New York Codes, Rules and Regulations
Title 15 - Department of Motor Vehicles
1. Determination of tax. If the tax or any part thereof due, under the local law, be not paid when required, the amount of tax due shall be determined by the commissioner of finance of the city of New York, from such information as may be obtainable, including motor vehicle registration with the Department of Motor Vehicles of the State of New York and/or other factors. Notice of such determination shall be given to the person liable for the tax. Such determination shall finally and irrevocably fix the tax unless the person against whom it is assessed, within 30 days after the giving of such notice of determination, shall apply for a hearing or unless, of his own motion, the commissioner of finance shall redetermine the same. After such hearing, the commissioner of finance shall give notice of the determination of such application to the person against whom the tax is assessed. Such determination shall be reviewable for error, illegality or unconstitutionality or any other reason whatsoever by a proceeding under article 78 of the Civil Practice Law and Rules if application therefor is made to the Supreme Court within four months after the giving of the notice of such determination. A proceeding under article 78 of the Civil Practice Law and Rules shall not be instituted unless:
(a) the amount of any tax sought to be reviewed, with penalties and interest thereon, if any, shall be first deposited with the commissioner of finance, and there shall be filed with the commissioner of finance an undertaking issued by a surety company authorized to transact business in this State and approved by the Superintendent of Insurance of this State as to solvency and responsibility, in such amount as a justice of the Supreme Court shall approve, to the effect that if such proceeding be dismissed or the tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of the proceeding; or
(b) at the option of the applicant such undertaking filed with the commissioner of finance 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 against it in the prosecution of the proceeding, in which event the applicant shall not be required to deposit such taxes, penalties and interest as a condition precedent to the application.
a. In the manner provided in this paragraph, the commissioner of finance shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if application or such refund shall be made, within one year from the payment thereof, to the commissioner of finance. Whenever a refund is made, the reasons therefor shall be stated in writing by the commissioner of finance, who, in lieu of any refund, may allow credit therefor on payments due from the applicant.
b. An application for a refund or credit made as herein provided shall be deemed an application for a revision of any tax, penalty or interest complained of and the commissioner of finance shall hold a hearing and receive evidence with respect thereto. After such hearing, the commissioner of finance shall give notice of the determination of such application to the applicant, who shall be entitled to review such determination by a proceeding pursuant to article 78 of the Civil Practice Law and Rules, provided such proceeding is instituted within four months after the giving of notice of such determination, and provided that a final determination of tax due was not previously made. Such a proceeding shall not be instituted unless an undertaking is filed with the commissioner of finance, 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 tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit under this paragraph of a tax, interest or penalty which has been determined to be due pursuant to the provisions of paragraph 1, where he has had a hearing or an opportunity for a hearing, as provided in said paragraph, or has failed to avail himself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination made pursuant to paragraph 1, unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper after a hearing, or on his own motion, by the commissioner of finance, as the case may be, or in a proceeding under article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said section, in which event, refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.
3. Reserves. In cases where a taxpayer has applied for a refund and has instituted a proceeding under article 78 of the Civil Practice Law and Rules to review a determination adverse to him on his application for refund, the commissioner of finance shall set up appropriate reserves to meet any decision adverse to the city.
4. Remedies exclusive. The remedies provided by paragraphs 1 and 2 shall be exclusive remedies available to any person for the review of tax liability imposed by the local law; and no determination or proposed determination of tax or determination on any application for refund shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received, or by any action or proceeding other than a proceeding in the nature of a certiorari proceeding under article 78 of the Civil Practice Law and Rules; provided, however, that a taxpayer may proceed by declaratory judgment if he institutes suit within 30 days after a deficiency assessment is made and pays the amount of the deficiency assessment to the commissioner of finance prior to the institution of such suit and posts a bond for costs as provided in paragraph 1.
5. Proceedings to recover tax.
a. Whenever any person shall fail to pay any tax, penalty or interest imposed by the local law, the corporation counsel, upon the request of the commissioner of finance, shall bring or cause to be brought an action to enforce the payment of the same on behalf of the city of New York in any court of the State of New York or of any other state of the United States. However, if, in his discretion, the commissioner of finance believes that any such person subject to the provisions of the local law is about to cease business, leave the State or remove or dissipate the assets out of which the tax or penalty might be satisfied, and that any such tax or penalty will not be paid when due, he may declare such tax or penalty to be immediately due and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commissioner of finance may issue a warrant, directed to the city sheriff commanding him to levy upon and sell the real and personal property of the person liable for the tax which may be found within the city, for the payment of the amount thereof, with any penalty and interest, and the cost of executing the warrant, and to return such warrant to the person who issued it and to pay to him the money collected by virtue thereof within 60 days after the receipt of such warrant. The city sheriff shall, within five days after the receipt of the warrant, file with the county clerk a copy thereof, and thereupon such clerk shall enter in judgment docket the name of the person mentioned in the warrant and the amount of the tax, penalty and interest for which the warrant is issued and the date when such copy is filed. Thereupon the amount of such warrant so docketed shall become a lien upon the title to and the interest in real and personal property of the person against whom the warrant is issued. The city sheriff shall then proceed upon the warrant in the same manner, and with like effect, as that provided by law in respect to execution issued against property upon judgments of a court of record, and for services in executing he shall be entitled to the same fees, which he may collect in the same manner. In the discretion of the commissioner of finance a warrant of like terms, force and effect may be issued and directed to an officer or employee of the department of finance of the city, and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs, but shall be entitled to no fee or compensation in excess of the actual expenses paid in the performance of such duty. If a warrant is returned not satisfied in full, the commissioner of finance may, from time to time, issue new warrants and shall also have the same remedies to enforce the amount due thereunder as if he had recovered judgment therefor and execution thereon had been returned unsatisfied.
