sub

before a prescribed date under authority of any provision of this chapter or of the named subchapters is, after such period or such date, delivered by United States mail to the commissioner of finance, tax appeals tribunal, bureau, office, officer or person with which or with whom such document is required to be filed, or to which or to whom such payment is required to be made, the date of the United States postmark stamped on the envelope shall be deemed to be the date of delivery. This subdivision shall apply only if the postmark date falls within the prescribed period or on or before the prescribed date for the filing of such document, or for making the the payment, including any extension granted for such filing or payment, and only if such document or payment was deposited in the mail, postage prepaid, properly addressed to the commissioner of finance, tax appeals tribunal, bureau, office, officer or person with which or with whom the document is required to be filed or to which or to whom such payment is required to be made. If any document is sent by United States registered mail, such registration shall be prima facie evidence that such document was delivered to the commissioner of finance, tax appeals tribunal, bureau, office, officer or person to which or to whom addressed. To the extent that the commissioner of finance or, where relevant, the tax appeals tribunal shall prescribe by regulation, certified mail may be used in lieu of registered mail under this subdivision. This subdivision shall apply in the case of postmarks not made by the United States postal service only if and to the extent provided by regulations of the commissioner of finance or, where relevant, the tax appeals tribunal.

4. Certificate; unfiled return. For purposes of this subchapter and sections one hundred sixty-eight through one hundred seventy-two of the charter, the certificate of the commissioner of finance to the effect that a tax has not been paid, that a return or declaration of estimated tax has not been filed, or that information has not been supplied, as required by or under the provisions of this chapter, shall be prima facie evidence that such tax has not been paid, that such return or declaration has not been filed, or that such information has not been supplied.

§ 34. Subdivisions 3, 4, 5, 6, 7, 9 and 10 of section 11-685 of the administrative code of the city of New York are amended to read as follows:

The com

3. Amount assessable before decision of the [commissioner of finance] tax appeals tribunal. The jeopardy assessment may be made in respect of a deficiency greater or less than that of which notice is mailed to the taxpayer and whether or not the taxpayer has theretofore filed a petition with the [commissioner of finance] tax appeals tribunal. missioner of finance may, at any time before [rendering his or her] tax appeals tribunal renders its decision, abate such assessment, or any unpaid portion thereof, to the extent that the commissioner believes the assessment to be excessive in amount. The [commissioner of finance] tax appeals tribunal may in [the commissioner's] its decision redetermine the entire amount of the deficiency and of all amounts assessed at the same time in connection therewith.

4. Amounts assessable after decision of the [commissioner of finance] tax appeals tribunal. If the jeopardy assessment is made after the decision of the [commissioner of finance] tax appeals tribunal is rendered, such assessment may be made only in respect of the deficiency determined by the [commissioner of finance] tax appeals tribunal in [his or her] its decision.

5. Expiration of right to assess. A jeopardy assessment may not be made after the decision of the [commissioner of finance] tax appeals tribunal has become final or after the taxpayer has made an application for review of the decision of the [commissioner of finance] tax appeals tribunal.

6. Collection of unpaid amounts. When a petition has been filed with the [commissioner of finance] tax appeals tribunal and when the amount which should have been assessed has been determined by a decision of the [commissioner of finance] tax appeals tribunal which has become final, then any unpaid portion, the collection of which has been stayed by bond, shall be collected as part of the tax upon notice and demand from the commissioner of finance, and any remaining portion of the assessment shall be abated. If the amount already collected exceeds the amount determined as the amount which should have been assessed, such excess EXPLANATION-Matter in italics is new; matter in brackets [] is old law

shall be credited or refunded to the taxpayer as provided in section 11-677 of this subchapter without the filing of claim therefor. If the amount determined as the amount which should have been assessed is greater than the amount actually assessed, then the difference shall be assessed and shall be collected as part of the tax upon notice and demand from the [commissioner of finance] tax appeals tribunal.

