Publication 131(9/22) Your Rights and Obligations Under the Tax Law A major function of the Department of Taxation and Finance is • minimize disruption of your business or personal life during the to help taxpayers understand their rights and responsibilities. audit, and Taxpayer awareness of these rights is essential to maintaining • protect you from arbitrary actions. the efficiency and fairness of the state and local tax systems. New York State established a Taxpayers’ Bill of Rights in Tax Statute of limitations Law Article 41. The Tax Department assists taxpayers by New York State Tax Law generally places a three-year statute providing: of limitations on our right to assert additional tax due (generally, • nontechnical statements that explain taxpayers’ rights and the three years after your return was filed). However, a six-year department’s obligations regarding audits; statute of limitations applies to assert additional tax due when there is an abusive tax avoidance transaction, or, when a • the procedures for taxpayers to challenge department taxpayer omits 25% or more of their income from the return. A decisions, to claim refunds, and to file complaints; and taxpayer and the department may agree in writing to extend the • the procedures the department may use to enforce tax statute of limitations before it expires. liabilities (called the collection process). The statute of limitations to assert additional tax does not apply, You can get more information about your rights as a taxpayer on however, for any period during which a taxpayer failed to file our website, including all publications referenced below, or by a return, failed to report the changes made by the Internal calling us (see Need help? at the end of this publication). Revenue Service (IRS) to a federal tax return (federal changes), This publication provides a summary of taxpayers’ rights at or filed a false or fraudulent return with intent to evade tax. various stages of the tax administration process. For income, estate, and corporation tax purposes, a taxpayer is generally required to report a federal change to New York State within 90 days after the final determination of the change, The New York State tax audit correction, renegotiation, or disallowance. We conduct audits to verify that taxpayers paid the correct For amended returns filed on or after April 12, 2018, the statute amount of tax. According to New York State Tax Law, during the of limitations on our right to assert additional tax due, attributable audit you must provide whatever records are necessary to verify to a change or correction made on such amended return, is the information you reported on your return. Depending on the generally one year from the date such amended return is filed type of return being audited, this may include a review of your (unless a longer period of time applies or unless the amended income, receipts, expenses, credits, and other business records. return is due to federal changes). Professional audit standards Privacy and confidentiality Audits are conducted in accordance with professional auditing You have the right to know why we are requesting certain standards, by a Tax Department auditor familiar with generally information, how we will use the information, and the accepted accounting principles and auditing techniques. consequences if you fail to submit the information. The Tax To avoid any conflict of interest, the auditor cannot have Law prohibits us from disclosing information obtained from a any relationship with the taxpayer, the taxpayer’s family, or tax return or during an audit, to any unauthorized person. The the taxpayer’s employees (in the case of a business audit). Tax Law, however, does permit us to share your tax information Additionally, the auditor must not have any personal or financial with the IRS and other government agencies, within defined interest in a business being audited. standards of secrecy and reciprocity. Throughout the course of an audit, you are entitled to receive Representation during an audit fair, courteous, and professional treatment. If at any time during the audit you feel these standards or any of your rights are You may represent yourself, have someone accompany you, being violated, you should immediately contact the auditor’s or have someone represent you during an audit. Any person supervisor. representing you must have the proper written authorization (Form POA-1, Power of Attorney) from you to act on your To report allegations of employee misconduct, contact our Office behalf. For information on how to file a power of attorney, of Internal Affairs by calling 518-451-1566, or by mail to: visit our website or call us (see Need help?). You may retain NYS TAX DEPARTMENT representation at any time during an audit, or suspend a meeting OFFICE OF INTERNAL AFFAIRS or interview for a reasonable period to obtain representation. W A HARRIMAN CAMPUS Former employees of the Department of Taxation and Finance ALBANY NY 12227-0811 are restricted from representing taxpayers before the department If not using U.S. Mail, see Publication 55, Designated Private for two years after they leave the department. Subject to some Delivery Services. restrictions, former employees may represent taxpayers before the independent Division of Tax Appeals during this two-year Your rights during an audit period. Former employees are permanently prohibited from representing taxpayers in matters in which they were directly While you must cooperate with the auditor, you should also be involved during their employment. aware of your rights. These rights are designed to: • protect you from unreasonable demands, |
