N.Y. Tax Law § 170: Department of taxation and finance

§ 170. Department of taxation and finance. 1. The existing department

of taxation and finance and its present functions are continued. The

head of the department of taxation and finance shall be the commissioner

of taxation and finance who shall have sole charge of the administration

of such department except with regard to the administration of the

division of tax appeals which shall be the sole charge of the tax

appeals tribunal authorized by article forty of this chapter. The

commissioner of taxation and finance shall be appointed by the governor

by and with the advice and consent of the senate and shall hold office

as commissioner of taxation and finance until the end of the term of the

governor by whom he was appointed and until his successor has been

appointed and has qualified.

2. Existing divisions or bureaus in the department of taxation and

finance or transferred to the department shall continue until

consolidated or abolished pursuant to this section. There shall be in

the department of taxation and finance a division of taxation, a

division of the treasury, a division of the lottery, an office of real

property tax services, and a division of tax appeals.

3. The commissioner of taxation and finance may establish such

additional divisions and bureaus as he may deem necessary. He may

appoint the heads of such divisions and bureaus and fix their duties and

he may consolidate, alter or abolish any divisions or bureaus, except

that such commissioner shall have no such authority or power with regard

to the division of tax appeals.

3-a. (a) There shall be in the division of taxation a bureau of

conciliation and mediation services which shall be responsible for

providing conciliation conferences. Such conference shall be provided,

at the option of any taxpayer or any other person subject to the

provisions of this chapter or any other provision of law relating to

administration of taxes, where such taxpayer or any other such person

has received any written notice of a determination of tax due, a tax

deficiency, a denial of a refund or credit application, a cancellation,

revocation or suspension of a license, permit or registration, a denial

of an application for a license, permit or registration or any other

notice which gives rise to a right to a hearing under this chapter if

the time to petition for such a hearing has not elapsed. Such notice

shall contain information advising the recipient of the right to have a

conciliation conference.

(b) A request for a conciliation conference shall be applied for in

the manner as set forth by regulation of the commissioner and,

notwithstanding any provision of law to the contrary, shall suspend the

running of the period of limitations for the filing of a petition

protesting such notice and requesting a hearing. To discontinue the

conciliation proceeding, the recipient of the notice shall make a

request in writing and such person shall have ninety days from the time

such request of discontinuance is made to petition the division of tax

appeals for a hearing, except that the recipient of a written notice

described in paragraph (h) of this subdivision will have thirty days

from the time such request of discontinuance is made to petition the

division of tax appeals for a hearing. The commissioner shall notify the

division of tax appeals when any person requests a conference or

requests to discontinue such conference.

(c) A conciliation conferee, all of whom, unless otherwise provided by

law, shall be in the classified civil service, shall conduct the

conciliation conference in an informal manner and shall hear or receive

testimony and evidence deemed necessary or desirable for a just and

equitable result. The commissioner of taxation and finance shall have

the power to delegate authority to a conferee to waive or modify

penalty, interest and additions to tax to the same extent as such

commissioner is permitted under this chapter.

(d) The person who requests the conference may appear and represent

himself, including a member of a partnership, in any conciliation

conference, or may designate the person's spouse, parent or child, or an

attorney admitted to practice in the courts of record of this state, a

certified public accountant licensed in this state, an enrolled agent

enrolled to practice before the internal revenue service, or a public

accountant licensed in this state to appear and represent him. In

addition the commissioner shall promulgate rules and regulations to

permit a corporation to be represented by one of its officers or an

employee. The department may also allow an attorney, certified public

accountant or licensed public accountant authorized to practice or

licensed in any other jurisdiction of the United States to appear and

represent such person in a conciliation conference proceeding and, on

the written request of such person, may allow any other individual to

represent him. An employee of the department of taxation and finance

familiar with the controversy shall also be present at such proceedings.

(e) A conciliation order shall be rendered within thirty days after

the proceeding is concluded and such order shall, in the absence of a

showing of fraud, malfeasance or misrepresentation of a material fact,

be binding upon the department and the person who requested the

conference, except such order shall not be binding on such person if

such person petitions for the hearing provided for under this chapter

within ninety days after the conciliation order is issued, or, for a

conciliation order affirming a written notice described in paragraph (h)

of this subdivision, within thirty days after the conciliation order is

issued, notwithstanding any other provision of law to the contrary.

(f) Conciliation conference orders shall not be required to be

published and such orders shall not be considered as precedent or be

given any force or effect in any subsequent administrative proceeding

with respect to the person who requested the conference or in any other

proceeding.

