2023 New York Laws › TAX - Tax › Article 22 - Personal Income Tax › Part 6 - Procedure and Administration › 689 - Petition to Tax Commission.

§  689.  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 the decision  shall
be  mailed  promptly  to the taxpayer by certified or registered mail at
his 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 person outside
of  the  United  States,  after  the mailing of the notice of deficiency
authorized by section six hundred 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 six hundred eighty-seven.
(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 six hundred eighty-seven of this part 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
six  hundred 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 six hundred 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  six  hundred eighty-one of this part may
thereafter be issued by the tax commission  for  the  same  tax  return,
except  in  case  of  fraud  or  with  respect to a change or correction
required to be reported under section six  hundred  fifty-nine  of  this
article.
(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 a change or correction required to be
reported under section six hundred fifty-nine, and of  which  change  or
correction  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 (q) or
(r) of section six hundred eighty-five of this article.
(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.