N.Y. Tax Law § 280: Refund of tax erroneously paid

§ 280. Refund of tax erroneously paid. If any stamp or stamps shall

have been erroneously affixed to any book, certificate, or bill or

memorandum of sale, or if any tax provided by this article shall be

erroneously paid otherwise than by the use of a stamp or stamps, the tax

commission may, upon presentation of a claim for the amount of such

stamp or stamps, or tax, and upon the production of evidence

satisfactory to it that such stamp or stamps was or were so erroneously

affixed, or such tax was so erroneously paid, so as to cause loss to the

person or persons making such claim, pay such amount or such part

thereof as it may allow, to such claimant out of any moneys collected

under this article. Provided, however, that where such erroneous payment

was made otherwise than by the use of stamps pursuant to the provisions

of section two hundred eighty-one-a hereof, and resulted from payment of

tax in excess of the amount due under subdivision two of section two

hundred seventy-a of this chapter in lieu of the presentation of a claim

for refund an adjustment for such erroneous payment may be made on the

written report required to be made to the exchange, affiliated clearing

corporation or authorized agency if such adjustment is made on such a

written report filed within thirty business days following such

erroneous payment, in such form and with such substantiating evidence as

the tax commission may prescribe and provided further that at the time

of the making of such adjustment the person, firm, company or

association making such report has either paid to the person or persons

erroneously charged with such tax the amount of such overpayment or has

applied such amount in reduction of any amount owing to it from the

person or persons so charged. Any claim for refund shall be presented to

the tax commission in writing, duly verified, and shall state the full

name and address of the claimant, the date of such erroneous affixing,

or other payment of the tax, the face value of such stamp or stamps, or

the amount of such tax, as the case may be, and contain such evidence as

may be available upon which the demand for such refund is based. If the

claim is based on the erroneous affixing of a stamp or stamps the claim

shall describe the instrument to which the stamp or stamps were affixed.

Such claims shall be presented within two years after such erroneous

affixing or payment, as the case may be, except if an agreement under

the provisions of section two hundred seventy-nine-a (extending the

period for determination of tax imposed by this article) is made within

the two-year period for the filing of a claim for refund provided for in

this section, the period for filing a claim for refund shall not expire

prior to six months after the expiration of the period within which a

determination may be made pursuant to the agreement or any extension

thereof. The tax commission shall grant or deny such claim in whole or

in part and shall notify the claimant by mail of its determination. Such

determination shall be final and irrevocable unless the claimant shall

within thirty days after the mailing of notice of such determination

apply to the tax commission for a hearing. After such hearing the tax

commission shall mail notice of its decision to the claimant. The

decision of the tax commission may be reviewed under article

seventy-eight of the civil practice law and rules if a proceeding under

that article is commenced within ninety days after the mailing of the

notice of such decision. However, such a proceeding may not be commenced

unless an undertaking is filed with the tax commission in such amount

and with such sureties as a justice of the supreme court shall approve

to the effect that if the proceeding be dismissed or the decision

confirmed the petitioner will pay all costs and charges which may accrue

against him in the prosecution of the proceeding. The remedy provided by

this section for review of the decision of the tax commission shall be

the exclusive remedy available to judicially determine the liability for

taxes under this article.