N.Y. Tax Law § 171-c: Certain overpayments credited against past-due support

§ 171-c. Certain overpayments credited against past-due support. (1)

The commissioner, on behalf of the department, shall enter into a

written agreement with the commissioner of the office of temporary and

disability assistance, on behalf of the state office of temporary and

disability assistance, which shall set forth the procedures for

crediting any overpayment by an individual, estate or trust of income

tax imposed by article twenty-two of this chapter, city personal income

tax on residents imposed pursuant to the authority of article thirty of

this chapter, city income tax surcharge on residents imposed pursuant to

the authority of article thirty-A of this chapter and city earnings tax

on nonresidents imposed pursuant to the authority of article thirty-B of

this chapter and the interest on such overpayments against past-due

support owed by such individual, estate or trust of which the

commissioner has been notified by the commissioner of the office of

temporary and disability assistance pursuant to the provisions of such

agreement.

(2) Such agreement shall apply to past-due support which is owed to

persons or entities entitled to enforce an order of support. For

purposes of this section, an "order of support" means any final order,

decree or judgment in a matrimonial action or family court proceeding,

or any foreign support order, decree or judgment which is registered

pursuant to section thirty-seven-a of the domestic relations law, which

requires the payment of alimony, maintenance, support or child support.

For purposes of this section, "past-due support" means the amount of a

delinquency determined from an order of support no longer subject to

appellate judicial review.

(3) Such agreement shall include:

(a) the procedure under which the state department of office of

temporary and disability assistance shall notify the commissioner of

liability for past-due support, such procedure to specify when the

commissioner shall be notified and the content of such notification;

(b) the minimum period of delinquency in payment of past-due support

and the minimum amount of past-due support with respect to which the

commissioner of taxation and finance shall, pursuant to this section,

credit an overpayment against past-due support;

(c) the procedure for reimbursement of the commissioner by the state

office of temporary and disability assistance for the full cost of

carrying out the procedures authorized by this section;

(d) such other matters as the parties to such agreement shall deem

necessary to carry out the provisions of this section; and

(e) the procedure for reimbursement of the comptroller by the state

office of temporary and disability assistance for any overpayment and

interest thereon which has been credited against past due support owed

by a taxpayer filing a joint return, but which has been refunded by the

comptroller, pursuant to paragraph six of subsection (b) of section six

hundred fifty-one of this chapter, to a spouse not liable for the past

due support owed by such taxpayer.

(4) (a) With regard to persons owed past-due support who are receiving

services pursuant to title six-A of article three of the social services

law, no later than thirty days prior to the date a local social services

district requests the state office of temporary and disability

assistance to notify the commissioner of the liability of an individual,

estate or trust for past-due support, such district shall notify such

individual, estate or trust in writing that such request may be made and

shall also notify him or it that he or it may correct any error in such

request and may avoid such notification by the office of temporary and

disability assistance to the commissioner by satisfying such liability

within thirty days of the date of the written notice from the local

social services district to such individual, estate or trust. Such

notice shall also set forth the name of an employee of the local social

services district, including his address and telephone number, who may

be contacted with respect to correction of any error in such request

concerning such individual's, estate's or trust's liability for past-due

support or with respect to payment of such liability.

(b) With regard to persons owed past-due support who are receiving

services pursuant to title six-B of article three of the social services

law, no later than thirty days prior to the date the state office of

temporary and disability assistance notifies the commissioner of the

liability of an individual, estate or trust for past-due support, such

office shall notify such individual, estate or trust in writing that

such request may be made and shall also notify him or it that he or it

may correct any error in such request and may avoid such notification by

such office to the commissioner by satisfying such liability and

submitting proof thereof satisfactory to the office within thirty days

of the date of the written notice from such office to such individual,

estate or trust. Such notice shall also set forth the name of an

employee of such office, including his or her address and telephone

number, who may be contacted with respect to correction of any error in

such request concerning such individual's, estate's or trust's liability

for past-due support or with respect to payment of such liability.

