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New York Tax Section 171-c - Certain Overpayments Credited Against Past-due Support.

171-c. Certain overpayments credited against past-due support. (1) The commissioner, on behalf of the department, shall enter into a written agreement with the commissioner of the office of temporary and disability assistance, on behalf of the state office of temporary and disability assistance, which shall set forth the procedures for crediting any overpayment by an individual, estate or trust of income tax imposed by article twenty-two of this chapter, city personal income tax on residents imposed pursuant to the authority of article thirty of this chapter, city income tax surcharge on residents imposed pursuant to the authority of article thirty-A of this chapter and city earnings tax on nonresidents imposed pursuant to the authority of article thirty-B of this chapter and the interest on such overpayments against past-due support owed by such individual, estate or trust of which the commissioner has been notified by the commissioner of the office of temporary and disability assistance pursuant to the provisions of such agreement.

(2) Such agreement shall apply to past-due support which is owed to persons or entities entitled to enforce an order of support. For purposes of this section, an "order of support" means any final order, decree or judgment in a matrimonial action or family court proceeding, or any foreign support order, decree or judgment which is registered pursuant to section thirty-seven-a of the domestic relations law, which requires the payment of alimony, maintenance, support or child support. For purposes of this section, "past-due support" means the amount of a delinquency determined from an order of support no longer subject to appellate judicial review.

(3) Such agreement shall include:

(a) the procedure under which the state department of office of temporary and disability assistance shall notify the commissioner of liability for past-due support, such procedure to specify when the commissioner shall be notified and the content of such notification;

(b) the minimum period of delinquency in payment of past-due support and the minimum amount of past-due support with respect to which the commissioner of taxation and finance shall, pursuant to this section, credit an overpayment against past-due support;

(c) the procedure for reimbursement of the commissioner by the state office of temporary and disability assistance for the full cost of carrying out the procedures authorized by this section;

(d) such other matters as the parties to such agreement shall deem necessary to carry out the provisions of this section; and

(e) the procedure for reimbursement of the comptroller by the state office of temporary and disability assistance for any overpayment and interest thereon which has been credited against past due support owed by a taxpayer filing a joint return, but which has been refunded by the comptroller, pursuant to paragraph six of subsection (b) of section six hundred fifty-one of this chapter, to a spouse not liable for the past due support owed by such taxpayer.

(4) (a) With regard to persons owed past-due support who are receiving services pursuant to title six-A of article three of the social services law, no later than thirty days prior to the date a local social services district requests the state office of temporary and disability assistance to notify the commissioner of the liability of an individual, estate or trust for past-due support, such district shall notify such individual, estate or trust in writing that such request may be made and shall also notify him or it that he or it may correct any error in such request and may avoid such notification by the office of temporary and disability assistance to the commissioner by satisfying such liability within thirty days of the date of the written notice from the local social services district to such individual, estate or trust. Such notice shall also set forth the name of an employee of the local social services district, including his address and telephone number, who may be contacted with respect to correction of any error in such request concerning such individual's, estate's or trust's liability for past-due support or with respect to payment of such liability.

(b) With regard to persons owed past-due support who are receiving services pursuant to title six-B of article three of the social services law, no later than thirty days prior to the date the state office of temporary and disability assistance notifies the commissioner of the liability of an individual, estate or trust for past-due support, such office shall notify such individual, estate or trust in writing that such request may be made and shall also notify him or it that he or it may correct any error in such request and may avoid such notification by such office to the commissioner by satisfying such liability and submitting proof thereof satisfactory to the office within thirty days of the date of the written notice from such office to such individual, estate or trust. Such notice shall also set forth the name of an employee of such office, including his or her address and telephone number, who may be contacted with respect to correction of any error in such request concerning such individual's, estate's or trust's liability for past-due support or with respect to payment of such liability.

(5) (i) In calculating the amount of an overpayment and interest thereon which shall be credited against past-due support owed by a taxpayer, the tax commission shall first credit the overpayment and interest thereon against any:

(A) liability of such taxpayer in respect of any tax imposed by this chapter;

(B) liability of such taxpayer for any tax imposed pursuant to the authority of this chapter or any other law if such tax is administered by the tax commission; and

(C) estimated tax for the succeeding taxable year if the taxpayer claims such overpayment or a portion thereof as a credit against estimated tax for such succeeding taxable year pursuant to subsection (e) of section six hundred eighty-six of this chapter or subdivision (e) of section 11-1786 of the administrative code of the city of New York for any tax imposed pursuant to the authority of this chapter or any other law if such tax is administered by the tax commission.

