Section 11-1781
§ 11-1781 Notice of deficiency. (a) General. If upon examination of a
taxpayer's return under this chapter the tax commission determines that
there is a deficiency of income tax, it may mail a notice of deficiency
to the taxpayer. If a taxpayer fails to file an income tax return
required under this chapter, the tax commission is authorized to
estimate the taxpayer's city taxable income and tax thereon, from any
information in its 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 his or her last known address in or
out of this state. If a husband and wife are jointly liable for tax, a
notice of deficiency may be a single joint notice, except that if the
tax commission has been notified by either spouse that separate
residences have been established, then, in lieu of the single joint
notice, a duplicate original of the joint notice shall be mailed to each
spouse at his or her last known address in or out of this state. If the
taxpayer is deceased or under a legal disability, a notice of deficiency
may be mailed to his or her last known address in or out of this state,
unless the tax commission has received notice of the existence of a
fiduciary relationship with respect to the taxpayer.
(b) Notice of deficiency as assessment. After ninety days from the
mailing of a notice of deficiency, such notice shall be an assessment of
the amount of tax specified in such notice, 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 commission a petition under section
11-1789. If the notice of deficiency is addressed to a person outside of
the United States, such period shall be one hundred fifty days instead
of ninety days.
(c) 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
11-1794, until a notice of deficiency has been mailed to the taxpayer,
nor until the expiration of the time for filing a petition contesting
such notice, nor, if a petition with respect to the taxable year has
been filed with the tax commission, until the decision of the tax
commission has become final. For exception in the case of judicial
review of the decision of the tax commission, see subdivision (c) of
section 11-1790.
(d) Exceptions for mathematical errors. If a mathematical error
appears on a return (including an overstatement of the credit for income
tax withheld at the source, or of the amount paid as estimated income
tax), the tax commission 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 (f) of section
11-1787 (limiting credits or refunds after petition to the tax
commission), or subdivision (b) of section 11-1789 (authorizing the
filing of a petition with the tax commission based on a notice of
deficiency) nor shall such assessment or collection be prohibited by the
provisions of subdivision (c) of this section.
(e) Exceptions where federal changes, corrections or disallowances are
not reported. (1) If the taxpayer or employer fails to comply with
section 11-1759, instead of the mode and time of assessment provided for
in subdivision (b) of this section, the tax commission may assess a
deficiency based upon such federal change, correction or disallowance 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 change,
correction or disallowance or an amended return, where such return was
required by section 11-1759, is filed accompanied by a statement showing
wherein such federal determination and such notice of additional tax due
are erroneous.
(2) Such notice shall not be considered as a notice of deficiency for
the purposes of this section, subdivision (f) of section 11-1787
(limiting credits or refunds after petition to the tax commission), or
subdivision (b) of section 11-1789 (authorizing the filing of a petition
with the tax commission based on a notice of deficiency), nor shall such
assessment or the collection thereof be prohibited by the provisions of
subdivision (c) of this section.
(3) If a husband and wife are jointly liable for tax, a notice of
additional tax due may be a single joint notice, except that if the tax
commission has been notified by either spouse that separate residences
have been established, then, in lieu of the joint notice, a duplicate
original of the joint notice shall be mailed to each spouse at his or
her last known address in or out of this state. If the taxpayer is
deceased or under a legal disability, a notice of additional tax due may
be mailed to his or her last known address in or out of this state,
unless the tax commission has received notice of the existence of a
fiduciary relationship with respect to the taxpayer.
(f) 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 tax
commission.
(g) Deficiency defined. For purposes of this chapter, a deficiency
means the amount of the tax imposed by this chapter, less (i) the amount
shown as the tax upon the taxpayer's return (whether the return was made
or the tax computed by such taxpayer or by the tax commission), and less
(ii) the amounts previously assessed (or collected without assessment)
as a deficiency and plus (iii) the amount of any rebates. For the
purpose of this definition, the tax imposed by this chapter and the tax
shown on the return shall both be determined without regard to payments
on account of estimated tax or the credit for withholding tax; and a
rebate means so much of an abatement, credit, refund or other repayment
(whether or not erroneous) made on the ground that the amounts entering
into the definition of a deficiency showed a balance in favor of the
taxpayer.
Section 11-1782
§ 11-1782 Assessment. (a) 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). In the case of a return properly
filed without computation of tax, the tax computed by the tax commission
shall be deemed to be assessed on the date on which payment is due. 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 (b) of
section 11-1781 if no petition to the tax commission is filed, or if a
petition is filed, then upon the date when a decision of the tax
commission establishing the amount of the deficiency becomes final. If
an amended return or report filed pursuant to section 11-1759 concedes
the accuracy of a federal change or correction, any deficiency in tax
under 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 11-1783. If a notice of
additional tax due, as prescribed in subdivision (e) of section 11-1781,
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 change or
correction or an amended return, where such return was required by
section 11-1759, is filed accompanied by a statement showing wherein
such federal 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 withheld at the source or paid as estimated income tax, shall be
deemed to be assessed upon the date of receipt of payment,
notwithstanding any other provisions.
(b) Other assessment powers. If the mode or time for the assessment of
any tax under this chapter (including interest, additions to tax and
assessable penalties) is not otherwise provided for, the tax commission
may establish the same by regulations.
(c) Estimated income tax. No unpaid amount of estimated tax shall be
assessed.
(d) Supplemental assessment. The tax commission may, at any time
within the period prescribed for assessment, make a supplemental
assessment, subject to the provisions of section 11-1781 where
applicable, whenever it is ascertained that any assessment is imperfect
or incomplete in any material respect.
(e) Cross reference. For assessment in case of jeopardy, see section
11-1794.
Section 11-1783
§ 11-1783 Limitations on assessment. (a) General. Except as otherwise
provided in this section, any tax under this chapter shall be assessed
within three years after the return was filed (whether or not such
return was filed on or after the date prescribed).
(b) Time return deemed filed.
(1) Early return. For purposes of this section a return of income tax,
except withholding 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.
(2) Return of withholding tax. For purposes of this section, if a
return of withholding tax for any period ending with or within a
calendar year is filed before April fifteenth of the succeeding calendar
year, such return shall be deemed to be filed on April fifteenth of such
succeeding calendar year.
(c) Exceptions.
(1) Assessment at any time. The tax may be assessed at any time if:
(A) no return is filed,
(B) a false or fraudulent return is filed with intent to evade tax, or
(C) the taxpayer or employer fails to comply with section 11-1759.
(2) Extension by agreement. Where, before the expiration of the time
prescribed in this section for the assessment of tax, both the tax
commission 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.
(3) Report of federal changes, corrections or disallowances. If the
taxpayer or employer complies with section 11-1759, 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 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) Deficiency attributable to net operating loss carryback. If a
deficiency is attributable to the application to the taxpayer of a net
operating loss carryback, it may be assessed at any time that a
deficiency for the taxable year of the loss may be assessed.
(5) 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.
(6) Request for prompt assessment. If a return is required for a
decedent or for a decedent's estate during the period of administration,
the tax shall be assessed within eighteen months after written request
therefor (made after the return is filed) by the executor, administrator
or other person representing the estate of such decedent, but not more
than three years after the return was filed, except as otherwise
provided in this subdivision and subdivision (d) of this section.
(7) Report on use of certain property. Under the circumstances
described in paragraph two of subdivision (g) of section 11-1712, the
tax may be assessed within three years after the filing of a return
reporting that property has been used for purposes other than research
and development to a greater extent than originally reported.
(8) Report concerning waste treatment facility, air pollution control
facility or eligible business facility. Under the circumstances
described in paragraph three of subdivision (h) of section 11-1712 or in
paragraph five of subsection (c) of section seven hundred one of the tax
law, the tax may be assessed within three years after filing of the
return containing the information required by such paragraph, or, if a
certificate of compliance in respect to an air pollution control
facility shall be revoked, within three years after the tax commission
shall receive notice of such revocation from the taxpayer or as required
by section 19-0309 of the environmental conservation law, whichever
notice is received earlier.
(d) Omission of income, item of tax preference, total taxable amount
or ordinary income portion of a lump sum distribution on return. The tax
may be assessed at any time within six years after the return was filed
if:
(1) an individual omits from his city adjusted gross income, the sum
of his items of tax preference, or the total taxable amount or ordinary
income portion of a lump sum distribution an amount properly includible
therein which is in excess of twenty-five percent of the amount of city
adjusted gross income, the sum of the items of tax preference or the
total taxable amount or ordinary income portion of a lump sum
distribution stated in the return, or
(2) an estate or trust omits from its city adjusted gross income, the
sum of its items of tax preference, or the total taxable amount or
ordinary income portion of a lump sum distribution an amount properly
includible therein which is in excess of twenty-five percent of the
amount stated in the return of city adjusted gross income, or the sum of
the items of tax preference, or the total taxable amount or ordinary
income portion of a lump sum distribution, respectively. For purposes of
this paragraph, city adjusted gross income means New York adjusted gross
income as determined under paragraph four of subsection (e) of section
six hundred one of the tax law.
For purposes of this subdivision 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 the nature and amount of the
item of income, tax preference, the total taxable amount or ordinary
income portion of a lump sum distribution.
(e) Suspension of running of period of limitation. The running of the
period of limitations on assessment or collection of tax or other amount
(or of a transferee's liability) shall, after the mailing of a notice of
deficiency, be suspended for the period during which the tax commission
is prohibited under subdivision (c) of section 11-1781 from making the
assessment or from collecting by levy.
Section 11-1784
§ 11-1784 Interest on underpayment. (a) General. If any amount of
income tax is not paid on or before the last date prescribed in this
chapter for payment, interest on such amount at the underpayment rate
set by the commissioner of taxation and finance pursuant to section
11-1797 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. If the time for filing of
a return of tax withheld by an employer is extended, the employer shall
pay interest for the period for which the extension is granted and may
not charge such interest to the employee.
(b) Exception as to estimated tax. This section shall not apply to any
failure to pay estimated tax.
(c) 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 this chapter (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.
(d) 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 tax commission 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.
(e) Tax reduced by carryback. If the amount of tax for any taxable
year is reduced by reason of a carryback of a net operating 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 arises. Such filing date shall be
determined without regard to extensions of time to file.
(f) 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 income tax. Any reference in this chapter to the tax
imposed by this chapter shall be deemed also to refer to interest
imposed by this section on such tax.
(g) Interest on penalties or additions to tax. Interest shall be
imposed under subdivision (a) of this section in respect of any
assessable penalty or addition to tax only if such assessable penalty or
addition to tax is not paid within twenty-one calendar days from the
date of the notice and demand therefor under subdivision (b) of section
11-1792 of this title (ten business days if the amount for which such
notice and demand is made equals or exceeds one hundred thousand
dollars), and in such case interest shall be imposed only for the period
from such date of the notice and demand to the date of payment.
(h) Payment within specified period after notice and demand. If notice
and demand is made for payment of any amount under subdivision (b) of
section 11-1792 of this title, and if such amount is paid within
twenty-one calendar days (ten business days if the amount for which such
notice and demand is made equals or exceeds one hundred thousand
dollars) 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.