(g) The commissioner of taxation and finance shall collect, compile

and prepare for publication statistics and other data with respect to

the operations of the bureau of conciliation and mediation services, and

to submit annually to the governor, the temporary president of the

senate and the speaker of the assembly a report on such operations,

including but not limited to, the number of conferences held, the

dispositions made and the number of conferences pending.

(h) Notwithstanding any provision of law to the contrary, any person

who seeks review by the bureau of conciliation and mediation services of

a written notice that advises that person of (i) the proposed

cancellation, revocation, or suspension of a license, permit,

registration, or other credential issued under the authority of this

chapter excluding a certificate of registration of a retail dealer under

section four hundred eighty-a of this chapter, (ii) the denial of an

application for a license, permit, registration, or other credential

issued under the authority of this chapter excluding an application for

registration as a retail dealer under section four hundred eighty-a of

this chapter and an application to renew a certificate of authority

filed pursuant to paragraph five of subdivision (a) of section one

thousand one hundred thirty-four of this chapter and any other law, or,

(iii) the imposition of a fraud penalty under this chapter, must request

a conciliation conference within thirty days of the mailing of that

notice.

4. The commissioner of taxation and finance may appoint and remove

such officers, assistants and other employees as he may deem necessary

for the exercise of the powers and duties of the department, all of whom

shall be in the classified civil service unless otherwise provided by

law; and he may prescribe their duties, and fix their compensation

within the amounts appropriated therefor. The commissioner of taxation

and finance may transfer officers or employees from their positions to

other positions in the department, or abolish or consolidate such

positions. He shall have all powers necessary to perform the duties

conferred upon him regarding the state lottery authorized by article

thirty-four of this chapter. However, the commissioner of taxation and

finance shall have no power to appoint or remove any personnel of the

division of tax appeals nor shall such commissioner have any power or

authority with regard to the operation and administration of such

division including any power or authority over such division's budget.

The commissioner shall furnish to the director of the division of the

budget the itemized estimates of the financial needs of the division of

tax appeals prepared by the tax appeals tribunal. Such itemized

estimates may not be revised or altered in any manner by the

commissioner.

5. The head of the division of taxation shall be the commissioner of

taxation and finance who shall be appointed by the governor as provided

in subdivision one of this section. No person shall be appointed as

commissioner of taxation and finance unless at the time of his

appointment he is a resident of the state and known to have knowledge on

the subject of taxation and skill in matters pertaining thereto. Such

commissioner shall devote his entire time to the duties of his office.

The commissioner of taxation and finance may after notice and an

opportunity to be heard, be removed by the governor for neglect of duty

or misfeasance in office, and the commissioner may be removed for other

cause by the senate on the recommendation of the governor. The

commissioner of taxation and finance shall receive an annual salary

within the amounts appropriated therefor.

6. The head of the division of the treasury shall be an officer

entitled the deputy commissioner and treasurer to be appointed by and to

hold office during the pleasure of the commissioner. The state treasury,

the custody of monies therein and the custody of all other funds, as now

or hereafter prescribed by law shall continue to be in the immediate

charge of the head of such division, subject to the supervision and

control of the commissioner; and the head of such division, subject to

such supervision and control, shall make the payments out of the

treasury and from such funds authorized or directed by law to be made.

Notwithstanding any other provision of law, expenditures relating to

financial services performed by the division of the treasury as fiscal

agent, trustee or sole custodian of funds, moneys or accounts of

agencies, authorities or other entities, shall be charged to such

agencies, authorities or other entities. Payment of such charges shall

be in a manner prescribed by the commissioner and may include the

withholding of interest due on any investments made for such agencies,

authorities or other entities. All income derived from fees levied by

the commissioner for such financial services shall be deposited by the

commissioner in the miscellaneous special revenue fund, investment

services account. The commissioner may assign to such division such

other powers and duties of the department of taxation and finance as he

may deem proper.

7. The head of the division of the lottery shall be an officer to be

appointed by, and hold office during the pleasure of the commissioner of

taxation and finance.

7-a. The head of the office of real property tax services shall be an

officer to be appointed and hold office as provided by section two

hundred three of the real property tax law.

8. The reasonable and necessary traveling and other expenses of the

commissioner, deputy commissioners and other officers and employees of

the department, while actually engaged in the performance of their

duties, outside of the city of Albany, or if such officer or employee be

in charge of or actually employed at a branch office of the department,

the reasonable and necessary traveling and other expenses outside of the

place in which such branch office is located, and the necessary

traveling expenses incurred in the performance of their duties in the

place in which their duties are performed of such officers and employees

as are specifically authorized by order of the commissioner of taxation

and finance, shall be paid upon the order of the comptroller upon

vouchers approved by the commissioner of taxation and finance.