§ 2006 — Tax appeals tribunal; functions, powers and duties

New York § 2006

• Jurisdiction: New York
• Law TAX: Tax
• Art. 40: Division of Tax Appeals

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§ 2006. Tax appeals tribunal; functions, powers and duties. The\ntribunal shall have the following functions, powers and duties:\n 1. To establish, consolidate, alter or abolish any unit in the\ndivision; to appoint the heads of such units and fix their duties; and\nto establish, consolidate or alter any positions in the division.\n 2. To appoint, remove or transfer officers, assistants, administrative\nlaw judges, and other employees as it may deem necessary for the\nexercise of the powers and performance of the duties of the division of\ntax appeals, all of whom shall be in the classified civil service unless\notherwise provided by law; to appoint a secretary to the tax appeals\ntribunal, which position shall be in the exempt class of the classified\nservice; and to prescribe their duties, and fix their compensation\nwithin the amounts appropriated therefor.\n 3. To prepare and submit to the commissioner of taxation and finance\nitemized estimates of the financial needs of the division of tax\nappeals, in such form and at such times as may be required, for\ninclusion as part of the financial needs of the department of taxation\nand finance furnished to the governor. The itemized estimates prepared\nby the tax appeals tribunal shall not be revised or altered in any\nmanner by the commissioner of taxation and finance prior to their\nsubmission to the governor.\n 4. To provide a hearing as a matter of right, to any petitioner upon\nsuch petitioner's request, pursuant to such rules, regulations, forms\nand instructions as the tribunal may prescribe, unless a right to such a\nhearing is specifically provided for, modified or denied by another\nprovision of this chapter. Where such a request is made by a person\nseeking review of taxes determined or claimed to be due under this\nchapter, the liability of such person shall become finally and\nirrevocably fixed, unless such person, within ninety days from the time\nsuch liability is assessed, shall petition the division of tax appeals\nfor a hearing to review such liability except that, as provided in\nsubdivision (a) of section five hundred twenty-eight of this chapter, a\ndetermination relating to the tax imposed by article twenty-one-A of\nthis chapter shall finally and irrevocably fix such tax unless the\nperson against whom it is assessed shall petition the division of tax\nappeals for a hearing within thirty days after the giving of notice of\nsuch determination.\n 5. To provide that any party, pursuant to such rules and regulations\nas the tribunal may prescribe, after a petition requesting a hearing has\nbeen filed with the division, may file a motion with the tribunal to\ndismiss the petition on the following grounds:\n (i) a defense is founded upon documentary evidence; or\n (ii) the tribunal lacks jurisdiction of the subject matter of the\npetition; or\n (iii) the petitioner lacks legal capacity to petition; or\n (iv) there is an action pending between the same parties on the same\ncontroversy in a court of any state or the United States; an\nadministrative law judge need not dismiss upon this ground but may make\nsuch determination as justice requires; or\n (v) the petition may not be maintained because of discharge in\nbankruptcy, infancy or other disability of the moving party, payment,\nrelease, or statute of limitation; or\n (vi) the pleading fails to state a cause for relief; or\n (vii) the tibunal lacks jurisdiction over the taxpayer; or\n (viii) the tribunal should not proceed in the absence of a person who\nshould be a party.\n Such motion to dismiss and all supporting documents shall be reviewed\nby an administrative law judge who shall issue a determination granting\nor denying the motion. Such a determination denying the motion shall not\nbe subject to review by the tribunal. The tribunal of its own motion\nmay, upon notice to the parties, issue a decision dismissing the\npetition on the grounds set forth in paragraphs (ii) and (vii) of this\nsubdivision. Where not otherwise inconsistent with the provisions of\nthis chapter, a motion filed pursuant to this subdivision shall be\nsubject to the same provisions as motions filed pursuant to section\nthree thousand two hundred eleven of the civil practice law and rules.\n 6. To provide that any party, pursuant to such rules and regulations\nas the tribunal may prescribe, after a petition requesting a hearing has\nbeen filed with the division and after issue is joined, may file a\nmotion with the tribunal for summary determination. Such motion shall be\nsupported by an affidavit, by a copy of the pleadings and by other\navailable proof. The affidavit, made by a person having knowledge of the\nfacts, shall recite all the material facts and show that there is no\nmaterial issue of fact, and that the facts mandate judgment in the\nmoving party's favor. The motion and all supporting documents shall be\nreviewed by an administrative law judge. The motion shall be granted if,\nupon all the papers and proof submitted, the administrative law judge\nfinds that it has been established sufficiently that no material and\ntriable issue of fact is presented and that the administrative law judge\ncan, therefore, as a matter of law, issue a determination in favor of a\nparty. The motion shall be denied if any party shows facts sufficient to\nrequire a hearing of any issue of fact. Where it appears that a party,\nother than the moving party, is entitled to a summary determination, the\nadministrative law judge may grant such determination without the\nnecessity of a cross-motion. Should it appear from affidavits submitted\nin opposition to the motion that facts essential to justify opposition\nmay exist but cannot be stated, the administrative law judge may deny\nthe motion or may order a continuance to permit affidavits or admissions\nto be obtained and may make such other order as may be just. Where not\notherwise inconsistent with the provisions of this chapter, a motion\nfiled pursuant to this subdivision shall be subject to the same\nprovisions as motions filed pursuant to section three thousand two\nhundred twelve of the civil practice law and rules.