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The Commissioner of Finance shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid, provided:
(a) A written application for refund or credit was made to the Commissioner of Finance within one year from the payment thereof, and
(b) The application is made by the occupant, operator or other person who actually paid the tax, or
(c) The application is made by an operator who collected and paid over such tax to the Commissioner of Finance; however, no refund shall be made until the operator shall first establish to the satisfaction of the Commissioner of Finance that he repaid the occupant the amount for which the application is made. In such case, the period within which application for refund may be made begins when the payment is made by the occupant to the operator. No specific form has been prescribed for refund applications. An application for refund, however, shall be in writing and shall comply with the following requirements:
(d) It must be signed by the applicant or his duly authorized agent. If signed by an agent, the application must be accompanied by a power of attorney acceptable to the Commissioner of Finance.
(e) It must demonstrate that the refund provisions of the law have been complied with.
(f) It must be accompanied by the cancelled check or a photostatic copy thereof, showing both the front and back of the check; or, if paid by cash or money order, by evidence of such payment. Whenever a taxpayer files a claim for refund, such application shall constitute an application for revision of the tax, penalty or interest complained of. The Commissioner of Finance may audit the taxpayer's books and records or may grant the refund subject to future audit. The Commissioner of Finance may determine without resorting to an audit that, based upon the evidence presented, the claim is without merit and, therefore, deny it. The Commissioner of Finance will notify the taxpayer in writing of his determination. Such determination shall become final and irrevocable unless the person to whom it is addressed shall, within 30 days after the date thereof, apply to the Commissioner of Finance for a hearing. A taxpayer shall not be entitled to a refund or credit if he has had a hearing or an opportunity for a hearing in connection with a deficiency assessment as provided by law and by 19 RCNY § 12-15, or has failed to avail himself of the remedies provided thereby, if such refund or credit application is for taxes included in the same period covered by such deficiency assessment.
Every operator is required to keep records of room rentals and of the tax payable thereon. In addition to the general books of account, such records shall also include guests' registration records, rental contracts and leases, banquet records wherever applicable and such other records as will enable the Commissioner of Finance to determine the room rentals and the proportionate part of receipts from sale of food and/or drink which under these regulations constitutes rentals. In addition to the above records, operators must also retain all exemption certificates filed by exempt organizations and by the Federal government, or by the State or City of New York, or by an agency of such governments, and records of all other rentals which are not subject to tax. Exemption certificates from occupants who are not entitled to exemption should not be accepted, and the Commissioner of Finance will reject any exemption certificate obtained from an occupant who is not entitled to exemption. The records hereinabove prescribed are in addition to all other records which must be retained by an operator as provided for in any other State or City tax law. Unless the operator maintains adequate records showing rentals and the tax due thereon, the Commissioner of Finance reserves the right to determine the amount of such rentals and the tax due thereon from such information as may be obtainable and, if necessary, the tax may be estimated on the basis of external indices, such as the number of rooms, location, scale of rents, comparable rents, type of accommodation and service, number of employees and/or other factors. Records of operators are to be open for inspection and examination at any time upon demand by the Commissioner of Finance or his duly authorized agent or employee and must be preserved for a period of three years unless permission in writing is obtained from the Commissioner of Finance to destroy them before the expiration of such period.
If a return required by law is not filed or if a return when filed is incorrect or insufficient, the amount of tax due shall be determined by the Commissioner of Finance from such information as may be obtainable and, if necessary, the tax may be estimated on the basis of external indices, such as number of rooms, location, scale of rents, comparable rents, type of accommodations and service, number of employees and/or other factors. Notice of such determination shall be given to the person liable for the collection and/or payment of the tax. Such determination shall finally and irrevocable fix the tax unless the person against whom it is assessed, within 30 days after giving of notice of such determination, shall apply to the Commissioner of Finance for a hearing, or unless the Commissioner of Finance of his own motion shall re-determine 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 the Civil Practice Law and Rules if application therefor is made to the Supreme Court within 30 days after the giving of the notice of such determination. A proceeding under Article 78 of the 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 an 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 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 application shall net be required to deposit such taxes, penalties and interest as a condition precedent to the application.
