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Whenever any tax stamp or other indicia of payment that has been issued is lost, mutilated or destroyed, the Commissioner of Finance will issue a duplicate tax stamp or other indicia of payment to the holder of the lost, mutilated or destroyed tax stamp or other indicia of payment upon the payment of a fee of $5.00.
If a return required by the law is not filed, or if a return when filed is incorrect or insufficient, the Commissioner of Finance will determine the amount of tax due from such records or information as may be obtainable and, if necessary, may estimate the tax on the basis of external indices such as motor vehicle registration with the Bureau of Motor Vehicles and/or any other factors. Notice of such determination will be given to the person liable for the payment of the tax. Such determination shall finally and irrevocably fix the tax unless the person against whom it is assessed, within thirty days after the giving of notice of such determination, shall apply in writing to the Commissioner of Finance for a hearing, or unless the Commissioner of Finance, on his own motion shall redetermine the same. After such hearing the Commissioner of Finance shall give notice of his determination to the person against whom the tax is assessed. The determination of the Commissioner of Finance shall be reviewable for error, illegality or unconstitutionality or any other reason whatsoever by a proceeding under Article 78 of Civil Practice Law and Rules if application therefor is made to the Supreme Court within thirty days after the giving of the notice of such determination. A proceeding under Article 78 of Civil Practice Law and Rules shall not be instituted unless;
(a) the amount of any tax sought to be reviewed, with penalties and interest thereon, if any, shall be first deposited with the Commissioner of Finance and there shall be filed with the Commissioner of Finance undertaking, issued by a surety company authorized to transact business in this state and approved by the Superintendent of Insurance of this state as to solvency and responsibility, 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 tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of the proceeding; or
(b) at the option of the applicant such undertaking filed with the Commissioner of Finance may be in a sum sufficient to cover the taxes, penalties and interest thereon stated in such determination plus the costs and charges which may accrue against it in the prosecution of the proceeding, in which event the applicant shall not be required to deposit such taxes, penalties and interest as a condition precedent to the application.
The Commissioner of Finance shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid, if written application to the Commissioner of Finance for such refund shall be made within one year from the payment thereof. No refund will be granted merely because a motor vehicle with respect to which the tax has been paid is sold or otherwise disposed of during the course of the tax year. An application for refund or credit may be made by the owner of a motor vehicle or any other person who paid the tax to the Commissioner of Finance. The application must set forth the grounds upon which the claim for refund or credit is made and the application must show on its face that it has been filed with the Commissioner of Finance within one year from the date of payment of the tax. The application must be accompanied by a cancelled check or other evidence of payment of the tax, and such other additional information as the Commissioner of Finance may require. Whenever the Commissioner of Finance approves a refund or credit he may require a general release to the city before making such refund or granting such credit. Where payment of the tax is made by check and the check cannot be presented as evidence of payment, a photostatic copy thereof, showing both the front and back of the check, will be accepted in lieu thereof. The Commissioner of Finance may, in lieu of any refund required to be made, allow credit therefor on payments due from the applicant. The Commissioner of Finance reserves the fight to audit the taxpayer's books and records prior to making any refund or he may grant the refund or credit subject to audit. The granting of a refund or credit before audit is without prejudice to the right of the Commissioner of Finance to determine after audit the applicant's right to the refund or credit and his liability for tax. The Commissioner of Finance will deny any application for refund or credit where he determines that the statutory requirements have not been met or that the grounds set forth in the application are without merit. An application for refund or credit shall be deemed an application for a revision of any tax, penalty or interest complained of, and the Commissioner of Finance may receive evidence with respect thereto. The Commissioner of Finance will make his determination and give notice thereof to the applicant. The Commissioner of Finance's determination may be reviewed by a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided such proceeding is instituted within thirty days after the giving of notice of such determination and provided that a final determination of tax due was not previously made. Such proceeding shall not be instituted unless an undertaking is filed with the Commissioner of Finance for such amount and with such sureties as a Justice of the Supreme Court shall approve, to the effect that if such proceeding is dismissed or the tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of the proceeding. A person shall not be entitled to a revision, refund or credit of a tax, interest or penalty covered by a determination of tax for which he has had a hearing or an opportunity for a hearing as provided by law or has failed to avail himself of the remedies therein provided.
