NY Tax L § 1089 (2021)
2021 New York Laws TAX - Tax Article 27 - Corporate Tax Procedure and Administration 1089 - Petition to Tax Commission.

§  1089.  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 decision  shall  be mailed  promptly  to the taxpayer by certified or registered mail at its 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 taxpayer whose last known address is outside of  the  United  States,  after  the mailing  of  the notice of deficiency authorized by section one thousand 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 one thousand eighty-seven.  For special restriction where the notice of deficiency relates to a proposed assessment  made  as  a  result of (i) a net operating loss carryback or capital loss carryback, (ii) an increase or decrease in federal  taxable income  or  federal  tax,  or  (iii)  a  federal change or correction or renegotiation, or computation or recomputation of tax, which is  treated in  the  same  manner  as if it were a deficiency for federal income tax purposes, see paragraph (7) of subsection (c) of  section  one  thousand eighty-three.  (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) 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 one thousand eighty-seven, 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 one thousand 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 one thousand 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 one thousand eighty-one  may  thereafter  be issued  by  the tax commission for the same taxable year, except in case of fraud or with respect to an increase or decrease in  federal  taxable income or federal alternative minimum taxable income or federal tax or a federal  change  or  correction  or  renegotiation,  or  computation  or recomputation of tax, which is treated in the same manner as if it  were a  deficiency  for  federal income tax purposes, required to be reported under subdivision three of section two hundred eleven, or under  section two hundred nineteen-bb or under section two hundred nineteen-zz.  (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  an  increase  or  decrease  in  federal taxable  income or federal alternative minimum taxable income or federal tax or a federal change or correction or renegotiation,  or  computation or  recomputation  of  tax, which is treated in the same manner as if it were a deficiency for  federal  income  tax  purposes,  required  to  be reported under subdivision three of section two hundred eleven, or under section   two   hundred   nineteen-bb,  or  under  section  two  hundred nineteen-zz, and of which increase, decrease, change  or  correction  or renegotiation,  or  computation or recomputation, 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 (l) of section one thousand eighty-five.  (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.