§ 135 — Limitations on credit or refund

New York § 135

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

Text

§ 135. Limitations on credit or refund. (a) General.--Claim for credit\nor refund of an overpayment of income tax shall be filed by the taxpayer\nwithin three years from the time the return was filed or two years from\nthe time the tax was paid, whichever of such periods expires the later,\nor if no return was filed, within two years from the time the tax was\npaid. If the claim is filed within the three year period, the amount of\nthe credit or refund shall not exceed the portion of the tax paid within\nthe three years immediately preceding the filing of the claim plus the\nperiod of any extension of time for filing the return. If the claim is\nnot filed within the three year period, but is filed within the two year\nperiod, the amount of the credit or refund shall not exceed the portion\nof the tax paid during the two years immediately preceding the filing of\nthe claim. Except as otherwise provided in this section, if no claim is\nfiled, the amount of a credit or refund shall not exceed the amount\nwhich would be allowable if a claim had been filed on the date the\ncredit or refund is allowed.\n (b) Extension of time by agreement.--If an agreement under the\nprovisions of paragraph two of subdivision (c) of section one hundred\nthirty-one (extending the period for assessment of income tax) is made\nwithin the period prescribed in subdivision (a) for the filing of a\nclaim for credit or refund, the period for filing a claim for credit or\nrefund, or for making credit or refund if no claim is filed, shall not\nexpire prior to six months after the expiration of the period within\nwhich an assessment may be made pursuant to the agreement or any\nextension thereof. The amount of such credit or refund shall not exceed\nthe portion of the tax paid after the execution of the agreement and\nbefore the filing of the claim or the making of the credit or refund, as\nthe case may be, plus the portion of the tax paid within the period\nwhich would be applicable under subdivision (a) if a claim had been\nfiled on the date the agreement was executed.\n (c) Notice of change or correction of federal taxable income.--If a\ntaxpayer is required by section one hundred twenty-seven to report a\nchange or correction in federal taxable income reported on his federal\nincome tax return, or to report a change or correction which is treated\nin the same manner as if it were an overpayment for federal income tax\npurposes, or to file an amended return with the director of finance,\nclaim for credit or refund of any resulting overpayment of tax shall be\nfiled by the taxpayer within two years from the time the notice of such\nchange or correction or such amended return was required to be filed\nwith the director of finance. If the report or amended return required\nby section one hundred twenty-seven is not filed within the ninety day\nperiod therein specified, interest or any resulting refund or credit\nshall cease to accrue after such ninetieth day. The amount of such\ncredit or refund shall not exceed the amount of the reduction in tax\nattributable to such federal change, correction or items amended on the\ntaxpayer's amended federal income tax return. This subdivision shall\nnot affect the time within which or the amount for which a claim for\ncredit or refund my be filed apart from this subdivision.\n (d) Overpayment attributable to net operating loss carryback.--A claim\nfor credit or refund of so much of an overpayment as is attributable to\nthe application to the taxpayer of a net operating loss carryback shall\nbe filed within three years from the time the return was due for the\ntaxable year of the loss, or within the period prescribed in subdivision\n(b) in respect of such taxable year, or within the period prescribed in\nsubdivision (c), where applicable, in respect of the taxable year to\nwhich the net operating loss is carried back, whichever expires the\nlatest.\n (e) Failure to file claim within prescribed period.--No credit or\nrefund shall be allowed or made, except as provided in subdivision (f)\nof this section or subdivision (d) of section one hundred thirty-eight\nafter the expiration of the applicable period of limitation specified in\nthis title unless a claim for credit or refund is filed by the taxpayer\nwithin such period. Any later credit shall be void and any later refund\nerroneous. No period of limitations specified in any other law shall\napply to the recovery by a taxpayer of moneys paid in respect of taxes\nunder this title.\n (f) Effect of petition to director of finance.--If a notice of\ndeficiency for a taxable year has been mailed to the taxpayer under\nsection one hundred twenty-nine and if the taxpayer files a timely\npetition with the director of finance under section one hundred\nthirty-seven, he may determine that the taxpayer has made an overpayment\nfor such year (whether or not it also determines a deficiency for such\nyear). No separate claim for credit or refund for such year shall be\nfiled, and no credit or refund for such year shall be allowed or made,\nexcept--\n (1) as to overpayments determined by a decision of the director of\nfinance which has become final;\n (2) as to any amount collected in excess of an amount computed in\naccordance with the decision of the director of finance which has become\nfinal;\n (3) as to any amount collected after the period of limitation upon the\nmaking of levy for collection has expired; and\n (4) as to any amount claimed as a result of a change or correction\ndescribed in subdivision (c).\n (g) Limit on amount of credit or refund.-- The amount of overpayment\ndetermined under subdivision (f) shall, when the decision of the\ndirector of finance has become final, be credited or refunded in\naccordance with subdivision (a) of section one hundred thirty-four and\nshall not exceed the amount of tax which the director of finance\ndetermines as part of his decision was paid--\n (1) after the mailing of the notice of deficiency, or\n (2) within the period which would be applicable under subdivisions\n(a), (b) or (c), if on the date of the mailing of the notice of\ndeficiency a claim had been filed (whether or not filed) stating the\ngrounds upon which the director of finance finds that there is an\noverpayment.\n (h) Early return.--For purposes of this section, any return filed\nbefore the last day prescribed for the filing thereof shall be\nconsidered as filed on such last day, determined without regard to any\nextension of time granted the taxpayer.\n (i) Prepaid income tax.--For purposes of this section, any tax paid by\nthe taxpayer before the last day prescribed for its payment and any\namount paid by the taxpayer as estimated income tax for a taxable year\nshall be deemed to have been paid by him on the fifteenth day of the\nfourth month following the close of his taxable year with respect to\nwhich such amount constitutes a credit or payment.\n (j) Cross reference.--For provision barring refund of overpayment\ncredited against tax of a succeeding year, see subdivision (d) of\nsection one hundred thirty-four.\n (k) Notice of change or correction of sales and compensating use tax\nliability.--If a taxpayer is required by section one hundred\ntwenty-seven-A to file a report or amended return in respect of a change\nor correction of his sales and compensating use tax liability, claim for\ncredit or refund of any resulting overpayment of tax shall be filed by\nthe taxpayer within two years from the time such report or amended\nreturn was required to be filed with the commissioner of finance. If the\nreport or amended return required by section one hundred twenty-seven-A\nis not filed within the ninety day period therein specified, interest on\nany resulting refund or credit shall cease to accrue after such\nninetieth day. The amount of such credit or refund shall be computed\nwithout change of the allocation of income or capital upon which the\ntaxpayer's return (or any additional assessment) was based, and shall\nnot exceed the amount of the reduction in tax attributable to such\nchange or correction of sales and compensating use tax liability. This\nsubdivision shall not affect the time within which or the amount for\nwhich a claim for credit or refund may be filed apart from this\nsubdivision.\n