required to
be included in the return, and may require the attendance of the
corporation rendering the return through any officer or employee of such
corporation, or the attendance of any other person having knowledge in
the premises, and may take testimony and require proof material for the
commissioner's information, with power to administer oaths to such
person or persons.
3. Abatement authority. The commissioner of finance, of the
commissioner's own motion, may abate any small unpaid balance of an
assessment of tax, or any liability in respect thereof, if the
commissioner of finance determines under uniform rules prescribed by the
commissioner that the administration and collection costs involved would
not warrant collection of the amount due. The commissioner may also
abate, of his or her own motion, the unpaid portion of the assessment of
any tax or any liability in respect thereof, which is excessive in
amount, or is assessed after the expiration of the period of limitation
properly applicable thereto, or is erroneously or illegally assessed. No
claim for abatement under this subdivision shall be filed by a taxpayer.
4. Special refund authority. Where no questions of fact or law are
involved and it appears from the records of the commissioner of finance
that any moneys have been erroneously or illegally collected from any
taxpayer or other person, or paid by such taxpayer or other person under
a mistake of facts, pursuant to the provisions of this subchapter or any
of the named subchapters, the commissioner of finance at anytime,
without regard to any period of limitations, shall have the power, upon
making a record of his or her reasons therefor in writing, to cause such
moneys so paid and being erroneously and illegally held to be refunded.
5. (a) Authority to set interest rates. The commissioner of finance
shall set the overpayment and underpayment rates of interest to be paid
pursuant to sections 11-606, 11-608, 11-645, 11-647, 11-675, 11-676, and
11-679 of this chapter, but if no such rate or rates of interest are
set, such overpayment rate shall be deemed to be set at six percent per
annum and such underpayment rate shall be deemed to be set at seven and
one-half percent per annum. Such overpayment and underpayment rates
shall be the rates prescribed in paragraph (b) of this subdivision but
the underpayment rate shall not be less than seven and one-half percent
per annum. Any such rates set by the commissioner of finance shall apply
to taxes, or any portion thereof, which remain or become due or overpaid
on or after the date on which such rates become effective and shall
apply only with respect to interest computed or computable for periods
or portions of periods occurring in the period during which such rates
are in effect.
(b) General rule. (A) Overpayment rate. The overpayment rate set under
this subdivision shall be the sum of (i) the federal short-term rate as
provided under paragraph (c) of this subdivision, plus (ii) two
percentage points.
(B) Underpayment rate. The underpayment rate set under this
subdivision shall be the sum of (i) the federal short-term rate as
provided under paragraph (c) of this subdivision, plus (ii) seven
percentage points.
(c) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the
treasury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent (or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent).
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this
subparagraph, the federal short-term rate for the first month in each
calendar quarter shall apply during the first calendar quarter beginning
after such month.
(ii) Special rule for the month of September, nineteen hundred
eighty-nine. The federal short-term rate for the month of April,
nineteen hundred eighty-nine shall apply with respect to setting the
overpayment and underpayment rates for the month of September, nineteen
hundred eighty-nine.
(d) Publication of interest rates. The commissioner of finance shall
cause to be published in the city record, and give other appropriate
general notice of, the interest rates to be set under this subdivision
no later than twenty days preceding the first day of the calendar
quarter during which such interest rates apply. The setting and
publication of such interest rates shall not be included within
paragraph (a) of subdivision five of section one thousand forty-one of
the city charter relating to the definition of a rule.
(e) Cross-reference. For provisions relating to the power of the
commissioner of finance to abate small amounts of interest, see
subdivision three of this section.
6. In computing the amount of any interest required to be paid under
this subchapter or any of the named subchapters by the commissioner of
finance or by the taxpayer, or any other amount determined by reference
to such amount of interest, such interest and such amount shall be
compounded daily. The preceding sentence shall not apply for purposes of
computing the amount of any addition to tax for failure to pay estimated
tax under subdivision three of section 11-676 of this subchapter.
Section 11-688
§ 11-688 Secrecy required of official; penalty for violation. 1.
Except in accordance with proper judicial order or as otherwise provided
by law, it shall be unlawful for the commissioner of finance, the
department of finance of the city, any officer or employee of the
department of finance of the city, the tax appeals tribunal, any
commissioner or employee of such tribunal, any person who, pursuant to
this section, is permitted to inspect any report or return, or to whom
any information contained in any report or return is furnished, any
person engaged or retained by such department on an independent contract
basis, or any person who in any manner may acquire knowledge of the
contents of a report filed pursuant to this chapter, to divulge or make
known in any manner the amount of income or any particulars set forth or
disclosed in any report or return, under this chapter. The officers
charged with the custody of such reports and returns shall not be
required to produce any of them or evidence of anything contained in
them in any action or proceeding in any court, except on behalf of the
city in an action or proceeding involving the collection of a tax due
under this chapter to which the city is a party or a claimant, or on
behalf of any party to any action or proceeding under the provisions of
this chapter when the reports, returns or facts shown thereby are
directly involved in such action or proceeding, in any of which events
the court may require the production of, and may admit in evidence, so
much of said reports or returns or of facts shown thereby as are
pertinent to the action or proceeding, and no more. Nothing herein shall
be construed to prohibit the delivery to a taxpayer or its duly
authorized representative of a copy of any report filed by it, nor to
prohibit the publication of statistics so classified as to prevent the
identification of particular reports or returns and the items thereof,
or the inspection by the corporation counsel or other legal
representatives of the city of the report or return of any taxpayer
which shall bring action to set aside or review the tax based thereon,
or against which an action or proceeding under this chapter or under any
local law of the city imposed as authorized by the act authorizing the
adoption of this chapter has been recommended by the commissioner of
finance or the corporation counsel or has been instituted, or the
inspection of the reports or returns of any taxpayer by the duly
designated officers or employees of the city for purposes of an audit
under this chapter or an audit authorized by the act authorizing the
adoption of this chapter; and nothing in this subchapter or chapter
eleven of this title shall be construed to prohibit the publication of
the issuer's allocation percentage, as defined in subparagraph one of
paragraph (b) of subdivision three of section 11-604 of this chapter, of
any corporation which may be required to be allocated within the city
for purposes of the tax imposed by any of the named subchapters or
chapter eleven of this title.