(ii) Only the balance remaining, after such overpayment and the interest thereon has been credited as described in paragraph (i) of this subdivision, shall be certified as an overpayment plus any interest to be credited against past-due support, with the remainder to be refunded to the taxpayer if such remainder is not required to satisfy the amount of a default in repayment of a state university loan or city university loan pursuant to section one hundred seventy-one-e of this article and/or the amount of a past-due legally enforceable debt pursuant to section one hundred seventy-one-f of this article and/or a city of New York tax warrant judgment debt pursuant to section one hundred seventy-one-l of this article and/or the amount of a default in repayment of a guaranteed student loan pursuant to section one hundred seventy-one-d of this article. In cases where the taxpayer owes past-due support to more than one person or entity, and the total amount of past-due support certified to the commissioner by the state office of temporary and disability assistance exceeds the balance remaining, each such person or entity shall receive a pro rata share of the balance remaining, such share to be based on the amount of past-due support owed to such person or entity as certified to the commissioner by such office pursuant to this section. The state office of temporary and disability assistance shall be responsible for determining and distributing each person's or entity's pro rata share of past-due support pursuant to regulations of such office.

(6) The tax commission shall certify to the comptroller the total amount of the overpayment and the interest on such overpayment, the amount of such overpayment and the interest on such amount to be credited against past-due support and the balance of such overpayment and interest to be refunded to the taxpayer.

(7) The commissioner of taxation and finance shall notify the taxpayer making the overpayment, in writing, of the amount of such overpayment and the interest thereon certified to the comptroller as the amount to be credited against past-due support. Such notice shall include notification to any other person who may have filed a joint return with the taxpayer of the steps such other person may take in order to secure his or her proper share of the refund.

(8) (a) For purposes of this section, past-due support owed to persons who are receiving services pursuant to title six-A of article three of the social services law may include:

(i) amounts representing delinquencies which have accrued under a court order of support;

(ii) with respect to any court order of support issued before September first, nineteen hundred eighty-four which provided for periodic payments toward an established arrears amount, the entire amount of such arrears where the respondent is, at any time after September first, nineteen hundred eighty-four, delinquent in making such periodic payments; and

(iii) with respect to any court order of support made on or after September first, nineteen hundred eighty-four which establishes an arrears amount, the entire amount of such arrears, unless such order includes a finding that any anticipated tax refunds have been considered by the court and taken into account in determining the amount of periodic payments to be made toward the arrears amount, or in determining the amount of the current support order, and expressly provides that such arrears are not to be so certified.

(b) For the purpose of the state child support program, any payment made by a respondent which is insufficient to fully satisfy both the current support obligation and a periodic payment toward the balance of any arrears amount established by court order shall be first applied toward the current support obligation or any delinquency thereon and then toward the periodic payment on any arrears amount established by court order unless otherwise required by federal regulation.

(9) From the time the commissioner is notified by the state office of temporary and disability assistance of an individual's, estate's or trust's liability for past-due support under the agreement provided for in this section, the commissioner and the department shall be relieved from all liability to such individual, estate or trust, their assigns, successors, heirs or representatives for the amount of an over payment and interest on such amount certified to the comptroller to be credited against past-due support and such individual, estate or trust shall have no right to commence a court action or proceeding or to any other legal recourse against the commissioner or the department to recover such overpayment or such interest certified to the comptroller to be credited against past-due support. Provided, however, nothing herein shall be construed to prohibit such individual, estate or trust from proceeding against the state office of temporary and disability assistance or the appropriate local social services district to recover that part of such overpayment or interest thereon so certified to the comptroller to be credited against past-due support which is greater than the amount of past-due support owed by such individual, estate or trust on the date of such certification.

(10) The tax commission shall promulgate such rules and regulations as it deems necessary to carry out the provisions of this section.


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Last modified: September 11, 2016