2013 New York Consolidated Laws
TAX - Tax
Article 40 - (2000 - 2026) DIVISION OF TAX APPEALS
2006 - Tax appeals tribunal; functions, powers and duties.

 
    §  2006.  Tax  appeals  tribunal;  functions,  powers  and duties. The
  tribunal shall have the following functions, powers and duties:
    1. To establish,  consolidate,  alter  or  abolish  any  unit  in  the
  division;  to  appoint the heads of such units and fix their duties; and
  to establish, consolidate or alter any positions in the division.
    2. To appoint, remove or transfer officers, assistants, administrative
  law judges, and other  employees  as  it  may  deem  necessary  for  the
  exercise  of the powers and performance of the duties of the division of
  tax appeals, all of whom shall be in the classified civil service unless
  otherwise provided by law; to appoint a secretary  to  the  tax  appeals
  tribunal,  which position shall be in the exempt class of the classified
  service; and to prescribe  their  duties,  and  fix  their  compensation
  within the amounts appropriated therefor.
    3.  To  prepare and submit to the commissioner of taxation and finance
  itemized estimates of  the  financial  needs  of  the  division  of  tax
  appeals,  in  such  form  and  at  such  times  as  may be required, for
  inclusion as part of the financial needs of the department  of  taxation
  and  finance  furnished to the governor. The itemized estimates prepared
  by the tax appeals tribunal shall not  be  revised  or  altered  in  any
  manner  by  the  commissioner  of  taxation  and  finance prior to their
  submission to the governor.
    4. To provide a hearing as a matter of right, to any  petitioner  upon
  such  petitioner's  request,  pursuant to such rules, regulations, forms
  and instructions as the tribunal may prescribe, unless a right to such a
  hearing is specifically provided for,  modified  or  denied  by  another
  provision  of  this  chapter.  Where  such a request is made by a person
  seeking review of taxes determined or  claimed  to  be  due  under  this
  chapter,   the  liability  of  such  person  shall  become  finally  and
  irrevocably fixed, unless such person, within ninety days from the  time
  such  liability  is assessed, shall petition the division of tax appeals
  for a hearing to review such  liability  except  that,  as  provided  in
  subdivision  (a) of section five hundred twenty-eight of this chapter, a
  determination relating to the tax imposed  by  article  twenty-one-A  of
  this  chapter  shall  finally  and  irrevocably  fix such tax unless the
  person against whom it is assessed shall petition the  division  of  tax
  appeals  for  a hearing within thirty days after the giving of notice of
  such determination.
    5. To provide that any party, pursuant to such rules  and  regulations
  as the tribunal may prescribe, after a petition requesting a hearing has
  been  filed  with  the  division, may file a motion with the tribunal to
  dismiss the petition on the following grounds:
    (i) a defense is founded upon documentary evidence; or
    (ii) the tribunal lacks jurisdiction of  the  subject  matter  of  the
  petition; or
    (iii) the petitioner lacks legal capacity to petition; or
    (iv)  there  is an action pending between the same parties on the same
  controversy  in  a  court  of  any  state  or  the  United  States;   an
  administrative  law judge need not dismiss upon this ground but may make
  such determination as justice requires; or
    (v) the petition  may  not  be  maintained  because  of  discharge  in
  bankruptcy,  infancy  or  other disability of the moving party, payment,
  release, or statute of limitation; or
    (vi) the pleading fails to state a cause for relief; or
    (vii) the tibunal lacks jurisdiction over the taxpayer; or
    (viii) the tribunal should not proceed in the absence of a person  who
  should be a party.
    Such  motion to dismiss and all supporting documents shall be reviewed
  by an administrative law judge who shall issue a determination  granting

