§ 1412 — Refunds

§ 1412. Refunds. (a) A grantor or grantee claiming to have erroneously\npaid the tax imposed by this article or some other person designated by\nsuch grantor or grantee may file an application for refund within two\nyears from the date of payment. Such application shall be filed with the\ncommissioner of taxation and finance on a form which he shall prescribe.\n (b) The commissioner of taxation and finance may grant or deny such\napplication in whole or in part and shall notify the applicant by mail\naccordingly. Such determination shall be final and irrevocable unless\nthe applicant shall, within ninety days after the mailing of notice of\nsuch determination, petition the division of tax appeals for a hearing.\nAfter such hearing, the administrative law judge shall mail notice of\nits determination to the applicant and to the commissioner of taxation\nand finance. Such determination may be reviewed by the tax appeals\ntribunal as provided in article forty of this chapter. The decision of\nthe tax appeals tribunal may be reviewed as provided in section two\nthousand sixteen of this chapter. A proceeding for judicial review shall\nnot be instituted unless an undertaking is filed with the commissioner\nof taxation and finance in such amount and with such sureties as a\njustice of the supreme court shall approve to the effect that if such\nproceeding be dismissed or the tax confirmed, the petitioner will pay\nall costs and charges which may accrue in the prosecution of such\nproceeding.\n (c) A person shall not be entitled to a refund under this section of a\ntax, interest or penalty which had been determined to be due pursuant to\nthe provisions of section fourteen hundred eleven of this article where\nhe has had a hearing or an opportunity for a hearing, as provided in\nsaid section, or has failed to avail himself of the remedies therein\nprovided. However, a person filing with the commissioner of taxation and\nfinance a signed statement in writing, as provided in subdivision (b) of\nsection fourteen hundred eleven of this article, before a determination\nassessing tax, pursuant to subdivision (a) of section fourteen hundred\neleven, is issued, shall, nevertheless, be entitled to apply for a\nrefund pursuant to subdivisions (a) and (b) of this section, as long as\nsuch application is made within the time limitation set forth in such\nsubdivision (a). No refund shall be made of a tax, interest or penalty\npaid after a determination by the commissioner of taxation and finance\nmade pursuant to section fourteen hundred eleven unless it is found that\nsuch determination was erroneous, illegal or unconstitutional or\notherwise improper after review by the tax appeals tribunal or of the\ncommissioner of taxation and finance's own motion, or in a proceeding\nunder article seventy-eight of the civil practice law and rules,\npursuant to the provisions of section two thousand sixteen of this\nchapter, in which event refund shall be made of the tax, interest or\npenalty found to have been overpaid.\n (d) Interest shall be allowed and paid upon any refund made pursuant\nto this section except that no interest shall be allowed or paid if the\namount thereof would be less than one dollar. Such interest shall be at\nthe overpayment rate set pursuant to section fourteen hundred sixteen of\nthis article and shall have like application, or if no rate is set, at\nthe rate of six per centum per annum from the date when the tax, penalty\nor interest refunded was paid to a date preceding the date of the refund\ncheck by not more than thirty days. Provided, however, for purposes of\nthis subdivision any tax paid before the last day prescribed for its\npayment shall be deemed to have been paid on such last day.\n