Whenever any operator or any officer of a corporate operator or any occupant or other person shall fail to collect and pay over any tax and/or to pay any tax, penalty or interest imposed by this title, the Corporation Counsel shall, upon the request of the Commissioner of Finance bring or cause to be brought an action to enforce the payment of the same on behalf of the city of New York in any court of the State of New York or of any other state or of the United States. If, however, the Commissioner of Finance, in his discretion, believes that any such operator, officer, occupant or other person is about to cease business, leave the state or remove or dissipate the assets out of which the tax, penalties or interest might be satisfied, and that any such tax, penalty or interest will not be paid when due, he may declare such tax, penalty or interest to be immediately due and payable and may issue a warrant immediately. As an additional or alternate remedy, the Commissioner of Finance may issue a warrant, directed to the City Sheriff commanding him to levy upon and sell the real and personal property of the operator or officer of a corporate operator or of the occupant or other person liable for the tax, which may be found within the City, for the payment of the amount thereof, with any penalties and interest, and the cost of executing the warrant, and to return such warrant to the Commissioner of Finance and to pay to him the money collected by virtue thereof within sixty days after the receipt of such warrant. The City Sheriff shall within five days after the receipt of the warrant file with the County Clerk a copy thereof; and thereupon such clerk shall enter the judgment docket the name of the person mentioned in the warrant and the amount of the tax, penalties and interest for which the warrant is issued and the date when such copy is filed. Thereupon the amount of such warrant so docketed shall become a lien upon the title to and interest in real and personal property of the person against whom the warrant is issued. The City Sheriff shall then proceed upon the warrant, in the same manner, and with like effect, as that provided by law in respect to executions issued against property upon judgments of a court of record, and for services in executing the warrant he shall be entitled to the same fees, which he may collect in the same manner. In the discretion of the Commissioner of Finance a warrant of like terms, force and effect may be issued and directed to any officer or employee of the Finance Department, and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs, but shall be entitled to no fee or compensation in excess of the actual expenses paid in the performance of such duty. If a warrant is returned not satisfied in full, the Commissioner of Finance may from time to time issue new warrants and shall also have the same remedies to enforce the amount due thereunder as if the City has recovered judgment therefor and execution thereon had been returned unsatisfied.
(a) Any notice authorized or required under the provisions of this law may be given by mailing the same to the person for whom it is intended in a postpaid envelope addressed to such person at the address given in the last return filed by him pursuant to the provisions of this law or in any application made by him, or if no return has been filed or application made, then to such address as may be obtainable. The mailing of such notice shall be presumptive evidence of the receipt of the same by the person to whom addressed. Any period of time which is determined according to the provisions of this law by the giving of notice shall commence to run from the date of mailing of such notice.
(b) The provisions of the Civil Practice Law and Rules or any other law relative to limitations of time for the enforcement of a civil remedy shall not apply to any proceeding or action taken by the City to levy, appraise, assess, determine or enforce the collection of any tax, penalty or interest provided by the law. However, except in the case of a willfully false or fraudulent return with intent to evade the tax, no assessment of additional tax shall be made after the expiration of more than three years from the date of the filing of the return; provided, however, that where no return has been filed as provided by law, the tax may be assessed at any time.
(c) Where, before the expiration of the period prescribed herein for the assessment of an additional tax, a taxpayer has consented in writing that such period be extended, the amount of such additional tax due may be determined at any time within such extended period. The period so extended may be further extended by subsequent consents in writing made before the expiration of the extended period.
Whenever reference is made in placards or advertisements or in any other publication to the tax, such reference shall be substantially in the following form: "city tax on occupancy of hotel rooms," except that in any bill, receipt, statement or other evidence or memorandum of occupancy or rent charge issued or employed by the operator the words "city tax" will suffice.
Whenever an operator shall make a sale, transfer, or assignment in bulk of any part or the whole of his hotel premises or his lease, license or other agreement or right to possess or operate such hotel, or of the equipment, furnishings, fixtures, supplies or stock of merchandise, or the said premises or lease, license or other agreement or right to possess or operate such hotel and the equipment, furnishings, fixtures, supplies and stock of merchandise pertaining to the conduct or operation of said hotel otherwise than in the ordinary and regular prosecution of business, the purchaser, transferee or assignee shall at least ten days before taking possession of the subject of the sale, transfer or assignment, 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 he owes any tax pursuant to 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 assigner 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.