N.Y. Tax Law § 1094: Jeopardy assessment

§ 1094. Jeopardy assessment.---(a) Authority for making.---If the tax

commission believes that the assessment or collection of a deficiency

will be jeopardized by delay, it shall, notwithstanding the provisions

of section one thousand eighty-one, immediately assess such deficiency

(together with all interest, penalties and additions to tax provided for

by law), and notice and demand shall be made by the tax commission for

the payment thereof.

(b) Notice of deficiency.---If the jeopardy assessment is made before

any notice in respect of the tax to which the jeopardy assessment

relates has been mailed under section one thousand eighty-one, then the

tax commission shall mail a notice under such section within sixty days

after the making of the assessment.

(c) Amount assessable before decision of tax commission.---The

jeopardy assessment may be made in respect of a deficiency greater or

less than that of which notice is mailed to the taxpayer and whether or

not the taxpayer has theretofore filed a petition with the tax

commission. The tax commission may, at any time before rendering its

decision, abate such assessment, or any unpaid portion thereof, to the

extent that it believes the assessment to be excessive in amount. The

tax commission may in its decision redetermine the entire amount of the

deficiency and of all amounts assessed at the same time in connection

therewith.

(d) Amount assessable after decision of tax commission.--- If the

jeopardy assessment is made after the decision of the tax commission is

rendered, such assessment may be made only in respect of the deficiency

determined by the tax commission in its decision.

(e) Expiration of right to assess.---A jeopardy assessment may not be

made after the decision of the tax commission has become final or after

the taxpayer has made an application for review of the decision of the

tax commission.

(f) Collection of unpaid amounts.---When a petition has been filed

with the tax commission and when the amount which should have been

assessed has been determined by a decision of the tax commission which

has become final, then any unpaid portion, the collection of which has

been stayed by bond, shall be collected as part of the tax upon notice

and demand from the tax commission, and any remaining portion of the

assessment shall be abated. If the amount already collected exceeds the

amount determined as the amount which should have been assessed, such

excess shall be credited or refunded to the taxpayer as provided in

section one thousand eighty-six without the filing of claim therefor. If

the amount determined as the amount which should have been assessed is

greater than the amount actually assessed, then the difference shall be

assessed and shall be collected as part of the tax upon notice and

demand from the tax commission.

(g) Abatement if jeopardy does not exist.---The tax commission may

abate the jeopardy assessment if it finds that jeopardy does not exist.

Such abatement may not be made after a decision of the tax commission in

respect of the deficiency has been rendered or, if no petition is filed

with the tax commission, after the expiration of the period for filing

such petition. The period of limitation on the making of assessments and

levy or a proceeding for collection, in respect of any deficiency, shall

be determined as if the jeopardy assessment so abated had not been made,

except that the running of such period shall in any event be suspended

for the period from the date of such jeopardy assessment until the

expiration of the tenth day after the day on which such jeopardy

assessment is abated.

(h) Bond to stay collection.---The collection of the whole or any

amount of any jeopardy assessment may be stayed by filing with the tax

commission, within such time as may be fixed by regulation, a bond in an

amount equal to the amount as to which the stay is desired, conditioned

upon the payment of the amount (together with interest thereon) the

collection of which is stayed at the time at which, but for the making

of the jeopardy assessment, such amount would be due. Upon the filing of

the bond the collection of so much of the amount assessed as is covered

by the bond shall be stayed. The taxpayer shall have the right to waive

such stay at any time in respect of the whole or any part of the amount

covered by the bond, and if as a result of such waiver any part of the

amount covered by the bond is paid, then the bond shall at the request

of the taxpayer, be proportionately reduced. If any portion of the

jeopardy assessment is abated, or if a notice of deficiency under

section one thousand eighty-one is mailed to the taxpayer in a lesser

amount, the bond shall, at the request of the taxpayer, be

proportionately reduced.

(i) Petition to tax commission.---If the bond is given before the

taxpayer has filed its petition under section one thousand eighty-nine,

the bond shall contain a further condition that if a petition is not

filed within the period provided in such section, then the amount, the

collection of which is stayed by the bond, will be paid on notice and

demand at any time after the expiration of such period, together with

interest thereon from the date of the jeopardy notice and demand to the

date of notice and demand under this subsection. The bond shall be

conditioned upon the payment of so much of such assessment (collection

of which is stayed by the bond) as is not abated by a decision of the

tax commission which has become final. If the tax commission determines

that the amount assessed is greater than the amount which should have

been assessed, then the bond shall, at the request of the taxpayer, be

proportionately reduced when the decision of the tax commission is

rendered.

(j) Stay of sale of seized property pending tax commission

decision.---Where a jeopardy assessment is made, the property seized for

the collection of the tax shall not be sold---

(1) if subsection (b) is applicable, prior to the issuance of the

notice of deficiency and the expiration of the time provided in section

one thousand eighty-nine for filing a petition with the tax commission,

and

(2) if a petition is filed with the tax commission (whether before or

after the making of such jeopardy assessment), prior to the expiration

of the period during which the assessment of the deficiency would be

prohibited if subsection (a) were not applicable.

Such property may be sold if the taxpayer consents to the sale, or if

the tax commission determines that the expenses of conservation and

maintenance will greatly reduce the net proceeds, or if the property is

perishable.

(k) Interest.---For the purpose of subsection (a) of section one

thousand eighty-four, the last date prescribed for payment shall be

determined without regard to any notice and demand for payment issued

under this section prior to the last date otherwise prescribed for such

payment.

(l) Early termination of taxable year.---If the tax commission finds

that a taxpayer designs quickly to remove its property from this state,

or to conceal its property therein, or to do any other act tending to

prejudice or to render wholly or partly ineffectual proceedings to

collect the tax for the current or the preceding taxable year unless

such proceedings be brought without delay, the tax commission shall

declare the taxable period for such taxpayer immediately terminated, and

shall cause notice of such finding and declaration to be given the

taxpayer, together with a demand for immediate payment of the tax for

the taxable period so declared terminated and of the tax for the

preceding taxable year or so much of such tax as is unpaid, whether or

not the time otherwise allowed by law for filing return and paying the

tax has expired; and such taxes shall thereupon become immediately due

and payable. In any proceeding brought to enforce payment of taxes made

due and payable by virture of the provisions of this subsection, the

finding of the tax commission made as herein provided, whether made

after notice to the taxpayer or not, shall be for all purposes

presumptive evidence of jeopardy.

(m) Reopening of taxable period.---Notwithstanding the termination of

the taxable period of the taxpayer by the tax commission, as provided in

subsection (l), the tax commission may reopen such taxable period each

time the taxpayer is found by the tax commission to have received

income, within the current taxable year, since the termination of such

period. A taxable period so terminated by the tax commission may be

reopened by the taxpayer if it files with the tax commission a true and

accurate return under article nine, nine-a, nine-b or nine-c for such

taxable period, together with such other information as the tax

commission may by regulations prescribe.

(n) Furnishing of bond where taxable year is closed by the tax

commission.---Payment of taxes shall not be enforced by any proceedings

under the provisions of subsection (l) prior to the expiration of the

time otherwise allowed for paying such taxes if the taxpayer furnishes,

under regulations prescribed by the tax commission, a bond to insure the

timely making of returns with respect to, and payment of, such taxes or

any taxes for prior years.