(i) 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.
(j) Interest on erroneous refund. Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner of taxation and finance, shall bear interest at the
underpayment rate set by such commissioner pursuant to section 11-1797
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.
(k) 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 11-1785
§ 11-1785 Additions to tax and civil penalties. (a) (1) Failure to
file tax return. (A) In case of failure to file a tax return under this
chapter 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 hereunder 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.
(2) 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 this
chapter 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.
(3) 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 this chapter which is not so shown
(including an assessment made pursuant to subdivision (a) of section
11-1782 of this title) within twenty-one calendar days of the date of a
notice and demand therefor (ten business days if the amount for which
such notice and demand is made equals or exceeds one hundred thousand
dollars), 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.
(4) Limitations on additions. (A) With respect to any return, the
amount of the addition under paragraph one of this subdivision shall be
reduced by the amount of the addition under paragraph two of this
subdivision for any month to which an addition applies under both
paragraphs one and two of this subdivision. In any case described in
subparagraph (B) of such paragraph one of this subdivision, the amount
of the addition under such paragraph one 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 three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision
(determined without regard to subparagraph (B) of such paragraph) 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.
(b) Deficiency due to negligence. (1) If any part of a deficiency is
due to negligence or intentional disregard of this chapter or rules or
regulations hereunder (but without intent to defraud), there shall be
added to the tax an amount equal to five percent of the deficiency.
(2) There shall be added to the tax (in addition to the amount
determined under paragraph one of this subdivision) an amount equal to
fifty percent of the interest payable under section 11-1784 with respect
to the portion of the underpayment described in such paragraph one which
is attributable to the negligence or intentional disregard referred to
in such paragraph, for the period beginning on the last date prescribed
by law for payment of such underpayment (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).
(3) 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, respectively, and the payee fails to include any
portion of such payment in city adjusted gross income, 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 penalty is imposed under
this subdivision by reason of the preceding sentence, the amount of the
penalty imposed by paragraph one of this subdivision shall be five
percent of the portion of the underpayment which is attributable to the
failure described in the preceding sentence.
(c) Failure by individual to pay estimated income tax. (1) Addition to
the tax. Except as otherwise provided in this subdivision and
subdivision (d) of this section, in the case of any underpayment of
estimated tax by an individual, there shall be added to the tax under
this chapter for the taxable year an amount determined by applying the
underpayment rate established under section 11-1797 of this subchapter,
or if no rate is set, at the rate of seven and one-half percent per
annum, to the amount of the underpayment for the period of the
underpayment. Such period shall run from the due date for the required
installment to the earlier of the fifteenth day of the fourth month
following the close of the taxable year or, with respect to any portion
of the underpayment, the date on which such portion is paid. For
purposes of determining such date, a payment of estimated tax shall be
credited against unpaid required installments in the order in which such
installments are required to be paid. There shall be four required
installments for each taxable year, due on April fifteenth, June
fifteenth and September fifteenth of such taxable year and on January
fifteenth of the following taxable year.
(2) Amount of underpayment. For purposes of paragraph one of this
subdivision, the amount of the underpayment shall be the excess of the
required installment over the amount, if any, of the installment paid on
or before the due date for the installment.
(3) Required installment. (A) Except as provided in paragraph four of
this subdivision, the amount of any required installment shall be
twenty-five percent of the required annual payment.
(B) The required annual payment is the lesser of
(i) ninety percent of the tax shown on the return for the taxable year
(or, if no return is filed, ninety percent of the tax for such year), or
(ii) one hundred percent of the tax shown on the return of the
individual for the preceding taxable year. Provided, however, that the
tax shown on such return for taxable years beginning in two thousand
eight shall be calculated as if paragraph three of subdivision (f) of
section 11-1715 of this chapter was in effect for taxable years
beginning in two thousand eight. Provided, however, that the tax shown
on such return for taxable years beginning in two thousand nine shall be
calculated as if paragraph two of subdivision (g) of section 11-1715 of
this chapter was in effect for taxable years beginning in two thousand
nine.
Clause (ii) of this subparagraph shall not apply if the preceding
taxable year was not a taxable year of twelve months or if the
individual did not file a return for such preceding taxable year.
(C) Limitation on use of preceding year's tax.
(i) General. If the city adjusted gross income shown on the return of
the individual for the preceding taxable year exceeds one hundred fifty
thousand dollars, clause (ii) of subparagraph (B) of this paragraph
shall be applied by substituting "one hundred ten percent" for "one
hundred percent".
(ii) Separate returns. In the case of a husband and wife who file
separate returns pursuant to subdivision (b) of section 11-1751 for the
taxable year for which the amount of the installment is being
determined, clause (i) of this subparagraph shall be applied by
substituting "seventy-five thousand dollars" for "one hundred fifty
thousand dollars".
(4) Annualized income installment. (A) In general. In the case of any
required installment, if the individual establishes that the annualized
income installment determined under subparagraph (B) of this paragraph
is less than the amount determined under paragraph three of this
subdivision, the annualized income installment shall be the required
installment. Any reduction in a required installment resulting from the
application of this subparagraph shall be recaptured by increasing the
amount of the next required installment determined under paragraph three
of this subdivision by the amount of such reduction, and by increasing
successive required installments as necessary to effect full recapture.
(B) Determination of annualized income installment. In the case of any
required installment, the annualized income installment is the excess,
if any, of an amount equal to the applicable percentage of the tax for
the taxable year computed by placing on an annualized basis the taxable
income and minimum taxable income for months in the taxable year ending
before the due date for the installment, over the aggregate amount of
any prior required installments for the taxable year. The applicable
percentage of the tax shall be twenty-two and one-half percent in the
case of the first installment, forty-five percent in the case of the
second installment, sixty-seven and one-half percent in the case of the
third installment and ninety percent in the case of the fourth
installment, and shall be computed without regard to any increase in the
rates applicable to the taxable year unless such increase was enacted at
least thirty days prior to the due date of the installment.
(5) Definitions and special rules. (A) Definition of the term tax and
application of credits against tax. For purposes of this subdivision and
subdivision (d) of this section, the term "tax" means the tax imposed
under this chapter minus the credits against tax allowed under this
chapter, other than the credit under section 11-1773, relating to tax
withheld on wages. The credit allowed under section 11-1773 for the
taxable year shall be deemed a payment of estimated tax, and an equal
part of such amount shall be deemed paid on each installment due date
for such taxable year, unless the taxpayer establishes the dates on
which all amounts were actually withheld, in which case the amounts so
withheld shall be deemed payments of estimated tax on the dates on which
such amounts were actually withheld.
(B) Special rule where return filed on or before January thirty-first.
If, on or before January thirty-first of the following taxable year, the
taxpayer files a return for the taxable year and pays in full the amount
computed on the return as payable, then no addition to tax shall be
imposed under pargraph one of this subdivision with respect to any
underpayment of the fourth required installment for the taxable year.
(C) Special rules for farmers and fishermen. For purposes of this
subdivision, if an individual is a farmer or fisherman for any taxable
year there shall be only one required installment for the taxable year,
due on January fifteenth of the following taxable year in an amount
equal to the required annual payment determined under paragraph three of
this subdivision by substituting sixty-six and two-thirds percent for
ninety percent and without regard to subparagraph (C) of paragraph three
of this subdivision. Subparagraph (B) of this paragraph shall be applied
by substituting March first for January thirty-first and by treating the
required installment under this subparagraph as the fourth required
installment. An individual is a farmer or fisherman for any taxable year
if the individual's federal gross income from farming or fishing
(including oyster farming) for the taxable year is at least two-thirds
of the total federal gross income from all sources for the taxable year
or if such individual's federal gross income from farming or fishing
(including oyster farming) shown on the return of the individual for the
preceding taxable year is at least two-thirds of the total federal gross
income from all sources shown on such return.
(D) Fiscal years. In applying this subdivision to a taxable year
beginning on any date other than January first, there shall be
substituted, for the months specified in this subdivision, the months
which correspond thereto.
(E) Short taxable year. This subdivision shall be applied to taxable
years of less than twelve months in accordance with regulations
prescribed by the tax commission.
(F) Joint estimated tax of husband and wife. A husband and wife may
make the required annual payment determined under paragraph three of
this subdivision as if they were one taxpayer, in which case the
liability under paragraph one of this subdivision with respect to the
estimated tax shall be joint and several. No such joint payment may be
made if husband and wife are separated under a decree of divorce or
separate maintenance, or if they have different taxable years. If a
joint payment is made but husband and wife determine their taxes under
this chapter separately, the estimated tax for such year may be treated
as the estimated tax of either husband or wife, or may be divided
between them, as they may elect.
(6) Trusts and certain estates. (A) General. This subdivision shall
apply to any trust or estate except as provided in subparagraphs (B) and
(C) of this paragraph.
(B) Exception for estates and certain trusts. This subdivision shall
not apply with respect to any taxable year ending before the date two
years after the date of the decedent's death to (i) the estate of such
decedent or (ii) any trust all of which was treated (under subpart E of
part I of subchapter J of chapter one of the internal revenue code) as
owned by the decedent and to which the residue of the decedent's estate
will pass under his will (or, if no will is admitted to probate, which
is the trust primarily responsible for paying debts, taxes and expenses
of administration).
(C) Special rule for annualizations. In the case of any estate or
trust, subparagraph (B) of paragraph four of this subdivision shall be
applied by substituting "ending before the date one month before the due
date for the installment" for "ending before the due date for the
installment".
(D) In the case of a trust, the trustee may elect to treat any portion
of a payment of estimated tax made by such trust for any taxable year of
the trust as a payment made by a beneficiary of such trust. Any amount
so treated shall be treated as paid or credited to the beneficiary on
the last day of such taxable year, and for purposes of this subdivision,
the amount so treated shall not be treated as a payment of estimated tax
made by the trust, but shall be treated as a payment of estimated tax
made by such beneficiary on the January fifteenth following the end of
the trust's taxable year.
(E) An election under subparagraph (D) of this paragraph shall be made
on or before the sixty-fifth day after the close of the taxable year and
in such manner as the commissioner of taxation and finance may
prescribe.
(F) Extension to last year of estate.--In the case of a taxable year
reasonably expected to be the last taxable year of an estate, any
reference in subparagraph (D) of this paragraph to a trust shall be
treated as including a reference to an estate, and the fiduciary of the
estate shall be treated as the trustee.
(d) Exceptions to addition to tax for failure to pay estimated income
tax.
(1) Where tax is small amount. No addition to tax shall be imposed
under subdivision (c) of this section for any taxable year if the tax
shown on the return for such taxable year (or, if no return is filed,
the tax), reduced by the credit allowable under section 11-1773, is less
than three hundred dollars.
(2) Where no tax liability for preceding taxable year. No addition to
tax shall be imposed under subdivision (c) of this section for any
taxable year if the preceding taxable year was a taxable year of twelve
months, the individual did not have any liability for tax under this
chapter for the preceding taxable year and throughout the preceding
taxable year the individual was a resident of this city or a nonresident
who had city adjusted gross income.
