Section 11-1923
§ 11-1923 Notice of deficiency. (a) General. If upon examination of a
taxpayer's return under this chapter the commissioner determines that
there is a deficiency of tax, he or she may mail a notice of deficiency
to the taxpayer. If a taxpayer fails to file a return required under
this chapter, the commissioner is authorized to estimate the taxpayer's
wages and net earnings from self-employment or the wages from which
taxes are required to be deducted and withheld and the tax thereon, from
any information in the commissioner's possession, and to mail a notice
of deficiency to the taxpayer. A notice of deficiency shall be mailed by
certified or registered mail to the taxpayer at such taxpayer's last
known address in or out of the city. If the taxpayer is deceased or
under a legal disability, a notice of deficiency may be mailed to or her
last know address in or out of the city, unless the commissioner has
received notice of the existence of a fiduciary relationship with
respect to the taxpayer.
(b) Notice of deficiency as assessment. The notice of deficiency 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.
(c) Restrictions on collection and levy. No notice and demand for
payment of an assessment of a deficiency in tax made by a notice of
deficiency and no levy or proceeding in court for its collection shall
be made, begun or prosecuted, except as otherwise provided in section
11-1937 of this subchapter, 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 commissioner, until the
decision of the commissioner has become final. After a petition has been
filed the restriction provided herein shall not apply to such part of
the deficiency as is not contested by the petition. For exception in the
case of judicial review of the decision of the commissioner, see
subdivision (c) of section 11-1932 of this subchapter.
(d) Exceptions for mathematical errors. If a mathematical error
appears on a return (including an overstatement of the credit for tax
withheld at the source or of the amount paid as estimated tax), the
commissioner 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 11-1929 of
this subchapter (limiting credits or refunds after petition to the
commissioner), or subdivision (b) of section 11-1931 of this subchapter
(authorizing the filing of a petition with the commissioner based on a
notice of deficiency) nor shall collection of such assessment be
prohibited by the provisions of subdivision (c) of this section.
(e) Exception where change in federal or New York state taxable income
is not reported (1) If the taxpayer fails to comply with section 11-1922
of this chapter in not reporting a change or correction increasing his
or her federal or New York state taxable income or self-employment
income as reported on such taxpayer's federal or New York state tax
return or in not reporting a change or correction which is treated in
the same manner as if it were a deficiency for federal or New York state
tax purposes or in not filing an amended return or in not reporting the
execution of a notice of waiver or an assessment described in such
section, instead of the mode and time of assessment and collection
provided for in subdivision (b) of this section, the commissioner may
assess a deficiency based upon such changed or corrected federal or New
York state taxable income or self-employment income 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 and
subject to collection procedures on the date such notice is mailed
unless within thirty days after the mailing of such notice a report of
the federal or New York state change or correction or an amended return,
where such return was required by section 11-1922 of this chapter is
filed accompanied by a statement showing wherein such federal or New
York state determination of 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 11-1929 of this
subchapter (limiting credits or refunds after petition to the
commissioner), or subdivision (b) of section 11-1931 of this subchapter
(authorizing the filing of a petition with the commissioner based on a
notice of deficiency), nor shall the collection of such assessment be
prohibited by the provisions of subdivision (c) of this section.
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 the city, unless the commissioner 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 have the
right to waive the mailing of a notice of deficiency or restriction on
collection of the whole or any part of the deficiency, or both, by a
signed notice in writing filed with the commissioner.
(g) Deficiency defined. For purposes of this chapter, a deficiency
means the amount of the tax imposed by this chapter, less (1) the amount
shown as the tax upon the taxpayer's return (whether the return was made
or the tax computed by the taxpayer or by the commissioner), and less,
(2) the amounts previously assessed (or collected without assessment) as
a deficiency and plus (3) 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, 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.
(h) Cross reference. For provisions permitting a notice of deficiency
under chapter seventeen of this title to be treated as a notice of
deficiency under this chapter and permitting a notice of deficiency or a
payment for which credit or refund is sought under chapter seventeen of
this title to be treated as though made under this chapter where the
taxpayer has filed a petition under such chapter seventeen for either a
redetermination of deficiency or for credit or refund, see subdivision
(h) of section 11-1736 of this title and subdivision (h) of section
11-1744 of this title.
Section 11-1924
§ 11-1924 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 commissioner
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 on which it is mailed. If an
amended return or report filed pursuant to section 11-1922 of this
chapter concedes the accuracy of a federal or New York state adjustment,
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 11-1925 of this subchapter. If a notice of
additional tax due, as prescribed in subdivision (e) of section 11-1923
of this subchapter, has been mailed, the amount of the deficiency shall
be deemed to be assessed on the date specified in such subdivision
unless within thirty days after the mailing of such notice a report of
the federal or New York state change or correction or an amended return,
where such return was required by section 11-1922 of this chapter, is
filed accompanied by a statement showing wherein such federal or New
York state determination and such notice of additional tax due are
erroneous. 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 commissioner
may establish the same by regulations.
(d) Supplemental assessment. The commissioner may, at any time within
the period prescribed for assessment, make a supplemental assessment,
subject to the provisions of section 11-1923 of this subchapter 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
11-1937 of this subchapter.
Section 11-1925
§ 11-1925 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) 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 fails to comply with section 11-1922 of this chapter
in not reporting a change or correction increasing his or her federal or
New York state taxable income or self-employment income as reported on
the taxpayer's federal or New York state tax return, or the execution of
a notice of waiver and the changes or corrections on which it is based
or in not reporting an assessment or a change or correction which is
treated in the same manner as if it were a deficiency for federal or New
York state income tax purposes, or in not filing an amended return.
(2) Extension by agreement. Where, before the expiration of the time
prescribed in this section for the assessment of tax, both the
commissioner 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 changed or corrected federal or New York state income.