7. Abatement if jeopardy does not exist. The commissioner of finance may abate the jeopardy assessment if the commissioner finds that jeopardy does not exist. Such abatement may not be made after a decision of the [commissioner of finance] tax appeals tribunal in respect of the deficiency has been rendered or, if no petition is filed with the [commissioner of finance] tax appeals tribunal, after the expiration of the period for filing such petition. The period of limitation on the making of assessments and levy or a proceeding for collection, in respect of any deficiency, shall be determined as if the jeopardy assessment so abated had not been made, except that the running of such period shall in any event be suspended for the period from the date of such jeopardy assessment until the expiration of the tenth day after the day on which such_jeopardy assessment is abated.

9. Petition to [commissioner of finance] tax appeals tribunal. If the bond is given before the taxpayer has filed its petition under section 11-680 of this subchapter, the bond shall contain a further condition that if a petition is not filed within the period provided in such section, then the amount, the collection of which is stayed by the bond, will be paid on notice and demand at any time after the expiration of such period, together with interest thereon from the date of the jeopardy notice and demand to the date of notice and demand under this subdivision. The bond shall be conditioned upon the payment of so much of such assessment (collection of which is stayed by the bond) as is not abated by a decision of the [commissioner of finance] tax appeals tribunal which has become final. If the [commissioner of finance] tax peals tribunal determines that the amount assessed is greater than the amount which should have been assessed, then the bond shall, at the request of the taxpayer, be proportionately reduced when the decision of the [commissioner of finance] tax appeals tribunal is rendered.

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10. Stay of sale of seized property pending [commissioner's] tax appeals tribunal's decision. Where a jeopardy assessment is made, the property seized for the collection of the tax shall not be sold:

(a) if subdivision two is applicable, prior to the issuance of the notice of deficiency and the expiration of the time provided in section 11-680 of this subchapter for filing a petition with the [commissioner of finance] tax appeals tribunal, and

(b) if a petition is filed with the [commissioner of finance] tax appeals tribunal (whether before or after the making of such jeopardy assessment), prior to the expiration of the period during which the assessment of the deficiency would be prohibited if subdivision one were not applicable.

Such property may be sold if the taxpayer consents to the sale, or if the commissioner of finance determines that the expenses of conservation and maintenance will greatly reduce the net proceeds, or if the property is perishable.

§ 35. Subdivision 1 of section 11-688 of the administrative code of the city of New York, as amended by chapter 241 of the laws of 1989, is amended to read as follows:

1. Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the commissioner of finance, the department of finance of the city, any officer or employee of the department of finance of the city, [or] the tax appeals tribunal, any commissioner or employee of such tribunal, any person who, pursuant to this section, is permitted to inspect any report or return, or to whom any information contained in any report or return is furnished, [or] any person engaged or retained by such department on an independent contract basis, or any person who in any manner may acquire knowledge of the contents of a report filed pursuant to this chapter, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return, under this chapter. The officers charged with the custody of such reports and returns shall not be required to produce any of them or evidence of anything contained in them in any action or proceeding in any court, except on behalf of the city in an action or proceeding involving the collection of a tax due under this chapter to which the city is a party or a claimant, or on behalf of any party to any action or proceeding under the provisions of

this chapter when the reports, returns or facts shown thereby are directly involved in such action or proceeding, in any of which events the court may require the production of, and may admit in evidence, so much of said reports or returns or of facts shown thereby as are pertinent to the action or proceeding, and no more. [The commissioner of finance may, nevertheless, publish a copy or a summary of any determination or decision rendered after the formal hearing provided for in section 11-680 of this subchapter. ] Nothing herein shall be construed to prohibit the delivery to a taxpayer or its duly authorized representative of a copy of any report filed by it, nor to prohibit the publication of statistics So classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the corporation counsel or other legal representatives of the city of the report or return of any taxpayer which shall bring action to set aside or review the tax based thereon, or against which an action or proceeding under this chapter or under any local law of the city imposed authorized by the act authorizing the adoption of this chapter has been recommended by the commissioner of finance or the corporation counsel or has been instituted, or the inspection of the reports or returns of any taxpayer by the duly designated officers or employees of the city for purposes of an audit under this chapter or an audit authorized by the act authorizing the adoption of this chapter; and nothing in this subchapter or chapter eleven of this title shall be construed to prohibit the publication of the issuer's allocation percentage, as defined in subparagraph one of paragraph (b) of subdivision three of section 11-604 of this chapter, of any corporation which may be required to be allocated within the city for purposes of the tax imposed by any of the named subchapters or chapter eleven of this title.

