§ 170 — Department of taxation and finance

New York § 170

• Jurisdiction: New York
• Law TAX: Tax
• Art. 8: Department of Taxation and Finance; Commissioner of Taxation and Finance

Text

§ 170. Department of taxation and finance. 1. The existing department\nof taxation and finance and its present functions are continued. The\nhead of the department of taxation and finance shall be the commissioner\nof taxation and finance who shall have sole charge of the administration\nof such department except with regard to the administration of the\ndivision of tax appeals which shall be the sole charge of the tax\nappeals tribunal authorized by article forty of this chapter. The\ncommissioner of taxation and finance shall be appointed by the governor\nby and with the advice and consent of the senate and shall hold office\nas commissioner of taxation and finance until the end of the term of the\ngovernor by whom he was appointed and until his successor has been\nappointed and has qualified.\n 2. Existing divisions or bureaus in the department of taxation and\nfinance or transferred to the department shall continue until\nconsolidated or abolished pursuant to this section. There shall be in\nthe department of taxation and finance a division of taxation, a\ndivision of the treasury, a division of the lottery, an office of real\nproperty tax services, and a division of tax appeals.\n 3. The commissioner of taxation and finance may establish such\nadditional divisions and bureaus as he may deem necessary. He may\nappoint the heads of such divisions and bureaus and fix their duties and\nhe may consolidate, alter or abolish any divisions or bureaus, except\nthat such commissioner shall have no such authority or power with regard\nto the division of tax appeals.\n 3-a. (a) There shall be in the division of taxation a bureau of\nconciliation and mediation services which shall be responsible for\nproviding conciliation conferences. Such conference shall be provided,\nat the option of any taxpayer or any other person subject to the\nprovisions of this chapter or any other provision of law relating to\nadministration of taxes, where such taxpayer or any other such person\nhas received any written notice of a determination of tax due, a tax\ndeficiency, a denial of a refund or credit application, a cancellation,\nrevocation or suspension of a license, permit or registration, a denial\nof an application for a license, permit or registration or any other\nnotice which gives rise to a right to a hearing under this chapter if\nthe time to petition for such a hearing has not elapsed. Such notice\nshall contain information advising the recipient of the right to have a\nconciliation conference.\n (b) A request for a conciliation conference shall be applied for in\nthe manner as set forth by regulation of the commissioner and,\nnotwithstanding any provision of law to the contrary, shall suspend the\nrunning of the period of limitations for the filing of a petition\nprotesting such notice and requesting a hearing. To discontinue the\nconciliation proceeding, the recipient of the notice shall make a\nrequest in writing and such person shall have ninety days from the time\nsuch request of discontinuance is made to petition the division of tax\nappeals for a hearing, except that the recipient of a written notice\ndescribed in paragraph (h) of this subdivision will have thirty days\nfrom the time such request of discontinuance is made to petition the\ndivision of tax appeals for a hearing. The commissioner shall notify the\ndivision of tax appeals when any person requests a conference or\nrequests to discontinue such conference.\n (c) A conciliation conferee, all of whom, unless otherwise provided by\nlaw, shall be in the classified civil service, shall conduct the\nconciliation conference in an informal manner and shall hear or receive\ntestimony and evidence deemed necessary or desirable for a just and\nequitable result. The commissioner of taxation and finance shall have\nthe power to delegate authority to a conferee to waive or modify\npenalty, interest and additions to tax to the same extent as such\ncommissioner is permitted under this chapter.\n (d) The person who requests the conference may appear and represent\nhimself, including a member of a partnership, in any conciliation\nconference, or may designate the person's spouse, parent or child, or an\nattorney admitted to practice in the courts of record of this state, a\ncertified public accountant licensed in this state, an enrolled agent\nenrolled to practice before the internal revenue service, or a public\naccountant licensed in this state to appear and represent him. In\naddition the commissioner shall promulgate rules and regulations to\npermit a corporation to be represented by one of its officers or an\nemployee. The department may also allow an attorney, certified public\naccountant or licensed public accountant authorized to practice or\nlicensed in any other jurisdiction of the United States to appear and\nrepresent such person in a conciliation conference proceeding and, on\nthe written request of such person, may allow any other individual to\nrepresent him. An employee of the department of taxation and finance\nfamiliar with the controversy shall also be present at such proceedings.\n (e) A conciliation order shall be rendered within thirty days after\nthe proceeding is concluded and such order shall, in the absence of a\nshowing of fraud, malfeasance or misrepresentation of a material fact,\nbe binding upon the department and the person who requested the\nconference, except such order shall not be binding on such person if\nsuch person petitions for the hearing provided for under this chapter\nwithin ninety days after the conciliation order is issued, or, for a\nconciliation order affirming a written notice described in paragraph (h)\nof this subdivision, within thirty days after the conciliation order is\nissued, notwithstanding any other provision of law to the contrary.\n (f) Conciliation conference orders shall not be required to be\npublished and such orders shall not be considered as precedent or be\ngiven any force or effect in any subsequent administrative proceeding\nwith respect to the person who requested the conference or in any other\nproceeding.