If the taxpayer shall, pursuant to section 11-1922 of this chapter,
report a change or correction or file an amended return increasing the
taxpayer's federal or New York state taxable income or earnings from
self-employment or report an assessment or a change or correction which
is treated in the same manner as if it were a deficiency for federal or
New York state income tax purposes, the assessment (if not deemed to
have been made upon the filing of the report or amended return) may be
made at any time within two years after such report or amended return
was filed. The amount of such assessment of tax shall not exceed the
amount of the increase in city tax on earnings attributable to such
federal or New York state change or correction. The provisions of this
paragraph shall not affect the time within which or the amount for which
an assessment may otherwise be made.
(4) 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.
(5) Request for prompt assessment. If a return is required for a
decedent or for the 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 (c) of
this section.
(c) Omission of income on return. The tax may be assessed at any time
within six years after the return was filed if a taxpayer omits from a
return an amount properly includible therein which is in excess of
twenty-five per centum of the amount of the gross income derived by the
taxpayer from any trade or business.
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 such
item.
(d) Suspension of running of period of limitation. The running of the
period of limitations on 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 commissioner is
prohibited under subdivision (c) of section 11-1923 of this subchapter
collecting by levy or proceeding in court.
Section 11-1926
§ 11-1926 Interest on underpayment. (a) General. If any amount of tax
is not paid on or before the last date prescribed in this chapter for
payment, interest on such amount at the appropriate rates prescribed for
underpayments of tax under chapter seventeen of this title 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 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.
(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) No interest on interest. No interest under this chapter shall be
imposed on any interest provided by this chapter.
(e) Suspension of interest on deficiencies. If a waiver of
restrictions on collection of an assessment of a deficiency has been
filed by the taxpayer, and if notice and demand by the commissioner for
payment of such assessed 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.
(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 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 ten days from the date of the notice
and demand therefor under subdivision (b) of section 11-1934 of this
subchapter, 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 prior to notice of deficiency. If, prior to the mailing to
the taxpayer of a notice of deficiency under subdivision (b) of section
11-1923 of this subchapter, the commissioner mails to the taxpayer a
notice of proposed increase of tax and within thirty days after the date
of the notice of proposed increase the taxpayer pays all amounts shown
on the notice to be due to the commissioner, no interest under this
section on the amount so paid shall be imposed for the period after the
date of such notice of proposed increase.
(i) Payment within ninety days after notice of deficiency. If a notice
of deficiency under section 11-1923 of this subchapter is mailed to the
taxpayer, and the total amount specified in such notice is paid on or
before the ninetieth day after the date of mailing, interest under this
section shall not be imposed for the period after the date of the
notice.
(j) Payment within ten days after notice and demand. If notice and
demand is made for payment of any amount under subdivision (b) of
section 11-1934 of this subchapter, and if such amount is paid within
ten days after the date of such notice and demand, interest under this
section on the amount so paid shall not be imposed for the period after
the date of such notice and demand.
(k) 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.
(l) Interest on erroneous refund. Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner, shall bear interest at the rate of six per centum 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.
(m) 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 11-1927
§ 11-1927 Additions to tax and civil penalties. (a) Failure to file
tax return. 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. For this purpose, 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.
(b) Deficiency due to negligence. 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.
(c) Failure to file declaration or underpayment of estimated tax. If
any taxpayer fails to file a declaration of estimated tax or fails to
pay all or any part of an installment of estimated tax, the taxpayer
shall be deemed to have made an underpayment of estimated tax. There
shall be added to the tax for the taxable year an amount at the rate of
six per centum upon the amount of the underpayment for the period of the
underpayment but not beyond the fifteenth day of the fourth month
following the close of the taxable year. The amount of underpayment
shall be the excess of the amount of the installment which would be
required to be paid if the estimated tax were equal to seventy percent
of the tax attributable to net earnings from self employment shown on
the tax return for the taxable year (or if no return was filed, of the
tax so attributable for such year) over the amount, if any, of the
installment paid on or before the last day prescribed for such payment.
No underpayment shall be deemed to exist with respect to a declaration
or installment otherwise due on or after the taxpayer's death.
(d) Exception to addition for underpayment of estimated tax. The
addition to tax under subdivision (c) of this section with respect to
any underpayment of any installment shall not be imposed if the total
amount of all payments of estimated tax made on or before the last date
prescribed for the payment of such installment equals or exceeds
whichever of the following is the lesser:
(1) The amount which would have been required to be paid on or before
such date if the estimated tax were whichever of the following is the
lesser:
(A) The tax attributable to net earnings from self-employment shown on
the return of the individual for the preceding taxable year, if a return
showing a liability for tax was filed by the individual for the
preceding taxable year and such preceding year was a taxable year of
twelve months, or
(B) An amount equal to seventy percent of the tax so attributable for
the taxable year computed by placing on an annualized basis the taxable
net earnings from self-employment for the months in the taxable year
ending before the month in which the installment is required to be paid.
For purposes of this subparagraph, the taxable net earnings from
self-employment shall be placed on an annualized basis by:
(i) multiplying by twelve (or, in the case of a taxable year of less
than twelve months, the number of months in the taxable year) the
taxable net earnings from self-employment for the months in the taxable
year ending before the month in which the installment is required to be
paid,
(ii) dividing the resulting amount by the number of months in the
taxable year ending before the month in which such installment date
falls, and
(iii) deducting from such amount the proper proportion of the
exclusion allowable for the taxable year by subdivision (b) of section
11-1902 of this chapter; or
(2) An amount equal to ninety percent of the tax computed, at the
rates applicable to the taxable year, on the basis of the actual taxable
net earnings from self-employment for the months in the taxable year
ending before the month in which the installment is required to be paid.
