1092 - Collection, levy and liens.

§ 1092. Collection, levy and liens.---(a) Collection procedures.---The  taxes  imposed  by  articles  nine,  nine-a,  nine-b  or nine-c shall be  collected by the tax commission, and it may establish the mode  or  time  for  the  collection  of  any  amount due it under these articles if not  otherwise specified. The tax commission  shall,  upon  request,  give  a  receipt  for  any  sum collected under such articles. The tax commission  may authorize  banks  or  trust  companies  which  are  depositaries  or  financial  agents of the state to receive and give a receipt for any tax  imposed under such articles in such manner, at  such  times,  and  under  such  conditions  as  the  tax  commission  may  prescribe;  and the tax  commission shall prescribe the manner, times and conditions under  which  the  receipt  of  such  tax  by  such banks and trust companies is to be  treated as payment of such tax to the tax commission.    (b) Notice and demand for tax.---The tax commission shall as  soon  as  practicable  give  notice to each taxpayer liable for any amount of tax,  addition to tax, penalty  or  interest,  which  has  been  assessed  but  remains  unpaid,  stating the amount and demanding payment thereof. Such  notice shall be left at the principal office of  the  taxpayer  in  this  state  or  shall  be sent by mail to such taxpayer's last known address.  Except where the tax commission  determines  that  collection  would  be  jeopardized  by  delay,  if  any  tax is assessed prior to the last date  (including any date fixed by extension) prescribed for payment  of  such  tax, payment of such tax shall not be demanded until after such date.    (c)  Issuance of warrant after notice and demand.---If any corporation  or other person liable under articles nine or nine-a for the payment  of  any tax, addition to tax, penalty or interest neglects or refuses to pay  the  same  within  twenty-one  calendar  days  after  notice  and demand  therefor is given to such corporation or other person  under  subsection  (b)  of  this  section  (ten  business days if the amount for which such  notice and demand  is  made  equals  or  exceeds  one  hundred  thousand  dollars),  the  commissioner may within six years after the date of such  assessment issue  a  warrant  under  the  commissioner's  official  seal  directed to the sheriff of any county of the state, or to any officer or  employee  of  the  department,  commanding him to levy upon and sell the  real and personal property of such corporation or other person  for  the  payment  of the amount assessed, with the cost of executing the warrant,  and to return such warrant to the commissioner and pay to him or her the  money collected by virtue thereof within sixty days after the receipt of  the warrant. If the commissioner finds that the collection of the tax or  other amount is in jeopardy, notice and demand for immediate payment  of  such  tax may be made by the commissioner and upon failure or refusal to  pay such tax or other  amount  the  commissioner  may  issue  a  warrant  without  regard  to  the  twenty-one  day  period  (or ten-day period if  applicable)  provided  in  this  subsection.    For  purposes  of   this  subsection,  the  term  corporation shall include an exempt QSSS of such  corporation.    (d) Copy of warrant to be filed and lien to be created.---Any  sheriff  or officer or employee who receives a warrant under subsection (c) shall  within  five  days  thereafter  file  a  copy  with  the  clerk  of  the  appropriate county. The clerk shall  thereupon  enter  in  the  judgment  docket,  in  the  column  for judgment debtors, the name of the taxpayer  mentioned in the warrant, and in appropriate columns the  tax  or  other  amounts  for  which the warrant is issued and the date when such copy is  filed; and such amount shall thereupon be a lien upon the title  to  and  interest in real, personal and other property of the taxpayer. Such lien  shall not apply to personal property unless such warrant is filed in the  department of state.  For purposes of this subsection, the term taxpayer  shall include an exempt QSSS of such taxpayer.(e)  Judgment.---When  a  warrant has been filed with the county clerk  the tax commission shall, in the right of the people of the state of New  York, be deemed to have obtained judgment against the taxpayer  for  the  tax  or  other  amounts.    For  purposes  of  this subsection, the term  taxpayer shall include an exempt QSSS of such taxpayer.    (f)  Execution.