sioner for the determination of the tax and the proper administration of this chapter. The commissioner of finance shall prescribe the form and furnish the necessary forms to enable such insurers to make such reports. The commissioner [shall have power by himself or herself] or the commissioner's designated representative or the tax appeals tribunal or its designated representative shall have power to examine any such insurer under oath and to require the production by such insurer of all books and papers as the commissioner or the tax appeals tribunal may deem necessary. All expenses of collecting such tax shall be paid by the commissioner of finance from the funds received under this chapter prior to the distribution thereof as hereinafter authorized.

§ 55. Subdivisions (a) and (b) of section 11-906 of the administrative code of the city of New York, subdivision (a) as amended by chapter 241 of the laws of 1989, are amended to read as follows:

(a) The provisions of the civil practice law and rules or any other law relative to limitations of time for the enforcement of a civil remedy shall not apply to any proceeding or action by the commissioner of finance to levy, assess, determine or enforce the collection of tax, interest or penalty imposed by this chapter. However, except in the case of a wilfully false or fraudulent report, no assessment of additional tax, interest or penalty shall be made after the expiration of more than three years from the date of the filing of a report, provided, however, that where no report has been filed as provided by law the tax may be assessed at any time. The commissioner of finance shall refund or credit, with interest at the overpayment rate set by the commissioner of finance pursuant to subdivision (g) of section 11-905 of this chapter or, if no rate is set, at the rate of six percent per annum computed from the date of overpayment to a date (to be determined by the commissioner of finance) preceding the date of a refund check by not more than thirty days, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if application to the commissioner of finance for such refund shall be made within six months from the payment thereof. Notice of any determination of the commissioner of finance with respect to an assessment of tax, interest or penalty or with respect to a claim for refund or any other notice, demand or request shall be given by mailing the same to the insurer to the address of its New York city office last filed with the commissioner of finance or, if there is no such office, to the address of its main office last filed with the commissioner of finance or in the absence of any filed address, to such address as may be obtainable. The mailing of any notice, demand or request by the commissioner of finance shall be presumptive evidence of its receipt by the insurer and any period of time to be determined with reference to the giving of such notice, demand or request shall commence to run from the date of such mailing. The determination of the sioner of finance shall finally and irrevocably fix the amount of any tax, interest or penalty due or to be refunded unless the taxpayer, within [thirty] ninety days after the giving of notice of such determination, shall apply to the commissioner of finance for a hearing, or if the commissioner of finance has established a conciliation procedure pursuant to section 11-124 of the code and the taxpayer has requested a conciliation conference in accordance therewith, within ninety days from the mailing of a conciliation decision or the date of the commissioner's confirmation of the discontinuance of the conciliation proceeding, both (1) serves a petition upon the commissioner of finance and (2) files a petition with the tax appeals tribunal for a hearing, or unless the commissioner of finance of his or her Own motion shall redetermine the same. Such hearing and any appeal to the tax appeals tribunal sitting en banc from the decision rendered in such hearing shall be conducted in the manner and subject to the requirements prescribed by the tax appeals tribunal pursuant to sections one hundred sixty-eight through one hundred seventy-two of the charter. After such hearing the [commissioner of finance] tax appeals tribunal shall give notice of [his or her] its decision to the taxpayer and to the commissioner of finance with reference to the amount of the tax, interest or penalty assessed or to be refunded. The decision of the [commissioner of finance] tax appeals tribunal sitting en banc shall be reviewable for error, illegality or unconstitutionality or any other reason, by a proceeding under article seventy-eight of the civil practice law and rules if such proceeding is commenced by the person against whom the tax was assessed within [ninety EXPLANATION-Matter in italics is new; matter in brackets [] is old law

commis

days] four months after the giving of the notice of such tax appeals tribunal decision. Such proceeding shall not be commenced by the taxpayer unless: (1) the amount of any tax assessed and sought to be reviewed with penalties and interest thereon, if any, shall be first deposited with the commissioner of finance and there shall be filed with the commissioner of finance an undertaking in such amount and with such sureties as a justice of the supreme court shall approve, to the effect that if such proceeding be dismissed or the decision confirmed, the [petitioner] taxpayer will pay all costs and charges which may accrue against the [petitioner] taxpayer in the prosecution of the proceeding, or (2) in the case of a review of a decision assessing any taxes penalties and interest, at the option of the [petitioner] taxpayer, such undertaking may be in a sum sufficient to cover all of the taxes, penalties and interest assessed by such decision plus the costs and charges which may accrue against the [petitioner] taxpayer in the prosecution of the proceeding, in which event the [petitioner] taxpayer shall not be required to deposit such taxes, penalties and interest as a condition precedent to the commencement of the proceeding. No determination or proposed determination of tax, interest or penalty due or to be refunded shall be reviewed or enjoined in any manner except as set forth

herein.

