claim for refund for the same taxable year or years, subject to the limitations of subdivision (g) of section 11-527 of this chapter.

(c) Petition for refund. A taxpayer may file a petition with the [commissioner of finance] tax appeals tribunal for the amounts asserted in a claim for refund if:

(1) the taxpayer has filed a timely claim for refund with the commissioner of finance,

(2) the taxpayer has not previously filed with the [commissioner of finance] tax appeals tribunal a timely petition under subdivision (b) of this section for the same taxable year unless the petition under this subdivision relates to a separate claim for credit

or refund properly

filed under subdivision (f) of section 11-527 of this chapter, and

(3) either: (A) six months have expired since the claim was filed, or (B) the commissioner of finance has mailed to the taxpayer, by registered or certified mail, a notice of disallowance of such claim in whole or in part. No petition under this subdivision shall be filed more than two years after the date of mailing of a notice of disallowance, unless prior to the expiration of such two year period it has been extended by written agreement between the taxpayer and the commissioner of finance. If a taxpayer files a written waiver of the requirement that he be mailed a notice of disallowance, the two year period prescribed by this subdivision for filing a petition for refund shall begin on the

date such waiver is filed.

or she

(4) If the commissioner of finance has established a conciliation procedure pursuant to section 11-124 of the code, a taxpayer who is eligible to file a petition for refund with the tax appeals tribunal pursuant to this subdivision may request a conciliation conference prior to filing such petition, provided the request is made within the time prescribed for filing the petition. Notwithstanding anything in this subdivision to the contrary, if the taxpayer has requested a conciliation conference in accordance with the procedure established pursuant to section 11-124 of the code, a petition for refund may be filed no later than ninety days from the mailing of the conciliation decision or the date of the commissioner's confirmation of the discontinuance of the conciliation proceeding.

(d) Assertion of deficiency after filing petition. (1) Petition for redetermination of deficiency. If a taxpayer files with the [commissioner of finance] tax appeals tribunal a petition for redetermination of a deficiency, the [commissioner of finance] tax appeals tribunal shall have power to determine a greater deficiency than asserted in the notice of deficiency and to determine if there should be assessed any addition to tax or penalty provided in section 11-525 of this chapter, if claim therefor is asserted at or before the hearing under the rules of the [commissioner of finance] tax appeals tribunal.

a

(2) Petition for refund. If the taxpayer files with the [commissioner of finance] tax appeals tribunal a petition for credit or refund for taxable year, the [commissioner of finance] tax appeals tribunal may: (A) determine a deficiency for such year as to any amount of deficiency asserted at or before the hearing under rules of the [commissioner of finance] tax appeals tribunal, and within the period in which an assessment would be timely under section 11-523 of this chapter, or (B) deny so much of the amount for which credit or refund is sought in the petition, as is offset by other issues pertaining to the same taxable year which are asserted at or before the hearing under rules of the [commissioner of finance] tax appeals tribunal.

(3) Opportunity to respond. A taxpayer shall be given a reasonable opportunity to respond to any matters asserted by the commissioner of finance under this subdivision.

(4) Restriction on further notices of deficiency. If the taxpayer files a petition with the [commissioner of finance] tax appeals tribunal under this section, no notice of deficiency under Section 11-521 of this chapter may thereafter be issued by the commissioner of finance for the same taxable year, except in case of fraud or with respect to a change or correction in federal or New York state taxable income required to be reported under section 11-519 of this chapter or with respect to a state change or correction of sales and compensating use tax liability to be reported under section 11-519. 1 of this chapter.

(e) Burden of proof. In any case before the [commissioner of finance] tax appeals tribunal under this chapter, the burden of proof shall be EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

upon the petitioner except for the following issues, as to which the burden of proof shall be upon the commissioner of finance:

(1) whether the petitioner has been guilty of fraud with intent to evade tax;

(2) whether the petitioner is liable as the transferee of property of a taxpayer, but not to show that the taxpayer was liable for the tax; (3) whether the petitioner is liable for any increase in a deficiency where such increase is asserted initially after a notice of deficiency was mailed and a petition under this section filed, unless such increase in deficiency is the result of a change or correction of federal or New York state taxable income required to be reported under section 11-519 of this chapter, and of which change or correction the commissioner of finance had no notice at the time he or she mailed the notice of deficiency or unless such increase in deficiency is the result of a change or correction of sales and compensating use tax liability required to be reported under section 11-519. 1 of this chapter, and of which change correction the commissioner of finance had no notice at the time he or she mailed the notice of deficiency; and

or

(4) whether any person is liable for a penalty under subdivision (k)

of section 11-525.

