der, and no determination or proposed determination of an annual vault charge or determination on any application for refund by the commissioner of finance, nor any decision by the tax appeals tribunal or any of its administrative law judges, shall be enjoined or reviewed by an action for declaratory judgment, an action for money had and received or by any action or proceeding other than, in the case of a decision by the tax appeals tribunal sitting en banc, a proceeding in the nature of a certiorari proceeding under article seventy-eight of the civil practice law and rules; provided, however, that a person liable for the annual vault charge may proceed by declaratory judgment if he or she institutes suit within thirty days after a deficiency assessment is made and pays the amount of the deficiency assessment to the commissioner of finance prior to the institution of such suit and posts a bond for costs as provided in section 11-2707 of this chapter.

§ 130. Subdivisions a, b and d of section 11-2713 of the administrative code of the city of New York are amended to read as follows:

a. The commissioner of finance [or], his or her employees duly designated and authorized by the commissioner, the tax appeals tribunal and any of its duly designated and authorized employees shall have power to administer oaths and take affidavits in relation to any matter or proceeding in the exercise of [his or her] their powers and duties under this chapter. The commissioner of finance and the tax appeals tribunal shall have power to subpoena and require the attendance of witnesses and the production of books, papers and documents to secure information pertinent to the performance of [his or her] the duties of the commissioner or of the tax appeals tribunal hereunder and of the enforcement of this chapter and to examine them in relation thereto, and to issue commissions for the examination of witnesses who are out of the state or unable to attend before such commissioner or the tax appeals tribunal or excused from attendance.

b. A justice of the supreme court either in court or at chambers shall have power summarily to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and documents called for by the subpoena of the commissioner finance or the tax appeals tribunal under this chapter.

of

d. The officers who serve the summons or subpoena of the commissioner of finance or the tax appeals tribunal hereunder and witnesses attending in response thereto shall be entitled to the same fees as are allowed to officers and witnesses in civil cases in [court] courts of record, except as herein otherwise provided. Such officers shall be the city sheriff and his or her duly appointed deputies or any, officers, or ployees of the department of finance or the tax appeals tribunal, designated to serve such process.

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§ 131. Subdivision d of section 11-2715 of the administrative code of the city of New York is amended to read as follows:

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d. If any return, claim, statement, notice, application, or other document required to be filed, or any payment required to be made, within a prescribed period or or before a prescribed date under authority of any provision of this chapter is, after such period or such date, delivered by United States mail to the commissioner of finance, the tax appeals tribunal, bureau, office, officer or person with which or with whom such document is required to be filed, or to which or to whom such payment is required to be made, the date of the United States postmark stamped on the envelope shall be deemed to be the date of delivery. This subdivision shall apply only if the postmark date falls within the prescribed period or on or before the prescribed date for the filing of such document, or for making the payment, including any extension granted for such filing or payment, and only if such document or payment was deposited in the mail, postage prepaid, properly addressed to the commissioner of finance, the tax appeals tribunal, bureau, office, officer or person with which or with whom the document is required to be filed or to which or to whom such payment is required to be made. If any document is sent by United States registered mail, such registration shall be prima facie evidence that such document was delivered to the commissioner of finance, the tax appeals tribunal, bureau, office, officer or person to which or to whom addressed, and the date of registration shall be deemed the postmark date. The commissioner of finance [is] and, where relevant, the tax appeals tribunal are authorized to provide by regulation the extent to which the provisions of the preceding sentence with respect to prima facie evidence of delivery and the postmark date shall apply to certified mail. This subdivision shall apply in the case of postmarks not made by the United States postal ser

vice only if and to the extent provided by regulation of the sioner of finance or, where relevant, the tax appeals tribunal.