(e) Deficiency due to fraud. 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. This amount shall be in lieu of any other addition to
tax imposed by subdivision (a) or (b) of this section.
(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 provisions of section
11-1912 of this chapter, 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 commissioner 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 subdivision
applies.
(h) Failure to file certain information returns. In case of each
failure to file a statement of a payment to another person, required
under authority of subdivision (c) of section 11-1921 of this chapter
(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 willful neglect, there
shall, upon notice and demand by the commissioner and in the same manner
as tax, be paid by the person so failing to file the statement, a
penalty of one dollar 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 one thousand dollars.
(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 declaration of estimated tax, or
to supply any information within the time required by or under this
chapter, shall be liable to a 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 commissioner. The
commissioner shall have the power, in his or her discretion, to waive,
reduce or compromise any penalty under this subdivision.
(j) 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 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 11-1923 of this subchapter,
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); and
(3) any additional penalty under subdivision (i).
(k) Determination of deficiency. For purposes of subdivisions (b) and
(e), 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.
(l) Person defined. For purposes of subdivisions (g) and (i), the term
"person" includes an individual, corporation or partnership or an
officer or employee of any corporation (including a dissolved
corporation), or a member or employee of any partnership, who as such
officer, employee, or member is under a duty to perform the act in
respect of which the violation occurs.
Section 11-1928
§ 11-1928 Overpayment. (a) General. The commissioner, within the
applicable period of limitations, may credit an overpayment of tax and
interest on such overpayment against any liability in respect of any tax
imposed by this chapter or by another chapter or chapters of this title
on the person who made the overpayment, and the balance shall be
refunded. Any refund under this section shall be made only upon the
filing of a return.
(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 11-1908 of this
chapter, 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) Credits against estimated tax. The commissioner may prescribe
regulations providing for the crediting against the estimated tax for
any taxable year of the amount determined to be an overpayment of the
tax for a preceding taxable year. If any overpayment of tax is so
claimed as a credit against estimated tax for the succeeding taxable
year, such amount shall be considered as a payment of the tax for the
succeeding taxable year (whether or not claimed as a credit in the
declaration of estimated tax for such succeeding taxable year), and no
claim for credit or refund of such overpayment shall be allowed for the
taxable year for which the overpayment arises.
(e) Rule where no tax liability. If there is no tax liability for a
period in respect of which an amount is paid as tax, such amount shall
be considered an overpayment.
(f) Assessment and collection after limitation period. If any amount
of tax is assessed or collected after the expiration of the period of
limitations properly applicable thereto, such amount shall be considered
an overpayment.
(g) Notwithstanding any provision of law in article fifty-two of the
civil practice law and rules to the contrary, the procedures for the
enforcement of money judgments shall not apply to the department of
finance, or to any officer or employee of the department of finance, as
a garnishee, with respect to any amount of money to be refunded or
credited to a taxpayer under this chapter.
Section 11-1929
§ 11-1929 Limitations on credit or refund. (a) General. Claim for
credit or refund of an overpayment of 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 (b) of section 11-1925 of
this subchapter (extending the period for assessment of 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) if a claim had
been filed on the date the agreement was executed.
(c) Notice of change or correction of federal or New York state
income. If a taxpayer is required by section 11-1922 of this chapter to
report a change or correction in federal or New York state taxable
income or self-employment income reported on his or her federal or New
York state tax return, or to report an assessment or a change or
correction which is treated in the same manner as if it were an
overpayment for federal or New York state income tax purposes, or to
file an amended return with the commissioner, claim for credit or refund
of any resulting overpayment of tax 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.
If the report or amended return required by section 11-1922 of this
chapter is not filed within the ninety day period therein specified,
interest on any resulting refund or credit shall cease to accrue after
such ninetieth day. The amount of such credit or refund shall not exceed
the amount of the reduction in tax attributable to such federal or New
York state change, correction or items amended on the taxpayer's amended
federal or New York state income tax or self-employment 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) Failure to file claim within prescribed period. No credit or
refund shall be allowed or made, except as provided in subdivision (e)
of this section or subdivision (d) of section 11-1932 of this subchapter
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.
(e) Effect of petition to commissioner. If a notice of deficiency for
a taxable year has been mailed to the taxpayer under section 11-1923 of
this subchapter and if the taxpayer files a timely petition with the
commissioner under section 11-1931 of this subchapter, the commissioner
may determine that the taxpayer has made an overpayment for such year
(whether or not the commissioner also determines a deficiency for such
year). No separate claim for credit or refund for such year shall be
filed, and no credit or refund for such year shall be allowed or made,
except:
(1) as to overpayments determined by a decision of the commissioner
which has become final;
(2) as to any amount collected in excess of an amount computed in
accordance with the decision of the commissioner which has become final;
(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.
(f) Limit on amount of credit or refund. The amount of overpayment
determined under subdivision (e) of this section shall, when the
decision of the commissioner has become final, be credited or refunded
in accordance with subdivision (a) of section 11-1928 of this subchapter
and shall not exceed the amount of tax which the commissioner determines
as part of his or her 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 has been filed (whether or not filed) stating the
grounds upon which the commissioner finds that there is an overpayment.
(g) 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.
(h) Prepaid tax. For purposes of this section, any tax paid by the
taxpayer before the last day prescribed for its payment, any tax
withheld from the taxpayer during any calendar year, and any amount paid
by the taxpayer as estimated tax for a taxable year shall be deemed to
have been paid by the taxpayer 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.
(i) Return and payment of withholding tax. Notwithstanding subdivision
(g) 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.
(j) Cross reference. For provision barring refund of overpayment
credited against tax of a succeeding year, see subdivision (d) of
section 11-1928 of this subchapter.
