N.Y. General City Law Section 61
Notice of deficiency

--(a) General.--If upon examination of a taxpayer’s return under this local law the administrator determines that there is a deficiency of income tax, he may mail a notice of deficiency to the taxpayer. If a taxpayer fails to file an income tax return required under this local law, the administrator is authorized to estimate the taxpayer’s city taxable income and tax thereon, from any information in its possession, and to mail a notice of deficiency to the taxpayer. A notice of deficiency shall be mailed by certified or registered mail to the taxpayer at his last known address in or out of the city. If a husband and wife are jointly liable for tax, a notice of deficiency may be a single joint notice, except that if the administrator has been notified by either spouse that separate residences have been established, then, in lieu of the single joint notice, a duplicate original of the joint notice shall be mailed to each spouse at his or her last known address in or out of the city. If the taxpayer is deceased or under a legal disability, a notice of deficiency may be mailed to his last known address in or out of the city, unless the administrator has received notice of the existence of a fiduciary relationship with respect to the taxpayer.

(b)

Notice of deficiency as assessment.--After ninety days from the mailing of a notice of deficiency, 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 filed with the administrator a petition under section sixty-nine. If the notice of deficiency is addressed to a person outside of the United States, such period shall be one hundred fifty days instead of ninety days.

(c)

Restrictions on assessment and levy.--No assessment of a deficiency in tax and no levy or proceeding in court for its collection shall be made, begun or prosecuted, except as otherwise provided in section seventy-four, until a notice of deficiency has been mailed to the taxpayer, nor until the expiration of the time for filing a petition contesting such notice, nor, if a petition with respect to the taxable year has been filed with the administrator, until the decision of the tax commission has become final. For exception in the case of judicial review of the decision of the administrator, see subdivision (c) of section seventy.

(d)

Exceptions for mathematical errors.--If a mathematical error appears on a return (including an overstatement of the credit for income tax withheld at the source or of the amount paid as estimated income tax), the administrator shall notify the taxpayer that an amount of tax in excess of that shown upon the return is due, and that such excess has been assessed. Such notice shall not be considered as a notice of deficiency for the purposes of this section, subdivision (f) of section sixty-seven (limiting credits or refunds after petition to the administrator), or subdivision (b) of section sixty-nine (authorizing the filing of a petition with the administrator based on a notice of deficiency) nor shall such assessment or collection be prohibited by the provisions of subdivision (c).

(e)

Exception where change in federal taxable income is not reported.--(1) If the taxpayer fails to comply with section thirty-nine in not reporting a change or correction increasing his federal taxable income as reported on his federal income tax return or in not reporting a change or correction which is treated in the same manner as if it were a deficiency for federal income tax purposes or in not filing an amended return or in not reporting the execution of a notice of waiver described in such section, instead of the mode and time of assessment provided for in subdivision (b) of this section, the administrator may assess a deficiency based upon such changed or corrected federal taxable income by mailing to the taxpayer a notice of additional tax due specifying the amount of the deficiency, and such deficiency, together with the interest, additions to tax and penalties stated in such notice, shall be deemed assessed on the date such notice is mailed unless within thirty days after the mailing of such notice a report of the federal change or correction or an amended return, where such return was required by section thirty-nine, is filed accompanied by a statement showing wherein such federal determination and such notice of additional tax due are erroneous.

(2)

Such notice shall not be considered as a notice of deficiency for the purposes of this section, subdivision (f) of section sixty-seven (limiting credits or refunds after petition to the administrator), or subdivision (b) of section sixty-nine (authorizing the filing of a petition with the administrator based on a notice of deficiency), nor shall such assessment or the collection thereof be prohibited by the provisions of subdivision (c).

(3)

If a husband and wife are jointly liable for tax, a notice of additional tax due may be a single joint notice, except that if the administrator has been notified by either spouse that separate residences have been established, then, in lieu of the joint notice, a duplicate original of the joint notice shall be mailed to each spouse at his or her last known address in or out of the city. If the taxpayer is deceased or under a legal disability, a notice of additional tax due may be mailed to his last known address in or out of the city, unless the administrator has received notice of the existence of a fiduciary relationship with respect to the taxpayer.

(f)

Waiver of restrictions.--The taxpayer shall at any time (whether or not a notice of deficiency has been issued) have the right to waive the restriction on assessment and collection of the whole or any part of the deficiency by a signed notice in writing filed with the administrator.

(g)

Deficiency defined.--For purposes of this local law, a deficiency means the amount of the tax imposed by this local law, less (1) the amount shown as the tax upon the taxpayer’s return (whether the return was made or the tax computed by him or by the administrator), and less, (2) the amounts previously assessed (or collected without assessment) as a deficiency and plus (3) the amount of any rebates. For the purpose of this definition, the tax imposed by this local law and the tax shown on the return shall both be determined without regard to payments on account of estimated tax or the credit for withholding tax; and a rebate means so much of an abatement, credit, refund or other repayment (whether or not erroneous) made on the ground that the amounts entering into the definition of a deficiency showed a balance in favor of the taxpayer.

Source: Section 61 — Notice of deficiency, https://www.­nysenate.­gov/legislation/laws/GCT/61 (updated Sep. 22, 2014; accessed Nov. 25, 2023).

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Accessed:
Nov. 25, 2023

Last modified:
Sep. 22, 2014

§ 61’s source at nysenate​.gov

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