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§ 132. Subdivision a of section 168 of the New York city charter, as added by a vote of the people of the city of New York at the general election held in November of 1988, is amended to read as follows:

a. An independent tax appeals tribunal is hereby established. Such tribunal shall be within the department of finance established under chapter fifty-eight of this charter, but the powers, functions, duties and obligations of the tribunal shall be separate from and independent of the authority of the commissioner of finance. The tribunal shall have jurisdiction to hear and determine [appeals from determinations] cases initiated by the filing of petitions protesting notices issued by the commissioner of finance, [pursuant to paragraph (a) of subdivision two of section one thousand five hundred and four of this charter, relating] which give a person the right to a hearing, including but not limited to any notice of determination of tax due, of a tax deficiency, of a denial of a refund or credit application or of the refusal to grant, the suspension or the revocation of a license issued pursuant to chapter thirteen of title eleven of the administrative code, which notices relate to [all] nonproperty taxes, excise taxes and annual vault charges imposed by the city, except those taxes and charges administered by the State of New York on behalf of the City of New York. For purposes of the preceding sentence, if the commissioner of finance fails to act with respect to a refund application before the expiration of the time period after which the taxpayer may file a petition for refund with the tribunal pursuant to subdivision (c) of section 11-529 or subdivision three of section 11-680 of the administrative code, such failure shall be deemed to be a notice of denial of a refund issued by the commissioner of finance pursuant to such subdivision. The tribunal shall review petitions and other documents submitted to it, hold hearings, and render decisions as provided in this chapter. In rendering its décisions on claims asserted by taxpayers or the commissioner of finance, the tribunal shall have the same power and authority as the commissioner of finance to impose, modify or waive any taxes within its jurisdiction, interest thereon, and any applicable civil penalties. In appeals in which the rules of the commissioner of finance are at issue, the tribunal shall have the power and authority to rule on the legality of such rules.

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§ 133. Section 168 of the New York city charter is amended by adding three new subdivisions d, e and f to read as follows: d. The president of the tribunal shall appoint administrative law judges, subject to appropriations therefor, who shall be authorized conduct any hearing or motion procedure within the jurisdiction of the tribunal, subject to en banc review by the tribunal. Each administrative law judge shall be an attorney admitted to practice in the state of New York for at least five years. Each administrative law judge shall be appointed to the non-competitive class in the classified civil service. The president may designate one of the administrative law judges to be the chief administrative law judge, having such powers as are prescribed under the rules of the tribunal. A determination issued by an administrative law judge shall finally decide the matters in controversy unless any party to the hearing takes exception by timely request ing a review by the tribunal sitting en banc as provided for by rules adopted under section one hundred sixty-nine of the charter. Determinations issued by administrative law judges shall not be cited, shall not be considered as precedent nor given any force or effect in any other proceedings conducted by the tribunal or in any judicial proceedings conducted in this state.

e. The president of the tribunal shall appoint presiding officers, subject to appropriations therefor, who shall be authorized to conduct small claims hearings under a procedural system to be established pursuant to subdivision e of section one hundred sixty-nine of the charter. The qualifications for the position of presiding officer shall be determined by rules adopted pursuant to subdivision e of section one hundred sixty-nine of the charter, and each presiding officer shall be appointed to the non-competitive class in the classified civil service.

f. The tribunal shall collect, compile and prepare for publication statistics and other data with respect to its operations, and shall submit annually to the mayor a report on such operations, including, but EXPLANATION-Matter in italics is new; matter in brackets [] is old law

not limited to, the number of proceedings initiated, the types of dispositions made and the number of proceedings pending.

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§ 134. Section 169 of the New York city charter, as added by a vote of the people of the city of New York the general election held in November of 1988, is amended to read as follows: § 169. Rules of tribunal. Pursuant to chapter forty-five of this charter, the tribunal shall promulgate rules of procedure, which shall include, but not be limited to, rules on the following matters: a. The types of representatives, such as accountants and enrolled agents enrolled to practice before the internal revenue service, who may appear, in addition to lawyers, on behalf of a petitioner before the tribunal;

b. The form and contents of the petition, answer, affidavits and memoranda to be submitted to the tribunal, and reasonable time limitations for serving, and filing such papers;