(3) Installment due on or after individual's death. No addition to tax
shall be imposed under subdivision (c) of this section with respect to
any installment due on or after the individual's death.
(4) Waiver in certain cases. (A) In general. No addition to tax shall
be imposed under subdivision (c) of this section with respect to any
underpayment to the extent the tax commission determines that by reason
of casualty, disaster or other unusual circumstances the imposition of
such addition to tax would be against equity and good conscience.
(B) Newly retired or disabled individuals. No addition to tax shall be
imposed under subdivision (c) of this section with respect to any
underpayment if the tax commission determines that in the taxable year
for which estimated payments were required to be made or in the taxable
year preceding such taxable year the taxpayer retired after having
attained age sixty-two or became disabled, and that such underpayment
was due to reasonable cause and not to willful neglect.
(e) Deficiency due to fraud. (1) If any part of a deficiency is due to
fraud, there shall be added to the tax an amount equal to fifty percent
of the deficiency.
(2) There shall be added to the tax (in addition to the amount
determined under paragraph one of this subdivision) an amount equal to
fifty percent of the interest payable under section 11-1784 with respect
to the portion of the underpayment described in such paragraph one which
is attributable to fraud, for the period beginning on the last day
prescribed by law for payment of such underpayment (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).
(3) The addition to tax under this subdivision shall be in lieu of any
other addition to tax imposed by subdivision (a) or (b) of this section.
(4) In the case of a joint return under section 11-1751, this
subdivision shall not apply with respect to the tax of a spouse unless
some part of the underpayment is due to the fraud of such spouse.
(f) Non-willful failure to pay withholding tax. If any employer,
without intent to evade or defeat any tax imposed by this chapter or the
payment thereof, shall fail to make a return and pay a tax withheld by
him or her at the time required by or under the provisions of section
11-1774, such employer shall be liable for such tax and shall pay the
same together with interest thereon and the addition to tax provided in
subdivision (a) of this section, and such interest and addition to tax
shall not be charged to or collected from the employee by the employer.
The tax commission shall have the same rights and powers for the
collection of such tax, interest and addition to tax against such
employer as are now prescribed by this chapter for the collection of tax
against an individual taxpayer.
(g) Willful failure to collect and pay over tax. Any person required
to collect, truthfully account for, and pay over the tax imposed by this
chapter who willfully fails to collect such tax or truthfully account
for and pay over such tax or willfully attempts in any manner to evade
or defeat the tax or the payment thereof, shall, in addition to other
penalties provided by law, be liable to a penalty equal to the total
amount of the tax evaded, or not collected, or not accounted for and
paid over. No addition to tax under subdivision (b) or (e) of this
section shall be imposed for any offense to which this subsection
applies. The tax commission shall have the power, in its discretion, to
waive, reduce or compromise any penalty under this subdivision.
(h) Failure to file certain information returns. (1) Except as
otherwise provided in this paragraph, in case of each failure to file a
statement of a payment to another person, required under authority of
subdivision (d) of section 11-1758 (relating to information at source,
including the duplicate statement of tax withheld on wages) on the date
prescribed therefor (determined with regard to any extension of time for
filing), unless it is shown that such failure is due to reasonable cause
and not to willful neglect, there shall, upon notice and demand by the
tax commission and in the same manner as tax, be paid by the person so
failing to file the statement, a penalty of fifty dollars for each
statement not so filed, but the total amount imposed on the delinquent
person for all such failures during any calendar year shall not exceed
ten thousand dollars.
(2) If any partnership or S corporation required to file a return or
report under subdivision (c) of section 11-1758 or under section 11-1759
for any taxable year fails to file such return or report at the time
prescribed therefor (determined with regard to any extension of time for
filing), or files a return or report which fails to show the information
required under such subdivision (c) or section 11-1759, unless it is
shown that such failure is due to reasonable cause and not due to
willful neglect, there shall, upon notice and demand by the commissioner
and in the same manner as tax, be paid by the partnership or S
corporation a penalty for each month (or fraction thereof) during which
such failure continues (but not to exceed five months). The amount of
such penalty for any month is the product of fifty dollars, multiplied
by the number of partners in the partnership or shareholders in the S
corporation during any part of the taxable year who were subject to tax
under this chapter during any part of such taxable year.
(i) Additional penalty. Any person who with fraudulent intent shall
fail to pay, or to deduct or withhold and pay, any tax, or to make,
render, sign or certify any return, or to supply any information within
the time required by or under this chapter, shall be liable to penalty
of not more than one thousand dollars, in addition to any other amounts
required under this chapter, to be imposed, assessed and collected by
the tax commission. The tax commission shall have the power, in its
discretion, to waive, reduce or compromise any penalty under this
subdivision.
(j) Fraudulent statement or failure to furnish statement to employee.
In addition to any criminal penalties provided by law, any person
required under the provisions of section 11-1772 to furnish a statement
to an employee, who willfully furnishes a false or fraudulent statement,
or who willfully fails to furnish a statement in the manner, at the
time, and showing the information required under section 11-1772, or
regulations prescribed thereunder, shall for each such failure be
subject to a penalty under this chapter of fifty dollars.
(k) Failure to supply identifying numbers. If any person who is
required by regulations prescribed under subdivision (b) of section
11-1758:
(1) to include his or her identifying number in any return, statement,
or other document;
(2) to furnish his or her identifying number to another person; or
(3) to include in any return, statement or other document made with
respect to another person the identifying number of such other person,
fails to comply with such requirement at the time prescribed by such
regulations, such person shall, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect, pay a penalty of
five dollars for each such failure described in paragraph one of this
subdivision and fifty dollars for each such failure described in
paragraph two of this subdivision, and this paragraph, except that the
total amount imposed on such person for all such failures during any
calendar year shall not exceed ten thousand dollars; except that for
failure to include his or her own identification number in any return,
statement or other document, such penalty shall not be imposed unless
such person shall have failed to supply his or her identification number
to the tax commission within thirty days after demand therefor.
(l) 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 chapter to income tax or tax imposed by this chapter,
shall be deemed also to refer to the additions to tax and penalties
provided by this section. For purposes of section 11-1781, this
subdivision shall not apply to:
(1) any addition to tax under subdivision (a) except as to that
portion attributable to a deficiency;
(2) any addition to tax under subdivision (c);
(3) any penalty under subdivision (h) and any additional penalty under
subdivision (i); and
(4) any penalties under subdivisions (j), (k), (q), (r), (s) and (t).
(m) Determination of deficiency. For purposes of subdivisions (b) and
(e) of this section, the amount shown as the tax by the taxpayer upon
his or her 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.
(n) Person defined. For purposes of subdivisions (g), (i), (o), (q)
and (r) of this section, the term person includes an individual,
corporation, partnership or limited liability company or an officer or
employee of any corporation (including a dissolved corporation), or a
member or employee of any partnership, or a member, manager or employee
of a limited liability company, who as such officer, employee, manager
or member is under a duty to perform the act in respect of which the
violation occurs.
(o) Failure to make deposits of taxes. In case of failure by any
person required by this chapter, or by regulations of the tax commission
under this chapter, to deposit on the date prescribed therefor any
amount of tax imposed by this chapter in a depository authorized
pursuant to subdivision (a) of section 11-1792 to receive such deposits,
unless it is shown that such failure is due to reasonable cause and not
due to willful neglect, there shall be imposed on such person a penalty
of five percent of the amount of the underpayment. For purposes of this
subdivision the term "underpayment" means the excess of the amount of
the tax required to be so deposited over the amount, if any, thereof,
deposited on or before the date prescribed therefor.
(p) Substantial understatement of liability. If there is a substantial
understatement of income 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 income 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 two 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 (g) of section
11-1781). 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 tax commission 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.
(q) Frivolous tax returns. If any individual files what purports to be
a return of any tax imposed by this chapter but which does not contain
information on which the substantial correctness of the self-assessment
may be judged, or contains information that on its face indicates that
the self-assessment is substantially incorrect; and such conduct is due
to a position which is frivolous, or an intent (which appears on the
purported return) to delay or impede the administration of this chapter,
then such individual shall pay a penalty not exceeding five hundred
dollars. This penalty shall be in addition to any other penalty provided
by law.
(r) Aiding or assisting in the giving of fraudulent returns, reports,
statements or other documents. (1) 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 one
thousand dollars.
(2) For purposes of paragraph one 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.
(3) For purposes of paragraph one 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.
(4) The penalty imposed by this subdivision shall be in addition to
any other penalty provided by law.
(s) False information with respect to withholding. In addition to any
criminal penalty provided by law, if any individual makes a statement
under section 11-1771 which results in a decrease in the amounts
deducted and withheld under this chapter, and as of the time such
statement was made, there was no reasonable basis for such statement,
such individual shall pay a penalty of five hundred dollars for such
statement. The tax commission shall waive the penalty imposed under this
subdivision if the taxes imposed with respect to the individual under
this chapter for the taxable year are equal to or less than the sum of
the credits against such taxes allowed by this chapter, and the payments
of estimated tax which are considered payments on account of such taxes.
(t) Failure of tax return preparer to conform to certain
requirements.--(1) Failure to sign return or claim for refund. Any
individual who is a tax return preparer with respect to any return or
claim for refund, who is required pursuant to paragraph one of
subdivision (g) of section 11-1758 to sign such return or claim for
refund, and who fails to comply with such requirement with respect to
such return or claim for refund, shall be subject to a penalty of fifty
dollars for each such failure, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect. The maximum
penalty imposed under this paragraph on any person with respect to
returns or claims for refund filed during any calendar year shall not
exceed twenty-five thousand dollars.
(2) Failure to furnish identifying number. If any identifying number
required to be included on any return or claim for refund pursuant to
paragraph two of subdivision (g) of section 11-1758 is not so included,
the person who is the tax return preparer with respect to such return or
claim for refund shall be subject to a penalty of fifty dollars with
respect to such return or claim for refund unless it is shown that such
failure is due to reasonable cause and not willful neglect. For purposes
of this paragraph, where an employer and one or more employees of such
employer are tax return preparers with respect to the same return or
claim for refund or where a partnership and one or more partners in such
partnership are tax return preparers with respect to the same return or
claim for refund, such employer or such partnership shall be deemed to
be the sole tax return preparer with respect to such return or claim for
refund. The maximum penalty imposed under this paragraph on any person
with respect to returns or claims for refund filed during any calendar
year shall not exceed twenty-five thousand dollars.
(3) Failure to furnish copy to taxpayer. Any person who is a tax
return preparer with respect to any return or claim for refund, who is
required under paragraph three of subdivision (g) of section 11-1758 to
furnish a copy of such return or claim for refund to the taxpayer, and
who fails to comply with such provision with respect to such return or
claim for refund shall be subject to a penalty of fifty dollars for each
such failure, unless it is shown that such failure is due to reasonable
cause and not due to willful neglect. The maximum penalty imposed under
this paragraph on any person with respect to returns or claims for
refund filed during any calendar year shall not exceed twenty-five
thousand dollars.
