Section 11-2401
§ 11-2401 Definitions. When used in this chapter the following terms
shall mean or include:
1. "Person." An individual, partnership, society, association,
joint-stock company, corporation, estate, receiver, lessee, trustee,
assignee, referee, or any other person acting in a fiduciary or
representative capacity, whether appointed by a court or otherwise, and
any combination of individuals.
2. "Retail licensee." Any person to whom a license has been issued by
the state liquor authority under the state alocholic beverage control
law who sells at retail in the city, for on or off premises consumption,
any liquor, wine or beer for the sale of which such license is required.
3. "Return." Any return required to be filed as herein provided.
4. "State." The state of New York.
5. "City." The city of New York.
6. "Commissioner." The commissioner of finance of the city of New
York.
7. "Tax year." June first of any calendar year through May
thirty-first of the following calendar year.
8. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter.
Section 11-2402
§ 11-2402 Imposition of tax. For the privilege of selling liquor, wine
or beer at retail, for on or off premises consumption, within the city
of New York, there is hereby imposed and there shall be paid annually
for each tax year, commencing with the tax year beginning June first,
nineteen hundred eighty, a tax to be paid by each retail licensee in an
amount equal to twenty-five percent of the license fees payable under
the state alcoholic beverage control law by such retail licensee for the
license year in effect at the commencement of the tax year under this
chapter. A retail licensee who obtains a license subsequent to the
commencement of a tax year shall pay the tax based upon fees payable
under the state alcoholic beverage control law by such licensee for the
license year in effect at the time such license is issued. This tax
shall be in addition to any and all other taxes paid by such retail
licensee.
Section 11-2403
§ 11-2403 Exemptions. The tax imposed by this chapter shall not apply
to the following:
(a) The state of New York, or any of its agencies, instrumentalities,
public corporations (including a public corporation created pursuant to
agreement or compact with another state or Canada) or political
subdivisions;
(b) The United States of America, and any of its agencies and
instrumentalities insofar as it is immune from taxation;
(c) The United Nations or other international organizations of which
the United States of America is a member; and
(d) Any corporation, or association, or trust, or community chest,
fund or foundation, organized and operated exclusively for religious,
charitable, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to
the benefit of any private shareholder or individual, and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this paragraph shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this subdivision.
Section 11-2404
§ 11-2404 Records to be kept. Every retail licensee shall keep such
records of its business and in such form as the commissioner may by
regulation require. Such records shall be offered for inspection and
examination at any time upon demand by the commissioner or his or her
duly authorized agent or employee and shall be preserved for a period of
three years, except that the commissioner may consent to their
destruction within that period or may require that they be kept longer.
Section 11-2405
§ 11-2405 Returns. a. On or before the twenty-fifth day of June in
each tax year, every person subject to tax hereunder shall file a return
with the commissioner on a form prescribed by the commissioner. A retail
licensee who obtains a license subsequent to the commencement of a tax
year shall file a return for such tax year on or before the twenty-fifth
day of the month following the month in which such license was obtained.
b. The return shall state the amount of license fees paid to the state
under the alcoholic beverage control law and the date when a license
under such law was issued to the retail licensee and shall contain any
other information which the commissioner may deem necessary for the
proper administration of this chapter. The commissioner may require
amended returns to be filed within twenty days after notice and to
contain the information specified in the notice.
c. If a return required by this chapter is not filed or if a return
when filed is incorrect or insufficient on its face, the commissioner
shall take the necessary steps to enforce the filing of such a return or
of a corrected return.
d. The return otherwise required to be filed on or before June
twenty-fifth, nineteen hundred eighty under the provisions of
subdivision a of this section, shall be made and filed on or before
August twenty-fifth, nineteen hundred eighty.
Section 11-2406
§ 11-2406 Payment of tax. At the time of filing a return each person
shall pay to the commissioner the tax imposed hereunder. Such tax shall
be due and payable on the last day on which such return is required to
be filed, regardless of whether a return is filed or whether the return
which is filed correctly indicates the amount of tax due.
