New York § 288 - 288Determination of tax

§ 288. 288Determination of tax

§ 288. Determination of tax. 1. (a) Except as otherwise provided in this section, if a distributor files a return under this article, but such return is incorrect or insufficient, the state tax commission shall determine the amount of tax due at any time within three years after the return was filed (whether or not such return was filed on or after the due date), and give written notice of such determination to the distributor. For the purposes of this section the term distributor shall also include any other person liable for the taxes imposed by this article. (b) The tax commission shall determine the liability for the penalty imposed by subdivision two of section two hundred eighty-nine-b of any officer, director, shareholder or employee of a corporation or of a dissolved corporation, member or employee of a partnership or employee of an individual proprietorship. The tax commission shall also determine the amount of such penalty. All of the provisions of this section shall apply to any determination made pursuant to this paragraph and for such purpose the term distributor, as used in subdivisions four, five and six of this section, shall also mean and include such officer, director, shareholder, employee or member as the case may be. (c) The tax commission shall determine the liability for the penalty imposed by paragraph (e) of subdivision one of section two hundred eighty-nine-b of any person as an owner of a filling station. The tax commission shall also determine the amount of such penalty. All of the provisions of this section shall apply to any determination made pursuant to this paragraph and for such purpose the term distributor, as used in subdivisions four, five and six of this section, shall also mean and include such person. (d) The provisions of paragraphs (b) and (c) of this subdivision shall not be construed to limit in any manner the powers of the attorney general under subdivision one of section two hundred eighty-nine of this chapter or the powers of the tax commission to issue a warrant under subdivision two of such section against any person whose liability has become finally and irrevocably fixed. 2. The state tax commission may determine the amount of tax due at any time if such distributor (i) has not registered as required by this article, (ii) fails to file a return, (iii) files a willfully false or fraudulent return with intent to evade the tax, or (iv) fails to comply with section two hundred eighty-three of this article in not informing the department, in writing, of any change in its address and, if a corporation or partnership, in not informing the department, in writing, of any change in its officers, directors or partners or their residence addresses as shown in its application for registration. 3. If a distributor shall inform the department, in writing, of any change in its address and, if a corporation or partnership shall inform the department, in writing, of any change in its officers, directors or partners or their residence addresses as shown in its application for registration, the determination of the amount of tax due may be made at any time within three years after such information is received. 4. Notwithstanding any of the foregoing provisions of this section, where, before the expiration of the time prescribed in this section for the determination of tax, both the tax commission and the distributor have consented in writing to its determination after such time, the tax may be determined at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. 5. Any determination made pursuant to this section shall finally and irrevocably fix the tax unless the distributor against whom it is assessed shall, within ninety days after the giving of notice of such determination, petition the division of tax appeals for a hearing, or unless the commissioner of taxation and finance of his own motion, shall redetermine the same. After such hearing, the division of tax appeals shall give notice of the determination of the administrative law judge to the distributor liable for the tax and to the commissioner of taxation and finance. Such determination may be reviewed by the tax appeals tribunal as provided in article forty of this chapter. The decision of the tax appeals tribunal may be reviewed as provided in section two thousand sixteen of this chapter, but the proceeding may not be commenced unless the amount of tax stated or referred to in the decision, with penalties and interest thereon, if any, and the amount of any other penalty stated or referred to in the decision shall have been first deposited with the commissioner of taxation and finance, and an undertaking filed with him, in such amount and with such sureties as a justice of the supreme court shall approve, to the effect that if such proceeding be dismissed or the decision confirmed, the petitioner will pay all costs and charges which may accrue against him in the prosecution of the proceeding, or at the option of the petitioner such undertaking may be in a sum sufficient to cover the tax, penalties, interest, costs and charges aforesaid, in which event the petitioner shall not be required to pay such tax, penalties and interest as a condition precedent to the commencement of the proceeding. 6. The remedy provided by this section for review of a decision of the tax appeals tribunal shall be the exclusive remedy available to any taxpayer to judicially determine the liability of such taxpayer for taxes under this article.