Page 2 of 8 Publication 131 (9/22) Audio recording If there are changes, the auditor will present copies of audit You may make an audio recording of any in-person interview work papers and explain the audit findings, as well as the audit by providing advance written notice to us. You must make the methods and procedures used during the audit, in simple, recording at your own expense and with your own equipment. nontechnical terms. Findings may include: We also have the right to record any in-person interview with • recommended changes in recordkeeping practices to correct advance written notice to you. If you request it, we will provide accounting errors found during the audit, a transcript or copy of the recording to you, but only if you • an explanation of the proper interpretation of the Tax Law in reimburse us for the cost. areas where there were errors made, • a notice of additional taxes due, or The field audit • a notice that a refund is due. Field audits are usually scheduled at least 15 days in advance to give you time to assemble the required records. When you We will give you a reasonable amount of time to review the audit are selected for a field audit, an auditor will contact you to set findings. The auditor will then analyze any additional information up the initial appointment. You will receive a letter confirming the you submit and, if appropriate, revise and resubmit the work appointment and describing the books and records you must papers. provide. For a business audit, most appointments will be made at your place of business, to minimize your time away from your If the audit results in a refund, the auditor will provide any business activities. If you need longer than 15 days to gather the assistance you may require. necessary records, you can usually request an extension of up to 30 days. For delays longer than 30 days, you must make a If you agree written request that substantiates the need for extra time. If you agree with the audit findings, we will ask you to sign the Statement of Proposed Audit Changes, or similar document, and Opening conference to return it to the auditor with full payment. At your initial meeting (the opening conference), the auditor will: If you owe money but cannot pay in full immediately, you may • explain the audit approach and procedures, be eligible for an installment payment agreement, which allows • explain the audit process, and you to spread out your payments over time (see Installment payment agreement). You should be aware, though, that interest • outline your protest rights and appeal procedures in case you (and possibly penalties) will continue to accrue on the unpaid disagree with an audit adjustment. balance. Use this meeting to ask any questions you might have regarding your rights and responsibilities. If you disagree If you do not agree with the audit findings, indicate your Audit methods disagreement on the Statement of Proposed Audit Changes and We use several different audit methods to conduct audits. We return it to the auditor. You may request additional conferences may conduct: with the auditor’s supervisor, if necessary. • a detailed audit, If you still do not agree with the audit findings, we will send you • an audit involving a test period method, or a Notice of Deficiency or Notice of Determination for the taxes due. At this point, you may appeal the audit findings through • an audit involving a statistical sampling method. either the Bureau of Conciliation and Mediation Services, The method an auditor chooses will depend on several or through the Division of Tax Appeals. Generally, you must variables, such as the type of tax, the accuracy and availability file your appeal within 90 days of the date the notice was of the records, and the size and complexity of a business. issued (see Your right to protest an action taken by the Tax Department). Refer to the notice you received for the applicable In addition, the scope of an audit may be expanded and time limit. You must submit a written appeal even if you have completed as a multi-tax audit. previously written to the department and objected to the position If preliminary findings result in a material effect on the reporting taken in the proposal. of another tax, those findings may be referred to another tax Although payment is not required while appealing a Notice specialty at any time during the audit process. We may use audit of Deficiency or Notice of Determination, you may pay the adjustments of one tax specialty as a basis to recalculate tax in proposed amount due, to stop the accrual of additional interest another, depending on the facts and circumstances of the case. and any penalties due, if you are eventually found liable. For sales and compensating use taxes, we may estimate any You may also pay any tax due and then file a claim for refund additional tax due only if, in response to our request for records, within the time period applicable to the tax involved. If we deny you have no records, or the records that you provide are your claim completely or partially, you may then choose to inadequate for us to determine the tax due. appeal through either the Bureau of Conciliation and Mediation Services or the Division of Tax Appeals, within the applicable Audit period and duration statutory period. An audit generally covers a three-year period, and can take as little as several days or up to a year or more to complete. The The desk audit duration depends on the complexity of the returns being audited, A desk audit is a review of tax returns, refund requests, or other and on the timely availability, completeness, and accuracy of documents that you have submitted. Sometimes, a desk audit your records. includes or is based on information obtained from other sources, such as the IRS. It may also involve a return we believe you Field audit findings should have filed. We will notify you if a desk audit is taking If we determine no changes are necessary, we will send you a place only if we need to request more information, or if we letter stating that no changes will be made to your return, refund determine that you either owe additional tax or are due a refund. request, or documents. |