---The  sheriff  or officer or employee shall thereupon  proceed upon the warrant in all respects, with like effect, and  in  the  same  manner  prescribed  by law in respect to executions issued against  property upon judgments of a court of record, and  a  sheriff  shall  be  entitled  to the same fees for his services in executing the warrant, to  be collected  in  the  same  manner.  An  officer  or  employee  of  the  department of taxation and finance may proceed in any county or counties  of  this  state  and shall have all the powers of execution conferred by  law upon sheriffs, but shall be entitled to no fee  or  compensation  in  excess  of  actual expenses paid in connection with the execution of the  warrant.    (g) Foreign corporations.---Where a notice and demand under subsection  (b) shall have been given to a foreign corporation or other  person  who  is  not then a resident, and it appears to the tax commission that it is  not  practicable  to  find  in  this  state  property  of  such  foreign  corporation  or  nonresident person sufficient to pay the entire balance  of tax or other amount owing by such foreign corporation or  nonresident  person, the tax commission may, in accordance with subsection (c), issue  a  warrant  directed  to  an  officer  or  employee of the department of  taxation and finance, a  copy  of  which  warrant  shall  be  mailed  by  certified  or registered mail to such foreign corporation or nonresident  person at its last known address,  subject  to  the  rules  for  mailing  provided  in  subsection  (a)  of section one thousand eighty-one.  Such  warrant shall command the officer  or  employee  to  proceed  in  Albany  county,  and  he  shall,  within five days after receipt of the warrant,  file the warrant and obtain a judgment in accordance with this  section.  Thereupon the tax commission may authorize the institution of any action  or proceeding to collect or enforce the judgment in any place and by any  procedure that a civil judgment of the supreme court of the state of New  York could be collected or enforced. The tax commission may also, in its  discretion,  designate  agents  or  retain  counsel  for  the purpose of  collecting, outside the state of New York, any unpaid  taxes,  additions  to  tax,  penalties  or  interest  which  have  been assessed under this  article or under article nine, nine-a, nine-b or nine-c, against foreign  corporations or other nonresident persons, may fix the  compensation  of  such  agents  and  counsel  to  be  paid  out  of  money appropriated or  otherwise lawfully available for payment thereof,  and  may  require  of  them  bonds  or  other  security  for  the faithful performance of their  duties, in such form and in such amount as the tax commission shall deem  proper and sufficient.   For  purposes  of  this  subsection,  the  term  corporation shall include an exempt QSSS of such corporation.    (h)  Action by state for recovery of taxes.---Action may be brought by  the attorney general at the instance of the tax commission in  the  name  of  the  state  to  recover the amount of any unpaid taxes, additions to  tax, penalties or interest which have been assessed under  this  article  or  under  article nine, nine-a, nine-b or nine-c within six years prior  to the date the action is commenced.    (i) Release of lien.---The  tax  commission,  if  it  finds  that  the  interests  of  the  state will not thereby be jeopardized, and upon such  conditions as it may require, may release any property from the lien  of  any  warrant  filed  under  subsection  (d)  or  (g)  for  unpaid taxes,  additions to tax, penalties and interest filed pursuant to this section,and such release may be recorded in the office of any recording  officer  in which such warrant has been filed.    (j)  Lien from due date of return.---(1) In addition to any other lien  provided for in this section, each tax imposed by article nine,  nine-a,  nine-b  or nine-c shall become a lien on the date on which the return is  required to be filed (without regard to any extension of time for filing  such return), except that such tax shall become a lien  not  later  than  the  date  the  taxpayer  ceases to be subject to the tax imposed by any  such article or to exercise its franchise, or to  do  business  in  this  state  in  a  corporate  or organized capacity. Each such tax shall be a  lien and binding upon the real and personal property of the taxpayer, or  of a transferee liable to pay the same, until the same is paid in  full,  except  that  no  lien  for any additional tax assessed pursuant to this  article shall  be  enforceable  against  property  which  prior  to  the  issuance  to  the  taxpayer  of