N.Y. Tax Law § 1083: Limitations on assessment

§ 1083. Limitations on assessment.--- (a) General.--- Except as

otherwise provided in this section, any tax under article nine, nine-a,

nine-b or nine-c shall be assessed within three years after the return

was filed (whether or not such return was filed on or after the date

prescribed).

(b) Time return deemed filed.---For purposes of this section, a return

of tax filed before the last day prescribed by law or by regulations

promulgated pursuant to law for the filing thereof shall be deemed to be

filed on such last day.

(c) Exceptions.---

(1) Assessment at any time.---The tax may be assessed at any time

if---

(A) no return is filed,

(B) a false or fraudulent return is filed with intent to evade tax,

(C) in the case of the tax imposed under article nine-a, nine-b or

nine-c, the taxpayer fails to file a report or amended return required

under subdivision three of section two hundred eleven or section two

hundred nineteen-bb or two hundred nineteen-zz, in respect of an

increase or decrease in federal taxable income or federal alternative

minimum taxable income or federal tax, or in respect of a 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, or

(D) it is assessed in respect of a final determination of a refund or

credit of retaliatory taxes or other charges as prescribed by paragraphs

(1) and (2) of subsection (i) of section one thousand eighty-one. For

any such assessment, the amount of the assessment of tax shall not

exceed the amount of the increase in New York tax attributable to such

refund or credit. The provisions of this subparagraph shall not extend

the time within which or affect the amount for which an assessment may

otherwise be made.

(2) Extension by agreement.---Where, before the expiration of the time

prescribed in this section for the assessment of tax, both the tax

commission and the taxpayer have consented in writing to its assessment

after such time, the tax may be assessed at any time prior to the

expiration of the period agreed upon. The period so agreed upon may be

extended by subsequent agreements in writing made before the expiration

of the period previously agreed upon.

(3) Report of changed or corrected federal income.---In the case of

the tax imposed under article nine-a, nine-b or nine-c, if the taxpayer

files a report or amended return required under subdivision three of

section two hundred eleven or section two hundred nineteen-bb or two

hundred nineteen-zz, in respect of an increase or decrease in federal

taxable income or federal alternative minimum taxable income or federal

tax, or in respect of a 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, 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 New York tax

attributable to such federal change or correction or renegotiation, or

computation or recomputation of tax. The provisions of this paragraph

shall not affect the time within which or the amount for which an

assessment may otherwise be made.

(4) Deficiency attributable to carryback.---If a deficiency of tax

under article nine-a is attributable to the application to the taxpayer

of a net operating loss carryback or a capital loss carryback, it may be

assessed at any time that a deficiency for the taxable year of the loss

may be assessed.

(5) Recovery of erroneous refund.---An erroneous refund shall be

considered an underpayment of tax on the date made, and an assessment of

a deficiency arising out of an erroneous refund may be made at any time

within two years from the making of the refund, except that the

assessment may be made within five years from the making of the refund

if it appears that any part of the refund was induced by fraud or

misrepresentation of a material fact.

(6) Request for prompt assessment.---The tax shall be assessed within

eighteen months after written request therefor (made after the return is

filed) by the taxpayer or by a fiduciary representing the taxpayer, but

not more than three years after the return was filed, except as

otherwise provided in this subsection and subsection (d). This

subsection shall not apply unless---

(A) (i) such written request notifies the tax commission that the

taxpayer contemplates dissolution at or before the expiration of such

eighteen-month period, (ii) the dissolution is in good faith begun

before the expiration of such eighteen-month period, and (iii) the

dissolution is completed;

(B) (i) such written request notifies the tax commission that a

dissolution has in good faith been begun, and (ii) the dissolution is

completed; or

(C) a dissolution has been completed at the time such written request

is made.

(7) Change of the allocation of taxpayer's income or capital.---No

change of the allocation of income or capital upon which the taxpayer's

return (or any additional assessment) was based shall be made where an

assessment of tax is made during the additional period of limitation

under subparagraph (C) of paragraph (1), or under paragraph (3) or (4);

and where any such assessment has been made, or where a notice of

deficiency has been mailed to the taxpayer on the basis of any such

proposed assessment, no change of the allocation of income or capital

shall be made in a proceeding on the taxpayer's claim for refund of such

assessment or on the taxpayer's petition for redetermination of such

deficiency.