Publication 131 (9/22) Page 3 of 8 If we need more information, we will send a letter to notify you Claims for refund of the desk audit and request the required information. We will Refunds may arise from any tax type. Most often, income tax give you a reasonable amount of time to respond to the request. refunds result from a taxpayer’s overpayment of withholding If you respond, we will review your response and inform you of or estimated tax, or a refundable tax credit, and the taxpayer our findings. usually claims the refund when filing an annual income tax return. We generate these refunds as part of the initial Desk audit findings processing of the filed return. If we determine no changes are necessary, we will send you a letter stating that no changes will be made to your return, refund After filing an original return, you may discover that you request, or documents. overlooked a credit, deduction, or exemption. For some tax types, you must file an amended return to claim the refund. For If there are any additional taxes due, you will receive a other tax types, you must submit a refund claim together with Statement of Proposed Audit Changes or similar document, documentation substantiating the erroneous tax payment or explaining the reason. We will give you a reasonable amount of overpayment. Refer to our website for more information. time to respond. The technician will then analyze your response and, if appropriate, make any adjustments to the amount If during the course of an audit, assessment, collection, or owed. If, however, the audit results in a refund, you will receive enforcement proceeding, we discover you overpaid tax, we must notification of your refund with a letter of explanation, unless you disclose that to you. However, we are not required to disclose owe other taxes or a debt referred to the Tax Department (see an overpayment, pay a refund, or grant a credit if, at the time of Offsets). discovery, the period was closed due to the statute of limitations. If preliminary findings result in a material effect on the reporting Generally, if we do not issue your refund within a specified of another tax, those findings may be referred to another tax period of time, we must pay you interest. For example, we must specialty at any time during the audit process. We may use audit add interest to the amount of your personal income tax refund, if adjustments of one tax specialty as a basis to recalculate tax in we don’t issue the refund within 45 days of the due date of your another, depending on the facts and circumstances of the case. return or the date you filed, whichever is later. We may approve a claim for refund for the amount requested, or If you agree adjust or deny it. If approved, you will receive a refund, plus any If you agree with the audit findings, we may ask you to sign the applicable interest. If adjusted, you will receive an amount lower Statement of Proposed Audit Changes or similar document, and than you requested, and an explanation of the adjustments. If pay the amount due. we deny your claim fully or partially, we will send you a written notice to explain any protest rights you may have. If you owe money but cannot pay in full immediately, you may be eligible for an installment payment agreement, which will allow Note: If you owe other taxes or a debt to us, another state you to spread out your payments over time (see Installment agency, the federal government, New York City, or another state, payment agreement). However, interest (and possibly penalties) we may pay all or part of your refund to them. We will notify you will continue to accrue on the unpaid balance. of this refund offset. If you have any questions about a debt not owed to us, contact the other agency, the federal government, If you disagree New York City, or the other state directly (see Offsets). If you do not agree with the audit findings, you should submit If you disagree with the adjustment or disallowance of a refund, more information to substantiate your disagreement, and return you may submit more information to substantiate your position. a copy of the Statement of Proposed Audit Changes to us. The If you received a Notice of Disallowance adjusting or disallowing technician will review any additional information you submit and, the refund you claimed, you may request a conciliation if appropriate, notify you of their determination in writing. conference with the Bureau of Conciliation and Mediation If you still do not agree with the audit findings, we will send you Services, or file a petition for a hearing with the Division of a Notice of Deficiency or Notice of Determination for the taxes Tax Appeals, within the time indicated on the notice (see Your due. At this point, you may appeal the audit findings through right to protest an action taken by the Tax Department). Your either the Bureau of Conciliation and Mediation Services, or the time to request a conciliation conference or file a petition is not Division of Tax Appeals. Generally, you must file your appeal extended by any further correspondence or contact with us. within 90 days of the date the notice was issued (see Your right While you may also request a conciliation conference or file a to protest an action taken by the Tax Department). Refer to petition for a hearing if six months have passed since you filed a the notice you received for the applicable time limit. You must timely refund claim and you did not previously file a petition for submit a written appeal even if you have previously written to the an income or corporation tax deficiency for the same tax year, department and objected to the position taken in the Statement you may wish to see that we have had a chance to review all of Proposed Audit Changes, or similar document. the relevant information. For income and corporation taxes, you Although payment is not required while appealing a Notice must file the request or