  or denying the motion. Such a determination denying the motion shall not
  be  subject  to  review  by the tribunal. The tribunal of its own motion
  may, upon notice  to  the  parties,  issue  a  decision  dismissing  the
  petition  on  the grounds set forth in paragraphs (ii) and (vii) of this
  subdivision.  Where not otherwise inconsistent with  the  provisions  of
  this  chapter,  a  motion  filed  pursuant  to this subdivision shall be
  subject to the same provisions as  motions  filed  pursuant  to  section
  three thousand two hundred eleven of the civil practice law and rules.
    6.  To  provide that any party, pursuant to such rules and regulations
  as the tribunal may prescribe, after a petition requesting a hearing has
  been filed with the division and after  issue  is  joined,  may  file  a
  motion with the tribunal for summary determination. Such motion shall be
  supported  by  an  affidavit,  by  a  copy of the pleadings and by other
  available proof. The affidavit, made by a person having knowledge of the
  facts, shall recite all the material facts and show  that  there  is  no
  material  issue  of  fact,  and  that  the facts mandate judgment in the
  moving party's favor. The motion and all supporting documents  shall  be
  reviewed by an administrative law judge. The motion shall be granted if,
  upon  all  the  papers and proof submitted, the administrative law judge
  finds that it has been established sufficiently  that  no  material  and
  triable issue of fact is presented and that the administrative law judge
  can,  therefore, as a matter of law, issue a determination in favor of a
  party. The motion shall be denied if any party shows facts sufficient to
  require a hearing of any issue of fact. Where it appears that  a  party,
  other than the moving party, is entitled to a summary determination, the
  administrative  law  judge  may  grant  such  determination  without the
  necessity of a cross-motion. Should it appear from affidavits  submitted
  in  opposition  to the motion that facts essential to justify opposition
  may exist but cannot be stated, the administrative law  judge  may  deny
  the motion or may order a continuance to permit affidavits or admissions
  to  be  obtained and may make such other order as may be just. Where not
  otherwise inconsistent with the provisions of  this  chapter,  a  motion
  filed  pursuant  to  this  subdivision  shall  be  subject  to  the same
  provisions as motions filed  pursuant  to  section  three  thousand  two
  hundred twelve of the civil practice law and rules.
    7.  To  provide  for a review of the determination of an administative
  law  judge  if  any  party  to  a  proceeding  conducted   before   such
  administrative  law judge, within thirty days after the giving of notice
  of  such  determination,  takes  exception  to  the   determination.   A
  determination  by  an  administrative  law  judge denying a motion filed
  pursuant to subdivision six of this section  shall  not  be  subject  to
  review  by  the  tribunal. The tribunal in its discretion may grant oral
  argument. The tribunal may also grant an extension of time for filing an
  exception provided an application for such extension is filed within the
  time  period  for  taking  exception  to  a  determination  under   this
  subdivision,  and  if good cause is shown. The tribunal shall promulgate
  rules and regulations as to what  constitutes  good  cause.  After  such
  review  the  tribunal shall issue a decision either affirming, reversing
  or modifying such determination, or the tribunal may remand the case for
  additional  proceedings  before  the  administrative  law  judge.   Such
  decision  shall include a statement setting forth the facts which formed
  the basis of the decision on the issues raised before the tribunal.  The
  tribunal  shall  have  the  authority  to  rule  on  the validity of the
  regulations of the commissioner  of  taxation  and  finance  where  such
  regulations  are  at  issue.  Such  decision  shall be issued within six
  months from the date of notice to the tribunal that exception  is  being
  taken  to an administrative law judge's determination, except that where
  oral argument is granted or written arguments  are  submitted  such  six

  month  period  will  commence to run on the date that such oral argument
  was concluded or written argument received by  the  tribunal,  whichever
  was later.
    8.  To  provide  that  hearings,  other  than hearings provided for by
  section two  thousand  twelve  of  this  article,  conducted  before  an
  administrative  law  judge and any oral proceedings conducted before the
  tax appeals tribunal shall be stenographically reported.
    9. To publish and make available  to  the  public  all  determinations
  rendered  by  an  administrative law judge and all decisions rendered by
  the  tribunal  after  a  review  of  an   administrative   law   judge's
  determination.  The  tribunal  may charge a reasonable fee for a copy of
  such determination or decision.
    10. To take testimony and proofs, administer  oaths,  take  affidavits
  and  certify  acknowledgements  in  relation to any proceeding conducted
  pursuant to the authority of the division of tax appeals.  The  tribunal
  shall have power to subpoena and require the attendance of witnesses and
  the   production  of  books,  papers  and  documents  pertinent  to  the
  proceedings which it is authorized to conduct, and to  examine  them  in
  relation  to  any  matter which it has power to investigate and to issue
  commissions for the examination of witnesses who are out of the state or
  unable to attend proceedings conducted pursuant to the authority of  the
  division  or  excused  from attendance of such proceedings. The tribunal
  may designate  and  authorize  by  resolution,  duly  entered  upon  its
  minutes,  officers, administrative law judges and other employees of the
  division to exercise any of the powers or perform any of  the  functions
  provided   for  in  this  subdivision.  A  subpoena  issued  under  this
  subdivision shall be regulated by the civil practice law and rules.  Any
  person who shall testify falsely in any proceeding conducted pursuant to
  the  authority  of  the  division  shall be guilty of and punishable for
  perjury.
    Cross reference: For criminal penalties, see article  thirty-seven  of
  this chapter.
    11.  To  provide that an attorney for any party at a hearing conducted
  before an administrative law judge may issue a subpoena as  provided  in
  the civil practice law and rules.
    12.  To  have  the  same  power  and  authority as the commissioner of
  taxation  and  finance  in  any  instance  where  such  commissioner  is
  authorized  to  impose,  modify  or  waive interest, additions to tax or
  civil penalties under this chapter, the environmental conservation  law,
  the  general  city  law,  or  in  any local law, ordinance or resolution
  imposing taxes pursuant to the authority thereof, and to  designate  and
  authorize  by  resolution of the tax appeals tribunal, duly entered upon
  its minutes, officers, administrative law judges, and other employees of
  the division to perform any of such functions.
    13. To collect, compile and prepare  for  publication  statistics  and
  other  data  with  respect  to  the  operations  of  the division of tax
  appeals, and to submit annually to the governor, the temporary president
  of the senate  and  the  speaker  of  the  assembly  a  report  on  such
  operations  including  but  not  limited  to,  the number of proceedings
  initiated, the types of dispositions made and the number of  proceedings
  pending.
    14.  To  make,  adopt and amend such rules and regulations appropriate
  for the exercise of its  powers  and  the  performance  of  its  duties,
  including rules of practice and procedure.
    15.  To  have  all  other  powers and perform such other duties as are
  necessary and proper to operate  and  administer  the  division  of  tax
  appeals  consistent with the purposes of such division described in this
  article.