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New York Consolidated Laws

N.Y. Tax Law § 689 (2026)

Petition to tax commission

✓ current as of May 2026
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§ 689. Petition to tax commission.--(a) General.--The form of a
petition to the tax commission, and further proceedings before the tax
commission in any case initiated by the filing of a petition, shall be
governed by such rules as the tax commission shall prescribe. No
petition shall be denied in whole or in part without opportunity for a
hearing on reasonable prior notice. Such hearing shall be conducted by
one or more members of the tax commission, or by a hearing officer
designated by the tax commission to take evidence and report to the tax
commission. The tax commissioners shall, acting as a body, jointly
decide the case as quickly as practicable. Notice of the decision shall
be mailed promptly to the taxpayer by certified or registered mail at
his last known address, and such notice shall set forth the tax
commission's findings of fact and a brief statement of the grounds of
decision in each case decided in whole or in part adversely to the
taxpayer.
  (b) Petition for redetermination of a deficiency.--Within ninety days,
or one hundred fifty days if the notice is addressed to a person outside
of the United States, after the mailing of the notice of deficiency
authorized by section six hundred eighty-one, the taxpayer may file a
petition with the tax commission for a redetermination of the
deficiency. Such petition may also assert a claim for refund for the
same taxable year or years, subject to the limitations of subsection (g)
of section six hundred eighty-seven.
  (c) Petition for refund.--A taxpayer may file a petition with the tax
commission for the amounts asserted in a claim for refund if--
  (1) the taxpayer has filed a timely claim for refund with the tax
commission,
  (2) the taxpayer has not previously filed with the tax commission a
timely petition under subsection (b) of this section for the same
taxable year unless the petition under this subsection relates to a
separate claim for credit or refund properly filed under subsection (f)
of section six hundred eighty-seven of this part or relates to a refund
or credit first claimed on an amended return for the taxable year, and
  (3) either (A) six months have expired since the claim was filed, or
(B) the tax commission has mailed to the taxpayer, by registered or
certified mail, a notice of disallowance of such claim in whole or in
part.
  (4) Notwithstanding paragraph three of this subsection, no petition
may be filed by a taxpayer claiming a refund of one or more empire zone
tax credits for a taxable year beginning on or after January first, two
thousand eight and before January first, two thousand nine, until six
months have expired after the date on which an empire zone retention
certificate was issued pursuant to subdivision (w) of section nine
hundred fifty-nine of the general municipal law to the empire zone
enterprise which is the basis for the tax credit or credits claimed on
the return or report.
No petition under this subsection shall be filed more than two years
after the date of mailing of a notice of disallowance, unless prior to
the expiration of such two year period it has been extended by written
agreement between the taxpayer and the tax commission. If a taxpayer
files a written waiver of the requirement that he be mailed a notice of
disallowance, the two year period prescribed by this subsection for
filing a petition for refund shall begin on the date such waiver is
filed.
  (d) Assertion of deficiency after filing petition.--
  (1) Petition for redetermination of deficiency.--If a taxpayer files
with the tax commission a petition for redetermination of a deficiency,
the tax commission shall have power to determine a greater deficiency
than asserted in the notice of deficiency and to determine if there
should be assessed any addition to tax or penalty provided in section
six hundred eighty-five, if claim therefor is asserted at or before the
hearing under rules of the tax commission.
  (2) Petition for refund.-- If the taxpayer files with the tax
commission a petition for credit or refund for a taxable year, the tax
commission may
  (A) determine a deficiency for such year as to any amount of
deficiency asserted at or before the hearing under rules of the tax
commission, and within the period in which an assessment would be timely
under section six hundred eighty-three, or
  (B) deny so much of the amount for which credit or refund is sought in
the petition, as is offset by other issues pertaining to the same
taxable year which are asserted at or before the hearing under rules of
the tax commission.
  (3) Opportunity to respond.-- A taxpayer shall be given a reasonable
opportunity to respond to any matters asserted by the tax commission
under this subsection.
  (4) Restriction on further notices of deficiency. -- If the taxpayer
files a petition with the tax commission under this section, no notice
of deficiency under section six hundred eighty-one of this part may
thereafter be issued by the tax commission for the same tax return,
except in case of fraud or with respect to a change or correction
required to be reported under section six hundred fifty-nine of this
article.
