§ 25-08 Refunds.
RCNY § 25-08
(a)The Commissioner of Finance shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid, provided: (1) A written application for refund or credit was made to the Commissioner of Finance within one year from the payment of the tax, penalty or interest, and (2) The application is made by the retail licensee or other person who actually paid the tax.
(b)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: (1) It must contain a verified statement setting forth the applicant's reasons for such requested refund.
(2)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.
(3)It must demonstrate that the refund provisions of the law have been complied with.
(4)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.
(c)Where a retail licensee ceases to do business during the course of the tax year under circumstances which result in, or would entitle him to, a refund of a license fee by the New York State Liquor Authority, a refund, without interest, of an appropriate portion of the tax paid under the law will be granted, if, at the time the retail licensee ceases to do business as a retail licensee, at least one month of the tax year remains to run. Such refund shall be computed for the unexpired term of the tax year, for full months commencing with the first day of the month succeeding the one in which such retail licensee ceases to do business as a retail licensee, except that where such cessation of business occurs on the first day of the month that month shall be included in the computation; provided, however, where a refund of the tax or any portion thereof paid under the law is granted to the holder of a summer or winter license, such refund shall be computed for the unexpired months of the tax year for which summer or winter licenses may be issued under the New York State Alcoholic Beverage Control Law, for full months commencing with the first day of the month succeeding the one in which such summer or winter retail licensee ceases to do business as a retail licensee, except that where such cessation of business occurs on the first day of the month that month shall be included in the computation. For example: A summer (liquor) retail licensee who obtained a license for the period from April 1, 1981 to October 31,1981 and paid the tax to the City as provided by the law and regulations, and who did not obtain a new license for the period from April 1, 1982 to October 31, 1982, and who meets the requirements of the refund provisions of the law and regulations, would be entitled to a refund on the basis of two-sevenths of the tax paid to the City, said fraction being the ratio that the unexpired term of the tax year (the two months of April and May 1982) bears to the seven months of the tax year (June 1, 1981 to October 31, 1981 and April 1, 1982 to May 31, 1982) for which summer licenses may be issued.
(d)In the case of an application for refund by a retail licensee who ceases to do business during the course of the tax year, under circumstances which result in, or would entitle him to, a refund of the license fee by the New York State Liquor Authority, the applicant shall submit a photostatic copy of the surrender receipt or refund check, executed and delivered to him by such liquor authority, with the application, or at any time thereafter but before the Commissioner of Finance makes any determination with respect to such application, together with such other information as the Commissioner may require. In the event that action on an applicant's right to a refund by the New York State Liquor Authority is pending before such authority but not concluded at the time the application for refund is filed with the Commissioner of Finance as herein provided, the applicant shall further state the status of his claim or right to refund before such authority, and thereupon, the Commissioner may hold in abeyance any action on such application until the said authority has finally acted thereon, provided, however, that in no event will a refund be granted where the applicant has failed to make written application therefor to the Commissioner within one year from the payment of the tax, penalty or interest. However, where a retail licensee is not entitled to a refund by the New York State Liquor Authority, merely because his license has expired or because he has ceased to do business less than one month before the expiration date of the license issued to him by the New York State Liquor Authority, the provisions of this subdivision (d) and of subdivision (c) shall not apply.
(e)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.
(f)If the Commissioner of Finance approves the application for refund, he will make such refund or, in lieu thereof, allow credit therefor on payments due from the applicant.
(g)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 § 25-07, 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.