(4) Failure to retain copy or list. Any person who is a tax return
preparer with respect to any return or claim for refund, who is required
under paragraph four of subdivision (g) of section 11-1758 to: (i)
retain a copy of such return or claim for refund or retain on a list the
name and taxpayer identifying number of the taxpayer for whom such
return or claim for refund was prepared and (ii) make such copy or list
available for inspection upon request by the commissioner of taxation
and finance, and who fails to comply with the retention requirement or
who complies with the retention requirement but fails to comply with
such request by the commissioner, shall be subject to a penalty of fifty
dollars for each such failure, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect. The maximum
penalty imposed under this paragraph on any person with respect to any
calendar year shall not exceed twenty-five thousand dollars.
* (5) Failure to electronically file. If a tax return preparer is
required to file returns electronically pursuant to paragraph ten of
subdivision (g) of section 11-1758, and such preparer fails to file one
or more of such returns electronically, then such preparer shall be
subject to a penalty of fifty dollars for each such failure to
electronically file a return, unless it is shown that such failure is
due to reasonable cause and not due to willful neglect.
* NB Effective January 1, 2017
Section 11-1786
§ 11-1786 Overpayment. (a) General. The state commissioner of taxation
and finance, within the applicable period of limitations, may credit an
overpayment of income tax and interest on such overpayment against any
liability in respect of any tax imposed by this chapter or by chapter
nineteen of this title on the person who made the overpayment or any
other tax imposed on such person pursuant to the authority of the tax
law or any other law if such tax is administered by the state
commissioner of taxation and finance, against any liability in respect
of any tax imposed on such person by the tax law and, as provided in
sections one hundred seventy-one-c, one hundred seventy-one-d, one
hundred seventy-one-e, one hundred seventy-one-f and one hundred
seventy-one-1 of the tax law, against past-due support, against a
past-due legally enforceable debt, against a city of New York tax
warrant judgment debt and against the amount of a default in repayment
of a guaranteed student, state university or city university loan. The
balance shall be refunded by the state comptroller out of the proceeds
of the tax retained by him or her for such general purpose. Any refund
under this section shall be made only upon the filing of a return and
upon a certificate of the state commissioner of taxation and finance
approved by the state comptroller. The state comptroller, as a condition
precedent to the approval of such a certificate, may examine into the
facts as disclosed by the return of the person who made the overpayment
and other information and data available in the files of the state
commissioner of taxation and finance.
(b) Excessive withholding. If the amount allowable as a credit for tax
withheld from the taxpayer exceeds his or her tax to which the credit
relates, the excess shall be considered an overpayment.
(c) Overpayment by employer. If there has been an overpayment of tax
required to be deducted and withheld under section 11-1771, refund shall
be made to the employer only to the extent that the amount of the
overpayment was not deducted and withheld by the employer.
(d) Overpayment by a deceased person. Notwithstanding section thirteen
hundred ten of the surrogate's court procedure act, any overpayment by a
decedent not in excess of one thousand dollars may be refunded to the
decedent's surviving spouse unless the return for the decedent was filed
by his or her executor or administrator.
(e) Credits against estimated tax. The commissioner of taxation and
finance may prescribe regulations providing for the crediting against
the estimated income tax for any taxable year of the amount determined
to be an overpayment of the income tax for a preceding taxable year. If
any overpayment of income 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 income tax for the 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, except
upon request to the commissioner of taxation and finance on or before
the last day prescribed for the filing of the return for the succeeding
taxable year, determined with regard to any extension of time granted.
If good cause is shown for reversing the credit, the commissioner of
taxation and finance may, in his or her discretion, credit the
overpayment against a liability or refund the overpayment without
interest. Provided, the person who made the overpayment will not be
relieved of liability for any penalty imposed for a consequent
underpayment of estimated tax for the succeeding taxable year. The
decision of the commissioner of taxation and finance to grant or deny
the request is final and not subject to further administrative or
judicial review.
(f) Rule where no tax liability. If there is no tax liability for a
period in respect of which an amount is paid as income tax, such amount
shall be considered an overpayment.
(g) Assessment and collection after limitation period. If any amount
of income tax is assessed or collected after the expiration of the
period of limitations properly applicable thereto, such amount shall be
considered an overpayment.
(h) Cross reference. For provision barring application of article
fifty-two of the civil practice law and rules to any amount to be
refunded or credited to a taxpayer, see section seven of the tax law.
Section 11-1787
§ 11-1787 Limitations on credit or refund. (a) General. Claim for
credit or refund of an overpayment of income tax 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.
(b) Extension of time by agreement. If an agreement under the
provisions of paragraph two of subdivision (c) of section 11-1783
(extending the period for assessment of income tax) is made within the
period prescribed in subdivision (a) of this section 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 (a) of this section if a
claim had been filed on the date the agreement was executed.
(c) Notice of federal change or correction. A claim for credit or
refund of any overpayment of tax attributable to a federal change or
correction required to be reported pursuant to section 11-1759 shall be
filed by the taxpayer within two years from the time the notice of such
change or correction or such amended return was required to be filed
with the commissioner of taxation and finance. If the report or amended
return required by section 11-1759 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 change
or correction. The amount of such credit or refund shall not exceed the
amount of the reduction in tax attributable to such federal change,
correction or items amended on the taxpayer's amended federal income tax
return. 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.
(d) Overpayment attributable to net operating loss carryback. A claim
for credit or refund of so much of an overpayment as is attributable to
the application to the taxpayer of a net operating loss carryback 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 (b) of this section in respect of such
taxable year, or within the period prescribed in subdivision (c) of this
section, where applicable, in respect of the taxable year to which the
net operating loss is carried back, whichever expires the latest.
(e) Failure to file claim within prescribed period. No credit or
refund shall be allowed or made, except as provided in subdivision (f)
of this section or subdivision (d) of section 11-1790, after the
expiration of the applicable period of limitation specified in this
chapter, 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 this chapter.
(f) Effect of petition to tax commission. If a notice of deficiency
for a taxable year has been mailed to the taxpayer under section 11-1781
and if the taxpayer files a timely petition with the tax commission
under section 11-1789, it may determine that the taxpayer has made an
overpayment for such year (whether or not it also determines a
deficiency for such a 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:
(1) as to overpayments determined by a decision of the tax commission
which has become final; and
(2) as to any amount collected in excess of an amount computed in
accordance with the decision of the tax commission which has become
final; and
(3) as to any amount collected after the period of limitation upon the
making of levy for collection has expired; and
(4) as to any amount claimed as a result of a change or correction
described in subdivision (c) of this section.
(g) Limit on amount of credit or refund. The amount of overpayment
determined under subdivision (f) of this section shall, when the
decision of the tax commission has become final, be credited or refunded
in accordance with subdivision (a) of section 11-1786 and shall not
exceed the amount of tax which the tax commission determines as part of
its decision was paid:
(1) after the mailing of the notice of deficiency, or
(2) within the period which would be applicable under subdivision (a),
(b) or (c) of this section, if on the date of the mailing of the notice
of deficiency a claim had been filed (whether or not filed) stating the
grounds upon which the tax commission finds that there is an
overpayment.
(h) 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.
(i) Prepaid income tax. For purposes of this section, any tax paid by
the taxpayer before the last day prescribed for its payment, any income
tax withheld from the taxpayer during any calendar year, and any amount
paid by the taxpayer as estimated income tax for a taxable year shall be
deemed to have been paid by him or her on the fifteenth day of the
fourth month following the close of his or her taxable year with respect
to which such amount constitutes a credit or payment.
(j) Return and payment of withholding tax. Notwithstanding subdivision
(h) of this section, for purposes of this section with respect to any
withholding tax:
(1) if a return for any period ending with or within a calendar year
is filed before April fifteenth of the succeeding calendar year, such
return shall be considered filed on April fifteenth of such succeeding
calendar year; and
(2) if a tax with respect to remuneration paid during any period
ending with or within a calendar year is paid before April fifteenth of
the succeeding calendar year, such tax shall be considered paid on April
fifteenth of such succeeding calendar year.
(k) Cross reference. For provision barring refund of overpayment
credited against tax of a succeeding year, except for good cause shown,
see subdivision (e) of section 11-1786.
Section 11-1788
§ 11-1788 Interest on overpayment. (a) General. Notwithstanding the
provisions of section sixteen of the state finance law, interest shall
be allowed and paid as follows at the overpayment rate set by the
commissioner of taxation and finance pursuant to section 11-1797, or if
no rate is set, at the rate of six percent per annum upon any
overpayment in respect of the tax imposed by this chapter:
(1) from the date of the overpayment to the due date of an amount
against which a credit is taken;
(2) from the date of the overpayment to a date (to be determined by
the commissioner of taxation and 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.
(3) Late and amended returns and claims for credit or refund.
Notwithstanding paragraph one or two 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.
(4) Interest on certain refunds. To the extent provided for in
regulations promulgated by the commissioner of taxation and 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 three 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 not be
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 on an overpayment.
(5) Amounts of less than one dollar. No interest shall be allowed or
paid if the amount thereof is less than one dollar.
(b) Advance payment of tax, payment of estimated tax, and credit for
income tax withholding. The provisions of subdivisions (h) and (i) of
section 11-1787 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.
(c) Income tax refund within forty-five days of claim for overpayment.
If any overpayment of tax imposed by this chapter is credited or
refunded within forty-five days 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 forty-five days after such
return was filed, whichever is later, or within forty-five days after an
amended return was filed claiming such overpayment or within forty-five
days after a claim for credit or refund was filed on which such
overpayment was claimed, or within six months after a demand is filed
pursuant to paragraph six of subsection (b) of section six hundred
fifty-one of the tax law, 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 shall be considered as filed on such last
day.
(d) Refund of income tax caused by carryback. For purposes of this
section, if any overpayment of tax imposed by this chapter results from
a carryback of a net operating 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 arises. Such filing date shall be
determined without regard to extensions of time to file. For purposes of
subdivision (c) 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.
(e) No interest until return in processible form.
(1) For purposes of subdivisions (a) and (c) of this section, a return
shall not be treated as filed until it is filed in processible form.
(2) For purposes of paragraph one 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.
(f) Overpayment credited against past-due support, or against a
past-due legally enforceable debt, or a city of New York tax warrant
judgment debt, or defaulted guaranteed student, state university or city
university loans. If interest is payable pursuant to this section on
that portion of an overpayment of tax imposed by this chapter which is
certified by the state commissioner of taxation and finance to the state
comptroller as the amount to be credited against past-due support, or
against a past-due legally enforceable debt, or a city of New York tax
warrant judgment debt, or the amount of a default in repayment of a
guaranteed student, state university or city university loan, as the
case may be, pursuant to the provisions of section one hundred
seventy-one-c, section one hundred seventy-one-d, section one hundred
seventy-one-e, one hundred seventy-one-f or one hundred seventy-one-1 of
the tax law, such portion of such an overpayment shall cease to bear
interest on the date of such certification.
(g) Cross-reference. For provision with respect to interest after
failure to file notice of federal change under section 11-1759, see
subdivision (c) of section 11-1787.