(b) In cases where the taxpayer has applied for a refund and has commenced a proceeding under article seventy-eight of the civil practice law and rules to review a [determination] decision of the tax appeals tribunal adverse to such taxpayer on its application for a refund, the commissioner of finance shall set up appropriate reserves to meet any decision adverse to the city.

§ 56. Section 11-1101 of the administrative code of the city of New York is amended by adding a new subdivision 12 to read as follows:

12. "Tax appeals tribunal." The tax appeals tribunal established by section one hundred sixty-eight of the charter.

§ 57. Section 11-1106 of the administrative code of the city of New York is amended to read as follows:

§ 11-1106 Determination of tax. In case the return required by this chapter shall be insufficient or unsatisfactory or if such return is not filed, the commissioner of finance shall determine the amount of the tax due from such information as is obtainable, and if necessary the tax may be estimated upon the basis of external indices. Notice of such determination shall be given to the person liable for the payment of the tax. Such determination shall finally and irrevocably fix such tax unless the person against whom it is assessed [shall], within [thirty] ninety days after the giving of notice of such determination [apply to the commissioner of finance for a hearing] or, if the commissioner of finance has established a conciliation procedure pursuant to section 11-124 of the code and the taxpayer has requested a conciliation conference in accordance therewith,, within ninety days from the mailing of a conciliation decision or the date of the commissioner's confirmation of the discontinuance of the conciliation proceeding, both (1) serves a petition upon the commissioner of finance and (2) files a petition with the tax appeals tribunal for a hearing, or unless such commissioner of his or her own motion shall redetermine the same. Such hearing and any appeal to the tax appeals tribunal sitting en banc from the decision rendered in such hearing shall be conducted in the manner and subject to the requirements prescribed by the tax appeals tribunal pursuant to sections one hundred sixty-eight through one hundred seventy-two of the charter. After such hearing the [commissioner of finance] tax appeals tribunal shall give notice of [his or her determination] its decision to the person against whom the tax is assessed and to the commissioner of finance. [The determination of such commissioner] A decision of the tax appeals tribunal sitting en banc shall be reviewable for error, illegality, unconstitutionality or any other reason whatsoever by a proceeding under article seventy-eight of the civil practice law and rules if instituted by the person against whom the tax was assessed within four months after the giving of the notice of such [determination] tax appeals tribunal decision. A proceeding under such article of such law and rules shall be instituted by a taxpayer unless (a) the amount of any tax sought to be reviewed with penalties and interest thereon, if any, shall first be deposited with the commissioner of finance and there shall be filed with such commissioner an undertaking, issued by a surety company authorized to transact business in this state and approved by the superintendent of insurance of this state as to solvency and responsibility, such amount and with such sureties as a justice of the supreme court

not

in

shall approve, to the effect that if such proceeding be dismissed or the tax confirmed, the [petitioner] taxpayer will pay all costs and charges which may accrue in the prosecution of the proceeding, or (b) at the option of the [applicant] taxpayer such undertaking filed with the commissioner of finance may be in a sum sufficient to cover the taxes, penalties and interest thereon stated in such [determination] decision, plus the costs and charges which may accrue against it in the prosecution of the proceeding, in which event the [applicant] taxpayer shall not be required to deposit such taxes, penalties and interest as a condition precedent to the application.

§ 58. Subdivisions a, b and d of section 11-1108 of the administrative code of the city of New York are amended to read as follows:

a.

