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New York Tax Section 171 - Powers And Duties Of Commissioner Of Taxation And Finance.

171. Powers and duties of commissioner of taxation and finance. The commissioner of taxation and finance shall:

First. Make such reasonable rules and regulations, not inconsistent with law, as may be necessary for the exercise of its powers and the performance of its duties under this chapter, including regulations which shall advise the public of (i) the various methods by which the department communicates tax policy and interpretations to taxpayers, tax practitioners, personnel of the department and the general public and (ii) the legal force and effect, precedential value and binding nature of each such method of communication.

Second. Assess, determine, revise, readjust and impose the corporation taxes under articles nine and nine-A of this chapter, and on and after July first, nineteen hundred twenty-one, have the power and perform the duties of the state comptroller in the collection of such taxes and the crediting of such taxes erroneously paid, as jurisdiction thereof is vested in such commissioner by section one hundred seventy-six of this chapter.

Third. On and after July first, nineteen hundred twenty-one, have the powers and perform the duties of the state comptroller in relation to the assessment, determination and collection of the tax on transfers of property, as jurisdiction thereof is vested in such commissioner by section one hundred seventy-six of this chapter.

Fourth. On and after July first, nineteen hundred twenty-one, have the powers and perform the duties of the state comptroller in the collection of the tax on transfers of stock under article twelve of this chapter, as jurisdiction thereof is vested in such commissioner by section one hundred seventy-six of this chapter.

Fifth. On and after July first, nineteen hundred twenty-one, have the power and perform the duties of the state comptroller in the assessment, determination, review, readjustment and collection of taxes upon and with respect to personal income, as jurisdiction thereof is vested in such commissioner by section one hundred seventy-six of this chapter.

Sixth. Administer, supervise and enforce the tax on mortgages as provided in article eleven of this chapter.

Eighth. Take testimony and proofs, under oath, with reference to any matter within the line of his official duty. A deputy tax commissioner and such other officials and employees of the department of taxation and finance as may be nominated by such commissioner by resolution recorded in the minutes may be designated for the purpose of taking such testimony and proofs.

Ninth. Require from all state and local officers such information as may be necessary for the proper discharge of its duties.

Tenth. Hold meetings at an office to be assigned in one of the state buildings at Albany, at such times as may be fixed by such commissioner or by adjournment thereof, or at such other places as he may designate.

Eleventh. Compile and publish statistics relating to state and local taxation.

Twelfth. Make investigations of the general system of state taxation from time to time.

Thirteenth. Inquire into the provisions of the laws of other states and jurisdictions; to confer with tax commissioners of other states regarding the most effectual and equitable methods of taxation, and particularly regarding the best methods of avoiding conflicts and duplication of taxation, and to recommend to the legislature such measures as will bring about uniformity of methods, harmony and co-operation between the different states and jurisdictions in matters of taxation.

Fourteenth. Perform the other powers and duties conferred upon it by law.

Fifteenth. Have authority to compromise any taxes or other impositions or any warrant or judgment for taxes or other impositions administered by the commissioner, and the penalties and interest in connection therewith, if the tax debtor has been discharged in bankruptcy, is shown by proofs submitted to be insolvent, or shows by proofs that collection in full would cause the tax debtor undue economic hardship, provided that the amount payable in compromise reasonably reflects collection potential or is otherwise justified by the proofs offered by the tax debtor. Provided, further, the commissioner shall not accept any amount payable in compromise that would undermine compliance with the taxes or other impositions administered by the commissioner, nor shall the commissioner enter into any offer of compromise that would be adverse to the best interests of the state. Where the amount owing for taxes or other impositions or the warrant or judgment, exclusive of any penalties and interest, is more than one hundred thousand dollars, such compromise shall be effective only when approved by a justice of the supreme court. The commissioner shall promulgate regulations defining what constitutes undue economic hardship. The inability to maintain an affluent or luxurious lifestyle shall not constitute undue economic hardship.

