NY Tax L § 171 (2021)
2021 New York Laws TAX - Tax Article 8 - Department of Taxation and Finance; Commissioner of Taxation and Finance 171 - Powers and Duties of Commissioner of Taxation and Finance.

§  171. Powers and duties of commissioner of taxation and finance. The commissioner of taxation and finance shall:   First. Make such reasonable rules and  regulations,  not  inconsistent with  law,  as  may  be necessary for the exercise of its powers and the performance of its duties  under  this  chapter,  including  regulations which  shall  advise  the public of (i) the various methods by which the department communicates tax policy and interpretations to taxpayers, tax practitioners, personnel of the department and the  general  public  and (ii)  the  legal force and effect, precedential value and binding nature of each such method of communication.   Second. Assess, determine, revise, readjust and impose the corporation taxes under articles nine and nine-A of this chapter, and on  and  after July  first, nineteen hundred twenty-one, have the power and perform the duties of the state comptroller in the collection of such taxes and  the crediting  of  such  taxes  erroneously paid, as jurisdiction thereof is vested in such commissioner by section one hundred seventy-six  of  this chapter.   Third.  On and after July first, nineteen hundred twenty-one, have the powers and perform the duties of the state comptroller  in  relation  to the  assessment, determination and collection of the tax on transfers of property, as jurisdiction thereof is  vested  in  such  commissioner  by section one hundred seventy-six of this chapter.   Fourth. On and after July first, nineteen hundred twenty-one, have the powers and perform the duties of the state comptroller in the collection of  the  tax on transfers of stock under article twelve of this chapter, as jurisdiction thereof is vested in such commissioner  by  section  one hundred seventy-six of this chapter.   Fifth.  On and after July first, nineteen hundred twenty-one, have the power and perform the duties of the state comptroller in the assessment, determination, review, readjustment and collection  of  taxes  upon  and with  respect  to  personal income, as jurisdiction thereof is vested in such commissioner by section one hundred seventy-six of this chapter.   Sixth. Administer, supervise and  enforce  the  tax  on  mortgages  as provided in article eleven of this chapter.   Eighth.  Take  testimony and proofs, under oath, with reference to any matter within the line of his official duty. A deputy  tax  commissioner and such other officials and employees of the department of taxation and finance  as may be nominated by such commissioner by resolution recorded in the minutes  may  be  designated  for  the  purpose  of  taking  such testimony and proofs.   Ninth.  Require  from all state and local officers such information as may be necessary for the proper discharge of its duties.   Tenth. Hold meetings at an office to be assigned in one of  the  state buildings  at Albany, at such times as may be fixed by such commissioner or by adjournment thereof, or at such other places as he may designate.   Eleventh. Compile and publish statistics relating to state  and  local taxation.   Twelfth.  Make  investigations of the general system of state taxation from time to time.   Thirteenth. Inquire into the provisions of the laws  of  other  states and  jurisdictions;  to  confer  with  tax commissioners of other states regarding the most effectual and  equitable  methods  of  taxation,  and particularly  regarding  the  best  methods  of  avoiding  conflicts and duplication of taxation,  and  to  recommend  to  the  legislature  such measures  as  will  bring  about  uniformity  of  methods,  harmony  and co-operation between the different states and jurisdictions  in  matters of taxation.    Fourteenth.  Perform  the other powers and duties conferred upon it by law.   Fifteenth. Have authority to compromise any taxes or other impositions or  any  warrant or judgment for taxes or other impositions administered by the commissioner,  and  the  penalties  and  interest  in  connection therewith, if the tax debtor has been discharged in bankruptcy, is shown by  proofs submitted to be insolvent, or shows by proofs that collection in full would cause the tax debtor  undue  economic  hardship,  provided that  the  amount  payable  in compromise reasonably reflects collection potential or is otherwise justified by the proofs  offered  by  the  tax debtor.  