2023 New York Laws › TAX - Tax › Article 12-A - Tax on Gasoline and Similar Motor Fuel › 288 - Determination of Tax.

§  288.  Determination  of tax. 1. (a) Except as otherwise provided in
this section, if a distributor files a return under  this  article,  but
such return is incorrect or insufficient, the state tax commission shall
determine the amount of tax due at any time within three years after the
return  was  filed (whether or not such return was filed on or after the
due date),  and  give  written  notice  of  such  determination  to  the
distributor.    For  the  purposes  of this section the term distributor
shall also include any other person liable for the taxes imposed by this
article.
(b) The tax commission shall determine the liability for  the  penalty
imposed  by  subdivision two of section two hundred eighty-nine-b of any
officer, director, shareholder or employee of  a  corporation  or  of  a
dissolved  corporation,  member or employee of a partnership or employee
of an individual proprietorship. The tax commission shall also determine
the amount of such penalty. All of the provisions of this section  shall
apply  to any determination made pursuant to this paragraph and for such
purpose the term distributor, as used in subdivisions four, five and six
of this section, shall also mean and  include  such  officer,  director,
shareholder, employee or member as the case may be.
(c)  The  tax commission shall determine the liability for the penalty
imposed by paragraph (e) of  subdivision  one  of  section  two  hundred
eighty-nine-b  of  any  person as an owner of a filling station. The tax
commission shall also determine the amount of such penalty. All  of  the
provisions  of  this  section  shall  apply  to  any  determination made
pursuant to this paragraph and for such purpose the term distributor, as
used in subdivisions four, five and six of this section, shall also mean
and include such person.
(d) The provisions of paragraphs (b) and (c) of this subdivision shall
not be construed to limit in any  manner  the  powers  of  the  attorney
general under subdivision one of section two hundred eighty-nine of this
chapter  or  the  powers  of the tax commission to issue a warrant under
subdivision two of such section against any person whose  liability  has
become finally and irrevocably fixed.
2. The state tax commission may determine the amount of tax due at any
time  if  such  distributor  (i)  has not registered as required by this
article, (ii) fails to file a return, (iii) files a willfully  false  or
fraudulent  return with intent to evade the tax, or (iv) fails to comply
with section two hundred eighty-three of this article in  not  informing
the  department,  in  writing,  of  any  change in its address and, if a
corporation or partnership, in not informing the department, in writing,
of any change in its officers, directors or partners or their  residence
addresses as shown in its application for registration.
3.  If  a  distributor shall inform the department, in writing, of any
change in its address and, if a corporation or partnership shall  inform
the  department, in writing, of any change in its officers, directors or
partners or their residence addresses as shown in  its  application  for
registration,  the determination of the amount of tax due may be made at
any time within three years after such information is received.
4. Notwithstanding any of the foregoing provisions  of  this  section,
where,  before the expiration of the time prescribed in this section for
the determination of tax, both the tax commission  and  the  distributor
have  consented in writing to its determination after such time, the tax
may be determined at any time prior to  the  expiration  of  the  period
agreed  upon.    The period so agreed upon may be extended by subsequent
agreements  in  writing  made  before  the  expiration  of  the   period
previously agreed upon.
5.  Any  determination made pursuant to this section shall finally and
irrevocably fix the tax  unless  the  distributor  against  whom  it  is

assessed  shall,  within  ninety days after the giving of notice of such
determination, petition the division of tax appeals for  a  hearing,  or
unless the commissioner of taxation and finance of his own motion, shall
redetermine  the same.   After such hearing, the division of tax appeals
shall give notice of the determination of the administrative  law  judge
to  the  distributor  liable  for  the  tax  and  to the commissioner of
taxation and finance. Such determination may  be  reviewed  by  the  tax
appeals  tribunal  as  provided  in  article  forty of this chapter. The
decision of the tax appeals tribunal may  be  reviewed  as  provided  in
section two thousand sixteen of this chapter, but the proceeding may not
be  commenced  unless  the  amount  of  tax stated or referred to in the
decision, with penalties and interest thereon, if any, and the amount of
any other penalty stated or referred to in the decision shall have  been
first  deposited  with  the commissioner of taxation and finance, and an
undertaking filed with him, in such amount and with such sureties  as  a
justice  of  the supreme court shall approve, to the effect that if such
proceeding be dismissed or the decision confirmed, the  petitioner  will
pay  all  costs  and  charges  which  may  accrue  against  him  in  the
prosecution of the proceeding, or at the option of the  petitioner  such
undertaking  may  be  in  a  sum sufficient to cover the tax, penalties,
interest, costs and charges aforesaid, in  which  event  the  petitioner
shall  not  be  required  to  pay  such tax, penalties and interest as a
condition precedent to the commencement of the proceeding.
6. The remedy provided by this section for review of a decision of the
tax appeals tribunal shall be the  exclusive  remedy  available  to  any
taxpayer  to  judicially  determine  the  liability of such taxpayer for
taxes under this article.