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This entry was published on 2014-09-22
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Refund of tax erroneously paid
§ 280. Refund of tax erroneously paid. If any stamp or stamps shall
have been erroneously affixed to any book, certificate, or bill or
memorandum of sale, or if any tax provided by this article shall be
erroneously paid otherwise than by the use of a stamp or stamps, the tax
commission may, upon presentation of a claim for the amount of such
stamp or stamps, or tax, and upon the production of evidence
satisfactory to it that such stamp or stamps was or were so erroneously
affixed, or such tax was so erroneously paid, so as to cause loss to the
person or persons making such claim, pay such amount or such part
thereof as it may allow, to such claimant out of any moneys collected
under this article. Provided, however, that where such erroneous payment
was made otherwise than by the use of stamps pursuant to the provisions
of section two hundred eighty-one-a hereof, and resulted from payment of
tax in excess of the amount due under subdivision two of section two
hundred seventy-a of this chapter in lieu of the presentation of a claim
for refund an adjustment for such erroneous payment may be made on the
written report required to be made to the exchange, affiliated clearing
corporation or authorized agency if such adjustment is made on such a
written report filed within thirty business days following such
erroneous payment, in such form and with such substantiating evidence as
the tax commission may prescribe and provided further that at the time
of the making of such adjustment the person, firm, company or
association making such report has either paid to the person or persons
erroneously charged with such tax the amount of such overpayment or has
applied such amount in reduction of any amount owing to it from the
person or persons so charged. Any claim for refund shall be presented to
the tax commission in writing, duly verified, and shall state the full
name and address of the claimant, the date of such erroneous affixing,
or other payment of the tax, the face value of such stamp or stamps, or
the amount of such tax, as the case may be, and contain such evidence as
may be available upon which the demand for such refund is based. If the
claim is based on the erroneous affixing of a stamp or stamps the claim
shall describe the instrument to which the stamp or stamps were affixed.
Such claims shall be presented within two years after such erroneous
affixing or payment, as the case may be, except if an agreement under
the provisions of section two hundred seventy-nine-a (extending the
period for determination of tax imposed by this article) is made within
the two-year period for the filing of a claim for refund provided for in
this section, the period for filing a claim for refund shall not expire
prior to six months after the expiration of the period within which a
determination may be made pursuant to the agreement or any extension
thereof. The tax commission shall grant or deny such claim in whole or
in part and shall notify the claimant by mail of its determination. Such
determination shall be final and irrevocable unless the claimant shall
within thirty days after the mailing of notice of such determination
apply to the tax commission for a hearing. After such hearing the tax
commission shall mail notice of its decision to the claimant. The
decision of the tax commission may be reviewed under article
seventy-eight of the civil practice law and rules if a proceeding under
that article is commenced within ninety days after the mailing of the
notice of such decision. However, such a proceeding may not be commenced
unless an undertaking is filed with the tax commission in such amount
and with such sureties as a justice of the supreme court shall approve
to the effect that if the proceeding be dismissed or the decision
confirmed the petitioner will pay all costs and charges which may accrue
against him in the prosecution of the proceeding. The remedy provided by
this section for review of the decision of the tax commission shall be
the exclusive remedy available to judicially determine the liability for
taxes under this article.