(f) Evidence of related federal or state determination. Evidence of a federal or state determination relating to issues raised in a case before the [commissioner of finance] tax appeals tribunal under this section shall be admissible, under rules established by the [commissioner of finance] tax appeals tribunal.

(g) Jurisdiction over other years. The [commissioner of finance] tax appeals tribunal shall consider such facts with relation to the taxes for other years as may be necessary correctly to determine the tax for the taxable year, but in so doing shall have no jurisdiction to determine whether or not the tax for any other year has been overpaid or underpaid.

§ 21. Section 11-530 of the administrative code of the city of New York is amended to read as follows:

§ 11-530 Review of [commissioner's] tax appeals tribunal's decision. (a) General. A decision of the [commissioner of finance] tax appeals tribunal sitting en banc shall be subject to judicial review at the instance of any taxpayer affected thereby in the manner provided by law for the review of a final decision or action of administrative agencies of the city. An application by a taxpayer for such review must be made within four months after notice of the decision is sent by certified [or registered] mail, return receipt requested, to the taxpayer and the commissioner of finance.

(b) Judicial review exclusive remedy [of taxpayer]. The review of a decision of the [commissioner of finance] tax appeals tribunal provided by this section shall be the exclusive remedy available to any taxpayer for the judicial determination of the liability of the taxpayer for the taxes imposed by this chapter.

(c) Assessment pending review; review bond. Irrespective of any restrictions on the assessment and collection of deficiencies, the commissioner of finance may assess a deficiency determined by the tax appeals tribunal in a decision rendered pursuant to section one hundred seventyone of the charter after the expiration of the period specified in subdivision (a) of this section, notwithstanding that an application for judicial review in respect of such deficiency has been duly made by the taxpayer, unless the taxpayer, at or before the time his or her application for review is made, has paid the deficiency, has deposited with the commissioner of finance the amount of the deficiency, or has filed with the commissioner of finance a bond (which may be a jeopardy bond under subdivision (h) of section)] 11-534 of this chapter[,]) in the amount of the portion of the deficiency (including interest and other amounts) in respect of which the application for review is made and all costs and charges which may accrue against such taxpayer in the prosecution of the proceeding, including costs of all appeals, and with surety approved by a justice of the supreme court of the state of New York, conditioned upon the payment of the deficiency (including interests and other amounts) as finally determined and such costs and charges. If, as a result of a waiver of the restrictions on the assessment and collection of a deficiency, any part of the amount determined by the [commissioner of finance] tax appeals tribunal is paid after the filing of the review bond, such bond shall, at the request of the taxpayer, be proportionately reduced.

(d) Credit, refund or abatement after review. If the amount of a deficiency determined by the [commissioner of finance] tax appeals tribunal is disallowed in whole or in part by the court of review, the amount so disallowed shall be credited, or refunded to the taxpayer, without the making of claim therefor, or, if payment has not been made, shall be abated.

(e) Date of finality of [commissioner's] tax appeals tribunal's decision. A decision of the [commissioner of finance] tax appeals tribunal shall become final upon the expiration of the period specified in subdivision (a) of this section for making an application for review, if no such application has been duly made within such time, or if such application has been duly made, upon expiration of the time for all further judicial review, or upon the rendering by the [commissioner of finance] tax appeals tribunal of a decision in accordance with the mandate of the court on review. Notwithstanding the foregoing, for the purpose of making an application for review, the decision of the [commissioner of finance] tax appeals tribunal shall be deemed final on the date [of] the notice of decision is sent by certified [or registered] mail to the taxpayer and the commissioner of finance.

