Legislation

Search OpenLegislation Statutes
This entry was published on 2014-09-22
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 170
Department of taxation and finance
Tax (TAX) CHAPTER 60, ARTICLE 8
§ 170. Department of taxation and finance. 1. The existing department
of taxation and finance and its present functions are continued. The
head of the department of taxation and finance shall be the commissioner
of taxation and finance who shall have sole charge of the administration
of such department except with regard to the administration of the
division of tax appeals which shall be the sole charge of the tax
appeals tribunal authorized by article forty of this chapter. The
commissioner of taxation and finance shall be appointed by the governor
by and with the advice and consent of the senate and shall hold office
as commissioner of taxation and finance until the end of the term of the
governor by whom he was appointed and until his successor has been
appointed and has qualified.

2. Existing divisions or bureaus in the department of taxation and
finance or transferred to the department shall continue until
consolidated or abolished pursuant to this section. There shall be in
the department of taxation and finance a division of taxation, a
division of the treasury, a division of the lottery, an office of real
property tax services, and a division of tax appeals.

3. The commissioner of taxation and finance may establish such
additional divisions and bureaus as he may deem necessary. He may
appoint the heads of such divisions and bureaus and fix their duties and
he may consolidate, alter or abolish any divisions or bureaus, except
that such commissioner shall have no such authority or power with regard
to the division of tax appeals.

3-a. (a) There shall be in the division of taxation a bureau of
conciliation and mediation services which shall be responsible for
providing conciliation conferences. Such conference shall be provided,
at the option of any taxpayer or any other person subject to the
provisions of this chapter or any other provision of law relating to
administration of taxes, where such taxpayer or any other such person
has received any written notice of a determination of tax due, a tax
deficiency, a denial of a refund or credit application, a cancellation,
revocation or suspension of a license, permit or registration, a denial
of an application for a license, permit or registration or any other
notice which gives rise to a right to a hearing under this chapter if
the time to petition for such a hearing has not elapsed. Such notice
shall contain information advising the recipient of the right to have a
conciliation conference.

(b) A request for a conciliation conference shall be applied for in
the manner as set forth by regulation of the commissioner and,
notwithstanding any provision of law to the contrary, shall suspend the
running of the period of limitations for the filing of a petition
protesting such notice and requesting a hearing. To discontinue the
conciliation proceeding, the recipient of the notice shall make a
request in writing and such person shall have ninety days from the time
such request of discontinuance is made to petition the division of tax
appeals for a hearing, except that the recipient of a written notice
described in paragraph (h) of this subdivision will have thirty days
from the time such request of discontinuance is made to petition the
division of tax appeals for a hearing. The commissioner shall notify the
division of tax appeals when any person requests a conference or
requests to discontinue such conference.

(c) A conciliation conferee, all of whom, unless otherwise provided by
law, shall be in the classified civil service, shall conduct the
conciliation conference in an informal manner and shall hear or receive
testimony and evidence deemed necessary or desirable for a just and
equitable result. The commissioner of taxation and finance shall have
the power to delegate authority to a conferee to waive or modify
penalty, interest and additions to tax to the same extent as such
commissioner is permitted under this chapter.

(d) The person who requests the conference may appear and represent
himself, including a member of a partnership, in any conciliation
conference, or may designate the person's spouse, parent or child, or an
attorney admitted to practice in the courts of record of this state, a
certified public accountant licensed in this state, an enrolled agent
enrolled to practice before the internal revenue service, or a public
accountant licensed in this state to appear and represent him. In
addition the commissioner shall promulgate rules and regulations to
permit a corporation to be represented by one of its officers or an
employee. The department may also allow an attorney, certified public
accountant or licensed public accountant authorized to practice or
licensed in any other jurisdiction of the United States to appear and
represent such person in a conciliation conference proceeding and, on
the written request of such person, may allow any other individual to
represent him. An employee of the department of taxation and finance
familiar with the controversy shall also be present at such proceedings.

(e) A conciliation order shall be rendered within thirty days after
the proceeding is concluded and such order shall, in the absence of a
showing of fraud, malfeasance or misrepresentation of a material fact,
be binding upon the department and the person who requested the
conference, except such order shall not be binding on such person if
such person petitions for the hearing provided for under this chapter
within ninety days after the conciliation order is issued, or, for a
conciliation order affirming a written notice described in paragraph (h)
of this subdivision, within thirty days after the conciliation order is
issued, notwithstanding any other provision of law to the contrary.

(f) Conciliation conference orders shall not be required to be
published and such orders shall not be considered as precedent or be
given any force or effect in any subsequent administrative proceeding
with respect to the person who requested the conference or in any other
proceeding.

