§ 133 — Additions to tax and civil penalties

New York § 133

• Jurisdiction: New York
• Law GCM: General City Model 772/66

Text

§ 133. Additions to tax and civil penalties. (a) Failure to file tax\nreturn.--In case of failure to file a tax return under this title on or\nbefore the prescribed date (determined with regard to any extension of\ntime for filing), unless it is shown that such failure is due to\nreasonable cause and not due to willful neglect, there shall be added to\nthe amount required to be shown as tax on such return five per cent of\nthe amount of such tax if the failure is for not more than one month,\nwith an additional five per cent for each additional month or fraction\nthereof during which such failure continues, not exceeding twenty-five\nper cent in the aggregate. For this purpose, the amount of tax required\nto be shown on the tax return shall be reduced by the amount of any part\nof the tax which is paid on or before the date prescribed for payment of\nthe tax and by the amount of any credit against the tax which may be\nclaimed upon the return.\n (b) Deficiency due to negligence.--If any part of a deficiency is due\nto negligence or intentional disregard of this title or rules or\nregulations hereunder (but without intent to defraud), there shall be\nadded to the tax an amount equal to five per cent of the deficiency.\n (c) Failure to file declaration or underpayment of estimated tax.--If\nany taxpayer fails to file a declaration of estimated tax or fails to\npay all or any part of an installment of estimated tax, he shall be\ndeemed to have made an underpayment of estimated tax. There shall be\nadded to the tax for the taxable year an amount at the rate set by the\ncommissioner of finance pursuant to section one hundred forty-five, or,\nif no rate is set, at the rate of six per centum per annum upon the\namount of the underpayment for the period of the underpayment but not\nbeyond the fifteenth day of the fourth month following the close of the\ntaxable year. The amount of underpayment shall be the excess of the\namount of the installment which would be required to be paid if the\nestimated tax were equal to ninety per cent of the tax shown on the\nreturn for the taxable year (or if no return was filed, ninety percent\nof the tax for such year) over the amount, if any, of the installment\npaid on or before the last day prescribed for such payment. No\nunderpayment shall be deemed to exist with respect to a declaration or\ninstallment otherwise due on or after the taxpayer's death. In any case\nin which there would be no underpayment if this subdivision were applied\nby substituting "eighty percent" for "ninety percent" where it appears\nin the second preceding sentence, the addition to tax under this\nsubdivision shall be equal to seventy-five percent of the amount\notherwise determined under this subdivision.\n (d) Exception to addition for underpayment of estimated tax.--The\naddition to tax under subdivision (c) with respect to any underpayment\nof any installment shall not be imposed of the total amount of all\npayments of estimated tax made on or before the last date prescribed for\nthe payment of such installment equals or exceeds whichever of the\nfollowing is the lesser--\n (1) The amount which would have been required to be paid on or before\nsuch date if the estimated tax were whichever of the following is the\nleast--\n (A) The tax shown on the return of the taxpayer for the preceding\ntaxable year, if a return showing a liability for tax was filed by the\ntaxpayer for the preceding taxable year and such preceding year was a\ntaxable year of twelve months, or\n (B) An amount equal to the tax computed, at the rates applicable to\nthe taxable year, but otherwise on the basis of the facts shown on his\nreturn for, and the law applicable to, the preceding taxable year, or\n (C) An amount equal to ninety per cent of the tax for the taxable year\ncomputed by placing on an annualized basis the unincorporated business\ntaxable income for the months in the taxable year ending before the\nmonth in which the installment is required to be paid. For purposes of\nthis subparagraph, the unincorporated business taxable income shall be\nplaced on an annualized basis by--\n (i) multiplying by twelve (or, in the case of a taxable year of less\nthan twelve months, the number of months in the taxable year) the\nunincorporated business taxable income for the months in the taxable\nyear ending before the month in which the installment is required to be\npaid, and\n (ii) dividing the resulting amount by the number of months in the\ntaxable year ending before the month in which such installment date\nfalls, or\n (D) (i) If the base period percentage for any six consecutive months\nof the taxable year equals or exceeds seventy percent, an amount equal\nto ninety percent of the tax determined in the following manner--\n (I) take the unincorporated business taxable income for all months\nduring the taxable year preceding the filing month,\n (II) divide such amount by the base period percentage for all months\nduring the taxable year preceding the filing month,\n (III) determine the tax on the amounts determined under subclause\n(II), and\n (IV) multiply the tax determined under subclause (III) by the base\nperiod percentage for the filing month and all months during the taxable\nyear preceding the filing month.