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(a) The tax shall be paid by the grantor to the Commissioner of Finance at the office of the Register in the county where the deed is or would be recorded within thirty days after the delivery of the deed by the grantor to the grantee but before the recording of such deed or, in the case of a tax on the transfer of a controlling economic interest in real property, within thirty days after such transfer by the grantor at Department of Finance, Operations Division, Real Property Transfer Tax Group, at the address provided on the return. In the absence of satisfactory proof as to the date of delivery of a deed, the date of the deed shall be deemed to be the date of delivery thereof. In case the tax due is not paid by the grantor, or if the grantor is exempt from tax under 19 RCNY § 23-05(a), the grantee shall also be liable for payment of the tax to the Commissioner of Finance. Payment of the tax may be made in cash, or by certified check, money order or draft drawn to the order of the Commissioner of Finance.
(b) Electronic payment. Pursuant to 19 RCNY § 17-03, the Commissioner may authorize the electronic payment of any tax required to be paid by this section.
(a) A joint return shall be filed by both the grantor and the grantee, both electronically and in paper format for each deed, instrument, or transaction, whether or not a tax is due thereon. Thus, a return must be filed although the consideration for the deed, instrument, or transaction is $25,000 or less. The actual amount of the consideration for each deed, instrument, or transaction must be set forth on the return at the place provided therefor, regardless of the amount of the consideration. Where the consideration is $400,000 or more, a copy of the contract of sale or closing statement, if any, must be attached to the paper return. A return need not be filed for the grant of a leasehold interest in a 1, 2 or 3 family house or an individual dwelling unit except where tax is owed or the lease is to be recorded. In the case of a transfer of stock in a cooperative housing corporation made before August 1, 1989, other than the initial transfer of stock by the corporation or sponsor, if the owner did not hold the shares in connection with, incidental to or in furtherance of a trade, business, profession, occupation or commercial activity, the grantor and grantee may jointly file an affidavit of non-commercial use in lieu of a return. The return must be filed with the Commissioner of Finance, both electronically and by delivering a paper form of the return with an original signature as prescribed by this chapter to the Register for transmittal to the Commissioner of Finance, except as provided in subdivision (c) of this section with respect to transfers of property in Staten Island. The return must be so filed at the time of payment of the tax, or, in the case of a deed not subject to tax, before the recording of such deed. In the case where a transfer of an economic interest in real property is not subject to tax or the tax is zero (because of available credits), the return must be filed within 30 days after such transfer. The form of return shall be prescribed by the Commissioner of Finance and shall contain such information as the Commissioner deems necessary for the proper administration of the law. The electronic return shall be submitted in the format prepared by the Department of Finance and located on the Department of Finance Internet website. A confirmation will be issued by the Commissioner of Finance upon receipt of an electronic return. The paper return must be signed under oath by both the grantor or his agent and the grantee or his agent. Upon the filing of such return in the case of a deed, evidence thereof shall be affixed to the deed by the Register to indicate that a tax return has been filed. The Commissioner of Finance may provide for the use of stamps as evidence of payment and that they shall be affixed to the deed before it is recorded. If no tax is paid at the time of the recording of the deed, the Register may indicate on the deed that no tax was paid. Where no return is filed at the time of the recording of the deed, the Register may indicate on the deed that no return was filed. Where a deed, instrument, or transaction has more than one grantor or more than one grantee, the paper return may be signed by any one of the grantors and by any one of the grantees provided, however, that those not signing shall not be relieved of any liability for the tax imposed by the law.
(b) (1) Pursuant to subdivision (g) of § 11-2105 of the Administrative Code as added by Local Law 58 of 1989, every cooperative housing corporation must file an information return with the Commissioner of Finance by July 15 of each year covering the preceding period of January 1 through June 30 and by January 15 of each year covering the preceding period of July 1 through December 31. Provided, however, that for the period from January 1 through June 30, 1989, such information return shall have been filed by July 31, 1989.
(2) The Commissioner shall prescribe such forms as are necessary for the information return. Information regarding the transfer of stock in the cooperative housing corporation required to be provided on the return shall include but not be limited to the names, addresses and employer identification numbers or social security numbers of the grantor and the grantee, the number of shares transferred, the date of the transfer and the consideration paid for such transfer.