Section 11-1789
§ 11-1789 Petition to tax commission. (a) General. The form of a
petition to the tax commission, and further proceedings before the tax
commission in any case initiated by the filing of a petition, shall be
governed by such rules as the tax commission shall prescribe. No
petition shall be denied in whole or in part without opportunity for a
hearing on reasonable prior notice. Such hearing shall be conducted by
one or more members of the tax commission, or by a hearing officer
designated by the tax commission to take evidence and report to the tax
commission. The tax commissioners shall, acting as a body, jointly
decide the case as quickly as practicable. Notice of the decision shall
be mailed promptly to the taxpayer by certified or registered mail at
his or her last known address, and such notice shall set forth the tax
commission's findings of fact and a brief statement of the grounds of
decision in each case decided in whole or in part adversely to the
taxpayer.
(b) Petition for redetermination of a deficiency. Within ninety days,
or one hundred fifty days if the notice is addressed to a person outside
of the United States, after the mailing of the notice of deficiency
authorized by section 11-1781, the taxpayer may file a petition with the
tax commission for a 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 (g) of section 11-1787.
(c) Petition for refund. A taxpayer may file a petition with the tax
commission for the amounts asserted in a claim for refund if:
(1) the taxpayer has filed a timely claim for refund with the tax
commission,
(2) the taxpayer has not previously filed with the tax commission a
timely petition under subdivision (b) of this section for the same
taxable year unless the petition under this subdivision relates to a
separate claim for credit or refund properly filed under subdivision (f)
of section 11-1787, and
(3) either: (A) six months have expired since the claim was filed, or
(B) the tax commission 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 tax commission. If a taxpayer
files a written waiver of the requirement that he or she 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) Assertion of deficiency after filing petition.
(1) Petition for redetermination of deficiency. If a taxpayer files
with the tax commission, a petition for redetermination of a deficiency,
the tax commission 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
11-1785, if claim therefor is asserted at or before the hearing under
rules of the tax commission.
(2) Petition for refund. If the taxpayer files with the tax commission
a petition for credit or refund for a taxable year, the tax commission
may:
(A) determine a deficiency for such year as to any amount of
deficiency asserted at or before the hearing under rules of the tax
commission, and within the period in which an assessment would be timely
under section 11-1783, or
(B) 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 commission.
(3) Opportunity to respond. A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the tax commission
under this subdivision.
(4) Restriction on further notices of deficiency. If the taxpayer
files a petition with the tax commission under this section, no notice
of deficiency under section 11-1781 may thereafter be issued by the tax
commission for the same taxable year, except in case of fraud or with
respect to a change or correction required to be reported under section
11-1759.
(e) Burden of proof. In any case before the tax commission under this
chapter, 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 tax
commission:
(1) whether the petitioner has been guilty of fraud with intent to
evade tax;
(2) 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;
(3) 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 a change or correction required to be
reported under section 11-1759, and of which change or correction the
tax commission had no notice at the time it mailed the notice of
deficiency; and
(4) whether any person is liable for a penalty under subdivision (q)
or (r) of section 11-1785.
(f) Evidence of related federal determination. Evidence of a federal
determination relating to issues raised in a case before the tax
commission under this section shall be admissible, under rules
established by the tax commission.
(g) Jurisdiction over other years. The tax commission 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 11-1790
§ 11-1790 Review of tax commission decision. (a) General. A decision
of the tax commission shall be subject to judicial review at the
instance of any taxpayer effected thereby in the manner provided by law
for the review of a final decision or action of administrative agencies
of the state. An application by a taxpayer for such review must be made
within four months after notice of the decision is sent by certified or
registered mail to the taxpayer.
(b) Judicial review exclusive remedy of taxpayer. The review of a
decision of the tax commission 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
this chapter.
(c) Assessment pending review; review bond. Irrespective of any
restrictions on the assessment and collection of deficiencies, the tax
commission may assess a deficiency after the expiration of the period
specified in subdivision (a) of this section, 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
his or her application for review is made, has paid the deficiency, has
deposited with the tax commission the amount of the deficiency, or has
filed with the tax commission a bond (which may be a jeopardy bond under
subdivision (h) of section 11-1794) 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 him or her 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 of New York, 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 commission is paid after the filing
of the review bond, such bond shall, at the request of the taxpayer, be
proportionately reduced.
(d) Credit, refund or abatement after review. If the amount of a
deficiency determined by the tax commission 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.
(e) Date of finality of tax commission decision. A decision of the tax
commission shall become final upon the expiration of the period
specified in subdivision (a) of this section 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
commission 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 commission shall be
deemed final on the date the notice of decision is sent by certified or
registered mail to the taxpayer.
Section 11-1791
§ 11-1791 Mailing rules; holidays; miscellaneous. (a) Timely mailing.
(1) If any return, 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 chapter is, after such period or such date,
delivered by United States mail to the tax commission, 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 tax commission, 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 or payment is sent by United States registered mail, such
registration shall be prima facie evidence that such document or payment
was delivered to the tax commission, bureau, office, officer or person
to which or to whom addressed. To the extent that the tax commission
shall prescribe by regulation, certified mail may be used in lieu of
registered mail under this section. This subdivision shall apply in the
case of postmarks not made by the United States post office only if and
to the extent provided by regulations of the tax commission.
(2)(A) Any reference in paragraph one 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 one of this
subdivision to a postmark by the United States mail 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 taxation
and finance finds that any delivery service designated by such secretary
is inadequate for the needs of the state, such commissioner may withdraw
such designation for purposes of this article. Such 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 article, or may withdraw any such designation if such
commissioner finds that a delivery service so designated is inadequate
for the needs of the state. Any reference in paragraph one of this
subdivision to the United States mail shall be treated as including a
reference to any delivery service designated by such commissioner and
any reference in paragraph one of this subdivision to a postmark by the
United States mail 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.
(B) 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 taxation and finance pursuant to the same criteria used
by the secretary for such designation 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 one of this
subdivision. If such commissioner finds that any equivalent of
registered or certified mail designated by such secretary or such
commissioner is inadequate for the needs of the state, such commissioner
may withdraw such designation for purposes of this article.
(b) Last known address. For purposes of this chapter, a taxpayer's
last known address shall be the address given in the last return filed
by such taxpayer, unless subsequent to the filing of such return the
taxpayer shall have notified the tax commission of a change of address.
(c) Last day a Saturday, Sunday or legal holiday. When the last day
prescribed under authority of this chapter (including any extension of
time) for performing any act falls on Saturday, Sunday, or a legal
holiday in the state of New York, 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 a legal holiday.
(d) Certificate; unfiled return. For purposes of this chapter, the
certificate of the tax commission to the effect that a tax has not been
paid, that a return 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 has not been filed, or that such information has not been
supplied.
(e) Attorney general; jurisdiction. The attorney general shall have
concurrent jurisdiction with any district attorney in the prosecution of
any offenses arising under article thirty-seven of the tax law with
respect to the tax imposed under this chapter.
Section 11-1792
§ 11-1792 Collection, levy and liens. (a) Collection procedures. The
taxes imposed by this chapter shall be collected by the tax commission,
and it may establish the mode or time for the collection of any amount
due it under this chapter if not otherwise specified. The tax commission
shall, upon request, give a receipt for any sum collected under this
chapter. The tax commission may authorize banks or trust companies which
are depositaries or financial agents of the state to receive and give a
receipt for any tax imposed under this chapter in such manner, at such
times, and under such conditions as the tax commission may prescribe;
and the tax commission 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 tax commission.
(b) Notice and demand for tax. The tax commission shall as soon as
practicable give notice to each person 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 dwelling or usual place of business of such
person or shall be sent by mail to such person's last known address.
Except where the tax commission 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.
(c) Issuance of warrant after notice and demand. If any person liable
under this chapter for the payment of any tax, addition to tax, penalty
or interest neglects or refuses to pay the same within twenty-one
calendar days after notice and demand therefor is given to such person
under subdivision (b) of this section (ten business days if the amount
for which such notice and demand is made equals or exceeds one hundred
thousand dollars), the commissioner of taxation and finance may within
six years after the date of such assessment issue a warrant under such
commissioner's official seal directed to the sheriff of any county of
the state, or to any officer or employee of the department of taxation
and finance, commanding him or her to levy upon and sell such person's
real and personal property for the payment of the amount assessed, with
the cost of executing the warrant, and to return such warrant to such
commissioner and pay to him or her the money collected by virtue thereof
within sixty days after the receipt of the warrant. If such commissioner
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 such
commissioner and upon failure or refusal to pay such tax or other amount
such commissioner may issue a warrant without regard to the twenty-one
day period (or ten-day period if applicable) provided in this
subdivision.
(d) Copy of warrant to be filed and lien to be created. Any sheriff or
officer or employee who receives a warrant under subdivision (c) of this
section 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 lien upon the title to and
interest in real, personal and other property of the taxpayer. Such lien
shall not apply to personal property unless such warrant is filed in the
department of state.
(e) Judgment. When a warrant has been filed with the county clerk the
tax commission shall, in the right of the city, be deemed to have
obtained judgment against the taxpayer for the tax or other amounts.
(f) Execution. The sheriff or officer or employee shall thereupon
proceed upon the warrant 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 taxation and 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.
(g) Taxpayer not a resident. Where a notice and demand under
subdivision (b) of this section shall have been given to a taxpayer who
is not then a resident, and it appears to the tax commission that it is
not practicable to find in this state property of the taxpayer
sufficient to pay the entire balance of tax or other amount owing by
such taxpayer who is not then a resident, the tax commission may, in
accordance with subdivision (c) of this section, issue a warrant
directed to an officer or employee of the department of taxation and
finance, a copy of which warrant shall be mailed by certified or
registered mail to the taxpayer at his or her last known address,
subject to the rules for mailing provided in subdivision (a) of section
11-1781. Such warrant shall command the officer or employee to proceed
in Albany 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 tax commission 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 tax commission
may also, in its discretion, designate agents or retain counsel for the
purpose of collecting, outside the state of New York, any unpaid taxes,
additions to tax, penalties or interest which have been assessed under
this chapter against taxpayers who are not residents of this state, 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 tax commission
shall deem proper and sufficient.
(h) Action by state for recovery of taxes. Action may be brought by
the attorney general at the instance of the tax commission in the name
of the city or both to recover the amount of any unpaid taxes, additions
to tax, penalties or interest which have been assessed under this
chapter within six years prior to the date the action is commenced.
(i) Release of lien. The tax commission, if it finds that the
interests of the city will not thereby be jeopardized, and upon such
conditions as it may require, may release any property from the lien of
any warrant for unpaid taxes, additions to tax, penalties and interest
filed pursuant to this section, and such release may be recorded in the
office of any recording officer in which such warrant has been filed.
Section 11-1793
§ 11-1793 Transferees. (a) 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 under this chapter, 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 donee, heir, legatee, devisee and distributee.
(b) Exceptions.
(1) If before the expiration of the period of limitations for
assessment of liability of the transferee, a claim has been filed by the
tax commission 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.
