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



(b)  After a return is filed under this chapter
the director shall cause the return to be examined, and may make such further
audits or investigation as the director considers necessary.  If the director
determines that there is a deficiency with respect to the payment of any
surcharge tax due under this chapter, the director shall assess the surcharge
taxes, interest, and penalty due the State, give notice of the assessment to
the persons liable, and make demand upon the persons for payment.



(c)  Except as otherwise provided by this section, the
amount of surcharge taxes imposed by this chapter shall be assessed or levied
within three years after the annual return was filed, or within three years of
the due date prescribed for the filing of the return, whichever is later, and
no proceeding in court without assessment for the collection of any such
surcharge taxes shall begin after the expiration of the period.  Where the
assessment of the tax imposed by this chapter has been made within the period
of limitation applicable thereto, the tax may be collected by levy or by a
proceeding in court under chapter 231; provided that the levy is made or the
proceeding was begun within fifteen years after the assessment of the tax.  For
any tax that has been assessed prior to July 1, 2009, the levy or proceeding
shall be barred after June 30, 2024.



Notwithstanding any other
provision to the contrary in this section, the limitation on collection after
assessment in this section shall be suspended for the period:



(1)  The taxpayer agrees to
suspend the period;



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



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



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



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



(e)  Where, before the expiration of the period
prescribed in subsection (c), both the department of taxation and the person
have consented in writing to the assessment or levy of the surcharge tax after
the date fixed by subsection (c), the surcharge tax may be assessed or levied
at any time prior to the expiration of the period agreed upon.  The period so
agreed upon may be extended by subsequent agreements in writing made before the
expiration of the period previously agreed upon. [L 1991, c 263, pt of §1; am L
1993, c 257, §5; am L 2009, c 166, §12]



 



Note



 



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



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