§251-8  Assessment of surcharge tax uponfailure to make return; limitation period; exceptions; extension by agreement. (a)  If any person fails to make a return as required by this chapter, thedirector shall make an estimate of the surcharge tax liability of the personfrom any information the director obtains, and according to the estimate somade, assess the surcharge taxes, interest, and penalty due the State from theperson, give notice of the assessment to the person, and make demand upon theperson for payment.  The assessment shall be presumed to be correct until andunless, upon an appeal duly taken as provided in section 251-10, the contraryshall be clearly proved by the person assessed, and the burden of proof uponthe appeal shall be upon the person assessed to disprove the correctness ofassessment.

(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 anysurcharge tax due under this chapter, the director shall assess the surchargetaxes, interest, and penalty due the State, give notice of the assessment tothe persons liable, and make demand upon the persons for payment.

(c)  Except as otherwise provided by this section, theamount of surcharge taxes imposed by this chapter shall be assessed or leviedwithin three years after the annual return was filed, or within three years ofthe due date prescribed for the filing of the return, whichever is later, andno proceeding in court without assessment for the collection of any suchsurcharge taxes shall begin 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 the surcharge tax, or of a failure to file theannual return, the surcharge tax may be assessed or levied at any time; providedthat the burden of proof with respect to the issues of falsity or fraud and intentto evade tax shall be upon the State.

(e)  Where, before the expiration of the periodprescribed in subsection (c), both the department of taxation and the personhave consented in writing to the assessment or levy of the surcharge tax afterthe date fixed by subsection (c), the surcharge tax may be assessed or leviedat any time prior to the expiration of the period agreed upon.  The period soagreed upon may be extended by subsequent agreements in writing made before theexpiration of the period previously agreed upon. [L 1991, c 263, pt of §1; am L1993, c 257, §5; am L 2009, c 166, §12]

 

Note

 

  In subsection (d),"235‑111(c)" substituted for "235‑11(c)".

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