(g) The commissioner of taxation and finance shall collect, compile
and prepare for publication statistics and other data with respect to
the operations of the bureau of conciliation and mediation services, and
to submit annually to the governor, the temporary president of the
senate and the speaker of the assembly a report on such operations,
including but not limited to, the number of conferences held, the
dispositions made and the number of conferences pending.

(h) Notwithstanding any provision of law to the contrary, any person
who seeks review by the bureau of conciliation and mediation services of
a written notice that advises that person of (i) the proposed
cancellation, revocation, or suspension of a license, permit,
registration, or other credential issued under the authority of this
chapter excluding a certificate of registration of a retail dealer under
section four hundred eighty-a of this chapter, (ii) the denial of an
application for a license, permit, registration, or other credential
issued under the authority of this chapter excluding an application for
registration as a retail dealer under section four hundred eighty-a of
this chapter and an application to renew a certificate of authority
filed pursuant to paragraph five of subdivision (a) of section one
thousand one hundred thirty-four of this chapter and any other law, or,
(iii) the imposition of a fraud penalty under this chapter, must request
a conciliation conference within thirty days of the mailing of that
notice.

4. The commissioner of taxation and finance may appoint and remove
such officers, assistants and other employees as he may deem necessary
for the exercise of the powers and duties of the department, all of whom
shall be in the classified civil service unless otherwise provided by
law; and he may prescribe their duties, and fix their compensation
within the amounts appropriated therefor. The commissioner of taxation
and finance may transfer officers or employees from their positions to
other positions in the department, or abolish or consolidate such
positions. He shall have all powers necessary to perform the duties
conferred upon him regarding the state lottery authorized by article
thirty-four of this chapter. However, the commissioner of taxation and
finance shall have no power to appoint or remove any personnel of the
division of tax appeals nor shall such commissioner have any power or
authority with regard to the operation and administration of such
division including any power or authority over such division's budget.
The commissioner shall furnish to the director of the division of the
budget the itemized estimates of the financial needs of the division of
tax appeals prepared by the tax appeals tribunal. Such itemized
estimates may not be revised or altered in any manner by the
commissioner.

5. The head of the division of taxation shall be the commissioner of
taxation and finance who shall be appointed by the governor as provided
in subdivision one of this section. No person shall be appointed as
commissioner of taxation and finance unless at the time of his
appointment he is a resident of the state and known to have knowledge on
the subject of taxation and skill in matters pertaining thereto. Such
commissioner shall devote his entire time to the duties of his office.
The commissioner of taxation and finance may after notice and an
opportunity to be heard, be removed by the governor for neglect of duty
or misfeasance in office, and the commissioner may be removed for other
cause by the senate on the recommendation of the governor. The
commissioner of taxation and finance shall receive an annual salary
within the amounts appropriated therefor.

6. The head of the division of the treasury shall be an officer
entitled the deputy commissioner and treasurer to be appointed by and to
hold office during the pleasure of the commissioner. The state treasury,
the custody of monies therein and the custody of all other funds, as now
or hereafter prescribed by law shall continue to be in the immediate
charge of the head of such division, subject to the supervision and
control of the commissioner; and the head of such division, subject to
such supervision and control, shall make the payments out of the
treasury and from such funds authorized or directed by law to be made.
Notwithstanding any other provision of law, expenditures relating to
financial services performed by the division of the treasury as fiscal
agent, trustee or sole custodian of funds, moneys or accounts of
agencies, authorities or other entities, shall be charged to such
agencies, authorities or other entities. Payment of such charges shall
be in a manner prescribed by the commissioner and may include the
withholding of interest due on any investments made for such agencies,
authorities or other entities. All income derived from fees levied by
the commissioner for such financial services shall be deposited by the
commissioner in the miscellaneous special revenue fund, investment
services account. The commissioner may assign to such division such
other powers and duties of the department of taxation and finance as he
may deem proper.

7. The head of the division of the lottery shall be an officer to be
appointed by, and hold office during the pleasure of the commissioner of
taxation and finance.

7-a. The head of the office of real property tax services shall be an
officer to be appointed and hold office as provided by section two
hundred three of the real property tax law.

8. The reasonable and necessary traveling and other expenses of the
commissioner, deputy commissioners and other officers and employees of
the department, while actually engaged in the performance of their
duties, outside of the city of Albany, or if such officer or employee be
in charge of or actually employed at a branch office of the department,
the reasonable and necessary traveling and other expenses outside of the
place in which such branch office is located, and the necessary
traveling expenses incurred in the performance of their duties in the
place in which their duties are performed of such officers and employees
as are specifically authorized by order of the commissioner of taxation
and finance, shall be paid upon the order of the comptroller upon
vouchers approved by the commissioner of taxation and finance.