(2) If, before the expiration of the time prescribed in subdivision
(a) or the immediately preceding paragraph of this subdivision for the
assessment of the liability, the tax commission 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 of 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 (b) of
section 11-1787. 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 (b) of section
11-1787 on the amount of the credit or refund, the periods specified in
subdivision (a) of section 11-1787 shall be increased by the period from
the date of such expiration to the date of the agreement.
(c) Deceased transferor. If any person is deceased, the period of
limitation for assessment against such person shall be the period that
would be in effect if he or she had lived.
(d) Evidence. Notwithstanding the provisions of subdivision (e) of
section 11-1797 the tax commission shall use its 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 (e) of section 11-1789 for rule as
to burden of proof.
Section 11-1794
§ 11-1794 Jeopardy assessment. (a) Authority for making. If the tax
commission believes that the assessment or collection of a deficiency
will be jeopardized by delay, it shall, notwithstanding the provisions
of sections 11-1781 and 11-1796, 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 tax commission for
the payment thereof.
(b) 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 11-1781, then the tax commission
shall mail a notice under such section within sixty days after the
making of the assessment.
(c) Amount assessable before decision of tax commission. 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 commission. The
tax commission may, at any time before rendering its decision, abate
such assessment, or any unpaid portion thereof, to the extent that it
believes the assessment to be excessive in amount. The tax commission
may in its decision redetermine the entire amount of the deficiency and
of all amounts assessed at the same time in connection therewith.
(d) Amount assessable after decision of tax commission. If the
jeopardy assessment is made after the decision of the tax commission is
rendered, such assessment may be made only in respect of the deficiency
determined by the tax commission in its decision.
(e) Expiration of right to assess. A jeopardy assessment may not be
made after the decision of the tax commission has become final or after
the taxpayer has made an application for review of the decision of the
tax commission.
(f) Collection of unpaid amounts. When a petition has been filed with
the tax commission and when the amount which should have been assessed
has been determined by a decision of the tax commission 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 tax commission, 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
11-1786 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
commission.
(g) Abatement if jeopardy does not exist. The tax commission may abate
the jeopardy assessment if it finds that jeopardy does not exist. Such
abatement may not be made after a decision of the tax commission in
respect of the deficiency has been rendered or, if no petition is filed
with the tax commission, 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.
(h) Bond to stay collection. The collection of the whole or any amount
of any jeopardy assessment may be stayed by filing with the tax
commission, 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 at 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 11-1781 is mailed to the taxpayer in a lesser amount, the bond
shall, at the request of the taxpayer, be proportionately reduced.
(i) Petition to tax commission. If the bond is given before the
taxpayer has filed his or her petition under section 11-1789, 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 commission which
has become final. If the tax commission 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 commission is rendered.
(j) Stay of sale of seized property pending tax commission decision.
Where a jeopardy assessment is made, the property seized for the
collection of the tax shall not be sold:
(1) if subdivision (b) of this section is applicable, prior to the
issuance of the notice of deficiency and the expiration of the time
provided in section 11-1789 for filing a petition with the tax
commission, and
(2) if a petition is filed with the tax commission (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 (a) of this section were not applicable. Such
property may be sold if the taxpayer consents to the sale, or if the tax
commission determines that the expenses of conservation and maintenance
will greatly reduce the net proceeds, or if the property is perishable.
(k) Interest. For the purpose of subdivision (a) of section 11-1784,
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.
(l) Early termination of taxable year. If the tax commission finds
that a taxpayer designs quickly to depart from this state or to remove
his or her property therefrom, or to conceal himself or herself or his
or her property therein, or to do any other act tending to prejudice or
to render wholly or partly ineffectual proceedings to collect the city
personal income tax for the current or the preceding taxable year unless
such proceedings be brought without delay, the tax commission 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 or 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 tax commission made as herein provided, whether made
after notice to the taxpayer or not, shall be for all purposes
presumptive evidence of jeopardy.
(m) Reopening of taxable period. Notwithstanding the termination of
the taxable period of the taxpayer by the tax commission, as provided in
subdivision (1), the tax commission may reopen such taxable period each
time the taxpayer is found by the tax commission to have received
income, within the current taxable year, since the termination of such
period. A taxable period so terminated by the tax commission may be
reopened by the taxpayer if he or she files with the tax commission a
true and accurate return of taxable income and credits allowed under
this chapter for such taxable period, together with such other
information as the tax commission may by regulations prescribe.
(n) Furnishing of bond where taxable year is closed by the tax
commission. Payment of taxes shall not be enforced by any proceedings
under the provisions of subdivision (1) of this section prior to the
expiration of the time otherwise allowed for paying such taxes if the
taxpayer furnishes, under regulations prescribed by the tax commission,
a bond to insure the timely making of returns with respect to, and
payment of, such taxes or any city personal income taxes for prior
years.
Section 11-1795
§ 11-1795 Criminal penalties; cross-reference. For criminal penalties,
see article thirty-seven of the tax law.
Section 11-1796
§ 11-1796 Income taxes of members of armed forces and victims of
certain terrorist attacks. (a) Time to be disregarded. In the case of
an individual serving in the armed forces of the United States, or
serving in support of such armed forces, in an area designated by the
president of the United States by executive order as a "combat zone" at
any time during the period designated by the president by executive
order as the period of combatant activities in such zone, or
hospitalized inside or outside the state as a result of injury received
while serving in such an area during such time, the period of service in
such area, plus the period of continuous hospitalization inside or
outside the state attributable to such injury, and the next one hundred
eighty days thereafter, shall be disregarded in determining, under this
chapter, in respect of the city personal income tax liability (including
any interest, penalty, or addition to the tax) of such individual:
(1) Whether any of the following acts was performed within the time
prescribed therefor:
(A) filing any return of income tax (except withholding tax);
(B) payment of any income tax (except withholding tax) or any
installment thereof or of any other liability in respect thereof;
(C) filing a petition with the tax commission for credit or refund or
for redetermination of a deficiency, or application for review of a
decision rendered by the tax commission;
(D) allowance of a credit or refund of city personal income tax;
(E) filing a claim for credit or refund of city personal income tax;
(F) assessment of city personal income tax;
(G) giving or making any notice or demand for the payment of any city
personal income tax, or with respect to any liability to the city in
respect of such income tax;
(H) collection, by the tax commission, by levy or otherwise of the
amount of any liability in respect of such income tax;
(I) bringing suit by the city, the state, or any officer, on their
behalf, in respect of any liability in respect of such income tax; and
(J) any other act required or permitted under this chapter or
specified in regulations prescribed under this section by the tax
commission.
(2) The amount of any credit or refund.
(b) Special rule for overpayments. (1) Subdivision (a) of this section
shall not apply for purposes of determining the amount of interest on
any overpayment of tax.
(2) If an individual is entitled to the benefits of subdivision (a) of
this section with respect to any return, amended return, or claim for
credit or refund, and such return, amended return or claim is timely
filed (determined after the application of such subdivision), paragraph
three of subdivision (a) and subdivision (c) of section 11-1788 of this
title shall not apply.
(c) Action taken before ascertainment of right to benefits. The
assessment or collection of the tax imposed by this chapter or of any
liability in respect of such tax, or any action or proceeding by or on
behalf of the city in connection therewith, may be made, taken, begun,
or prosecuted in accordance with law, without regard to the provisions
of subdivision (a) of this section, unless prior to such assessment,
collection, action, or proceeding it is ascertained that the person
concerned is entitled to the benefits of subdivision (a) of this
section.
(d) Members of armed forces dying in action. In the case of any person
who dies while in active service as a member of the armed forces of the
United States, if such death occurred while serving in a combat zone
during a period of combatant activities in such zone, as described in
subdivision (a) of this section, or as a result of wounds, disease or
injury incurred while so serving, the tax imposed by this chapter shall
not apply with respect to the taxable year in which falls the date of
his or her death, or with respect to any prior taxable year ending on or
after the first day so served in a combat zone, and no returns shall be
required in behalf of such person or his or her estate for such year;
and the tax for any such taxable year which is unpaid at the date of
death, including interest, additions to tax and penalties, if any, shall
not be assessed and, if assessed, the assessment shall be abated and, if
collected, shall be refunded to the legal representative of such estate
if one has been appointed and has qualified, or, if no legal
representative has been appointed or has qualified, to the surviving
spouse.
(e) Treatment of individuals performing Desert Shield services. (1)
Any individual who performed Desert Shield services shall be entitled to
the benefits of subdivisions (a) and (b) of this section in the same
manner as if such services were services referred to in subdivision (a)
of this section.
(2) For purposes of this subdivision, the term "Desert Shield
services" means any services in the armed forces of the United States or
in support of such armed forces if
(A) such services are performed in the area designated by the
president of the United States as the "Persian Gulf Desert Shield area",
and
(B) such services are performed during the period beginning on August
second, nineteen hundred ninety, and ending on the date on which any
portion of the area referred to in subparagraph (A) of this paragraph is
designated by the president as a combat zone pursuant to section one
hundred twelve of the internal revenue code.
(f) Relief for personnel under hostile fire. For purposes of this
section, members of the armed forces of the United States who perform
military service in an area outside an area designated by the president
of the United States by executive order as a "combat zone", which
service is in direct support of military operations in such zone and is
performed under conditions which qualify such members for hostile fire
pay, as authorized under subdivision (a) of section nine of the federal
uniformed services pay act of nineteen hundred sixty-three, shall,
during the period of such qualifying service, be deemed to have served
in such combat zone.
(g) Application to spouse. The provisions of subdivisions (a), (b),
(c), (e) and (f) of this section shall apply to the spouse of any
individual entitled to the benefits of subdivision (a) of this section;
provided, however, that such subdivisions shall not apply for any spouse
for any taxable year beginning more than two years after the date
designated under section one hundred twelve of the internal revenue code
as the date of termination of combatant activities in a combat zone.
(h) Individuals dying as a result of certain attacks. (1) General. In
the case of a specified terrorist victim, any tax imposed by this
chapter shall not apply:
(A) with respect to the taxable year in which falls the date of death;
and
(B) with respect to any prior taxable year in the period beginning
with the last taxable year ending before the taxable year in which the
wounds or injury referred to in paragraph three of this subdivision were
incurred.
(2) Taxation of certain benefits. Paragraph one of this subdivision
shall not apply to the amount of any tax imposed by this chapter which
would be computed by only taking into account the items of income, gain,
or other amounts determined by the United States secretary of the
treasury to be taxable pursuant to paragraph 692(d)(3) of the internal
revenue code.
(3) Specified terrorist victim. For purposes of this subdivision, the
term "specified terrorist victim" means any decedent who dies as a
result of wounds or injury incurred as a result of the terrorist attacks
against the United States on September eleventh, two thousand one,
provided, however, such term shall not include any individual identified
by the attorney general of the United States to have been a participant
or conspirator in any such attack or a representative of such an
individual.
Section 11-1797
§ 11-1797 General powers of tax commission. (a) General. The tax
commission shall administer and enforce the tax imposed by this chapter
and it is authorized to make such rules and regulations, and to require
such facts and information to be reported, as it may deem necessary to
enforce the provisions of this chapter.
