New York § 430 - 430Determination of tax

§ 430. 430Determination of tax

§ 430. Determination of tax. If a distributor, noncommercial importer or other person files a return under this article, but such return is incorrect or insufficient, the commissioner of taxation and finance 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, noncommercial importer or other person, except that if such distributor has not registered as required by this article, or fails to file a return or files a willfully false or fraudulent return with intent to evade the tax, such determination may be made at any time. 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 commissioner of taxation and finance and the taxpayer 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. Any determination made pursuant to this section shall finally and irrevocably fix the tax unless the distributor, noncommercial importer or other person 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, noncommercial importer or other person 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, 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 commencing the proceeding. 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.