§ 1138. Determination of tax. (a) (1) If a return required by this
article is not filed, or if a return when filed is incorrect or
insufficient, the amount of tax due shall be determined by the
commissioner from such information as may be available. If necessary,
the tax may be estimated on the basis of external indices, such as stock
on hand, purchases, rental paid, number of rooms, location, scale of
rents or charges, comparable rents or charges, type of accommodations
and service, number of employees or other factors. In the case of retail
food stores and other participants approved for participation in the
federal food stamp program under or pursuant to the federal food stamp
act of nineteen hundred seventy-seven (7 U.S.C. § 2011 et seq.), as
amended, whose records are incomplete or inadequate to determine tax,
the external indices upon which tax may be estimated and determined may
also include information contained in applications, updates of
applications, redemption certificates, returns and reports which such
retail food stores and other participants furnish to or are furnished by
the United States government or this state or their agencies in order
for such retail food stores and other participants to participate in the
food stamp program or to redeem coupons issued under or pursuant to such
food stamp act and any other available information considered relevant.
Notice of such determination shall be mailed to the person or persons
liable for the collection or payment of the tax. A notice of
determination shall be mailed by certified or registered mail to the
person or persons liable for the collection or payment of the tax at his
last known address in or out of this state. If such person or persons is
deceased or under a legal disability, a notice of determination may be
mailed to his last known address in or out of this state, unless the
department has received notice of the existence of a fiduciary
relationship with respect to the taxpayer. After ninety days from the
mailing of a notice of determination, such notice shall be an assessment
of the amount of tax specified in such notice, together with the
interest, additions to tax and penalties stated in such notice, except
only for any such tax or other amounts as to which the taxpayer has
within such ninety day period applied to the division of tax appeals for
a hearing, or unless the commissioner of his own motion shall
redetermine the same. If the notice of determination is addressed to a
person outside of the United States, such period shall be one hundred
fifty days instead of ninety days.

(2) Whenever such tax is estimated as provided for in this section,
such notice shall contain a statement in bold face type conspicuously
placed on such notice advising the taxpayer: that the amount of the tax
was estimated; that the tax may be challenged through a hearing process;
and that the petition for such challenge must be filed with the tax
commission within ninety days.

(3) (A) The liability of a purchaser, transferee or assignee of
business assets sold, transferred or assigned in bulk for the payment to
the state of taxes determined to be due from the seller, transferor or
assignor arising under subdivision (c) of section eleven hundred
forty-one of this chapter shall be an assessment of the liability
determined unless the purchaser, transferee or assignee, within ninety
days after the giving of notice by the tax commission to such purchaser,
transferee or assignee of the total amount of any tax or taxes which the
state claims to be due from the seller, transferor or assignor, shall
apply to the tax commission for a hearing or unless the tax commission,
on its own motion, shall redetermine such liability. Where the tax
commission determines that the amount of taxes claimed to be due from
the seller, transferor or assignor is erroneous or excessive in whole or
in part it shall, on behalf of the purchaser, transferee or assignee,
determine the amount of tax or taxes properly due and if such amount is
less than the amount of taxes for which the purchaser would have been
liable in the absence of such determination it shall reduce such
liability accordingly. The commission may, on its motion, abate, on
behalf of the purchaser, transferee or assignee, any part of the taxes
determined to be erroneous or excessive, whether or not such taxes had
become finally and irrevocably fixed.

