§237D-9  Assessment of tax upon failure tomake return; limitation period; exceptions; extension by agreement.  (a) If any operator or plan manager fails to make a return as required by thischapter, the director shall make an estimate of the tax liability of theoperator or plan manager from any information the director obtains, andaccording to the estimate so made, assess the taxes, interest, and penalty duethe State from the operator or plan manager, give notice of the assessment tothe operator or plan manager, and make demand upon the operator or plan managerfor payment.  The assessment shall be presumed to be correct until and unless,upon an appeal duly taken as provided in section 237D-11, the contrary shall beclearly proved by the person assessed, and the burden of proof upon such appealshall be upon the person assessed to disprove the correctness of assessment.

(b)  After a return is filed under this chapterthe director shall cause the return to be examined, and may make such furtheraudits or investigation as the director considers necessary.  If the directordetermines that there is a deficiency with respect to the payment of any taxdue under this chapter, the director shall assess the taxes and interest duethe State, give notice of the assessment to the persons liable, and make demandupon the persons for payment.

(c)  Except as otherwise provided by thissection, the amount of taxes imposed by this chapter shall be assessed orlevied within three years after the annual return was filed, or within threeyears of the due date prescribed for the filing of the return, whichever islater, and no proceeding in court without assessment for the collection of any ofthe taxes shall be begun after the expiration of the period.  Where theassessment of the tax imposed by this chapter has been made within the periodof limitation applicable thereto, the tax may be collected by levy or by aproceeding in court under chapter 231; provided that the levy is made or theproceeding was begun within fifteen years after the assessment of the tax.  Forany tax that has been assessed prior to July 1, 2009, the levy or proceedingshall be barred after June 30, 2024.

Notwithstanding any otherprovision to the contrary in this section, the limitation on collection afterassessment in this section shall be suspended for the period:

(1)  The taxpayer agrees tosuspend the period;

(2)  The assets of the taxpayerare in control or custody of a court in any proceeding before any court of theUnited States or any state, and for six months thereafter;

(3)  An offer in compromiseunder section 231-3(10) is pending; and

(4)  During which the taxpayeris outside the State if the period of absence is for a continuous period of atleast six months; provided that if at the time of the taxpayer's return to the Statethe period of limitations on collection after assessment would expire beforethe expiration of six months from the date of the taxpayer's return, the periodshall not expire before the expiration of the six months.

(d)  In the case of a false or fraudulentreturn with intent to evade tax, or of a failure to file the annual return, thetax may be assessed or levied at any time; provided that the burden of proofwith respect to the issues of falsity or fraud and intent to evade tax shall beupon the State.

(e)  Where, before the expiration of the periodprescribed in subsection (c), both the department of taxation and the taxpayerhave consented in writing to the assessment or levy of the tax after the datefixed by subsection (c), the tax may be assessed or levied at any time prior tothe expiration of the period agreed upon.  The period so agreed upon may beextended by subsequent agreements in writing made before the expiration of theperiod previously agreed upon. [L 1986, c 340, pt of §1; am L 1988, c 241, §9;am L 1993, c 257, §3; am L 1998, c 156, §24; am L 2009, c 166, §8]

 

Note

 

Applicability of 2009 amendment. L 2009, c 166, §27.