Provided, further, the commissioner shall not accept any amount payable in compromise that would undermine compliance with the taxes  or other  impositions  administered  by  the  commissioner,  nor  shall the commissioner enter into any offer of compromise that would be adverse to the best interests of the state. Where the amount  owing  for  taxes  or other impositions or the warrant or judgment, exclusive of any penalties and interest, is more than one hundred thousand dollars, such compromise shall be effective only when approved by a justice of the supreme court. The  commissioner shall promulgate regulations defining what constitutes undue economic hardship.  The  inability  to  maintain  an  affluent  or luxurious lifestyle shall not constitute undue economic hardship.   Sixteenth.  Have  authority  to compromise any taxes or any warrant or judgment for taxes  imposed  by  this  chapter  and  the  penalties  and interest  in  connection  therewith  of a tax debtor which is a domestic railroad corporation, or its trustee or trustees in bankruptcy,  (1)  in connection   with   its   qualification   as  a  railroad  redevelopment corporation  or  the  acquisition  of  its  facilities  by  a   railroad redevelopment  corporation  or (2) if said domestic railroad corporation is principally engaged in the transportation of passengers  and  at  the time  of said compromise it is the debtor in a reorganization proceeding pursuant to the United States bankruptcy  act  and  said  compromise  is approved by the bankruptcy court.   Seventeenth.  Have authority to release any real and personal property from the lien of  any  warrant  for  unpaid  taxes,  additions  to  tax, penalties  and interest, or vacate such warrant, upon such conditions as he or she may require, if he or she finds  that  the  interests  of  the state  will  not thereby be jeopardized. Such release or vacating of the warrant  may  be  recorded  in  the  office  of  any  recording  officer (including  the  department  of  state)  in  which such warrant has been filed. When the warrant is vacated, the recording officer (including the department of state) shall thereupon cancel  and  discharge  as  of  the original date of docketing the vacated warrant.   Eighteenth.  Have authority to enter into a written agreement with any person, relating to the liability of such person (or of the  person  for whom  he acts) in respect of any tax or fee imposed by the tax law or by a law enacted pursuant to the authority of the tax law or article  two-E of  the general city law, which agreement shall be final and conclusive, and except upon a showing of fraud, malfeasance, or misrepresentation of a material fact: (a) the case shall not be reopened as  to  the  matters agreed  upon  or  the  agreement  modified, by any officer, employee, or agent of this state, and (b) in any suit, action,  or  proceeding,  such agreement,   or  any  determination,  assessment,  collection,  payment, cancellation, abatement, refund or credit made in accordance  therewith, shall  not  be  annulled, modified, set aside or disregarded. As used in this paragraph the term "person" includes an individual, trust,  estate, partnership and corporation.   Eighteenth-a.  Have authority to compromise civil liability, with such qualifications and limitations as may be established  pursuant  to  such  rules  and  regulations  as  the  commissioner may prescribe, where such liability arises under a tax or other imposition which  is  administered by  the  commissioner,  at  any  time  prior  to the time the tax, other imposition  or  administrative  action  becomes  finally and irrevocably fixed and no longer subject to administrative review. Upon acceptance of an offer in compromise by  the  commissioner,  the  matter  may  not  be reopened    except   upon   a   showing   of   fraud,   malfeasance   or misrepresentation  of  a  material  fact.  The  attorney   general   may compromise  any  such liability after reference to the department of law for prosecution or defense at any time prior to the time the tax,  other imposition  or  administrative  action  taken  by the commissioner is no longer subject to judicial review. Whenever a compromise is made by  the commissioner of any such liability, there shall be placed on file in the office  of  the  commissioner  the  opinion  of  the  counsel  for  such department, with his or her reasons therefor, with a statement  of:  (a) the  amount of tax or other imposition and any other issues which may be the subject of such compromise, (b) the amount of interest, additions to the tax, or penalty imposed by law on  the  taxpayer  or  other  persons against  whom the administrative action was taken by the department, and (c) the amount actually  paid  in  accordance  with  the  terms  of  the compromise.  Notwithstanding  the  preceding  sentence,  no such opinion shall be required with respect to the compromise of any civil  liability in  which  the  unpaid  amount  of tax or other imposition which was the subject of the administrative action (including any interest,  additions to tax, or penalty) is less than fifty thousand dollars.   Eighteenth-b.  