State Codes and Statutes
Statutes > New-york > Tax > Article-41 > Part-1 > 3008§ 3008. Abatement of certain interest, penalties and additions to tax. (a) Interest attributable to unreasonable errors and delays by the department. (1) In the case of any assessment or final determination of interest on: (A) any deficiency or any tax finally determined to be due attributable in whole or in part to any unreasonable error or delay by an officer or employee of the department (acting in his or her official capacity) in performing a ministerial or managerial act, or (B) any payment of any tax to the extent that any unreasonable error or delay in such payment is attributable to such officer or employee being erroneous or dilatory in performing a ministerial or managerial act, the commissioner may abate the assessment or final determination of all or any part of such interest for any period. (2) For purposes of paragraph one of this subdivision, an unreasonable error or delay shall be taken into account only if no significant aspect of such unreasonable error or delay can be attributed to the taxpayer involved, and after the department has contacted the taxpayer in writing with respect to such deficiency, tax finally determined to be due or payment. The commissioner shall determine what constitutes timely performance of various ministerial or managerial acts performed under or pursuant to the authority of this chapter, the general city law and section 27-0923 of the environmental conservation law. Any regulations adopted with respect to other provisions of this subdivision shall conform, to the extent practicable, with corresponding federal regulations under the comparable provisions of the laws of the United States. Administrative and judicial review of abatements under this subdivision shall be limited to review of whether failure to abate would be widely perceived as grossly unfair. (b) Abatement of any penalty or addition to tax or excess interest attributable to erroneous written advice by the department of taxation and finance. (1) The commissioner shall abate any portion of any penalty or addition to tax or excess interest attributable to erroneous advice furnished to the taxpayer in writing by an officer or employee of the department of taxation and finance, acting in such officer's or employee's official capacity. (2) Paragraph one of this subdivision shall apply only if: (A) the written advice was reasonably relied upon by the taxpayer and was in response to specific written request of the taxpayer, and (B) the portion of the penalty or addition to tax or excess interest did not result from a failure by the taxpayer to provide adequate or accurate information. (3) This subdivision shall not be construed to require the department to provide written advice to taxpayers or other persons or entities. (c) Assessments attributable to certain mathematical errors by the department. In the case of an assessment of any tax imposed by or pursuant to the authority of article twenty-two, thirty, thirty-A or thirty-B of this chapter or article two-E of the general city law attributable in whole or in part to a mathematical error described in subparagraph (A) of paragraph two of subsection (g) of section sixty-two hundred thirteen of the federal internal revenue code, if the return was prepared by an officer or employee of the department acting in his or her official capacity to provide assistance to taxpayers in the preparation of income tax returns, the commissioner is authorized to abate the assessment of all or any part of any interest on such deficiency for any period ending on or before the tenth day following the date of notice and demand by the commissioner for payment of the deficiency.(d) Interest attributable to misappropriation of taxpayer payments. (1) The commissioner shall be authorized to abate, for the period specified in paragraph two of this subdivision, any assessment or final determination of interest attributable to the misappropriation of a taxpayer's payment if: (A) the taxpayer timely tenders payment to the department for a liability incurred under any tax, and the taxpayer's account with the department is not properly credited with such payment due to misappropriation thereof; (B) the taxpayer does not cause, or in any way contribute to, the misappropriation of such payment; and (C) the taxpayer tenders a replacement payment to the department in the original amount of such tax due no later than one year from the date of mailing of notice from the department of failure to pay. (2) The commissioner shall be authorized to abate any assessment or final determination of interest pursuant to this subdivision for some or all of the period from the date of the underpayment to (A) the date which is one year from the date of mailing of the department's notice of failure to pay, (B) the date which is one year from the date the taxpayer discovers that the payment was not properly credited to the taxpayer's account or (C) thirty days from the date the taxpayer recovers use of the misappropriated funds, whichever is earliest. (3) For purposes of this subdivision, the term "misappropriation" means circumstances in which a person wrongfully intercepts a taxpayer's payment tendered to the department prior to the department crediting the taxpayer's account, and obtains use of the taxpayer's funds.
