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(a) Monetary penalties.
(1) Owners of income-producing property who fail to file an income and expense statement by the first day of June, or in the event of an extension, by the extended due date, shall be subject to a penalty in accordance with the monetary penalty schedule set forth below, except as set forth in paragraph (2) of this subdivision. The final actual assessed valuation for the property promulgated in the calendar year in which the income and expense statement is required to be filed will be used to determine monetary penalties.
Final Actual Assessed Valuation | Penalty Amount |
$40,001 to $99,999 | $300 |
$100,000 to $249,999 | $750 |
$250,000 to $499,999 | $1,500 |
$500,000 to $999,999 | $3,000 |
$1,000,000 to $4,999,999 | $5,000 |
$5,000,000 to $9,999,999 | $20,000 |
$10,000,000 to $14,999,999 | $40,000 |
$15,000,000 to $24,999,999 | $60,000 |
$25,000,000 and above | $100,000 |
(2) Owners of income-producing property who fail to file an income and expense statement for three consecutive years shall be subject to a penalty of five percent of the final actual assessed value for the property promulgated in the calendar year in which such a statement was to be filed.
(3) [Reserved.]
(4) Owners of income-producing property who are required to submit a claim of exclusion but fail to do so by the first day of June, or in the event of an extension, by the extended due date, will be subject to a penalty. Such penalty will not exceed the following amounts:
(i) one hundred dollars for failure to submit a claim of exclusion in one year;
(ii) five hundred dollars for failure to submit a claim of exclusion in two consecutive years;
(iii) one thousand dollars for failure to submit a claim of exclusion in three consecutive years or more.
(5) Any penalties prescribed in subdivision (a) of 19 RCNY § 33-03 when entered in the records of the Department of Finance will be a lien on the real property as to which the statement or claim was required to be filed and will continue to be a lien until paid. The lien may be enforced by tax lien sale, in rem foreclosure, or any other means provided by law for enforcement of tax liens.
(6) If any penalty imposed under this subdivision is not paid within thirty days from the date it is entered in the records of the Department of Finance, interest will accrue on the amount of the penalty at the rate applicable to the affected real property for delinquent real property taxes, calculated from the date of entry to the date of payment.
(7) Innocent purchasers. In cases where the closing or finalizing of the sale of real property occurs after the filing deadline for income and expense statements and precedes the later of the publication of both lists described in paragraph (7) of subdivision (d) of § 11-208.1 of the Administrative Code or the first property tax bill to reflect a penalty imposed on such property for failure to file an income and expense statement or, when required, a claim of exclusion, the Commissioner may waive any such penalty and/or cancel the lien imposed as a result of such penalty, upon request of the owner of the property, provided the owner files in the electronic format prepared by the Department a properly completed innocent purchaser waiver request no later than one hundred and twenty days following the later of the publication of both lists or the first property tax bill to reflect such a penalty.
(8) The Commissioner, may for good cause, waive the requirement that the innocent purchaser waiver request form be filed electronically and permit the innocent purchaser waiver request form to be filed by means of a paper form. A request for waiver of the electronic filing requirement must be made in writing no later than ninety days following the later of the publication of both lists described in paragraph (7) of subdivision (d) of § 11-208.1 of the Administrative Code or the first property tax bill to reflect such a penalty. Any filing in paper format must be filed with the New York City Department of Finance at such address as may be designated by the Department.
(b) Denial of tax commission hearing. The Department of Finance shall provide to the Tax Commission a list of the income-producing properties whose owners failed to file an income and expense statement for use by the Tax Commission in determining if a hearing on any objection to the assessment of property shall be denied by the Tax Commission, pursuant to § 11-208.1, subdivision d, paragraph (2) of the Administrative Code.
(c) Subpoena of income and expense data. In the event that an income and expense statement has not been timely filed pursuant to 19 RCNY § 33-02, the Commissioner of Finance may compel by subpoena the production of the books and records of the owner relevant to the income and expenses of the property, and may make an application to any court of competent jurisdiction for an order compelling the owner to furnish the required income and expense statement.
(Added City Record 6/12/2019, eff. 7/12/2019)
(a) General provisions.
(1) Notice of failure to file timely statements and opportunity to cure.
(i) Owners of income-producing property who fail to file a timely income and expense statement or, where required, a claim of exclusion, in compliance with § 11-208.1 of the Administrative Code and these rules will be notified of such failure to comply and of the opportunity for a hearing prior to the imposition of the penalties contained in 19 RCNY § 33-03.
(ii) Except as provided in subparagraph (iii) of this paragraph, the notice will also provide that such owners may avoid penalties for failure to file by filing a properly completed income and expense statement or, where required, a claim of exclusion, no later than thirty days following the date of the notice.