(8) Report concerning waste treatment facility, air pollution control

facility or eligible business facility. Under the circumstances

described in subparagraph (3) of paragraph (g) of subdivision nine of

section two hundred eight, paragraph (f) of subdivision eleven of

section two hundred ten or paragraph (f) of subdivision eleven of

section two hundred nineteen-q of this chapter, the tax may be assessed

within three years after the filing of the report containing the

information required by such paragraph, or, if a certificate of

compliance in respect to an air pollution control facility shall be

revoked, within three years after the tax commission shall receive

notice of such revocation from the taxpayer or as required by

subdivision three of section 19-0309 of the environmental conservation

law, whichever notice is received earlier.

(9) Reports concerning empire zone credits. If a taxpayer's

certification under article eighteen-B of the general municipal law is

revoked with respect to an empire zone or zone equivalent area, any tax

liability generated by reason of such decertification may be assessed

within three years after the commissioner has received notice of such

decertification as required by subdivision (a) of section nine hundred

fifty-nine of the general municipal law.

(10) Reports concerning a certificate of completion. If a taxpayer's

certificate of completion issued pursuant to section 27-1419 of the

environmental conservation law is revoked by a determination issued

pursuant to section 27-1419 of the environmental conservation law, any

tax liability generated by reason of such revocation may be assessed

within one year after such determination is final and is no longer

subject to judicial review.

* (11) Extended statute of limitations for tax avoidance

transactions.--(A) If a taxpayer fails to file, disclose or provide any

statement, return or other information for any taxable year with respect

to a listed transaction (as defined in paragraph three of subsection (p)

of section one thousand eighty-five of this article) which is required

under subdivision (a) of section twenty-five of this chapter, the time

for assessment of any tax imposed by this article with respect to such

transaction shall not expire before the date which is one year after the

earlier of:

(i) the date on which the commissioner is furnished the statement,

return, or information so required, or

(ii) the date that the requirements of subdivision (c) of section

twenty-five of this chapter are met with respect to a request under such

subdivision by the commissioner relating to such transaction.

(B) If later than the time for assessment otherwise provided by this

section, tax may be assessed at any time within six years after the

return was filed if the deficiency is attributable to an abusive tax

avoidance transaction.

(C) For purposes of subparagraph (B) of this paragraph, an "abusive

tax avoidance transaction" means a plan or arrangement devised for the

principal purpose of avoiding tax. Abusive tax avoidance transactions

include, but are not limited to, listed transactions described in

paragraph five of subsection (k-1) of section one thousand eighty-five

of this article.

* NB Repealed July 1, 2029

(12) Except as otherwise provided in paragraph three of this

subsection, or as otherwise provided in this section where a longer

period of time may apply, if a taxpayer files an amended return, an

assessment of tax (if not deemed to have been made upon the filing of

the amended return), including recovery of a previously paid refund,

attributable to a change or correction on the amended return from a

prior return may be made at any time within one year after such amended

return is filed.

(d) Omission of income on return.---The tax may be assessed at any

time within six years after the return was filed if (i) a taxpayer omits

from gross income required to be reported on a return under article

nine, nine-a, nine-b or nine-c an amount properly includible therein

which is in excess of twenty-five percent of the amount of gross income

stated in the return or, (ii) a taxpayer omits from the sum of its items

of tax preference and its adjustment required in the computation of

minimum taxable income an amount properly includible therein which is in

excess of twenty-five percent of such sum as stated in the return.

For purposes of this subsection---

(1) the term gross income means gross income for federal income tax

purposes as reportable on a return under article nine-a, and "gross

earnings", "gross income", "gross operating income" and "gross direct

premiums less return premiums", as those terms are used in article nine,

nine-b or nine-c, whichever is applicable;

(2) 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

tax commission of the nature and amount of such item.

(e) Suspension of running of period of limitation.---The running of

the period of limitations on assessment or collection of tax or other

amount (or of a transferee's liability) shall, after the mailing of a

notice of deficiency, be suspended for the period during which the tax

commission is prohibited under subsection (c) of section one thousand

eighty-one from making the assessment or from collecting by levy.