§ 61 — Notice of deficiency

§ 61. Notice of deficiency.--(a) General.--If upon examination of a\ntaxpayer's return under this local law the administrator determines that\nthere is a deficiency of income tax, he may mail a notice of deficiency\nto the taxpayer. If a taxpayer fails to file an income tax return\nrequired under this local law, the administrator is authorized to\nestimate the taxpayer's city taxable income and tax thereon, from any\ninformation in its possession, and to mail a notice of deficiency to the\ntaxpayer. A notice of deficiency shall be mailed by certified or\nregistered mail to the taxpayer at his last known address in or out of\nthe city. If a husband and wife are jointly liable for tax, a notice of\ndeficiency may be a single joint notice, except that if the\nadministrator has been notified by either spouse that separate\nresidences have been established, then, in lieu of the single joint\nnotice, a duplicate original of the joint notice shall be mailed to each\nspouse at his or her last known address in or out of the city. If the\ntaxpayer is deceased or under a legal disability, a notice of deficiency\nmay be mailed to his last known address in or out of the city, unless\nthe administrator has received notice of the existence of a fiduciary\nrelationship with respect to the taxpayer.\n (b) Notice of deficiency as assessment.--After ninety days from the\nmailing of a notice of deficiency, such notice shall be an assessment of\nthe amount of tax specified in such notice, together with the interest,\nadditions to tax and penalties stated in such notice, except only for\nany such tax or other amounts as to which the taxpayer has within such\nninety day period filed with the administrator a petition under section\nsixty-nine. If the notice of deficiency is addressed to a person outside\nof the United States, such period shall be one hundred fifty days\ninstead of ninety days.\n (c) Restrictions on assessment and levy.--No assessment of a\ndeficiency in tax and no levy or proceeding in court for its collection\nshall be made, begun or prosecuted, except as otherwise provided in\nsection seventy-four, until a notice of deficiency has been mailed to\nthe taxpayer, nor until the expiration of the time for filing a petition\ncontesting such notice, nor, if a petition with respect to the taxable\nyear has been filed with the administrator, until the decision of the\ntax commission has become final. For exception in the case of judicial\nreview of the decision of the administrator, see subdivision (c) of\nsection seventy.\n (d) Exceptions for mathematical errors.--If a mathematical error\nappears on a return (including an overstatement of the credit for income\ntax withheld at the source or of the amount paid as estimated income\ntax), the administrator shall notify the taxpayer that an amount of tax\nin excess of that shown upon the return is due, and that such excess has\nbeen assessed. Such notice shall not be considered as a notice of\ndeficiency for the purposes of this section, subdivision (f) of section\nsixty-seven (limiting credits or refunds after petition to the\nadministrator), or subdivision (b) of section sixty-nine (authorizing\nthe filing of a petition with the administrator based on a notice of\ndeficiency) nor shall such assessment or collection be prohibited by the\nprovisions of subdivision (c).\n (e) Exception where change in federal taxable income is not\nreported.--(1) If the taxpayer fails to comply with section thirty-nine\nin not reporting a change or correction increasing his federal taxable\nincome as reported on his federal income tax return or in not reporting\na change or correction which is treated in the same manner as if it were\na deficiency for federal income tax purposes or in not filing an amended\nreturn or in not reporting the execution of a notice of waiver described\nin such section, instead of the mode and time of assessment provided for\nin subdivision (b) of this section, the administrator may assess a\ndeficiency based upon such changed or corrected federal taxable income\nby mailing to the taxpayer a notice of additional tax due specifying the\namount of the deficiency, and such deficiency, together with the\ninterest, additions to tax and penalties stated in such notice, shall be\ndeemed assessed on the date such notice is mailed unless within thirty\ndays after the mailing of such notice a report of the federal change or\ncorrection or an amended return, where such return was required by\nsection thirty-nine, is filed accompanied by a statement showing wherein\nsuch federal determination and such notice of additional tax due are\nerroneous.\n (2) Such notice shall not be considered as a notice of deficiency for\nthe purposes of this section, subdivision (f) of section sixty-seven\n(limiting credits or refunds after petition to the administrator), or\nsubdivision (b) of section sixty-nine (authorizing the filing of a\npetition with the administrator based on a notice of deficiency), nor\nshall such assessment or the collection thereof be prohibited by the\nprovisions of subdivision (c).\n (3) If a husband and wife are jointly liable for tax, a notice of\nadditional tax due may be a single joint notice, except that if the\nadministrator has been notified by either spouse that separate\nresidences have been established, then, in lieu of the joint notice, a\nduplicate original of the joint notice shall be mailed to each spouse at\nhis or her last known address in or out of the city. If the taxpayer is\ndeceased or under a legal disability, a notice of additional tax due may\nbe mailed to his last known address in or out of the city, unless the\nadministrator has received notice of the existence of a fiduciary\nrelationship with respect to the taxpayer.\n (f) Waiver of restrictions.--The taxpayer shall at any time (whether\nor not a notice of deficiency has been issued) have the right to waive\nthe restriction on assessment and collection of the whole or any part of\nthe deficiency by a signed notice in writing filed with the\nadministrator.\n (g) Deficiency defined.--For purposes of this local law, a deficiency\nmeans the amount of the tax imposed by this local law, less (1) the\namount shown as the tax upon the taxpayer's return (whether the return\nwas made or the tax computed by him or by the administrator), and less,\n(2) the amounts previously assessed (or collected without assessment) as\na deficiency and plus (3) the amount of any rebates. For the purpose of\nthis definition, the tax imposed by this local law and the tax shown on\nthe return shall both be determined without regard to payments on\naccount of estimated tax or the credit for withholding tax; and a rebate\nmeans so much of an abatement, credit, refund or other repayment\n(whether or not erroneous) made on the ground that the amounts entering\ninto the definition of a deficiency showed a balance in favor of the\ntaxpayer.\n