N.Y. Comp. Codes R. & Regs. tit. 20 § 4000.5

Current through Register Vol. 46, No. 43, October 23, 2024

Section 4000.5 - Conciliation conference and review of request

(a) Acknowledgment of receipt of request; review of documents. The Bureau of Conciliation and Mediation Services shall acknowledge the receipt of a request. The request and other documents concerning the controversy shall then be reviewed to ascertain that the request is timely filed. Where review indicates that the request is not timely filed, the conciliation conferee will issue a conciliation order to that effect.

(b) Notice of conciliation conference; location; attendance requirements.

(1)

(i) Except as provided in subparagraph (ii) of this paragraph, a conciliation conference will be scheduled at an office of the department which is within the State and, where possible, which is most convenient to the requester. Written notice of the time and place of the first conciliation conference shall be mailed to all parties at least 30 days prior to the date of such conference. Written notice of the time and place of any adjourned or continued conciliation conference shall be mailed to the parties at least 10 days prior to the date of such adjourned or continued conference. A request by any party for a preference in scheduling will be honored to the extent possible, and the requester may waive, in writing, the 30-day notice requirement for this purpose.

(ii) A conciliation conference regarding the denial of an application for a license, permit or registration, or the cancellation, suspension or revocation of a license, permit or registration, shall be held, within 20 business days after receipt of the request (determined with regard to any postponements of any scheduled conference or other delay made at the request of the requester), at an office of the department which is within the State and, where possible, which is most convenient to the requester. The Bureau of Conciliation and Mediation Services shall attempt to contact the requester or his or her representative by telephone within the time limitations set forth in this subparagraph. When possible, written confirmation of the date, time and location of the conference shall be mailed to the applicant or his representative. A request for conciliation conference regarding the denial of an application for a license, permit or registration shall be considered to be a postponement or delay of a hearing made at the request of the applicant for such license, permit or registration.

(2) At the written request of either party, received 15 days in advance of the scheduled conciliation conference date, except for conferences scheduled pursuant to subparagraph (1)(ii) of this subdivision, an adjournment may be granted by the conciliation conferee where good cause is shown. In the event of an emergency, an adjournment in any case may be granted on less notice.

(3) Where a requester fails to appear personally or by representative and where an adjournment has not been granted, the conciliation conferee may issue a conciliation order dismissing the request for nonappearance. Upon written application filed within 30 days after the issuance of a conciliation order dismissing the timely request, such order may be vacated and a conciliation conference scheduled where the requester shows a reasonable excuse for the nonappearance. In the alternative, the requester may file a petition with the Division of Tax Appeals (see Part 3000 of this Title) within the time limitations prescribed by section 170.3 -a(e) of the Tax Law.

(4) Where the operating division or bureau is the absent party, the conciliation conferee may receive the requester's evidence without the presence of the operating division or bureau, and issue a conciliation order based on the record. The record made by the conciliation conferee shall consist of the statutory notice, any other correspondence or written information given by the operating division or bureau to the requester prior to the conciliation conference, the request, and any other evidence submitted by the requester at or after the conciliation conference.

(c) Conciliation conference scope and procedure.

(1)

(i) The conciliation conference is intended to afford the parties an opportunity to resolve disagreements. With the cooperation of the parties, the conciliation conferee will endeavor to develop those facts and issues on which there is no disagreement and those facts and issues which are in dispute. The goal of the conciliation conferee will be, where possible, in whole or in part, to resolve the controversy between the parties within the framework of the Tax Law, thereby narrowing the scope of or eliminating the need for a hearing in the Division of Tax Appeals.

(ii) A conciliation conference is not available for distributors, importing transporters, terminal operators or petroleum businesses where the issue is an increase in the amount of a bond or other security, requested by the commissioner, under section 283, 283-a, 283-b or 302 of the Tax Law. In this situation, the taxpayer should petition for a hearing in the Division of Tax Appeals in accordance with the provisions of Part 3000 of this Title.

(2) The conciliation conferee shall conduct the conciliation conference in an informal manner and shall hear or receive testimony and evidence deemed necessary or desirable for a just and equitable result. To accomplish the expeditious resolution of controversies, the commissioner may delegate to the conferee the right to waive or modify penalty, interest and additions to tax in accordance with the commissioner's authority to waive or modify penalty, interest and additions to tax under the Tax Law.

(3)

(i) After reviewing the testimony, evidence and comments, the conciliation conferee will serve on the requester a proposed resolution in the form of a consent. In developing this proposed resolution, the conciliation conferee may contact either party to clarify any issues or facts in dispute.

(ii) Where the proposal is acceptable to the requester, the requester shall have 15 days to execute the consent and agree to waive any right to petition for hearing in the Division of Tax Appeals concerning the statutory notice.

(iii) Where the requester fails to agree with the proposed resolution and does not execute the consent within 15 days, the conciliation conference proceeding will be deemed concluded. The conciliation conferee shall render a conciliation order within 30 days after the conciliation conference proceeding is concluded.

(4) In the absence of a showing of fraud, malfeasance or misrepresentation of a material fact, such order will be binding on the Division of Taxation and the requester. However, a conciliation order will not be binding on the requester if such person petitions for a hearing concerning the statutory notice within the time limitations prescribed by section 170.3 -a(e) of the Tax Law. The petition must be filed in accordance with section 3000.3 of this Title.

(5) Conciliation orders are not required to be published. Such orders are not considered precedent, nor are they given any force or effect in any subsequent conciliation conference with respect to the requester or any other person.

(6) If the consent or conciliation order entails a refund, approval of the Comptroller is necessary.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 4000.5