petition within two years from the date of Deficiency or Notice of Determination, you may pay the we mailed the Notice of Disallowance. Other taxes have different proposed amount due, to stop the accrual of additional interest time frames to request a conciliation conference or petition for and any penalties due if you are eventually found liable. a hearing. For example, if we deny a claim for refund of sales taxes, you must file a request or petition within 90 days of the You may also pay any tax due, and then file a claim for refund date we denied the claim. within the time period applicable to the tax involved. If we deny your claim completely or partially, you may then choose to There is a statute of limitations to claim refunds. For most taxes, appeal to the Bureau of Conciliation and Mediation Services, you must file amended returns, or other claims for refund, within or to the Division of Tax Appeals, within the applicable statutory three years of the date the original return was due or filed, or period. within two years of the date you paid the tax, whichever is later. If you did not file a return, then you must file the claim for refund within two years of the date you paid the tax. |
Page 4 of 8 Publication 131 (9/22) If you file an amended return or claim for refund on an income, You may appear on your own behalf, or you may have an corporation, or sales tax return within the three-year period, authorized representative present your case for review. An the allowable refund may not exceed the portion of tax paid authorized representative must have a power of attorney from within the three-year period immediately preceding the filing of you to appear on your behalf. For information on how to file a the refund claim, plus the period of any extension of time for power of attorney, visit our website (see Need help?). filing the return. If you file the amended return or claim within the two-year period, the allowable refund may not exceed the If the disputed amount is within certain monetary limits, you portion of the tax paid within the two-year period immediately may elect to have your Division of Tax Appeals hearing held in preceding the claim for refund. the Small Claims Unit (see Small claims option). Note: Estate tax filers are not eligible for hearings before the Division of Tax You may file an amended return for income, estate, or Appeals, see Estate tax appeal rights. corporation tax, or file a claim for refund, beyond the periods mentioned above if the refund is attributable to a reported You have no prepayment hearing rights at the Bureau of federal change or correction that you must report to New York Conciliation and Mediation Services or the Division of Tax State. You must file an amended return or a claim for refund Appeals if you owe tax, interest, or penalty due to: within two years of the date that notification of the change or • mathematical or clerical errors on your return, correction was due. • changes made to your federal return by the IRS, or The refund claim form, return, or other method that you must • your failure to pay all or part of the amount due as shown on use depends on the tax for which you are seeking a refund. For your return. information on the applicable time limits within which you must make your claim for refund, and to obtain the appropriate forms, Conciliation conference see Need help?. A conciliation conference is an efficient and inexpensive way to try to resolve protests. The conference is conducted informally Penalties and interest by a conciliation conferee who will review all the evidence The three most common reasons for penalties are: presented to determine a fair result. After the conference, the conferee will send you a proposed resolution in the form of a • late filing, consent. If you do not sign the consent, a conciliation order will • overdue taxes, and then be issued. This conciliation order is binding unless you file • underpayment of estimated tax. a petition, Form TA-100, with the Division of Tax Appeals. Refer to the information you receive with the order for the applicable In the simplest terms, avoiding penalties and interest is a matter time limit to file. of filing your tax returns and paying the correct amount of taxes on time. If you are unclear about any of your tax responsibilities, Conciliation conferences are not available to distributors, use the resources described in this publication to learn more importing transporters, terminal operators, or petroleum about your filing requirements. businesses where the issue is an increase in the amount of a bond or other security. Only the Division of Tax Appeals may The amount of penalties for late filing and delinquent taxes is handle these issues. generally based on the amount of tax that is overdue. However, there are various penalties for late filing even if you owe no tax. You may be able to request a conciliation conference through an Online Services account with the department (refer to the Interest and any penalties continue to be added to the amount notice you received for instructions, and if able, visit our website due until we receive full payment. All interest is compounded daily. and search: OLS to set up an account if you do not have one) or For applicable interest rates, visit our website (see Need help?). by sending Form CMS-1-MN to the Bureau of Conciliation and Mediation Services by fax to 518-435-8554, or by mail to: Your right to protest an action taken by the NYS TAX DEPARTMENT Tax Department CONCILIATION & MEDIATION SERVICES If you disagree with a final action taken by us, you may protest W A HARRIMAN CAMPUS by filing Form CMS-1-MN, Request for Conciliation Conference, ALBANY NY 12227-0918 with the Bureau of Conciliation and Mediation Services, or by If not using U.S. Mail, see Publication 55, Designated Private filing Form TA-100, Petition, for a tax appeals hearing with the Delivery Services. Division of Tax