Section 11-2407
§ 11-2407 Determination of tax. If a return required by this chapter
is not filed, or if a return when filed is incorrect or insufficient,
the commissioner shall determine the amount of tax due from such
information as may be obtainable and, if necessary, may estimate the tax
on the basis of external indices. Notice of such determination shall be
given to the person liable for the payment of the tax. Such
determination shall finally and irrevocably fix the tax unless the
person against whom it is assessed, within ninety days after the giving
of notice of such determination, or, if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of the
code and the taxpayer has requested a conciliation conference in
accordance therewith, within ninety days from the mailing of a
conciliation decision or the date of the commissioner's confirmation of
the discontinuance of the conciliation proceeding, both (1) serves a
petition upon the commissioner of finance and (2) files a petition with
the tax appeals tribunal for a hearing, or unless the commissioner of
his or her own motion shall redetermine the same. Such hearing and any
appeal to the tax appeals tribunal sitting en banc from the decision
rendered in such hearing shall be conducted in the manner and subject to
the requirements prescribed by the tax appeals tribunal pursuant to
sections one hundred sixty-eight through one hundred seventy-two of the
charter. After such hearing the tax appeals tribunal shall give notice
of its decision to the person against whom the tax is assessed and to
the commissioner of finance. A decision of the tax appeals tribunal
sitting en banc shall be reviewable for error, illegality or
unconstitutionality or any other reason whatsoever by a proceeding under
article seventy-eight of the civil practice law and rules if application
therefor is made to the supreme court by the person against whom the tax
was assessed within four months after the giving of the notice of such
tax appeals tribunal decision. A proceeding under article seventy-eight
of the civil practice law and rules shall not be instituted by a
taxpayer unless: (a) the amount of any tax sought to be reviewed, with
penalties and interest thereon, if any, shall be first deposited with
the commissioner and there shall be filed with the commissioner an
undertaking issued by a surety company authorized to transact business
in this state and approved by the superintendent of insurance of this
state as to solvency and responsibility, in such amount as a justice of
the supreme court shall approve, to the effect that if such proceeding
be dismissed or the tax confirmed, the taxpayer will pay all costs and
charges which may accrue in the prosecution of the proceedings or (b) at
the option of the taxpayer, such undertaking may be in a sum sufficient
to cover the taxes, interest and penalties stated in such decision, plus
the costs and charges which may accrue against it in the prosecution of
the proceeding, in which event the taxpayer shall not be required to pay
such taxes, interest or penalties as a condition precedent to the
application.
Section 11-2408
§ 11-2408 Refunds. a. In the manner provided in this section, the
commissioner shall refund or credit, without interest, any tax, penalty
or interest erroneously, illegally or unconstitutionally collected or
paid, if written application to the commissioner for such refund shall
be made within one year from the payment thereof. Whenever a refund or
credit is made or denied, the commissioner shall state his or her reason
therefor and give notice thereof to the taxpayer in writing. The
commissioner may, in lieu of any refund required to be made, allow
credit therefor on payments due from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within
ninety days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure
pursuant to section 11-124 and the applicant has requested a
conciliation conference in accordance therewith, within ninety days from
the mailing of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing. Such petition for
a refund or credit made as herein provided shall be deemed an
application for a revision of any tax, penalty or interest complained
of. Such hearing and any appeal to the tribunal sitting en banc from the
decision rendered in such hearing shall be conducted in the manner and
subject to the requirements prescribed by the tax appeals tribunal
pursuant to sections one hundred sixty-eight through one hundred
seventy-two of the charter. After such hearing, the tax appeals tribunal
shall give notice of its decision to the applicant and to the
commissioner of finance. The applicant shall be entitled to institute a
proceeding pursuant to article seventy-eight of the civil practice law
and rules to review a decision of the tax appeals tribunal sitting en
banc if application to the supreme court be made therefor within four
months after the giving of notice of such decision, and provided, in the
case of an application by a taxpayer, that a final determination of tax
due was not previously made. Such a proceeding shall not be instituted
by a taxpayer unless an undertaking shall first be filed with the
commissioner, in such amount and with such sureties as a justice of the
supreme court shall approve, to the effect that if such proceeding be
dismissed or the tax confirmed, the taxpayer will pay all costs and
charges which may accrue in the prosecution of the proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section, of a tax, interest or penalty which had been
determined to be due pursuant to the provisions of section 11-2407 of
this chapter where such person has had a hearing or an opportunity for a
hearing, as provided in said section or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of a tax, interest or penalty paid after a determination by the
commissioner made pursuant to section 11-2407 of this chapter unless it
be found that such determination was erroneous, illegal or
unconstitutional or otherwise improper, by the tax appeals tribunal
after a hearing or of the commissioner's own motion, or, if such tax
appeals tribunal affirms in whole or in part the determination of the
commissioner of finance, in a proceeding under article seventy-eight of
the civil practice law and rules, pursuant to the provisions of said
section in which event refund or credit without interest shall be made
of the tax, interest or penalty found to have been overpaid.
