N.Y. General City Model 772/66 § 76: Additions to tax and civil penalties

§ 76. Additions to tax and civil penalties. 1. Failure to file

return.--In case of failure to file a return under the named parts 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 percentum of

the amount of such tax if the failure is for not more than one month,

with an additional five percentum for each additional month or fraction

thereof during which such failure continues, not exceeding twenty-five

percentum 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.

2. Deficiency due to negligence.--If any part of a deficiency is due

to negligence or intentional disregard of this part or any of the named

parts or rules or regulations thereunder (but without intent to

defraud), there shall be added to the tax an amount equal to five

percentum of the deficiency.

3. Failure to file declaration or underpayment of estimated tax.--If

any taxpayer fails to file a declaration of estimated tax under part two

or part three, or fails to pay all or any part of an amount which is

applied as an installment against such estimated tax, it shall be deemed

to have made an underpayment of estimated tax. There shall be added to

the tax for the taxable year an amount at the rate set by the

commissioner of finance pursuant to section eighty-seven, or, if no rate

set, at the rate of six percentum per annum upon the amount of the

underpayment for the period of the underpayment but not beyond the

fifteenth day of the third month following the close of the taxable

year. The amount of the underpayment shall be, with respect to any

installment of estimated tax computed on the basis of the preceding

year's tax, the excess of the amount required to be paid over the

amount, if any, paid on or before the last day prescribed for such

payment or, with respect to any other installment of estimated tax, the

excess of the amount of the installment which would be required to be

paid if the estimated tax were equal to ninety percentum of the tax

shown on the return for the taxable year (or if no return was filed,

ninety per centum of the tax for such year) over the amount, if any, of

the installment paid on or before the last day prescribed for such

payment. In any case in which there would be no underpayment if "eighty

per centum" were substituted for "ninety per centum" each place it

appears in this subdivision, the addition to the tax shall be equal to

seventy-five per centum of the amount otherwise determined. No

underpayment shall be deemed to exist with respect to a declaration or

installment otherwise due on or after the termination of existence of

the taxpayer.

4. Exception to addition for underpayment of estimated tax.--The

addition to tax under subdivision three with respect to any underpayment

of any amount which is applied as an installment against estimated tax

under part two or part three of this title shall not be imposed if the

total amount of all payments of estimated tax made on or before the last

date prescribed for the payment of any such amount equals or exceeds the

amount which would have been required to be paid on or before such date

if the estimated tax were whichever of the following is the least--

(a) The tax shown on the return of the taxpayer for the preceding

taxable year, if a return showing a liability for tax was filed by the

taxpayer for the preceding taxable year and such preceding year was a

taxable year of twelve months, or

(b) An amount equal to the tax computed at the rates applicable to the

taxable year, but otherwise on the basis of the facts shown on the

return of the taxpayer for, and the law applicable to, the preceding

taxable year, or

(c) (i) An amount equal to ninety percentum of the tax for the taxable

year computed by placing on an annualized basis the taxable income--

(1) for the first three months or the first five months of the taxable

year, in the case of the installment required to be paid in the sixth

month,

(2) for the first six months, the first eight months or the first nine

months of the taxable year, in the case of the installment required to

be paid in the tenth month, and

(3) for the first nine months, the first eleven months or the full

twelve months of the taxable year, in the case of the installment

required to be paid in the first month of the next succeeding year.

(ii) For purposes of subparagraph (i), the taxable income shall be

placed on an annualized basis by--

(1) multiplying it by twelve (or, in the case of a taxable year of

less than twelve months, the number of months in the taxable year), and

(2) dividing the resulting amount by the number of months in the

taxable year (three, five, six, eight, nine, eleven or twelve, as the

case may be) referred to in subparagraph (i), or

(d) (i) If the base period percentage for any six consecutive months

of the taxable year equals or exceeds seventy percent, an amount equal

to ninety percent of the tax determined in the following manner--

(A) take the taxable income for all months during the taxable year

preceding the filing month,

(B) divide such amount by the base period percentage for all months

during the taxable year preceding the filing month,

(C) determine the tax on the amount determined under clause (B), and

(D) multiply the tax determined under clause (C) by the base period

percentage for the filing month and all months during the taxable year

preceding the filing month.

