§ 1-21 Eligibility.
RCNY § 1-21
(a)General. Amnesty shall be available for any taxpayer liable for any designated tax described in subdivision (b) of 19 RCNY § 1-19, supra, for the periods described in subdivision (c) of 19 RCNY § 1-19, supra, other than: (1) Any taxpayer with respect to a designated tax if the taxpayer received a benefit under the amnesty program established by § 11-125 of the Administrative Code or the amnesty program established by § 84 of Chapter 765 of the Laws of New York of 1985, for that same tax or charge for the same or any other tax period or for the same or any other transaction.
(2)any taxpayer who is the subject of any criminal investigation with respect to a designated tax being conducted by any agency of the City of New York or of New York State or any other political subdivision of New York State. The Commissioner of Finance, in cooperation with investigating agencies, shall prepare a confidential list of those taxpayers who are ineligible because they are the subject of a pending criminal investigation relating directly to any tax listed in subdivision (b) of 19 RCNY § 1-19, supra. Every application for amnesty shall be compared with the list and any application for amnesty by a taxpayer subject to a pending criminal investigation shall be denied.
(3)any taxpayer who is the subject of any criminal litigation for nonpayment, delinquency or fraud with respect to a designated tax that is pending in any court of New York State or the United States on the date of the taxpayer's application. A litigation begins once (i) an indictment, complaint or information has been filed against the taxpayer and the defendant has been arrested or served a summons, or (ii) an arrest warrant has been issued and the defendant has been notified of such fact, whichever is earlier in regard to such accusatory instrument; and continues until the time to appeal has expired or the appellate process has been exhausted. See 19 RCNY § 1-24 Denial or Revocation of Amnesty, infra. Any such taxpayer is eligible for amnesty for any other eligible tax or period not covered by the criminal litigation.
(4)any taxpayer that has been convicted of a crime relating to a designated tax. Any such taxpayer is eligible for amnesty for any other eligible tax or period not covered by the criminal conviction.
(5)any taxpayer with respect to liabilities for a designated tax or charge to the extent that the taxpayer's liability for such taxes or charges was the subject of an audit pending with the Department of Finance on March 10, 2003.
(i)For purposes of this paragraph (5), a taxpayer's liability for taxes or charges will be considered to be the subject of an open audit on March 10, 2003, and thus ineligible for amnesty, if the Department has sent the taxpayer a written notification, dated on or before March 10, 2003, of the Department's intent to review the taxpayer's liability for that tax and period including the following: (A) a letter requesting an audit appointment; (B) an information and document request; (C) an inquiry letter; (D) a notice of proposed tax adjustments unless the taxpayer has paid the amount proposed in full on or before March 10, 2003; or (E) any other written document that includes the taxpayer's name, taxpayer identification number, the tax and tax years, periods or transactions in question indicating the Department's intent to review the taxpayer's liability for that tax and year, period or transaction.
(ii)An audit will not be considered to be open if the Department has sent the taxpayer, or the taxpayer's duly authorized representative, a written notification, dated on or before March 10, 2003, that the matter has been finally closed including the following: (A) consent determination; (B) settlement or closing agreement signed by the taxpayer; (C) notice of determination; or (D) other written notification that the case was closed or that the returns were accepted as filed with no adjustment.
(iii)A written notification described in subparagraph (ii) will not be considered a notification of a final closure of a matter if the document described in subparagraph (ii) contained an exception for additional adjustments based on final Federal or New York State changes and if (A) there was a Federal or New York State audit of the taxpayer affecting all or a portion of the same period pending on March 10, 2003, (B) the taxpayer was a party to an administrative or court proceeding pending on March 10, 2003 protesting an adjustment made by the Internal Revenue Service or New York State affecting all or a portion of the same period, or (C) there was a final determination of a Federal or New York State change affecting all or a portion of the same period that either was not reported to the Department as required by the appropriate provision of the Administrative Code or was reported to the Department with a statement by the taxpayer that the taxpayer disagreed with the determination. The provisions of subparagraphs (i) and (ii) of this paragraph will apply in determining whether a Federal or New York State audit was pending on March 10, 2003.
(iv)A taxpayer will be ineligible for amnesty with respect to a matter that was the subject of an open audit as provided in this paragraph regardless of whether the audit was closed after March 10, 2003.
(6)Any taxpayer with respect to a designated tax that is the subject of an administrative proceeding or civil litigation commenced in the Department's Conciliation Bureau, the New York City Tax Appeals Tribunal or any court of this state to which the taxpayer is a party and that is pending on the date of the taxpayer's amnesty application, unless the taxpayer withdraws from the entire proceeding or litigation, with prejudice, prior to the granting of amnesty or agrees, as a condition of amnesty, to withdraw from the entire proceeding or litigation, with prejudice. The preceding sentence does not apply to any proceeding or litigation that involves a designated tax that was the subject of an audit pending with the Department on March 10, 2003 as described in paragraph (5) of this subdivision. Amnesty is not available with respect to any such matter. See 19 RCNY § 1-22(a)(4) and 19 RCNY § 1-24(a)(4), infra.
(7)any taxpayer with respect to liabilities for designated taxes to the extent that the taxpayer's liability for such taxes is the subject of an installment agreement with the Department of Finance on the date that the amnesty program described in subdivision (a) of 19 RCNY § 1-19, supra, begins.
(b)Except as provided in paragraphs (5), (6) and (7) of subdivision (a) of this section, taxpayer's eligibility is determined as of the date of application.
(c)Except as provided in paragraphs (2) and (6) of subdivision (a) of this section, a taxpayer's eligibility is determined separately in relation to each designated tax. Thus, a taxpayer may be ineligible for amnesty for one designated tax, but may be eligible for amnesty for another designated tax. With respect to a designated tax that is the subject of a pending administrative proceeding or litigation, the taxpayer must withdraw or discontinue, or agree to withdraw from or discontinue, with prejudice, the entire proceeding or case as a condition of the granting of amnesty. Example 1: A taxpayer was granted amnesty in 1994 with respect to its liability for commercial rent or occupancy tax for the tax years ending May 31, 1991 and 1992. The taxpayer is eligible for amnesty under the program established pursuant to 19 RCNY § 1-19 or 19 RCNY § 1-26 for its liability for any tax other than the commercial rent or occupancy tax. The taxpayer is not eligible for amnesty for the commercial rent or occupancy tax for any period, including periods ending after 1994. Example 2: On March 10, 2003, a taxpayer was being audited by the Audit Division of the Department with respect to its liability for general corporation tax for the tax years ending on December 31, 1998, 1999 and 2000. In June 1999, the taxpayer sold a controlling interest in a corporation owning real property in New York City but did not file a real property transfer tax return reporting the transfer and did not pay the real property transfer tax. The taxpayer is not being audited for this transaction. Although the taxpayer is ineligible for amnesty for general corporation tax for the tax years ending in 1998, 1999, and 2000, the taxpayer may be eligible for amnesty for the real property transfer tax. The taxpayer may also be eligible for other periods under the general corporation tax.
(d)A taxpayer whose outstanding liability with respect to a designated tax is limited to penalties and interest is eligible for amnesty with respect to the unpaid amounts. See 19 RCNY § 1-22(c) Payment, and 19 RCNY § 1-23 Refunds or Credits, infra.