Appeals. Those actions may include: • the issuance of a tax deficiency or determination; Tax appeals hearing • the denial of a refund claim; or To request a tax appeals hearing, you must file Form TA-100 • the denial or revocation of a license, registration, or exemption with the Division of Tax Appeals. The petition must be in writing certificate. and must specifically indicate what actions you are protesting. You must file the request or petition within a certain period from The hearing is an adversarial proceeding before an impartial the date the Tax Department mailed you notice of our action. administrative law judge. The hearing will be recorded Refer to the notice you received for the applicable time limit. stenographically. After the hearing, the administrative law These time limits are established by the Tax Law and cannot judge will issue a determination that will decide the matters in be extended. If you are mailing your request or petition, we dispute unless you or the Tax Department request a review of recommend that you use certified or registered mail. For the decision by the Tax Appeals Tribunal. If that happens, the purposes of this rule, the filing date is the date the envelope Tribunal will: containing the request or petition is postmarked by the U.S. • review the record of hearing and any additional oral or written Postal Service, or the date recorded or marked as described in arguments, and Internal Revenue Code section 7502 by a designated private • issue a decision affirming, reversing, or modifying the delivery service. Publication 55, Designated Private Delivery administrative law judge’s determination, or Services, lists the private delivery services approved for this purpose. • refer the matter back to the administrative law judge for further hearing. |
Publication 131 (9/22) Page 5 of 8 Form TA-100 and the Rules of Practice and Procedure are Deficiency, Notice of Disallowance, or the Conciliation Order that available on the Division of Tax Appeals and Tax Appeals you received. Tribunal’s website at www.dta.ny.gov. You may also request them by calling 518-266-3000, or by writing to: To obtain a petition form, contact the clerk of the local Surrogate’s Court having jurisdiction over the estate. A request DIVISION OF TAX APPEALS for petition forms and rules is not considered the filing of a AGENCY BUILDING 1 petition, and does not extend the time limits for filing a petition. EMPIRE STATE PLAZA ALBANY NY 12223 If you file a Notice of Petition and a Verified Petition with the A request for petition forms and the rules is not considered the Surrogate’s Court, you must file a copy at the same time with the filing of a petition for a hearing for purposes of the time limits, Commissioner of Taxation and Finance. Mail to: and it does not extend the time limits for filing a petition. NYS TAX DEPARTMENT OFFICE OF COUNSEL Court review W A HARRIMAN CAMPUS ALBANY NY 12227-0911 If you do not agree with the Tax Appeals Tribunal’s decision, you may seek court review. There are time limits within which If not using U.S. Mail, see Publication 55, Designated Private you may appeal for court review (generally, within four months Delivery Services. from when the Tax Appeals Tribunal serves you notice of the decision, by certified mail or personal service). For some taxes, you must pay the tax, interest, and penalty; or post a bond for The collection process these amounts, plus court costs, when you file an appeal for When your appeal rights have expired or have been exhausted, court review. our Civil Enforcement Division begins collection proceedings. Before this begins, you will have the opportunity to pay your tax debt. In certain circumstances, you may request an installment Small claims option payment agreement, which will allow you to spread out your If the amount in dispute is within the dollar limits set by the Rules payments. of Practice and Procedure, you may elect to have your hearing held in the Small Claims Unit of the Division of Tax Appeals. An If you are severely financially distressed, you may also decide to impartial presiding officer conducts the small claims hearing. The submit an offer in compromise. However, we will not necessarily presiding officer’s determination is conclusive and is not subject accept the offer. We consider offers from taxpayers: to review by any other unit in the Division of Tax Appeals, the • recently discharged from bankruptcy, Tax Appeals Tribunal, or by any court in the state. • who are insolvent (their liabilities exceed their assets), and Relief from liability as an innocent spouse • for whom collection in full would cause undue economic If you file a joint income tax return, both you and your spouse hardship such that the individual would not be able to pay reasonable living expenses. are generally responsible for the tax and any interest or penalties due on the return. This means that if one spouse does Generally, the amount offered in compromise must reasonably not pay the tax due, the other may have to pay it. You may reflect collection potential. For more information on offers qualify for relief from liability for tax on a joint return if: in compromise, see Publication 220, Offer in Compromise • there is an understatement of tax because your spouse Program. omitted income or claimed false deductions or credits; • you are divorced, separated, or no longer living with your Installment payment agreement spouse; and If you are financially unable to pay the full amount of your • given all the facts and circumstances, it would be unfair to liability all at once, you may qualify for an installment payment hold you liable for the tax. agreement. To apply, visit our website (see Need help?). Under the agreement, you may pay off your total tax liability in monthly For more information, see: installments. We will establish a direct payment arrangement • Publication 89, Innocent Spouse Relief (and Separation