New York Codes, Rules and Regulations
Title 20 - DEPARTMENT OF TAXATION AND FINANCE
Chapter IV - Sales And Use And Other Miscellaneous Taxes
Subchapter A - Sales And Use Taxes
Part 535 - Assessment And Review
Section 535.5 - Review of assessment issued by the Division of Taxation
Universal Citation: 20 NY Comp Codes Rules and Regs ยง 535.5
Current through Register Vol. 46, No. 12, March 20, 2024
Tax Law, §§ 1138(a)(4), 1140
(a) General.
(1) Any tax assessed under a notice of
determination described in section
535.2 or
535.4 of
this Part may be protested by filing a petition for a hearing with the Division
of Tax Appeals within 90 days of the date of the mailing of the assessment by
the Division of Taxation. These tax assessments may also be protested by filing
a request for a conciliation conference with the Bureau of Conciliation and
Mediation Services of the Division of Taxation within 90 days of the date of
the mailing of the assessment by the Division of Taxation. Timely filing of the
request for a conciliation conference suspends the running of the 90-day time
limitation for filing a petition for a hearing in the Division of Tax
Appeals.
(2) Following is a brief
description of the avenues available for the review of tax assessments issued
by the Division of Taxation. For a detailed discussion of the tax assessment
review process in the Division of Tax Appeals and the Bureau of Conciliation
and Mediation Services see Parts 3000 and 4000 respectively of this Title.
(i) Bureau of Conciliation and Mediation
Services.
(a) A conciliation conference is
intended to provide taxpayers with a rapid, inexpensive and informal means for
resolving the disputed tax assessment.
(b) A conciliation order issued by a
conciliation conferee is generally binding on the Division of Taxation and the
requester. However, a conciliation order will not be binding on the requester
if such person files a petition for a hearing with the Division of Tax Appeals
within 90 days after the conciliation order is issued.
(ii) Division of Tax Appeals. A hearing in
the Division of Tax Appeals is held before an administrative law judge or,
under certain circumstances, before a presiding officer in the Small Claims
Unit.
(a) Small claims matter.
(1) If the petitioner so elects, and the
amount in controversy meets the criteria set forth in section
3000.9(b)
of this Title, the hearing may be held in the Small Claims Unit.
(2) Following a hearing in the Small Claims
Unit the presiding officer will issue a determination. A final determination
issued by the presiding officer is conclusive on all parties to the controversy
and is not subject to review by any other unit of the Division of Tax Appeals
or the Tax Appeals Tribunal.
(b) Administrative law judge determinations
and review by the Tax Appeals Tribunal.
(1) A
determination issued by an administrative law judge finally decides the matter
in dispute unless the taxpayer or the Division of Taxation files an exception
to this determination with the Tax Appeals Tribunal within 30 days after the
giving of notice of such determination. If such an exception is filed, the
Tribunal will issue a decision affirming, reversing or modifying the
administrative law judge's determination or refer the matter back to the
administrative law judge for further hearing.
(2) A decision of the Tax Appeals Tribunal
that is not subject to any further review finally decides the matter in dispute
unless the taxpayer initiates a proceeding under article 78 of the Civil
Practice Law and Rules within four months after issuance of the Tribunal's
decision and giving of notice to the parties.
(b) Exclusiveness of remedy.
An assessment may be challenged only by applying to the Division of Tax Appeals for a hearing or to the Bureau of Conciliation and Mediation Services for a conciliation conference as provided in subdivision (c) of sections 535.2 and 535.4 of this Part. The review of a decision of the Tax Appeals Tribunal referred to in subdivision (a) of this section is the exclusive remedy available for the judicial determination of a tax liability under article 28 of the Tax Law and local laws administered by the Department of Taxation and Finance pursuant to article 29 of the Tax Law.
(c) Deposit of amount due and filing of undertaking.
(1) A proceeding under
article 78 of the Civil Practice Law and Rules may not be instituted unless:
(i) the amount of any tax sought to be
reviewed, together with penalties and interest thereon, if any, is first
deposited with the department;
(ii)
an undertaking, issued by a surety company authorized to transact business in
this State and approved by the Superintendent of Insurance of New York as to
solvency and responsibility, is first filed with the department in such amount
as a justice of the Supreme Court approves to the effect that if the 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 in lieu of
subparagraphs (i) and (ii) of this paragraph; and
(iii) at the option of the applicant for an
article 78 proceeding, the undertaking filed with the department may be in a
sum sufficient to cover the taxes and penalties and interest thereon stated in
the notice of determination issued by the Division of Taxation plus the costs
and charges which may accrue in the prosecution of the proceeding; in which
event the applicant is not required to deposit such taxes, penalties and
interest as a condition precedent to the application.
(2) If an applicant for an article 78
proceeding has previously filed a bond pursuant to subdivision (e) of section
535.3 of
this Part to stay collection proceedings under a jeopardy assessment, or has
previously paid to the Department of Taxation and Finance the taxes, penalties
and interest assessed, such applicant need not deposit the taxes, penalties and
interest assessed in order to commence an article 78 proceeding. Such an
applicant must, however, file an undertaking to cover all costs and charges as
described in subparagraph (ii) of paragraph (1) of this subdivision.
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