Section 11-2409
§ 11-2409 Remedies exclusive. The remedies provided by this chapter
shall be the exclusive remedies available to any person for the review
of tax liability imposed by this chapter; and no determination or
proposed determination of tax or determination on any application for
refund by the commissioner of finance, nor any decision by the tax
appeals tribunal or any of its administrative law judges, shall be
enjoined or reviewed by an action for declaratory judgment, an action
for money had and received or by any action or proceeding other than, in
the case of a decision by the tax appeals tribunal sitting en banc, a
proceeding under article seventy-eight of the civil practice law and
rules; provided, however, that a taxpayer may proceed by declaratory
judgment if such taxpayer institutes suit within thirty days after a
deficiency assessment is made and pays the amount of the deficiency
assessment to the commissioner prior to the institution of such suit and
posts a bond for costs as provided in section 11-2407 of this chapter.
Section 11-2410
§ 11-2410 Reserves. In cases where the taxpayer has applied for a
refund and has instituted a proceeding under article seventy-eight of
the civil practice law and rules to review a determination adverse to
such taxpayer on his or her application for refund, the city comptroller
shall set up appropriate reserves to meet any decision adverse to the
city.
Section 11-2411
§ 11-2411 Proceedings to recover tax. a. Whenever any person shall
fail to pay any tax or penalty or interest imposed by this chapter as
herein provided, the corporation counsel shall, upon the request of the
commissioner, bring or cause to be brought an action to enforce payment
of the same against the person liable for the same on behalf of the city
of New York in any court of the state of New York or of any other state
or of the United States. If, however, the commissioner in his or her
discretion believes that a taxpayer subject to the provisions of this
chapter is about to cease business, leave the state or remove or
dissipate the assets out of which tax or penalties or interest might be
satisfied and that any such tax or penalty or interest will not be paid
when due, he or she may declare such tax or penalty or interest to be
immediately due and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commission may issue a
warrant, directed to the city sheriff, commanding such sheriff to levy
upon and sell the real and personal property of such person which may be
found within the city, for the payment of the amount thereof, with any
penalties and interest, and the cost of executing the warrant, and to
return such warrant to the commissioner and to pay to him or her the
money collected by virtue thereof within sixty days after receipt of
such warrant. The city sheriff shall, within five days after the receipt
of the warrant, file with the county clerk a copy thereof, and thereupon
such clerk shall enter in the judgment docket the name of the person
mentioned in the warrant and the amount of the tax, penalties and
interest for which the warrant is issued and the date when such copy is
filed. Thereupon the amount of such warrant so docketed shall become a
lien upon the title to and interest in real and personal property of the
person against whom the warrant is issued. The city sheriff shall then
proceed upon the warrant in the same manner and with like effect as that
provided by law in respect to executions issued against property upon
judgments of a court of record, and for services in executing the
warrant such sheriff shall be entitled to the same fees which he or she
may collect in the same manner. In the discretion of the commissioner a
warrant of like terms, force and effect may be issued and directed to
any officer or employee of the department of finance, and in the
execution thereof such officer or employee shall have all the powers
conferred by law upon sheriffs, but he or she shall be entitled to no
fee for compensation in excess of the actual expenses paid in the
performance of such duty. If a warrant is returned not satisfied in
full, the commissioner may from time to time issue new warrants and
shall also have the same remedies to enforce the amount due thereunder
as if the city had recovered judgment therefor and execution thereon had
been returned unsatisfied.