Where  the  filing  requirement  arises  under  article twenty-two of this chapter or  under  a  law  enacted  pursuant  to  the authority  of article thirty or thirty-A of this chapter, have authority to require a husband and wife whose federal income tax  liabilities  are determined  on a joint federal return and who have not filed a joint New York income tax return to file separate income  tax  returns,  in  which case  their  income  tax  liabilities  shall be separate. Such authority shall be exercised only where one of such persons demonstrates,  to  the satisfaction of the commissioner, that (a) the address or whereabouts of his  or her spouse is unknown to him or her, (b) reasonable efforts have been made by him or her to  locate  such  spouse,  and  (c)  good  cause existed for the failure to file a joint New York income tax return.   Eighteenth-c.  Where  the  filing  requirement  arises  under  article twenty-two of this chapter or  under  a  law  enacted  pursuant  to  the authority  of article thirty or thirty-A of this chapter, have authority to require a husband and wife whose federal income tax  liabilities  are determined  on a joint federal return and who have not filed a joint New York income tax return to file separate income  tax  returns,  in  which case  their  income  tax  liabilities  shall be separate. Such authority shall be exercised only where one of such persons demonstrates,  to  the satisfaction of the commissioner, that (a) his or her spouse has refused to  sign a joint New York income tax return, (b) reasonable efforts have been made by him or her to have such spouse sign a joint New York income tax return, (c) there exists objective evidence of  alienation  of  such person  from  his  or her spouse such as a judicial order of protection, legal separation under a decree  of  divorce  or  separate  maintenance, separation  under  a  written separation agreement or judicial decree of separation,  living  apart  at  all  times  during  the  twelve   months immediately  preceding  the  application for exercise of authority under this provision, the commencement  of  an  action  for  divorce,  or  the commencement   of  proceedings  in  family  court  which  evidence  such alienation, and (d) good cause existed for the failure to file  a  joint New York income tax return.    Eighteenth-d.  (a)  Have authority to compromise civil liability, with such qualifications and limitations as may be  established  pursuant  to such  rules  and  regulations  as  the commissioner may prescribe, for a taxpayer's spousal share of liability arising from a  joint  income  tax return,  filed  under  article twenty-two of this chapter or under a law enacted pursuant to the authority of article thirty or thirty-A of  this chapter, where the following conditions are met:  (1)  the  taxpayer and spouse filing the joint return are, at the time of the offer in compromise, separated  under  a  decree  of  divorce  or separate  maintenance,  or a written separation agreement, or a judicial decree of separation, or the taxpayer  at  the  time  of  the  offer  in compromise  is  not  considered as married within the meaning of section 7703(b) of the  internal  revenue  code  (relating  to  certain  married individuals living apart), and  (2)  it  is  demonstrated to the satisfaction of the commissioner that the collection of the spousal  share  of  liability  from  the  taxpayer cannot  be  accomplished  within  a  reasonable  period  of time without imposing substantial economic hardship on the taxpayer.  (b) Upon acceptance of an offer in compromise under  this  subdivision by  the  commissioner,  the  matter  may  not  be reopened except upon a showing of fraud, malfeasance or misrepresentation of a material fact.  (c) Whenever a compromise is  made  by  the  department  of  any  such liability,  there  shall  be  placed  on  file  in  the  office  of  the commissioner the opinion of the counsel for  the  department,  with  his reasons therefor with a statement of:  (1) the amount of tax assessed,  (2)  the  amount of interest, additions to the tax, or penalty imposed by law on the taxpayer and spouse against whom the tax is assessed, and  (3) the amount actually paid in  accordance  with  the  terms  of  the compromise. Notwithstanding  the  preceding  sentence,  no  such  opinion  shall  be required with respect to the compromise of any civil liability in  which the  unpaid amount of tax assessed (including any interest, additions to tax, or penalty) is less than twenty-five thousand dollars.  (d) Spousal share of liability. For purposes of this subdivision,  the spousal  share of liability shall be determined by multiplying the joint and several liability arising from the joint return by a  fraction,  the numerator  of  which is the tax for the taxable year at issue determined separately for the spouse, and the denominator of which is  the  sum  of the taxes for such taxable year determined separately for the spouse and for the taxpayer.  (e)  A  compromise  under  this subdivision as to a taxpayer's spousal share of liability arising from a joint  income  tax  return  shall  not compromise the joint and several liability of the spouse with respect to that return.   Nineteenth.  Have  authority  to provide by regulation (1) that in any determination, assessment,  collection,  refund  or  credit  under  this chapter,  a  fractional  part  of  a dollar may be disregarded unless it amounts to fifty cents or more, in which case it shall be  increased  to one  dollar,  and  (2)  that any person making a return, report or other statement required to be filed with it under  this  chapter,  may  elect with  respect to any amount required to be shown thereon, if such amount is other than a whole dollar amount, either to disregard the  fractional part  of a dollar or to disregard the fractional part of a dollar unless it amounts to fifty cents or more, in which case the amount  (determined without regard to the fractional part of a dollar) shall be increased by one   dollar;  provided,  however,  that  such  election  shall  not  be applicable to items which must be  taken  into  account  in  making  the  computations  necessary  to determine the amount required to be shown on any such return, report or other statement but shall be applicable  only to the final amount required to be shown thereon.   Twentieth.  Have  authority,  of  his  own  motion, to abate any small unpaid balance of an assessment of tax,  or  any  liability  in  respect thereof, under articles twelve-A, eighteen, twenty or twenty-one of this chapter,  if such commissioner determines under uniform rules prescribed by him that the administration and collection costs involved  would  not warrant  collection  of  the  amount  due. He may also abate, of his own motion, the unpaid portion of the assessment of any of  such  taxes,  or any  liability  in  respect thereof, which is excessive in amount, or is assessed after the expiration  of  the  period  of  limitation  properly applicable  thereto,  or  is erroneously or illegally assessed. No claim for abatement under this subdivision shall be  filed  for  any  of  such taxes.   Twenty-third.  Technical  memoranda  issued  by  the  department shall advise and inform taxpayers and others of  existing  interpretations  of laws  and  regulations  by the department or changes to the statutory or case law of  interest  to  the  public.  In  no  event  shall  technical memoranda  be issued by the department in violation of the provisions of the state administrative procedure act where and to the  extent  that  a duly  promulgated rule or regulation would be required. Where and to the extent that an opinion of the counsel of the department is deemed to  be of sufficient significance and general applicability to a group or group of  taxpayers,  such  opinion  shall  be  disseminated  via  a technical memorandum.   Twenty-fourth. Be required to render advisory opinions with respect to taxes administered by  such  commissioner  within  ninety  days  of  the receipt of a petition for such an opinion. Such ninety day period may be extended  by  such  commissioner,  for good cause shown, to no more than thirty additional days. Such advisory opinion shall be rendered  to  any person  subject  to  a  tax  or liability under this chapter or claiming exemption from such tax or liability and may, in the discretion  of  the commissioner, be rendered to any non-taxpayer, including but not limited to  a  local official, petitioning on behalf of a local jurisdiction, or the head of a state agency, petitioning on behalf of  the  agency.  Such advisory  opinions,  which  shall be published and made available to the public, shall not be binding upon such commissioner except with  respect to the person to whom such opinion is rendered provided, however, that a subsequent modification by such commissioner of such an advisory opinion shall  operate  prospectively  only.  A petition for an advisory opinion shall contain a specific set of facts and be submitted in such  form  as may  be  prescribed  by  such commissioner and subject to such rules and regulations as such commissioner may  promulgate  with  respect  to  the procedures  for  submission  of such a petition. Nothing herein shall be construed to limit or otherwise alter the rights of any applicant for  a declaratory  ruling  pursuant  to  section two hundred four of the state administrative procedure act.   