N.Y. Tax Law § 1089: Petition to tax commission

§ 1089. Petition to tax commission.--(a) General.--The form of a

petition to the tax commission, and further proceedings before the tax

commission in any case initiated by the filing of a petition, shall be

governed by such rules as the tax commission 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

one or more members of the tax commission, or by a hearing officer

designated by the tax commission to take evidence and report to the tax

commission. The tax commissioners shall, acting as a body, jointly

decide the case as quickly as practicable. Notice of decision shall be

mailed promptly to the taxpayer by certified or registered mail at its

last known address, and such notice shall set forth the tax commission'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.

(b) Petition for redetermination of a deficiency.---Within ninety

days, or one hundred fifty days if the notice is addressed to a taxpayer

whose last known address is outside of the United States, after the

mailing of the notice of deficiency authorized by section one thousand

eighty-one, the taxpayer may file a petition with the tax commission 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 subsection (g) of section one thousand eighty-seven. For

special restriction where the notice of deficiency relates to a proposed

assessment made as a result of (i) a net operating loss carryback or

capital loss carryback, (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 (7) of subsection (c) of section one thousand

eighty-three.

(c) Petition for refund.---A taxpayer may file a petition with the tax

commission for the amounts asserted in a claim for refund if---

(1) the taxpayer has filed a timely claim for refund with the tax

commission,

(2) the taxpayer has not previously filed with the tax commission a

timely petition under subsection (b) of this section for the same

taxable year unless the petition under this subsection relates to a

separate claim for credit or refund properly filed under subsection (f)

of section one thousand eighty-seven of this article or relates to a

refund or credit first claimed on an amended return for the taxable

year, and

(3) either (A) six months have expired since the claim was filed, or

(B) the tax commission has mailed to the taxpayer, by registered or

certified mail, a notice of disallowance of such claim in whole or in

part.

(4) Notwithstanding paragraph three of this subsection, no petition

may be filed by a taxpayer claiming a refund of one or more empire zone

tax credits for a taxable year beginning on or after January first, two

thousand eight and before January first, two thousand nine, until six

months have expired after the date on which an empire zone retention

certificate was issued pursuant to subdivision (w) of section nine

hundred fifty-nine of the general municipal law to the empire zone

enterprise which is the basis for the tax credit or credits claimed on

the return or report.

No petition under this subsection shall be filed more than two years

after the date of mailing of a notice of disallowance, unless prior to

the expiration of such two year period it has been extended by written

agreement between the taxpayer and the tax commission. If a taxpayer

files a written waiver of the requirement that he be mailed a notice of

disallowance, the two year period prescribed by this subsection for

filing a petition for refund shall begin on the date such waiver is

filed.

(d) Assertion of deficiency after filing petition.---

(1) Petition for redetermination of deficiency.---If a taxpayer files

with the tax commission a petition for redetermination of a deficiency,

the tax commission shall have power to determine a greater deficiency

than asserted in the notice of deficiency and to determine if there

should be assessed any addition to tax or penalty provided in section

one thousand eighty-five, if claim therefor is asserted at or before the

hearing under rules of the tax commission.

(2) Petition for refund.---If the taxpayer files with the tax

commission a petition for credit or refund for a taxable year, the tax

commission may

(A) determine a deficiency for such year as to any amount of

deficiency asserted at or before the hearing under rules of the tax

commission, and within the period in which an assessment would be timely

under section one thousand eighty-three, 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 tax commission.

(3) Opportunity to respond.--- A taxpayer shall be given a reasonable

opportunity to respond to any matters asserted by the tax commission

under this subsection.

(4) Restriction on further notices of deficiency.---If the taxpayer

files a petition with the tax commission under this section, no notice

of deficiency under section one thousand eighty-one of this article may

thereafter be issued by the tax commission for the same tax return,

except in case of fraud or with respect to an increase or decrease in

federal taxable income or federal alternative minimum taxable income or

federal tax or 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, required to

be reported under subdivision three of section two hundred eleven of

this chapter.

(e) Burden of proof.---In any case before the tax commission under

this article, 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 tax commission:

(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, but not to show that the taxpayer was liable for the tax;

(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 an increase or decrease in federal

taxable income or federal alternative minimum taxable income or federal

tax or 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, required to be

reported under subdivision three of section two hundred eleven, or under

section two hundred nineteen-bb, or under section two hundred

nineteen-zz, and of which increase, decrease, change or correction or

renegotiation, or computation or recomputation, the tax commission had

no notice at the time it mailed the notice of deficiency; and

(4) whether any person is liable for a penalty under subsection (l) of

section one thousand eighty-five.

(f) Evidence of related federal determination.---Evidence of a federal

determination relating to issues raised in a case before the tax

commission under this section shall be admissible, under rules

established by the tax commission.

(g) Jurisdiction over other years.---The tax commission 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.