§ 65 — Additions to tax and civil penalties

§ 65. Additions to tax and civil penalties.--(a) Failure to file tax\nreturn.--In case of failure to file a tax return under this local law on\nor before the prescribed date (determined with regard to any extension\nof time 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 return shall be reduced by the amount of any part of\nthe 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 local law 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 of six per\ncentum per annum upon the amount of the underpayment for the period of\nthe underpayment but not beyond the fifteenth day of the fourth month\nfollowing the close of the taxable year. The amount of underpayment\nshall be the excess of the amount of the installment which would be\nrequired to be paid if the estimated tax were equal to seventy per cent\nof the tax (two-thirds of the tax for farmers referred to in subdivision\n(e) of section thirty-five) shown on the return for the taxable year (or\nif no return was filed, of the tax for such year) over the amount, if\nany, of the installment paid on or before the last day prescribed for\nsuch payment. No underpayment shall be deemed to exist with respect to a\ndeclaration or installment otherwise due on or after the taxpayer's\ndeath.\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 if 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 individual for the preceding\ntaxable year, if a return showing a liability for tax was filed by the\nindividual 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, on the basis of the taxpayer's status with respect to\npersonal exemptions for the taxable year, but otherwise on the basis of\nthe facts shown on his return for, and the law applicable to, the\npreceding taxable year, or\n (C) An amount equal to seventy per cent of the tax for the taxable\nyear (two-thirds of the tax for farmers referred to in subdivision (e)\nof section thirty-five) computed by placing on an annualized basis the\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 taxable income shall be placed on an annualized\nbasis 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\ntaxable income (computed without deduction for personal exemptions) for\nthe months in the taxable year ending before the month in which the\ninstallment is required to be paid,\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, and\n (iii) deducting from such amount the deductions for personal\nexemptions allowable for the taxable year (such personal exemptions\nbeing determined as of the last date prescribed for payment of the\ninstallment); or\n (2) An amount equal to ninety per cent of the tax computed, at the\nrates applicable to the taxable year, on the basis of the actual taxable\nincome for the months in the taxable year ending before the month in\nwhich the installment is required to be paid.\n For the purposes of this subdivision the amounts specified in\nsubparagraphs (B) and (C) of paragraph (1) and in paragraph (2) shall be\ncomputed without regard to any increase in the rates applicable to the\ntaxable year unless such increase was enacted at least thirty days prior\nto the time a declaration or amended declaration of estimated tax is\nrequired to be filed for such taxable year.\n (e) 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 (f) Non-willful failure to pay withholding tax.--If any employer,\nwithout intent to evade or defeat any tax imposed by this local law or\nthe payment thereof, shall fail to make a return and pay a tax withheld\nby him at the time required by or under the provisions of section\nfifty-four, such employer shall be liable for such tax and shall pay the\nsame together with interest thereon and the addition to tax provided in\nsubdivision (a), and such interest and addition to tax shall not be\ncharged to or collected from the employee by the employer. The\nadministrator shall have the same rights and powers for the collection\nof such tax, interest and addition to tax against such employer as are\nnow prescribed by this title for the collection of tax against an\nindividual taxpayer.\n (g) Willful failure to collect and pay over tax.--Any person required\nto collect, truthfully account for, and pay over the tax imposed by this\nlocal law who willfully fails to collect such tax or truthfully account\nfor and pay over such tax or willfully attempts in any manner to evade\nor defeat the tax or the payment thereof, shall, in addition to other\npenalties provided by law, be liable to a penalty equal to the total\namount of the tax evaded, or not collected, or not accounted for and\npaid over. No addition to tax under subdivisions (b) or (e) shall be\nimposed for any offense to which this subdivision applies.\n (h) Failure to file certain information returns.--In case of each\nfailure to file a statement of a payment to another person, required\nunder authority of subdivision (c) of section thirty-eight (relating to\ninformation at source, including the duplicate statement of tax withheld\non wages) on the date prescribed therefor (determined with regard to any\nextension of time for filing), unless it is shown that such failure is\ndue to reasonable cause and not to willful neglect, there shall, upon\nnotice and demand by the administrator and in the same manner as tax, be\npaid by the person so failing to file the statement, a penalty of one\ndollar for each statement not so filed, but the total amount imposed on\nthe delinquent person for all such failures during any calendar year\nshall not exceed one thousand dollars.\n (i) Additional penalty.--Any person who with fraudulent intent shall\nfail to pay, or to deduct or withhold and pay, any tax, or to make,\nrender, sign or certify any return or declaration of estimated tax, or\nto supply any information within the time required by or under this\nlocal law, shall be liable to a penalty of not more than one thousand\ndollars, in addition to any other amounts required under this local law,\nto be imposed, assessed and collected by the administrator. The\nadministrator shall have the power, in his discretion, to waive, reduce\nor compromise any penalty under this subdivision.\n (j) 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 local law to income tax or tax imposed by this local\nlaw, shall be deemed also to refer to the additions to tax and penalties\nprovided by this section. For purposes of section sixty-one, this\nsubdivision 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 (i).\n (k) Determination of deficiency.--For purposes of subdivisions (b) and\n(e), 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 (l) Person defined.--For purposes of subdivisions (g) and (i), the\nterm "person" includes an individual, corporation or partnership or an\nofficer or employee of any corporation (including a dissolved\ncorporation), or a member or employee of any partnership, who as such\nofficer, employee, or member is under a duty to perform the act in\nrespect of which the violation occurs.\n