\n 7. To provide for a review of the determination of an administative\nlaw judge if any party to a proceeding conducted before such\nadministrative law judge, within thirty days after the giving of notice\nof such determination, takes exception to the determination. A\ndetermination by an administrative law judge denying a motion filed\npursuant to subdivision six of this section shall not be subject to\nreview by the tribunal. The tribunal in its discretion may grant oral\nargument. The tribunal may also grant an extension of time for filing an\nexception provided an application for such extension is filed within the\ntime period for taking exception to a determination under this\nsubdivision, and if good cause is shown. The tribunal shall promulgate\nrules and regulations as to what constitutes good cause. After such\nreview the tribunal shall issue a decision either affirming, reversing\nor modifying such determination, or the tribunal may remand the case for\nadditional proceedings before the administrative law judge. Such\ndecision shall include a statement setting forth the facts which formed\nthe basis of the decision on the issues raised before the tribunal. The\ntribunal shall have the authority to rule on the validity of the\nregulations of the commissioner of taxation and finance where such\nregulations are at issue. Such decision shall be issued within six\nmonths from the date of notice to the tribunal that exception is being\ntaken to an administrative law judge's determination, except that where\noral argument is granted or written arguments are submitted such six\nmonth period will commence to run on the date that such oral argument\nwas concluded or written argument received by the tribunal, whichever\nwas later.\n 8. To provide that hearings, other than hearings provided for by\nsection two thousand twelve of this article, conducted before an\nadministrative law judge and any oral proceedings conducted before the\ntax appeals tribunal shall be stenographically reported.\n 9. To publish and make available to the public all determinations\nrendered by an administrative law judge and all decisions rendered by\nthe tribunal after a review of an administrative law judge's\ndetermination. The tribunal may charge a reasonable fee for a copy of\nsuch determination or decision.\n 10. To take testimony and proofs, administer oaths, take affidavits\nand certify acknowledgements in relation to any proceeding conducted\npursuant to the authority of the division of tax appeals. The tribunal\nshall have power to subpoena and require the attendance of witnesses and\nthe production of books, papers and documents pertinent to the\nproceedings which it is authorized to conduct, and to examine them in\nrelation to any matter which it has power to investigate and to issue\ncommissions for the examination of witnesses who are out of the state or\nunable to attend proceedings conducted pursuant to the authority of the\ndivision or excused from attendance of such proceedings. The tribunal\nmay designate and authorize by resolution, duly entered upon its\nminutes, officers, administrative law judges and other employees of the\ndivision to exercise any of the powers or perform any of the functions\nprovided for in this subdivision. A subpoena issued under this\nsubdivision shall be regulated by the civil practice law and rules. Any\nperson who shall testify falsely in any proceeding conducted pursuant to\nthe authority of the division shall be guilty of and punishable for\nperjury.\n Cross reference: For criminal penalties, see article thirty-seven of\nthis chapter.\n 11. To provide that an attorney for any party at a hearing conducted\nbefore an administrative law judge may issue a subpoena as provided in\nthe civil practice law and rules.\n 12. To have the same power and authority as the commissioner of\ntaxation and finance in any instance where such commissioner is\nauthorized to impose, modify or waive interest, additions to tax or\ncivil penalties under this chapter, the environmental conservation law,\nthe general city law, or in any local law, ordinance or resolution\nimposing taxes pursuant to the authority thereof, and to designate and\nauthorize by resolution of the tax appeals tribunal, duly entered upon\nits minutes, officers, administrative law judges, and other employees of\nthe division to perform any of such functions.\n 13. To collect, compile and prepare for publication statistics and\nother data with respect to the operations of the division of tax\nappeals, and to submit annually to the governor, the temporary president\nof the senate and the speaker of the assembly a report on such\noperations including but not limited to, the number of proceedings\ninitiated, the types of dispositions made and the number of proceedings\npending.\n 14. To make, adopt and amend such rules and regulations appropriate\nfor the exercise of its powers and the performance of its duties,\nincluding rules of practice and procedure.\n 15. To have all other powers and perform such other duties as are\nnecessary and proper to operate and administer the division of tax\nappeals consistent with the purposes of such division described in this\narticle.\n