The remedies provided by the law shall be the exclusive remedies available to any person for the review of tax liability imposed by the law; and no determination or proposed determination of tax or determination on any application for refund shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by an action or proceeding other than a proceeding under Article 78 of the Civil Practice Law and Rules; provided, however, that a taxpayer may proceed by declaratory judgment if he institutes suit within thirty days after a deficiency assessment is made and pays the amount of the deficiency assessment to the Treasurer prior to the institution of such suit and posts a bond for costs as set forth in those regulations.
Whenever there is made a sale, transfer or assignment in bulk or any part or the whole of a stock of merchandise or of fixtures, or merchandise and of fixtures pertaining to the conducting of the business of the seller, transferrer or assignor, otherwise than in the ordinary course of trade and in the regular prosecution of said business, the purchaser, transferee or assignee shall at least ten days before taking possession of such merchandise, fixtures, or merchandise and fixtures, or paying therefor, notify the Commissioner of Finance by registered mail of the proposed sale and of the price, terms and conditions thereof whether or not the seller, transferrer or assignor, has represented to, or informed the purchaser, transferee or assignee that it owes any tax pursuant to the law and whether or not the purchaser, transferee or assignee has knowledge that such taxes are owing, and whether any such taxes are in fact owing. Whenever the purchaser, transferee or assignee shall fail to give notice to the Commissioner of Finance as required by the preceding paragraph, or whenever the Commissioner of Finance shall inform the purchaser, transferee or assignee that a possible claim for such tax or taxes exists, any sums of money, property or choses in action, or other consideration, which the purchaser, transferee or assignee is required to transfer over to the seller, transferrer or assignor shall be subject to a first priority right and lien for any such taxes theretofore or thereafter determined to be due from the seller, transferrer or assignor to the city, and the purchaser, transferee or assignee is forbidden to transfer to the seller, transferrer or assignor any such sums of money, property or choses in action to the extent of the amount of the city's claim. For failure to comply with the provisions of this section, the purchaser, transferee or assignee, in addition to being subject to the liabilities and remedies imposed under the provisions of Article 6 of the Uniform Commercial Code, shall be personally liable for the payment to the city of any such taxes theretofore or thereafter determined to be due to the city from the seller, transferrer or assignor, and such liability may be assessed and enforced in the same manner as the liability for tax under the law.
In addition to all other powers granted to the Commissioner of Finance under the law, he is authorized and empowered:
(a) To make, adopt and amend rules and regulations appropriate to the carrying out of the law and the purposes thereof;
(b) To extend, for cause shown, the time for filing any return for a period not exceeding sixty days; and to compromise disputed claims in connection with the taxes thereby imposed;
(c) To request information concerning motor vehicles and persons subject to the provisions of the law from the Bureau of Motor Vehicles and from the Department of Taxation and Finance of the State of New York or any successor to their duties, or the Treasury Department of the United States relative to any person; and to afford information to such Bureau of Motor Vehicles, Department of Taxation and Finance or any successor to their duties, or to such Treasury Department relative to any person, any other provision of the law to the contrary notwithstanding;
(d) To delegate his functions thereunder to a Deputy Commissioner of Finance or other employee or employees of his department;
(e) To assess, reassess, determine, revise and readjust the tax imposed under the law;
(f) To provide methods for identifying motor vehicles not subject to or exempt from the tax imposed under the law;
(g) To provide that a certificate of registration need not be filed with respect to any or all types of motor vehicles, or to provide that such certificate of registration with respect to any or all types of motor vehicles shall be contained on or combined with any return or supplemental return required to be filed under the law.
(a) Interest on underpayments. If any amount of tax is not paid on or before the last day prescribed for payment (without regard to any extension of time granted for payment), interest on such amount at the rate prescribed by the law and the regulations of the Commissioner of Finance shall be paid for the period from such last date to the date of payment. In computing the amount of interest to be paid with respect to taxes which remain or become due on or after July 16, 1985, such interest shall be compounded daily. No interest shall be paid if the amount thereof is less than one dollar.
(b) Civil penalties. Any person failing to file a return or to pay any tax due prior to February 24, 1983 within the time required by law shall be subject to a penalty of five percent of the amount due. If the Commissioner of Finance is satisfied that the delay was excusable he may remit all or any part of such penalty. With respect to returns or payments which become due on or after February 24, 1983, the following penalties apply:
(1) Failure to file return.