Section 11-1930
§ 11-1930 Interest on overpayment. (a) General. Notwithstanding the
provisions of section three-a of the general municipal law, interest
shall be allowed and paid as follows at the appropriate rates prescribed
for overpayments of tax under chapter seventeen of this title 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; or
(2) from the date of the overpayment to a date (to be determined by
the commissioner) 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.
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
tax withholding. The provisions of subdivisions (g), (h) and (i) of
section 11-1929 of this subchapter applicable in determining the date of
payment of tax for purposes of determining the period of limitations on
credit or refund, shall be applicable in determining the date of payment
for purposes of this section.
(c) Refund within three months of due date of tax. If any overpayment
of tax imposed by this chapter is refunded within three months after the
last date prescribed (or permitted by extension of time) for filing the
return of such tax or within three months after the return was filed,
whichever is later, no interest shall be allowed under this section on
such overpayment.
(d) Cross-reference. For provision terminating interest after failure
to file notice of federal or New York state change under section 11-1922
of this chapter, see subdivision (c) of 11-1929 of this subchapter.
Section 11-1931
§ 11-1931 Petition to commissioner. (a) General. The form of a
petition to the commissioner, and further proceedings before the
commissioner in any case initiated by the filing of a petition, shall be
governed by such rules as the commissioner 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 the
commissioner, or by a hearing officer designated by the commissioner to
take evidence and report to the commissioner. The commissioner shall
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
commissioner'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. Any portion of an assessment of a deficiency disallowed by the
commissioner's decision, shall be forthwith abated, or if paid, credited
or refunded to the taxpayer without the making of a claim therefor.
(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 11-1923 of this subchapter, the taxpayer may file
a petition with the commissioner 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
(f) of section 11-1929 of this subchapter.
(c) Petition for refund. A taxpayer may file a petition with the
commissioner for the amounts asserted in a claim for refund if:
(1) the taxpayer has filed a timely claim for refund with the
commissioner,
(2) the taxpayer has not previously filed with the commissioner 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 (e)
of section 11-1929 of this subchapter, and
(3) either: (A) six months have expired since the claim was filed, or
(B) the commissioner 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 a two-year period it has been extended
by written agreement between the taxpayer and the commissioner. 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 and assessment of deficiency after filing petition.
(1) Petition for redetermination of deficiency. If a taxpayer files
with the commissioner a petition for redetermination of a deficiency,
the commissioner shall have power to determine and assess a greater
deficiency than asserted in the notice of deficiency and to determine
and assess any addition to tax or penalty provided in section 11-1927 of
this subchapter, if claim therefor is asserted at or before the hearing
and within the period in which an assessment would be timely under
section 11-1925 of this subchapter under the rules of the commissioner.
(2) Petition for refund. If the taxpayer files with the commissioner a
petition for credit or refund for a taxable year, the commissioner may:
(A) determine and assess a deficiency for such year as to any amount
of deficiency claim (which shall be an assessment) for which is asserted
at or before the hearing under rules of the commissioner, and within the
period in which an assessment would be timely under section 11-1925 of
this subchapter, 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 commissioner.
(3) Opportunity to respond. A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the commissioner under
this subdivision.
(4) Restriction on further notices of deficiency. If the taxpayer
files a petition with the commissioner under this section, no notice of
deficiency under section 11-1923 of this subchapter may thereafter be
issued by the commissioner for the same taxable year, except in case of
fraud or with respect to a change or correction in federal or New York
state taxable income or self-employment income required to be reported
under section 11-1922 of this chapter.
(e) Burden of proof. In any case before the commissioner 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
commissioner:
(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 (except where the petitioner's liability arises by reason of
section 11-1936 of this subchapter), but not to show that the taxpayer
was liable for the tax; and
(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 of federal or New
York state taxable income or self-employment income required to be
reported under section 11-1922 of this chapter, and of which change or
correction the commissioner had no notice at the time he or she mailed
the notice of deficiency.
(f) Evidence of related federal determination. Evidence of a federal
determination relating to issues raised in a case before the
commissioner under this section shall be admissible, under rules
established by the commissioner.
(g) Jurisdiction over other years. The commissioner 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 11-1932
§ 11-1932 Review of commissioner's decision. (a) General. A decision
of the commissioner shall be subject to judicial review for error,
illegality or unconstitutionality at the instance of any taxpayer
affected thereby in the manner provided by law for the review of a final
decision or action of administrative agencies of the city. An
application by a taxpayer for such review must be made within four
months after notice of the decision is sent by certified or registered
mail to the taxpayer.
(b) Judicial review exclusive remedy of taxpayer. The review of a
decision of the commissioner provided by this section shall be exclusive
remedy available to any taxpayer for the judicial determination of the
liability of the taxpayer for the taxes imposed by this chapter.
(c) Collection pending review; review bond. Irrespective of any
restrictions on the collection of assessments for deficiencies, the
commissioner may collect by levy or, otherwise any assessment of a
deficiency after the expiration of the period specified in subdivision
(a) of this section, nothwithstanding 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 assessed deficiency, has deposited with the
commissioner the amount of the assessed deficiency, or has filed with
the commissioner a bond (which may be a jeopardy bond under subdivision
(h) of section 11-1937 of this subchapter) in the amount of the portion
of the assessed deficiency (including interest and other amounts) in
respect of which the application for review is made with surety approved
by a justice of the supreme court of the state of New York, conditioned
upon the payment of the assessed deficiency (including interest and
other amounts) as finally determined. If as a result of a waiver of the
restrictions on the collection of a deficiency any part of the amount
determined by the commissioner is paid after the filing of the review
bond, such bond shall, at the request of the taxpayer, be
proportionately reduced. A similar bond for all costs and charges which
may accrue against the taxpayer in the prosecution of such judicial
review proceeding must be filed with the commissioner before any such
proceeding is instituted.