6. Administration of oaths and compelling testimony.
a. The commissioner of finance or his employees or agents duly designated and authorized by him shall have power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of the powers and duties hereunder. The commissioner of finance shall have power to subpoena and require the attendance of witnesses and the production of books, papers and documents to secure information pertinent to the performance of his duties hereunder and of the enforcement of the local laws and to examine them in relation thereto, and to issue commissions for the examination of witnesses who are out of the State or unable to attend before him or excused from attendance.
b. A justice of the Supreme Court either in court or at chambers shall have power summarily to enforce by proper proceedings the attendance and testimony of witnesses and production and examination of books, papers and documents called for by the subpoena of the commissioner of finance.
c. Any person who shall refuse to testify or to produce books or records or who shall testify falsely in any material matter pending before the commissioner of finance shall be guilty of a misdemeanor, punishment for which shall be a fine of not more than $1,000 or imprisonment for not more than six months, or both such fine and imprisonment.
d. The officers who serve the summons or subpoena of the commissioner of finance, and witnesses attending in response thereto, shall be entitled to the same fees as are allowed to officers and witnesses in civil cases in courts of record, except as herein otherwise provided. Such officers shall be the city sheriff and his duly appointed deputies or any officers or employees of the department of finance of the city designated by the commissioner of finance to serve such process.
7. Penalties and interest.
a. Any person failing to file a return or to pay any tax or any portion thereof within the time required by the local law shall be subject to a penalty of five times the amount of the tax due, plus interest of five percent of such tax for each month of delay or fraction thereof, but the commissioner of finance, if satisfied that the delay was excusable, may remit all or any part of such penalty, but not interest at the rate of six percent per year. Penalties and interest shall be paid and disposed of in the same manner as other revenues under the local law. Unpaid penalties and interest may be enforced in the same manner as the tax imposed by the local law.
b. The certificate of the commissioner of finance to the effect that a tax has not been paid, or that a return required by the local law has not been filed, or that information has not been supplied pursuant to the provisions of the local law shall be presumptive evidence thereof.
8. Notices and limitations of time.
a. Any notice authorized or required under the provisions of the local law may be given by mailing the same to the person for whom it is intended in a postpaid envelope addressed to such person at the address given in the last registration filed by him pursuant to the provisions of the local law, in any application for registration made by him pursuant to section 401 of the Vehicle and Traffic Law or, if no registration has been filed or application made, then to such address as may be obtainable. The mailing of such notice shall be presumptive evidence of the receipt of the same by the person to whom addressed. Any period of time which is determined according to the provisions of the local law by the giving of notice shall commence to run from the date of mailing of such notice.
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 shall not apply to any proceeding or action taken by the commissioner of finance to levy, appraise, assess, determine or enforce the collection of any tax or penalty provided by this Title. However, except in the case of a willfully false or fraudulent return with intent to evade the tax, no assessment of additional tax shall be made after the expiration of more than three years from the date of the filing of an application for registration; provided, however, that where no application has been filed as provided by law, the tax may be assessed at any time.
c. Where, before the expiration of the period prescribed herein for the assessment of an additional tax, a taxpayer has consented in writing that such period be extended, the amount of such additional tax 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.
9. Commissioner of finance. The commissioner of finance, in addition to the powers elsewhere granted to him in the local law, is hereby authorized and empowered:
a. to delegate such functions and powers to a deputy commissioner or assistant commissioner in the department of finance, or to any employee or employees of the department of finance;
b. for cause shown, to remit penalties and to compromise disputed claims, in connection with the taxes hereby imposed;
c. to request information concerning motor vehicles and persons subject to the provisions of this Title from the department of motor vehicles of any other state or the Treasury Department of the United States, or any city or county of the State of New York; and to afford such information to such other state, Treasury Department, city or county, any provision of this Title to the contrary notwithstanding; and
d. to request the police department of the city to assist in the enforcement of the provisions of this Title.