(i) In case of failure to file a return on or before the prescribed date (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause (see paragraph (5) of this subdivision) and not due to willful neglect, there is to be added to the amount required to be shown as tax on such return five percent (5%) of the amount of such tax for each month or fraction thereof during which such failure continues, not exceeding twenty-five percent (25%) in the aggregate.
(ii) With respect to returns required to be filed on or after July 16, 1985, in the case of a failure to file a tax return within 60 days of the date prescribed for filing of such return (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, the addition to tax under subparagraph (i) of this paragraph shall not be less than the lesser of one hundred dollars ($100) or one hundred percent (100%) of the amount required to be shown as tax on such return.
(iii) For purposes of subparagraphs (i) and (ii), the amount of the tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed on the return.
(2) Failure to pay tax shown on return. In case of failure to pay the amount shown as tax on a return required to be filed on or before the prescribed date (determined with regard to any extension of time for payment), unless it is shown that such failure is due to reasonable cause (see paragraph (5) of this subdivision) and not due to willful neglect, there shall be added to the amount shown as tax on such return one-half of one percent (1/2%) of the amount of such tax for each month or fraction thereof during which such failure continues, not exceeding twenty-five percent (25%) in the aggregate. For the purpose of computing the addition for any month the amount of tax shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the beginning of such month and by the amount of any credit against the tax which may be claimed on the return. If the amount of tax required to be shown on a return is less than the amount shown as tax on such return, this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of failure to pay any amount in respect of any tax required to be shown on a return required to be filed which is not so shown (including a determination made pursuant to 19 RCNY § 6-11), within ten (10) days of the date of notice and demand, unless it is shown that such failure is due to reasonable cause (see paragraph (5) of this subdivision) and not due to willful neglect, there shall be added to the amount of tax stated in such notice and demand one-half of one percent (1/2%) of such tax for each month or fraction thereof during which such failure continues, not exceeding twenty-five percent (25%) in the aggregate. For the purpose of computing the addition for any month, the amount of tax stated in the notice and demand shall be reduced by the amount of any part of the tax which is paid before the beginning of such month.
(4) Limitations on additions.
(i) With respect to any return the amount of the addition to tax is limited to the following:
(A) At no time will the addition for one (1) month be more than five percent (5%).
(B) If paragraphs (1) and (2) of this subdivision are both applicable, the addition under paragraph (1) is reduced by the addition under paragraph (2). Thus, the addition to the charge will be four and one-half percent (4 1/2%) under paragraph (1) and one-half of one percent (1/2%) under paragraph (2) for each month up to and including the first five (5) months. After the first five (5) months, the addition of one-half of one percent (1/2%) per month pursuant to paragraph (2) will apply for the next forty-five (45) months for a maximum aggregate of forty-seven and one-half percent (47 1/2%) addition to tax. However, in any case described in subparagraph (ii) of paragraph (1) of this subdivision (relating to returns filed after 60 days of the due date) the amount of the addition to tax under such paragraph (1) shall not be reduced below the amount provided in such subparagraph (i.e., the lesser of $100 or 100% of tax due).
(C) If paragraphs (1) and (3) of this subdivision are both applicable, the maximum amount of the addition to tax may not exceed twenty-five percent (25%) in the aggregate. The maximum amount of the addition to tax pursuant to paragraph (3) of this subdivision shall be reduced by the amount of the addition to tax pursuant to paragraph (1) of this subdivision (determined without regard to subparagraph (ii) of such paragraph (1)) which is attributable to the tax for which the notice and demand is made and which is not paid within ten (10) days of such notice and demand.
