§ 288 — Determination of tax

New York § 288

• Jurisdiction: New York
• Law TAX: Tax
• Art. 12-A: Tax On Gasoline and Similar Motor Fuel

Text

§ 288. Determination of tax. 1. (a) Except as otherwise provided in\nthis section, if a distributor files a return under this article, but\nsuch return is incorrect or insufficient, the state tax commission shall\ndetermine the amount of tax due at any time within three years after the\nreturn was filed (whether or not such return was filed on or after the\ndue date), and give written notice of such determination to the\ndistributor. For the purposes of this section the term distributor\nshall also include any other person liable for the taxes imposed by this\narticle.\n (b) The tax commission shall determine the liability for the penalty\nimposed by subdivision two of section two hundred eighty-nine-b of any\nofficer, director, shareholder or employee of a corporation or of a\ndissolved corporation, member or employee of a partnership or employee\nof an individual proprietorship. The tax commission shall also determine\nthe amount of such penalty. All of the provisions of this section shall\napply to any determination made pursuant to this paragraph and for such\npurpose the term distributor, as used in subdivisions four, five and six\nof this section, shall also mean and include such officer, director,\nshareholder, employee or member as the case may be.\n (c) The tax commission shall determine the liability for the penalty\nimposed by paragraph (e) of subdivision one of section two hundred\neighty-nine-b of any person as an owner of a filling station. The tax\ncommission shall also determine the amount of such penalty. All of the\nprovisions of this section shall apply to any determination made\npursuant to this paragraph and for such purpose the term distributor, as\nused in subdivisions four, five and six of this section, shall also mean\nand include such person.\n (d) The provisions of paragraphs (b) and (c) of this subdivision shall\nnot be construed to limit in any manner the powers of the attorney\ngeneral under subdivision one of section two hundred eighty-nine of this\nchapter or the powers of the tax commission to issue a warrant under\nsubdivision two of such section against any person whose liability has\nbecome finally and irrevocably fixed.\n 2. The state tax commission may determine the amount of tax due at any\ntime if such distributor (i) has not registered as required by this\narticle, (ii) fails to file a return, (iii) files a willfully false or\nfraudulent return with intent to evade the tax, or (iv) fails to comply\nwith section two hundred eighty-three of this article in not informing\nthe department, in writing, of any change in its address and, if a\ncorporation or partnership, in not informing the department, in writing,\nof any change in its officers, directors or partners or their residence\naddresses as shown in its application for registration.\n 3. If a distributor shall inform the department, in writing, of any\nchange in its address and, if a corporation or partnership shall inform\nthe department, in writing, of any change in its officers, directors or\npartners or their residence addresses as shown in its application for\nregistration, the determination of the amount of tax due may be made at\nany time within three years after such information is received.\n 4. Notwithstanding any of the foregoing provisions of this section,\nwhere, before the expiration of the time prescribed in this section for\nthe determination of tax, both the tax commission and the distributor\nhave consented in writing to its determination after such time, the tax\nmay be determined at any time prior to the expiration of the period\nagreed upon. The period so agreed upon may be extended by subsequent\nagreements in writing made before the expiration of the period\npreviously agreed upon.\n 5. Any determination made pursuant to this section shall finally and\nirrevocably fix the tax unless the distributor against whom it is\nassessed shall, within ninety days after the giving of notice of such\ndetermination, petition the division of tax appeals for a hearing, or\nunless the commissioner of taxation and finance of his own motion, shall\nredetermine the same. After such hearing, the division of tax appeals\nshall give notice of the determination of the administrative law judge\nto the distributor liable for the tax and to the commissioner of\ntaxation and finance. Such determination may be reviewed by the tax\nappeals tribunal as provided in article forty of this chapter. The\ndecision of the tax appeals tribunal may be reviewed as provided in\nsection two thousand sixteen of this chapter, but the proceeding may not\nbe commenced unless the amount of tax stated or referred to in the\ndecision, with penalties and interest thereon, if any, and the amount of\nany other penalty stated or referred to in the decision shall have been\nfirst deposited with the commissioner of taxation and finance, and an\nundertaking filed with him, 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 decision confirmed, the petitioner will\npay all costs and charges which may accrue against him in the\nprosecution of the proceeding, or at the option of the petitioner such\nundertaking may be in a sum sufficient to cover the tax, penalties,\ninterest, costs and charges aforesaid, in which event the petitioner\nshall not be required to pay such tax, penalties and interest as a\ncondition precedent to the commencement of the proceeding.\n 6. The remedy provided by this section for review of a decision of the\ntax appeals tribunal shall be the exclusive remedy available to any\ntaxpayer to judicially determine the liability of such taxpayer for\ntaxes under this article.\n