(iii) Notwithstanding any other provision of these rules, or any other determination by the Department of Finance of failure to file, if the Department of Finance determines by audit that an owner failed to file a substantially complete and accurate income and expense statement, the provisions of subparagraph (ii) of this paragraph do not apply with respect to the audit determination and, therefore, the owner may not avoid penalties for failure to file with respect to the audit determination by filing a properly completed income and expense statement.
(2) Opportunity for hearings. Owners of income-producing property who were served with a notice pursuant to this subdivision shall have thirty days from the date of such notice to request a hearing before the Department of Finance by filing a petition for hearing on the form provided by the Department. Failure to file a petition for a hearing within thirty days of the date of such notice shall result in the imposition of such penalty or penalties as the Commissioner of Finance deems appropriate and as provided for in these rules.
(3) Where to file petitions. Petitions shall be filed in person or by mail with the New York City Department of Finance at such address as may be designated by the Department.
(4) Eligible petitioners. A petition may be filed only by an owner or by a duly authorized representative of the owner.
(5) Designation of hearing officer. The Commissioner of Finance shall designate persons to serve as hearing officers to hear petitions filed pursuant to these rules. Such persons need not be employees of the Department of Finance.
(6) Representation of petitioners.
(i) An individual owner may file a petition on his or her own behalf and may present his or her own case at the hearing. A partnership may file a petition on its own behalf and may present its own case through a general partner without filing a power of attorney. A corporation may file a petition on its own behalf and may present its own case at the hearing through an officer or an employee for whom a duly authorized power of attorney is submitted.
(ii) Attorney or agent with power of attorney. A petitioner may appear by an attorney or agent in a proceeding under these rules if such attorney or agent appears with the petitioner or files a power of attorney in proper form authorizing the attorney or agent to represent the petitioner.
(iii) In any case in which a power of attorney has been filed and thereafter the petitioner desires to authorize an additional or a new attorney or agent, a new power of attorney must be filed revoking any and all powers of attorney previously filed with respect to the same proceeding. The revocation of the authority of the former attorney or agent shall not be effective so far as the Commissioner of Finance is concerned until the petitioner gives notice to that effect to the Commissioner.
(iv) The power of attorney shall be filed with the hearing officer, unless one was filed with the petition.
(7) Matters reviewable. The purpose of the hearing is to determine whether:
(i) an income and expense statement or, where required, a claim of exclusion, was not filed, and if it was not filed, what penalties, if any, should be imposed;
(ii) an income and expense statement or, where required, a claim of exclusion, was not timely filed, and if it was not timely filed, what penalties, if any, should be imposed; and/or
(iii) a defective income and expense statement was filed, and if so, what penalties, if any, should be imposed;
(8) Consolidation, joinder, severance.
(i) Any party may request the consolidation of hearings relating to the same owner or parcel.
(ii) Any party may request the severance of a case relating to another parcel when such parcel is not owned or controlled by the same owner or identical issues of fact or law are not involved.
(iii) Consolidation, joinder or severance of any case or issue shall be permitted at the discretion of the hearing officer, subject to the provisions of 19 RCNY § 33-06.
(9) All final decisions rendered by the Commissioner of Finance are reviewable under article 78 of the Civil Practice Law and Rules.
(10) Ex parte communications. There shall be no ex parte communication with respect to the merits of any pending case between any party and the hearing officer.
(11) Burden of proof. The petitioner shall have the burden of establishing each fact relevant to a determination of the matters reviewable under 19 RCNY § 33-04(g).
(b) Hearings without personal appearance. A petition for a hearing without a personal appearance may be made by mail or by the Department of Finance internet website in accordance with this subdivision. In addition to the provisions of subdivision (a) of this section, the provisions of this subdivision shall apply to hearings that do not require a personal appearance.
(1) Petition for hearing by mail.
(i) A petition for a hearing by mail may be made only on a form provided by the Department of Finance, and must be made within the time prescribed for a request for a hearing pursuant to subdivision (a) of this section.
(ii) Submission of additional documents. The petitioner may submit legal memoranda, additional documents or other material with the petition in support of the petitioner's position. The Department of Finance may also submit additional material to the hearing officer to support its position within a reasonable time as determined by the hearing officer.
(2) Petition for hearing by website.
(i) A petition for a hearing by website may be made only via the Department's website in accordance with the instructions that are found on the website for making such a request.
(ii) Submission of additional documents. Except as otherwise provided in paragraph (3) of this subdivision, no documents other than the electronically filed petition may be submitted by the petitioner. The Department of Finance may submit additional material to the hearing officer to support its position within a reasonable time as determined by the hearing officer.
(3) Request for additional documentation. Notwithstanding any other provision of this subdivision, the hearing officer may request additional memoranda or evidence from the parties where the hearing officer deems the submissions insufficient for a decision to be rendered.