In the manner provided in this section the commissioner of finance shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid, if application for such refund shall be made to the commissioner of finance within one year from the payment thereof. Whenever a refund or credit is made or denied by the commissioner of finance, he or she shall state his or her reason therefor and give notice thereof to the taxpayer in writing. The commissioner of finance may, in lieu of any refund required to be made, allow credit therefor on payments due from the applicant.

b. [An application for a refund or credit made as herein provided shall be deemed an application for a revision of any tax, interest or penalty complained of and the commissioner of finance may receive evidence with respect thereto. After making his or her determination the commissioner of finance shall give notice thereof] Any determination of the commissioner of finance denying a refund or credit pursuant to subdivision a of this section shall be final and irrevocable unless the applicant for such refund or credit, within ninety days from the mailing of notice of such determination, or, if the commissioner of finance has established a conciliation procedure pursuant to section 11-124 and the applicant has requested a conciliation conference in accordance therewith, within ninety days from the mailing of a conciliation decision or the date of the commissioner's confirmation of the discontinuance of the conciliation proceeding, both (1) serves a petition upon the commissioner of finance and (2) files a petition with the tax appeals tribunal for a hearing. Such petition for a refund or credit, made as herein provided, shall be deemed an application for a revision of any tax, penalty or interest complained of. Such hearing and any appeal to the tax appeals tribunal sitting en banc from the decision rendered in such hearing shall be conducted in the manner and subject to the requirements prescribed by the tax appeals tribunal pursuant to sections one hundred sixty-eight through one hundred seventy-two of the charter. After such hearing, the tax appeals tribunal shall give notice of its decision to the applicant [who] and to the commissioner of finance. The applicant shall be entitled to institute a proceeding under article seventy-eight of the civil practice law and rules to review [such determination] a decision of the tax appeals tribunal sitting en banc if application to the supreme court be made therefor within four months after the giving of notice of such [determination] decision, and provided, in the case of an application by a taxpayer, a final determination of tax due was not previously made.

d. A person shall not be entitled to a revision, refund or credit under this section of a tax, interest or penalty which had been determined to be due pursuant to the provisions of section 11-1106 or 11-1107 of this chapter where he or she has had a hearing or an opportunity for a hearing, as provided in said sections, or has failed to avail himself or herself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination by the commissioner of finance made pursuant to section 11-1106 or 11-1107 of this chapter unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper, by the [commissioner of finance] tax appeals tribunal after a hearing or [of his or her own motion,] of the commissioner of finance's own motion or, if such tax appeals tribunal affirms in whole or in part the determination of the commissioner of finance, in a proceeding under article seventy-eight of the civil practice law and rules pursuant to the provisions of said section, EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

in which event refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.

59. Section 11-1110 of the administrative code of the city of New York is amended to read as follows:

§ 11-1110 Remedies exclusive. The remedies provided by this chapter shall be the exclusive remedies available to any person for the review of tax liability imposed by this chapter; and no determination or proposed determination of tax or determination on any application for refund by the commissioner of finance, nor any decision by the tax appeals tribunal or any of its administrative law judges, shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by any action or proceeding other than,, in the case of a decision by the tax appeals tribunal sitting en banc, a proceeding under article seventy-eight of the civil practice law and rules; provided, however, that a taxpayer may proceed by a declaratory judgment if he or she institutes suit within thirty days after a deficiency assessment is made and pays the amount of the deficiency assessment to the commissioner of finance prior to the institution of such suit and posts a bond for costs as provided in section 11-1106 of this chapter.

§ 60. Subdivisions a, b and d of section 11-1113 of the administrative code of the city of New York are amended to read as follows:

a. The commissioner of finance [or], his or her employees duly designated and authorized by him or her, the tax appeals tribunal and any of its duly designated and authorized employees shall have power to administer oaths and take affidavits in relation to any matter or proceedings in the exercise of [his or her] their powers and duties under this chapter. Such commissioner and the tax appeals tribunal shall have power to subpoena and require the attendance of witnesses and the production of books, papers and documents to secure information pertinent to the performance of [his or her] the duties of such commissioner or of the tax appeals tribunal hereunder and of the enforcement of this chapter, and to examine them in relation thereto, and to issue commissions for the examination of witnesses who are out of the state or unable to attend before [him or her] the commissioner or the tax appeals tribunal or excused from attendance.

b. A justice of the supreme court either in court or at chambers shall have power summarily to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and documents called for by the subpoena of the commissioner of finance or the tax appeals tribunal under this chapter.

d.

The officers who serve the summons or subpoena of the commissioner of finance or the tax appeals tribunal hereunder and witnesses attending in response thereto shall be entitled to the same fees as are allowed to officers and witnesses in civil cases in courts of record, except as herein otherwise provided. Such officers shall be the city sheriff, and his or her duly appointed deputies or any officers or employees of the department of finance or the tax appeals tribunal, designated to serve such process.