a notice of deficiency under section one  thousand eighty-one had been transferred in good faith to  a  bona  fide  transferee  for value. But the lien of each such tax shall be subject to  the lien of any mortgage indebtedness  existing  against  real  property  previous  to the time when the tax became a lien and where such mortgage  indebtedness has been incurred in good faith and was not given, directly  or indirectly, to any officer or stockholder of the  corporation  owning  such  real  property, whether as a purchase money mortgage or otherwise,  and shall also be subject to the lien of local  taxes  and  assessments,  without  regard to when the lien for such taxes and assessments may have  accrued. If the return is filed and the tax shown on the  report  to  be  due  is paid on or before the date on which the report is required to be  filed, without regard to any extensions of time for filing such  report,  the  lien shall not be enforceable against the interest of any purchaser  or mortgagee in property which is thereafter, but prior to the  issuance  to  the  taxpayer  of  a notice of deficiency under section one thousand  eighty-one, transferred to a bona fide purchaser for value, or mortgaged  where the mortgage indebtedness  is  incurred  in  good  faith  and  the  mortgage  is  not  given,  directly  or  indirectly,  to  any officer or  stockholder of the corporation. In any  action  to  foreclose  any  such  mortgage,  or  to  foreclose  the lien of local taxes or assessments, to  which the people of the state of New York shall have been made  a  party  defendant  by  reason of the existence of a lien for any such tax, or if  no such tax was due or was a lien at the time  of  the  commencement  of  such action and the filing of the notice of pendency thereof, but such a  tax  becomes  due  or  becomes  a  lien  subsequent  to  the time of the  commencement of such action and the filing of  the  notice  of  pendency  thereof,  such  real  property shall be sold and conveyed in such action  free from any such tax lien, and any such tax lien may become a lien  on  any  surplus moneys which may result from such sale, to be determined in  the proceedings for the distribution of such surplus moneys. Where title  to real property passes from an individual, or from a corporation  owing  no  franchise  tax,  to another corporation which is in default for such  tax, the lien herein provided shall not be enforceable except as to  any  equity  after the prior mortgage or purchase money mortgage encumbrance.  For purposes of this paragraph, the terms taxpayer and corporation shall  include an exempt QSSS of such taxpayer or corporation.    (2) The tax commission may,  upon  application  made  to  it  and  the  payment  of  a  fee of fifty dollars, release any real property from the  lien under  this  subsection,  provided  payment  be  made  to  the  tax  commission  of  such  a  sum  as  the tax commission shall deem adequate  consideration for such release, or deposit be made of such  security  or  such  bond  be  filed  as the tax commission shall deem proper to secure  payment of any such tax. The application for such release shall  containan  accurate  description  of  the property to be released together with  such other information as the tax commission may require.  Such  release  may  be  recorded  in any office in which conveyances of real estate are  entitled to be recorded.    (3)  All  taxes,  additions  to tax, penalties and interest which have  become a lien under this subsection shall cease to be a lien  after  the  expiration of twenty years from date they become due and payable, except  that taxes, additions to tax, penalties and interest which have become a  lien under this subsection (i) as to real estate in the hands of persons  who  are  owners  thereof  who would be purchasers in good faith but for  such taxes, additions to tax, penalties or interest and (ii) as  to  the  lien  on  real  estate of mortgages held by persons who would be holders  thereof in good faith but for such taxes, additions to tax, penalties or  interest, as against such purchasers or holders shall cease to be a lien  after the expiration of ten years from date they become due and payable.  The limitations herein provided for shall not apply to any transfer from  a corporation to a person or corporation with intent to avoid payment of  any taxes, or where with like intent the transfer is made to  a  grantee  corporation,  or  any subsequent grantee corporation, controlled by such  grantor or which has any community of interest with it,  either  through  stock ownership or otherwise.