(ii) For purposes of subparagraph (i)--

(A) the base period percentage for any period of months shall be the

average percent which the taxable income for the corresponding months in

each of the three preceding taxable years bears to the taxable income

for the three preceding taxable years. The commissioner of finance may

by regulations provide for the determination of the base period

percentage in the case of reorganizations, new corporations, and other

similar circumstances, and

(B) the term "filing month" means the month in which the installment

is required to be paid.

5. Allocation of net income.--(a) Except as provided in paragraph (b)

hereof, paragraphs (a) and (b) of subdivision four of this section shall

not apply in the case of any corporation (or any predecessor

corporation) which had entire net income, or the portion thereof

allocated within the city, of one million dollars or more for any

taxable year during the three taxable years immediately preceding the

taxable year involved.

(b) The amount treated as the estimated tax under paragraphs (a) and

(b) of subdivision four of this section shall in no event be less than

seventy-five percent of the tax shown on the return for the taxable year

beginning in nineteen hundred eighty-three or, if no return was filed,

seventy-five percent of the tax for such year.

6. Deficiency due to fraud.--If any part of a deficiency is due to

fraud, there shall be added to the tax an amount equal to fifty

percentum of the deficiency. This amount shall be in lieu of any other

addition to tax imposed by subdivision one or two.

7. Additional penalty.--Any person who with fraudulent intent shall

fail to pay under the named parts any tax, or to make, render, sign or

certify any return or declaration of estimated tax, or to supply any

information within the time required by or under any of the named parts,

shall be liable to penalty of not more than one thousand dollars, in

addition to any other amounts required under this part to be imposed,

assessed and collected by the director of finance. The director of

finance shall have the power, in his discretion, to waive, reduce or

compromise any penalty under this subdivision.

8. Additions treated as tax.--The additions to tax and penalties

provided by this section shall be paid upon notice and demand and shall

be assessed, collected and paid in the same manner as taxes, and any

reference in this part to tax imposed by any of the named parts shall be

deemed also to refer to the additions to tax and penalties provided by

this section. For purposes of section seventy-two, this subdivision

shall not apply to--

(a) any addition to tax under subdivision one except as to that

portion attributable to a deficiency;

(b) any addition to tax under subdivision three; and

(c) any additional penalty under subdivision seven.

9. Determination of deficiency.--For purposes of subdivisions two and

six the amount shown as the tax by the taxpayer upon its return shall be

taken into account in determining the amount of the deficiency only if

such return was filed on or before the last day prescribed for the

filing of such return, determined with regard to any extension of time

for such filing.

10. Person defined.--For purposes of subdivision seven, 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.

11. Substantial understatement of liability.--If there is a

substantial understatement of tax for any taxable year, there shall be

added to the tax an amount equal to ten percent of the amount of any

underpayment attributable to such understatement. For purposes of this

subdivision, there is a substantial understatement of tax for any

taxable year if the amount of the understatement for the taxable year

exceeds the greater of ten percent of the tax required to be shown on

the return for the taxable year, or ten thousand dollars except that for

an electing small business corporation as defined in section thirteen

hundred sixty-one of the internal revenue code a substantial

understatement exists if the amount of the understatement exceeds ten

percent of the tax or five thousand dollars. For purposes of the

preceding sentence, the term "understatement" means the excess of the

amount of the tax required to be shown on the return for the taxable

year, over the amount of the tax imposed which is shown on the return.

The amount of the understatement under the preceding sentence shall be

reduced by that portion of the understatement which is attributable to

the tax treatment of any item by the taxpayer if there is or was

substantial authority for such treatment, or any item with respect to

which the relevant facts affecting the item's tax treatment are

adequately disclosed in the return or in a statement attached to the

return. The commissioner of finance may waive all or any part of the

addition to tax provided by this subdivision on a showing by the

taxpayer that there was reasonable cause for the understatement (or part

thereof) and that the taxpayer acted in good faith.