1412. Refunds. (a) A grantor or grantee claiming to have erroneously paid the tax imposed by this article or some other person designated by such grantor or grantee may file an application for refund within two years from the date of payment. Such application shall be filed with the commissioner of taxation and finance on a form which he shall prescribe.
(b) The commissioner of taxation and finance may grant or deny such application in whole or in part and shall notify the applicant by mail accordingly. Such determination shall be final and irrevocable unless the applicant shall, within ninety days after the mailing of notice of such determination, petition the division of tax appeals for a hearing. After such hearing, the administrative law judge shall mail notice of its determination to the applicant and to 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 an undertaking is filed with the commissioner of taxation and 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 refund under this section of a tax, interest or penalty which had been determined to be due pursuant to the provisions of section fourteen hundred eleven of this article where he has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail himself of the remedies therein provided. However, a person filing with the commissioner of taxation and finance a signed statement in writing, as provided in subdivision (b) of section fourteen hundred eleven of this article, before a determination assessing tax, pursuant to subdivision (a) of section fourteen hundred eleven, is issued, shall, nevertheless, be entitled to apply for a refund pursuant to subdivisions (a) and (b) of this section, as long as such application is made within the time limitation set forth in such subdivision (a). No refund shall be made of a tax, interest or penalty paid after a determination by the commissioner of taxation and finance made pursuant to section fourteen hundred eleven unless it is found that such determination was erroneous, illegal or unconstitutional or otherwise improper after review by the tax appeals tribunal or of the commissioner of taxation and finance's own motion, or in a proceeding under article seventy-eight of the civil practice law and rules, pursuant to the provisions of section two thousand sixteen of this chapter, in which event refund shall be made of the tax, interest or penalty found to have been overpaid.
(d) Interest shall be allowed and paid upon any refund made pursuant to this section except that no interest shall be allowed or paid if the amount thereof would be less than one dollar. Such interest shall be at the overpayment rate set pursuant to section fourteen hundred sixteen of this article and shall have like application, or if no rate is set, at the rate of six per centum per annum from the date when the tax, penalty or interest refunded was paid to a date preceding the date of the refund check by not more than thirty days. Provided, however, for purposes of this subdivision any tax paid before the last day prescribed for its payment shall be deemed to have been paid on such last day.
Last modified: February 3, 2019