\n (g) The commissioner of taxation and finance shall collect, compile\nand prepare for publication statistics and other data with respect to\nthe operations of the bureau of conciliation and mediation services, and\nto submit annually to the governor, the temporary president of the\nsenate and the speaker of the assembly a report on such operations,\nincluding but not limited to, the number of conferences held, the\ndispositions made and the number of conferences pending.\n (h) Notwithstanding any provision of law to the contrary, any person\nwho seeks review by the bureau of conciliation and mediation services of\na written notice that advises that person of (i) the proposed\ncancellation, revocation, or suspension of a license, permit,\nregistration, or other credential issued under the authority of this\nchapter excluding a certificate of registration of a retail dealer under\nsection four hundred eighty-a of this chapter, (ii) the denial of an\napplication for a license, permit, registration, or other credential\nissued under the authority of this chapter excluding an application for\nregistration as a retail dealer under section four hundred eighty-a of\nthis chapter and an application to renew a certificate of authority\nfiled pursuant to paragraph five of subdivision (a) of section one\nthousand one hundred thirty-four of this chapter and any other law, or,\n(iii) the imposition of a fraud penalty under this chapter, must request\na conciliation conference within thirty days of the mailing of that\nnotice.\n 4. The commissioner of taxation and finance may appoint and remove\nsuch officers, assistants and other employees as he may deem necessary\nfor the exercise of the powers and duties of the department, all of whom\nshall be in the classified civil service unless otherwise provided by\nlaw; and he may prescribe their duties, and fix their compensation\nwithin the amounts appropriated therefor. The commissioner of taxation\nand finance may transfer officers or employees from their positions to\nother positions in the department, or abolish or consolidate such\npositions. He shall have all powers necessary to perform the duties\nconferred upon him regarding the state lottery authorized by article\nthirty-four of this chapter. However, the commissioner of taxation and\nfinance shall have no power to appoint or remove any personnel of the\ndivision of tax appeals nor shall such commissioner have any power or\nauthority with regard to the operation and administration of such\ndivision including any power or authority over such division's budget.\nThe commissioner shall furnish to the director of the division of the\nbudget the itemized estimates of the financial needs of the division of\ntax appeals prepared by the tax appeals tribunal. Such itemized\nestimates may not be revised or altered in any manner by the\ncommissioner.\n 5. The head of the division of taxation shall be the commissioner of\ntaxation and finance who shall be appointed by the governor as provided\nin subdivision one of this section. No person shall be appointed as\ncommissioner of taxation and finance unless at the time of his\nappointment he is a resident of the state and known to have knowledge on\nthe subject of taxation and skill in matters pertaining thereto. Such\ncommissioner shall devote his entire time to the duties of his office.\nThe commissioner of taxation and finance may after notice and an\nopportunity to be heard, be removed by the governor for neglect of duty\nor misfeasance in office, and the commissioner may be removed for other\ncause by the senate on the recommendation of the governor. The\ncommissioner of taxation and finance shall receive an annual salary\nwithin the amounts appropriated therefor.\n 6. The head of the division of the treasury shall be an officer\nentitled the deputy commissioner and treasurer to be appointed by and to\nhold office during the pleasure of the commissioner. The state treasury,\nthe custody of monies therein and the custody of all other funds, as now\nor hereafter prescribed by law shall continue to be in the immediate\ncharge of the head of such division, subject to the supervision and\ncontrol of the commissioner; and the head of such division, subject to\nsuch supervision and control, shall make the payments out of the\ntreasury and from such funds authorized or directed by law to be made.\nNotwithstanding any other provision of law, expenditures relating to\nfinancial services performed by the division of the treasury as fiscal\nagent, trustee or sole custodian of funds, moneys or accounts of\nagencies, authorities or other entities, shall be charged to such\nagencies, authorities or other entities. Payment of such charges shall\nbe in a manner prescribed by the commissioner and may include the\nwithholding of interest due on any investments made for such agencies,\nauthorities or other entities. All income derived from fees levied by\nthe commissioner for such financial services shall be deposited by the\ncommissioner in the miscellaneous special revenue fund, investment\nservices account. The commissioner may assign to such division such\nother powers and duties of the department of taxation and finance as he\nmay deem proper.\n 7. The head of the division of the lottery shall be an officer to be\nappointed by, and hold office during the pleasure of the commissioner of\ntaxation and finance.\n 7-a. The head of the office of real property tax services shall be an\nofficer to be appointed and hold office as provided by section two\nhundred three of the real property tax law.\n 8. The reasonable and necessary traveling and other expenses of the\ncommissioner, deputy commissioners and other officers and employees of\nthe department, while actually engaged in the performance of their\nduties, outside of the city of Albany, or if such officer or employee be\nin charge of or actually employed at a branch office of the department,\nthe reasonable and necessary traveling and other expenses outside of the\nplace in which such branch office is located, and the necessary\ntraveling expenses incurred in the performance of their duties in the\nplace in which their duties are performed of such officers and employees\nas are specifically authorized by order of the commissioner of taxation\nand finance, shall be paid upon the order of the comptroller upon\nvouchers approved by the commissioner of taxation and finance.\n