§ 1092 — Collection, levy and liens

New York § 1092

• Jurisdiction: New York
• Law TAX: Tax
• Art. 27: Corporate Tax Procedure and Administration

Text

§ 1092. Collection, levy and liens.---(a) Collection procedures.---The\ntaxes imposed by articles nine, nine-a, nine-b or nine-c shall be\ncollected by the tax commission, and it may establish the mode or time\nfor the collection of any amount due it under these articles if not\notherwise specified. The tax commission shall, upon request, give a\nreceipt for any sum collected under such articles. The tax commission\nmay authorize banks or trust companies which are depositaries or\nfinancial agents of the state to receive and give a receipt for any tax\nimposed under such articles in such manner, at such times, and under\nsuch conditions as the tax commission may prescribe; and the tax\ncommission shall prescribe the manner, times and conditions under which\nthe receipt of such tax by such banks and trust companies is to be\ntreated as payment of such tax to the tax commission.\n (b) Notice and demand for tax.---The tax commission shall as soon as\npracticable give notice to each taxpayer liable for any amount of tax,\naddition to tax, penalty or interest, which has been assessed but\nremains unpaid, stating the amount and demanding payment thereof. Such\nnotice shall be left at the principal office of the taxpayer in this\nstate or shall be sent by mail to such taxpayer's last known address.\nExcept where the tax commission determines that collection would be\njeopardized by delay, if any tax is assessed prior to the last date\n(including any date fixed by extension) prescribed for payment of such\ntax, payment of such tax shall not be demanded until after such date.\n (c) Issuance of warrant after notice and demand.---If any corporation\nor other person liable under articles nine or nine-a for the payment of\nany tax, addition to tax, penalty or interest neglects or refuses to pay\nthe same within twenty-one calendar days after notice and demand\ntherefor is given to such corporation or other person under subsection\n(b) of this section (ten business days if the amount for which such\nnotice and demand is made equals or exceeds one hundred thousand\ndollars), the commissioner may within six years after the date of such\nassessment issue a warrant under the commissioner's official seal\ndirected to the sheriff of any county of the state, or to any officer or\nemployee of the department, commanding him to levy upon and sell the\nreal and personal property of such corporation or other person for the\npayment of the amount assessed, with the cost of executing the warrant,\nand to return such warrant to the commissioner and pay to him or her the\nmoney collected by virtue thereof within sixty days after the receipt of\nthe warrant. If the commissioner finds that the collection of the tax or\nother amount is in jeopardy, notice and demand for immediate payment of\nsuch tax may be made by the commissioner and upon failure or refusal to\npay such tax or other amount the commissioner may issue a warrant\nwithout regard to the twenty-one day period (or ten-day period if\napplicable) provided in this subsection. For purposes of this\nsubsection, the term corporation shall include an exempt QSSS of such\ncorporation.\n (d) Copy of warrant to be filed and lien to be created.---Any sheriff\nor officer or employee who receives a warrant under subsection (c) shall\nwithin five days thereafter file a copy with the clerk of the\nappropriate county. The clerk shall thereupon enter in the judgment\ndocket, in the column for judgment debtors, the name of the taxpayer\nmentioned in the warrant, and in appropriate columns the tax or other\namounts for which the warrant is issued and the date when such copy is\nfiled; and such amount shall thereupon be a lien upon the title to and\ninterest in real, personal and other property of the taxpayer. Such lien\nshall not apply to personal property unless such warrant is filed in the\ndepartment of state. For purposes of this subsection, the term taxpayer\nshall include an exempt QSSS of such taxpayer.\n (e) Judgment.---When a warrant has been filed with the county clerk\nthe tax commission shall, in the right of the people of the state of New\nYork, be deemed to have obtained judgment against the taxpayer for the\ntax or other amounts. For purposes of this subsection, the term\ntaxpayer shall include an exempt QSSS of such taxpayer.\n (f) Execution.---The sheriff or officer or employee shall thereupon\nproceed upon the warrant in all respects, with like effect, and in the\nsame manner prescribed by law in respect to executions issued against\nproperty upon judgments of a court of record, and a sheriff shall be\nentitled to the same fees for his services in executing the warrant, to\nbe collected in the same manner. An officer or employee of the\ndepartment of taxation and finance may proceed in any county or counties\nof this state and shall have all the powers of execution conferred by\nlaw upon sheriffs, but shall be entitled to no fee or compensation in\nexcess of actual expenses paid in connection with the execution of the\nwarrant.\n (g) Foreign corporations.---Where a notice and demand under subsection\n(b) shall have been given to a foreign corporation or other person who\nis not then a resident, and it appears to the tax commission that it is\nnot practicable to find in this state property of such foreign\ncorporation or nonresident person sufficient to pay the entire balance\nof tax or other amount owing by such foreign corporation or nonresident\nperson, the tax commission may, in accordance with subsection (c), issue\na warrant directed to an officer or employee of the department of\ntaxation and finance, a copy of which warrant shall be mailed by\ncertified or registered mail to such foreign corporation or nonresident\nperson at its last known address, subject to the rules for mailing\nprovided in subsection (a) of section one thousand eighty-one. Such\nwarrant shall command the officer or employee to proceed in Albany\ncounty, and he shall, within five days after receipt of the warrant,\nfile the warrant and obtain a judgment in accordance with this section.\nThereupon the tax commission may authorize the institution of any action\nor proceeding to collect or enforce the judgment in any place and by any\nprocedure that a civil judgment of the supreme court of the state of New\nYork could be collected or enforced. The tax commission may also, in its\ndiscretion, designate agents or retain counsel for the purpose of\ncollecting, outside the state of New York, any unpaid taxes, additions\nto tax, penalties or interest which have been assessed under this\narticle or under article nine, nine-a, nine-b or nine-c, against foreign\ncorporations or other nonresident persons, may fix the compensation of\nsuch agents and counsel to be paid out of money appropriated or\notherwise lawfully available for payment thereof, and may require of\nthem bonds or other security for the faithful performance of their\nduties, in such form and in such amount as the tax commission shall deem\nproper and sufficient. For purposes of this subsection, the term\ncorporation shall include an exempt QSSS of such corporation.