(ii) The provisions of this paragraph may be illustrated by the following examples:
(A) (a) Assume the taxpayer filed his tax return for the year June 1, 1983 to May 31, 1984 (due June 20, 1983) on September 25, 1983, and the failure to file on or before the prescribed date is not due to reasonable cause. The tax shown on the return is $800 and a deficiency of $200 is subsequently assessed, making the tax required to be shown on the return $1,000. The amount shown due on the return of $800 is paid on October 26, 1983. The failure to pay on or before the prescribed date is not due to reasonable cause. There will be imposed, in addition to interest, an additional amount under paragraph (2), of $20.00, which is 2.5 percent (2% for the 4 months from June 21 through October 20, and 0.5% for the fractional part of the month from October 21 through October 26) of the amount shown due on the return of $800. There will also be imposed an additional amount under paragraph (1) of $184, determined as follows:
20 percent (5% per month for 3 months from June 21 through September 20 and 5% for the fractional part of the month from September 20 through September 30) of the amount due of $1,000 required to be shown on the return | $200 |
Reduced by the amount of the addition imposed under paragraph (2) for those months | $16 |
Addition to tax under paragraph (1) | $184 |
(b) A notice and demand for the $200 deficiency is issued on January 8, 1984, but the taxpayer does not pay the deficiency until December 23, 1984. In addition to interest there will be imposed an additional amount under paragraph (3) of $10, determined as follows:
Addition computed without regard to limitation: 6 percent (5 1/2% for the 11 months from January 19, 1984 through December 18, 1984, and 0.5% for the fractional part of the month from December 19 through December 23) of the amount stated in the notice and demand ($200) | $12 |
Limitation on addition: 25 percent of the amount stated in the notice and demand ($200) | $50 |
Reduced by the part of the addition under paragraph (1) for failure to file attributable to the $200 deficiency (20% of $200) | $40 |
Maximum amount of the addition under paragraph (3) | $10 |
(B) A taxpayer files his tax return for the year June 1, 1983 to May 31, 1984 on February 2, 1984, and such delinquency is not due to reasonable cause. The balance due, as shown on the return, of $500 is paid when the return is filed on February 2, 1984. In addition to interest and the addition for failure to pay under paragraph (2) of $20 (8 months at 0.5% per month, or 4%), there will also be imposed an additional amount under paragraph (1) of $112.50, determined as follows:
Penalty at 5% for maximum of 5 months, or 25% of $500 | $125.00 |
Less reduction for the amount of the addition under paragraph (2): | |
Amount imposed under paragraph (2) for failure to pay for the months in which there is also an addition for failure to file – 2 1/2% of the 5 months June 21 through November 20 of the net amount due ($500) | $12.50 |
Addition to tax under paragraph (1) | $112.00 |
(5) Reasonable cause as used in paragraphs (1), (2) and (3) must be affirmatively shown in a written statement. The taxpayer's previous compliance record may be taken into account. Grounds for reasonable cause, where clearly established, may include the following:
(i) death or serious illness of the responsible officer or employee of the taxpayer, or his unavoidable absence from his usual place of business;
(ii) destruction of the taxpayer's place of business records by fire or other casualty;
(iii) inability to obtain and assemble essential information required for the preparation of a complete return despite reasonable efforts;
(iv) any other cause for delinquency which appears to a person of ordinary prudence and intelligence as a reasonable cause for delay in filing a return and which clearly indicates an absence of gross negligence or willful intent to disobey the taxing statutes. Past performance should be taken into account. Ignorance of the law, however, will not be considered reasonable cause.
(6) Underpayment due to negligence.
(i) If any part of an underpayment is due to negligence or intentional disregard of the law, or rules or regulations thereunder (but without intent to defraud), there shall be added to the tax a penalty in an amount equal to five percent (5%) of the underpayment.
(ii) With respect to taxes required to be paid on or after July 16, 1985, there shall be added to the tax (in addition to the amount determined under subparagraph (i) of this paragraph) an amount equal to fifty percent of the interest payable under this section of these regulations with respect to the portion of the underpayment described in such subparagraph (i) which is attributable to the negligence or intentional disregard referred to in such subparagraph (i), for the period beginning on the last date prescribed by law for payment of such underpayment (determined without regard to any extension) and ending on the date of the assessment of the tax (or, if earlier, the date of the payment of the tax).
(7) Underpayment due to fraud.
(i) If any part of an underpayment is due to fraud, there shall be added to the tax a penalty in an amount equal to fifty percent (50%) of the underpayment.