22. Subdivisions (a) and (d) of section 11-531 of the administrative code of the city of New York, subdivision (d) as added by chapter 765 of the laws of 1985, are amended to read as follows: (a) Timely mailing. If any return, declaration of estimated tax, claim, statement, notice, petition, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under authority of any provision of this chapter is, after such period or such date, delivered by the United States mail to the commissioner of finance, tax appeals tribunal, bureau, office, officer or person with which or with whom such document is required to be filed, or to which or to whom such payment is required to be made, the date of the United States postmark stamped on the envelope shall be deemed to be the date of delivery. This subdivision shall apply only if the postmark date falls within the prescribed period or on or before the prescribed date for the filing of such document, or for making the payment, including any extension granted for such filing or payment, and only if such document or payment was deposited in the mail, postage prepaid, properly addressed to the commissioner of finance, tax appeals tribunal, bureau, office, officer or person with which or with whom the document is required to be filed or to which or to whom such payment is required to be made. If any document is sent by United States registered mail, such registration shall be prima facie evidence that such document was delivered to the commissioner of finance, tax appeals tribunal, bureau, office, officer or person to which or to whom addressed. To the extent that the commissioner of finance or, where relevant, the tax appeals tribunal shall prescribe by regulation, certified mail may be used in lieu of registered mail under this section. This subdivision shall apply in the case of postmarks not made by the United States postal service only if and to the extent provided by regulations of the commissioner of finance or, relevant, the tax appeals tribunal.

where

(d) Certificate: unfiled return. For purposes of this chapter and sections one hundred sixty-eight through one hundred seventy-two of the charter, the certificate of the commissioner of finance to the effect that a tax has not been paid, that a return or declaration of estimated tax has not been filed, or that information has not been supplied, as required by or under the provisions of this title, shall be primą evidence that such tax has not been paid, that such return or declaration has not been filed, or that such information has not been supplied.

facie

§ 23. Subdivisions (c), (d), (e), (f), (g), (i) and (j) of section 11-534 of the administrative code of the city of New York are amended to read as follows:

(c) Amount assessable before decision of [commissioner of finance] tax appeals tribunal. The jeopardy assessment may be made in respect of a deficiency greater or less than that of which notice is mailed to the taxpayer and whether or not the taxpayer has heretofore filed a petition with the [commissioner of finance] tax appeals tribunal. The commissioner of finance may, at any time before [rendering his or her] the tax appeals tribunal renders its decision, abate such assessment, or any unEXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

paid portion thereof, to the extent that the commissioner believes the assessment to be excessive in amount. The [commissioner of finance] tax appeals tribunal may in [his or her] its decision redetermine the entire amount of the deficiency and of all amounts assessed at the same time in connection therewith.

(d) Amount assessable after decision of [commissioner of finance] tax appeals tribunal. If the jeopardy assessment is made after the decision of the [commissioner of finance] tax appeals tribunal is rendered, such assessment may be made only in respect of the deficiency determined by the [commissioner of finance] tax appeals tribunal in [his or her] its decision.

(e) Expiration of right to assess. A jeopardy assessment may not be made after the decision of the [commissioner of finance] tax appeals tribunal has become final or after the taxpayer has made an application for review of the decision of the [commissioner of finance] tax appeals tribunal.

(f) Collection of unpaid amounts. When a petition has been filed with the [commissioner of finance] tax appeals tribunal and when the amount which should have been assessed has been determined by a decision of the [commissioner of finance] tax appeals tribunal which has become final, then any unpaid portion, the collection of which has been stayed by bond, shall be collected as part of the tax upon notice and demand from the commissioner of finance, and any remaining portion of the assessment shall be abated. If the amount already collected exceeds the amount determined as the amount which should have been assessed, such excess shall be credited or refunded to the taxpayer as provided in section 11-526 of this chapter without the filing of claim therefor. If the amount determined as the amount which should have been assessed is greater than the amount actually assessed, then the difference shall be assessed and shall be collected as part of the tax upon notice and demand from the commissioner of finance.

(g) Abatement if jeopardy does not exist. The commissioner of finance may abate the jeopardy assessment if the commissioner finds that jeopardy does not exist. Such abatement may not be made after a decision of the [commissioner of finance] tax appeals tribunal in respect of the deficiency has been rendered or, if no petition is filed with the [commissioner of finance] tax appeals tribunal, after the expiration of the period for filing such petition. The period of limitation on the making of assessments and levy or a proceeding for collection, in respect of any deficiency, shall be determined as if the jeopardy assessment so abated had not been made, except that the running of such period shall in any event be suspended for the period from the date of such jeopardy assessment until the expiration of the tenth day after the day on which such jeopardy assessment is abated.

