§ 7-13 Refunds.
RCNY § 7-13
The Commissioner of Finance will refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if written application to the Commissioner of Finance for such refund shall be made within eighteen months from the date fixed by the law for filing the return on which such payment was based or within six months of the payment thereof, whichever of such periods expire later. The Commissioner of Finance may, in lieu of any refund required to be made, allow credit therefor on payments due from the applicant. In such case, the person to whom the credit is allowed shall attach to any subsequent return required to be filed the original of the letter authorizing the credit. Where the final return filed by a taxpayer shows that the amount of tax paid for the tax year exceeds the actual tax for such year, the Commissioner will make the appropriate refund, provided, however, that where the Commissioner has reason to believe that the final return is incorrect, he will withhold the refund in whole or in part. The making of a refund shall not prevent the Commissioner from making a determination that additional tax is due or from pursuing any other method to recover the full amount of the actual tax due for the tax year. The Commissioner of Finance reserves the right to audit the books and records of the person claiming a refund, prior to the making of any refund, or he may grant the refund or credit subject to such audit. The granting of a refund or a credit before an audit is without prejudice to the right of the Commissioner to determine after audit the applicant's right to refund or credit and his liability for the tax. The Commissioner of Finance will deny any 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. 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. The application must set forth the grounds upon which the claim for refund or credit is made. It must be accompanied by a cancelled check or other evidence of payment of the tax by the applicant to the Commissioner, or where payment of the tax was made by check and the check is not available, a photostatic copy thereof showing both the front and back of the check will be accepted in lieu thereof. The Commissioner may require such other additional information as he deems necessary in order to pass upon the application for refund. An application for a refund or credit made as herein provided shall be deemed an application for a revision of any tax, penalty or interest complained of and the Commissioner may receive evidence with respect thereto. After making his determination, the Commissioner will give notice thereof to the applicant who shall be entitled to review such determination by a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided such proceeding is instituted within ninety days after the giving of the notice of such determination, and provided that a final determination of the tax due was not previously made. Such a proceeding shall not be instituted unless an undertaking if filed with the Commissioner 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 determination confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of such proceeding. A person shall not be entitled to a revision, refund or credit of a tax, interest or penalty which had been determined to be due where he has had a hearing or an opportunity for a hearing, as provided by the law, or has failed to avail himself of the remedies provided by the law. No refund or credit will be made of a tax, charge, interest or penalty paid after a determination by the Commissioner pursuant to the law unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper, by the Commissioner after a hearing or on his own motion, or in a proceeding under Article 78 of the Civil Practice Law and Rules, in which event refund or credit without interest will be made of the tax, interest or penalty found to have been overpaid.
