TAF-10-11-00002-P Bureau of Conciliation and Mediation Services Procedures

3/9/11 N.Y. St. Reg. TAF-10-11-00002-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 10

March 09, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF TAXATION AND FINANCE

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. TAF-10-11-00002-P

Bureau of Conciliation and Mediation Services Procedures

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

This is a consensus rule making to amend Part 4000 of Title 20 NYCRR.

Statutory authority:

Tax Law, sections 170(3-a) and 171, subdivision First

Subject:

Bureau of Conciliation and Mediation Services procedures.

Purpose:

To reflect statutory provisions relating to filing of certain petitions and to make other minor technical amendments.

Text of proposed rule:

Section 1. Subdivision (e) of section 4000.1 is amended to read as follows:

(e) "Request, requester." The term "request" means the [written] application for a conciliation conference. The term "requester" means the person who files a request (see section 4000.3 of this Part).

Section 2. Subdivision (a) of section 4000.3 is amended to read as follows:

(a) "Filing of request." (1) Any person who has received a statutory notice may request a conciliation conference using the form prescribed by the department or by filing a written request[, and one conformed copy,] with the Bureau of Conciliation and Mediation Services, either in person at the offices in Albany or by mail addressed to:

Bureau of Conciliation and Mediation Services Department of Taxation and Finance Building 9 W. A. Harriman Campus Albany, New York 12227

(2) A request for a conciliation conference regarding the denial of an application for a license, permit or registration, or the cancellation, suspension or revocation of a license, permit or registration, shall be addressed to the director of the Bureau of Conciliation and Mediation Services. [The request shall]

(3) Requests should be typewritten, if possible, and should include the information set forth in paragraph (b)(1) of this section. Because the conciliation conference provides an informal and inexpensive way to resolve controversies without the need for a hearing, it is strongly recommended that a request for a conciliation conference be filed prior to the filing of a petition with the Division of Tax Appeals.

(4) In addition to the methods prescribed in paragraph (1) above, a person who has received a statutory notice may request a conciliation conference with the Bureau of Conciliation and Mediation Services in any other manner as prescribed by the department.

Section 3. Paragraph 2 of subdivision (b) of section 4000.3 is REPEALED and paragraph (3) is renumbered paragraph (2).

Section 4. Section 4000.4 is amended to read as follows:

Section 4000.4 Compromise.

If, during a conciliation conference proceeding, a requester wants to compromise his tax liability pursuant to the provisions of Part 5000 of this Title, the requester shall submit his or her offer in compromise to the conciliation conferee. If the offer is based on doubt as to liability, the conciliation conferee shall forward the requester's offer to the counsel for the Department of Taxation and Finance. If the offer is based on doubt as to collectability, the conciliation conferee shall forward the requester's offer to the director of the [Tax Compliance] Collections and Civil Enforcement Division. Thereafter, the provisions of Part 5000 of this Title shall apply to the offer.

Section 5. Paragraph (3) of subdivision (b) of section 4000.5 is amended to read as follows:

(3) Where a requester fails to appear personally or by representative and where an adjournment has not been granted, the conciliation conferee may issue a conciliation order dismissing the request for nonappearance. Upon written application filed within 30 days after the issuance of a conciliation order dismissing the timely request, such order may be vacated and a conciliation conference scheduled where the requester shows a reasonable excuse for the nonappearance. In the alternative, the requester may file a petition with the Division of Tax Appeals (see Part 3000 of this Title) within [90 days after the conciliation order dismissing the timely request is issued] the time limitations prescribed by section 170.3-a(e) of the Tax Law.

Section 6. Paragraph 4 of subdivision (c) of section 4000.5 is amended to read as follows:

(4) In the absence of a showing of fraud, malfeasance or misrepresentation of a material fact, such order will be binding on the Division of Taxation and the requester. However, a conciliation order will not be binding on the requester if such person petitions for a hearing concerning the statutory notice within [90 days after the conciliation order is issued] the time limitations prescribed by section 170.3-a(e) of the Tax Law. The petition must be filed in accordance with section 3000.3 of this Title.

