§ 1089 — Petition to tax commission

§ 1089. Petition to tax commission.--(a) General.--The form of a\npetition to the tax commission, and further proceedings before the tax\ncommission in any case initiated by the filing of a petition, shall be\ngoverned by such rules as the tax commission shall prescribe. No\npetition shall be denied in whole or in part without opportunity for a\nhearing on reasonable prior notice. Such hearing shall be conducted by\none or more members of the tax commission, or by a hearing officer\ndesignated by the tax commission to take evidence and report to the tax\ncommission. The tax commissioners shall, acting as a body, jointly\ndecide the case as quickly as practicable. Notice of decision shall be\nmailed promptly to the taxpayer by certified or registered mail at its\nlast known address, and such notice shall set forth the tax commission's\nfindings of fact and a brief statement of the grounds of decision in\neach case decided in whole or in part adversely to the taxpayer.\n (b) Petition for redetermination of a deficiency.---Within ninety\ndays, or one hundred fifty days if the notice is addressed to a taxpayer\nwhose last known address is outside of the United States, after the\nmailing of the notice of deficiency authorized by section one thousand\neighty-one, the taxpayer may file a petition with the tax commission for\na redetermination of the deficiency. Such petition may also assert a\nclaim for refund for the same taxable year or years, subject to the\nlimitations of subsection (g) of section one thousand eighty-seven. For\nspecial restriction where the notice of deficiency relates to a proposed\nassessment made as a result of (i) a net operating loss carryback or\ncapital loss carryback, (ii) an increase or decrease in federal taxable\nincome or federal tax, or (iii) a federal change or correction or\nrenegotiation, or computation or recomputation of tax, which is treated\nin the same manner as if it were a deficiency for federal income tax\npurposes, see paragraph (7) of subsection (c) of section one thousand\neighty-three.\n (c) Petition for refund.---A taxpayer may file a petition with the tax\ncommission for the amounts asserted in a claim for refund if---\n (1) the taxpayer has filed a timely claim for refund with the tax\ncommission,\n (2) the taxpayer has not previously filed with the tax commission a\ntimely petition under subsection (b) of this section for the same\ntaxable year unless the petition under this subsection relates to a\nseparate claim for credit or refund properly filed under subsection (f)\nof section one thousand eighty-seven of this article or relates to a\nrefund or credit first claimed on an amended return for the taxable\nyear, and\n (3) either (A) six months have expired since the claim was filed, or\n(B) the tax commission has mailed to the taxpayer, by registered or\ncertified mail, a notice of disallowance of such claim in whole or in\npart.\n (4) Notwithstanding paragraph three of this subsection, no petition\nmay be filed by a taxpayer claiming a refund of one or more empire zone\ntax credits for a taxable year beginning on or after January first, two\nthousand eight and before January first, two thousand nine, until six\nmonths have expired after the date on which an empire zone retention\ncertificate was issued pursuant to subdivision (w) of section nine\nhundred fifty-nine of the general municipal law to the empire zone\nenterprise which is the basis for the tax credit or credits claimed on\nthe return or report.\nNo petition under this subsection shall be filed more than two years\nafter the date of mailing of a notice of disallowance, unless prior to\nthe expiration of such two year period it has been extended by written\nagreement between the taxpayer and the tax commission. If a taxpayer\nfiles a written waiver of the requirement that he be mailed a notice of\ndisallowance, the two year period prescribed by this subsection for\nfiling a petition for refund shall begin on the date such waiver is\nfiled.\n (d) Assertion of deficiency after filing petition.---\n (1) Petition for redetermination of deficiency.---If a taxpayer files\nwith the tax commission a petition for redetermination of a deficiency,\nthe tax commission shall have power to determine a greater deficiency\nthan asserted in the notice of deficiency and to determine if there\nshould be assessed any addition to tax or penalty provided in section\none thousand eighty-five, if claim therefor is asserted at or before the\nhearing under rules of the tax commission.\n (2) Petition for refund.---If the taxpayer files with the tax\ncommission a petition for credit or refund for a taxable year, the tax\ncommission may\n (A) determine a deficiency for such year as to any amount of\ndeficiency asserted at or before the hearing under rules of the tax\ncommission, and within the period in which an assessment would be timely\nunder section one thousand eighty-three, or\n (B) deny so much of the amount for which credit or refund is sought in\nthe petition, as is offset by other issues pertaining to the same\ntaxable year which are asserted at or before the hearing under rules of\nthe tax commission.\n (3) Opportunity to respond.--- A taxpayer shall be given a reasonable\nopportunity to respond to any matters asserted by the tax commission\nunder this subsection.\n (4) Restriction on further notices of deficiency.---If the taxpayer\nfiles a petition with the tax commission under this section, no notice\nof deficiency under section one thousand eighty-one of this article may\nthereafter be issued by the tax commission for the same tax return,\nexcept in case of fraud or with respect to an increase or decrease in\nfederal taxable income or federal alternative minimum taxable income or\nfederal tax or a federal 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, required to\nbe reported under subdivision three of section two hundred eleven of\nthis chapter.\n (e) Burden of proof.---In any case before the tax commission under\nthis article, the burden of proof shall be upon the petitioner except\nfor the following issues, as to which the burden of proof shall be upon\nthe tax commission:\n (1) whether the petitioner has been guilty of fraud with intent to\nevade tax;\n (2) whether the petitioner is liable as the transferee of property of\na taxpayer, but not to show that the taxpayer was liable for the tax;\n (3) whether the petitioner is liable for any increase in a deficiency\nwhere such increase is asserted initially after a notice of deficiency\nwas mailed and a petition under this section filed, unless such increase\nin deficiency is the result of an increase or decrease in federal\ntaxable income or federal alternative minimum taxable income or federal\ntax or a federal change or correction or renegotiation, or computation\nor recomputation of tax, which is treated in the same manner as if it\nwere a deficiency for federal income tax purposes, required to be\nreported under subdivision three of section two hundred eleven, or under\nsection two hundred nineteen-bb, or under section two hundred\nnineteen-zz, and of which increase, decrease, change or correction or\nrenegotiation, or computation or recomputation, the tax commission had\nno notice at the time it mailed the notice of deficiency; and\n (4) whether any person is liable for a penalty under subsection (l) of\nsection one thousand eighty-five.\n (f) Evidence of related federal determination.---Evidence of a federal\ndetermination relating to issues raised in a case before the tax\ncommission under this section shall be admissible, under rules\nestablished by the tax commission.\n (g) Jurisdiction over other years.---The tax commission shall consider\nsuch facts with relation to the taxes for other years as may be\nnecessary correctly to determine the tax for the taxable year, but in so\ndoing shall have no jurisdiction to determine whether or not the tax for\nany other year has been overpaid or underpaid.\n