(b) Examination of books and witnesses. (1) The tax commission for the
purpose of ascertaining the correctness of any return, or for the
purpose of making an estimate of taxable income of any person, shall
have power to examine or to cause to have examined, by any agent or
representative designated by it 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 person rendering the
return or any officer or employee of such person, or the attendance of
any other person having knowledge in the premises, and may take
testimony and require proof material for its information, with power to
administer oaths to such person or persons.
(2) The tax commission may take any action under paragraph one of this
subdivision to inquire into the commission of any offense connected with
the administration or enforcement of this chapter, provided, however,
that notwithstanding the provisions of section 11-1774 of this chapter
no such action shall be taken after a referral by the department or the
tax commission to the attorney general, a district attorney or any other
prosecutorial agency is in effect.
(c) Abatement authority. The tax commission, of its own motion, may
abate any small unpaid balance of an assessment of city personal income
tax, or any liability in respect thereof, if the tax commission
determines under uniform rules prescribed by it that the administration
and collection costs involved would not warrant collection of the amount
due. It may also abate, of its 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.
(d) Special refund authority. Where no questions of fact or law are
involved and it appears from the records of the tax commission 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 chapter, the tax commission
at any time, without regard to any period of limitations, shall have the
power, upon making a record of its reasons therefor in writing, to cause
such moneys so paid and being erroneously and illegally held to be
refunded and to issue therefor its certificate to the comptroller.
(e) Secrecy requirement and penalties for violation. (1) Except in
accordance with proper judicial order or as otherwise provided by law,
it shall be unlawful for the tax commission, any tax commissioner, any
officer or employee of the department of taxation and finance, any
person engaged or retained by such department on an independent contract
basis, any depositary to which any return may be delivered as provided
in subdivision (h) or (i) of this section, any officer or employee of
such depositary, or any person who, pursuant to this section, is
permitted to inspect any report or return or to whom a copy, an abstract
or a portion of any report or return is furnished, or to whom any
information contained in any report or return is furnished, to divulge
or make known in any manner the amount of income or any particulars set
forth or disclosed in any report or return required under this chapter.
(2) 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 tax commission in an action or proceeding under the
provisions of this chapter, the tax law or in any other action or
proceeding involving the collection of a tax due under this chapter or
such tax law to which the city, state or the tax commission 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, returns or of the facts shown
thereby, as are pertinent to the action or proceeding and no more. The
tax commission may, nevertheless, publish a copy or a summary of any
decision rendered after the hearing required under section 11-1789.
(3) Nothing herein shall be construed to prohibit the delivery by the
state commissioner of taxation and finance to the county clerk of a
county within the city of New York of a mailing list of individuals to
whom income tax forms are mailed by the state commissioner of taxation
and finance for the sole purpose of compiling a list of prospective
jurors as provided in article sixteen of the judiciary law. Provided,
however, such delivery shall only be made pursuant to an order of the
chief administrator of the courts, appointed pursuant to section two
hundred ten of such law. No such order may be issued unless such chief
administrator is satisfied that such mailing list is needed to compile a
proper list of prospective jurors for the county for which such order is
sought and that, in view of the responsibilities imposed by the various
laws of the state on the department of taxation and finance, it is
reasonable to require the state commissioner of taxation and finance to
furnish such list. Such order shall provide that such list shall be used
for the sole purpose of compiling a list of prospective jurors and that
such county clerk shall take all necessary steps to insure that the list
is kept confidential and that there is no unauthorized use or disclosure
of such list. Furthermore, nothing herein shall be construed to prohibit
the delivery to a taxpayer or his or her duly authorized representative
of a certified copy of any return or report filed in connection with his
or her tax or 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 attorney general or other legal
representatives of the state or city of the report or return of any
taxpayer who shall bring action to set aside or review the tax based
thereon, or against whom an action or proceeding under this chapter has
been recommended by the commissioner of taxation and finance, the
corporation counsel or the attorney general or has been instituted, or
the inspection of the reports or returns required under this chapter by
the comptroller or duly designated officer or employee of the state
department of audit and control, for purposes of the audit of a refund
of any tax paid by a taxpayer under this chapter, or the furnishing to
the state department of social services of the amount of an overpayment
of tax and interest thereon certified to the comptroller to be credited
against past-due support pursuant to section one hundred seventy-one-c
of the tax law and of the name and social security number of the
taxpayer who made such overpayment or the furnishing to the New York
state higher education services corporation of the amount of an
overpayment of tax and interest thereon certified to the comptroller to
be credited against the amount of a default in repayment of a guaranteed
student loan pursuant to section one hundred seventy-one-d of the tax
law and of the name and social security number of the taxpayer who made
such overpayment or the furnishing to the state university of New York
or the city university of New York or the attorney general on behalf of
such state or city university the amount of an overpayment of tax and
interest thereon certified to the comptroller to be credited against the
amount of a default in repayment of a state university loan or city
university loan pursuant to section one hundred seventy-one-e of the tax
law and of the name and social security number of the taxpayer who made
such overpayment, or the disclosing to a state agency, pursuant to
section one hundred seventy-one-f of the tax law, of the amount of an
overpayment and interest thereon certified to the comptroller to be
credited against a past-due legally enforceable debt owed to such agency
and of the name and social security number of the taxpayer who made such
overpayment, or the disclosing to the commissioner of finance of the
city of New York, pursuant to section one hundred seventy-one-1 of the
tax law, of the amount of an overpayment and interest thereon certified
to the comptroller to be credited against a city of New York tax warrant
judgment debt and of the name and social security number of the taxpayer
who made such overpayment. Reports and returns shall be preserved for
three years and thereafter until the state commissioner of taxation and
finance orders them to be destroyed.
(3-a) Notwithstanding the provisions of paragraph one of this
subdivision, the state commissioner of taxation and finance or the
commissioner of finance may disclose to a taxpayer or a taxpayer's
related member, as defined in subdivision (t) of section 11-1712 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 state commissioner of taxation and
finance under this chapter or the New York state tax law or the
commissioner of finance under this title.
(4) (A) Any officer or employee of the state, who willfully violates
the provisions of this subdivision shall be dismissed from office and be
incapable of holding any public office in this state for a period of
five years thereafter.
(B) Cross-reference: For criminal penalties, see article thirty-seven
of the tax law.
(f) Cooperation with the United States and other states.
Notwithstanding the provisions of subdivision (e) of this section, the
tax commission may permit the secretary of the treasury of the United
States or his or her delegates, or the proper tax officer of any state
imposing an income tax upon the incomes of individuals, or the
authorized representative of either such officer, to inspect any return
filed under this chapter, or may furnish to such officer or his or her
authorized representative an abstract of any such return or supply him
or her with information concerning an item contained in any such return,
or disclosed by any investigation of tax liability under this chapter,
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 other state, as the case may be, grant substantially
similar privileges to the commission or officer of this state charged
with the administration of the tax imposed by this chapter and such
information is to be used for tax purposes only; and provided further
the commissioner of taxation and finance may furnish to the commissioner
of internal revenue or his or her authorized representative such returns
filed under this chapter and other tax information, as he or she may
consider proper, for use in court actions or proceedings under the
internal revenue code, whether civil or criminal, where a written
request therefor has been made to the commissioner of taxation and
finance by the secretary of the treasury of the United States or his or
her delegates, provided the laws of the United States grant
substantially similar powers to the secretary of the treasury of the
United States or his or her delegates. Where the commissioner of
taxation and finance has so authorized use of returns and other
information in such actions or proceedings, officers and employees of
the department of taxation and finance may testify in such actions or
proceedings in respect to such returns or other information.
(g) Cooperation with the cities of the state of New York.
Notwithstanding the provisions of subdivision (e) of this section, the
tax commission may permit the proper city officer of any city of the
state of New York imposing a personal income tax upon the incomes of
residents, or an unincorporated business income tax, or an earnings tax
on nonresidents, or the authorized representative of any such officer,
to inspect any return filed under this chapter, or may furnish to such
officer or his or her authorized representative an abstract of any such
return or supply him or her with information concerning an item
contained in any such return, or disclosed by any investigation of tax
liability under this chapter, but such permission shall be granted or
such information furnished to such officer or his or her representative
only if the local laws of such city grant substantially similar
privileges to the commission or officer of this state charged with the
administration of the tax imposed by this chapter and such information
is to be used for tax purposes only; and provided further the
commissioner of taxation and finance may furnish to such city officer or
the legal representative of such city such returns filed under this
chapter and other tax information, as he or she may consider proper, for
use in court actions or proceedings under such local law, whether civil
or criminal, where a written request therefor has been made to the
commissioner of taxation and finance by such city officer or his or her
delegate, provided the local law of such city grants substantially
similar powers to such city officer or his or her delegate. Where the
commissioner of taxation and finance has so authorized use of returns
and other information in such actions or proceedings, officers and
employees of the department of taxation and finance may testify in such
actions or proceedings in respect to such returns or other information.
(h) Withholding returns. Notwithstanding the provisions of subdivision
(e) of this section the tax commission in its discretion, when making
deposits, pursuant to section 11-1798, of taxes withheld by employers,
may deliver to the depositary the withholding returns filed by such
employers as provided in section 11-1774, for the purpose of insuring
that all money so deposited shall be correctly credited to taxpayers'
accounts.
(i) Filing returns and making payments to depository banks.
Notwithstanding the provisions of subdivision (e) of this section, the
tax commission, in its discretion, may require or permit any or all
individuals, estates or trusts 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 tax commission and to file
reports and returns with such banks, banking houses or trust companies
as agents of the tax commission, in lieu of making any such payment to
the tax commission. However, the tax commission shall designate only
such banks, banking houses or trust companies as are or shall be
designated by the comptroller as depositories pursuant to section
11-1798.
(j) (1) Authority to set interest rates. The commissioner of taxation
and finance shall set the overpayment and underpayment rates of interest
to be paid pursuant to sections 11-1784, 11-1785 and 11-1788 of this
subchapter, but if no such rates of interest are set, such overpayment
rate shall be deemed to be set at six percent per annum and the
underpayment rate shall be deemed to be set at seven and one-half
percent per annum. Such rates shall be the rates prescribed by
paragraphs two and four of this subdivision, but the underpayment rate
shall not be less than seven and one-half percent per annum. Any such
rates set by such commissioner 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.
(2) Rates of interest. (A) Overpayment rate. The overpayment rate of
interest set under this subdivision shall be the sum of (i) the federal
short-term rate as provided under paragraph three of this subdivision,
plus (ii) two percentage points.
(B) Underpayment rate. The underpayment rate of interest set under
this subdivision shall be the sum of (i) the federal short-term rate as
provided under paragraph three of this subdivision, plus (ii) five and
one-half percentage points.
(3) Federal short-term rate. For the 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 clauses (ii) and (iii) 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 individual estimated tax. In determining the
addition to tax under subdivision (c) of section 11-1785 for failure to
pay estimated tax for any taxable year, the federal short-term rate
which applies during the third month following the taxable year shall
also apply during the first fifteen days of the fourth month following
such taxable year.
(iii) 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
rate of interest for the month of September, nineteen hundred
eighty-nine.