  (e) Burden of proof. In any case before the tax commission under this
article, the burden of proof shall be upon the petitioner except for the
following issues, as to which the burden of proof shall be upon the tax
commission:
  (1) whether the petitioner has been guilty of fraud with intent to
evade tax;
  (2) whether the petitioner is liable as the transferee of property of
a taxpayer, but not to show that the taxpayer was liable for the tax;
  (3) whether the petitioner is liable for any increase in a deficiency
where such increase is asserted initially after a notice of deficiency
was mailed and a petition under this section filed, unless such increase
in deficiency is the result of a change or correction required to be
reported under section six hundred fifty-nine, and of which change or
correction the tax commission had no notice at the time it mailed the
notice of deficiency; and
  (4) whether any person is liable for a penalty under subsection (q) or
(r) of section six hundred eighty-five of this article.
  (f) Evidence of related federal determination.-- Evidence of a federal
determination relating to issues raised in a case before the tax
commission under this section shall be admissible, under rules
established by the tax commission.
  (g) Jurisdiction over other years.-- The tax commission shall consider
such facts with relation to the taxes for other years as may be
necessary correctly to determine the tax for the taxable year, but in so
doing shall have no jurisdiction to determine whether or not the tax for
any other year has been overpaid or underpaid.
Notes of Decisions
Cited in 32 cases (1 in the last 5 years), 1985–2024 · leading case: Suburban Restoration Co. v. Tax Appeals Tribunal, 299 A.D.2d 751 (N.Y. App. Div. 2002).
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Suburban Restoration Co. v. Tax Appeals Tribunal, 299 A.D.2d 751 (N.Y. App. Div. 2002). “Petitioner then commenced this CPLR article 78 proceeding to challenge the Tribunal’s determination. In cases such as this, a petitioner bears the burden of proving, by clear and convincing evidence, that a deficiency assessment was erroneous (see Tax Law § 689 [e]; Matter of…”
Voelker v. State of New York Comm'r, 50 A.D.3d 1187 (N.Y. App. Div. 2008). · cites it 2× “Finally, in May 2005, petitioner filed an administrative petition seeking reversal of the notices of deficiency which the Division of Tax Appeals moved to dismiss as untimely pursuant to Tax Law § 689. An Administrative Law Judge found that the lack of a timely protest to the…”
Rodriguez v. Tax Appeals Tribunal, 82 A.D.3d 1302 (N.Y. App. Div. 2011). “Petitioner then commenced this proceeding seeking review of the Tribunal’s determination.”
Scarpulla v. State Tax Comm'n, 120 A.D.2d 842 (N.Y. App. Div. 1986). “Petitioners’ contention that the determination was not supported by substantial evidence is rejected.”
Revere v. Comm'r of Taxation & Fin., 75 A.D.3d 860 (N.Y. App. Div. 2010). · cites it 2× “After petitioners and the Division filed exceptions to the ALJ’s determination, respondent Tax Appeals Tribunal sustained the ALJ’s determinations with respect to the withholding tax, interest due and denial of innocent spouse relief, and reversed the ALJ’s denial of fraud…”
Jacobson v. State Tax Comm'n, 129 A.D.2d 880 (N.Y. App. Div. 1987). “Petitioner’s main contention is that respondent erred in sustaining the notice of determination insofar as it found that petitioner owed tax on unreported income because the evidence presented at the administrative hearing clearly was in petitioner’s favor.”
Weil v. Chu, 120 A.D.2d 781 (N.Y. App. Div. 1986). “The burden is on petitioners to prove that the Tax Commis *784 sion’s deficiency assessment was improper (Tax Law § 689 [e]; Matter of Yohalem v State Tax Commn.”
Giuliano v. Chu, 135 A.D.2d 893 (N.Y. App. Div. 1987). “An initial demonstration of inadequate or incomplete records before employing an indirect method is normally only required in sales and use tax cases where the tax is imposed directly upon verifiable receipts evidenced by statutorily required books and records (see, Tax Law §…”
Evans v. Tax Appeals Tribunal of the State of New York, 199 A.D.2d 840 (N.Y. App. Div. 1993). “Because petitioner has *842 not satisfied his burden of proving that the income tax deficiency assessment was improper (Tax Law § 689 [e]; Matter of Levin v Gallman, 42 NY2d 32, 34 ), the decision below should be confirmed and the petition dismissed.”
Xuong Trieu v. Tax Appeals Tribunal, 222 A.D.2d 743 (N.Y. App. Div. 1995). “And, in any event, it lacks merit (see, Tax Law § 689 [e]; Matter of Bonomo v State Tax Commn.”
Miller v. State of New York Div. of Tax Appeals, 480 F. Supp. 2d 574 (E.D.N.Y 2007). “He may also petition for redetermi-nation of a deficiency pursuant to N.Y. Tax Law § 689 (b). New York Tax Law § 2016 and Article 78 provide for judicial review of a decision of the Tax Appeals Tribunal before the Appellate Division, Third Department .”
Rizzo v. Tax Appeals Tribunal, 210 A.D.2d 748 (N.Y. App. Div. 1994). “It is well settled that the burden of proof is upon petitioner to prove an erroneous deficiency assessment by clear and convincing evidence (see, Matter of Giuliano v Chu, 135 AD2d 893 ; see also, Tax Law § 689 [e]). "This burden is a heavy one since courts regularly defer to…”
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