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SECTION 2006
Tax appeals tribunal; functions, powers and duties
Tax (TAX) CHAPTER 60, ARTICLE 40
§ 2006. Tax appeals tribunal; functions, powers and duties. The
tribunal shall have the following functions, powers and duties:

1. To establish, consolidate, alter or abolish any unit in the
division; to appoint the heads of such units and fix their duties; and
to establish, consolidate or alter any positions in the division.

2. To appoint, remove or transfer officers, assistants, administrative
law judges, and other employees as it may deem necessary for the
exercise of the powers and performance of the duties of the division of
tax appeals, all of whom shall be in the classified civil service unless
otherwise provided by law; to appoint a secretary to the tax appeals
tribunal, which position shall be in the exempt class of the classified
service; and to prescribe their duties, and fix their compensation
within the amounts appropriated therefor.

3. To prepare and submit to the commissioner of taxation and finance
itemized estimates of the financial needs of the division of tax
appeals, in such form and at such times as may be required, for
inclusion as part of the financial needs of the department of taxation
and finance furnished to the governor. The itemized estimates prepared
by the tax appeals tribunal shall not be revised or altered in any
manner by the commissioner of taxation and finance prior to their
submission to the governor.

4. To provide a hearing as a matter of right, to any petitioner upon
such petitioner's request, pursuant to such rules, regulations, forms
and instructions as the tribunal may prescribe, unless a right to such a
hearing is specifically provided for, modified or denied by another
provision of this chapter. Where such a request is made by a person
seeking review of taxes determined or claimed to be due under this
chapter, the liability of such person shall become finally and
irrevocably fixed, unless such person, within ninety days from the time
such liability is assessed, shall petition the division of tax appeals
for a hearing to review such liability except that, as provided in
subdivision (a) of section five hundred twenty-eight of this chapter, a
determination relating to the tax imposed by article twenty-one-A of
this chapter shall finally and irrevocably fix such tax unless the
person against whom it is assessed shall petition the division of tax
appeals for a hearing within thirty days after the giving of notice of
such determination.

5. To provide that any party, pursuant to such rules and regulations
as the tribunal may prescribe, after a petition requesting a hearing has
been filed with the division, may file a motion with the tribunal to
dismiss the petition on the following grounds:

(i) a defense is founded upon documentary evidence; or

(ii) the tribunal lacks jurisdiction of the subject matter of the
petition; or

(iii) the petitioner lacks legal capacity to petition; or

(iv) there is an action pending between the same parties on the same
controversy in a court of any state or the United States; an
administrative law judge need not dismiss upon this ground but may make
such determination as justice requires; or

(v) the petition may not be maintained because of discharge in
bankruptcy, infancy or other disability of the moving party, payment,
release, or statute of limitation; or

(vi) the pleading fails to state a cause for relief; or

(vii) the tibunal lacks jurisdiction over the taxpayer; or

(viii) the tribunal should not proceed in the absence of a person who
should be a party.

Such motion to dismiss and all supporting documents shall be reviewed
by an administrative law judge who shall issue a determination granting
or denying the motion. Such a determination denying the motion shall not
be subject to review by the tribunal. The tribunal of its own motion
may, upon notice to the parties, issue a decision dismissing the
petition on the grounds set forth in paragraphs (ii) and (vii) of this
subdivision. Where not otherwise inconsistent with the provisions of
this chapter, a motion filed pursuant to this subdivision shall be
subject to the same provisions as motions filed pursuant to section
three thousand two hundred eleven of the civil practice law and rules.

6. To provide that any party, pursuant to such rules and regulations
as the tribunal may prescribe, after a petition requesting a hearing has
been filed with the division and after issue is joined, may file a
motion with the tribunal for summary determination. Such motion shall be
supported by an affidavit, by a copy of the pleadings and by other
available proof. The affidavit, made by a person having knowledge of the
facts, shall recite all the material facts and show that there is no
material issue of fact, and that the facts mandate judgment in the
moving party's favor. The motion and all supporting documents shall be
reviewed by an administrative law judge. The motion shall be granted if,
upon all the papers and proof submitted, the administrative law judge
finds that it has been established sufficiently that no material and
triable issue of fact is presented and that the administrative law judge
can, therefore, as a matter of law, issue a determination in favor of a
party. The motion shall be denied if any party shows facts sufficient to
require a hearing of any issue of fact. Where it appears that a party,
other than the moving party, is entitled to a summary determination, the
administrative law judge may grant such determination without the
necessity of a cross-motion. Should it appear from affidavits submitted
in opposition to the motion that facts essential to justify opposition
may exist but cannot be stated, the administrative law judge may deny
the motion or may order a continuance to permit affidavits or admissions
to be obtained and may make such other order as may be just. Where not
otherwise inconsistent with the provisions of this chapter, a motion
filed pursuant to this subdivision shall be subject to the same
provisions as motions filed pursuant to section three thousand two
hundred twelve of the civil practice law and rules.