Section 7. Subdivision (b) of section 4000.6 is amended to read as follows:

(b) The receipt of a request for discontinuance shall be acknowledged. The requester will have 90 days from the time the request for discontinuance is filed to petition for a hearing in the Division of Tax Appeals (see Part 3000 of this Title), except that the petition must be filed with the Division of Tax Appeals within 30 days from the time the request for discontinuance is filed if it is related to a written notice as described in section 170.3-a(h) of the Tax Law. The Bureau of Conciliation and Mediation Services will promptly notify the Division of Tax Appeals and any other appropriate divisions or bureaus of the department when a request for discontinuance is filed.

Section 8. Subparagraph (ii) of paragraph (1) of subdivision (a) of section 4000.7 is amended to read as follows:

(ii) In general and except as otherwise provided for in this Chapter or the Tax Law, where any document required to be served or filed within a prescribed period or on or before a prescribed date under the authority of section 170.3-a of article 8 of the Tax Law is, after such period or date, delivered by United States mail to the appropriate address of the Bureau of Conciliation and Mediation Services, the date of the United States postmark as stamped on the envelope or other wrapper in which such document is contained will be deemed to be the date of service or filing. A similar rule applies with respect to certain designated delivery services. See section 2399.2(a)(1) of this Title. Where delivery is made by courier, delivery messenger or similar service that is not a designated delivery service, the date of receipt by the Bureau of Conciliation and Mediation Services will be deemed to be the date of service or filing.

Section 9. Subparagraph (iii) of paragraph (1) of subdivision (a) of section 4000.7 is added to read as follows:

(iii) In addition to the methods prescribed in subparagraph (i) above, requests for a conciliation conference may also be filed with the Bureau of Conciliation and Mediation Services in any other manner as prescribed by the department.

Section 10. Subdivision (d) of section 4000.7 is REPEALED.

Text of proposed rule and any required statements and analyses may be obtained from:

John W. Bartlett, Tax Regulations Specialist 4, Department of Taxation and Finance, Taxpayer Guidance Division, Building 9, W. A. Harriman Campus, Albany, NY 12227, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Consensus Rule Making Determination

The Department of Taxation and Finance has determined that no person is likely to object to the adoption of this rule as written because the amendments conform to statutory provisions, make technical changes, and is not controversial.

This rule amends the Bureau of Conciliation and Mediation Services Regulations as published in Chapter XII of Title 20 NYCRR. Section 2 of Subpart C of Part V-1 of Chapter 57 of the Laws of 2009 amended Tax Law section 170 to amend the time that a petition is required to be filed with the Division of Tax Appeals from 90 days to 30 days for certain types of notices, such as fraud penalty cases and most license refusals or revocations. Subpart A of Part S of Chapter 57 of the Laws of 2010 amended section 170(3-a)(h) of the Tax Law to clarify that protests of denials, revocations, or suspensions of certificates of registration for retail dealers of cigarette or tobacco products under section 480-a of the Tax Law are not covered by these provisions.

The purpose of this proposal is to amend Part 4000 of the regulations to reflect current statutory provisions. The rule will also allow the Department to expand the manner in which one may request a conciliation conference in the future, such as allowing requests in an electronic format. It also references mailing rules relating to designated delivery services and makes other minor technical amendments.

Job Impact Statement

A Job Impact Statement is not being submitted with this rule because it is evident from the subject matter of the rule that it would have no impact on jobs and employment opportunities.

This rule amends the Bureau of Conciliation and Mediation Services Regulations as published in Chapter XII of Title 20 NYCRR. Section 2 of Subpart C of Part V-1 of Chapter 57 of the Laws of 2009 amended Tax Law section 170 to amend the time that a petition is required to be filed with the Division of Tax Appeals from 90 days to 30 days for certain types of notices, such as fraud penalty cases and most license refusals or revocations. Subpart A of Part S of Chapter 57 of the Laws of 2010 amended section 170(3-a)(h) of the Tax Law to clarify that protests of denials, revocations, or suspensions of certificates of registration for retail dealers of cigarettes or tobacco products under section 480-a of the Tax Law are not covered by these provisions.

The purpose of this proposal is to amend Part 4000 of the regulations to reflect current statutory provisions. The rule will also allow the Department to expand the manner in which one may request a conciliation conference in the future, such as allowing requests in an electronic format. It also references mailing rules relating to designated delivery services and makes other minor technical amendments.