1411. Determination of tax. (a) If a return required by this article is not filed, or if a return when filed is incorrect or insufficient, the amount of tax due shall be determined by the commissioner of taxation and finance from such records or information as may be obtainable, including the assessed valuation of the real property or interest therein and other appropriate factors. Notice of such determination shall be given to the person liable for the payment of the tax. Such determination shall finally and irrevocably fix the tax unless the person against whom it is assessed, within ninety days after the giving of notice of such determination, shall petition the division of tax appeals for a hearing, or unless the commissioner of taxation and finance of the commissioner's own motion shall redetermine the same. In any case before the division of tax appeals under this article, the burden of proof shall be on the petitioner. After such hearing, the division of tax appeals shall give notice of the determination of the administrative law judge to the person against whom the tax is assessed and the commissioner of taxation and finance. Such determination may be reviewed by the tax appeals tribunal as provided in article forty of this chapter. The decision of the tax appeals tribunal may be reviewed as provided in section two thousand sixteen of this chapter. A proceeding for judicial review shall not be instituted unless: (1) the amount of any tax sought to be reviewed, with penalties and interest thereon, if any, shall be first deposited with the commissioner of taxation and finance and there shall be filed with the commissioner of taxation and finance an undertaking, issued by a surety company authorized to transact business in this state and approved by the superintendent of financial services of this state as to solvency and responsibility, 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 the proceeding; or (2) at the option of the petitioner, such undertaking filed with the commissioner of taxation and finance may be in a sum sufficient to cover the taxes, penalties and interest thereon stated in such decision, plus the costs and charges which may accrue against him in the prosecution of the proceeding, in which event the petitioner shall not be required to deposit such taxes, penalties and interest as a condition precedent to the commencement of the proceeding.
(b) A person liable for the tax imposed by this article (whether or not a determination assessing a tax pursuant to subdivision (a) of this section has been issued) shall be entitled to have a tax due finally and irrevocably fixed prior to the ninety-day period referred to in subdivision (a) of this section, by filing with the commissioner of taxation and finance a signed statement in writing in such form as the commissioner of taxation and finance shall prescribe, consenting thereto.
Last modified: February 3, 2019