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§ 36. Section 11-688 of the administrative code of the city of New York is amended by adding a new subdivision 6 to read as follows:

6. Notwithstanding anything in subdivision one of this section to the contrary, if a taxpayer has petitioned the tax appeals tribunal for administrative review as provided in section one hundred seventy of the charter, the commissioner of finance shall be authorized to present to the tribunal any report or return of such taxpayer, or any information contained therein or relating thereto, which may be material or relevant to the proceeding before the tribunal. The tax appeals tribunal shall be authorized to publish a copy or a summary of any decision rendered pursuant to section one hundred seventy-one of the charter.

§ 37. Section 11-701 of the administrative code of the city of New York is amended by adding a new subdivision 19 to read as follows:

19. "Tax appeals tribunal." The tax appeals tribunal established by section one hundred sixty-eight of the charter.

§ 38. Section 11-708 of the administrative code of the city of New York is amended to read as follows:

§ 11-708 Determination of tax. If a return required by this chapter is not filed, or if a return when filed is incorrect or insufficient, the commissioner of finance shall determine the amount of tax due from such information as may be obtainable and, if necessary,

the

may estimate the tax on the basis of external indices. Notice of such determination shall be given to the person liable for the payment of the tax. Such determination shall finally and irrevocably fix the tax unless the person against whom it is assessed, within [thirty] ninety days after giving of notice of such determination [shall apply in writing to the Commissioner of finance for a hearing] or, if the commissioner of finance has established a conciliation procedure pursuant to section 11-124 of the code and the taxpayer 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 conciliation of finance and (2) files a petition with the tax appeals tribunal for a hearing, or unless the commissioner of finance of the commissioner's own motion shall redetermine the same. 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 So in original. "conciliation" should be "commissioner".) So in original. ("of" should be "on".)

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

tribunal pursuant to sections one hundred sixty-eight through one hundred seventy-two of the charter. After such hearing the [commissioner of finance] tax appeals tribunal shall give notice of his or her determination] its decision to the person against whom the tax is assessed and to the commissioner of finance. [The determination of the commissioner of finance] A decision of the tax appeals tribunal sitting en banc shall be reviewable for error, illegality or unconstitutionality or any other reason whatsoever by a proceeding under article seventyeight of the civil practice law and rules if application therefor is made to the supreme court by the person against whom the tax was assessed within [thirty days] four months after the giving of the notice of such [final determination] tax appeals tribunal decision, provided, however, that any such proceeding under article seventy-eight of the civil practice law and rules shall not be instituted by a taxpayer unless: (a) the amount of any tax sought to be reviewed, with interest and penalties thereon, if any, shall be first deposited and there is filed an undertaking with the commissioner of finance, issued by a surety company authorized to transact business in this state and approved by the superintendent of insurance of this state as to solvency and

responsibility, in such amount as a justice of the supreme court shall approve to the effect that if such proceeding be dismissed or the tax confirmed the [petitioner] taxpayer will pay all costs and charges which may accrue in the prosecution of such proceeding or (b) at the option of the [petitioner] taxpayer such undertaking may be in a sum sufficient to cover the taxes, interest and penalties stated in such [determination] decision plus the costs and charges which may accrue against it in the prosecution of the proceeding, in which event the [petitioner] taxpayer shall not be required to pay such taxes, interest or penalties as a condition precedent to the application.