c. 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 and whether or not the purchaser, transferee or assignee
has knowledge that such taxes are owing, and whether any such taxes are
in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the commissioner as required by the preceding paragraph, 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 under this chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes,
additions to tax, penalties and interest filed pursuant to subdivision b
of this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
Section 11-2412
§ 11-2412 General powers of the commissioner. In addition to all other
powers granted to the commissioner in this chapter, he or she is hereby
authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof; and to prescribe
the form of blanks, reports and other records relating to the
enforcement and administration of this chapter;
2. To extend, for cause shown, the time for filing any return for a
period not exceeding thirty days; and to compromise disputed claims in
connection with the taxes hereby imposed;
3. To request information from the department of taxation and finance
of the state of New York or the state liquor authority or the officials
of any political subdivision of this state or the treasury department of
the United States relative to any person; and to afford information to
such department of taxation and finance, liquor authority, officials or
treasury department relative to any person, any other provision of this
chapter to the contrary notwithstanding;
4. To delegate his or her functions hereunder to a deputy or assistant
or other employee or employees of his or her department;
5. To assess, reassess, determine, revise and readjust the taxes
imposed under this chapter;
6. To provide by regulation for granting a refund of an appropriate
portion of the tax where the retail licensee ceases to do business
during the course of the tax year under circumstances which result in,
or would entitle such licensee to, a refund of license fee by the state
liquor authority. The provisions of section 11-2408 of this chapter
shall be applicable to such refunds.
Section 11-2413
§ 11-2413 Administration of oaths and compelling testimony. a. The
commissioner, his or her employees duly designated and authorized by the
commissioner, the tax appeals tribunal and any of its duly designated
and authorized employees shall have power to administer oaths and take
affidavits in relation to any matter or proceeding in the exercise of
their powers and duties under this chapter. The commissioner and the tax
appeals tribunal shall have power to subpoena and require the attendance
of witnesses and the production of books, papers and documents to secure
information pertinent to the performance of the duties of the
commissioner or the tax appeals tribunal hereunder and of the
enforcement of this chapter and to examine them in relation thereto, and
to issue commissions for the examination of witnesses who are out of the
state or unable to attend before the commissioner or the tax appeals
tribunal or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner or
the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4009 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal hereunder and witnesses attending
in response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
herein otherwise provided. Such officers shall be the city sheriff, and
his or her duly appointed deputies or any officers or employees of the
department of finance or the tax appeals tribunal, designated to serve
such process.
Section 11-2414
§ 11-2414 Interest and penalties. (a) Interest on underpayments. If
any amount of tax is not paid on or before the last date prescribed for
payment (without regard to any extension of time granted for payment),
interest on such amount at the rate set by the commissioner of finance
pursuant to subdivision (g) of this section, or, if no rate is set, at
the rate of seven and one-half percent per annum, shall be paid for the
period from such last date to the date of payment. In computing the
amount of interest to be paid, such interest shall be compounded daily.
Interest under this subdivision shall not be paid if the amount thereof
is less than one dollar.
(b) * (1) Failure to file return. (A) In case of failure to file a
return under this chapter on or before the prescribed date (determined
with regard to any extension of time for filing), unless it is shown
that such failure is due to reasonable cause and not due to willful
neglect, there shall be added to the amount required to be shown as tax
on such return five percent of the amount of such tax if the failure is
for not more than one month, with an additional five percent for each
additional month or fraction thereof during which such failure
continues, not exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return (determined with regard
to any extension of time for filing), unless it is shown that such
failure is due to reasonable cause and not due to willful neglect, the
addition to tax under subparagraph (A) of this paragraph shall not be
less than the lesser of one hundred dollars or one hundred percent of
the amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
* NB Amended Ch. 765/85 § 41, language juxtaposed per Ch. 907/85 § 14
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a return required to be filed under this chapter
on or before the prescribed date (determined with regard to any
extension of time for payment), unless it is shown that such failure is
due to reasonable cause and not due to willful neglect, there shall be
added to the amount shown as tax on such return one-half of one percent
of the amount of such tax if the failure is not for more than one month,
with an additional one-half of one percent for each additional month or
fraction thereof during which such failure continues, not exceeding
twenty-five percent in the aggregate. For the purpose of computing the
addition for any month the amount of tax shown on the return shall be
reduced by the amount of any part of the tax which is paid on or before
the beginning of such month and by the amount of any credit against the
tax which may be claimed upon the return. If the amount of tax required
to be shown on a return is less than the amount shown as tax on such
return, this paragraph shall be applied by substituting such lower
amount.
(3) Failure to pay tax required to be shown on return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown
(including a determination made pursuant to section 11-2407 of this
chapter) within ten days of the date of a notice and demand therefor,
unless it is shown that such failure is due to reasonable cause and not
due to willful neglect, there shall be added to the amount of tax stated
in such notice and demand one-half of one percent of such tax if the
failure is not for more than one month, with an additional one-half of
one percent for each additional month or fraction thereof during which
such failure continues, not exceeding twenty-five percent in the
aggregate. For the purpose of computing the addition for any month, the
amount of tax stated in the notice and demand shall be reduced by the
amount of any part of the tax which is paid before the beginning of such
month.
