N.Y. Tax Law § 1092: Collection, levy and liens

§ 1092. Collection, levy and liens.---(a) Collection procedures.---The

taxes imposed by articles nine, nine-a, nine-b or nine-c shall be

collected by the tax commission, and it may establish the mode or time

for the collection of any amount due it under these articles if not

otherwise specified. The tax commission shall, upon request, give a

receipt for any sum collected under such articles. The tax commission

may authorize banks or trust companies which are depositaries or

financial agents of the state to receive and give a receipt for any tax

imposed under such articles in such manner, at such times, and under

such conditions as the tax commission may prescribe; and the tax

commission shall prescribe the manner, times and conditions under which

the receipt of such tax by such banks and trust companies is to be

treated as payment of such tax to the tax commission.

(b) Notice and demand for tax.---The tax commission shall as soon as

practicable give notice to each taxpayer liable for any amount of tax,

addition to tax, penalty or interest, which has been assessed but

remains unpaid, stating the amount and demanding payment thereof. Such

notice shall be left at the principal office of the taxpayer in this

state or shall be sent by mail to such taxpayer's last known address.

Except where the tax commission determines that collection would be

jeopardized by delay, if any tax is assessed prior to the last date

(including any date fixed by extension) prescribed for payment of such

tax, payment of such tax shall not be demanded until after such date.

(c) Issuance of warrant after notice and demand.---If any corporation

or other person liable under articles nine or nine-a for the payment of

any tax, addition to tax, penalty or interest neglects or refuses to pay

the same within twenty-one calendar days after notice and demand

therefor is given to such corporation or other person under subsection

(b) of this section (ten business days if the amount for which such

notice and demand is made equals or exceeds one hundred thousand

dollars), the commissioner may within six years after the date of such

assessment issue a warrant under the commissioner's official seal

directed to the sheriff of any county of the state, or to any officer or

employee of the department, commanding him to levy upon and sell the

real and personal property of such corporation or other person for the

payment of the amount assessed, with the cost of executing the warrant,

and to return such warrant to the commissioner and pay to him or her the

money collected by virtue thereof within sixty days after the receipt of

the warrant. If the commissioner finds that the collection of the tax or

other amount is in jeopardy, notice and demand for immediate payment of

such tax may be made by the commissioner and upon failure or refusal to

pay such tax or other amount the commissioner may issue a warrant

without regard to the twenty-one day period (or ten-day period if

applicable) provided in this subsection. For purposes of this

subsection, the term corporation shall include an exempt QSSS of such

corporation.

(d) Copy of warrant to be filed and lien to be created.---Any sheriff

or officer or employee who receives a warrant under subsection (c) shall

within five days thereafter file a copy with the clerk of the

appropriate county. The clerk shall thereupon enter in the judgment

docket, in the column for judgment debtors, the name of the taxpayer

mentioned in the warrant, and in appropriate columns the tax or other

amounts for which the warrant is issued and the date when such copy is

filed; and such amount shall thereupon be a lien upon the title to and

interest in real, personal and other property of the taxpayer. Such lien

shall not apply to personal property unless such warrant is filed in the

department of state. For purposes of this subsection, the term taxpayer

shall include an exempt QSSS of such taxpayer.

(e) Judgment.---When a warrant has been filed with the county clerk

the tax commission shall, in the right of the people of the state of New

York, be deemed to have obtained judgment against the taxpayer for the

tax or other amounts. For purposes of this subsection, the term

taxpayer shall include an exempt QSSS of such taxpayer.

(f) Execution.---The sheriff or officer or employee shall thereupon

proceed upon the warrant in all respects, with like effect, and in the

same manner prescribed by law in respect to executions issued against

property upon judgments of a court of record, and a sheriff shall be

entitled to the same fees for his services in executing the warrant, to

be collected in the same manner. An officer or employee of the

department of taxation and finance may proceed in any county or counties

of this state and shall have all the powers of execution conferred by

law upon sheriffs, but shall be entitled to no fee or compensation in

excess of actual expenses paid in connection with the execution of the

warrant.

(g) Foreign corporations.---Where a notice and demand under subsection

(b) shall have been given to a foreign corporation or other person who

is not then a resident, and it appears to the tax commission that it is

not practicable to find in this state property of such foreign

corporation or nonresident person sufficient to pay the entire balance

of tax or other amount owing by such foreign corporation or nonresident

person, the tax commission may, in accordance with subsection (c), issue

a warrant directed to an officer or employee of the department of

taxation and finance, a copy of which warrant shall be mailed by

certified or registered mail to such foreign corporation or nonresident

person at its last known address, subject to the rules for mailing

provided in subsection (a) of section one thousand eighty-one. Such

warrant shall command the officer or employee to proceed in Albany

county, and he shall, within five days after receipt of the warrant,

file the warrant and obtain a judgment in accordance with this section.