(4) Notwithstanding the provisions of paragraph two of this
subdivision to the contrary, in the case of interest payable by an
employer with respect to income taxes required to be withheld and paid
over by him or her pursuant to the provisions of subchapter four of this
chapter and with respect to interest payable to an employer pursuant to
subdivision (c) of section 11-1786, the rates of interest prescribed by
this section shall be the overpayment and underpayment rates of interest
prescribed in paragraph two of subsection (e) of section one thousand
ninety-six of the tax law.
(5) In computing the amount of any interest required to be paid under
this article by the commissioner of taxation and 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 (c) of section 11-1785.
(6) Publication of interest rates. The commissioner of taxation and
finance shall cause to be published in the section for miscellaneous
notices in the state register, 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 two of
section one hundred two of the state administrative procedure act
relating to the definition of a rule.
(7) Cross-reference. For provisions relating to the power of the
commissioner of taxation and finance to abate small amounts of interest,
see subdivision (c) of this section.
(k) Disclosure of collection activities with respect to joint return.
Notwithstanding the provisions of subdivision (e) of this section, if
any deficiency of tax with respect to a joint return is assessed and the
individuals filing such return are no longer married or no longer reside
in the same household, upon request in writing by either of such
individuals, the commissioner of taxation and finance shall disclose in
writing to the individual making the request whether such commissioner
has attempted to collect such deficiency from such other individual, the
general nature of such collection activities, and the amount collected.
The preceding sentence shall not apply to any deficiency which may not
be collected by reason of expiration of time within which to issue a
warrant under subdivision (c) of section 11-1792 of this title or within
which to collect such tax by execution and levy or by court proceeding.
(l) Disclosure of certain information where more than one person is
subject to penalty. If the commissioner of taxation and finance
determines that a person is liable for a penalty under subdivision (g)
of section 11-1785 of this title with respect to any failure, upon
request in writing of such person, such commissioner shall disclose in
writing to such person (1) the name of any other person whom such
commissioner has determined to be liable for such penalty with respect
to such failure, and (2) whether such commissioner has attempted to
collect such penalty from such other person, the general nature of such
collection activities, and the amount collected.
Section 11-1798
§ 11-1798 Deposit and disposition of revenues. All revenue collected
by the state commissioner of taxation and finance from the taxes imposed
pursuant to this chapter or chapter nineteen of this title shall be
deposited daily with such responsible banks, banking houses or trust
companies, as may be designated by the state comptroller, to the credit
of the comptroller, in trust for the city. Such deposits shall be kept
in trust and separate and apart from all other moneys in the possession
of the comptroller. The state comptroller shall require adequate
security from all such depositories of such revenue collected by the
state commissioner of taxation and finance. The state comptroller shall
retain in his or her hands such amounts as the commissioner of taxation
and finance may determine to be necessary for refunds in respect to the
taxes imposed by this chapter and such chapter nineteen and for
reasonable costs of the state commissioner of taxation and finance in
administering, collecting and distributing such taxes, out of which the
comptroller shall pay any refunds of such taxes to which taxpayers shall
be entitled under this chapter and such chapter nineteen and except
further that he shall pay to a non-obligated spouse that amount of
overpayment of tax imposed pursuant to the authority of article thirty
of the New York state tax law or former article two-E of the general
city law and the interest on such amount which has been credited
pursuant to section one hundred seventy-one-c, one hundred
seventy-one-d, one hundred seventy-one-e, one hundred seventy-one-f or
one hundred seventy-one-l of the New York state tax law and which is
certified to him by the commissioner of taxation and finance as the
amount due such non-obligated spouse pursuant to paragraph six of
subsection (b) of section six hundred fifty-one of the New York state
tax law, and he shall deduct a like amount which he shall pay into the
treasury to the credit of the general fund from amounts subsequently
payable to the department of social services, the state university of
New York, the city university of New York, the higher education services
corporation, or to the revenue arrearage account or special offset
fiduciary account pursuant to section ninety-one-a or ninety-one-c of
the state finance law, as the case may be, whichever had been credited
the amount originally withheld from such overpayment and, with respect
to amounts originally withheld from such overpayment pursuant to section
one hundred seventy-one-l of the tax law and paid to the city of New
York, the comptroller shall collect a like amount from the city of New
York. The state comptroller, after reserving such refund fund and such
costs shall, on or before the fifteenth day of each month, pay to the
chief fiscal officer of the city the balance of such taxes collected, to
be paid into the treasury of the city to the credit of the general fund
except that he shall pay to the state department of social services that
amount of overpayments of the taxes imposed pursuant to this chapter or
chapter nineteen of this title and the interest on such amount which is
certified to him by the state commissioner of taxation and finance as
the amount to be credited against past-due support pursuant to
subdivision six of section one hundred seventy-one-c of the New York
state tax law and except that he shall pay to the New York state higher
education services corporation that amount of overpayments of the taxes
imposed pursuant to this chapter or chapter nineteen of this title and
the interest on such amount which is certified to him by the state
commissioner of taxation and finance as the amount to be credited
against the amount of defaults in repayment of guaranteed student loans
pursuant to subdivision five of section one hundred seventy-one-d of the
New York state tax law and except that he shall pay to the state
university of New York or the city university of New York, respectively,
that amount of overpayments of the taxes imposed pursuant to this
chapter or chapter nineteen of this title and the interest on such
amount which is certified to him by the state commissioner of taxation
and finance as the amount to be credited against the amount of defaults
in repayment of state university or city university loans pursuant to
subdivision six of section one hundred seventy-one-e of the New York
state tax law, and except further that, notwithstanding any other
provision of law, he shall credit to the revenue arrearage account,
pursuant to section ninety-one-a of the state finance law, that amount
of overpayments of the taxes imposed pursuant to this chapter or chapter
nineteen of this title and the interest on such amount which is
certified to him by the state commissioner of taxation and finance as
the amount to be credited against a past-due legally enforceable debt
owed to a state agency pursuant to paragraph (a) of subdivision six of
section one hundred seventy-one-f of the New York state tax law,
provided, however, he shall credit to the special offset fiduciary
account, pursuant to section ninety-one-c of the state finance law, any
such amount creditable as a liability as set forth in paragraph (b) of
subdivision six of section one hundred seventy-one-f of the tax law, and
except further that he shall pay to the city of New York that amount of
overpayments of tax imposed pursuant to this chapter or chapter nineteen
of this title and the interest on such amount which is certified to him
by the state commissioner of taxation and finance as the amount to be
credited against city of New York tax warrant judgment debt pursuant to
section one hundred seventy-one-l of the New York state tax law. The
amount deducted for administering, collecting and distributing such
taxes during such monthly period shall be paid by the state comptroller
into the general fund of the state treasury to the credit of the state
purposes fund therein. The first payment to such chief fiscal officer
shall be made on or before March fifteenth, nineteen hundred
seventy-six, which payment shall represent the balance of revenue after
provision for refund and such reasonable costs, with respect to taxes
collected from January first, nineteen hundred seventy-six through
February twenty-ninth, nineteen hundred seventy-six. Subsequent payments
shall be made on or before April fifteenth, nineteen hundred seventy-six
and on or before the fifteenth day of each succeeding month thereafter,
and shall represent the balance of revenue with respect to taxes
collected the preceding calendar month. The amounts so payable shall be
certified to the state comptroller by the state commissioner of taxation
and finance or his or her delegate, either of whom shall not be held
liable for any inaccuracy in such certificate. Where the amount so paid
over to such chief fiscal officer is more or less than the amount then
due such city, the amount of overpayment or underpayment shall be
certified to the state comptroller by the state commissioner of taxation
and finance or his or her delegate, either of whom shall not be held
liable for any inaccuracy in such certificate. The amount of overpayment
or underpayment shall be so certified to the state comptroller as soon
after the discovery of the overpayment or underpayment as reasonably
possible and subsequent payments by the state comptroller to such chief
fiscal officer shall be adjusted by subtracting the amount of any such
overpayment from, or by adding the amount of any such underpayment to
such number of subsequent payments and distributions as the state
comptroller and the state commissioner of taxation and finance shall
consider reasonable in view of the amount of the overpayment or
underpayment and all other facts and circumstances.
Section 11-1800
§ 11-1800 Enforcement with other taxes. (a) If there is assessed a tax
under this chapter and there is also assessed a tax or taxes against the
same taxpayer pursuant to article twenty-two of the tax law or under
chapter nineteen of this title and if the tax commission takes action
under such article twenty-two or under such chapter nineteen with
respect to the enforcement and collection of the tax or taxes assessed
under such articles and/or chapter, the tax commission shall, wherever
possible, accompany such action with a similar action under similar
enforcement and collection provisions of this chapter.
(b) Any moneys collected as a result of such joint action shall be
deemed to have been collected in proportion to the amounts due,
including tax, penalties, interest and additions to tax, under article
twenty-two of the tax law and this city income tax.
(c) Whenever the tax commission takes any action with respect to a
deficiency of income tax under article twenty-two of such law or under
chapter nineteen of this title, other than the action set forth in
subdivision (a) of this section, it may in its discretion accompany such
action with a similar action under such city income tax.
Section 11-1801
§ 11-1801 Administration, collection and review. (a) Except as
otherwise provided in this chapter, any tax imposed by this chapter
shall be administered and collected by the tax commission in the same
manner as the tax imposed by article twenty-two of the tax law is
administered and collected by such commission. Whenever there is joint
collection of state and city personal income taxes, it shall be deemed
that such collections shall represent proportionately the applicable
state and city personal income taxes in determining the amount to be
remitted to the city.
(b) The tax commission, in its 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 to such banks, banking houses or trust companies designated by
the tax commission and to file returns with such banks, banking houses
or trust companies, as agent of the tax commission, in lieu of paying a
tax imposed by this chapter directly to the tax commission. However, the
tax commission shall designate only such banks, banking houses or trust
companies which are designated by the comptroller as depositories of the
state.
(c) Notwithstanding any other provisions of this chapter, the tax
commission may require:
(1) the filing of any or all of the following:
(A) a combined return which, in addition to the return provided for in
section 11-1751, may also include any or both of the returns required to
be filed by a resident individual of New York state pursuant to the
provisions of section six hundred fifty-one of the tax law and which may
be required to be filed by such individual pursuant to chapter nineteen
of this title and
(B) a combined employer's return which, in addition to the employer's
return provided for by this chapter, may also include any or both of the
employer's returns required to be filed by the same employer pursuant to
the provisions of section six hundred seventy-four of such law and
required to be filed by such employer pursuant to such chapter nineteen
of this title and
(2) where a combined return or employer's return is required, and with
respect to the payment of estimated tax, the tax commission may also
require the payment to it of a single amount which shall equal the total
of the amounts which would have been required to be paid with the
returns or employer's returns or in payment of estimated tax pursuant to
the provisions of article twenty-two of such tax law, and the provisions
of this chapter as if no combined return or employer's return were
required.
Section 11-1802
§ 11-1802 Construction. This chapter shall be construed and enforced
in conformity with article thirty of the tax law, as added to such law
by chapter eight hundred eighty-one of the laws of nineteen hundred
seventy-five, pursuant to which article it is enacted.
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.
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