Sixteenth. Have authority to compromise any taxes or any warrant or judgment for taxes imposed by this chapter and the penalties and interest in connection therewith of a tax debtor which is a domestic railroad corporation, or its trustee or trustees in bankruptcy, (1) in connection with its qualification as a railroad redevelopment corporation or the acquisition of its facilities by a railroad redevelopment corporation or (2) if said domestic railroad corporation is principally engaged in the transportation of passengers and at the time of said compromise it is the debtor in a reorganization proceeding pursuant to the United States bankruptcy act and said compromise is approved by the bankruptcy court.

Seventeenth. Have authority to release any real and personal property from the lien of any warrant for unpaid taxes, additions to tax, penalties and interest, or vacate such warrant, upon such conditions as he or she may require, if he or she finds that the interests of the state will not thereby be jeopardized. Such release or vacating of the warrant may be recorded in the office of any recording officer (including the department of state) in which such warrant has been filed. When the warrant is vacated, the recording officer (including the department of state) shall thereupon cancel and discharge as of the original date of docketing the vacated warrant.

Eighteenth. Have authority to enter into a written agreement with any person, relating to the liability of such person (or of the person for whom he acts) in respect of any tax or fee imposed by the tax law or by a law enacted pursuant to the authority of the tax law or article two-E of the general city law, which agreement shall be final and conclusive, and except upon a showing of fraud, malfeasance, or misrepresentation of a material fact: (a) the case shall not be reopened as to the matters agreed upon or the agreement modified, by any officer, employee, or agent of this state, and (b) in any suit, action, or proceeding, such agreement, or any determination, assessment, collection, payment, cancellation, abatement, refund or credit made in accordance therewith, shall not be annulled, modified, set aside or disregarded. As used in this paragraph the term "person" includes an individual, trust, estate, partnership and corporation.

Eighteenth-a. Have authority to compromise civil liability, with such qualifications and limitations as may be established pursuant to such rules and regulations as the commissioner may prescribe, where such liability arises under a tax or other imposition which is administered by the commissioner, at any time prior to the time the tax, other imposition or administrative action becomes finally and irrevocably fixed and no longer subject to administrative review. Upon acceptance of an offer in compromise by the commissioner, the matter may not be reopened except upon a showing of fraud, malfeasance or misrepresentation of a material fact. The attorney general may compromise any such liability after reference to the department of law for prosecution or defense at any time prior to the time the tax, other imposition or administrative action taken by the commissioner is no longer subject to judicial review. Whenever a compromise is made by the commissioner of any such liability, there shall be placed on file in the office of the commissioner the opinion of the counsel for such department, with his or her reasons therefor, with a statement of: (a) the amount of tax or other imposition and any other issues which may be the subject of such compromise, (b) the amount of interest, additions to the tax, or penalty imposed by law on the taxpayer or other persons against whom the administrative action was taken by the department, and (c) the amount actually paid in accordance with the terms of the compromise. Notwithstanding the preceding sentence, no such opinion shall be required with respect to the compromise of any civil liability in which the unpaid amount of tax or other imposition which was the subject of the administrative action (including any interest, additions to tax, or penalty) is less than fifty thousand dollars.

Eighteenth-b. Where the filing requirement arises under article twenty-two of this chapter or under a law enacted pursuant to the authority of article thirty or thirty-A of this chapter, have authority to require a husband and wife whose federal income tax liabilities are determined on a joint federal return and who have not filed a joint New York income tax return to file separate income tax returns, in which case their income tax liabilities shall be separate. Such authority shall be exercised only where one of such persons demonstrates, to the satisfaction of the commissioner, that (a) the address or whereabouts of his or her spouse is unknown to him or her, (b) reasonable efforts have been made by him or her to locate such spouse, and (c) good cause existed for the failure to file a joint New York income tax return.

Eighteenth-c. Where the filing requirement arises under article twenty-two of this chapter or under a law enacted pursuant to the authority of article thirty or thirty-A of this chapter, have authority to require a husband and wife whose federal income tax liabilities are determined on a joint federal return and who have not filed a joint New York income tax return to file separate income tax returns, in which case their income tax liabilities shall be separate. Such authority shall be exercised only where one of such persons demonstrates, to the satisfaction of the commissioner, that (a) his or her spouse has refused to sign a joint New York income tax return, (b) reasonable efforts have been made by him or her to have such spouse sign a joint New York income tax return, (c) there exists objective evidence of alienation of such person from his or her spouse such as a judicial order of protection, legal separation under a decree of divorce or separate maintenance, separation under a written separation agreement or judicial decree of separation, living apart at all times during the twelve months immediately preceding the application for exercise of authority under this provision, the commencement of an action for divorce, or the commencement of proceedings in family court which evidence such alienation, and (d) good cause existed for the failure to file a joint New York income tax return.