2. (a) Any officer or employee of the state or city who willfully
violates the provisions of subdivision one of this section shall be
dismissed from office and be incapable of holding any public office in
the city or this state for a period of five years thereafter.
(b) Cross-reference: For criminal penalties, see chapter forty of this
title.
3. Notwithstanding any provisions of this section, the commissioner of
finance may permit the secretary of the treasury of the United States or
his or her delegates, or the proper officer of this or any other state
charged with tax administration, or the authorized representative of
either such officer, to inspect the returns or reports filed under any
of the named subchapters, or may furnish to such officer or his or her
authorized representative an abstract of any such return or report or
supply information concerning an item contained in any such return or
report, or supply him or her with information concerning an item
contained in any such return or report, or disclosed by an investigation
of tax liability under any of the named subchapters, but such permission
shall be granted or such information furnished to such officer or his or
her representative only if the laws of the United States or of such
state, as the case may be, grant substantially similar privileges to the
commissioner of finance and such information is to be used for tax
purposes only; and provided further the commissioner of finance may
furnish to the secretary of the treasury of the United States or his or
her delegates or to the tax commission of the state of New York or its
delegates such returns or reports filed under any of the named
subchapters and other tax information, as he or she may consider proper,
for use in court actions or proceedings under the internal revenue code
or the tax law of the state of New York, whether civil or criminal,
where a written request therefor has been made to the commissioner of
finance by the secretary of the treasury or by such tax commission or by
their delegates, provided the laws of the United States or the laws of
the state of New York grant substantially similar powers to the
secretary of the treasury or his or her delegates or to such tax
commission or its delegates. Where the commissioner of finance has so
authorized use of returns, reports or other information in such actions
or proceedings, officers and employees of the department of finance may
testify in such actions or proceedings in respect to such returns,
reports of other information.
4. Notwithstanding the provisions of subdivision one of this section,
the commissioner of finance, in his or her discretion, may require or
permit any or all persons liable for any tax imposed by this chapter to
make payments on account of estimated tax and payment of any tax,
penalty or interest imposed by this chapter to banks, banking houses or
trust companies designated by the commissioner of finance and to file
declarations of estimated tax, applications for automatic extensions of
time to file reports, and reports with such banks, banking houses or
trust companies as agents of the commissioner of finance, in lieu of
making any such payment directly to the commissioner of finance.
However, the commissioner of finance shall designate only such banks,
banking houses or trust companies as are depositories or financial
agents of the city.
5. This section shall be deemed a state statute for purposes of
paragraph (a) of subdivision two of section eighty-seven of the public
officers law.
6. Notwithstanding anything in subdivision one of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter, the commissioner of finance shall be authorized to present to
the tribunal any report or return of such taxpayer, or any information
contained therein or relating thereto, which may be material or relevant
to the proceeding before the tribunal. The tax appeals tribunal shall be
authorized to publish a copy or a summary of any decision rendered
pursuant to section one hundred seventy-one of the charter.
7. Notwithstanding anything in subdivision one of this section, the
commissioner of finance may disclose to a taxpayer or a taxpayer's
related member, as defined in paragraph (n) of subdivision eight of
section 11-602 or paragraph one of subdivision (q) of section 11-641 of
this chapter, information relating to any royalty paid, incurred or
received by such taxpayer or related member to or from the other,
including the treatment of such payments by the taxpayer or the related
member in any report or return transmitted to the commissioner of
finance under this title.
Section 11-689
§ 11-689 Disposition of revenues. All revenues resulting from the
imposition of the taxes under this chapter shall be paid into the
treasury of the city and shall be credited to and deposited in the
general fund of the city, but no part of such revenues may be expended
unless appropriated in the annual budget of the city.
Section 11-690
§ 11-690 Inconsistencies with other laws. If any provision of this
chapter is inconsistent with, in conflict with, or contrary to any other
provision of law, such provision of this chapter shall prevail over such
other provision and such other provision shall be deemed to have been
amended, superseded or repealed to the extent of such inconsistency,
conflict or contrariety.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
Special thanks to Benjarmin Kallos and Thom Neale who made this content publicly available as a bulk download.