§ 1083 — Limitations on assessment

§ 1083. Limitations on assessment.--- (a) General.--- Except as\notherwise provided in this section, any tax under article nine, nine-a,\nnine-b or nine-c shall be assessed within three years after the return\nwas filed (whether or not such return was filed on or after the date\nprescribed).\n (b) Time return deemed filed.---For purposes of this section, a return\nof tax filed before the last day prescribed by law or by regulations\npromulgated pursuant to law for the filing thereof shall be deemed to be\nfiled on such last day.\n (c) Exceptions.---\n (1) Assessment at any time.---The tax may be assessed at any time\nif---\n (A) no return is filed,\n (B) a false or fraudulent return is filed with intent to evade tax,\n (C) in the case of the tax imposed under article nine-a, nine-b or\nnine-c, the taxpayer fails to file a report or amended return required\nunder subdivision three of section two hundred eleven or section two\nhundred nineteen-bb or two hundred nineteen-zz, in respect of an\nincrease or decrease in federal taxable income or federal alternative\nminimum taxable income or federal tax, or in respect of a change or\ncorrection or renegotiation, or computation or recomputation of tax,\nwhich is treated in the same manner as if it were a deficiency for\nfederal income tax purposes, or\n (D) it is assessed in respect of a final determination of a refund or\ncredit of retaliatory taxes or other charges as prescribed by paragraphs\n(1) and (2) of subsection (i) of section one thousand eighty-one. For\nany such assessment, the amount of the assessment of tax shall not\nexceed the amount of the increase in New York tax attributable to such\nrefund or credit. The provisions of this subparagraph shall not extend\nthe time within which or affect the amount for which an assessment may\notherwise be made.\n (2) Extension by agreement.---Where, before the expiration of the time\nprescribed in this section for the assessment of tax, both the tax\ncommission and the taxpayer have consented in writing to its assessment\nafter such time, the tax may be assessed at any time prior to the\nexpiration of the period agreed upon. The period so agreed upon may be\nextended by subsequent agreements in writing made before the expiration\nof the period previously agreed upon.\n (3) Report of changed or corrected federal income.---In the case of\nthe tax imposed under article nine-a, nine-b or nine-c, if the taxpayer\nfiles a report or amended return required under subdivision three of\nsection two hundred eleven or section two hundred nineteen-bb or two\nhundred nineteen-zz, in respect of an increase or decrease in federal\ntaxable income or federal alternative minimum taxable income or federal\ntax, or in respect of a change or correction or renegotiation, or\ncomputation or recomputation of tax, which is treated in the same manner\nas if it were a deficiency for federal income tax purposes, the\nassessment (if not deemed to have been made upon the filing of the\nreport or amended return) may be made at any time within two years after\nsuch report or amended return was filed. The amount of such assessment\nof tax shall not exceed the amount of the increase in New York tax\nattributable to such federal change or correction or renegotiation, or\ncomputation or recomputation of tax. The provisions of this paragraph\nshall not affect the time within which or the amount for which an\nassessment may otherwise be made.\n (4) Deficiency attributable to carryback.---If a deficiency of tax\nunder article nine-a is attributable to the application to the taxpayer\nof a net operating loss carryback or a capital loss carryback, it may be\nassessed at any time that a deficiency for the taxable year of the loss\nmay be assessed.\n (5) Recovery of erroneous refund.---An erroneous refund shall be\nconsidered an underpayment of tax on the date made, and an assessment of\na deficiency arising out of an erroneous refund may be made at any time\nwithin two years from the making of the refund, except that the\nassessment may be made within five years from the making of the refund\nif it appears that any part of the refund was induced by fraud or\nmisrepresentation of a material fact.\n (6) Request for prompt assessment.---The tax shall be assessed within\neighteen months after written request therefor (made after the return is\nfiled) by the taxpayer or by a fiduciary representing the taxpayer, but\nnot more than three years after the return was filed, except as\notherwise provided in this subsection and subsection (d). This\nsubsection shall not apply unless---\n (A) (i) such written request notifies the tax commission that the\ntaxpayer contemplates dissolution at or before the expiration of such\neighteen-month period, (ii) the dissolution is in good faith begun\nbefore the expiration of such eighteen-month period, and (iii) the\ndissolution is completed;\n (B) (i) such written request notifies the tax commission that a\ndissolution has in good faith been begun, and (ii) the dissolution is\ncompleted; or\n (C) a dissolution has been completed at the time such written request\nis made.\n (7) Change of the allocation of taxpayer's income or capital.---No\nchange of the allocation of income or capital upon which the taxpayer's\nreturn (or any additional assessment) was based shall be made where an\nassessment of tax is made during the additional period of limitation\nunder subparagraph (C) of paragraph (1), or under paragraph (3) or (4);\nand where any such assessment has been made, or where a notice of\ndeficiency has been mailed to the taxpayer on the basis of any such\nproposed assessment, no change of the allocation of income or capital\nshall be made in a proceeding on the taxpayer's claim for refund of such\nassessment or on the taxpayer's petition for redetermination of such\ndeficiency.