N.Y. Tax Law § 288: Determination of tax

§ 288. Determination of tax. 1. (a) Except as otherwise provided in

this section, if a distributor files a return under this article, but

such return is incorrect or insufficient, the state tax commission shall

determine the amount of tax due at any time within three years after the

return was filed (whether or not such return was filed on or after the

due date), and give written notice of such determination to the

distributor. For the purposes of this section the term distributor

shall also include any other person liable for the taxes imposed by this

article.

(b) The tax commission shall determine the liability for the penalty

imposed by subdivision two of section two hundred eighty-nine-b of any

officer, director, shareholder or employee of a corporation or of a

dissolved corporation, member or employee of a partnership or employee

of an individual proprietorship. The tax commission shall also determine

the amount of such penalty. All of the provisions of this section shall

apply to any determination made pursuant to this paragraph and for such

purpose the term distributor, as used in subdivisions four, five and six

of this section, shall also mean and include such officer, director,

shareholder, employee or member as the case may be.

(c) The tax commission shall determine the liability for the penalty

imposed by paragraph (e) of subdivision one of section two hundred

eighty-nine-b of any person as an owner of a filling station. The tax

commission shall also determine the amount of such penalty. All of the

provisions of this section shall apply to any determination made

pursuant to this paragraph and for such purpose the term distributor, as

used in subdivisions four, five and six of this section, shall also mean

and include such person.

(d) The provisions of paragraphs (b) and (c) of this subdivision shall

not be construed to limit in any manner the powers of the attorney

general under subdivision one of section two hundred eighty-nine of this

chapter or the powers of the tax commission to issue a warrant under

subdivision two of such section against any person whose liability has

become finally and irrevocably fixed.

2. The state tax commission may determine the amount of tax due at any

time if such distributor (i) has not registered as required by this

article, (ii) fails to file a return, (iii) files a willfully false or

fraudulent return with intent to evade the tax, or (iv) fails to comply

with section two hundred eighty-three of this article in not informing

the department, in writing, of any change in its address and, if a

corporation or partnership, in not informing the department, in writing,

of any change in its officers, directors or partners or their residence

addresses as shown in its application for registration.

3. If a distributor shall inform the department, in writing, of any

change in its address and, if a corporation or partnership shall inform

the department, in writing, of any change in its officers, directors or

partners or their residence addresses as shown in its application for

registration, the determination of the amount of tax due may be made at

any time within three years after such information is received.

4. Notwithstanding any of the foregoing provisions of this section,

where, before the expiration of the time prescribed in this section for

the determination of tax, both the tax commission and the distributor

have consented in writing to its determination after such time, the tax

may be determined at any time prior to the expiration of the period

agreed upon. The period so agreed upon may be extended by subsequent

agreements in writing made before the expiration of the period

previously agreed upon.

5. Any determination made pursuant to this section shall finally and

irrevocably fix the tax unless the distributor against whom it is

assessed shall, within ninety days after the giving of notice of such

determination, petition the division of tax appeals for a hearing, or

unless the commissioner of taxation and finance of his own motion, shall

redetermine the same. After such hearing, the division of tax appeals

shall give notice of the determination of the administrative law judge

to the distributor liable for the tax and to 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, but the proceeding may not

be commenced unless the amount of tax stated or referred to in the

decision, with penalties and interest thereon, if any, and the amount of

any other penalty stated or referred to in the decision shall have been

first deposited with the commissioner of taxation and finance, and an

undertaking filed with him, 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 decision confirmed, the petitioner will

pay all costs and charges which may accrue against him in the

prosecution of the proceeding, or at the option of the petitioner such

undertaking may be in a sum sufficient to cover the tax, penalties,

interest, costs and charges aforesaid, in which event the petitioner

shall not be required to pay such tax, penalties and interest as a

condition precedent to the commencement of the proceeding.

6. The remedy provided by this section for review of a decision of the

tax appeals tribunal shall be the exclusive remedy available to any

taxpayer to judicially determine the liability of such taxpayer for

taxes under this article.