§346E-6  Assessment of tax upon failure tomake return; limitation period; exceptions; extension by agreement.  (a) If any operator fails to make a return as required by this chapter, thedirector shall make an estimate of the tax liability of the operator from anyinformation the director obtains, and according to the estimate so made, assessthe taxes, interest, and penalty due the State from the operator; give noticeof the assessment to the operator; and make demand upon the operator forpayment.  The assessment shall be presumed to be correct until and unless, uponan appeal duly taken as provided in section 346E-8, the contrary shall beclearly proved by the operator assessed.  The burden of proof upon the appealshall be upon the operator 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 investigations 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.  No proceeding in court without assessment for the collection of anysuch 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 theState the period of limitations on collection after assessment would expirebefore the expiration of six months from the date of the taxpayer's return, theperiod shall not expire before the expiration of the six months.

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

(e)  Where, before the expiration of the periodprescribed in subsection (c) for assessments or in section 346E-7 for creditsand refunds, both the department and the operator have consented in writing tothe assessment or levy of the tax after the date fixed by subsection (c) or thecredit or refund of the tax after the date fixed by section 346E-7, the tax maybe assessed or levied, or the overpayment, if any, may be credited or refundedat 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 1993, c 315, pt of §1; reeL 1994, c 230, pt of §1; am L 2009, c 166, §13]

 

Note

 

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