\n (8) Report concerning waste treatment facility, air pollution control\nfacility or eligible business facility. Under the circumstances\ndescribed in subparagraph (3) of paragraph (g) of subdivision nine of\nsection two hundred eight, paragraph (f) of subdivision eleven of\nsection two hundred ten or paragraph (f) of subdivision eleven of\nsection two hundred nineteen-q of this chapter, the tax may be assessed\nwithin three years after the filing of the report containing the\ninformation required by such paragraph, or, if a certificate of\ncompliance in respect to an air pollution control facility shall be\nrevoked, within three years after the tax commission shall receive\nnotice of such revocation from the taxpayer or as required by\nsubdivision three of section 19-0309 of the environmental conservation\nlaw, whichever notice is received earlier.\n (9) Reports concerning empire zone credits. If a taxpayer's\ncertification under article eighteen-B of the general municipal law is\nrevoked with respect to an empire zone or zone equivalent area, any tax\nliability generated by reason of such decertification may be assessed\nwithin three years after the commissioner has received notice of such\ndecertification as required by subdivision (a) of section nine hundred\nfifty-nine of the general municipal law.\n (10) Reports concerning a certificate of completion. If a taxpayer's\ncertificate of completion issued pursuant to section 27-1419 of the\nenvironmental conservation law is revoked by a determination issued\npursuant to section 27-1419 of the environmental conservation law, any\ntax liability generated by reason of such revocation may be assessed\nwithin one year after such determination is final and is no longer\nsubject to judicial review.\n * (11) Extended statute of limitations for tax avoidance\ntransactions.--(A) If a taxpayer fails to file, disclose or provide any\nstatement, return or other information for any taxable year with respect\nto a listed transaction (as defined in paragraph three of subsection (p)\nof section one thousand eighty-five of this article) which is required\nunder subdivision (a) of section twenty-five of this chapter, the time\nfor assessment of any tax imposed by this article with respect to such\ntransaction shall not expire before the date which is one year after the\nearlier of:\n (i) the date on which the commissioner is furnished the statement,\nreturn, or information so required, or\n (ii) the date that the requirements of subdivision (c) of section\ntwenty-five of this chapter are met with respect to a request under such\nsubdivision by the commissioner relating to such transaction.\n (B) If later than the time for assessment otherwise provided by this\nsection, tax may be assessed at any time within six years after the\nreturn was filed if the deficiency is attributable to an abusive tax\navoidance transaction.\n (C) For purposes of subparagraph (B) of this paragraph, an "abusive\ntax avoidance transaction" means a plan or arrangement devised for the\nprincipal purpose of avoiding tax. Abusive tax avoidance transactions\ninclude, but are not limited to, listed transactions described in\nparagraph five of subsection (k-1) of section one thousand eighty-five\nof this article.\n * NB Repealed July 1, 2029\n (12) Except as otherwise provided in paragraph three of this\nsubsection, or as otherwise provided in this section where a longer\nperiod of time may apply, if a taxpayer files an amended return, an\nassessment of tax (if not deemed to have been made upon the filing of\nthe amended return), including recovery of a previously paid refund,\nattributable to a change or correction on the amended return from a\nprior return may be made at any time within one year after such amended\nreturn is filed.\n (d) Omission of income on return.---The tax may be assessed at any\ntime within six years after the return was filed if (i) a taxpayer omits\nfrom gross income required to be reported on a return under article\nnine, nine-a, nine-b or nine-c an amount properly includible therein\nwhich is in excess of twenty-five percent of the amount of gross income\nstated in the return or, (ii) a taxpayer omits from the sum of its items\nof tax preference and its adjustment required in the computation of\nminimum taxable income an amount properly includible therein which is in\nexcess of twenty-five percent of such sum as stated in the return.\n For purposes of this subsection---\n (1) the term gross income means gross income for federal income tax\npurposes as reportable on a return under article nine-a, and "gross\nearnings", "gross income", "gross operating income" and "gross direct\npremiums less return premiums", as those terms are used in article nine,\nnine-b or nine-c, whichever is applicable;\n (2) there shall not be taken into account any amount which is omitted\nin the return if such amount is disclosed in the return, or in a\nstatement attached to the return, in a manner adequate to apprise the\ntax commission of the nature and amount of such item.\n (e) Suspension of running of period of limitation.---The running of\nthe period of limitations on assessment or collection of tax or other\namount (or of a transferee's liability) shall, after the mailing of a\nnotice of deficiency, be suspended for the period during which the tax\ncommission is prohibited under subsection (c) of section one thousand\neighty-one from making the assessment or from collecting by levy.\n