(5) (i) In calculating the amount of an overpayment and interest

thereon which shall be credited against past-due support owed by a

taxpayer, the tax commission shall first credit the overpayment and

interest thereon against any:

(A) liability of such taxpayer in respect of any tax imposed by this

chapter;

(B) liability of such taxpayer for any tax imposed pursuant to the

authority of this chapter or any other law if such tax is administered

by the tax commission; and

(C) estimated tax for the succeeding taxable year if the taxpayer

claims such overpayment or a portion thereof as a credit against

estimated tax for such succeeding taxable year pursuant to subsection

(e) of section six hundred eighty-six of this chapter or subdivision (e)

of section 11-1786 of the administrative code of the city of New York

for any tax imposed pursuant to the authority of this chapter or any

other law if such tax is administered by the tax commission.

(ii) Only the balance remaining, after such overpayment and the

interest thereon has been credited as described in paragraph (i) of this

subdivision, shall be certified as an overpayment plus any interest to

be credited against past-due support, with the remainder to be refunded

to the taxpayer if such remainder is not required to satisfy the amount

of a default in repayment of a state university loan or city university

loan pursuant to section one hundred seventy-one-e of this article

and/or the amount of a past-due legally enforceable debt pursuant to

section one hundred seventy-one-f of this article and/or a city of New

York tax warrant judgment debt pursuant to section one hundred

seventy-one-l of this article and/or the amount of a default in

repayment of a guaranteed student loan pursuant to section one hundred

seventy-one-d of this article. In cases where the taxpayer owes past-due

support to more than one person or entity, and the total amount of

past-due support certified to the commissioner by the state office of

temporary and disability assistance exceeds the balance remaining, each

such person or entity shall receive a pro rata share of the balance

remaining, such share to be based on the amount of past-due support owed

to such person or entity as certified to the commissioner by such office

pursuant to this section. The state office of temporary and disability

assistance shall be responsible for determining and distributing each

person's or entity's pro rata share of past-due support pursuant to

regulations of such office.

(6) The tax commission shall certify to the comptroller the total

amount of the overpayment and the interest on such overpayment, the

amount of such overpayment and the interest on such amount to be

credited against past-due support and the balance of such overpayment

and interest to be refunded to the taxpayer.

(7) The commissioner of taxation and finance shall notify the taxpayer

making the overpayment, in writing, of the amount of such overpayment

and the interest thereon certified to the comptroller as the amount to

be credited against past-due support. Such notice shall include

notification to any other person who may have filed a joint return with

the taxpayer of the steps such other person may take in order to secure

his or her proper share of the refund.

(8) (a) For purposes of this section, past-due support owed to persons

who are receiving services pursuant to title six-A of article three of

the social services law may include:

(i) amounts representing delinquencies which have accrued under a

court order of support;

(ii) with respect to any court order of support issued before

September first, nineteen hundred eighty-four which provided for

periodic payments toward an established arrears amount, the entire

amount of such arrears where the respondent is, at any time after

September first, nineteen hundred eighty-four, delinquent in making such

periodic payments; and

(iii) with respect to any court order of support made on or after

September first, nineteen hundred eighty-four which establishes an

arrears amount, the entire amount of such arrears, unless such order

includes a finding that any anticipated tax refunds have been considered

by the court and taken into account in determining the amount of

periodic payments to be made toward the arrears amount, or in

determining the amount of the current support order, and expressly

provides that such arrears are not to be so certified.

(b) For the purpose of the state child support program, any payment

made by a respondent which is insufficient to fully satisfy both the

current support obligation and a periodic payment toward the balance of

any arrears amount established by court order shall be first applied

toward the current support obligation or any delinquency thereon and

then toward the periodic payment on any arrears amount established by

court order unless otherwise required by federal regulation.

(9) From the time the commissioner is notified by the state office of

temporary and disability assistance of an individual's, estate's or

trust's liability for past-due support under the agreement provided for

in this section, the commissioner and the department shall be relieved

from all liability to such individual, estate or trust, their assigns,

successors, heirs or representatives for the amount of an over payment

and interest on such amount certified to the comptroller to be credited

against past-due support and such individual, estate or trust shall have

no right to commence a court action or proceeding or to any other legal

recourse against the commissioner or the department to recover such

overpayment or such interest certified to the comptroller to be credited

against past-due support. Provided, however, nothing herein shall be

construed to prohibit such individual, estate or trust from proceeding

against the state office of temporary and disability assistance or the

appropriate local social services district to recover that part of such

overpayment or interest thereon so certified to the comptroller to be

credited against past-due support which is greater than the amount of

past-due support owed by such individual, estate or trust on the date of

such certification.

(10) The tax commission shall promulgate such rules and regulations as

it deems necessary to carry out the provisions of this section.