Sec. 575.15. Determination of tax

Tax Law, §§ 1411, 1420

(a) If the required return is not filed, or if a filed return is incorrect or incomplete, the department will determine the tax due from whatever records and information are available, including the assessed valuation of the real property or interest therein and other appropriate factors. Notice of such determination will be given to the person liable for the payment of the tax.

(b) The provisions of the Civil Practice Law and Rules, or any other law relative to limitations of time for the enforcement of a civil remedy, do not apply to any proceeding or action taken by New York State or the Commissioner to levy, appraise, assess, determine or enforce the collection of any tax or penalty provided by Article 31 of the Tax Law. No determination of tax due shall be made after the expiration of more than three years from the date of the filing of a return; provided, however, that where no return has been filed as provided by law or in the case of a willfully false or fraudulent return, the tax may be assessed at any time.

(c) Where, before the expiration of the period prescribed for the determination of tax due, a taxpayer has consented in writing that such period be extended, the amount of any tax due may be determined at any time within such extended period. The period so extended may be further extended by subsequent consents in writing made before the expiration of the extended period.

(d) The notice of determination finally and irrevocably fixes the tax unless:

(1) The person assessed petitions the Division of Tax Appeals for a hearing within 90 days from the date of the notice; or

(2) The department redetermines the amount of tax due. In any case before the Division of Tax Appeals, the burden of proof is on the petitioner. After a hearing has been held, the Division of Tax Appeals shall provide copies of the determination of the administrative law judge to the petitioner and to the department. The determination of the administrative law judge may be reviewed by the Tax Appeals Tribunal as provided by section 2006.7 of the Tax Law. Furthermore, the petitioner can petition for a judicial review of the decision of the Tax Appeals Tribunal as provided by section 2016 of the Tax Law. (See Part 3000 of this Title.)

(e) Before the petitioner can initiate a proceeding for judicial review, the petitioner must first deposit the tax, penalties and interest due with the department and also file with the department an undertaking in such amount and with such sureties as a justice of the Supreme Court shall approve, to the effect that if such proceeding is dismissed or the tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of the proceeding. At the option of the petitioner, such undertaking filed with the department may be in a sum sufficient to cover the taxes, penalties and interest thereon stated in such determination plus the costs and charges which may accrue in the prosecution of the proceeding, in which event the petitioner shall not be required to deposit such taxes, penalties and interest as a condition precedent to the application.

(f) A person liable for the tax may consent to have the tax due finally and irrevocably fixed, prior to the ninety-day period referred to in subdivision (d) of this section, by filing with the department a signed consent statement on such form as the department prescribes. The signed consent statement may be filed whether or not a determination of tax pursuant to subdivision (a) of this section has been issued by the department.