(d) Credit, refund or abatement after review. If the amount of a
deficiency assessed and determined by the commissioner 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 commissioner's decision. A decision of the
commissioner 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
commissioner 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 commissioner shall be deemed
final on the date the notice of decision is sent by certified or
registered mail to the taxpayer.
Section 11-1933
§ 11-1933 Mailing rules; holidays. (a) Timely mailing. If any claim,
statement, notice, petition, or other document (including to the extent
authorized by the commissioner, a return or declaration of estimated
tax) required to be filed 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 the United States mail to
the commissioner, bureau, office, officer or person with which or with
whom such document is required to be filed, 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, determined with regard to any extension
granted for such filing, and only if such document was deposited in the
mail, postage prepaid, properly addressed to the commissioner, bureau,
office, officer or person with which or with whom the document is
required to be filed. If any document is sent by United States
registered mail, such registration shall be prima facie evidence that
such document was delivered to the commissioner, bureau, office, officer
or person to which or to whom addressed. To the extent that the
commissioner 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 commissioner.
(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 the taxpayer, unless subsequent to the filing of such return the
taxpayer shall have notified the commissioner 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.
Section 11-1934
§ 11-1934 Collection, levy and liens. (a) Collection procedures. The
taxes imposed by this chapter shall be collected by the commissioner,
and he or she may establish the mode or time for the collection of any
amount due the commissioner under this chapter if not otherwise
specified. The commissioner shall, upon request, give a receipt for any
sum collected under this chapter. The commissioner may authorize banks
or trust companies which are depositories or financial agents of the
city 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
commissioner may prescribe; and the commissioner shall prescribe the
manner, times and conditions under which the receipt of such tax by such
banks and trust companies is to be treated as payment of such tax to the
commissioner.
(b) Notice and demand for tax. The commissioner shall as soon as
practicable and, in the case of an assessment the collection of which is
restricted by the provisions of subdivision (c) of section 11-1923 of
this subchapter, as soon as practicable after the expiration of such
restrictions 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 commissioner 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 ten days after
notice and demand therefor is given to such person under subdivision (b)
of this section, the commissioner may within six years after the date of
the expiration of the period of restriction on the collection of such
assessment issue a warrant directed to the sheriff of any county of the
state, or to any officer or employee of the department of finance of the
city, commanding the sheriff or such officer or employee 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 the commissioner and pay to him or her the money
collected by virtue thereof within sixty days after the receipt of the
warrant. If the commissioner finds that the collection of tax or other
amount is in jeopardy, notice and demand for immediate payment of such
tax may be made by the commissioner and upon failure or refusal to pay
such tax or other amount the commissioner may issue a warrant without
regard to the ten-day period 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 binding lien upon the real,
personal and other property of the taxpayer.
(e) Judgment. When a warrant has been filed with the county clerk the
commissioner shall, on behalf 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 judgment in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued against
property upon judgments of a court of record, and a sheriff shall be
entitled to the same fees for such sheriff's services in executing the
warrant, to be collected in the same manner. An officer or employee of
the department of finance of the city 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 then a resident. Where a notice and demand under
subdivision (b) shall have been given to a taxpayer who is not then a
resident of this state, and it appears to the commissioner 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 of this state, the commissioner
may, in accordance with subdivision (c) of this section, issue a warrant
directed to an officer or employee of the department of finance of the
city 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 11-1933 of this
subchapter. Such warrant shall command the officer or employee to
proceed in the city, and such officer or employee shall, within five
days after receipt of the warrant, file the warrant and obtain a
judgment in accordance with this section. Thereupon the commissioner may
authorize the institution of any action or proceeding to collect or
enforce the judgment in any place and by any procedure where and by
which a civil judgment of the supreme court of the state of New York
could be collected or enforced. The commissioner may also, in his or her
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 then 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 commissioner
shall deem proper and sufficient.
(h) Action by the city for recovery of taxes. Action may be brought by
the corporation counsel or other appropriate officer of the city at the
insistance of the commissioner 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. The period during which collection of any assessment is
prohibited by subdivision (c) of section 11-1923 of this subchapter,
shall be added to such six years.
(i) Release of lien. The commissioner, if he or she finds that the
interest of the city will not thereby be jeopardized, and upon such
conditions as 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 11-1935
§ 11-1935 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 to the city 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 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; and
also includes a person liable for the amount of any tax, additions to
tax, penalty or interest under the provisions of section 11-1936 of this
subchapter.
(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 commissioner 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) of this section or paragraph one of this subdivision for the
assessment of the liability, the commissioner 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 11-1929 of this subchapter. If the agreement is executed after
the expiration of the period of limitation for assessment against the
original taxpayer, then in applying the limitations under subdivision
(b) of section 11-1929 of this subchapter on the amount of the credit or
refund, the periods specified in subdivision (a) of section 11-1929 of
this subchapter 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 section 11-1942 of
this subchapter, the commissioner shall use his or her powers to make
available to the transferee evidence necessary to enable the transferee
to determine the liability of the original taxpayer and of any preceding
transferees, but without undue hardship to the original taxpayer or
preceding transferee. See subdivision (e) of section 11-1931 of this
subchapter for rule as to burden of proof.