\n (h) Action by state for recovery of taxes.---Action may be brought by\nthe attorney general at the instance of the tax commission in the name\nof the state to recover the amount of any unpaid taxes, additions to\ntax, penalties or interest which have been assessed under this article\nor under article nine, nine-a, nine-b or nine-c within six years prior\nto the date the action is commenced.\n (i) Release of lien.---The tax commission, if it finds that the\ninterests of the state will not thereby be jeopardized, and upon such\nconditions as it may require, may release any property from the lien of\nany warrant filed under subsection (d) or (g) for unpaid taxes,\nadditions to tax, penalties and interest filed pursuant to this section,\nand such release may be recorded in the office of any recording officer\nin which such warrant has been filed.\n (j) Lien from due date of return.---(1) In addition to any other lien\nprovided for in this section, each tax imposed by article nine, nine-a,\nnine-b or nine-c shall become a lien on the date on which the return is\nrequired to be filed (without regard to any extension of time for filing\nsuch return), except that such tax shall become a lien not later than\nthe date the taxpayer ceases to be subject to the tax imposed by any\nsuch article or to exercise its franchise, or to do business in this\nstate in a corporate or organized capacity. Each such tax shall be a\nlien and binding upon the real and personal property of the taxpayer, or\nof a transferee liable to pay the same, until the same is paid in full,\nexcept that no lien for any additional tax assessed pursuant to this\narticle shall be enforceable against property which prior to the\nissuance to the taxpayer of a notice of deficiency under section one\nthousand eighty-one had been transferred in good faith to a bona fide\ntransferee for value. But the lien of each such tax shall be subject to\nthe lien of any mortgage indebtedness existing against real property\nprevious to the time when the tax became a lien and where such mortgage\nindebtedness has been incurred in good faith and was not given, directly\nor indirectly, to any officer or stockholder of the corporation owning\nsuch real property, whether as a purchase money mortgage or otherwise,\nand shall also be subject to the lien of local taxes and assessments,\nwithout regard to when the lien for such taxes and assessments may have\naccrued. If the return is filed and the tax shown on the report to be\ndue is paid on or before the date on which the report is required to be\nfiled, without regard to any extensions of time for filing such report,\nthe lien shall not be enforceable against the interest of any purchaser\nor mortgagee in property which is thereafter, but prior to the issuance\nto the taxpayer of a notice of deficiency under section one thousand\neighty-one, transferred to a bona fide purchaser for value, or mortgaged\nwhere the mortgage indebtedness is incurred in good faith and the\nmortgage is not given, directly or indirectly, to any officer or\nstockholder of the corporation. In any action to foreclose any such\nmortgage, or to foreclose the lien of local taxes or assessments, to\nwhich the people of the state of New York shall have been made a party\ndefendant by reason of the existence of a lien for any such tax, or if\nno such tax was due or was a lien at the time of the commencement of\nsuch action and the filing of the notice of pendency thereof, but such a\ntax becomes due or becomes a lien subsequent to the time of the\ncommencement of such action and the filing of the notice of pendency\nthereof, such real property shall be sold and conveyed in such action\nfree from any such tax lien, and any such tax lien may become a lien on\nany surplus moneys which may result from such sale, to be determined in\nthe proceedings for the distribution of such surplus moneys. Where title\nto real property passes from an individual, or from a corporation owing\nno franchise tax, to another corporation which is in default for such\ntax, the lien herein provided shall not be enforceable except as to any\nequity after the prior mortgage or purchase money mortgage encumbrance.\nFor purposes of this paragraph, the terms taxpayer and corporation shall\ninclude an exempt QSSS of such taxpayer or corporation.\n (2) The tax commission may, upon application made to it and the\npayment of a fee of fifty dollars, release any real property from the\nlien under this subsection, provided payment be made to the tax\ncommission of such a sum as the tax commission shall deem adequate\nconsideration for such release, or deposit be made of such security or\nsuch bond be filed as the tax commission shall deem proper to secure\npayment of any such tax. The application for such release shall contain\nan accurate description of the property to be released together with\nsuch other information as the tax commission may require. Such release\nmay be recorded in any office in which conveyances of real estate are\nentitled to be recorded.\n (3) All taxes, additions to tax, penalties and interest which have\nbecome a lien under this subsection shall cease to be a lien after the\nexpiration of twenty years from date they become due and payable, except\nthat taxes, additions to tax, penalties and interest which have become a\nlien under this subsection (i) as to real estate in the hands of persons\nwho are owners thereof who would be purchasers in good faith but for\nsuch taxes, additions to tax, penalties or interest and (ii) as to the\nlien on real estate of mortgages held by persons who would be holders\nthereof in good faith but for such taxes, additions to tax, penalties or\ninterest, as against such purchasers or holders shall cease to be a lien\nafter the expiration of ten years from date they become due and payable.\nThe limitations herein provided for shall not apply to any transfer from\na corporation to a person or corporation with intent to avoid payment of\nany taxes, or where with like intent the transfer is made to a grantee\ncorporation, or any subsequent grantee corporation, controlled by such\ngrantor or which has any community of interest with it, either through\nstock ownership or otherwise.\n