N.Y. Tax Law § 1411: Determination of tax

§ 1411. Determination of tax. (a) If a return required by this article

is not filed, or if a return when filed is incorrect or insufficient,

the amount of tax due shall be determined by the commissioner of

taxation and finance from such records or information as may be

obtainable, including the assessed valuation of the real property or

interest therein and other appropriate factors. Notice of such

determination shall be given to the person liable for the payment of the

tax. Such determination shall finally and irrevocably fix the tax unless

the person against whom it is assessed, within ninety days after the

giving of notice of such determination, shall petition the division of

tax appeals for a hearing, or unless the commissioner of taxation and

finance of the commissioner's own motion shall redetermine the same. In

any case before the division of tax appeals under this article, the

burden of proof shall be on the petitioner. After such hearing, the

division of tax appeals shall give notice of the determination of the

administrative law judge to the person against whom the tax is assessed

and the commissioner of taxation and finance. Such determination may be

reviewed by the tax appeals tribunal as provided in article forty of

this chapter. The decision of the tax appeals tribunal may be reviewed

as provided in section two thousand sixteen of this chapter. A

proceeding for judicial review shall not be instituted unless: (1) the

amount of any tax sought to be reviewed, with penalties and interest

thereon, if any, shall be first deposited with the commissioner of

taxation and finance and there shall be filed with the commissioner of

taxation and finance an undertaking, issued by a surety company

authorized to transact business in this state and approved by the

superintendent of financial services of this state as to solvency and

responsibility, in such amount and with such sureties as a justice of

the supreme court shall approve, to the effect that if such proceeding

be dismissed or the tax confirmed, the petitioner will pay all costs and

charges which may accrue in the prosecution of the proceeding; or (2) at

the option of the petitioner, such undertaking filed with the

commissioner of taxation and finance may be in a sum sufficient to cover

the taxes, penalties and interest thereon stated in such decision, plus

the costs and charges which may accrue against him in the prosecution of

the proceeding, in which event the petitioner shall not be required to

deposit such taxes, penalties and interest as a condition precedent to

the commencement of the proceeding.

(b) A person liable for the tax imposed by this article (whether or

not a determination assessing a tax pursuant to subdivision (a) of this

section has been issued) shall be entitled to have a tax due finally and

irrevocably fixed prior to the ninety-day period referred to in

subdivision (a) of this section, by filing with the commissioner of

taxation and finance a signed statement in writing in such form as the

commissioner of taxation and finance shall prescribe, consenting

thereto.