Section 11-1936
§ 11-1936 Liability of bulk transferees. Whenever there is made a
sale, transfer or assignment in bulk of any part or the whole of a stock
of merchandise or of fixtures, or merchandise and of fixtures pertaining
to the conducting of the business of the seller, transferor or assignor,
otherwise than in the ordinary course of trade and in the regular
prosecution of said business, the purchaser, transferee or assignee
shall at least ten days before taking possession of such merchandise,
fixtures, or merchandise and fixtures, or paying therefor, notify the
commissioner by registered mail of the proposed sale and of the price,
terms and conditions thereof, whether or not the seller, transferor or
assignor, has represented to, or informed the purchaser, transferee or
assignee, that it owes any tax pursuant to this chapter, whether or not
the purchaser, transferee or assignee has knowledge that such taxes are
owing, and whether or not any such taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give the
notice to the commissioner required by this section, or whenever the
commissioner shall inform the purchaser, transferee or assignee that a
possible claim for such tax or taxes exists, any sums of money, property
or choses in action, or other consideration, which the purchaser,
transferee or assignee is required to transfer over to the seller,
transferor or assignor shall be subject to a first priority right and
lien for any such taxes theretofore or thereafter determined to be due
from the seller, transferor or assignor to the city, and the purchaser,
transferee or assignee is forbidden to transfer to the seller,
transferor or assignor any such sums of money, property or choses in
action to the extent of the amount of the city's claim. For failure to
comply with the provisions of this subdivision the purchaser, transferee
or assignee, in addition to being subject to the liabilities and
remedies imposed under the provisions of article six of the uniform
commercial code, shall be personally liable for the payment to the city
of any such taxes, theretofore or thereafter determined to be due to the
city from the seller, transferor or assignor and such liability may be
assessed and enforced in the same manner as the liability for tax is
imposed under this chapter.
Section 11-1937
§ 11-1937 Jeopardy determination or assessment. (a) Authority for
making. If the commissioner believes that the assessment or collection
of a deficiency will be jeopardized by delay, he or she shall,
notwithstanding the provisions of sections 11-1923 and 11-1939 of this
subchapter, immediately assess and/or proceed to collect such deficiency
(together with all interest, penalties and additions to tax provided for
by law), and notice and demand shall be made by the commissioner 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 11-1923 of this subchapter, then
the commissioner shall mail a notice under such section within sixty
days after making of the assessment.
(c) Amount assessable before decision of commissioner. 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 therefor filed a petition with the commissioner. The
commissioner may, at any time before rendering his or her decision,
abate such assessment or any unpaid portion thereof, to the extent that
he or she believes the assessment to be excessive in amount. The
commissioner may in his or her 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 commissioner. If the jeopardy
assessment of determination of jeopardy is made after the decision of
the commissioner is rendered, such assessment or determination may be
made only in respect of the deficiency determined by the commissioner in
his or her decision.
(e) Expiration of right to assess. A jeopardy determination may not be
made after the decision of the commissioner has become final or after
the taxpayer has made an application for review of the decision of the
commissioner.
(f) Collection of unpaid amounts. When a petition has been filed with
the commissioner and when the amount which should have been assessed has
been determined by a decision of the commissioner which has become
final, then any unpaid portion, the collection of which has been stayed
by bond, shall be collected as part of the tax upon notice and demand
from the commissioner, 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 11-1928 of
this subchapter without the filing of claim therefor. If the amount
determined as the amount which should have been assessed is greater than
the amount actually assessed, then the difference shall be assessed and
shall be collected as part of the tax upon notice and demand from the
commissioner.
(g) Abatement if jeopardy does not exist. The commissioner may abate
the jeopardy determination if he or she finds that jeopardy does not
exist. Such abatement may not be made after a decision of the
commissioner in respect of the deficiency has been rendered or, if no
petition is filed with the commissioner, after the expiration of the
period for filing such petition. The period of limitation on the making
of a levy or a proceeding for collection, in respect of any deficiency,
shall be determined as if the jeopardy assessment so abated has 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 determination
until the expiration of the tenth day after the day on which such
jeopardy determination is abated.
(h) Bond to stay collection. The collection of the whole or any amount
of any assessment determined to be in jeopardy may be stayed by filing
with the commissioner, 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 11-1923 of this subchapter is mailed to the taxpayer in a lesser
amount, the bond shall, at the request of the taxpayer, be
proportionately reduced.
(i) Petition to commissioner. If the bond is given before the taxpayer
has filed his or her petition under section 11-1931 of this subchapter,
the bond shall contain a further condition that if a petition is not
filed within the period provided in such section, then the amount, the
collection of which is stayed by the bond, will be paid on notice and
demand at any time after the expiration of such period, together with
interest thereon from the date of the jeopardy notice and demand to the
date of notice and demand under this subdivision. The bond shall be
conditioned upon the payment of so much of such assessment (collection
of which is stayed by the bond) as is not abated by a decision of the
commissioner which has become final. If the commissioner 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 commissioner is
rendered.
(j) Stay of sale of seized property pending commissioner's decision.
Where a jeopardy assessment or a determination of jeopardy 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 11-1931 of this subchapter for filing a petition
with the commissioner, and
(2) if a petition is filed with the commissioner (whether before or
after the making of such jeopardy assessment or determination), prior to
the expiration of the period during which the collection of the
deficiency assessed 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 commissioner 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 11-1926 of
this subchapter, the last date prescribed for payment shall be
determined without regard to any notice and demand for payment issued
under this section prior to the last date otherwise prescribed for such
payment.
(l) Early termination of taxable year. If the commissioner 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 tax for
the current or the preceding taxable year unless such proceedings be
brought without delay, the commissioner 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 commissioner 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 commissioner as provided in
subdivision (1), the commissioner may reopen such taxable period each
time the taxpayer is found by the commissioner to have received wages or
net earnings from self-employment, within the current taxable year,
since the termination of such period. A taxable period so terminated by
the commissioner may be reopened by the taxpayer if he or she files with
the commissioner a true and accurate return of taxable wages and net
earnings from self-employment under this chapter for such taxable
period, together with such other information as the commissioner may by
regulation prescribe.
