20 CRR-NY 2376.1NY-CRR

OFFICIAL COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK
TITLE 20. DEPARTMENT OF TAXATION AND FINANCE
CHAPTER VI. COMMUNICATIONS OF THE DIVISION OF TAXATION OF THE DEPARTMENT OF TAXATION AND FINANCE
PART 2376. ADVISORY OPINIONS OF THE COMMISSIONER OF TAXATION AND FINANCE
20 CRR-NY 2376.1
20 CRR-NY 2376.1
2376.1 General.
(a) Definition and nature of advisory opinions.
An advisory opinion is a written statement, issued pursuant to the provisions of this Part, applying the pertinent statutory and regulatory provisions of a tax administered by the Commissioner of Taxation and Finance to a specific set of facts. Advisory opinions are issued at the request of any person who is or may be subject to a tax or liability under the Tax Law or claiming exemption from such a tax or liability, and are binding upon the commissioner for that person only. Advisory opinions may, in the discretion of the commissioner, be issued to any non-taxpayer, including but not limited to a local official, petitioning on behalf of a local jurisdiction, and the head of a State agency, petitioning on behalf of the agency. Advisory opinions will not be issued to any person or entity acting on behalf of an unidentified or hypothetical person or entity. Advisory opinions are issued on behalf of the commissioner by any person to whom the commissioner delegates this authority.
(b) Subjects on which advisory opinions may be requested.
A petitioner may request an advisory opinion about any tax or program administered by the commissioner. Taxes include not only those imposed under the Tax Law, but various other taxes, such as New York City's Personal Income Tax on Residents, the City of Yonkers' Income Tax Surcharge on Residents and the City of Yonkers' Earnings Tax on Nonresidents, as well as the sales and use taxes imposed by various localities throughout the State. The School Tax Relief (STAR) rebate program is an example of a program administered by the commissioner. An advisory opinion may be requested about a substantive question, such as whether a specific transaction gives rise to a tax liability, or a procedural one, such as whether withholding of income tax is required under specified circumstances. Advisory opinions may be requested about questions arising in the course of an audit or an examination of a tax return, or about questions relating to a taxpayer's claim for refund, credit or reimbursement. They may also be requested about a hypothetical or projected future set of facts.
(c)
(1) An advisory opinion will not be issued where the petition for advisory opinion relates to a pending question raised by the petitioner in:
(i) a petition for a decision or determination by the Division of Tax Appeals pursuant to Part 3000 of this Title, or any appeals therefrom;
(ii) a request for a conciliation conference and issuance of a conciliation order by the Division of Taxation's Bureau of Conciliation and Mediation Services pursuant to Part 4000 of this Title, unless all of the parties to the conciliation conference consent to the issuance of an advisory opinion; or
(iii) a petition for a declaratory ruling by the commissioner pursuant to section 2375.3 of this Title.
(2) An advisory opinion will not be issued about a matter for which a statutory notice has been issued when the petition for advisory opinion is filed after the issuance of the statutory notice and the time period for filing a petition for a decision or determination or requesting a conciliation conference as described in subparagraphs (1)(i) and (ii) of this subdivision is still open or any proceeding commenced by the petitioner regarding the statutory notice is still pending, except as provided in subparagraph (1)(ii) of this subdivision. The term statutory notice means any written notice of the commissioner that advises a person of a tax deficiency, determination of tax due, assessment, or denial of a refund, credit or reimbursement application, or of cancellation, revocation, suspension or denial of an application for a license, permit or registration, where that notice gives the person a right to a hearing in the Division of Tax Appeals.
(3) A petitioner may withdraw a petition and timely use an alternative procedure. Draft advisory opinions prepared in response to petitions that are withdrawn may be published as New York tax guidances when, in the opinion of the commissioner, publication would provide guidance to other similarly situated taxpayers (see section 2375.7 of this Title).
(4) The petitioner may elect to reserve the right to apply for the Voluntary Disclosure and Compliance (VDC) program pursuant to Tax Law section 1700 with respect to the subject of the advisory opinion request when submitting a petition for an advisory opinion. If an audit or investigation begins while a petition for Advisory Opinion is under consideration, the electing petitioner will not be prohibited from participating in the VDC program with regard to the subject of the advisory opinion, however, the audit or investigation will proceed. If the electing petitioner chooses to participate in the VDC program by then submitting an application, the department will extend to that petitioner the benefits of the VDC program as long as the petitioner meets all other qualifications for the program.
20 CRR-NY 2376.1
Current through September 30, 2022
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