2023 New York Laws › TAX - Tax › Article 8 - Department of Taxation and Finance; Commissioner of Taxation and Finance › 171-F - Certain Overpayments Credited Against Outstanding Debts Owed to a State Agency.

§  171-f. Certain overpayments credited against outstanding debts owed
to a state agency. (1) For the purposes  of  this  section,  (a)  "state
agency"  shall  mean  any  state  department,  board,  bureau, division,
commission, committee, public  authority,  public  benefit  corporation,
council,  office, or other governmental entity performing a governmental
or proprietary function for the state, or, solely for purposes  of  this
section,  a  local social services district; (b) "taxpayer" shall mean a
corporation,   association,   company,   partnership,   estate,   trust,
liquidator,  fiduciary  or  other  entity  or individual who or which is
liable for any tax or other imposition imposed by or pursuant to article
nine, nine-A, twenty-two, thirty, thirty-A, thirty-B or thirty-three  of
this  chapter  or  article  two-E  of the general city law, which tax or
other imposition is administered by the  commissioner  of  taxation  and
finance,  or  who  or  which  is under a duty to perform an act under or
pursuant to  such  tax  or  imposition,  excluding  a  state  agency,  a
municipal  corporation  or a district corporation; and (c) "overpayment"
shall mean an overpayment which has been requested or determined  to  be
refunded,  a  refund  or  a  reimbursement, of a tax or other imposition
imposed by or pursuant to  article  nine,  nine-A,  twenty-two,  thirty,
thirty-A,  thirty-B  or thirty-three of this chapter or article two-E of
the general city law, which  is  administered  by  the  commissioner  of
taxation and finance.
(2)  The commissioner of taxation and finance, upon agreement with the
state comptroller and acting as an  agent  for  the  state  comptroller,
shall  set  forth  the  procedures  for  crediting  any overpayment by a
taxpayer of any tax or other imposition imposed by or authorized  to  be
imposed  pursuant to article nine, nine-A, twenty-two, thirty, thirty-A,
thirty-B or thirty-three of this chapter or article two-E of the general
city law, which is administered by  the  commissioner  of  taxation  and
finance,  and  the interest on any such overpayments, against the amount
of a past-due legally enforceable debt owed by such taxpayer to a  state
agency. An implementation plan shall be developed by the division of the
budget  and  the department of taxation and finance which shall provide,
but not be limited to, guidance with respect  to  coordination  of  debt
collection  pursuant  to  this section and subdivision twenty-seventh of
section one hundred seventy-one of this article. 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.
(3)  For  purposes of this section a past-due legally enforceable debt
against which an overpayment and interest thereon may be credited  shall
include any applicable interest or late payment charge and is a debt:
(a)  as  to which the state has (i) obtained a judgment and (ii) given
such notice as is required in subdivision (d) of section  five  thousand
two hundred twenty-two of the civil practice law and rules; or
(b)  as  to  which  a state agency has (i) made a final administrative
determination where the taxpayer had the opportunity for an adjudicatory
proceeding to which article three of the state administrative  procedure
act  is  applicable, or the taxpayer had an opportunity for a proceeding
which substantially complies with the requirements of such article three
where such article three is not applicable, or the taxpayer was afforded
such notice and  opportunity  to  be  heard  as  satisfies  due  process
requirements  applicable  to  such state agency and to such debt, except
that if, pursuant to law or regulation,  the  debt  is  not  collectible
unless  the  state  agency obtains a judgment, then the debt will not be
considered a past-due legally enforceable  debt  for  purposes  of  this
section  until such state agency has obtained a final judgment no longer
subject to judicial  review  and  (ii)  which  cannot  be  collected  by

administrative  offset  by  the  referring  state agency against amounts
payable to the taxpayer by the referring department; and
(c)  with  respect  to which the state agency or the department of law
has notified the taxpayer in writing, or has made a  reasonable  attempt
to  so  notify the taxpayer at the taxpayer's last address known to such
state agency (i) that the debt, which is clearly identified as to amount
and nature, is past-due and unless paid within thirty  days  thereafter,
would be referred to the department of taxation and finance to be offset
against  an  overpayment;  (ii)  that  state  law  permits the offset of
certain overpayments against such debts; (iii)  that  the  taxpayer  may
request  a  review of the proposed referral for offset by contacting the
state agency at a telephone  number  or  an  address  disclosed  in  the
notice;  and  (iv)  that  the taxpayer may present, to the state agency,
written evidence and arguments in support of his defense to the proposed
referral or may appear at a scheduled conference with the  state  agency
to  present  oral  arguments and written and oral evidence in support of
such defense; provided, however, that nothing herein shall be deemed  to
afford  the  taxpayer the opportunity to reargue any issue which was, or
could have been, adjudicated in the proceeding  described  in  paragraph
(a) or (b) of this subdivision; and
(d)  which the state agency which is the creditor or the department of
law, as the case may be, certifies to the commissioner of  taxation  and
finance is past-due and legally enforceable.