(B) The liability, pursuant to subdivision (a) of section eleven
hundred thirty-three of this article, of any officer, director or
employee of a corporation or of a dissolved corporation, member or
employee of a partnership or employee of an individual proprietorship
who as such officer, director, employee or member is under a duty to act
for such corporation, partnership or individual proprietorship in
complying with any requirement of this article for the tax imposed,
collected or required to be collected, or for the tax required to be
paid or paid over to the tax commission under this article, and the
amount of such tax liability (whether or not a return is filed under
this article, whether or not such return when filed is incorrect or
insufficient, or where the tax shown to be due on the return filed under
this article has not been paid or has not been paid in full) shall be
determined by the tax commission in the manner provided for in
paragraphs one and two of this subdivision. Such determination shall be
an assessment of the tax and liability for the tax with respect to such
person unless such person, within ninety days after the giving of notice
of such determination, shall apply to the division of tax appeals for a
hearing. If such determination is identical to or arises out of a
previously issued determination of tax of the corporation, dissolved
corporation, partnership or individual proprietorship for which such
person is under a duty to act, an application filed with the division of
tax appeals on behalf of the corporation, dissolved corporation,
partnership or individual proprietorship shall be deemed to include any
and all subsequently issued personal determinations and a separate
application to the division of tax appeals for a hearing shall not be
required. The tax commission may, nevertheless, of its own motion,
redetermine such determination of tax or liability for tax. Where the
tax commission determines or redetermines that the amount of tax claimed
to be due from a vendor of tangible personal property or services, a
recipient of amusement charges, or an operator of a hotel is erroneous
or excessive in whole or in part, it shall redetermine the amount of tax
properly due from any such person as a person required to collect tax
with respect to such vendor, recipient, or operator, and if such amount
is less than the amount of tax for which such person would have been
liable in the absence of such determination or redetermination, it shall
reduce such liability accordingly. Furthermore, the tax commission may,
of its own motion, abate on behalf of any such person, any part of the
tax determined to be erroneous or excessive whether or not such tax had
become finally and irrevocably fixed with respect to such person but no
claim for abatement may be filed by any such person. The provisions of
this paragraph shall not be construed to limit in any manner the powers
of the attorney general under subdivision (a) of section eleven hundred
forty-one or the powers of the tax commission to issue a warrant under
subdivision (b) of such section against any person whose liability has
become finally and irrevocably fixed.

(C) The liability of any person as an owner of a filling station, for
the penalty imposed by subparagraph (vii) of paragraph one of
subdivision (a) of section eleven hundred forty-five, and the amount of
such penalty shall be determined by the tax commission. Such
determination shall be an assessment of the amount of and liability for
penalty with respect to such person unless such person, within ninety
days after the giving of notice of such determination, shall apply to
the tax commission for a hearing. The tax commission may, nevertheless,
of its own motion, redetermine such determination or liability for
penalty. Furthermore, the tax commission may, of its own motion, abate
any part of the penalty determined to be erroneous or excessive whether
or not such penalty has become finally and irrevocably fixed with
respect to such person but no claim for abatement may be filed by any
such person. The provisions of this paragraph shall not be construed to
limit in any manner the powers of the attorney general under subdivision
(a) of section eleven hundred forty-one of this article or the powers of
the tax commission to issue a warrant under subdivision (b) of such
section against any person whose liability has become finally and
irrevocably fixed.

(D) The liability of any person, as an owner of a place of business
selling cigarettes at retail, for the penalty imposed by subparagraph
(viii) of paragraph one of subdivision (a) of section eleven hundred
forty-five of this article and the amount of such penalty shall be
determined by the commissioner. Such determination shall be an
assessment of the amount of and liability for such penalty with respect
to such person, unless such person, within ninety days after the giving
of notice of such determination, shall apply to the division of tax
appeals for a hearing. The commissioner may, nevertheless, on the
commissioner's own motion, redetermine such determination. Furthermore,
the commissioner may, on the commissioner's own motion, abate any part
of the penalty determined to be erroneous or excessive whether or not
such penalty has become finally and irrevocably fixed with respect to
such person; but no claim for abatement may be filed by any such person.
The provisions of this paragraph shall not be construed to limit in any
manner the powers of the attorney general under subdivision (a) of
section eleven hundred forty-one of this article or the powers of the
commissioner to issue a warrant under subdivision (b) of such section
against any person whose liability has become finally and irrevocably
fixed.

(E) In addition to any other liability a credit card issuer or fuel
distributor may have, the commissioner shall determine any or all of the
following liabilities: (1) any tax, interest or penalty liability of a
credit card issuer or fuel distributor for any credit allowed or refund
paid under subdivision (h) of section eleven hundred thirty-nine of this
part which was erroneously, illegally or unconstitutionally allowed or
paid to such credit card issuer or fuel distributor, or (2) the penalty
imposed by subparagraph (ix) of paragraph one of subdivision (a) of
section eleven hundred forty-five of this part. In any such instance,
the commissioner shall give the credit card issuer or fuel distributor
notice of such determination in the manner described in paragraph one
and two of this subdivision. Such determination shall be an assessment
of any such liability unless such credit card issuer or fuel
distributor, within ninety days after the giving of such notice and
determination, shall apply to the commissioner for a hearing. The
commissioner may, nevertheless, of his or her own motion, redetermine
such determination or liability for penalty. Furthermore, the
commissioner may, of his or her own motion, abate any part of the
penalty determined to be erroneous or excessive whether or not such
penalty has become finally and irrevocably fixed with respect to such
issuer or fuel distributor but no claim of abatement may be filed by
such issuer or fuel distributor. The provisions of this paragraph shall
not be construed to limit in any manner the powers of the attorney
general under subdivision (a) of section eleven hundred forty-one of
this part or the powers of the commissioner to issue a warrant under
subdivision (b) of such section against any such issuer or fuel
distributor whose liability has become finally and irrevocably fixed.