of with your financial institution, under which monthly installment Liability and Equitable Relief), and payments are automatically withdrawn and remitted to our processing bank. • Form IT-285, Request for Innocent Spouse Relief (and Separation of Liability and Equitable Relief), and its However, this does not put a cap on the total amount you owe. instructions. Until your tax liability is satisfied, interest and any penalties will continue to accrue on any unpaid balance. Estate tax appeal rights To qualify for an installment payment agreement, you may need You may protest a Notice of Deficiency or the denial of an estate to complete Form DTF-5, Statement of Financial Condition, and tax refund claim by filing Form CMS-1-MN with the Bureau of supply other information to substantiate your present financial Conciliation and Mediation Services (see Your right to protest condition and your inability to make full payment. You must also an action taken by the Tax Department), or by filing a petition file your returns and pay all future taxes as they become due. to commence a special proceeding in the Surrogate’s Court. If you do not pay your new tax liabilities or file returns on time, If you wish to pursue a court action, but you elect not to file you will be in default under the agreement. After we give you Form CMS-1-MN, or if you disagree with a Conciliation Order, notice of your default, we may then resume collection action on you must file a Notice of Petition and a Verified Petition with the liability under the payment agreement, or we may modify or the Surrogate’s Court of the county having jurisdiction over the terminate the agreement. estate. The petition must be in writing, and must specifically indicate what actions you are protesting. We will apply any payments, refunds, or other monies owed to you against the tax liability you are paying in installments. You must complete and file the petition in accordance with Any monies so applied will reduce the repayment term of your the applicable statute, by the date indicated on the Notice of installment payment agreement, but you are still required to pay |
Page 6 of 8 Publication 131 (9/22) the monthly amount agreed upon until your debt is paid in full agents may remove all of the merchandise at your business, or (see Offsets). seize your business assets and store them elsewhere until the assets are sold at auction. We may terminate an installment payment agreement at any time without notice if we believe collection of the tax is in If we seize your property, we will notify you of the date, time, jeopardy. Otherwise, we may terminate or modify an installment and place of the auction. At any time before the auction begins, payment agreement only upon at least 30 days prior notice, we will release the property and return it to you if you pay in explaining the reason, in any of the following situations: full; or make satisfactory arrangements to pay the tax, penalty, • We find that the information you supplied before entering into and interest owed, along with the expenses we incurred in the the agreement is inaccurate or incomplete. seizure and the preparation for the auction. • Your financial condition changes significantly. You have the right to request that any seized property be sold • You fail to pay an installment payment or any other tax liability within 60 days of the request, or within some longer specified when due. period. We will honor your request, unless it is in the state’s best interest to retain the property for a longer period, in which case • You fail to file future returns on time. we will notify you. • You fail to supply updated information on your financial condition when requested. We will sell your property in accordance with the New York Civil Practice Law and Rules. If we terminate the agreement, we may then resume collection action on the liability. Once your assets are sold, we will send you an accounting of the disbursement of the auction proceeds. If the proceeds Whether or not you enter into a payment agreement, we may exceed your debt and our expenses, we will return the surplus also file a tax warrant with the appropriate county clerk and the to you. New York State Department of State, to ensure our priority over your subsequent creditors (see Tax warrant). Release of levy If you do not satisfy your full tax liability or comply with the terms We will release a levy on all or part of your property, and send of an installment payment agreement, or if we rescind or reject notice of the release, if: an offer in compromise, we may use any or all of the following • you file a bankruptcy petition; activities to collect your tax liability. • you pay the underlying liability, or it becomes unenforceable by lapse of time; Tax warrant • releasing the levy will facilitate collection of the liability; We can file a tax warrant against you. A tax warrant is equivalent to a civil judgment against you. It is a public record on file with • you enter into an installment payment agreement that the appropriate New York State county clerk’s office and with specifically provides for release of the levy; the New York State Department of State. Warrant information is • the fair market value of the seized property exceeds your posted on the Department of State’s website. tax liability, and release of part of the property can be made without hindering collection of your liability; or A filed tax warrant creates a lien against your real and personal property, which may affect your ability to obtain credit or buy • if you are an individual, we determine that the levy is creating or sell property, and allows us to seize and sell your real and an economic hardship due to your financial condition. personal property, or garnish your wages or other income. If we seize property essential to your trade or business, we will determine whether the property can be released on the grounds Levy stated