Twenty-fifth. a. With  respect  to  the  income  to  be  used  in  the computation  of  school  aid payable in the school year nineteen hundred ninety-four--ninety-five and thereafter, be required to design,  develop and implement a permanent computerized statewide school district address match and income verification system in regard to each school district's valuation  of  total New York adjusted gross income as determined by the department,  for  use  in  determining  state  aid  to  education.   The department   shall  promulgate  rules  and  regulations  to  effect  the provisions of this paragraph within ninety days of the enactment of  the chapter  of  the  laws  of  nineteen  hundred  ninety-four amending this  paragraph. Commencing September first,  nineteen  hundred  ninety-seven, the  commissioner  and  the  commissioner  of  education, subject to the approval of the director of the budget shall be required to enter into a cooperative agreement by September first of each year, which will govern the  validation  and  correction  and  completion  of the total New York adjusted gross income of school districts until September first  of  the following year. Such agreement shall include, but not be limited to: (i) procedures  to improve the accuracy of school district income data, in a manner which gives appropriate recognition  to  computerized  processing capabilities,   administrative   feasibility  of  manual  processes  and confidentiality implications;  (ii)  procedures  to  verify  the  school district  codes  reported  by  taxpayers;  (iii)  procedures  to correct identified inaccuracies; (iv) procedures to assign school district codes based on the permanent residence addresses of taxpayers  who  failed  to complete  the school district code; (v) the schedule for the transmittal of electronic data between the agencies, as necessary, to implement such system; and (vi) beginning in  the  nineteen  hundred  ninety-six  state fiscal year, procedures for the review process provided for in paragraph c  of  this  subdivision. All state departments and agencies, and school districts and other local governments and agencies, shall cooperate with the parties to such agreement in its implementation.   b.  1.  Any  correction,  pursuant  to  this  paragraph,  of  verified inaccuracies  of  income  data  shall only result in the removal of such returns from the identified school district.   2. All state departments and agencies, and school districts and  other local governments and agencies, shall cooperate with the parties to such agreement  in the implementation of the review process provided pursuant to this paragraph.   c. 1. With respect to income used in the  computation  of  school  aid payable  in  the school years nineteen hundred ninety-eight--ninety-nine and thereafter, be required to design, develop and implement  a  process whereby  school  districts  may  request  a  review of the assignment of taxpayer addresses to their  school  district.  Procedures  for  such  a review  process  shall  be included in the cooperative agreement entered into pursuant to paragraph a of this subdivision.   2. School  districts  requesting  a  review  in  accordance  with  the provisions of this paragraph shall be required, in consultation with the district superintendent of schools for the supervisory district in which the  school  district is located, appointed pursuant to section nineteen hundred fifty of the education law, to submit  to  the  commissioner  of education evidence in support of a contention that the assignment of tax returns to their district is inaccurate. Identified school districts may be required to review ordered listings, prepared by the department or an authorized  vendor  contracted  by  the  department,  of  the  permanent resident address of selected taxpayers who  filed  personal  income  tax returns  with the department reporting a school district code or address which indicates that the taxpayer was  a  resident  of  such  identified school  district  at  the close of the taxable year for which the return was filed. In no case shall ordered address listings for school district review include  those  addresses  which  the  school  district  had  the opportunity  to  review  pursuant  to  paragraph  a of this subdivision. District  superintendents  of  schools  appointed  pursuant  to  section nineteen hundred fifty of the education law, having an identified school district  within their supervisory district, shall be required to verify any suspected inaccuracies indicated by  an  identified  district  as  a result  of the district's review of ordered address listings pursuant to this paragraph.    3.  Any  correction,  pursuant  to   this   paragraph,   of   verified inaccuracies  of  income  data  shall only result in the removal of such returns from the identified school district.   4.  All state departments and agencies, and school districts and other local governments and agencies, shall cooperate with the parties to such agreement in the implementation of the review process provided  pursuant to this paragraph.   