(4)  The  procedures  set  forth  by  the commissioner of taxation and
finance for crediting any overpayments, and the  interest  on  any  such
overpayments,  against  a  past-due legally enforceable debt pursuant to
this section shall include but shall not be limited to:
(a) the procedure under which the creditor state agency  shall  notify
the   commissioner  of  taxation  and  finance  of  a  past-due  legally
enforceable debt due from a taxpayer,  specifying  when  the  department
will  be  notified, the information to be contained in such notification
and the form and format to be used for such notification;
(b) the minimum amount of a past-due legally enforceable debt  against
which   the  commissioner  of  taxation  and  finance  shall  credit  an
overpayment of tax;
(c)  a  provision  providing  that  information   furnished   to   the
commissioner  of  taxation  and  finance and the comptroller pursuant to
such procedures shall  be  considered  confidential  and  shall  not  be
disclosed, except as otherwise allowed in this chapter;
(d)   a   provision   providing  that  information  furnished  by  the
commissioner of taxation and finance pursuant to such  procedures  shall
be considered confidential and shall not be disclosed, except the amount
of  the  overpayment and interest thereon which has been credited may be
disclosed  to  the  taxpayer,  and  the  amount  so  credited  and   the
information necessary to properly identify the taxpayer may be disclosed
to the creditor state agency; and
(e)  the procedure for reimbursement of the comptroller by the revenue
arrearage account, pursuant to section ninety-one-a of the state finance
law, for any overpayment and interest thereon which  has  been  credited
against  the past-due legally enforceable debt owed by a taxpayer filing
a joint return, but which has been refunded by the comptroller, pursuant
to paragraph six of subsection (b) of section six hundred  fifty-one  of
this  chapter,  to  a  spouse  not  liable  for the amount of a past-due
legally enforceable debt owed by such taxpayer.
(5)(a) In calculating  the  amount  of  an  overpayment  and  interest
thereon which shall be credited against the amount of a past-due legally
enforceable debt owed by a taxpayer which is certified to the department
of  taxation  and  finance  for collection pursuant to this section, the

department of taxation and finance shall first  credit  the  overpayment
and interest thereon against any:
(i)  liability  of  such  taxpayer  in  respect  of  any  tax or other
imposition imposed by this chapter and administered by the  commissioner
of taxation and finance;
(ii)  liability  of  such  taxpayer  for  any  tax or other imposition
imposed pursuant to the authority of this chapter or any  other  law  if
such tax is administered by the commissioner of taxation and finance;
(iii)  estimated  tax for the succeeding taxable year if such taxpayer
claims such overpayment  or  a  portion  thereof  as  a  credit  against
estimated  tax  for  such succeeding taxable year pursuant to subsection
(e) of section six hundred eighty-six or subsection (b) of  section  one
thousand  eighty-six  of  this  chapter  or  subdivision  (e) of section
11-1786 of the administrative code of the city of New York  or  for  any
tax  imposed  pursuant to the authority of this chapter or any other law
if such tax is administered by the commissioner of taxation and finance;
(iv) past-due support owed by the taxpayer  pursuant  to  section  one
hundred seventy-one-c of this article;
(v)  unreimbursed medical assistance paid on behalf of a child payable
pursuant to section three hundred sixty-seven-a of the  social  services
law;
(vi)  the  amount  of  a default in repayment of a state university or
city university loan pursuant to section one  hundred  seventy-one-e  of
this article.