(n) Furnishing of bond where taxable year is closed by the
commissioner. Payment of taxes shall not be enforced by any proceedings
under the provisions of subdivision (1) prior to the expiration of the
time otherwise allowed for paying such taxes if the taxpayer furnishes,
under regulations prescribed by the commissioner, a bond to insure the
timely making of returns with respect to, and payment of, such taxes or
any taxes for prior years.
Section 11-1938
§ 11-1938 Criminal penalties. (a) Attempt to evade tax. Any
individual, corporation or partnership or any officer or employee of any
corporation, or member or employee of any partnership, who, with intent
to evade any tax or any requirement of this chapter or any lawful
requirement of the commissioner thereunder, shall fail to pay the tax,
or to make, render, sign or certify any return or declaration of
estimated tax, or to supply any information within the time required by
or under the provisions of this chapter, or who, with like intent, shall
make, render, sign or certify any false or fraudulent return,
declaration or statement, or shall supply any false or fraudulent
information, or who shall fail to comply with the provisions of
subdivision (b) of section 11-1912 of this chapter after the service of
a notice by the commissioner thereunder, shall be guilty of a
misdemeanor and shall, upon conviction, be fined not to exceed five
thousand dollars or be imprisoned not to exceed one year, or both, at
the discretion of the court.
(b) Limitations. Notwithstanding the provisions of section 30.10 of
the criminal procedure law or of any other law of this state, a
prosecution for any offense under this section may be commenced at any
time not later than three years after the commission of such offense
provided that, if such offense is the failure to do an act required by
or under any provision of this chapter to be done before a certain date,
a prosecution for such offense may be commenced not later than three
years after such date.
(c) Willful failure to withhold. Any individual, corporation or
partnership or any officer or employee of any corporation (including a
dissolved corporation), or member or employee of any partnership, who
willfully fails to collect or pay over any withholding tax as required,
shall, in addition to other penalties provided by law, be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not to exceed
five thousand dollars or imprisoned not to exceed one year, or both.
(d) Two or more charges. In the prosecution of offenses under this
section, if there are two or more charges against any person or
corporation, involving a violation or violations of any provision or
provisions of this chapter, whether for the same or different taxable
years, instead of returning several indictments or filing several
informations, all of such charges may be joined in one indictment or
information, in separate counts, and if two or more indictments are
found, or two or more informations are filed, the court may order them
to be consolidated. If a person or corporation shall be convicted of two
or more offenses constituting different crimes set forth in different
counts of one indictment or information, or in separate indictments or
informations consolidated as hereinbefore provided, the court may impose
a separate sentence for each offense, and if imprisonment is imposed,
the court may order any of such sentences to be served concurrently or
consecutively.
(e) Miscellaneous rules. Any prosecution under this section may be
conducted in any county where the person or corporation to whose tax
liability the proceeding relates resides, or has a place of business, or
in any county in which any such crime is committed. The corporation
counsel of the city shall have concurrent jurisdiction with any district
attorney in the prosecution of any offense under this section. If the
provisions of this section conflict with those contained in any other
law, this section shall control. The certificate of the commissioner to
the effect that a tax has not been paid, that a return or declaration of
estimated tax has not been filed, or that information has not been
supplied, as required by or under the provisions of this chapter, shall
be prima facie evidence that such tax has not been paid, that such
return or declaration has not been filed, or that such information has
not been supplied. All fines levied under this section shall be paid to
the commissioner and deposited in the same manner as revenues collected
or received under this chapter.
Section 11-1939
§ 11-1939 Armed forces relief provisions. (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 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 hospitalized 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 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 tax (except withholding tax);
(B) payment of any tax (except withholding tax) or any installment
thereof or of any other liability to the commissioner, in respect
thereof;
(C) filing a petition with the commissioner for credit or refund or
for redetermination of a deficiency, or application for review of a
decision rendered by the commissioner;
(D) allowance of a credit or refund of tax;
(E) filing a claim for credit or refund of tax;
(F) giving or making any notice or demand for the payment of any tax,
or with respect to any liability to the commissioner in respect of tax;
(G) collection, by the commissioner, by levy or otherwise of the
amount of any liability in respect of tax;
(H) bringing suit by the city, or any officer, on its behalf, in
respect of any liability in respect of tax; and
(I) any other act required or permitted under this chapter or
specified in the regulations prescribed under this section by the
commissioner.
(2) The amount of any credit or refund (including interest).
(b) Action taken before ascertainment of right to benefits. The
collection of the tax imposed by this chapter or of any liability to the
commissioner in respect of such tax, or any action or proceeding by or
on behalf of the commissioner 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
collection, action, or proceeding it is ascertained that the person
concerned is entitled to the benefit of subdivision (a).
(c) 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.
Section 11-1940
§ 11-1940 General powers of commissioner. (a) General. The
commissioner shall administer and enforce the tax imposed by this
chapter and the commissioner is authorized to make such rules and
regulations, and to require such facts and information to be reported,
as the commissioner may deem necessary to enforce the provisions of this
chapter and the commissioner may delegate his or her powers and
functions under all subchapters of this chapter to one of his or her
deputies or to any employee or employees of his or her department.
(b) Examination of books and witnesses. The commissioner for the
purpose of ascertaining the correctness of any return, or for the
purpose of making an estimate of taxable wages and net earnings from
self-employment of any person, shall have power to examine or to cause
to have examined, by any agent or representative designated by him or
her 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, may take testimony and require proof material
for the commissioner's information, with power to administer oaths to
such person or persons and may issue commissions for the examination of
witnesses who are out of the state or unable to attend before the
commissioner or excused from attendance, and for the production of
books, papers, records or memoranda.