above. If we release the levy on your property, we are not A levy is a legal seizure of your property. In most cases, before prohibited from future levy of the property if needed to collect a levy is served, we will send you a Form DTF-978, Notice to your tax liability. Judgment Debtor or Obligor, that provides a list of property that may be exempt from collection actions. Most frequently, a levy is If property is wrongfully levied on, we may return the property made on bank accounts, and requires a bank to remove money seized, money equal to its fair market value, or the amount of from your account and send it to us. A levy can also be made money seized, with interest, if applicable. on money that any third party owes you, such as a loan or rent owed to you. If you are a business taxpayer, a levy can attach to Offsets any cash on hand, or to business assets, such as machines and Any payment the state may owe you for goods or services you equipment. sold or provided to any state agency or instrumentality may be withheld and applied against any tax liability you owe to the Income executions state. If any payment due to you is the subject of this kind of An income execution is a type of levy that may be issued against offset, we will send you prior written notice. your wages. We will ask you to voluntarily pay up to 10% of your In addition, under certain circumstances, any New York State tax gross wages each time you are paid. If you don’t make voluntary refund or other payment due to you may be offset to pay your payments, we will have your employer automatically deduct up New York State tax liabilities, or it may be sent to another state to 10% of your gross wages out of your paycheck and send it to agency, the federal government, New York City, or another state us. The income execution remains in effect until the outstanding to which you owe money or taxes. The other state agency, the tax liability is satisfied. federal government, New York City, or the other state will send you prior written notice and then apply your refund to your debt. Seizures and sales If you have a past due legally enforceable New York State, New We may seize and sell your non-exempt real or personal York City, or Yonkers income tax debt, it will be referred to the property at auction. federal government or any state participating in the Multi-State During a business seizure, collection agents may have the Offset Program. Your federal income tax refund or other state locks changed at your place of business, denying you access to refund may be applied to your New York State tax debt, up to the your place of business and your business assets. Alternatively, amount you owe. |
Publication 131 (9/22) Page 7 of 8 Refund of nonobligated spouse • are involved in deciding which financial obligations are paid; If you file a joint income tax return and expect to receive a • are involved in personnel activity (such as hiring or firing refund, we may use the refund to pay your spouse’s tax debts or employees); other debts owed to a New York State agency. If you do not wish • have check signing authority; your portion of the refund to be used to pay your spouse’s debts, complete Form IT-280, Nonobligated Spouse Allocation, and do • prepare tax returns; one of the following: • have authority over business decisions; • Include the form with your income tax return. • are a tax manager or general manager; or • File the form within ten days of the notice from us that the • are a corporate officer. refund will be used to offset other debts. Under certain circumstances, you may be issued a responsible Form IT-280 does not allow you to disclaim your spouse’s debts person assessment even if you are not under a duty to act for to the federal government, or tax debts owed to another state. the business. For example, for sales and use taxes, we may issue a responsible person assessment against you if you are a Driver’s license suspension for nonpayment of taxes member of a partnership or limited liability company, whether or Your New York State driver’s license is eligible for suspension by not you have a duty to act on behalf of the partnership or limited the Department of Motor Vehicles (DMV) if you have a past-due liability company. fixed and final New York State tax liability of at least $10,000. If we issue a responsible person assessment against you and Before your driver’s license is suspended, we will send you a you do not agree with it, you generally have 90 days to appeal, notice stating you have 60 days to pay the debt in full, make by either requesting a conciliation conference, or petitioning for satisfactory payment arrangements, or protest the proposed a Division of Tax Appeals hearing. The appeal entitles you to a suspension only on any of the following grounds: hearing to present any information you may have to refute the assessment and your liability as a responsible person. We will • You are not the taxpayer named in the notice. include a full explanation of your rights to protest an assessment • Your past-due tax liability has been paid in full. with your original assessment document. For sales and use • Your wages are being garnished for payment of the past-due taxes only, you will be considered to have appealed if your tax liabilities at issue, or for past-due child support or business requests a conciliation conference, or petitions for a combined child and spousal support arrears. tax appeals hearing for the same tax liability. However, if you are not certain that the business has appealed on time, and you • Your driver’s license is a commercial driver’s license. wish to appeal the assessment, you should request your own • You receive public assistance or supplemental security conciliation conference or petition for a tax appeals hearing. income. Once a responsible person assessment is final, we can use • You demonstrate the suspension of your driver’s license will all collection