Eighteenth-d. (a) Have authority to compromise civil liability, with such qualifications and limitations as may be established pursuant to such rules and regulations as the commissioner may prescribe, for a taxpayer's spousal share of liability arising from a joint income tax return, filed under article twenty-two of this chapter or under a law enacted pursuant to the authority of article thirty or thirty-A of this chapter, where the following conditions are met:

(1) the taxpayer and spouse filing the joint return are, at the time of the offer in compromise, separated under a decree of divorce or separate maintenance, or a written separation agreement, or a judicial decree of separation, or the taxpayer at the time of the offer in compromise is not considered as married within the meaning of section 7703(b) of the internal revenue code (relating to certain married individuals living apart), and

(2) it is demonstrated to the satisfaction of the commissioner that the collection of the spousal share of liability from the taxpayer cannot be accomplished within a reasonable period of time without imposing substantial economic hardship on the taxpayer.

(b) Upon acceptance of an offer in compromise under this subdivision by the commissioner, the matter may not be reopened except upon a showing of fraud, malfeasance or misrepresentation of a material fact.

(c) Whenever a compromise is made by the department of any such liability, there shall be placed on file in the office of the commissioner the opinion of the counsel for the department, with his reasons therefor with a statement of:

(1) the amount of tax assessed,

(2) the amount of interest, additions to the tax, or penalty imposed by law on the taxpayer and spouse against whom the tax is assessed, and

(3) the amount actually paid in accordance with the terms of the compromise. Notwithstanding the preceding sentence, no such opinion shall be required with respect to the compromise of any civil liability in which the unpaid amount of tax assessed (including any interest, additions to tax, or penalty) is less than twenty-five thousand dollars.

(d) Spousal share of liability. For purposes of this subdivision, the spousal share of liability shall be determined by multiplying the joint and several liability arising from the joint return by a fraction, the numerator of which is the tax for the taxable year at issue determined separately for the spouse, and the denominator of which is the sum of the taxes for such taxable year determined separately for the spouse and for the taxpayer.

(e) A compromise under this subdivision as to a taxpayer's spousal share of liability arising from a joint income tax return shall not compromise the joint and several liability of the spouse with respect to that return.

Nineteenth. Have authority to provide by regulation (1) that in any determination, assessment, collection, refund or credit under this chapter, a fractional part of a dollar may be disregarded unless it amounts to fifty cents or more, in which case it shall be increased to one dollar, and (2) that any person making a return, report or other statement required to be filed with it under this chapter, may elect with respect to any amount required to be shown thereon, if such amount is other than a whole dollar amount, either to disregard the fractional part of a dollar or to disregard the fractional part of a dollar unless it amounts to fifty cents or more, in which case the amount (determined without regard to the fractional part of a dollar) shall be increased by one dollar; provided, however, that such election shall not be applicable to items which must be taken into account in making the computations necessary to determine the amount required to be shown on any such return, report or other statement but shall be applicable only to the final amount required to be shown thereon.

Twentieth. Have authority, of his own motion, to abate any small unpaid balance of an assessment of tax, or any liability in respect thereof, under articles twelve-A, eighteen, twenty or twenty-one of this chapter, if such commissioner determines under uniform rules prescribed by him that the administration and collection costs involved would not warrant collection of the amount due. He may also abate, of his own motion, the unpaid portion of the assessment of any of such taxes, or any liability in respect thereof, which is excessive in amount, or is assessed after the expiration of the period of limitation properly applicable thereto, or is erroneously or illegally assessed. No claim for abatement under this subdivision shall be filed for any of such taxes.