(c) Abatement authority. The commissioner, of his or her own motion,
may abate any small unpaid balance of an assessment of tax, or any
liability in respect thereof, if the commissioner determines under
uniform rules prescribed by him or her that the administration and
collection costs involved would not warrant collection of the amount
due. The commissioner may also abate, of his or her own motion, the
unpaid portion of the assessment of any tax or any liability in respect
thereof, which is excessive in amount, or is assessed after the
expiration of the period of limitation properly applicable thereto, or
is erroneously or illegally assessed. No claim for abatement under this
subdivision shall be filed by a taxpayer.
(d) Special refund authority. Where no questions of fact or law are
involved and it appears from the records of the commissioner 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 commissioner
at any time, without regard to any period of limitations, shall have the
power, upon making a record of his or her reasons therefor in writing,
to cause such moneys so paid and being erroneously and illegally held to
be refunded.
(e) Cooperation with the United States and other states.
Notwithstanding the provisions of section 11-1942 of this subchapter,
the commissioner may permit the secretary of the treasury of the United
States or such secretary's delegates, or the proper tax officer of any
other state imposing an income tax upon the income 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 state, as the case may be, grant
substantially similar privileges to the commissioner and such
information is to be used for tax purposes only; and provided further
the commissioner 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
the 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 by the secretary of the treasury of the United
States or by 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 such secretary's delegates. Where the
commissioner 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.
Section 11-1941
§ 11-1941 Joint enforcement. (1) 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 and if the
commissioner of the tax imposed by this chapter takes action under the
tax law with respect to the enforcement and collection of the tax or
taxes assessed under such tax law, the commissioner shall, wherever
possible, accompany such action with a similar action under similar
enforcement and collection provisions of this chapter.
(2) Any monies collected as a result of such joint action shall be
deemed to have been collected in proportion in the amounts due,
including tax, penalties, interest and additions to tax under article
twenty-two of the tax law and under this chapter.
(3) Whenever the commissioner takes any action with respect to a
deficiency of personal income tax, under article twenty-two of the tax
law other than the action set forth in subdivision one of this section
the commissioner may, in his or her discretion, accompany such action
with a similar action under this chapter.
Section 11-1942
§ 11-1942 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 commissioner or any other officer or
employee of the department of finance of the city, any person engaged or
retained by such commissioner or department on an independent contract
basis, any depository to which any return may be delivered as provided
in subdivision two of this section, any officer or employee of such
depository, 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 wages or earnings or any particulars set
forth or disclosed in any report or return required under this chapter.
The commissioner or any other officer and employee charged with the
custody of such reports and returns shall not be required to produce any
of them or evidence of anything contained in them in any action or
proceeding in any court, except on behalf of the city in an action or
proceeding under the provisions of this chapter or in any other action
or proceeding involving the collection of a tax due under this chapter
to which the city is a party or a claimant, or on behalf of any party to
any action or proceeding under the provisions of this chapter when the
reports, returns or facts shown thereby are directly involved in such
action or proceeding, in any of which events the court may require the
production of, and may admit in evidence, so much of said reports,
returns or of the facts shown thereby, as are pertinent to the action or
proceeding and no more; except as provided in subdivision (e) of section
11-1940 of this subchapter. The commissioner may, nevertheless, publish
a copy or a summary of any determination or decision rendered after the
hearing required under section 11-1931 of this subchapter of this
chapter. Nothing herein shall be construed to prohibit the delivery to a
taxpayer or the taxpayers's 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 legal representatives of the
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.
Reports and returns shall be preserved for three years and thereafter
until the commissioner orders them to be destroyed. Any violation of the
provisions of this section shall be punished by a fine not exceeding one
thousand dollars or by imprisonment not exceeding one year, or both, at
the discretion of the court, and if the offender be the commissioner or
any other officer or employee of the city, he or she shall be dismissed
from office and be incapable of holding any public office in the city or
the state for a period of five years thereafter.
2. Notwithstanding the provisions of subdivision one of this section,
the commissioner of finance, in his or her discretion, may require or
permit any or all 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 commissioner
of finance and to file declarations of estimated tax and reports and
returns with such banks, banking houses or trust companies as agents of
the commissioner of finance, in lieu of making any such payment directly
to the commissioner of finance. However, the commissioner of finance
shall designate only such banks, banking houses or trust companies as
are depositories or financial agents of the city.
Section 11-1943
§ 11-1943 Provisions not applicable. The provisions contained in this
subchapter shall not be applicable with respect to taxes imposed for
taxable periods commencing on or after January first, nineteen hundred
seventy-six but, with respect to the tax imposed for such periods the
provisions contained in part VI of article twenty-two of the tax law and
sections six hundred fifty-three, six hundred fifty-eight, six hundred
sixty-two and thirteen hundred eleven of the tax law including the
provisions of judicial review by a proceeding under article
seventy-eight of the civil practice law and rules shall be applicable
with the same force and effect as if those provisions had been
incorporated in full in this section except where inconsistent with the
provisions of this chapter.
Section 11-1944
§ 11-1944 Deposit and disposition of revenues by commissioner. All
taxes, penalties and interest imposed under this chapter which are paid
to or collected by the commissioner of finance shall be deposited by the
commissioner of finance in the general fund of the city.
Section 11-1945
§ 11-1945 Effect of invalidity in part; inconsistencies with other
laws. (a) If any clause, sentence, paragraph, subdivision, section,
provision or other portion of this chapter or the application thereof to
any person or circumstances shall be held to be invalid, such holding
shall not affect, impair or invalidate the remainder of this chapter or
the application of such portion held invalid, to any other person or
circumstances, but shall be confined in its operation to the clause,
sentence, paragraph, subdivision, section, provision or other portion
thereof directly involved in such holding or to the person and
circumstances therein involved.
(b) If any provision of this chapter is inconsistent with, in conflict
with, or contrary to any other provision of law, such provision of this
chapter shall prevail over such other provision and such other provision
shall be deemed to have been amended, superseded or repealed to the
extent of such inconsistency, conflict or contrariety.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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