N.Y. General City Model 772/66 § 78: Limitations on credit or refund

§ 78. Limitations on credit or refund. 1. General.--Claim for credit

or refund of an overpayment of tax under any of the named parts shall be

filed by the taxpayer within three years from the time the return was

filed or two years from the time the tax was paid, whichever of such

periods expires the later, or if no return was filed, within two years

from the time the tax was paid. If the claim is filed within the three

year period, the amount of the credit or refund shall not exceed the

portion of the tax paid within the three years immediately preceding the

filing of the claim plus the period of any extension of time for filing

the return. If the claim is not filed within the three year period, but

is filed within the two year period, the amount of the credit or refund

shall not exceed the portion of the tax paid during the two years

immediately preceding the filing of the claim. Except as otherwise

provided in this section, if no claim is filed, the amount of a credit

or refund shall not exceed the amount which would be allowable if a

claim had been filed on the date the credit or refund is allowed. For

special restriction in a proceeding on a claim for refund of tax paid

pursuant to an assessment made as a result of (a) a net operating loss

carryback, or (b) an increase or decrease in federal taxable income or

federal tax, or (c) a federal change or correction or renegotiation, or

computation or recomputation of tax, which is treated in the same manner

as if it were a deficiency for federal income tax purposes, see

paragraph (g) of subdivision three of section seventy-four.

2. Extension of time by agreement.--If an agreement under the

provisions of paragraph (b) of subdivision three of section seventy-four

(extending the period for assessment of tax) is made within the period

prescribed in subdivision one for the filing of a claim for credit or

refund, the period for filing a claim for credit or refund, or for

making credit or refund if no claim is filed, shall not expire prior to

six months after the expiration of the period within which an assessment

may be made pursuant to the agreement or any extension thereof. The

amount of such credit or refund shall not exceed the portion of the tax

paid after the execution of the agreement and before the filing of the

claim or the making of the credit or refund, as the case may be, plus

the portion of the tax paid within the period which would be applicable

under subdivision one if a claim had been filed on the date the

agreement was executed.

3. Notice of change or correction of fedearl income.--If a taxpayer is

required by part two or part three of this title to file a report or

amended return in respect of (a) a decrease or increase in federal

taxable income or federal tax, or (b) a federal change or correction or

renegotiation, or computation or recomputation of tax, which is treated

in the same manner as if it were an overpayment for federal income tax

purposes, claim for credit or refund of any resulting overpayment of tax

shall be filed by the taxpayer within two years from the time such

report or amended return was required to be filed with the commissioner

of finance. If the report or amended return required by part two or part

three of this title 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--

(c) shall be computed without change of the allocation of income or

capital upon which the taxpayer's return (or any additional assessment)

was based, and

(d) shall not exceed the amount of the reduction in tax attributable

to such decrease or increase in federal taxable income or federal tax or

to such federal change or correction or renegotiation, or computation or

recomputation of tax.

This subdivision shall not affect the time within which or the amount

for which a claim for credit or refund may be filed apart from this

subdivision.

4. Overpayment attributable to net operating loss carryback.--A claim

for credit or refund of so much of an overpayment under part two of this

title as is attributable to the application to the taxpayer of a net

operating loss carryback shall be filed within three years from the time

the return was due for the taxable year of the loss, or within the

period prescribed in subdivision two in respect of such taxable year, or

within the period prescribed in subdivision three, where applicable, in

respect of the taxable year to which the net operating loss is carried

back, whichever expires the latest. Where such claim for credit or

refund is filed after the expiration of the period prescribed in

subdivision one or in subdivision two where applicable, in respect of

the taxable year to which the net operating loss is carried back, the

amount of such credit or refund shall be computed without change of the

allocation of income or capital upon which the taxpayer's return (or any

additional assessment) was based.

5. Failure to file claim within prescribed period.--No credit or

refund shall be allowed or made, except as provided in subdivision six

of this section or subdivision four of section eighty-one, after the

expiration of the applicable period of limitation specified in this

part, unless a claim for credit or refund is filed by the taxpayer

within such period. Any later credit shall be void and any later refund

erroneous. No period of limitations specified in any other law shall

apply to the recovery by a taxpayer of moneys paid in respect of taxes

under the named parts.

6. Effect of petition to director of finance.--If a notice of

deficiency for a taxable year has been mailed to the taxpayer under

section seventy-two and if the taxpayer files a timely petition with the

director of finance under section eighty, he may determine that the

taxpayer has made an overpayment for such year (whether or not he also

determines a deficiency for such year). No separate claim for credit or

refund for such year shall be filed, and no credit or refund for such

year shall be allowed or made, except--

(a) as to overpayment determined by a decision of the director of

finance which has become final; and

(b) as to any amount collected in excess of an amount computed in

accordance with the decision of the director of finance which has become

final; and

(c) as to any amount collected after the period of limitation upon the

making of levy for collection has expired; and

(d) as to any amount claimed as a result of a change or correction

described in subdivision three.

7. Limit on amount of credit or refund.--The amount of overpayment

determined under subdivision six shall, when the decision of the

director of finance has become final, be credited or refunded in

accordance with subdivision one of section seventy-seven and shall not

exceed the amount of tax which the director of finance determines as

part of his decision was paid--

(a) after the mailing of the notice of deficiency, or

(b) within the period which would be applicable under subdivisions

one, two or three, if on the date of the mailing of the notice of

deficiency a claim had been filed (whether or not filed) stating the

grounds upon which the commissioner of finance finds that there is an

overpayment.

For special restriction on credit or refund in a proceeding on a

petition for redetermination of a deficiency where the notice of

deficiency is issued as a result of (i) a net operating loss carryback,

or (ii) an increase or decrease in federal taxable income or federal

tax, or (iii) a federal change or correction or renegotiation, or

computation or recomputation of tax, which is treated in the same manner

as if it were a deficiency for federal income tax purposes, see

paragraph (g) of subdivision three of section seventy-four.

8. Early return.--For purposes of this section, any return filed

before the last day prescribed for the filing thereof shall be

considered as filed on such last day, determined without regard to any

extension of time granted the taxpayer.

9. Prepaid tax.--For purposes of this section, any tax paid by the

taxpayer before the last day prescribed for its payment (including any

amount paid by the taxpayer as estimated tax for a taxable year) shall

be deemed to have been paid by it on the fifteenth day of the third

month following the close of the taxable year the income of which is the

basis for tax under part two or part three of this title, or on the last

day prescribed in subpart one of part four or in part five for the

filing of a final return for such taxable year, or portion thereof,

determined in all cases without regard to any extension of time granted

the taxpayer.

10. Cross reference.--For provision barring refund of overpayment

credited against tax of a succeeding year, see subdivision two of

section seventy-seven.

11. Notice of change or correction of sales and compensating use tax

liability.--If a taxpayer is required by part two of this title to file

a report or amended return in respect of a change or correction of its

sales and compensating use tax liability, claim for credit or refund of

any resulting overpayment of tax shall be filed by the taxpayer within

two years from the time such report or amended return was required to be

filed with the commissioner of finance. If the report or amended return

required by part two of that title 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 be computed without change of the allocation of

income or capital upon which the taxpayer's return (or any additional

assessment) was based, and shall not exceed the amount of the reduction

in tax attributable to such change or correction of sales and

compensating use tax liability.

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.