N.Y. Tax Law § 689: Petition to tax commission

§ 689. Petition to tax commission.--(a) General.--The form of a

petition to the tax commission, and further proceedings before the tax

commission in any case initiated by the filing of a petition, shall be

governed by such rules as the tax commission shall prescribe. No

petition shall be denied in whole or in part without opportunity for a

hearing on reasonable prior notice. Such hearing shall be conducted by

one or more members of the tax commission, or by a hearing officer

designated by the tax commission to take evidence and report to the tax

commission. The tax commissioners shall, acting as a body, jointly

decide the case as quickly as practicable. Notice of the decision shall

be mailed promptly to the taxpayer by certified or registered mail at

his last known address, and such notice shall set forth the tax

commission's findings of fact and a brief statement of the grounds of

decision in each case decided in whole or in part adversely to the

taxpayer.

(b) Petition for redetermination of a deficiency.--Within ninety days,

or one hundred fifty days if the notice is addressed to a person outside

of the United States, after the mailing of the notice of deficiency

authorized by section six hundred eighty-one, the taxpayer may file a

petition with the tax commission for a redetermination of the

deficiency. Such petition may also assert a claim for refund for the

same taxable year or years, subject to the limitations of subsection (g)

of section six hundred eighty-seven.

(c) Petition for refund.--A taxpayer may file a petition with the tax

commission for the amounts asserted in a claim for refund if--

(1) the taxpayer has filed a timely claim for refund with the tax

commission,

(2) the taxpayer has not previously filed with the tax commission a

timely petition under subsection (b) of this section for the same

taxable year unless the petition under this subsection relates to a

separate claim for credit or refund properly filed under subsection (f)

of section six hundred eighty-seven of this part or relates to a refund

or credit first claimed on an amended return for the taxable year, and

(3) either (A) six months have expired since the claim was filed, or

(B) the tax commission has mailed to the taxpayer, by registered or

certified mail, a notice of disallowance of such claim in whole or in

part.

(4) Notwithstanding paragraph three of this subsection, no petition

may be filed by a taxpayer claiming a refund of one or more empire zone

tax credits for a taxable year beginning on or after January first, two

thousand eight and before January first, two thousand nine, until six

months have expired after the date on which an empire zone retention

certificate was issued pursuant to subdivision (w) of section nine

hundred fifty-nine of the general municipal law to the empire zone

enterprise which is the basis for the tax credit or credits claimed on

the return or report.

No petition under this subsection shall be filed more than two years

after the date of mailing of a notice of disallowance, unless prior to

the expiration of such two year period it has been extended by written

agreement between the taxpayer and the tax commission. If a taxpayer

files a written waiver of the requirement that he be mailed a notice of

disallowance, the two year period prescribed by this subsection for

filing a petition for refund shall begin on the date such waiver is

filed.

(d) Assertion of deficiency after filing petition.--

(1) Petition for redetermination of deficiency.--If a taxpayer files

with the tax commission a petition for redetermination of a deficiency,

the tax commission shall have power to determine a greater deficiency

than asserted in the notice of deficiency and to determine if there

should be assessed any addition to tax or penalty provided in section

six hundred eighty-five, if claim therefor is asserted at or before the

hearing under rules of the tax commission.

(2) Petition for refund.-- If the taxpayer files with the tax

commission a petition for credit or refund for a taxable year, the tax

commission may

(A) determine a deficiency for such year as to any amount of

deficiency asserted at or before the hearing under rules of the tax

commission, and within the period in which an assessment would be timely

under section six hundred eighty-three, or

(B) deny so much of the amount for which credit or refund is sought in

the petition, as is offset by other issues pertaining to the same

taxable year which are asserted at or before the hearing under rules of

the tax commission.

(3) Opportunity to respond.-- A taxpayer shall be given a reasonable

opportunity to respond to any matters asserted by the tax commission

under this subsection.

(4) Restriction on further notices of deficiency. -- If the taxpayer

files a petition with the tax commission under this section, no notice

of deficiency under section six hundred eighty-one of this part may

thereafter be issued by the tax commission for the same tax return,

except in case of fraud or with respect to a change or correction

required to be reported under section six hundred fifty-nine of this

article.

(e) Burden of proof. In any case before the tax commission under this

article, the burden of proof shall be upon the petitioner except for the

following issues, as to which the burden of proof shall be upon the tax

commission:

(1) whether the petitioner has been guilty of fraud with intent to

evade tax;

(2) whether the petitioner is liable as the transferee of property of

a taxpayer, but not to show that the taxpayer was liable for the tax;

(3) whether the petitioner is liable for any increase in a deficiency

where such increase is asserted initially after a notice of deficiency

was mailed and a petition under this section filed, unless such increase

in deficiency is the result of a change or correction required to be

reported under section six hundred fifty-nine, and of which change or

correction the tax commission had no notice at the time it mailed the

notice of deficiency; and

(4) whether any person is liable for a penalty under subsection (q) or

(r) of section six hundred eighty-five of this article.

(f) Evidence of related federal determination.-- Evidence of a federal

determination relating to issues raised in a case before the tax

commission under this section shall be admissible, under rules

established by the tax commission.

(g) Jurisdiction over other years.-- The tax commission shall consider

such facts with relation to the taxes for other years as may be

necessary correctly to determine the tax for the taxable year, but in so

doing shall have no jurisdiction to determine whether or not the tax for

any other year has been overpaid or underpaid.