1083 - Limitations on assessment.
§ 1083. Limitations on assessment.--- (a) General.--- Except as otherwise provided in this section, any tax under article nine, nine-a, nine-b or nine-c shall be assessed within three years after the return was filed (whether or not such return was filed on or after the date prescribed). (b) Time return deemed filed.---For purposes of this section, a return of tax filed before the last day prescribed by law or by regulations promulgated pursuant to law for the filing thereof shall be deemed to be filed on such last day. (c) Exceptions.--- (1) Assessment at any time.---The tax may be assessed at any time if--- (A) no return is filed, (B) a false or fraudulent return is filed with intent to evade tax, (C) in the case of the tax imposed under article nine-a, nine-b or nine-c, the taxpayer fails to file a report or amended return required under subdivision three of section two hundred eleven or section two hundred nineteen-bb or two hundred nineteen-zz, in respect of an increase or decrease in federal taxable income or federal alternative minimum taxable income or federal tax, or in respect of a change or correction or renegotiation, or computation or recomputation of tax, which is treated in the same manner as if it were a deficiency for federal income tax purposes, or (D) it is assessed in respect of a final determination of a refund or credit of retaliatory taxes or other charges as prescribed by paragraphs (1) and (2) of subsection (i) of section one thousand eighty-one. For any such assessment, the amount of the assessment of tax shall not exceed the amount of the increase in New York tax attributable to such refund or credit. The provisions of this subparagraph shall not extend the time within which or affect the amount for which an assessment may otherwise be made. (2) Extension by agreement.---Where, before the expiration of the time prescribed in this section for the assessment of tax, both the tax commission and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed 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. (3) Report of changed or corrected federal income.---In the case of the tax imposed under article nine-a, nine-b or nine-c, if the taxpayer files a report or amended return required under subdivision three of section two hundred eleven or section two hundred nineteen-bb or two hundred nineteen-zz, in respect of an increase or decrease in federal taxable income or federal alternative minimum taxable income or federal tax, or in respect of a change or correction or renegotiation, or computation or recomputation of tax, which is treated in the same manner as if it were a deficiency for federal income tax purposes, the assessment (if not deemed to have been made upon the filing of the report or amended return) may be made at any time within two years after such report or amended return was filed. The amount of such assessment of tax shall not exceed the amount of the increase in New York tax attributable to such federal change or correction or renegotiation, or computation or recomputation of tax. The provisions of this paragraph shall not affect the time within which or the amount for which an assessment may otherwise be made. (4) Deficiency attributable to carryback.---If a deficiency of tax under article nine-a is attributable to the application to the taxpayer of a net operating loss carryback or a capital loss carryback, it may beassessed at any time that a deficiency for the taxable year of the loss may be assessed. (5) Recovery of erroneous refund.---An erroneous refund shall be considered an underpayment of tax on the date made, and an assessment of a deficiency arising out of an erroneous refund may be made at any time within two years from the making of the refund, except that the assessment may be made within five years from the making of the refund if it appears that any part of the refund was induced by fraud or misrepresentation of a material fact. (6) Request for prompt assessment.---The tax shall be assessed within eighteen months after written request therefor (made after the return is filed) by the taxpayer or by a fiduciary representing the taxpayer, but not more than three years after the return was filed, except as otherwise provided in this subsection and subsection (d). This subsection shall not apply unless--- (A) (i) such written request notifies the tax commission that the taxpayer contemplates dissolution at or before the expiration of such eighteen-month period, (ii) the dissolution is in good faith begun before the expiration of such eighteen-month period, and (iii) the dissolution is completed; (B) (i) such written request notifies the tax commission that a dissolution has in good faith been begun, and (ii) the dissolution is completed; or (C) a dissolution has been completed at the time such written request is made. (7) Change of the allocation of taxpayer's income or capital.