(c) The Register shall accept a return offered for filing provided the paper return is signed under oath by the grantor or his agent or by the grantee or his agent, unless it appears that the return is insufficient on its face, as where the return shows that the amount of the consideration paid or required to be paid without deductions is less than the amount of mortgages or other liens or encumbrances. If either the grantor or grantee has failed to sign the paper return, it shall be accepted as a return, but the party who has failed to sign the paper return or to file and sign a separate paper return shall be subject to the penalties applicable to a person who has failed to file a return and the period of limitations for assessment of tax or of additional tax shall not apply to such party. The Register is also authorized to reject a return that states that there was no consideration for the deed unless there is attached to such return a statement setting forth the grounds upon which it is claimed that there was no consideration. The acceptance by the Register of a return for filing shall in no way indicate the propriety or correctness of the return. The issuance of a confirmation by the Commissioner of Finance upon receipt of an electronic return shall in no way indicate the propriety or correctness of the electronic return and is not evidence of a completed return nor evidence that the paper return has been completed, filed or received by the Department of Finance. If a return or affidavit required by the law is not filed or if a return or affidavit when filed is incorrect or insufficient on its face the Commissioner of Finance shall take the necessary steps to enforce the filing of such a return or affidavit or of a corrected return or affidavit. The Commissioner of Finance may require amended returns to be filed within twenty days after notice and to contain the information specified in the notice.
The electronic return is required to be filed electronically, and the paper return is required to be filed at the office of the Register in the county where the deed is or would be recorded, except that with respect to a transfer relating to a property in Staten Island, (i) the paper return must be filed in the office of the Richmond County Clerk, or (ii) where a return is not filed at the time of the recording of a deed, or the deed is not recorded, the paper return may instead be filed in any office of the City Register. In the case of transfers of controlling economic interests in real property or transfers of shares or interests in a corporation or other entity formed for the purpose of cooperative ownership of real property, returns or affidavits, whichever are applicable, must be filed electronically, and the paper return must be filed at the office of the City Register in the county in which the affected property is located, except that for such a transfer relating to property in Staten Island, the paper return must be filed in any office of the City Register. The locations of the Register's offices are as follows:
Manhattan | (New York County) 66 John Street, 13th Floor, New York, NY 10038 |
Bronx | Bronx Business Center 3030 Third Avenue, 2nd Floor, Bronx, NY 10455 |
Brooklyn | (Kings County) Municipal Building 210 Joralemon Street, Room 2, Brooklyn, NY 11201 |
Queens | (Queens County) 144-06 94th Street Jamaica, NY 11435 |
(d) Request for waiver of the electronic filing requirement. The Commissioner of Finance, may, for good cause and in his or her discretion, waive the requirement that the real property transfer tax return be filed electronically and permit the real property transfer tax return to be filed by means of a paper form or in such other manner as the Commissioner of Finance may designate. A request for waiver of the electronic filing requirement must be made in writing no later than ten days prior to the last day permitted by law for the filing of such return. Any return filed in paper format or by any other designated means must be filed in accordance with the provisions of these rules, with the New York City Department of Finance at such address and in the form and manner as may be designated by the Commissioner.
(e) Mailing the return. In the event that the Commissioner has waived the electronic filing requirement pursuant to 19 RCNY § 23-09(d) and will accept a real property transfer tax return filed in paper format, any return required to be filed within a prescribed period or on or before a prescribed date under authority of any provision of § 11-2105 of the Administrative Code, or any rule enacted relating to the administration of such provision, shall when mailed, be deemed delivered as provided in § 11-2116 of the Administrative Code. The receipt of the mailed return by the Department of Finance shall in no way indicate the propriety or the correctness of the return.
(Amended City Record 11/13/2017, eff. 12/13/2017)
(a) For good cause shown, the Commissioner of Finance may grant an extension of time not exceeding thirty days within which to file a return. An application for such extension must be made in writing prior to the due date of the return. Where an extension of time is granted, the taxpayer is nevertheless required to file a tentative return on or before the due date of the return. The tentative return must show the estimated tax due and such tax must be paid at the time of filing of the tentative return. A final return must be filed on or before the date of expiration of the period of time granted. The balance of the tax due plus interest thereon at the rate prescribed by the law and the regulations of the Commissioner of Finance must be paid at the time of the filing of the final return.
(b) Electronic filing of extensions. Pursuant to 19 RCNY § 17-03, the Commissioner may authorize the electronic filing of applications for extensions of time for filing or returns permitted by this section.
