N.Y. Tax Law § 3008: Abatement of certain interest, penalties and additions to tax

§ 3008. Abatement of certain interest, penalties and additions to tax.

(a) Interest attributable to unreasonable errors and delays by the

department. (1) In the case of any assessment or final determination of

interest on:

(A) any deficiency or any tax finally determined to be due

attributable in whole or in part to any unreasonable error or delay by

an officer or employee of the department (acting in his or her official

capacity) in performing a ministerial or managerial act, or

(B) any payment of any tax to the extent that any unreasonable error

or delay in such payment is attributable to such officer or employee

being erroneous or dilatory in performing a ministerial or managerial

act, the commissioner may abate the assessment or final determination of

all or any part of such interest for any period.

(2) For purposes of paragraph one of this subdivision, an unreasonable

error or delay shall be taken into account only if no significant aspect

of such unreasonable error or delay can be attributed to the taxpayer

involved, and after the department has contacted the taxpayer in writing

with respect to such deficiency, tax finally determined to be due or

payment. The commissioner shall determine what constitutes timely

performance of various ministerial or managerial acts performed under or

pursuant to the authority of this chapter, the general city law and

section 27-0923 of the environmental conservation law. Any regulations

adopted with respect to other provisions of this subdivision shall

conform, to the extent practicable, with corresponding federal

regulations under the comparable provisions of the laws of the United

States. Administrative and judicial review of abatements under this

subdivision shall be limited to review of whether failure to abate would

be widely perceived as grossly unfair.

(b) Abatement of any penalty or addition to tax or excess interest

attributable to erroneous written advice by the department of taxation

and finance.

(1) The commissioner shall abate any portion of any penalty or

addition to tax or excess interest attributable to erroneous advice

furnished to the taxpayer in writing by an officer or employee of the

department of taxation and finance, acting in such officer's or

employee's official capacity.

(2) Paragraph one of this subdivision shall apply only if:

(A) the written advice was reasonably relied upon by the taxpayer and

was in response to specific written request of the taxpayer, and

(B) the portion of the penalty or addition to tax or excess interest

did not result from a failure by the taxpayer to provide adequate or

accurate information.

(3) This subdivision shall not be construed to require the department

to provide written advice to taxpayers or other persons or entities.

(c) Assessments attributable to certain mathematical errors by the

department. In the case of an assessment of any tax imposed by or

pursuant to the authority of article twenty-two, thirty, thirty-A or

thirty-B of this chapter or article two-E of the general city law

attributable in whole or in part to a mathematical error described in

subparagraph (A) of paragraph two of subsection (g) of section sixty-two

hundred thirteen of the federal internal revenue code, if the return was

prepared by an officer or employee of the department acting in his or

her official capacity to provide assistance to taxpayers in the

preparation of income tax returns, the commissioner is authorized to

abate the assessment of all or any part of any interest on such

deficiency for any period ending on or before the tenth day following

the date of notice and demand by the commissioner for payment of the

deficiency.

(d) Interest attributable to misappropriation of taxpayer payments.

(1) The commissioner shall be authorized to abate, for the period

specified in paragraph two of this subdivision, any assessment or final

determination of interest attributable to the misappropriation of a

taxpayer's payment if:

(A) the taxpayer timely tenders payment to the department for a

liability incurred under any tax, and the taxpayer's account with the

department is not properly credited with such payment due to

misappropriation thereof;

(B) the taxpayer does not cause, or in any way contribute to, the

misappropriation of such payment; and

(C) the taxpayer tenders a replacement payment to the department in

the original amount of such tax due no later than one year from the date

of mailing of notice from the department of failure to pay.

(2) The commissioner shall be authorized to abate any assessment or

final determination of interest pursuant to this subdivision for some or

all of the period from the date of the underpayment to (A) the date

which is one year from the date of mailing of the department's notice of

failure to pay, (B) the date which is one year from the date the

taxpayer discovers that the payment was not properly credited to the

taxpayer's account or (C) thirty days from the date the taxpayer

recovers use of the misappropriated funds, whichever is earliest.

(3) For purposes of this subdivision, the term "misappropriation"

means circumstances in which a person wrongfully intercepts a taxpayer's

payment tendered to the department prior to the department crediting the

taxpayer's account, and obtains use of the taxpayer's funds.