Twenty-third. Technical memoranda issued by the department shall advise and inform taxpayers and others of existing interpretations of laws and regulations by the department or changes to the statutory or case law of interest to the public. In no event shall technical memoranda be issued by the department in violation of the provisions of the state administrative procedure act where and to the extent that a duly promulgated rule or regulation would be required. Where and to the extent that an opinion of the counsel of the department is deemed to be of sufficient significance and general applicability to a group or group of taxpayers, such opinion shall be disseminated via a technical memorandum.

Twenty-fourth. Be required to render advisory opinions with respect to taxes administered by such commissioner within ninety days of the receipt of a petition for such an opinion. Such ninety day period may be extended by such commissioner, for good cause shown, to no more than thirty additional days. Such advisory opinion shall be rendered to any person subject to a tax or liability under this chapter or claiming exemption from such tax or liability and may, in the discretion of the commissioner, be rendered to any non-taxpayer, including but not limited to a local official, petitioning on behalf of a local jurisdiction, or the head of a state agency, petitioning on behalf of the agency. Such advisory opinions, which shall be published and made available to the public, shall not be binding upon such commissioner except with respect to the person to whom such opinion is rendered provided, however, that a subsequent modification by such commissioner of such an advisory opinion shall operate prospectively only. A petition for an advisory opinion shall contain a specific set of facts and be submitted in such form as may be prescribed by such commissioner and subject to such rules and regulations as such commissioner may promulgate with respect to the procedures for submission of such a petition. Nothing herein shall be construed to limit or otherwise alter the rights of any applicant for a declaratory ruling pursuant to section two hundred four of the state administrative procedure act.

Twenty-fifth. a. With respect to the income to be used in the computation of school aid payable in the school year nineteen hundred ninety-four--ninety-five and thereafter, be required to design, develop and implement a permanent computerized statewide school district address match and income verification system in regard to each school district's valuation of total New York adjusted gross income as determined by the department, for use in determining state aid to education. The department shall promulgate rules and regulations to effect the provisions of this paragraph within ninety days of the enactment of the chapter of the laws of nineteen hundred ninety-four amending this paragraph. Commencing September first, nineteen hundred ninety-seven, the commissioner and the commissioner of education, subject to the approval of the director of the budget shall be required to enter into a cooperative agreement by September first of each year, which will govern the validation and correction and completion of the total New York adjusted gross income of school districts until September first of the following year. Such agreement shall include, but not be limited to: (i) procedures to improve the accuracy of school district income data, in a manner which gives appropriate recognition to computerized processing capabilities, administrative feasibility of manual processes and confidentiality implications; (ii) procedures to verify the school district codes reported by taxpayers; (iii) procedures to correct identified inaccuracies; (iv) procedures to assign school district codes based on the permanent residence addresses of taxpayers who failed to complete the school district code; (v) the schedule for the transmittal of electronic data between the agencies, as necessary, to implement such system; and (vi) beginning in the nineteen hundred ninety-six state fiscal year, procedures for the review process provided for in paragraph c of this subdivision. All state departments and agencies, and school districts and other local governments and agencies, shall cooperate with the parties to such agreement in its implementation.

b. 1. Any correction, pursuant to this paragraph, of verified inaccuracies of income data shall only result in the removal of such returns from the identified school district.

2. All state departments and agencies, and school districts and other local governments and agencies, shall cooperate with the parties to such agreement in the implementation of the review process provided pursuant to this paragraph.

c. 1. With respect to income used in the computation of school aid payable in the school years nineteen hundred ninety-eight--ninety-nine and thereafter, be required to design, develop and implement a process whereby school districts may request a review of the assignment of taxpayer addresses to their school district. Procedures for such a review process shall be included in the cooperative agreement entered into pursuant to paragraph a of this subdivision.

2. School districts requesting a review in accordance with the provisions of this paragraph shall be required, in consultation with the district superintendent of schools for the supervisory district in which the school district is located, appointed pursuant to section nineteen hundred fifty of the education law, to submit to the commissioner of education evidence in support of a contention that the assignment of tax returns to their district is inaccurate. Identified school districts may be required to review ordered listings, prepared by the department or an authorized vendor contracted by the department, of the permanent resident address of selected taxpayers who filed personal income tax returns with the department reporting a school district code or address which indicates that the taxpayer was a resident of such identified school district at the close of the taxable year for which the return was filed. In no case shall ordered address listings for school district review include those addresses which the school district had the opportunity to review pursuant to paragraph a of this subdivision. District superintendents of schools appointed pursuant to section nineteen hundred fifty of the education law, having an identified school district within their supervisory district, shall be required to verify any suspected inaccuracies indicated by an identified district as a result of the district's review of ordered address listings pursuant to this paragraph.