* (4) Limitations on additions.
(A) With respect to any return the amount of the addition under
paragraph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both paragraphs one and two. In any case
described in subparagraph (B) of paragraph one of this subdivision, the
amount of the addition under such paragraph one shall not be reduced
below the amount provided in such subparagraph.
(B) With respect to any return, the maximum amount of the addition
permitted under paragraph three of this subdivision shall be reduced by
the amount of the addition under paragraph one of this subdivision
(determined without regard to subparagraph (B) of such paragraph one)
which is attributable to the tax for which the notice and demand is made
and which is not paid within ten days of such notice and demand.
* NB Amended Ch. 765/85 § 41, language juxtaposed per Ch. 907/85 § 14
* (c) Underpayment due to negligence. (1) If any part of an
underpayment of tax is due to negligence or intentional disregard of
this chapter or any rules or regulations hereunder (but without intent
to defraud), there shall be added to the tax a penalty equal to five
percent of the underpayment.
(2) There shall be added to the tax (in addition to the amount
determined under paragraph one of this subdivision) an amount equal to
fifty percent of the interest payable under subdivision (a) of this
section with respect to the portion of the underpayment described in
such paragraph one which is attributable to the negligence or
intentional disregard referred to in such paragraph one, for the period
beginning on the last date prescribed by law for payment of such
underpayment (determined without regard to any extension) and ending on
the date of the assessment of the tax (or, if earlier, the date of the
payment of the tax).
* NB Amended Ch. 765/85 § 41, language juxtaposed per Ch. 907/85 § 14
* (d) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
fifty percent of the underpayment.
(2) There shall be added to the tax (in addition to the penalty
determined under paragraph one of this subdivision) an amount equal to
fifty percent of the interest payable under subdivision (a) of this
section with respect to the portion of the underpayment described in
such paragraph one which is attributable to fraud, for the period
beginning on the last day prescribed by law for payment of such
underpayment (determined without regard to any extension) and ending on
the date of the assessment of the tax (or, if earlier, the date of the
payment of the tax).
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
* NB Amended Ch. 765/85 § 41, language juxtaposed per Ch. 907/85 § 14
(e) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for 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 of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(g) (1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivision (a) of
this section, but if no such rate of interest is set, such rate shall be
deemed to be set at seven and one-half percent per annum. Such rate
shall be the rate prescribed in paragraph two of this subdivision but
shall not be less than seven and one-half percent per annum. Any such
rate set by the commissioner of finance shall apply to taxes, or any
portion thereof, which remain or become due on or after the date on
which such rate becomes effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the
treasury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent (or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent).
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this
subparagraph, the federal short-term rate for the first month in each
calendar quarter shall apply during the first calendar quarter beginning
after such month.
(ii) Special rule for the month of September, nineteen hundred
eighty-nine. The federal short-term rate for the month of April,
nineteen hundred eighty-nine shall apply with respect to setting the
rate of interest for the month of September, nineteen hundred
eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the city record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of
subdivision five of section one thousand forty-one of the city charter
relating to the definition of a rule.
* (h) Miscellaneous. (1) The certificate of the commissioner of
finance to the effect that a tax has not been paid, that a return has
not been filed, that information has not been supplied pursuant to the
provisions of this chapter or that records have not been retained
pursuant to the provisions of this chapter shall be prima facie evidence
thereof.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
* NB Amended Ch. 765/85 § 41, language juxtaposed per Ch. 907/85 § 14
Section 11-2415
§ 11-2415 Returns to be secret. a. Except in accordance with proper
judicial order, or as otherwise provided by law, it shall be unlawful
for the commissioner, the tax appeals tribunal or any officer or
employee of the city to divulge or make known in any manner any
information relating to the business of a taxpayer contained in any
return required under this chapter. The officers charged with the
custody of such 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 commissioner in an action or
proceeding under the provisions of this chapter, or on behalf of any
party to any action or proceeding under the provisions of this chapter
when the returns or facts shown thereby are directly involved in such
action or proceeding, in either of which events the court may require
the production of, and may admit in evidence, so much of said returns or
of the facts shown thereby, as are pertinent to the action or proceeding
and no more. Nothing herein shall be construed to prohibit the delivery
to a taxpayer or the taxpayer's duly authorized representative of a
certified copy of any return filed in connection with his or her tax nor
to prohibit the publication of statistics so classified as to prevent
the identification of particular returns and the items thereof, or the
inspection by the corporation counsel or other legal representatives of
the city, or by the district attorney of any county within the city, of
the 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 may be instituted. Returns shall be preserved for three
years and thereafter until the commissioner permits them to be
destroyed.