Thereupon the tax commission may authorize the institution of any action

or proceeding to collect or enforce the judgment in any place and by any

procedure that a civil judgment of the supreme court of the state of New

York could be collected or enforced. The tax commission may also, in its

discretion, designate agents or retain counsel for the purpose of

collecting, outside the state of New York, any unpaid taxes, additions

to tax, penalties or interest which have been assessed under this

article or under article nine, nine-a, nine-b or nine-c, against foreign

corporations or other nonresident persons, may fix the compensation of

such agents and counsel to be paid out of money appropriated or

otherwise lawfully available for payment thereof, and may require of

them bonds or other security for the faithful performance of their

duties, in such form and in such amount as the tax commission shall deem

proper and sufficient. For purposes of this subsection, the term

corporation shall include an exempt QSSS of such corporation.

(h) Action by state for recovery of taxes.---Action may be brought by

the attorney general at the instance of the tax commission in the name

of the state to recover the amount of any unpaid taxes, additions to

tax, penalties or interest which have been assessed under this article

or under article nine, nine-a, nine-b or nine-c within six years prior

to the date the action is commenced.

(i) Release of lien.---The tax commission, if it finds that the

interests of the state will not thereby be jeopardized, and upon such

conditions as it may require, may release any property from the lien of

any warrant filed under subsection (d) or (g) for unpaid taxes,

additions to tax, penalties and interest filed pursuant to this section,

and such release may be recorded in the office of any recording officer

in which such warrant has been filed.

(j) Lien from due date of return.---(1) In addition to any other lien

provided for in this section, each tax imposed by article nine, nine-a,

nine-b or nine-c shall become a lien on the date on which the return is

required to be filed (without regard to any extension of time for filing

such return), except that such tax shall become a lien not later than

the date the taxpayer ceases to be subject to the tax imposed by any

such article or to exercise its franchise, or to do business in this

state in a corporate or organized capacity. Each such tax shall be a

lien and binding upon the real and personal property of the taxpayer, or

of a transferee liable to pay the same, until the same is paid in full,

except that no lien for any additional tax assessed pursuant to this

article shall be enforceable against property which prior to the

issuance to the taxpayer of a notice of deficiency under section one

thousand eighty-one had been transferred in good faith to a bona fide

transferee for value. But the lien of each such tax shall be subject to

the lien of any mortgage indebtedness existing against real property

previous to the time when the tax became a lien and where such mortgage

indebtedness has been incurred in good faith and was not given, directly

or indirectly, to any officer or stockholder of the corporation owning

such real property, whether as a purchase money mortgage or otherwise,

and shall also be subject to the lien of local taxes and assessments,

without regard to when the lien for such taxes and assessments may have

accrued. If the return is filed and the tax shown on the report to be

due is paid on or before the date on which the report is required to be

filed, without regard to any extensions of time for filing such report,

the lien shall not be enforceable against the interest of any purchaser

or mortgagee in property which is thereafter, but prior to the issuance

to the taxpayer of a notice of deficiency under section one thousand

eighty-one, transferred to a bona fide purchaser for value, or mortgaged

where the mortgage indebtedness is incurred in good faith and the

mortgage is not given, directly or indirectly, to any officer or

stockholder of the corporation. In any action to foreclose any such

mortgage, or to foreclose the lien of local taxes or assessments, to

which the people of the state of New York shall have been made a party

defendant by reason of the existence of a lien for any such tax, or if

no such tax was due or was a lien at the time of the commencement of

such action and the filing of the notice of pendency thereof, but such a

tax becomes due or becomes a lien subsequent to the time of the

commencement of such action and the filing of the notice of pendency

thereof, such real property shall be sold and conveyed in such action

free from any such tax lien, and any such tax lien may become a lien on

any surplus moneys which may result from such sale, to be determined in

the proceedings for the distribution of such surplus moneys. Where title

to real property passes from an individual, or from a corporation owing

no franchise tax, to another corporation which is in default for such

tax, the lien herein provided shall not be enforceable except as to any

equity after the prior mortgage or purchase money mortgage encumbrance.

For purposes of this paragraph, the terms taxpayer and corporation shall

include an exempt QSSS of such taxpayer or corporation.

(2) The tax commission may, upon application made to it and the

payment of a fee of fifty dollars, release any real property from the

lien under this subsection, provided payment be made to the tax

commission of such a sum as the tax commission shall deem adequate

consideration for such release, or deposit be made of such security or

such bond be filed as the tax commission shall deem proper to secure

payment of any such tax. The application for such release shall contain

an accurate description of the property to be released together with

such other information as the tax commission may require. Such release

may be recorded in any office in which conveyances of real estate are

entitled to be recorded.

(3) All taxes, additions to tax, penalties and interest which have

become a lien under this subsection shall cease to be a lien after the

expiration of twenty years from date they become due and payable, except

that taxes, additions to tax, penalties and interest which have become a

lien under this subsection (i) as to real estate in the hands of persons

who are owners thereof who would be purchasers in good faith but for

such taxes, additions to tax, penalties or interest and (ii) as to the

lien on real estate of mortgages held by persons who would be holders

thereof in good faith but for such taxes, additions to tax, penalties or

interest, as against such purchasers or holders shall cease to be a lien

after the expiration of ten years from date they become due and payable.

The limitations herein provided for shall not apply to any transfer from

a corporation to a person or corporation with intent to avoid payment of

any taxes, or where with like intent the transfer is made to a grantee

corporation, or any subsequent grantee corporation, controlled by such

grantor or which has any community of interest with it, either through

stock ownership or otherwise.