(4) At any time after approval of a request for a hearing by mail or website, the Commissioner of Finance may by subpoena require the production of books, papers and documents required to be kept by statute or rule.
(5) The Commissioner of Finance shall issue a final determination based on the submissions that contains findings of fact, conclusions of law, and the dollar amount of the penalty imposed, if any. A copy of the determination shall be mailed to the petitioner and to the petitioner's representative.
(c) Hearing in person. In addition to the provisions of subdivision (a) of this section, the following provisions shall apply to hearings at which the parties shall appear.
(1) Subpoena.
(i) At any time during a proceeding, the Commissioner of Finance may by subpoena require the attendance of witnesses and the production of books, papers and documents required to be kept by statute or rule.
(ii) Upon request of a party not represented by an attorney, the Commissioner of Finance may issue subpoenas to require the attendance of witnesses at a hearing or to require the production of documentary evidence. Such request shall be made to the hearing officer by submitting a proposed subpoena. If the request is approved, service of the subpoena shall be the responsibility of the requesting party. An attorney may subpoena a witness or the production of documents as provided by article 23 of the Civil Practice Law and Rules.
(2) Hearing officer.
(i) The hearing shall be conducted by a hearing officer, who shall be authorized to:
(A) administer oaths and affirmations;
(B) regulate the course of the hearing, set the time and place for continuing the hearing, and fix the time for filing of legal briefs, memoranda and other documents;
(C) rule upon offers of proof and receive relevant evidence;
(D) require the parties at any time during the hearing to state their respective positions in support of any issues under consideration in the case;
(E) question any party or witness for the purpose of clarifying the record;
(F) take any other action for a speedy and expeditious hearing.
(3) Hearing schedule.
(i) The hearing shall be scheduled as soon as is practicable. The parties shall be given notice of the hearing date no fewer than twenty days prior to such date. The notice shall include the time, place and nature of the hearing.
(ii) No request for postponement of the hearing date will be considered unless a written application setting forth good cause for the postponement is received by the hearing officer within ten calendar days after mailing of the hearing notice. In the event of an emergency, however, a postponement may be considered on less notice than provided herein. A postponement may be granted only in writing by the hearing officer.
(4) Evidence.
(i) At the hearing, the parties shall have the right to call and examine witnesses, to introduce exhibits, and to cross-examine opposing witnesses.
(ii) No decision or determination shall be made except upon consideration of the record as a whole and as supported by the evidence. In the discretion of the hearing officer, technical rules of evidence need not be applied. However, effect shall be given to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record.
(5) Failure to appear. A default shall be entered upon the failure of the petitioner to appear at a hearing or at any adjourned date thereof, provided the petitioner has been given notice of the hearing date, and no written postponement has been granted pursuant to 19 RCNY § 33-04(c)(3). In the event of a default, the hearing shall be concluded and a final determination shall be issued pursuant to 19 RCNY § 33-04(c)(7) based on the record, if any, previously made.
(6) Hearing record. Hearings shall be transcribed verbatim or recorded by electronic recording devices. A copy of the transcript or electronic recording may be purchased at such rates as may be fixed by the Commissioner of Finance. If any party deems the hearing record to be inaccurate in any material respect, that party shall promptly notify the other parties and the hearing officer not later than five calendar days from receipt of the hearing record, specifying the portions of the record believed to be inaccurate.
(7) Final determination. Upon completion of the hearing, the Commissioner of Finance shall issue a final determination containing findings of fact, conclusions of law, and the dollar amount of the penalty imposed, if any. A copy of the determination shall be mailed to the petitioner and to the petitioner's representative.
(a) Date of filing. Any form or document that is permitted under these rules to be filed in paper format and which is required to be filed within a prescribed period or on or before a prescribed date under authority of any provision of § 11-208.1 of the Administrative Code, or any regulation enacted relating to the administration of such provision, that is mailed, shall be deemed delivered as of the date of the United States Postal Service postmark stamped on the envelope.
(b) Filing by paper form; mailing requirements.
(1) Any form or document that is permitted under these rules to be filed in paper format that is mailed will not be considered to be timely filed unless the document is mailed in accordance with the following requirements:
(i) The document must be contained in an envelope or other appropriate wrapper and properly addressed to the Commissioner of Finance, bureau, office, officer or person with which or with whom the document is required to be filed.
(ii) The envelope containing the document must be deposited in the mail of the United States within the prescribed period or on or before the prescribed date with sufficient postage prepaid. For this purpose, such document is considered to be deposited in the mail of the United States when it is deposited with the domestic mail service of the United States Postal Service. The domestic mail service of the United States Postal Service includes mail transmitted within, among and between the United States, its territories and possessions, and Army-Air Force (APO) and Navy (FPO) post offices.