(4) After the hearing provided for in paragraph one or three of this
subdivision, the division of tax appeals shall give notice promptly by
registered or certified mail of the determination of the administrative
law judge to the petitioner and to the commissioner of taxation and
finance. Such determination may be reviewed by the tax appeals tribunal
as provided in article forty of this chapter. The decision of the tax
appeals tribunal may be reviewed as provided in section two thousand
sixteen of this chapter. Such a proceeding for judicial review shall not
be instituted unless the amount of any tax sought to be reviewed, with
penalties and interest thereon, if any, shall be first deposited with
the commissioner of taxation and finance and there shall be filed with
the commissioner of taxation and finance an undertaking, issued by a
surety company authorized to transact business in this state and
approved by the superintendent of financial services of this state as to
solvency and responsibility, in such amount as a justice of the supreme
court shall approve to the effect that if such proceeding be dismissed
or the tax confirmed the petitioner will pay all costs and charges which
may accrue in the prosecution of the proceeding, or at the option of the
petitioner such undertaking filed with the commissioner of taxation and
finance may be in a sum sufficient to cover the taxes, penalties and
interest thereon stated in such determination plus the costs and charges
which may accrue against him in the prosecution of the proceeding, in
which event the petitioner shall not be required to deposit such taxes,
penalties and interest as a condition precedent to the commencement of
the proceeding. The preceding sentence shall not apply to a proceeding
brought to review a determination made under subparagraph (B) of
paragraph three of this subdivision.

(b) If the tax commission believes that the collection of any tax will
be jeopardized by delay it may determine the amount of such tax and
assess the same, together with all interest and penalties provided by
law, against any person liable therefor prior to the filing of his
return and prior to the date when his return is required to be filed.
The amount so determined shall become due and payable to the tax
commission by the person against whom such a jeopardy assessment is
made, as soon as notice thereof is given to him personally or by
registered or certified mail. The provisions of subdivision (a) of this
section shall apply to any such determination except to the extent that
they may be inconsistent with the provisions of this subdivision. The
tax commission may abate any jeopardy assessment if it finds that
jeopardy does not exist. The collection of any jeopardy assessment may
be stayed by filing with the tax commission a bond issued by a surety
company authorized to transact business in this state and approved by
the superintendent of financial services as to solvency and
responsibility, conditioned upon payment of the amount assessed and
interest thereon, or any lesser amount to which such assessment may be
reduced by the tax commission or by a proceeding under article
seventy-eight of the civil practice law and rules as provided in
subdivision (a), such payment to be made when the assessment or any such
reduction thereof shall have become final and not subject to further
review. If such a bond is filed and thereafter a proceeding under
article seventy-eight is commenced as provided in subdivision (a),
deposit of the taxes, penalties and interest assessed shall not be
required as a condition precedent to the commencement of such
proceeding. Where a jeopardy assessment is made, any property seized for
the collection of the tax shall not be sold (1) until expiration of the
time to apply for a hearing as provided in subdivision (a) of this
section, and (2) if such application is timely filed, until the
expiration of four months after the tax commission has given notice of
its determination to the person against whom the assessment is made;
provided, however, such property may be sold at any time if such person
has failed to attend a hearing of which he has been duly notified, or if
he consents to the sale, or if the tax commission determines that the
expenses of conservation and maintenance will greatly reduce the net
proceeds, or if the property is perishable.

(c) A person liable for collection or payment of tax (whether or not a
determination assessing a tax pursuant to subdivision (a) of this
section has been issued) shall be entitled to have a tax due assessed
prior to the ninety-day period referred to in subdivision (a) of this
section, by filing with the tax commission a signed statement in
writing, in such form as the tax commission shall prescribe, consenting
thereto.

(d) Except as otherwise provided in subdivision (a) of this section,
the provisions of this section shall not be applicable to the liability
of a purchaser, transferee or assignee arising under the provisions of
subdivision (c) of section eleven hundred forty-one of this chapter.