(b) (1) Any officer or employee of the city who willfully violates the
provisions of subdivision (a) of this section shall be dismissed from
office and be incapable of holding any public office in this city for a
period of five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
(c) This section shall be deemed a state statute for purposes of
paragraph (a) of subdivision two of section eighty-seven of the public
officers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter, the commissioner of finance shall be authorized to present to
the tribunal any report or return of such taxpayer, or any information
contained therein or relating thereto, which may be material or relevant
to the proceeding before the tribunal. The tax appeals tribunal shall be
authorized to publish a copy or a summary of any decision rendered
pursuant to section one hundred seventy-one of the charter.
Section 11-2416
§ 11-2416 Notices and limitations of time. a. Any notice authorized or
required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended in a postpaid envelope
addressed to such person at the address given in the last return filed
by him or her pursuant to the provisions of this chapter or in any
application made by him or her, or, if no return has been filed or
application made, then to such address as may be obtainable. The mailing
of such notice shall be presumptive evidence of the receipt of the same
by the person to whom addressed. Any period of time which is determined
according to the provisions of this chapter by the giving of notice
shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty or interest provided by this chapter. However, except in the
case of a wilfully false or fraudulent return with intent to evade the
tax, no assessment of additional tax shall be made after the expiration
of more than three years from the date of the filing of a return,
provided, however, that where no return has been filed as provided by
law the tax may be assessed at any time.
c. Where, before the expiration of the period prescribed herein for
the assessment of an additional tax, a taxpayer has consented in writing
that such period be extended, the amount of such additional tax due may
be determined at any time within such extended period. The period so
extended may be further extended by subsequent consents in writing made
before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made,
within a prescribed period or on or before a prescribed date under
authority of any provision of this chapter is, after such period or such
date, delivered by United States mail to the commissioner of finance,
the tax appeals tribunal, bureau, office, officer or person with which
or with whom such document is required to be filed, or to which or to
whom such payment is required to be made, the date of the United States
postmark stamped on the envelope shall be deemed to be the date of
delivery. This subdivision shall apply only if the postmark date falls
within the prescribed period or on or before the prescribed date for the
filing of such document, or for making the payment, including any
extension granted for such filing or payment, and only if such document
or payment was deposited in the mail, postage prepaid, properly
addressed to the commissioner of finance, the tax appeals tribunal,
bureau, office, officer or person with which or with whom the document
is required to be filed or to which or to whom such payment is required
to be made. If any document is sent by United States registered mail,
such registration shall be prima facie evidence that such document was
delivered to the commissioner of finance, the tax appeals tribunal,
bureau, office, officer or person to which or to whom addressed, and the
date of registration shall be deemed the postmark date. The commissioner
of finance and, where relevant, the tax appeals tribunal are authorized
to provide by regulation the extent to which the provisions of the
preceding sentence with respect to prima facie evidence of delivery and
the postmark date shall apply to certified mail. Except as provided in
subdivision f of this section, this subdivision shall apply in the case
of postmarks not made by the United States postal service only if and to
the extent provided by regulation of the commissioner of finance or,
where relevant, the tax appeals tribunal.
e. When the last day prescribed under authority of this chapter
(including any extension of time) for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance. Notwithstanding the foregoing, any withdrawal of designation or
additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the
commissioner of finance is inadequate for the needs of the city, the
commissioner of finance may withdraw such designation for purposes of
this title. Notwithstanding the foregoing, any withdrawal of designation
or additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
Section 11-2417
§ 11-2417 Construction and enforcement. This chapter shall be
construed and enforced in conformity with article twenty-nine of the tax
law, pursuant to which it is enacted.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
Special thanks to Benjarmin Kallos and Thom Neale who made this content publicly available as a bulk download.