7. To provide for a review of the determination of an administative
law judge if any party to a proceeding conducted before such
administrative law judge, within thirty days after the giving of notice
of such determination, takes exception to the determination. A
determination by an administrative law judge denying a motion filed
pursuant to subdivision six of this section shall not be subject to
review by the tribunal. The tribunal in its discretion may grant oral
argument. The tribunal may also grant an extension of time for filing an
exception provided an application for such extension is filed within the
time period for taking exception to a determination under this
subdivision, and if good cause is shown. The tribunal shall promulgate
rules and regulations as to what constitutes good cause. After such
review the tribunal shall issue a decision either affirming, reversing
or modifying such determination, or the tribunal may remand the case for
additional proceedings before the administrative law judge. Such
decision shall include a statement setting forth the facts which formed
the basis of the decision on the issues raised before the tribunal. The
tribunal shall have the authority to rule on the validity of the
regulations of the commissioner of taxation and finance where such
regulations are at issue. Such decision shall be issued within six
months from the date of notice to the tribunal that exception is being
taken to an administrative law judge's determination, except that where
oral argument is granted or written arguments are submitted such six
month period will commence to run on the date that such oral argument
was concluded or written argument received by the tribunal, whichever
was later.

8. To provide that hearings, other than hearings provided for by
section two thousand twelve of this article, conducted before an
administrative law judge and any oral proceedings conducted before the
tax appeals tribunal shall be stenographically reported.

9. To publish and make available to the public all determinations
rendered by an administrative law judge and all decisions rendered by
the tribunal after a review of an administrative law judge's
determination. The tribunal may charge a reasonable fee for a copy of
such determination or decision.

10. To take testimony and proofs, administer oaths, take affidavits
and certify acknowledgements in relation to any proceeding conducted
pursuant to the authority of the division of tax appeals. The tribunal
shall have power to subpoena and require the attendance of witnesses and
the production of books, papers and documents pertinent to the
proceedings which it is authorized to conduct, and to examine them in
relation to any matter which it has power to investigate and to issue
commissions for the examination of witnesses who are out of the state or
unable to attend proceedings conducted pursuant to the authority of the
division or excused from attendance of such proceedings. The tribunal
may designate and authorize by resolution, duly entered upon its
minutes, officers, administrative law judges and other employees of the
division to exercise any of the powers or perform any of the functions
provided for in this subdivision. A subpoena issued under this
subdivision shall be regulated by the civil practice law and rules. Any
person who shall testify falsely in any proceeding conducted pursuant to
the authority of the division shall be guilty of and punishable for
perjury.

Cross reference: For criminal penalties, see article thirty-seven of
this chapter.

11. To provide that an attorney for any party at a hearing conducted
before an administrative law judge may issue a subpoena as provided in
the civil practice law and rules.

12. To have the same power and authority as the commissioner of
taxation and finance in any instance where such commissioner is
authorized to impose, modify or waive interest, additions to tax or
civil penalties under this chapter, the environmental conservation law,
the general city law, or in any local law, ordinance or resolution
imposing taxes pursuant to the authority thereof, and to designate and
authorize by resolution of the tax appeals tribunal, duly entered upon
its minutes, officers, administrative law judges, and other employees of
the division to perform any of such functions.

13. To collect, compile and prepare for publication statistics and
other data with respect to the operations of the division of tax
appeals, 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 proceedings
initiated, the types of dispositions made and the number of proceedings
pending.

14. To make, adopt and amend such rules and regulations appropriate
for the exercise of its powers and the performance of its duties,
including rules of practice and procedure.

15. To have all other powers and perform such other duties as are
necessary and proper to operate and administer the division of tax
appeals consistent with the purposes of such division described in this
article.