C. [A reasonable fee to be paid by a petitioner to the tribunal upon commencing an appeal before it; d. ] A procedure promptly hearing and determining any [appeals] matter concerning jeopardy assessments ΟΙ predecision warrants based thereon;

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such

[e.] d. A procedural system guaranteeing a hearing in compliance with chapter forty-five of this charter [to be followed in cases which the tribunal determines to involve either (1) a matter in controversy exceeding ten thousand dollars, exclusive of interest and penalties, or (2) sufficiently substantial significance to warrant a hearing pursuant to this section] Such a system shall be designed to assign each [appeal an individual commissioner, who shall be responsible for hearing all aspects of that appeal pursuant to subdivision (f) of section one hundred and seventy] petition filed with the tribunal to an administrative law judge who shall hear and determine all matters pertaining to questions of law or fact. Such a system also shall be designed to fenable the president to order that an appeal be heard or re-heard by the tribunal in banc when consideration by the full tribunal is necessary to secure or maintain uniformity of its decisions] require the tribunal to review en banc at the request of any party the determination rendered by an administrative law judge, provided, however, that if there is no such request for a review within thirty days of the giving of notice of such determination by the administrative law judge, determination shall finally and irrevocably decide all the issues in the proceeding before the administrative law judge and shall be considered a final decision of the tribunal upon the expiration of such thirty-day period, except that, notwithstanding any other provision of law, such determination by the administrative law judge shall not be subject to judicial review. Such a system shall provide that the tribunal may, based upon the record of the hearing before the administrative law judge, make its own findings of fact and conclusions of law and issue a decision either affirming, reversing or modifying the determination of the administrative law judge, or the tribunal may remand the case for additional proceedings before the administrative law judge, as it may deem appropriate. The tribunal in its discretion may grant oral argument. Such a system shall provide that when the tribunal reviews a matter en banc it must have a majority present and that not less than two votes shall be necessary to take any action. Such a system also shall provide for a pre-hearing conference at which settlement is encouraged; reasonable [limited] discovery; [a method by which either a taxpayer or the commissioner of finance may request a hearing;] and the submission of [only one set of] papers addressing both the factual and legal merits in each proceeding, except in situations in which the tribunal determines exceptional circumstances require otherwise];

[f.] e. A procedural system to be followed in cases in which the matter in controversy is ten thousand dollars or less, exclusive of interest and penalties. Such a system shall be designed to provide a simplified and informal procedure for such small claims proceedings. The option to proceed with a small claims hearing shall be exercised by the petitioner. At any time prior to the conclusion of such hearing, a petitioner may by written notice to the tribunal discontinue such small claims hearing and request that the matter be transferred to a hearing conducted before an administrative law judge. Such transfer shall be effectuated by such written notice and such discontinuance shall be without prejudice to any subsequent hearing before an administrative law judge. The determination of the presiding officer conducting the small claims hearing shall be conclusive upon all parties, shall be considered

a final decision of the tribunal and shall not be subject to review by the tribunal sitting en banc or by any court of the state. However, the tribunal may order a rehearing upon proof or allegation of misconduct by the small claims presiding officer. Determinations issued by presiding officers shall not be cited, shall not be considered as precedent nor given any force or effect in any other proceedings conducted by the tribunal or in any judicial proceedings conducted in this state; and

[g.] f. A method for notifying taxpayers and the commissioner of finance of, and for publishing, the decisions of the tribunal.