(i) Petition to [commissioner of finance] tax appeals tribunal. If the bond is given before the taxpayer has filed his or her petition under section 11-529 of this chapter, the bond shall contain a further condition that if a petition is not filed within the period provided in such section, then the amount the collection of which is stayed by the bond, will be paid on notice and demand at any time after the expiration of such period, together with interest thereon from the date of the jeopardy notice and demand to the date of notice and demand under this subdivision. The bond shall be conditioned upon the payment of so much of such assessment (collection of which is stayed by the bond) as is not abated by a decision of the [commissioner of finance] tax appeals tribunal which has become final. If the [commissioner of finance] tax appeals tribunal determines that the amount assessed is greater than the amount which should have been assessed, then the bond shall, at the request of the taxpayer, be proportionately reduced when the decision of the [commissioner of finance] tax appeals tribunal is rendered.

(j) Stay of sale of seized property pending [commissioner of finance] tax appeals tribunal decision. Where a jeopardy assessment is made, the property seized for the collection of the tax shall not be sold:

(1) if subdivision (b) of this section is applicable, prior to the issuance of the notice of deficiency and the expiration of the time provided in section 11-529 of this chapter for filing a petition with the [commissioner of finance] tax appeals tribunal, and

(2) if a petition is filed with the [commissioner of finance] tax appeals tribunal (whether before or after the making of such jeopardy assessment), prior to the expiration of the period during which the assessment of the deficiency would be prohibited if subdivision (a) of this section were not applicable.

Such property may be sold if the taxpayer consents to the sale, or if the commissioner of finance determines that the expenses of conservation and maintenance will greatly reduce the net proceeds, or if the property is perishable.

§ 24. Subparagraph (C) of paragraph 1 of subdivision (a) of section 11-536 of the administrative code of the city of New York is amended read as follows:

to

(C) filing a petition with the [commissioner of finance] tax appeals tribunal for credit or refund or for redetermination of a deficiency, or application for review of a decision rendered by the [commissioner of finance] tax appeals tribunal;

§ 25. Subdivision 1 of section 11-538 of the administrative code of the city of New York, as amended by chapter 765 of the laws of 1985, is amended to read as follows:

1. Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the commissioner of finance, the department of finance of the city, any officer or employee of the department of finance of the city, any person engaged or retained by such department on an independent contract basis, any depository to which any return may be delivered as provided in subdivision [two] four of this section, any officer or employee of such depository, the tax appeals tribunal, any commissioner or employee of such tribunal, or any person who, pursuant to this section, is permitted to inspect any report or return or to whom a copy, an abstract or a portion of any report or return is furnished, or to whom any information contained in any report or return is furnished, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under this chapter. The officers charged with the custody of such reports and returns shall not be required to produce any of them or evidence of anything contained in them in any action or proceeding in any court, except on behalf of the city in an action or proceeding under the provisions of this chapter or in any other action or proceeding involving the collection of a tax due under this chapter to which the city is a party or a claimant, or on behalf of any party to any action or proceeding under the provisions of this chapter when the reports, returns or facts shown thereby are directly involved in such action or proceeding, in any of which events the court may require the production of, and may admit in evidence, so much of said reports, returns or of the facts shown thereby, as are pertinent to the action or proceeding and no more. [The commissioner of finance may, nevertheless, publish a copy or a summary of any determination or décision rendered after the hearing required under section 11-529 of this chapter.] Nothing herein shall be construed to prohibit the delivery to a taxpayer or to the taxpayer's duly authorized representative of a certified copy of any return or report filed in connection with his or her tax or to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the corporation counsel or other legal representatives of the city of the report or return of any taxpayer who shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding under this chapter has been recommended by the commissioner of finance or the corporation counsel or has been instituted, or the inspection of the reports or returns required under this chapter by the duly designated officers or employees of the city for purposes of an audit under this chapter or an audit authorized by the enacting of this chapter. Reports and returns shall be preserved for three years and thereafter until the commissioner of finance orders them to be destroyed.

§ 26. Section 11-538 of the administrative code of the city of New York is amended by adding a new subdivision 6 to read as follows:

6. Notwithstanding anything in subdivision one of this section to the contrary, if a taxpayer has petitioned the tax appeals tribunal for administrative review as provided in section one hundred seventy of the charter, the commissioner of finance shall be authorized to present to the tribunal any report or return of such taxpayer, or any information contained therein or relating thereto, which may be material or relevant to the proceeding before the tribunal. The tax appeals tribunal shall be authorized to publish a copy or a summary of any decision rendered pursuant to section one hundred seventy-one of the charter.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law