---No change of the allocation of income or capital upon which the taxpayer's return (or any additional assessment) was based shall be made where an assessment of tax is made during the additional period of limitation under subparagraph (C) of paragraph (1), or under paragraph (3) or (4); and where any such assessment has been made, or where a notice of deficiency has been mailed to the taxpayer on the basis of any such proposed assessment, no change of the allocation of income or capital shall be made in a proceeding on the taxpayer's claim for refund of such assessment or on the taxpayer's petition for redetermination of such deficiency. (8) Report concerning waste treatment facility, air pollution control facility or eligible business facility. Under the circumstances described in subparagraph (3) of paragraph (g) of subdivision nine of section two hundred eight, paragraph (f) of subdivision eleven of section two hundred ten or paragraph (f) of subdivision eleven of section two hundred nineteen-q of this chapter, the tax may be assessed within three years after the filing of the report containing the information required by such paragraph, or, if a certificate of compliance in respect to an air pollution control facility shall be revoked, within three years after the tax commission shall receive notice of such revocation from the taxpayer or as required by subdivision three of section 19-0309 of the environmental conservation law, whichever notice is received earlier. (9) Reports concerning empire zone credits. If a taxpayer's certification under article eighteen-B of the general municipal law is revoked with respect to an empire zone or zone equivalent area, any tax liability generated by reason of such decertification may be assessed within three years after the commissioner has received notice of such decertification as required by subdivision (a) of section nine hundred fifty-nine of the general municipal law. (10) Reports concerning a certificate of completion. If a taxpayer's certificate of completion issued pursuant to section 27-1419 of theenvironmental conservation law is revoked by a determination issued pursuant to section 27-1419 of the environmental conservation law, any tax liability generated by reason of such revocation may be assessed within one year after such determination is final and is no longer subject to judicial review. * (11) Extended statute of limitations for tax avoidance transactions.-- (A) If a taxpayer fails to file, disclose or provide any statement, return or other information for any taxable year with respect to a listed transaction (as defined in paragraph three of subsection (p) of section one thousand eighty-five of this article) which is required under subdivision (a) of section twenty-five of this chapter, the time for assessment of any tax imposed by this article with respect to such transaction shall not expire before the date which is one year after the earlier of: (i) the date on which the commissioner is furnished the statement, return, or information so required, or (ii) the date that the requirements of subdivision (c) of section twenty-five of this chapter are met with respect to a request under such subdivision by the commissioner relating to such transaction. (B) If later than the time for assessment otherwise provided by this section, tax may be assessed at any time within six years after the return was filed if the deficiency is attributable to an abusive tax avoidance transaction. (C) For purposes of subparagraph (B) of this paragraph, an "abusive tax avoidance transaction" means a plan or arrangement devised for the principal purpose of avoiding tax. Abusive tax avoidance transactions include, but are not limited to, listed transactions described in paragraph five of subsection (k-1) of section one thousand eighty-five of this article. * NB Repealed July 1, 2011 (d) Omission of income on return.--- The tax may be assessed at any time within six years after the return was filed if (i) a taxpayer omits from gross income required to be reported on a return under article nine, nine-a, nine-b or nine-c an amount properly includible therein which is in excess of twenty-five percent of the amount of gross income stated in the return or, (ii) a taxpayer omits from the sum of its items of tax preference and its adjustment required in the computation of minimum taxable income an amount properly includible therein which is in excess of twenty-five percent of such sum as stated in the return. For purposes of this subsection--- (1) the term gross income means gross income for federal income tax purposes as reportable on a return under article nine-a, and "gross earnings", "gross income", "gross operating income" and "gross direct premiums less return premiums", as those terms are used in article nine, nine-b or nine-c, whichever is applicable; (2) there shall not be taken into account any amount which is omitted in the return if such amount is disclosed in the return, or in a statement attached to the return, in a manner adequate to apprise the tax commission of the nature and amount of such item. (e) Suspension of running of period of limitation.--- The running of the period of limitations on assessment or collection of tax or other amount (or of a transferee's liability) shall, after the mailing of a notice of deficiency, be suspended for the period during which the tax commission is prohibited under subsection (c) of section one thousand eighty-one from making the assessment or from collecting by levy.