New York Codes, Rules and Regulations › Title 20 - DEPARTMENT OF TAXATION AND FINANCE › Chapter II - Income Taxes and Estate Taxes › Subchapter A - New York State Personal Income Tax Under Article 22 Of The Tax Law › Article 4 - New York State Income Tax Returns and Payment of Income Tax › Part 161 - Change Of Election › Section 161.4 - Conditions for change of certain New York State elections not controlled by Federal elections

Current through Register Vol. 46, No. 28, July 10, 2024
The following are the conditions under which a taxpayer
						may change his election with respect to any of the matters listed in section
						161.3(a) 
						of this Part:
(a) The change of
					 election must be made by filing a complete amended New York State personal
					 income tax return for each taxable year involved, properly signed by each
					 taxpayer who made or agreed to the original election. If any other taxpayer was
					 not required to file a New York State personal income tax return by reason of
					 the original election, but is required to file a New York State personal income
					 tax return by reason of the change of election, the amended New York State
					 personal income tax return by the taxpayer who filed originally must be
					 accompanied by a New York State personal income tax return signed by such other
					 taxpayer.
(b) Where the change of
					 election results in an underpayment of New York State personal income tax on
					 the part of any taxpayer required to file a New York State personal income tax
					 return or amended New York State personal income tax return pursuant to
					 subdivision (a) of this section, any New York State personal income tax or
					 additional New York State personal income tax resulting from the change of
					 election will be deemed to have been assessed on the date of filing the
					 original New York State personal income tax return, and the change will not be
					 effective, unless all New York State personal income tax due from each such
					 taxpayer plus any interest thereon as required by section 684  of the Tax Law, is or has been paid at
					 the time of New York State personal income tax return or amended New York State
					 personal income tax return making the change of election is filed. For the
					 purposes of this subdivision, an overpayment by one spouse will be treated as
					 payment of New York State personal income tax due from the other spouse,
					 provided the spouse who made the overpayment authorizes such application
					 thereof.
(c) Where the change of
					 election results in an overpayment of New York State personal income tax, the
					 New York State personal income tax return or amended New York State personal
					 income tax return required by subdivision (a) of this section will be deemed a
					 claim for refund for the purposes of section 687  of the Tax Law, but refund will be
					 allowable only if such New York State personal income tax return or amended New
					 York State personal income tax return is filed within the time prescribed by
					 section 687  of the Tax Law, generally, three years
					 from the filing of the New York State personal income tax return in which the
					 original election was made, or two years from the payment of the New York State
					 personal income tax, whichever is later. To the extent that a change of
					 election serves or operates, as an offset, to reduce a deficiency of New York
					 State personal income tax under section 681  of the Tax Law for the same taxable
					 year, such change of election is not deemed to result in an overpayment and
					 such offset will be allowed without regard to the time limitation mentioned
					 above. Likewise, such time limitation will not apply to a change of election
					 which, considered independently of any other adjustment for the taxable year,
					 would have resulted in a deficiency or under-payment of New York State personal
					 income tax for such taxable year.
(d) Where the proposed change of election
					 involves a joint New York State personal income tax return of a husband and
					 wife or separate New York State personal income tax returns of the spouses on
					 one form (either as the original New York State personal income tax return or
					 as an amended New York State personal income tax return) and the sum of the
					 payments by both spouses on the original New York State personal income tax
					 return or returns exceeds the New York State personal income taxes dues after
					 giving effect to the change of election, refund of the excess may be made
					 payable to both spouses.
(e) If
					 more than one election is being changed for any taxable year, all such changes
					 may be shown in one New York State personal income tax return or amended New
					 York State personal income tax return for that year, filed by each taxpayer who
					 made or agreed to each of the original elections.
(f) No change of election pursuant to this
					 section will be effective if disapproved by the Tax Commission.