(ii) With respect to taxes required to be paid on or after July 16, 1985, there shall be added to the tax (in addition to the penalty determined under subparagraph (i) of this paragraph) an amount equal to fifty percent of the interest payable under this section of these regulations with respect to the portion of the underpayment described in such subparagraph (i) which is attributable to fraud, for the period beginning on the last day prescribed by law for payment of such underpayment (determined without regard to any extension) and ending on the date of the assessment of the tax (or, if earlier, the date of the payment of the tax).
(iii) The penalty under this paragraph (paragraph (7)) shall be in lieu of the maximum twenty-five percent (25%) penalty due to willful neglect for failure to file a return, five percent (5%) penalty due to negligence and the additional one-half of one percent (1/2%) per month penalty pursuant to paragraphs (2) and (3) of this subdivision.
(8) Any person who fails to pay tax, or to make, render, sign or certify any return, or to supply information within the required time, with fraudulent intent, shall be liable for a penalty of not more than one thousand dollars ($1,000), in addition to any other amounts required under the law to be imposed, assessed and collected by the Commissioner of Finance. The Commissioner of Finance has the power, in his discretion, to waive, reduce or compromise any penalty under this paragraph.
(9) The additions to tax and penalties provided by this subdivision shall be paid and enforced in the same manner as taxes.
(10) Whenever a penalty is assessed for failure to pay the tax when due, an application for the remission thereof may be made to the Commissioner of Finance. Such application must be made by the person against whom the penalty is assessed, and must set forth the grounds upon which the remission is requested.
(c) Criminal penalties.
(1) Failure to obey a subpoena; false testimony.
(i) Any person who, being duly subpoenaed in connection with a matter arising under the law, to attend as a witness or to produce books, accounts, records, memoranda, documents or other papers,
(A) fails or refuses to attend without lawful excuse,
(B) refuses to be sworn,
(C) refuses to answer any material and proper question, or
(D) refuses, after reasonable notice, to produce books, papers and documents in his possession or under his control which constitute material and proper evidence shall be guilty of a misdemeanor.
(ii) Any person who shall testify falsely in any material matter pending before the Commissioner of Finance shall be guilty of and punishable for perjury.
(2) Willful failure to file a return or report or pay the tax. Any person required to pay any tax or make any return or report, who willfully fails to pay such tax or make such return or report, at the time or times so required, shall be guilty of a misdemeanor.
(3) Fraudulent returns, reports, statements or other documents.
(i) Any person who willfully makes and subscribes any return, report statement or other document which is required to be filed with or furnished to the Commissioner of Finance or to any person, pursuant to the provisions of the law, which he does not believe to be true and correct as to every material matter shall be guilty of a misdemeanor.
(ii) Any person who willfully delivers or discloses to the Commissioner of Finance or to any person, pursuant to the provisions of the law, any list, return, report, account, statement or other document known by him to be fraudulent or to be false as to any material matter shall be guilty of a misdemeanor.
(iii) For purposes of this paragraph, the omission by any person of any material matter with intent to deceive shall constitute the delivery or disclosure of a document known by him to be fraudulent or to be false as to any material matter.
(4) Any person who counterfeits or forges, or causes or procures to be counterfeited or forged, or aids or assists in counterfeiting or forging, by any way, act, or means, any stamp, indicia of payment or indicia that no tax is payable authorized by the law, or who knowingly acquires, possesses, disposes of or uses such a counterfeited or forged stamp, indicia of payment or indicia that no tax is payable, or who transfers a stamp, indicia of payment or indicia that no tax is payable where such a transfer is not authorized by the law shall be guilty of a misdemeanor.
(5) The owner or driver of any motor vehicle subject to the tax imposed by the law who, upon demand, shall fail to exhibit the stamp or other indicia of payment of the tax to the Commissioner of Finance, his duly authorized agent or employee, or any police officer of this city or state, as required by § 11-809(a) of the Administrative Code, shall be guilty of a misdemeanor (punishment for which shall be a fine of not more than two hundred fifty dollars, or imprisonment for not more than thirty days, or both such fine and imprisonment.)
(6) Any person failing to file a certificate of registration or information registration certificate as required by the law shall be guilty of a misdemeanor.
(d) The Commissioner's certificate. The certificate of the Commissioner of Finance to the effect that a tax has not been paid, that a motor vehicle has not been registered, that a return has not been filed, or that information has not been supplied pursuant to the provisions of the law, shall be presumptive evidence thereof.
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