§ 11-2208 Refunds.
AC § 11-2208
a. In the manner provided in this section the commissioner of motor vehicles shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if application for such refund shall be made within one year from the payment thereof to the commissioner of motor vehicles or to the commissioner of finance if designated as his or her agent. Whenever a refund is made or denied, the reasons therefor shall be stated in writing by the commissioner of motor vehicles or by the commissioner of finance, as the case may be, who in lieu of any refund, may allow credit therefor on payments due from the applicant. b.
(1)If the commissioner of motor vehicles has not designated the commissioner of finance as his or her agent, 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 of motor vehicles shall hold a hearing and receive evidence with respect thereto. After such hearing, the commissioner of motor vehicles shall give notice of the determination of such application to the applicant who shall be entitled to review such determination by a proceeding pursuant to article seventy-eight of the civil practice law and rules, provided such proceeding is instituted within four months after the giving of notice of such determination, and provided that a final determination of tax due was not previously made. Such a proceeding shall not be instituted unless an undertaking is filed with the commissioner of motor vehicles 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 tax confirmed, the petitioner will pay all costs and charges which may accrue in the prosecution of such proceeding.
(2)If the commissioner of motor vehicles has designated the commissioner of finance as his or her agent, a determination of the commissioner of finance denying a refund or credit pursuant to subdivision a of this section shall be final and irrevocable unless the applicant for such refund or credit, within ninety days from the mailing of notice of such determination, or, if the commissioner of finance has established conciliation procedure pursuant to section 11-124 of the administrative code and the applicant has requested a conciliation conference in accordance therewith, within ninety days from the mailing of a conciliation decision or the date of the commissioner's confirmation of the discontinuance of the conciliation proceeding, both (1) serves a petition upon the commissioner of finance and (2) files a petition with the tax appeals tribunal for a hearing. Such petition 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. Such hearing and any appeal to the tax appeals tribunal sitting en banc from the decision rendered in such hearing shall be conducted in the manner and subject to the requirements prescribed by the tax appeals tribunal pursuant to sections one hundred sixty-eight through one hundred seventy-two of the charter. After such hearing, the tax appeals tribunal shall give notice of its decision to the applicant and to the commissioner of finance. The applicant shall be entitled to institute a proceeding pursuant to article seventy-eight of the civil practice law and rules to review a decision of the tax appeals tribunal sitting en banc if application to the supreme court be made therefor within four months after the giving of notice of such decision, and provided, in the case of an application by a taxpayer, that a final determination of tax due was not previously made. Such a proceeding shall not be instituted by a taxpayer unless an undertaking shall first be filed with the commissioner of motor vehicles, 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 tax confirmed, the taxpayer will pay all costs and charges which may accrue in the prosecution of such proceeding. c. A person shall not be entitled to a revision, refund or credit under this section of a tax, interest or penalty which has been determined to be due pursuant to the provisions of section 11-2206 of this chapter where he or she has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail himself or herself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination made pursuant to section 11-2206 of this chapter, unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper after a hearing, or on his or her own motion, by the commissioner of motor vehicles or after a hearing by the tax appeals tribunal, or on his or her own motion by the commissioner of finance, as the case may be, or in a proceeding under article seventy-eight of the civil practice law and rules, pursuant to the provisions of said section, in which event refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.
