N.Y. Tax Law § 1096: General powers of tax commission

§ 1096. General powers of tax commission.---(a) General.---The tax

commission shall administer and enforce the tax imposed by article nine,

nine-a, nine-b and nine-c, and it is authorized to make such rules and

regulations, and to require such facts and information to be reported,

as it may deem necessary to enforce the provisions of such articles and

of this article.

(b) Examination of books and witnesses.---(1) The tax commission for

the purpose of ascertaining the correctness of any return, or for the

purpose of making an estimate of tax liability of any corporation, shall

have power to examine or to cause to have examined, by any agent or

representative designated by it for that purpose, any books, papers,

records or memoranda bearing upon the matters required to be included in

the return, and may require the attendance of the corporation rendering

the return through any officer or employee of such corporation, or the

attendance of any other person having knowledge in the premises, and may

take testimony and require proof material for its information, with

power to administer oaths to such person or persons.

(2) The commissioner may take any action under paragraph one of this

subdivision to inquire into the commission of an offense connected with

the administration or enforcement of this article or article nine,

nine-A, thirteen, thirteen-A or thirty-three of this chapter, provided,

however, that notwithstanding the provisions of section one hundred

seventy-four of this chapter no such action shall be taken when a

referral by the department or the commissioner to the attorney general,

a district attorney or any other prosecutorial agency is in effect.

Provided, however, the commissioner shall have power, during the period

when such referral is in effect, to examine or to cause to have

examined, by any agent or representative designated by it for that

purpose, any books, papers, records or memoranda bearing upon the

matters required to be included in the return, where such books, papers,

records or memoranda are in its possession, or where such books, papers,

records or memoranda are in the possession of the attorney general,

district attorney or other prosecutorial agency to which such referral

is made.

(c) Abatement authority.---The tax commission, of its own motion, may

abate any small unpaid balance of an assessment of tax, or any liability

in respect thereof, if the tax commission determines under uniform rules

prescribed by it that the administration and collection costs involved

would not warrant collection of the amount due. It may also abate, of

its own motion, the unpaid portion of the assessment of any tax or any

liability in respect thereof, which is excessive in amount, or is

assessed after the expiration of the period of limitation properly

applicable thereto, or is erroneously or illegally assessed. No claim

for abatement under this subsection shall be filed by a taxpayer.

(d) Special refund authority.---Where no questions of fact or law are

involved and it appears from the records of the tax commission that any

moneys have been erroneously or illegally collected from any taxpayer or

other person, or paid by such taxpayer or other person under a mistake

of facts, pursuant to the provisions of this article or of article nine,

nine-a, nine-b or nine-c, the tax commission at any time, without regard

to any period of limitations, shall have the power, upon making a record

of its reasons therefor in writing, to cause such moneys so paid and

being erroneously and illegally held to be refunded and to issue

therefor its certificate to the comptroller.

(e) (1) Authority to set interest rates.---The commissioner shall set

the overpayment and underpayment rates of interest to be paid pursuant

to sections two hundred thirteen, two hundred thirteen-b, two hundred

fifty-eight, two hundred sixty-three, two hundred ninety-four, one

thousand eighty-four, one thousand eighty-five and one thousand

eighty-eight of this chapter, but if no such rate or rates of interest

are set, such overpayment rate shall be deemed to be set at six percent

per annum and such underpayment rate shall be deemed to be set at seven

and one-half percent per annum. Such overpayment and underpayment rates

shall be the rates prescribed in paragraph two of this subsection, but

the underpayment rate shall not be less than seven and one-half percent

per annum. Any such rates set by the commissioner shall apply to taxes,

or any portion thereof, which remain or become due or overpaid on or

after the date on which such rates become effective and shall apply only

with respect to interest computed or computable for periods or portions

of periods occurring in the period during which such rates are in

effect.

(2) General rule. (A) Overpayment rate. The overpayment rate set under

this subsection shall be the sum of (i) the federal short-term rate as

provided under paragraph three of this subsection, plus (ii) two

percentage points.

(B) Underpayment rate. The underpayment rate set under this subsection

shall be the sum of (i) the federal short-term rate as provided under

paragraph three of this subsection, plus (ii) seven percentage points.

(3) Federal short-term rate. For purposes of this subsection:

(A) The federal short-term rate for any month shall be the federal

short-term rate determined by the United States secretary of the

treasury during such month in accordance with subsection (d) of section

twelve hundred seventy-four of the internal revenue code for use in

connection with section six thousand six hundred twenty-one of the

internal revenue code. Any such rate shall be rounded to the nearest

full percent (or, if a multiple of one-half of one percent, such rate

shall be increased to the next highest full percent).

(B) Period during which rate applies.

(i) In general. Except as provided in clause (ii) of this

subparagraph, the federal short-term rate for the first month in each

calendar quarter shall apply during the first calendar quarter beginning

after such month.

(ii) Special rule for the month of September, nineteen hundred

eighty-nine. The federal short-term rate for the month of April,

nineteen hundred eighty-nine shall apply with respect to setting the

overpayment and underpayment rates for the month of September, nineteen

hundred eighty-nine.

(4) In computing the amount of any interest required to be paid under

this article by the commissioner of taxation and finance or by the

taxpayer, or any other amount determined by reference to such amount of

interest, such interest and such amount shall be compounded daily. The

preceding sentence shall not apply for purposes of computing the amount

of any addition to tax for failure to pay estimated tax under subsection

(c) of section one thousand eighty-five of this article.

(5) Publication of interest rates. The commissioner of taxation and

finance shall publish the interest rates set under this subsection on

the website of the department of taxation and finance. Immediately

following such publication, the commissioner shall cause such interest

rates to be published in the section for miscellaneous notices in the

state register and give other appropriate general notice of such

interest rates. The setting and publication of such interest rates shall

not be included within paragraph (a) of subdivision two of section one

hundred two of the state administrative procedure act relating to the

definition of a rule.

(6) Cross-reference. For provisions relating to the power of the

commissioner of taxation and finance to abate small amounts of interest,

see subsection (c) of this section.