Every grantor and grantee is required to keep complete records of conveyances of real property or economic interests therein. Such records shall include copies of the contract of sale, the title report, if any, the paper return filed, and confirmation of electronic return filed, waiver of the electronic filing requirement pursuant to 19 RCNY § 23-09(d), if applicable, or affidavit filed, records showing the amount of liens and encumbrances on the realty at the time of delivery of the deed, the closing statement, and the general books of account of a person which would reflect the sale or purchase of real property or economic interests therein. Such records shall be made available for inspection and examination at any time upon demand by the Commissioner of Finance or his duly authorized agent or employee and shall be preserved for a period of three years, except that the Commissioner of Finance may consent to their destruction within that period or may require that they be kept longer. Evidence of payment of tax to the Commissioner of Finance such as a cancelled check, a receipt, or a receipted return, must be preserved. If no records are maintained as required by this section, or if the records which are maintained are inadequate, the Commissioner of Finance will determine the amount of the tax due from such information as may be obtainable.
Except in accordance with proper judicial order, or as otherwise provided by law, it is unlawful for the Commissioner of Finance or Register or any officer or employee of the Department of Finance or Register to divulge or make known in any manner any information contained in or relating to any return or affidavit provided for by law. The officers charged with the custody of such returns or affidavits 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 Commissioner of Finance in an action or proceeding under the provisions of the law, or on behalf of any party to an action or proceeding, in either of which events the court may require the production of, and may admit in evidence, so much of said returns or affidavits or of the facts shown thereby, as are pertinent to the action or proceeding and no more. A certified copy of any return or affidavit or of any information contained in or relating thereto may be furnished to the United States of America or any department thereof, the State of New York or any department thereof, the City of New York or any department thereof provided the same is requested for official business. Returns or affidavits may be inspected for official business by the Register, the Corporation Counsel or other legal representative of the City or by the district attorney of any county within the City. A grantor or grantee of a deed or any subsequent owner of the real property conveyed by such deed, and the grantor or grantee of an economic interest in real property, or the duly authorized representative of any of them, may obtain a certified copy of any return or affidavit filed in connection with the tax on such conveyance or transfer, upon application in writing therefor to the Commissioner of Finance. Where a representative applies for a certified copy of such returns or affidavits, he must file a power of attorney with the application. Nothing herein shall be construed to prohibit the publication of statistics so classified as to prevent the identification of particular returns or items thereof.
(a) Interest on underpayments. If any amount of tax is not paid on or before the last date 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 over 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 of the amount of such tax for each month or fraction thereof during which such failure continues, not exceeding twenty-five percent 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 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) In the case of the failure of a cooperative housing corporation to file an information return on or before the date prescribed for filing by subdivision (g) of § 11-2105 of the Administrative Code and 19 RCNY § 23-09(b) (determined with regard to any extension of time for filing), unless it is shown that such failure was due to reasonable cause and not due to willful neglect, there shall be imposed on such cooperative housing corporation a penalty of $100 for each such failure.
(iv) For purposes of subparagraphs (i) and (ii), the amount of 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 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 of the amount of such tax for each month or fraction thereof during which such failure continues, not exceeding twenty-five percent 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 upon 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 § 23-16), within ten 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 of such tax for each month or fraction thereof during which such failure continues, not exceeding twenty-five percent 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) 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 tax will be four and one-half percent under paragraph (1) and one-half of one percent under paragraph (2) for each month up to and including the first five months. After the first five months, the addition of one-half of one percent per month pursuant to paragraph (2) will apply for the next forty-five months for a maximum aggregate of forty-seven and one-half percent 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).
(B) If paragraphs (1) and (3) of this subdivision are both applicable, 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 days of such notice and demand.
