2010 New York Code
TAX - Tax
Article 41 - TAXPAYERS' BILL OF RIGHTS
Part 1 - (3000 - 3012) TAXPAYERS' RIGHTS
3008 - Abatement of certain interest, penalties and additions to tax.

§ 3008. Abatement of certain interest, penalties and additions to tax.
  (a)  Interest  attributable  to  unreasonable  errors  and delays by the
  department. (1) In the case of any assessment or final determination  of
  interest on:
    (A)   any   deficiency  or  any  tax  finally  determined  to  be  due
  attributable in whole or in part to any unreasonable error or  delay  by
  an  officer or employee of the department (acting in his or her official
  capacity) in performing a ministerial or managerial act, or
    (B) any payment of any tax to the extent that any  unreasonable  error
  or  delay  in  such  payment is attributable to such officer or employee
  being erroneous or dilatory in performing a  ministerial  or  managerial
  act, the commissioner may abate the assessment or final determination of
  all or any part of such interest for any period.
    (2) For purposes of paragraph one of this subdivision, an unreasonable
  error or delay shall be taken into account only if no significant aspect
  of  such  unreasonable  error or delay can be attributed to the taxpayer
  involved, and after the department has contacted the taxpayer in writing
  with respect to such deficiency, tax finally determined  to  be  due  or
  payment.  The  commissioner  shall  determine  what  constitutes  timely
  performance of various ministerial or managerial acts performed under or
  pursuant to the authority of this chapter,  the  general  city  law  and
  section  27-0923  of the environmental conservation law. Any regulations
  adopted with respect to  other  provisions  of  this  subdivision  shall
  conform,   to   the   extent  practicable,  with  corresponding  federal
  regulations under the comparable provisions of the laws  of  the  United
  States.  Administrative  and  judicial  review  of abatements under this
  subdivision shall be limited to review of whether failure to abate would
  be widely perceived as grossly unfair.
    (b) Abatement of any penalty or addition to  tax  or  excess  interest
  attributable  to  erroneous written advice by the department of taxation
  and finance.
    (1) The commissioner  shall  abate  any  portion  of  any  penalty  or
  addition  to  tax  or  excess  interest attributable to erroneous advice
  furnished to the taxpayer in writing by an officer or  employee  of  the
  department  of  taxation  and  finance,  acting  in  such  officer's  or
  employee's official capacity.
    (2) Paragraph one of this subdivision shall apply only if:
    (A) the written advice was reasonably relied upon by the taxpayer  and
  was in response to specific written request of the taxpayer, and
    (B)  the  portion of the penalty or addition to tax or excess interest
  did not result from a failure by the taxpayer  to  provide  adequate  or
  accurate information.
    (3)  This subdivision shall not be construed to require the department
  to provide written advice to taxpayers or other persons or entities.
    (c) Assessments attributable to certain  mathematical  errors  by  the
  department.  In  the  case  of  an  assessment  of any tax imposed by or
  pursuant to the authority of article  twenty-two,  thirty,  thirty-A  or
  thirty-B  of  this  chapter  or  article  two-E  of the general city law
  attributable in whole or in part to a mathematical  error  described  in
  subparagraph (A) of paragraph two of subsection (g) of section sixty-two
  hundred thirteen of the federal internal revenue code, if the return was
  prepared  by  an  officer or employee of the department acting in his or
  her  official  capacity  to  provide  assistance  to  taxpayers  in  the
  preparation  of  income  tax  returns, the commissioner is authorized to
  abate the assessment of  all  or  any  part  of  any  interest  on  such
  deficiency  for  any  period ending on or before the tenth day following
  the date of notice and demand by the commissioner  for  payment  of  the
  deficiency.

(d)  Interest  attributable  to misappropriation of taxpayer payments.
  (1) The commissioner shall  be  authorized  to  abate,  for  the  period
  specified  in paragraph two of this subdivision, any assessment or final
  determination of interest attributable  to  the  misappropriation  of  a
  taxpayer's payment if:
    (A)  the  taxpayer  timely  tenders  payment  to  the department for a
  liability incurred under any tax, and the taxpayer's  account  with  the
  department   is   not   properly  credited  with  such  payment  due  to
  misappropriation thereof;
    (B) the taxpayer does not cause, or in  any  way  contribute  to,  the
  misappropriation of such payment; and
    (C)  the  taxpayer  tenders a replacement payment to the department in
  the original amount of such tax due no later than one year from the date
  of mailing of notice from the department of failure to pay.
    (2) The commissioner shall be authorized to abate  any  assessment  or
  final determination of interest pursuant to this subdivision for some or
  all  of  the  period  from  the date of the underpayment to (A) the date
  which is one year from the date of mailing of the department's notice of
  failure to pay, (B) the date  which  is  one  year  from  the  date  the
  taxpayer  discovers  that  the  payment was not properly credited to the
  taxpayer's account or  (C)  thirty  days  from  the  date  the  taxpayer
  recovers use of the misappropriated funds, whichever is earliest.
    (3)  For  purposes  of  this  subdivision, the term "misappropriation"
  means circumstances in which a person wrongfully intercepts a taxpayer's
  payment tendered to the department prior to the department crediting the
  taxpayer's account, and obtains use of the taxpayer's funds.