§ 61. Subdivision d of section 11-1115 of the administrative code of the city of New York is amended to read as follows:

d. If any return, claim, statement, notice, application, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under authority of any provision of this subchapter is, after such period or such date, delivered by United States mail to the commissioner of finance, the tax appeals tribunal, bureau, office, officer or person with which or with whom such document is required to be filed, or to which or to whom such payment is required to be made, the date of the United States postmark stamped on the envelope shall be deemed to be the date of delivery, This subdivision shall apply only if the postmark date falls within the prescribed period or on or before the prescribed date for the filing of such document, or for making the payment, including any extension granted for such filing or payment, and only if such document or payment was deposited in the mail, postage prepaid, properly addressed to the commissioner of finance, the tax appeals tribunal, bureau, office, officer or person with which or with whom the document is required to be filed or to which or to whom such payment is required to be made. If any document is sent by United States registered mail, such registration shall be prima facie evidence that such document was delivered to the commissioner of finance, the tax appeals tribunal, bureau, office, officer or person to which or to whom addressed, and the

in

ap

any

date of registration shall be deemed the postmark date. The commissioner of finance, or where relevant, the tax appeals tribunal is authorized to provide by regulation the extent to which the provisions of the preceding sentence with respect to prima facie evidence of delivery and the postmark date shall apply to certified mail. This subdivision shall ply in the case of postmarks not made by the United States postal service only if and to the extent provided by regulation of the commissioner of finance or where relevant, the tax appeals tribunal. § 62. Subdivision a of section 11-1116 of the administrative code of the city of New York, as amended by local law number 62 of the city city of New York for the year 1988, is amended to read as follows: a. Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the commissioner of finance, the tax appeals tribunal, or any officer or employee of the department of finance or the tax appeals tribunal to divulge or make known manner, the receipts or any other information relating to the business of a taxpayer contained in any return [requried] required under this chapter. The officers charged with the custody of such returns shall not be required to produce any of them or evidence of anything contained in them in any action or proceeding in any court, except on behalf of the city or the commissioner of finance, or on behalf of any party to any action or proceeding under the provisions of this chapter when the returns or facts shown thereby are directly involved in such action or proceeding, in either of which events, the court may require the production of, and may admit in evidence, so much of said returns or of the facts shown thereby, as are pertinent to the action or proceeding and no more. [The commissioner of finance may, nevertheless, publish a copy or a summary of any determination or decision rendered after a formal hearing held pursuant to section 11-1106 or 11-1108 of this chapter. ] Nothing herein shall be construed to prohibit the delivery to a taxpayer or his or her duly authorized representative of a certified copy of any return filed in connection with his or her tax, nor to prohibit the publication of statistics so classified as to prevent the identification of particular returns and the items thereof, or the inspection by the corporation counsel of the city or other legal representatives of such city of the return of any taxpayer who shall bring action or proceeding to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted or is contemplated for the collection of a tax, penalty or interest. Returns shall be preserved for three years and thereafter until the commissioner of finance permits them to be destroyed.

§ 63. Section 11-1116 of the administrative code of the city of New York is amended by adding a new subdivision d to read as follows:

to

d. Notwithstanding anything in subdivision a of this section to the contrary, if a taxpayer has petitioned the tax appeals tribunal for administrative review as provided in section one hundred seventy of the charter, the commissioner of finance shall be authorized to present the tribunal any report or return of such taxpayer, or any information contained therein or relating thereto, which may be material or relevant to the proceeding before the tribunal. The tax appeals tribunal shall be authorized to publish a copy or a summary of any decision rendered pursuant to section one hundred seventy-one of the charter.

§ 64. Section 11-1201 of the administrative code of the city of New York is amended by adding a new subdivision 7 to read as follows:

7. "Tax appeals tribunal." The tax appeals tribunal established by section one hundred sixty-eight of the charter.

§ 65. Section 11-1206 of the administrative code of the city of New York is amended to read as follows:

§ 11-1206 Determination of tax. If a return required by this chapter is not filed, or if a return when filed is incorrect or insufficient the amount of tax due shall be determined by the commissioner of finance from such information as may be obtainable and, if necessary, the tax may be estimated on the basis of external indices, such as number of race meetings held, admissions, paid attendance, and/or other factors. Notice of such determination shall be given to the person liable for the collection and/or payment of the tax. Such determination shall finally and irrevocably fix the tax unless the person against whom it is assessed, within [thirty] ninety days after giving the notice of such determination, [shall apply to the commissioner of finance] or, if the EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law