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This entry was published on 2014-09-22
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SECTION 288
Determination of tax
Tax (TAX) CHAPTER 60, ARTICLE 12-A
§ 288. Determination of tax. 1. (a) Except as otherwise provided in
this section, if a distributor files a return under this article, but
such return is incorrect or insufficient, the state tax commission shall
determine the amount of tax due at any time within three years after the
return was filed (whether or not such return was filed on or after the
due date), and give written notice of such determination to the
distributor. For the purposes of this section the term distributor
shall also include any other person liable for the taxes imposed by this
article.

(b) The tax commission shall determine the liability for the penalty
imposed by subdivision two of section two hundred eighty-nine-b of any
officer, director, shareholder or employee of a corporation or of a
dissolved corporation, member or employee of a partnership or employee
of an individual proprietorship. The tax commission shall also determine
the amount of such penalty. All of the provisions of this section shall
apply to any determination made pursuant to this paragraph and for such
purpose the term distributor, as used in subdivisions four, five and six
of this section, shall also mean and include such officer, director,
shareholder, employee or member as the case may be.

(c) The tax commission shall determine the liability for the penalty
imposed by paragraph (e) of subdivision one of section two hundred
eighty-nine-b of any person as an owner of a filling station. The tax
commission shall also determine the amount of such penalty. All of the
provisions of this section shall apply to any determination made
pursuant to this paragraph and for such purpose the term distributor, as
used in subdivisions four, five and six of this section, shall also mean
and include such person.

(d) The provisions of paragraphs (b) and (c) of this subdivision shall
not be construed to limit in any manner the powers of the attorney
general under subdivision one of section two hundred eighty-nine of this
chapter or the powers of the tax commission to issue a warrant under
subdivision two of such section against any person whose liability has
become finally and irrevocably fixed.

2. The state tax commission may determine the amount of tax due at any
time if such distributor (i) has not registered as required by this
article, (ii) fails to file a return, (iii) files a willfully false or
fraudulent return with intent to evade the tax, or (iv) fails to comply
with section two hundred eighty-three of this article in not informing
the department, in writing, of any change in its address and, if a
corporation or partnership, in not informing the department, in writing,
of any change in its officers, directors or partners or their residence
addresses as shown in its application for registration.

3. If a distributor shall inform the department, in writing, of any
change in its address and, if a corporation or partnership shall inform
the department, in writing, of any change in its officers, directors or
partners or their residence addresses as shown in its application for
registration, the determination of the amount of tax due may be made at
any time within three years after such information is received.

4. Notwithstanding any of the foregoing provisions of this section,
where, before the expiration of the time prescribed in this section for
the determination of tax, both the tax commission and the distributor
have consented in writing to its determination after such time, the tax
may be determined at any time prior to the expiration of the period
agreed upon. The period so agreed upon may be extended by subsequent
agreements in writing made before the expiration of the period
previously agreed upon.

5. Any determination made pursuant to this section shall finally and
irrevocably fix the tax unless the distributor against whom it is
assessed shall, within ninety days after the giving of notice of such
determination, petition the division of tax appeals for a hearing, or
unless the commissioner of taxation and finance of his own motion, shall
redetermine the same. After such hearing, the division of tax appeals
shall give notice of the determination of the administrative law judge
to the distributor liable for the tax and to the commissioner of
taxation and finance. Such determination may be reviewed by the tax
appeals tribunal as provided in article forty of this chapter. The
decision of the tax appeals tribunal may be reviewed as provided in
section two thousand sixteen of this chapter, but the proceeding may not
be commenced unless the amount of tax stated or referred to in the
decision, with penalties and interest thereon, if any, and the amount of
any other penalty stated or referred to in the decision shall have been
first deposited with the commissioner of taxation and finance, and an
undertaking filed with him, in such amount and with such sureties as a
justice of the supreme court shall approve, to the effect that if such
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, or at the option of the petitioner such
undertaking may be in a sum sufficient to cover the tax, penalties,
interest, costs and charges aforesaid, in which event the petitioner
shall not be required to pay such tax, penalties and interest as a
condition precedent to the commencement of the proceeding.

6. The remedy provided by this section for review of a decision of the
tax appeals tribunal shall be the exclusive remedy available to any
taxpayer to judicially determine the liability of such taxpayer for
taxes under this article.