(iii) The envelope or other wrapper containing the document must bear a date stamped by the United States Postal Service which is within the prescribed period or on or before the prescribed date for the filing of such document, including any extension granted for such filing. If the postmark stamped by the United States Postal Service on the envelope or wrapper containing the document does not bear a date which falls within the prescribed period or on or before the prescribed date for filing such document the document will be considered not to be timely filed, regardless of when the envelope or wrapper containing such document is deposited in the mail. The sender assumes the risk that the envelope containing the document will not bear a postmark date stamped by the United States Postal Service within the prescribed period or on or before the prescribed date for the filing of such document (including any extension of time granted for such filing). See paragraph (3) of this subdivision (b) regarding the use of registered mail or certified mail. Furthermore, if the postmark made by the United States Postal Service on the envelope or wrapper containing the document is not legible, the person who is required to file the document has the burden of proving when the postmark was made.
(2) Postmarks not made by the United States Postal Service.
(i) If the postmark on the envelope or wrapper containing the document is made by other than the United States Postal Service, the document will be deemed to be timely filed or timely made in accordance with the following requirements:
(A) the postmark so made must bear a date which falls within the prescribed period or on or before the prescribed date for the filing of such document, (including any extension granted for such filing); and
(B) the document must be delivered by United States mail, within five days of the date of the postmark, to the Commissioner of Finance, bureau, office, officer or person with which or with whom such document is required to be filed.
(ii) In case the document is received after five days from the date of the postmark, such document will be treated as having been timely filed, if the person who is required to file the document establishes:
(A) that it was actually deposited in the mail within the prescribed period or on or before the prescribed date for filing the document;
(B) that the delay in receiving the document was due to a delay in the transmission of the mail; and
(C) the cause of such delay.
(iii) If the envelope or wrapper containing the document has a postmark made by the United States Postal Service in addition to the postmark not so made, the postmark which was not made by the United States Postal Service will be disregarded, and whether the envelope was timely mailed will be determined solely by applying the provision of 19 RCNY § 33-05(a).
(3) Registered and certified mailing.
(i) If an envelope or wrapper containing a document is sent by United States registered mail, the date of such registration is treated as the postmark date and the date of delivery.
(ii) If an envelope or wrapper containing a document is sent by United States certified mail and the sender's receipt is postmarked by the postal employee to whom such envelope is presented, the date of the postmark on such receipt is treated as the postmark date of the document and the date of delivery.
(4) Document defined. The term "document", as used in this section, means but shall not be limited to any return, report, declaration, claim, statement, form, notice, petition, application, or other document required to be filed under authority of any provision of § 11-208.1 of the Administrative Code, or any regulation relating to the administration of such provision.
(c) Saturday, Sunday or legal holidays. When the last day prescribed under authority of § 11-208.1 of the Administrative Code, or any regulation relating to the administration of such provision, relating to performing any act falls on a Saturday, Sunday, or legal holiday in the State of New York, the performance of such act shall be considered timely if it is performed on the next succeeding day which is not a Saturday, Sunday or legal holiday.
(a) Neither income and expense statements filed in accordance with § 11-208.1 of the Administrative Code and these rules, nor any information set forth or contained in such statements, shall be disclosed to any person or entity, except:
(1) to the Tax Commission;
(2) to the property owner who filed such income and expense statement or the duly authorized representative of such owner;
(3) to the duly authorized agent of the Department of Finance or the Tax Commission whose services have been retained in connection with the review, analysis, or compilation of information contained in such statements upon the execution of an agreement to maintain the confidentiality of such statements;
(4) to the legal representative of the Department of Finance or Tax Commission where an owner has brought an action to correct an assessment of real property; or
(5) pursuant to proper judicial order or as otherwise provided by law.
(b) Nothing contained in this chapter shall prevent the publication by the Department of Finance or the Tax Commission of statistics taken from income and expense statements which are so classified as to prevent the identification of particular statements and the items thereof.
(c) The Department of Finance shall notify any person or entity that has filed an income and expense statement in accordance with § 11-208.1 of the Administrative Code and these rules of any proceeding commenced or motion or subpoena served to compel disclosure of such statement or of any information contained therein within five business days of receiving any papers requesting such relief, except that in the event of a proceeding, motion or subpoena seeking disclosure of more than fifty income and expense statements, the Department of Finance shall give notice to those authorized representatives whose names are on file with the Department of Finance within fifteen business days of receiving any papers requesting such relief.
These regulations shall take effect immediately, and shall apply to income and expense statements and certificates of exclusion that are required to be filed by September 1, 1989, or, if the deadline is extended, by the deadline set by the Commissioner of Finance, and for every year thereafter.