2010 New York Code
TAX - Tax
Article 41 - TAXPAYERS' BILL OF RIGHTS
Part 3 - (3030 - 3038) PROCEEDINGS BY TAXPAYERS
3030 - Awarding of costs and certain fees.

§  3030.   Awarding of costs and certain fees. (a) In general.  In any
  administrative or court proceeding which is brought by  or  against  the
  commissioner in connection with the determination, collection, or refund
  of  any  tax,  the  prevailing  party  may  be  awarded  a judgment or a
  settlement for:
    (1)  reasonable administrative costs incurred in connection with  such
  administrative proceeding within the department, and
    (2)    reasonable  litigation  costs  incurred in connection with such
  court proceeding.
    (b)    Limitations.  (1)  Exhaustion  of  administrative  remedies.  A
  judgment  for  reasonable  litigation  costs  shall not be awarded under
  subdivision (a) of this section in any court proceeding unless the court
  determines that the prevailing party has  exhausted  the  administrative
  remedies  available to such party within the department.  Any failure to
  agree to an extension of the time for the assessment of  any  tax  shall
  not  be  taken  into  account  for  purposes  of determining whether the
  prevailing party meets the requirements of the preceding sentence.
    (2)  Only costs allocable to the state.   An award  under  subdivision
  (a)  of  this  section  shall be made only for reasonable litigation and
  administrative costs which are allocable to the state of  New  York  and
  not to any other party.
    (3)    Costs  denied where prevailing party protracts proceedings.  No
  award for reasonable litigation and administrative costs may  be    made
  under  subdivision  (a)  of this section with respect to any  portion of
  the administrative or court proceeding during which the prevailing party
  has unreasonably protracted such proceeding.
    (4) This section shall provide the exclusive means  for  a  prevailing
  party  to  be  awarded  administrative  and litigation costs incurred in
  connection with any administrative or court proceeding which is  brought
  by  or  against  the  commissioner in connection with the determination,
  collection, or refund of any tax.
    (c) Definitions.  For purposes of this section:
    (1)  Reasonable  litigation  costs.  The  term  "reasonable litigation
  costs" includes:
    (A) reasonable court costs, and
    (B) based upon prevailing market rates  for  the  kind  or quality  of
  services furnished:
    (i) the reasonable expenses of expert witnesses in  connection with  a
  court proceeding,
    (ii) the reasonable cost of any study,  analysis,  engineering report,
  test, or project which is found by the court to  be  necessary  for  the
  preparation of the party's case, and
    (iii) reasonable fees paid or incurred for the  services  of attorneys
  in connection with the court proceeding, except that such fees shall not
  be  in  excess  of  seventy-five  dollars  per  hour  unless  the  court
  determines that an increase in the cost of living or a  special  factor,
  such  as  the  limited  availability  of  qualified  attorneys  for such
  proceeding, justifies a higher rate.
    (2)  Reasonable  administrative  costs.     The  term      "reasonable
  administrative costs" means:
    (A)  any  administrative  fees  or  similar  charges  imposed by   the
  department, and
    (B) expenses, costs, and fees described  in  subparagraph    (B)    of
  paragraph one of this subdivision, except that any determination made by
  the  court under clause (ii) or (iii) of such subparagraph shall be made
  by the division of tax appeals in cases where  the  determination  under
  subparagraph  (C)  of paragraph five of this subdivision of the awarding
  of reasonable administrative costs  is  made  by  the  division  of  tax