\n (ii) For purposes of clause (i)--\n (I) the base period percentage for any period of months shall be the\naverage percent which the unincorporated business taxable income for the\ncorresponding months in each of the three preceding years bears to the\nunincorporated business taxable income for the three preceding taxable\nyears. The commissioner of finance may by regulations provide for the\ndetermination of the base period percentage in the case of new\nunincorporated businesses and other similar circumstances, and\n (II) the term "filing month" means the month in which the installment\nis required to be paid; or\n (2) An amount equal to ninety percent of the tax computed, at the\nrates applicable to the taxable year, on the basis of the actual\nunincorporated business taxable income for the months in the taxable\nyear ending before the month in which the installment is required to be\npaid.\n (e) Allocation of unincorporated business tax.--(1) Except as provided\nin paragraph two hereof, subparagraphs (A) and (B) of paragraph one of\nsubdivision (d) of this section shall not apply in the case of any\ntaxpayer which had unincorporated business taxable income, or the\nportion thereof allocated within the city, of one million dollars or\nmore for any taxable year during the three taxable years immediately\npreceding the taxable year involved.\n (2) The amount treated as the estimated tax under subparagraphs (A)\nand (B) of paragraph one of subdivision (d) of this section shall in no\nevent be less than seventy-five percent of the tax shown on the return\nfor the taxable year beginning in nineteen hundred eighty-three or, if\nno return was filed, seventy-five percent of the tax for such year.\n (f) Deficiency due to fraud.--If any part of a deficiency is due to\nfraud, there shall be added to the tax an amount equal to fifty per cent\nof the deficiency. This amount shall be in lieu of any other addition to\ntax imposed by subdivision (a) or (b).\n (g) Additional penalty.--Any taxpayer who with fraudulent intent shall\nfail to pay any tax, or to make, render, sign or certify any return or\ndeclaration of estimated tax, or to supply any information within the\ntime required by or under this title, shall be liable to a penalty of\nnot more than one thousand dollars, in addition to any other amounts\nrequired under this title, to be imposed assessed and collected by the\ndirector of finance. The director of finance shall have the power, in\nhis discretion, to waive, reduce or compromise any penalty under this\nsubdivision.\n (h) Additions treated as tax.--The additions to tax and penalties\nprovided by this section shall be paid upon notice and demand and shall\nbe assessed, collected and paid in the same manner as taxes, and any\nreference in this title to income tax or tax imposed by this title,\nshall be deemed also to refer to the additions to tax and penalties\nprovided by this section. For purposes of section one hundred\ntwenty-nine, this subdivision shall not apply to--\n (1) any addition to tax under subdivision (a) except as to that\nportion attributable to a deficiency;\n (2) any addition to tax under subdivision (c); and\n (3) any additional penalty under subdivision (g).\n (i) Determination of deficiency.--For purposes of subdivisions (b) and\n(f), the amount shown as the tax by the taxpayer upon his return shall\nbe taken into account in determining the amount of the deficiency only\nif such return was filed on or before the last day prescribed for the\nfiling of such return, determined with regard to any extension of time\nfor such filing.\n (j) Substantial understatement of liability.--If there is a\nsubstantial understatement of tax for any taxable year, there shall be\nadded to the tax an amount equal to ten percent of the amount of any\nunderpayment attributable to such understatement. For purposes of this\nsubdivision, there is a substantial understatement of tax for any\ntaxable year if the amount of the understatement for the taxable year\nexceeds the greater of ten percent of the tax required to be shown on\nthe return for the taxable year, or five thousand dollars. For purposes\nof the preceding sentence, the term "understatement" means the excess of\nthe amount of the tax required to be shown on the return for the taxable\nyear, over the amount of the tax imposed which is shown on the return.\nThe amount of the understatement under the preceding sentence shall be\nreduced by that portion of the understatement which is attributable to\nthe tax treatment of any item by the taxpayer if there is or was\nsubstantial authority for such treatment, or any item with respect to\nwhich the relevant facts affecting the item's tax treatment are\nadequately disclosed in the return or in a statement attached to the\nreturn. The commissioner of finance may waive all or any part of the\naddition to tax provided by this subdivision on a showing by the\ntaxpayer that there was reasonable cause for the understatement (or part\nthereof) and that the taxpayer acted in good faith.\n