2023 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)  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 one thousand eighty-seven of this article  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
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 of this article  may
thereafter  be  issued  by  the  tax commission for the same tax return,
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  of
this chapter.
(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.