2020 New York Laws
TAX - Tax
Article 40 - 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.