3. Any correction, pursuant to this paragraph, of verified inaccuracies of income data shall only result in the removal of such returns from the identified school district.

4. All state departments and agencies, and school districts and other local governments and agencies, shall cooperate with the parties to such agreement in the implementation of the review process provided pursuant to this paragraph.

Twenty-sixth. a. Set the overpayment and underpayment rates of interest for purposes of articles twelve-A, eighteen, twenty and twenty-one of this chapter. Such rates shall be the overpayment and underpayment rates of interest set pursuant to subsection (e) of section one thousand ninety-six of this chapter, but the underpayment rate shall not be less than seven and one-half percent per annum. Any such rates set by such commissioner shall apply to taxes, or any portion thereof, which remain or become due or overpaid (other than overpayments under such article twenty and not including reimbursements, if any, under any of such articles) on or after the date on which such rates become effective and shall apply only with respect to interest computed or computable for periods or portions of periods occurring in the period during which such rates are in effect. In computing the amount of any interest required to be paid under such articles by such commissioner or by the taxpayer, or any other amount determined by reference to such amount of interest, such interest and such amount shall be compounded daily.

b. Cross-reference. For provisions relating to the power of the commissioner of taxation and finance to abate small amounts of interest, see subdivision twentieth of this section.

Twenty-seventh. Have authority, upon agreement with the state comptroller, to act as an agent for the state comptroller for the purposes of crediting the payment of state money to any claimant against the amount of a past-due legally enforceable debt, as defined in section one hundred seventy-one-f of this article, owed by such claimant to a state agency, as defined in section one hundred seventy-one-f of this article. All the provisions of section one hundred seventy-one-f of this article shall be applicable to the crediting of the payments of state money made in accordance with the authority granted in this subdivision, with such modifications as may be necessary to adapt such language to such crediting and shall apply with the same force and effect as if those provisions had been set forth in full in this section and had expressly referred to such crediting, except to the extent any provision thereof is either inconsistent or is not relevant to such crediting. This section shall not be deemed to abrogate or limit in any way the powers and authority of the state comptroller to set off debts owed the state against payments from the state under the constitution of the state or any other law.

Twenty-eighth. a. In the case of a taxpayer who is determined for federal tax purposes under the provisions of section seven thousand five hundred eight-A of the internal revenue code to be affected by a presidentially declared disaster, or who is determined under regulations promulgated by the commissioner to be affected by a presidentially declared disaster or by a disaster emergency declared by the governor, have authority to provide that a period of up to ninety days may be disregarded in determining under the tax law, or under a law enacted pursuant to the authority of the tax law or article 2-E of the general city law where administered by the commissioner, in respect of any tax liability (including any interest, penalty, additional amount, or addition to the tax) of such taxpayer:

1. Whether any of the acts described in paragraph one of subsection (a) of section six hundred ninety-six of the tax law in relation to the personal income tax (or any comparable acts with respect to taxes under this chapter other than the personal income tax) were performed within the time prescribed therefor, and

2. The amount of any credit or refund.

b. Special rule for overpayments. 1. Paragraph a of this subdivision shall not apply for purposes of determining the amount of interest on any overpayment of tax.

2. If a taxpayer is entitled to the benefits of paragraph a of this subdivision with respect to any return, amended return, or claim for credit or refund, and such return, amended return or claim is timely filed (determined after the application of this subdivision), paragraph three of subsection (a) and subsection (c) of section six hundred eighty-eight and paragraph three of subsection (a) and subsection (c) of section one thousand eighty-eight of this chapter shall not apply.

c. Presidentially declared disaster. For purposes of this subdivision, the term "presidentially declared disaster" means any disaster which, with respect to an area, resulted in a subsequent determination by the president of the United States that such area warrants assistance by the federal government under the disaster relief and emergency assistance act.


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Last modified: September 11, 2016