2023 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.    Have the authority to postpone certain deadlines
for a period of up to ninety days, or longer  when  necessary  to  align
with relief provided by the Internal Revenue Service pursuant to section
seven  thousand five hundred eight-A of the internal revenue code, for a
taxpayer who is determined to be affected by a  presidentially  declared
disaster  or  by  a  disaster  emergency  declared  by the governor. Any
extension period provided pursuant to the authority in this  subdivision
shall  be  disregarded  in determining under the tax law, or under a law
enacted pursuant to the authority of the tax law or former  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. Definitions. 1. 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.
2.  Taxpayer.  For  purposes  of this subdivision, the term "taxpayer"
means any person or entity required to file a return or remit any tax to
the commissioner pursuant to this chapter.
d. Where a taxpayer who,  pursuant  to  section  seven  thousand  five
hundred  eight-a of the internal revenue code, is determined for federal
tax purposes to be affected by a presidentially  declared  disaster,  or
who is determined to be affected by a disaster emergency declared by the
governor, but the commissioner has not postponed a tax deadline pursuant
to  the  authority  in  paragraph  a  of  this  subdivision  due to such
disaster, the commissioner may abate any amount  of  interest  from  the
underpayment  of  any  tax  administered  by the commissioner under this
chapter that accrued for the period during which the taxpayer was unable
to meet such deadline due to direct impacts of the disaster.