§ 39. Subdivisions a, b and c of section 11-709 of the administrative code of the city of New York are amended to read as follows:

a. In the manner provided in this section the commissioner of finance shall 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 this chapter for filing the return on which such payment was based or within six months of the payment thereof, whichever of such periods expire the later. Whenever a refund or credit is made or denied, the commissioner of finance shall state his or her reason there for and give notice thereof to the taxpayer in writing, The commissioner of finance may, in lieu of any refund required to be made, allow credit therefor on payments due from the applicant.

b. [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 finance may receive evidence with respect thereto. After making his or her determination the commissioner of finance shall give notice thereof] Any 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 a conciliation procedure pursuant to section 11-124 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 of 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 section 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 [who] and to the commissioner of finance. The applicant shall be entitled to institute a proceeding pursuant to article seventyeight of the civil practice law and rules to review [such determination] a decision of the tax appeals tribunal sitting en banc if application to the supreme court be made therefor within [ninety days] four months after the giving of notice of such [determination] 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 finance, 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] taxpayer will pay all costs and charges which may accrue in the prosecution of the proceeding.

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C. A person shall not be entitled to a revision, refund or credit under this section of a tax, interest or penalty which had been determined to be due pursuant to the provisions of section 11-708 of this chapter where such person has had a hearing or an opportunity for a hearing, 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 by the commissioner of finance made pursuant to section 11-708 of this chapter unless it be found that such determination was erroneous, illegal or unconstitutional, or otherwise improper, by the [commissioner of finance] tax appeals tribunal after a hearing, or, if such tax appeals tribunal affirms in whole or in part the determination of the commissioner of finance, 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 táx, interest or penalty found to have been overpaid.

§ 40. Section 11-710 of the administrative code of the city of New York is amended to read as follows:

§ 11-710 Remedies exclusive. The remedies provided by this chapter shall be the exclusive remedies available to any person for the review of tax liability imposed by this chapter; and no determination or proposed determination of tax or determination on any application for refund by the commissioner of finance, nor any decision by the tax appeals tribunal or any of its administrative law judges, shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by any action or proceeding other than, in the case of a decision by the tax appeals tribunal sitting en banc, a proceeding under article seventy-eight of the civil practice law and rules; provided, however, that a taxpayer may proceed by declaratory judgment if he or she institutes suit within thirty days after a deficiency assessment is made and pays the amount of the deficiency assessment to the commissioner of finance prior to the institution of such suit and posts a bond for costs as provided in section 11-708 of this chapter.

§ 41. Subdivisions a, b and d of section 11-714 of the administrative code of the city of New York are amended to read as follows:

a. The commissioner of finance [or], the commissioner's employees duly designated and authorized by the commissioner, the tax appeals tribunal and any of its duly designated and authorized employees shall have power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of [his or her] their powers and duties under this chapter. The commissioner of finance and the tax appeals tribunal shall have power to subpoena and require the attendance of witnesses and the production of books, papers and documents to secure information pertinent to the performance of the [commissioner's] duties of the commissioner or of the tax appeals tribunal hereunder and of the enforcement of this chapter and to examine them in relation thereto, and to issue commissions for the examination of witnesses who are out of the state or unable to attend before the commissioner or the tax appeals tribunal or excused from attendance.

b. A justice of the supreme court either in court or at chambers shall have power summarily to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and documents called for by the subpoena of the commissioner of finance or the tax appeals tribunal under this chapter.

d. The officers who serve the summons or [subpeona] subpoena of the commissioner of finance or the tax appeals tribunal hereunder and witnesses attending in response thereto shall be entitled to the same fees as are allowed to officers and witnesses in civil cases in courts of record, except as herein otherwise provided. Such officers shall be the city sheriff, and the sheriff's duly appointed deputies or any officers EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law