(b) Only the balance remaining, after the overpayment and the interest
thereon  has  been  credited  as  described  in  paragraph  (a)  of this
subdivision, shall be certified to the  comptroller  as  an  overpayment
plus  any  interest  to be credited, in accordance with paragraph (g) of
subdivision three of section one hundred seventy-one-l of this  article,
against  a  past-due legally enforceable debt that has been certified to
the commissioner of taxation and finance for collection pursuant to this
section, and/or a city of New York tax warrant judgment  debt  that  has
been   certified  to  the  commissioner  of  taxation  and  finance  for
collection  pursuant  to  section  one  hundred  seventy-one-l  of  this
article,  with  the  remainder  to  be  refunded to the taxpayer if such
remainder is not  required  to  satisfy  the  amount  of  a  default  in
repayment  of  a guaranteed student loan pursuant to section one hundred
seventy-one-d of this article.  If  a  taxpayer  owes  past-due  legally
enforceable debt that has been certified to the commissioner of taxation
and finance for collection pursuant to this section and city of New York
tax warrant judgment debt that has been certified to the commissioner of
taxation  and  finance  for  collection  pursuant to section one hundred
seventy-one-l of this article, then the overpayment and interest thereon
shall be credited against the debts in the  order  in  which  the  debts
accrued.
(b-1)  No taxpayer who has applied for, and is eligible for, an earned
income tax credit under subsection (d) of section  six  hundred  six  of
this  chapter  shall  have  more than ten percent of any tax overpayment
credited against a past due legally enforceable debt owed to the  office
of  temporary  and  disability  assistance  for an overpayment of public
assistance unless such debt  was  incurred  as  a  result  of  false  or
misleading  statements or other grounds set forth in section one hundred
forty-five-c of the social services law, which led to a  sanction  under
such section.
(c) If a taxpayer owes more than one past-due legally enforceable debt
which  is  certified  to  the  commissioner  of taxation and finance for
collection pursuant  to  this  section,  the  overpayment  and  interest
thereon  shall  be  credited against the debts in the order in which the

debts accrued. A debt shall be considered to have accrued at the time at
which the debt became past-due.
(6)  The  commissioner shall (a) certify to the comptroller the amount
of each overpayment and the interest  on  such  amount  to  be  credited
against each past-due legally enforceable debt pursuant to this section,
the  total amount of each such overpayment and the interest on each such
overpayment, and the balance, if  any,  of  each  such  overpayment  and
interest  thereon  to be refunded to the taxpayer, and (b) shall certify
to  the  comptroller,  with  regard  to  each  such  past  due   legally
enforceable  debt, the amount of liability underlying such debt which is
creditable to unemployment insurance tax, federal funds,  federal  trust
funds  or  fiduciary funds, or to the office of temporary and disability
assistance or a local social services district relating  to  overpayment
of  grants  and  allowances of public assistance or to the department of
health  relating  to  overpayments  of  medical   assistance   made   to
individuals  who  are or have been enrolled as providers in the New York
state medical assistance program as established under  title  eleven  of
article five of the social services law.
(7)  The  commissioner  of  taxation  and  finance  shall  notify each
taxpayer who makes an overpayment, in writing, of  the  amount  of  such
overpayment  and the interest thereon certified to the comptroller as an
amount to be credited against a past-due legally enforceable debt  which
has  been certified to the commissioner of taxation and finance pursuant
to this section and of the name of the state agency which certified  the
amount  to  the  commissioner of taxation and finance. Such notice shall
include notification to any other person who  may  have  filed  a  joint
return  with  the  taxpayer  of  the steps such other person may take in
order to secure his or her proper share of the refund.
(8) From the time the commissioner of taxation and finance is notified
by a creditor state agency of a past-due legally  enforceable  debt  due
from  a  taxpayer,  the  commissioner  of  taxation and finance shall be
relieved from all liability to such taxpayer or its assigns, successors,
heirs or representatives for the amount of an overpayment  and  interest
on  such amount certified to the comptroller, to be credited against the
amount of a past-due legally enforceable debt to be  collected  pursuant
to  this  section,  and  such taxpayer shall have no right to commence a
court action or proceeding or to any other legal  recourse  against  the
commissioner  of taxation and finance to recover such overpayment or any
interest thereon certified to the comptroller to be credited against the
amount of  a  past-due  legally  enforceable  debt.  Provided,  however,
nothing  herein  shall be construed to preclude any legal, equitable, or
administrative action by such  taxpayer  against  the  certifying  state
agency  to  which the amount of overpayment and any interest thereon was
credited, with reference to the amount thereof which is greater than the
amount of such past-due legally enforceable debt owed by  such  taxpayer
on the date of such certification.