Twenty-sixth.  a.  Set  the  overpayment  and  underpayment  rates  of interest  for  purposes  of  articles  twelve-A,  eighteen,  twenty  and twenty-one  of  this  chapter.  Such  rates shall be the overpayment and underpayment rates of interest set pursuant to subsection (e) of section one thousand ninety-six of this chapter, but the underpayment rate shall not be less than seven and one-half percent per annum.  Any  such  rates set  by  such commissioner shall apply to taxes, or any portion thereof, which remain or become due or overpaid (other  than  overpayments  under such  article twenty and not including reimbursements, if any, under any of such articles) on or after  the  date  on  which  such  rates  become effective  and  shall  apply  only  with respect to interest computed or computable for periods or portions of periods occurring  in  the  period during  which  such  rates are in effect. In computing the amount of any interest required to be paid under such articles by such commissioner or by the taxpayer, or any other amount determined  by  reference  to  such amount  of  interest,  such interest and such amount shall be compounded daily.   b. Cross-reference. For  provisions  relating  to  the  power  of  the commissioner of taxation and finance to abate small amounts of interest, see subdivision twentieth of this section.   Twenty-seventh.   Have   authority,  upon  agreement  with  the  state comptroller, to act as an  agent  for  the  state  comptroller  for  the purposes of crediting the payment of state money to any claimant against the amount of a past-due legally enforceable debt, as defined in section one  hundred  seventy-one-f  of this article, owed by such claimant to a state agency, as defined in section one hundred  seventy-one-f  of  this article. All the provisions of section one hundred seventy-one-f of this article  shall  be  applicable to the crediting of the payments of state money made in accordance with the authority granted in this subdivision, with such modifications as may be necessary to adapt  such  language  to such  crediting  and  shall  apply  with the same force and effect as if those provisions had been set forth in full  in  this  section  and  had expressly referred to such crediting, except to the extent any provision thereof  is  either  inconsistent  or is not relevant to such crediting. This section shall not be deemed to abrogate or limit  in  any  way  the powers  and authority of the state comptroller to set off debts owed the state against payments from the state  under  the  constitution  of  the state or any other law.   Twenty-eighth.  a.  In  the  case  of a taxpayer who is determined for federal tax purposes under the provisions of section seven thousand five hundred eight-A of the  internal  revenue  code  to  be  affected  by  a presidentially declared disaster, or who is determined under regulations promulgated  by  the  commissioner  to  be  affected by a presidentially declared disaster or by a disaster emergency declared by  the  governor, have  authority  to  provide  that  a period of up to ninety days may be disregarded in determining under the tax law, or  under  a  law  enacted pursuant  to  the authority of the tax law or article 2-E of the general city law where administered by the commissioner, in respect of  any  tax liability  (including  any  interest,  penalty,  additional  amount,  or addition to the tax) of such taxpayer:    1. Whether any of the acts described in paragraph  one  of  subsection (a)  of section six hundred ninety-six of the tax law in relation to the personal income tax (or any comparable acts with respect to taxes  under this  chapter  other than the personal income tax) were performed within the time prescribed therefor, and   2. The amount of any credit or refund.   b.  Special  rule for overpayments. 1. Paragraph a of this subdivision shall not apply for purposes of determining the amount  of  interest  on any overpayment of tax.   2.  If  a  taxpayer is entitled to the benefits of paragraph a of this subdivision with respect to any return, amended  return,  or  claim  for credit  or  refund,  and  such return, amended return or claim is timely filed (determined after the application of this subdivision),  paragraph three  of  subsection  (a)  and  subsection  (c)  of section six hundred eighty-eight and paragraph three of subsection (a) and subsection (c) of section one thousand eighty-eight of this chapter shall not apply.   c. Presidentially declared disaster. For purposes of this subdivision, the term "presidentially declared disaster" means  any  disaster  which, with  respect  to an area, resulted in a subsequent determination by the president of the United States that such area warrants assistance by the federal government under the disaster relief  and  emergency  assistance act.