N.Y. Tax Law § 2006: Tax appeals tribunal; functions, powers and duties

§ 2006. Tax appeals tribunal; functions, powers and duties. The

tribunal shall have the following functions, powers and duties:

1. To establish, consolidate, alter or abolish any unit in the

division; to appoint the heads of such units and fix their duties; and

to establish, consolidate or alter any positions in the division.

2. To appoint, remove or transfer officers, assistants, administrative

law judges, and other employees as it may deem necessary for the

exercise of the powers and performance of the duties of the division of

tax appeals, all of whom shall be in the classified civil service unless

otherwise provided by law; to appoint a secretary to the tax appeals

tribunal, which position shall be in the exempt class of the classified

service; and to prescribe their duties, and fix their compensation

within the amounts appropriated therefor.

3. To prepare and submit to the commissioner of taxation and finance

itemized estimates of the financial needs of the division of tax

appeals, in such form and at such times as may be required, for

inclusion as part of the financial needs of the department of taxation

and finance furnished to the governor. The itemized estimates prepared

by the tax appeals tribunal shall not be revised or altered in any

manner by the commissioner of taxation and finance prior to their

submission to the governor.

4. To provide a hearing as a matter of right, to any petitioner upon

such petitioner's request, pursuant to such rules, regulations, forms

and instructions as the tribunal may prescribe, unless a right to such a

hearing is specifically provided for, modified or denied by another

provision of this chapter. Where such a request is made by a person

seeking review of taxes determined or claimed to be due under this

chapter, the liability of such person shall become finally and

irrevocably fixed, unless such person, within ninety days from the time

such liability is assessed, shall petition the division of tax appeals

for a hearing to review such liability except that, as provided in

subdivision (a) of section five hundred twenty-eight of this chapter, a

determination relating to the tax imposed by article twenty-one-A of

this chapter shall finally and irrevocably fix such tax unless the

person against whom it is assessed shall petition the division of tax

appeals for a hearing within thirty days after the giving of notice of

such determination.

5. To provide that any party, pursuant to such rules and regulations

as the tribunal may prescribe, after a petition requesting a hearing has

been filed with the division, may file a motion with the tribunal to

dismiss the petition on the following grounds:

(i) a defense is founded upon documentary evidence; or

(ii) the tribunal lacks jurisdiction of the subject matter of the

petition; or

(iii) the petitioner lacks legal capacity to petition; or

(iv) there is an action pending between the same parties on the same

controversy in a court of any state or the United States; an

administrative law judge need not dismiss upon this ground but may make

such determination as justice requires; or

(v) the petition may not be maintained because of discharge in

bankruptcy, infancy or other disability of the moving party, payment,

release, or statute of limitation; or

(vi) the pleading fails to state a cause for relief; or

(vii) the tibunal lacks jurisdiction over the taxpayer; or

(viii) the tribunal should not proceed in the absence of a person who

should be a party.

Such motion to dismiss and all supporting documents shall be reviewed

by an administrative law judge who shall issue a determination granting

or denying the motion. Such a determination denying the motion shall not

be subject to review by the tribunal. The tribunal of its own motion

may, upon notice to the parties, issue a decision dismissing the

petition on the grounds set forth in paragraphs (ii) and (vii) of this

subdivision. Where not otherwise inconsistent with the provisions of

this chapter, a motion filed pursuant to this subdivision shall be

subject to the same provisions as motions filed pursuant to section

three thousand two hundred eleven of the civil practice law and rules.

6. To provide that any party, pursuant to such rules and regulations

as the tribunal may prescribe, after a petition requesting a hearing has

been filed with the division and after issue is joined, may file a

motion with the tribunal for summary determination. Such motion shall be

supported by an affidavit, by a copy of the pleadings and by other

available proof. The affidavit, made by a person having knowledge of the

facts, shall recite all the material facts and show that there is no

material issue of fact, and that the facts mandate judgment in the

moving party's favor. The motion and all supporting documents shall be

reviewed by an administrative law judge. The motion shall be granted if,

upon all the papers and proof submitted, the administrative law judge

finds that it has been established sufficiently that no material and

triable issue of fact is presented and that the administrative law judge

can, therefore, as a matter of law, issue a determination in favor of a

party. The motion shall be denied if any party shows facts sufficient to

require a hearing of any issue of fact. Where it appears that a party,

other than the moving party, is entitled to a summary determination, the

administrative law judge may grant such determination without the

necessity of a cross-motion. Should it appear from affidavits submitted

in opposition to the motion that facts essential to justify opposition

may exist but cannot be stated, the administrative law judge may deny

the motion or may order a continuance to permit affidavits or admissions

to be obtained and may make such other order as may be just. Where not

otherwise inconsistent with the provisions of this chapter, a motion

filed pursuant to this subdivision shall be subject to the same

provisions as motions filed pursuant to section three thousand two

hundred twelve of the civil practice law and rules.

