§ 11-1931 Petition to commissioner.
AC § 11-1931
(a)General. The form of a petition to the commissioner, and further proceedings before the commissioner in any case initiated by the filing of a petition, shall be governed by such rules as the commissioner shall prescribe. No petition shall be denied in whole or in part without opportunity for a hearing on reasonable prior notice. Such hearing shall be conducted by the commissioner, or by a hearing officer designated by the commissioner to take evidence and report to the commissioner. The commissioner shall decide the case as quickly as practicable. Notice of the decision shall be mailed promptly to the taxpayer by certified or registered mail at his or her last known address and such notice shall set forth the commissioner's findings of fact and a brief statement of the grounds of decision in each case decided in whole or in part adversely to the taxpayer. Any portion of an assessment of a deficiency disallowed by the commissioner's decision, shall be forthwith abated, or if paid, credited or refunded to the taxpayer without the making of a claim therefor.
(b)Petition for redetermination of a deficiency. Within ninety days, or one hundred fifty days if the notice is addressed to a person outside of the United States, after the mailing of the notice of deficiency authorized by section 11-1923 of this subchapter, the taxpayer may file a petition with the commissioner for a redetermination of the deficiency. Such petition may also assert a claim for refund for the same taxable year or years, subject to the limitations of subdivision (f) of section 11-1929 of this subchapter.
(c)Petition for refund. A taxpayer may file a petition with the commissioner for the amounts asserted in a claim for refund if: (1) the taxpayer has filed a timely claim for refund with the commissioner, (2) the taxpayer has not previously filed with the commissioner a timely petition under subdivision (b) of this section for the same taxable year unless the petition under this subdivision relates to a separate claim for credit or refund properly filed under subdivision (e) of section 11-1929 of this subchapter, and (3) either: (A) six months have expired since the claim was filed, or (B) the commissioner has mailed to the taxpayer, by registered or certified mail, a notice of disallowance of such claim in whole or in part. No petition under this subdivision shall be filed more than two years after the date of mailing of a notice of disallowance, unless prior to the expiration of such a two-year period it has been extended by written agreement between the taxpayer and the commissioner. If a taxpayer files a written waiver of the requirement that he or she be mailed a notice of disallowance, the two year period prescribed by this subdivision for filing a petition for refund shall begin on the date such waiver is filed.
(d)Assertion and assessment of deficiency after filing petition.
(1)Petition for redetermination of deficiency. If a taxpayer files with the commissioner a petition for redetermination of a deficiency, the commissioner shall have power to determine and assess a greater deficiency than asserted in the notice of deficiency and to determine and assess any addition to tax or penalty provided in section 11-1927 of this subchapter, if claim therefor is asserted at or before the hearing and within the period in which an assessment would be timely under section 11-1925 of this subchapter under the rules of the commissioner.
(2)Petition for refund. If the taxpayer files with the commissioner a petition for credit or refund for a taxable year, the commissioner may: (A) determine and assess a deficiency for such year as to any amount of deficiency claim (which shall be an assessment) for which is asserted at or before the hearing under rules of the commissioner, and within the period in which an assessment would be timely under section 11-1925 of this subchapter, or (B) deny so much of the amount for which credit or refund is sought in the petition, as is offset by other issues pertaining to the same taxable year which are asserted at or before the hearing under rules of the commissioner.
(3)Opportunity to respond. A taxpayer shall be given a reasonable opportunity to respond to any matters asserted by the commissioner under this subdivision.
(4)Restriction on further notices of deficiency. If the taxpayer files a petition with the commissioner under this section, no notice of deficiency under section 11-1923 of this subchapter may thereafter be issued by the commissioner for the same taxable year, except in case of fraud or with respect to a change or correction in federal or New York state taxable income or self-employment income required to be reported under section 11-1922 of this chapter.
(e)Burden of proof. In any case before the commissioner under this chapter, the burden of proof shall be upon the petitioner except for the following issues, as to which the burden of proof shall be upon the commissioner: (1) whether the petitioner has been guilty of fraud with intent to evade tax; (2) whether the petitioner is liable as the transferee of property of a taxpayer (except where the petitioner's liability arises by reason of section 11-1936 of this subchapter), but not to show that the taxpayer was liable for the tax; and (3) whether the petitioner is liable for any increase in a deficiency where such increase is asserted initially after a notice of deficiency was mailed and a petition under this section filed, unless such increase in deficiency is the result of a change or correction of federal or New York state taxable income or self-employment income required to be reported under section 11-1922 of this chapter, and of which change or correction the commissioner had no notice at the time he or she mailed the notice of deficiency.
(f)Evidence of related federal determination. Evidence of a federal determination relating to issues raised in a case before the commissioner under this section shall be admissible, under rules established by the commissioner.
(g)Jurisdiction over other years. The commissioner shall consider such facts with relation to the taxes for other years as may be necessary correctly to determine the tax for the taxable year, but in so doing shall have no jurisdiction to determine whether or not the tax for any other year has been overpaid or underpaid.
