§ 3008 — Abatement of certain interest, penalties and additions to tax

§ 3008. Abatement of certain interest, penalties and additions to tax.\n(a) Interest attributable to unreasonable errors and delays by the\ndepartment. (1) In the case of any assessment or final determination of\ninterest on:\n (A) any deficiency or any tax finally determined to be due\nattributable in whole or in part to any unreasonable error or delay by\nan officer or employee of the department (acting in his or her official\ncapacity) in performing a ministerial or managerial act, or\n (B) any payment of any tax to the extent that any unreasonable error\nor delay in such payment is attributable to such officer or employee\nbeing erroneous or dilatory in performing a ministerial or managerial\nact, the commissioner may abate the assessment or final determination of\nall or any part of such interest for any period.\n (2) For purposes of paragraph one of this subdivision, an unreasonable\nerror or delay shall be taken into account only if no significant aspect\nof such unreasonable error or delay can be attributed to the taxpayer\ninvolved, and after the department has contacted the taxpayer in writing\nwith respect to such deficiency, tax finally determined to be due or\npayment. The commissioner shall determine what constitutes timely\nperformance of various ministerial or managerial acts performed under or\npursuant to the authority of this chapter, the general city law and\nsection 27-0923 of the environmental conservation law. Any regulations\nadopted with respect to other provisions of this subdivision shall\nconform, to the extent practicable, with corresponding federal\nregulations under the comparable provisions of the laws of the United\nStates. Administrative and judicial review of abatements under this\nsubdivision shall be limited to review of whether failure to abate would\nbe widely perceived as grossly unfair.\n (b) Abatement of any penalty or addition to tax or excess interest\nattributable to erroneous written advice by the department of taxation\nand finance.\n (1) The commissioner shall abate any portion of any penalty or\naddition to tax or excess interest attributable to erroneous advice\nfurnished to the taxpayer in writing by an officer or employee of the\ndepartment of taxation and finance, acting in such officer's or\nemployee's official capacity.\n (2) Paragraph one of this subdivision shall apply only if:\n (A) the written advice was reasonably relied upon by the taxpayer and\nwas in response to specific written request of the taxpayer, and\n (B) the portion of the penalty or addition to tax or excess interest\ndid not result from a failure by the taxpayer to provide adequate or\naccurate information.\n (3) This subdivision shall not be construed to require the department\nto provide written advice to taxpayers or other persons or entities.\n (c) Assessments attributable to certain mathematical errors by the\ndepartment. In the case of an assessment of any tax imposed by or\npursuant to the authority of article twenty-two, thirty, thirty-A or\nthirty-B of this chapter or article two-E of the general city law\nattributable in whole or in part to a mathematical error described in\nsubparagraph (A) of paragraph two of subsection (g) of section sixty-two\nhundred thirteen of the federal internal revenue code, if the return was\nprepared by an officer or employee of the department acting in his or\nher official capacity to provide assistance to taxpayers in the\npreparation of income tax returns, the commissioner is authorized to\nabate the assessment of all or any part of any interest on such\ndeficiency for any period ending on or before the tenth day following\nthe date of notice and demand by the commissioner for payment of the\ndeficiency.\n (d) Interest attributable to misappropriation of taxpayer payments.\n(1) The commissioner shall be authorized to abate, for the period\nspecified in paragraph two of this subdivision, any assessment or final\ndetermination of interest attributable to the misappropriation of a\ntaxpayer's payment if:\n (A) the taxpayer timely tenders payment to the department for a\nliability incurred under any tax, and the taxpayer's account with the\ndepartment is not properly credited with such payment due to\nmisappropriation thereof;\n (B) the taxpayer does not cause, or in any way contribute to, the\nmisappropriation of such payment; and\n (C) the taxpayer tenders a replacement payment to the department in\nthe original amount of such tax due no later than one year from the date\nof mailing of notice from the department of failure to pay.\n (2) The commissioner shall be authorized to abate any assessment or\nfinal determination of interest pursuant to this subdivision for some or\nall of the period from the date of the underpayment to (A) the date\nwhich is one year from the date of mailing of the department's notice of\nfailure to pay, (B) the date which is one year from the date the\ntaxpayer discovers that the payment was not properly credited to the\ntaxpayer's account or (C) thirty days from the date the taxpayer\nrecovers use of the misappropriated funds, whichever is earliest.\n (3) For purposes of this subdivision, the term "misappropriation"\nmeans circumstances in which a person wrongfully intercepts a taxpayer's\npayment tendered to the department prior to the department crediting the\ntaxpayer's account, and obtains use of the taxpayer's funds.\n