methods available against your assets. We may cause undue economic hardship. collect from you the full amount of the liability the business owes, • We incorrectly found that you failed to comply with the terms even if there are other entities or persons involved who may of a payment arrangement more than once within a 12-month be similarly assessed. Responsible person tax debts are not period. dischargeable in bankruptcy. You may also try to establish that you are eligible for innocent spouse relief (see Publication 89, Innocent Spouse Relief (and Estate tax liability of executors and transferees Separation of Liability and Equitable Relief)), or that enforcement If you are the executor or administrator of an estate and you of the underlying liabilities have been stayed by the filing of a distribute assets to a beneficiary of the estate, or pay any debt bankruptcy petition (call the department’s Bankruptcy Unit at owed by the estate before paying the New York estate tax, you 518-457-3160). may be held personally liable for the unpaid estate tax. You will continue to be liable until either the estate tax is paid in full or the If you fail to respond to the notice, we will refer your case to department authorizes a release of estate tax lien. In addition, if DMV for the suspension of your driver’s license. Before the you received property from the estate as a beneficiary, you may actual suspension occurs, DMV will issue a final letter stating be held personally liable for the unpaid estate tax up to the value you have 15 calendar days to resolve your tax liabilities with the of the property you received. However, this does not include Tax Department. For information on obtaining a restricted use property jointly held by the decedent and surviving spouse. driver’s license, visit the DMV website at www.dmv.ny.gov. Trust accounts Responsible person assessments If you are a business owing sales and use taxes or withholding For taxes such as sales and use taxes, withholding tax, and taxes, you may need to establish a trust or segregated account motor fuel excise tax, responsible persons of a business may be with a financial institution, for depositing taxes as you collect held personally liable for the business’s unpaid New York State them from customers, or withhold them from employees’ wages. tax liabilities. You may be considered a responsible person if you The trust account ensures that the taxes owed are available are an officer, director, or employee of a corporation or dissolved when the tax returns are due. corporation, or employee of a partnership or sole proprietorship who was under a duty to act for the business to comply with the We will require you to set up a trust account when your past relevant provisions of the Tax Law. To be liable for withholding performance indicates chronic tax delinquencies. tax, a responsible person must also have acted willfully in failing to collect or pay over the tax. Revocation or suspension of Certificate of Authority Factors we consider in determining whether you are a or refusal to issue a Certificate of Authority responsible person include whether you: We may revoke or suspend your Certificate of Authority to collect sales and use taxes for willful failure to comply with certain • are actively involved in operating the business on a regular requirements of the Tax Law, such as willfully failing to file a basis; return or to pay tax. If your Certificate of Authority is revoked or suspended, you will be prohibited from engaging in any business |
Page 8 of 8 Publication 131 (9/22) in New York State for which a Certificate of Authority is required. If you try to remain in business with a revoked or a suspended certificate, or start a new business without a required certificate, we may impose civil and criminal penalties. We may also refuse to issue a Certificate of Authority for prior noncompliance with the Tax Law. If we begin a Certificate of Authority revocation or suspension proceeding, or refuse to issue a Certificate of Authority, we will notify you of your rights during each step of the process, including your right to protest. We may stop the process at any time if circumstances warrant it, such as if you satisfy your liability. Representation during a collection activity You may represent yourself, or designate another person to represent you. Any person representing you must have the proper written authorization (a power of attorney) from you to act on your behalf. For more information on how to file a power of attorney, visit our website or call us (see Need help?). Licenses and collateral If you do not pay your taxes, we or another government agency may cancel or suspend your license or other certificate to engage in business. Any bond or other collateral you may have posted for a license may be liquidated and applied to your tax debt. If a bond is canceled, you must obtain a new bond before you can resume the business activities for which a bond is required. Resolving a problem or filing a complaint If you have a problem with the Tax Department that you have not been able to resolve through normal channels, or if for any reason you have a complaint about the department, visit our website or call us (see Need help?). Depending upon the nature of your complaint, our representatives will either assist you in resolving the matter or refer your complaint for further review. Need help? Visit our website at www.tax.ny.gov • get information and manage your taxes online • check for new online services and features Telephone assistance Personal Income Tax Information Center: 518-457-5181 Corporation Tax Information Center: 518-485-6027 Sales Tax Information Center: 518-485-2889 Withholding Tax Information Center: 518-485-6654 Miscellaneous Tax Information Center: 518-457-5735 To order forms and publications: 518-457-5431 Text Telephone (TTY) or TDD Dial 7-1-1 for the equipment users New York Relay Service |