2010 New York Code
TAX - Tax
Article 12-A - (282 - 289-F) TAX ON GASOLINE AND SIMILAR MOTOR FUEL
288 - Determination of tax.

§  288.  Determination  of tax. 1. (a) Except as otherwise provided in
  this section, if a distributor files a return under  this  article,  but
  such return is incorrect or insufficient, the state tax commission shall
  determine the amount of tax due at any time within three years after the
  return  was  filed (whether or not such return was filed on or after the
  due date),  and  give  written  notice  of  such  determination  to  the
  distributor.    For  the  purposes  of this section the term distributor
  shall also include any other person liable for the taxes imposed by this
  article.
    (b) The tax commission shall determine the liability for  the  penalty
  imposed  by  subdivision two of section two hundred eighty-nine-b of any
  officer, director, shareholder or employee of  a  corporation  or  of  a
  dissolved  corporation,  member or employee of a partnership or employee
  of an individual proprietorship. The tax commission shall also determine
  the amount of such penalty. All of the provisions of this section  shall
  apply  to any determination made pursuant to this paragraph and for such
  purpose the term distributor, as used in subdivisions four, five and six
  of this section, shall also mean and  include  such  officer,  director,
  shareholder, employee or member as the case may be.
    (c)  The  tax commission shall determine the liability for the penalty
  imposed by paragraph (e) of  subdivision  one  of  section  two  hundred
  eighty-nine-b  of  any  person as an owner of a filling station. The tax
  commission shall also determine the amount of such penalty. All  of  the
  provisions  of  this  section  shall  apply  to  any  determination made
  pursuant to this paragraph and for such purpose the term distributor, as
  used in subdivisions four, five and six of this section, shall also mean
  and include such person.
    (d) The provisions of paragraphs (b) and (c) of this subdivision shall
  not be construed to limit in any  manner  the  powers  of  the  attorney
  general under subdivision one of section two hundred eighty-nine of this
  chapter  or  the  powers  of the tax commission to issue a warrant under
  subdivision two of such section against any person whose  liability  has
  become finally and irrevocably fixed.
    2. The state tax commission may determine the amount of tax due at any
  time  if  such  distributor  (i)  has not registered as required by this
  article, (ii) fails to file a return, (iii) files a willfully  false  or
  fraudulent  return with intent to evade the tax, or (iv) fails to comply
  with section two hundred eighty-three of this article in  not  informing
  the  department,  in  writing,  of  any  change in its address and, if a
  corporation or partnership, in not informing the department, in writing,
  of any change in its officers, directors or partners or their  residence
  addresses as shown in its application for registration.
    3.  If  a  distributor shall inform the department, in writing, of any
  change in its address and, if a corporation or partnership shall  inform
  the  department, in writing, of any change in its officers, directors or
  partners or their residence addresses as shown in  its  application  for
  registration,  the determination of the amount of tax due may be made at
  any time within three years after such information is received.
    4. Notwithstanding any of the foregoing provisions  of  this  section,
  where,  before the expiration of the time prescribed in this section for
  the determination of tax, both the tax commission  and  the  distributor
  have  consented in writing to its determination after such time, the tax
  may be determined at any time prior to  the  expiration  of  the  period
  agreed  upon.    The period so agreed upon may be extended by subsequent
  agreements  in  writing  made  before  the  expiration  of  the   period
  previously agreed upon.
    5.  Any  determination made pursuant to this section shall finally and
  irrevocably fix the tax  unless  the  distributor  against  whom  it  is

assessed  shall,  within  ninety days after the giving of notice of such
  determination, petition the division of tax appeals for  a  hearing,  or
  unless the commissioner of taxation and finance of his own motion, shall
  redetermine  the same.   After such hearing, the division of tax appeals
  shall give notice of the determination of the administrative  law  judge
  to  the  distributor  liable  for  the  tax  and  to the commissioner of
  taxation and finance. Such determination may  be  reviewed  by  the  tax
  appeals  tribunal  as  provided  in  article  forty of this chapter. The
  decision of the tax appeals tribunal may  be  reviewed  as  provided  in
  section two thousand sixteen of this chapter, but the proceeding may not
  be  commenced  unless  the  amount  of  tax stated or referred to in the
  decision, with penalties and interest thereon, if any, and the amount of
  any other penalty stated or referred to in the decision shall have  been
  first  deposited  with  the commissioner of taxation and finance, and an
  undertaking filed with him, 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 decision confirmed, the  petitioner  will
  pay  all  costs  and  charges  which  may  accrue  against  him  in  the
  prosecution of the proceeding, or at the option of the  petitioner  such
  undertaking  may  be  in  a  sum sufficient to cover the tax, penalties,
  interest, costs and charges aforesaid, in  which  event  the  petitioner
  shall  not  be  required  to  pay  such tax, penalties and interest as a
  condition precedent to the commencement of the proceeding.
    6. The remedy provided by this section for review of a decision of the
  tax appeals tribunal shall be the  exclusive  remedy  available  to  any
  taxpayer  to  judicially  determine  the  liability of such taxpayer for
  taxes under this article.