7. To provide for a review of the determination of an administative

law judge if any party to a proceeding conducted before such

administrative law judge, within thirty days after the giving of notice

of such determination, takes exception to the determination. A

determination by an administrative law judge denying a motion filed

pursuant to subdivision six of this section shall not be subject to

review by the tribunal. The tribunal in its discretion may grant oral

argument. The tribunal may also grant an extension of time for filing an

exception provided an application for such extension is filed within the

time period for taking exception to a determination under this

subdivision, and if good cause is shown. The tribunal shall promulgate

rules and regulations as to what constitutes good cause. After such

review the tribunal shall issue a decision either affirming, reversing

or modifying such determination, or the tribunal may remand the case for

additional proceedings before the administrative law judge. Such

decision shall include a statement setting forth the facts which formed

the basis of the decision on the issues raised before the tribunal. The

tribunal shall have the authority to rule on the validity of the

regulations of the commissioner of taxation and finance where such

regulations are at issue. Such decision shall be issued within six

months from the date of notice to the tribunal that exception is being

taken to an administrative law judge's determination, except that where

oral argument is granted or written arguments are submitted such six

month period will commence to run on the date that such oral argument

was concluded or written argument received by the tribunal, whichever

was later.

8. To provide that hearings, other than hearings provided for by

section two thousand twelve of this article, conducted before an

administrative law judge and any oral proceedings conducted before the

tax appeals tribunal shall be stenographically reported.

9. To publish and make available to the public all determinations

rendered by an administrative law judge and all decisions rendered by

the tribunal after a review of an administrative law judge's

determination. The tribunal may charge a reasonable fee for a copy of

such determination or decision.

10. To take testimony and proofs, administer oaths, take affidavits

and certify acknowledgements in relation to any proceeding conducted

pursuant to the authority of the division of tax appeals. The tribunal

shall have power to subpoena and require the attendance of witnesses and

the production of books, papers and documents pertinent to the

proceedings which it is authorized to conduct, and to examine them in

relation to any matter which it has power to investigate and to issue

commissions for the examination of witnesses who are out of the state or

unable to attend proceedings conducted pursuant to the authority of the

division or excused from attendance of such proceedings. The tribunal

may designate and authorize by resolution, duly entered upon its

minutes, officers, administrative law judges and other employees of the

division to exercise any of the powers or perform any of the functions

provided for in this subdivision. A subpoena issued under this

subdivision shall be regulated by the civil practice law and rules. Any

person who shall testify falsely in any proceeding conducted pursuant to

the authority of the division shall be guilty of and punishable for

perjury.

Cross reference: For criminal penalties, see article thirty-seven of

this chapter.

11. To provide that an attorney for any party at a hearing conducted

before an administrative law judge may issue a subpoena as provided in

the civil practice law and rules.

12. To have the same power and authority as the commissioner of

taxation and finance in any instance where such commissioner is

authorized to impose, modify or waive interest, additions to tax or

civil penalties under this chapter, the environmental conservation law,

the general city law, or in any local law, ordinance or resolution

imposing taxes pursuant to the authority thereof, and to designate and

authorize by resolution of the tax appeals tribunal, duly entered upon

its minutes, officers, administrative law judges, and other employees of

the division to perform any of such functions.

13. To collect, compile and prepare for publication statistics and

other data with respect to the operations of the division of tax

appeals, 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 proceedings

initiated, the types of dispositions made and the number of proceedings

pending.

14. To make, adopt and amend such rules and regulations appropriate

for the exercise of its powers and the performance of its duties,

including rules of practice and procedure.

15. To have all other powers and perform such other duties as are

necessary and proper to operate and administer the division of tax

appeals consistent with the purposes of such division described in this

article.