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SECTION 171
Powers and duties of commissioner of taxation and finance
Tax (TAX) CHAPTER 60, ARTICLE 8
§ 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.