appeals.    Such  term shall only include costs incurred on or after the
  date of the notice of  deficiency,  notice  of  determination  or  other
  document giving rise to the taxpayer's right to a hearing.
    (3)   Attorney's fees.  For purposes of paragraphs one and two of this
  subdivision, fees for the services of an individual (whether or  not  an
  attorney)  who  is  authorized  to  practice  before the division of tax
  appeals shall be treated as fees for the services of an attorney.
    (4) Burden of proof.  For purposes of this section, "burden of  proof"
  means  the  necessity  or  duty  of  proving,  by a preponderance of the
  evidence, a fact or facts in dispute on  an  issue  raised  between  the
  parties to a proceeding referred to in subdivision (a) of this section.
    (5)    Prevailing  party. (A) In general.  The term "prevailing party"
  means any party in any proceeding  to  which  subdivision  (a)  of  this
  section  applies  (other  than  the  commissioner or any creditor of the
  taxpayer involved):
    (i)  who (I) has substantially prevailed with respect to the amount in
  controversy, or (II) has substantially prevailed  with  respect  to  the
  most significant issue or set of issues presented, and
    (ii)    who  (I)  within  thirty days of final judgment in the action,
  submits to the court an application for fees and  other  expenses  which
  shows that the party is a prevailing party and is eligible to receive an
  award  under  this section, and the amount sought, including an itemized
  statement from an attorney or expert witness representing  or  appearing
  in  behalf of the party stating the actual time expended and the rate at
  which fees and other  expenses  were  computed  (except  to  the  extent
  differing  procedures  are established by rule of court), and (II) is an
  individual whose net worth did not exceed two  million  dollars  at  the
  time  the  civil  action  was filed, or is an owner of an unincorporated
  business, or any partnership, corporation, association,  unit  of  local
  government  or organization, the net worth of which did not exceed seven
  million dollars at the time the civil action was filed,  and  which  had
  not  more  than  five hundred employees at the time the civil action was
  filed; except that an organization described in section 501(c)(3) of the
  internal revenue code exempt from taxation under section 501(a) of  such
  code,  or  a  cooperative  association  as  defined  in  the cooperative
  corporations law, may be a party regardless of the  net  worth  of  such
  organization or cooperative association.
    (B)  Exception if the commissioner establishes that the commissioner's
  position was substantially justified.
    (i) General rule.   A party shall not be  treated  as  the  prevailing
  party  in  a proceeding to which subdivision (a) of this section applies
  if the commissioner establishes that the position of the commissioner in
  the proceeding was substantially justified.
    (ii) Burden of proof.  The commissioner shall have the burden of proof
  of  establishing  that  the  commissioner's  position  in  a  proceeding
  referred  to  in  subdivision  (a)  of  this  section  was substantially
  justified, in which event, a party shall not be treated as a  prevailing
  party.
    (iii)  Presumption.   For purposes of clause (i) of this subparagraph,
  the  position  of  the  commissioner  shall  be  presumed  not   to   be
  substantially  justified  if  the department, inter alia, did not follow
  its applicable published  guidance  in  the  administrative  proceeding.
  Such presumption may be rebutted.
    (iv)  Applicable  published guidance.   For purposes of clause (ii) of
  this subparagraph, the term "applicable published  guidance"  means  (I)
  regulations,   declaratory   rulings,   information  releases,  notices,
  announcements, and technical services bureau memoranda, and

(II) any of the following which are issued to the taxpayer:   advisory
  opinions and opinions of counsel.
    (C)    Determination  as to prevailing party.  Any determination under
  this paragraph as to whether a party is a prevailing party shall be made
  by agreement of  the  parties  or  (i)  in  the  case  where  the  final
  determination  with  respect to tax is made at the administrative level,
  by the division of tax appeals, or (ii) in the  case  where  such  final
  determination is made by a court, the court.
    (6)  The term "administrative proceeding" means any procedure or other
  action   before  the  division  of  taxation  (such  as  the  bureau  of
  conciliation and mediation services) or division of tax appeals.
    (7)  The term "court proceeding" means any civil action brought  in  a
  court  of  the  state  of  New  York  (including  proceedings before the
  surrogate's courts under  section  nine  hundred  ninety-eight  of  this
  chapter).
    (8)  The term "position of the commissioner" means:
    (A)    the position taken by the commissioner in a judicial proceeding
  to which subdivision (a) of this section applies, and
    (B)   the position taken in  an  administrative  proceeding  to  which
  subdivision  (a) of this section applies as of the date of the notice of
  deficiency, notice of determination or other document giving rise to the
  taxpayer's right to a hearing.
    (d) Multiple actions.  For purposes of this section, in the case of:
    (1)  multiple actions which could have been joined or consolidated, or
    (2)   a case or cases involving  a  return  or  returns  of  the  same
  taxpayer  (including  joint  returns of married individuals) which could
  have been joined in a single court proceeding in the  same  court,  such
  actions  or cases shall be treated as one court proceeding regardless of
  whether such joinder or consolidation actually occurs, unless the  court
  in  which  such action is brought determines, in its discretion, that it
  would be inappropriate to treat such  actions  or  cases  as  joined  or
  consolidated.
    (e)    Right  of  appeal. (1) Court proceedings.  An order granting or
  denying (in whole or in part) an  award  for  reasonable  litigation  or
  administrative  costs  under  subdivision (a) of this section in a court
  proceeding, may be incorporated as a part of the decision or judgment in
  the court proceeding and shall be subject to appeal in the  same  manner
  as the decision or judgment.
    (2)  Administrative proceedings.  A determination or decision granting
  or  denying (in whole or in part) an award for reasonable administrative
  costs under subdivision (a) of this  section  by  the  division  of  tax
  appeals  or  the  tax  appeals tribunal shall be subject to exception or
  review in the same manner as the determination or decision.