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SECTION 1089
Petition to tax commission
Tax (TAX) CHAPTER 60, ARTICLE 27
§ 1089. Petition to tax commission.--(a) General.--The form of a
petition to the tax commission, and further proceedings before the tax
commission in any case initiated by the filing of a petition, shall be
governed by such rules as the tax commission shall prescribe. No
petition shall be denied in whole or in part without opportunity for a
hearing on reasonable prior notice. Such hearing shall be conducted by
one or more members of the tax commission, or by a hearing officer
designated by the tax commission to take evidence and report to the tax
commission. The tax commissioners shall, acting as a body, jointly
decide the case as quickly as practicable. Notice of decision shall be
mailed promptly to the taxpayer by certified or registered mail at its
last known address, and such notice shall set forth the tax commission's
findings of fact and a brief statement of the grounds of decision in
each case decided in whole or in part adversely to the taxpayer.

(b) Petition for redetermination of a deficiency.---Within ninety
days, or one hundred fifty days if the notice is addressed to a taxpayer
whose last known address is outside of the United States, after the
mailing of the notice of deficiency authorized by section one thousand
eighty-one, the taxpayer may file a petition with the tax commission for
a redetermination of the deficiency. Such petition may also assert a
claim for refund for the same taxable year or years, subject to the
limitations of subsection (g) of section one thousand eighty-seven. For
special restriction where the notice of deficiency relates to a proposed
assessment made as a result of (i) a net operating loss carryback or
capital loss carryback, (ii) an increase or decrease in federal taxable
income or federal tax, or (iii) a federal change or correction or
renegotiation, or computation or recomputation of tax, which is treated
in the same manner as if it were a deficiency for federal income tax
purposes, see paragraph (7) of subsection (c) of section one thousand
eighty-three.

(c) Petition for refund.---A taxpayer may file a petition with the tax
commission for the amounts asserted in a claim for refund if---

(1) the taxpayer has filed a timely claim for refund with the tax
commission,

(2) the taxpayer has not previously filed with the tax commission a
timely petition under subsection (b) for the same taxable year unless
the petition under this subsection relates to a separate claim for
credit or refund properly filed under subsection (f) of section one
thousand eighty-seven, and

(3) either (A) six months have expired since the claim was filed, or
(B) the tax commission has mailed to the taxpayer, by registered or
certified mail, a notice of disallowance of such claim in whole or in
part.

(4) Notwithstanding paragraph three of this subsection, no petition
may be filed by a taxpayer claiming a refund of one or more empire zone
tax credits for a taxable year beginning on or after January first, two
thousand eight and before January first, two thousand nine, until six
months have expired after the date on which an empire zone retention
certificate was issued pursuant to subdivision (w) of section nine
hundred fifty-nine of the general municipal law to the empire zone
enterprise which is the basis for the tax credit or credits claimed on
the return or report.
No petition under this subsection shall be filed more than two years
after the date of mailing of a notice of disallowance, unless prior to
the expiration of such two year period it has been extended by written
agreement between the taxpayer and the tax commission. If a taxpayer
files a written waiver of the requirement that he be mailed a notice of
disallowance, the two year period prescribed by this subsection for
filing a petition for refund shall begin on the date such waiver is
filed.

(d) Assertion of deficiency after filing petition.---

(1) Petition for redetermination of deficiency.---If a taxpayer files
with the tax commission a petition for redetermination of a deficiency,
the tax commission shall have power to determine a greater deficiency
than asserted in the notice of deficiency and to determine if there
should be assessed any addition to tax or penalty provided in section
one thousand eighty-five, if claim therefor is asserted at or before the
hearing under rules of the tax commission.

(2) Petition for refund.---If the taxpayer files with the tax
commission a petition for credit or refund for a taxable year, the tax
commission may

(A) determine a deficiency for such year as to any amount of
deficiency asserted at or before the hearing under rules of the tax
commission, and within the period in which an assessment would be timely
under section one thousand eighty-three, or

(B) deny so much of the amount for which credit or refund is sought in
the petition, as is offset by other issues pertaining to the same
taxable year which are asserted at or before the hearing under rules of
the tax commission.

(3) Opportunity to respond.--- A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the tax commission
under this subsection.

(4) Restriction on further notices of deficiency.---If the taxpayer
files a petition with the tax commission under this section, no notice
of deficiency under section one thousand eighty-one may thereafter be
issued by the tax commission for the same taxable year, except in case
of fraud or with respect to an increase or decrease in federal taxable
income or federal alternative minimum taxable income or federal tax or a
federal change or correction or renegotiation, or computation or
recomputation of tax, which is treated in the same manner as if it were
a deficiency for federal income tax purposes, required to be reported
under subdivision three of section two hundred eleven, or under section
two hundred nineteen-bb or under section two hundred nineteen-zz.

(e) Burden of proof.---In any case before the tax commission under
this article, the burden of proof shall be upon the petitioner except
for the following issues, as to which the burden of proof shall be upon
the tax commission:

(1) whether the petitioner has been guilty of fraud with intent to
evade tax;

(2) whether the petitioner is liable as the transferee of property of
a taxpayer, but not to show that the taxpayer was liable for the tax;

(3) whether the petitioner is liable for any increase in a deficiency
where such increase is asserted initially after a notice of deficiency
was mailed and a petition under this section filed, unless such increase
in deficiency is the result of an increase or decrease in federal
taxable income or federal alternative minimum taxable income or federal
tax or a federal change or correction or renegotiation, or computation
or recomputation of tax, which is treated in the same manner as if it
were a deficiency for federal income tax purposes, required to be
reported under subdivision three of section two hundred eleven, or under
section two hundred nineteen-bb, or under section two hundred
nineteen-zz, and of which increase, decrease, change or correction or
renegotiation, or computation or recomputation, the tax commission had
no notice at the time it mailed the notice of deficiency; and

(4) whether any person is liable for a penalty under subsection (l) of
section one thousand eighty-five.

(f) Evidence of related federal determination.---Evidence of a federal
determination relating to issues raised in a case before the tax
commission under this section shall be admissible, under rules
established by the tax commission.

(g) Jurisdiction over other years.---The tax commission shall consider
such facts with relation to the taxes for other years as may be
necessary correctly to determine the tax for the taxable year, but in so
doing shall have no jurisdiction to determine whether or not the tax for
any other year has been overpaid or underpaid.