1096 - General powers of tax commission.

§  1096.  General  powers  of tax commission.---(a) General.---The tax  commission shall administer and enforce the tax imposed by article nine,  nine-a, nine-b and nine-c, and it is authorized to make such  rules  and  regulations,  and  to require such facts and information to be reported,  as it may deem necessary to enforce the provisions of such articles  and  of this article.    (b)  Examination  of books and witnesses.---(1) The tax commission for  the purpose of ascertaining the correctness of any return,  or  for  the  purpose of making an estimate of tax liability of any corporation, shall  have  power  to  examine  or  to cause to have examined, by any agent or  representative designated by it for that  purpose,  any  books,  papers,  records or memoranda bearing upon the matters required to be included in  the  return, and may require the attendance of the corporation rendering  the return through any officer or employee of such corporation,  or  the  attendance of any other person having knowledge in the premises, and may  take  testimony  and  require  proof  material for its information, with  power to administer oaths to such person or persons.    (2) The tax commission may take any action under paragraph one of this  subdivision to inquire into the commission of an offense connected  with  the  administration  or  enforcement  of  this  article or article nine,  nine-a,  thirteen,  thirteen-a,  thirty-two,  or  thirty-three  of  this  chapter,  provided,  however,  that  notwithstanding  the  provisions of  section one hundred seventy-four of this chapter no such action shall be  taken when a referral by the department or the  tax  commission  to  the  attorney  general, a district attorney or any other prosecutorial agency  is in effect. Provided, however, the tax commission  shall  have  power,  during  the  period  when  such  referral is in effect, to examine or to  cause to have examined, by any agent or representative designated by  it  for  that  purpose, any books, papers, records or memoranda bearing upon  the matters required to be included in the  return,  where  such  books,  papers, records or memoranda are in its possession, or where such books,  papers,  records  or  memoranda  are  in  the possession of the attorney  general, district attorney or other prosecutorial agency to  which  such  referral is made.    (c)  Abatement authority.---The tax commission, of its own motion, may  abate any small unpaid balance of an assessment of tax, or any liability  in respect thereof, if the tax commission determines under uniform rules  prescribed by it that the administration and collection  costs  involved  would  not  warrant  collection of the amount due. It may also abate, of  its own motion, the unpaid portion of the assessment of any tax  or  any  liability  in  respect  thereof,  which  is  excessive  in amount, or is  assessed after the expiration  of  the  period  of  limitation  properly  applicable  thereto,  or  is erroneously or illegally assessed. No claim  for abatement under this subsection shall be filed by a taxpayer.    (d) Special refund authority.---Where no questions of fact or law  are  involved  and it appears from the records of the tax commission that any  moneys have been erroneously or illegally collected from any taxpayer or  other person, or paid by such taxpayer or other person under  a  mistake  of facts, pursuant to the provisions of this article or of article nine,  nine-a, nine-b or nine-c, the tax commission at any time, without regard  to any period of limitations, shall have the power, upon making a record  of  its  reasons  therefor  in writing, to cause such moneys so paid and  being erroneously and  illegally  held  to  be  refunded  and  to  issue  therefor its certificate to the comptroller.    (e)  (1) Authority to set interest rates.---The commissioner shall set  the overpayment and underpayment rates of interest to be  paid  pursuant  to  sections  two  hundred thirteen, two hundred thirteen-b, two hundred  fifty-eight, two  hundred  sixty-three,  two  hundred  ninety-four,  onethousand   eighty-four,   one   thousand   eighty-five,   one   thousand  eighty-eight,  fourteen   hundred   sixty-one   and   fourteen   hundred  sixty-three  of  this  chapter, but if no such rate or rates of interest  are  set, such overpayment rate shall be deemed to be set at six percent  per annum and such underpayment rate shall be deemed to be set at  seven  and  one-half percent per annum. Such overpayment and underpayment rates  shall be the rates prescribed in paragraph two of this  subsection,  but  the  underpayment rate shall not be less than seven and one-half percent  per annum. Any such rates set by the commissioner shall apply to  taxes,  or  any  portion  thereof,  which remain or become due or overpaid on or  after the date on which such rates become effective and shall apply only  with respect to interest computed or computable for periods or  portions  of  periods  occurring  in  the  period  during  which such rates are in  effect.    (2) General rule. (A) Overpayment rate. The overpayment rate set under  this subsection shall be the sum of (i) the federal short-term  rate  as  provided  under  paragraph  three  of  this  subsection,  plus  (ii) two  percentage points.    (B) Underpayment rate. The underpayment rate set under this subsection  shall be the sum of (i) the federal short-term rate  as  provided  under  paragraph three of this subsection, plus (ii) seven percentage points.    (3) Federal short-term rate. For purposes of this subsection:    (A)  The  federal  short-term  rate for any month shall be the federal  short-term rate  determined  by  the  United  States  secretary  of  the  treasury  during such month in accordance with subsection (d) of section  twelve hundred seventy-four of the internal  revenue  code  for  use  in  connection  with  section  six  thousand  six  hundred twenty-one of the  internal revenue code. Any such rate shall be  rounded  to  the  nearest  full  percent  (or,  if a multiple of one-half of one percent, such rate  shall be increased to the next highest full percent).    (B) Period during which rate applies.    (i)  In  general.  Except  as  provided  in  clause   (ii)   of   this  subparagraph,  the  federal  short-term rate for the first month in each  calendar quarter shall apply during the first calendar quarter beginning  after such month.    (ii) Special  rule  for  the  month  of  September,  nineteen  hundred  eighty-nine.  The  federal  short-term  rate  for  the  month  of April,  nineteen hundred eighty-nine shall apply with  respect  to  setting  the  overpayment  and underpayment rates for the month of September, nineteen  hundred eighty-nine.    (4) In computing the amount of any interest required to be paid  under  this  article  by  the  commissioner  of  taxation and finance or by the  taxpayer, or any other amount determined by reference to such amount  of  interest,  such  interest and such amount shall be compounded daily. The  preceding sentence shall not apply for purposes of computing the  amount  of any addition to tax for failure to pay estimated tax under subsection  (c) of section one thousand eighty-five of this article.    (5)  Publication  of  interest rates. The commissioner of taxation and  finance shall cause to be published in  the  section  for  miscellaneous  notices in the state register, and give other appropriate general notice  of,  the  interest  rates  to be set under this subsection no later than  twenty days preceding the first day of the calendar quarter during which  such interest rates apply. The setting and publication of such  interest  rates  shall  not be included within paragraph (a) of subdivision two of  section one hundred  two  of  the  state  administrative  procedure  act  relating to the definition of a rule.(6)  Cross-reference.  For  provisions  relating  to  the power of the  commissioner of taxation and finance to abate small amounts of interest,  see subsection (c) of this section.