(ii) The provisions of subparagraph (i) may be illustrated by the following examples:
Example A(a): Assume the grantor filed the tax return in connection with a transfer occurring on June 30, 1983 (due within 30 days after delivery of the deed by the grantor to the grantee but before the recording of such deed) on November 10, 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 as due on the return of $800 is paid on December 6, 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 July 30 to November 30, and 0.5% for the fractional part of the month from December 1 through December 6) of the amount shown due on the return of $800. There will also be imposed an additional amount under paragraph (1) of $138, determined as follows:
20 percent (5% per month for the 3 months from July 30 through October 30 and 5% for the fractional part of the month from November 1 through November 10) 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 |
Example A(b): A notice and demand for the $200 deficiency is issued on January 8, 1984, but the grantor or grantee does not pay the deficiency until December 23, 1984. In addition to interest there will be imposed an additional amount under paragraph (3) of $10.00, 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 |
Example B: Grantor or grantee files the tax return in connection with a transfer occurring on September 30, 1983, upon recordation on May 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 May 2, 1984. In addition to interest and the addition for failure to pay under paragraph (2) of $20.00 (8 months at .05% 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 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% for the 5 months October 30 through March 30 of the net amount due ($500) | $12.50 |
Addition to tax under paragraph (1) | $112.50 |
(5) Reasonable cause as used in paragraphs (1), (2) and (3) must be affirmatively shown in a written statement. Grounds for reasonable cause, where clearly established, may include the following:
(i) inability to obtain and assemble essential information required for the preparation of a complete return despite reasonable efforts;
(ii) 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. 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 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 19 RCNY § 23-13 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 an 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 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 19 RCNY § 23-13 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 penalty due to willful neglect for failure to file a return, five percent penalty due to negligence and the additional one-half of one percent 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 affidavit, or to supply any information, within the required time, with fraudulent intent, shall be liable for a penalty of not more than $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.
(c) (1) The interest and penalties provided for in subdivisions (a) and (b) shall be paid and may be enforced in the same manner as taxes.
(2) Whenever a penalty is assessed for failure to file the return or affidavit or 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.
(d) Criminal penalties.
(1) Failure to obey 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, affidavit or report to pay the tax. Any person required to pay any tax or make any return, affidavit 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) Failure to keep records. Any person who willfully fails to keep or retain any records required to be kept or retained by the law shall be guilty of a misdemeanor.
(5) Any person willfully simulating, altering, defacing, destroying or removing any evidence of the filing of a return or the payment of the tax shall be guilty of a misdemeanor.
(e) Commissioner's certificate. The certificate of the Commissioner of Finance to the effect that a tax has not been paid, that a return has not been filed, or that information has not been supplied pursuant to the provisions of the law shall be prima facie evidence thereof.
The Commissioner of Finance will refund or credit, without interest, any tax, penalty, or interest erroneously, illegally or unconstitutionally collected or paid if application to the Commissioner of Finance for such refund shall be made within one year from the payment thereof.
(a) Persons who may apply. An application for refund or credit may be made by any one of the following persons, as the case may be:
(1) The grantor, if he has paid the tax to the Commissioner of Finance;
(2) The grantee, if he has paid the tax to the Commissioner of Finance;
(3) Any other person who has actually paid the tax to the Commissioner of Finance.
(b) Application and requirements. No special form of application for the filing of a claim for refund or credit has been prescribed by the Commissioner of Finance. However, an application for refund or credit must be in writing and signed by the applicant or his duly authorized agent. If the application is signed by an agent, it must be accompanied by a power of attorney from his principal in a form acceptable to the Commissioner of Finance.
(1) The application must set forth the ground upon which the claim for refund or credit is made.
(2) 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:
(i) A cancelled check or other evidence of payment of the tax by the applicant to the Commissioner of Finance;
(ii) Such other additional information as the Commissioner of Finance may require. The Commissioner of Finance may require general releases to the City from both the grantor and the grantee before authorizing a refund or granting a credit. Where the 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, in lieu of any refund required to be made, may allow credit therefor on payments due from the applicant. The Commissioner of Finance reserves the right to audit the taxpayer's books and records prior to the granting of 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 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'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 four months 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 under the law of a tax, interest or penalty which had been determined to be due pursuant to the provisions of the law where he has had a hearing or an opportunity for a hearing, as provided in said law, or has failed to avail himself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination by the Commissioner of Finance made pursuant to the law unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper, by the Commissioner of Finance after hearing or on his own motion, or in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said law, in which event refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.
Whenever any grantor or grantee shall fail to pay any tax or penalty imposed by the law, the Corporation Counsel shall, upon the request of the Commissioner of Finance, bring or cause to be brought an action to enforce payment of the same against the person liable for 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 grantor or grantee subject to the provisions of the law is about to cease business, leave the State or remove or dissipate the assets of which tax or penalties might be satisfied and that any such tax or penalty will not be paid when due, he may declare such tax or penalty 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 grantor, grantee 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 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 in 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 Department of Finance, 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 had recovered judgment therefore and execution thereon had been returned unsatisfied.
If a return or affidavit required by the law is not filed, or if a return or affidavit 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, including the assessed valuation of the real property or interest therein and/or 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 giving of notice of such determination, shall apply 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 proceeding under Article 78 of the Civil Practice Law and Rules if application therefor is made to the Supreme Court within four months 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 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 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.
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