$ 135. Section 170 of the New York city charter, as added by a vote of the people of the city of New York at the general election held in November of 1988, is amended to read as follows:

§ 170. Commencing an appeal before the tribunal. a. Any taxpayer who has been issued a [determination] notice referred to in subdivision a of section one hundred sixty-eight of the charter by the commissioner of finance, subsequent to being afforded an opportunity for a hearing before the commissioner of finance, of that taxpayer's liability for taxes or annual vault charges administered by the City of New York, pursuant to paragraph (a) of subdivision two of section one thousand five hundred and four of this charter, may commence an appeal to the tribunal] may petition the tribunal for administrative review. To commence [an appeal] a proceeding, such a taxpayer must, within ninety days after being issued the [determination] notice at issue by the commissioner of finance or, if the commissioner of finance has established a conciliation procedure pursuant to section 11-124 of the administrative code and the taxpayer has requested a conciliation conference in accordance therewith, within ninety days from the mailing of the conciliation decision or the date of the commissioner's confirmation of the discontinuance of the conciliation proceeding, both (1) serve a petition upon the commissioner of finance and (2) file the petition with the tribunal. Notwithstanding the time specified in the preceding sentence for filing a petition, a petition for refund filed pursuant to subdivision (c) of section 11-529 of the administrative code or subdivision three of section 11-680 of such code may be filed within the time specified in such subdivision (c) or such subdivision three. The tribunal shall not extend the time [limitation] limitations for commencing [an appeal] a proceeding for any petitioner failing to comply with such time [limitation] limitations. The petition shall contain a plain and concise statement of the facts and law on which the [appeal] proceeding is based.

may

b. Within thirty days after service of the petition on the commissioner of finance, or within such longer period as the tribunal prescribe by rule, the commissioner of finance shall serve and file an answer responding to each of the allegations in the petition and setting forth all affirmative defenses and requests for counter-relief.

c. [Neither the petitioner nor the commissioner of finance shall raise any factual or legal issue or make any requests for relief not raised or made earlier in the proceedings before the commissioner of finance without leave of the tribunal, unless a change in the law applicable to the matter in controversy is the basis for raising a new issue or making a new request for relief.

d. ] The filing of a petition with the tribunal shall [not] stay (1) the Collection of any taxes or annual vault charges [or] and (2) the payment of any refund of taxes or annual vault charges, together with interest and penalties, [due and payable as of the date of the commissioner of finance's determination, unless (1) otherwise provided by law or (2) the tribunal issues a stay conditioned upon a showing that the petitioner has furnished sufficient security for the payment of the tax or annual vault charge,, interest thereon and penalties to the commissioner of finance] which are the subject of the petition, provided, however, if the commissioner of finance finds that the assessment or collection of a tax, charge, penalty or interest will be jeopardized by delay, such assessment or collection shall not be stayed.

[e. The tribunal shall not accept for determination any petition concerning a matter for which the petitioner has failed to exhaust all available hearings, appeals and other remedies provided by the commissioner of finance.

f. At the discretion of the tribunal, the tribunal may (1) confine its factual review to the record established below before the commissioner of finance, (2)] d. Upon assignment of a petition filed with the tribuEXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

nal to an administrative law judge, such administrative law judge shall hear and determine any issues of fact [de novo, or (3) remand to the commissioner of finance for further findings of fact. The tribunal's decision to confine its factual review in any appeal to the record below shall not prevent the tribunal from determining any legal issue or rendering a final decision contrary to the determination rendered below by the commissioner of finance] or law. Unless otherwise provided by law, the party seeking relief as to each issue shall bear the burden of proof. Upon a request to the tribunal for review of a determination of an administrative law judge, the tribunal shall proceed in accordance with the rules adopted pursuant to subdivision d of section one hundred sixty-nine of the charter. The tribunal shall [take into consideration] follow as precedent the prior precedential decisions of the tribunal (but not of its small claims [division] presiding officers), the New York State Tax Appeals Tribunal or of any federal or New York state court or the U. S. Supreme Court insofar as those decisions pertain to any substantive legal issues currently before the tribunal.

e. The tribunal shall have power to subpoena and require the attendance of witnesses and the production of books, papers and documents pertinent to the proceedings which it is authorized to conduct, and to examine them in relation to any matter which it has power to investigate and to issue commissions for the examination of witnesses who are out of the state or unable to attend proceedings conducted pursuant to the authority of the tribunal or excused from attendance at such proceedings. The tribunal may designate and authorize administrative law judges and other officers or employees of the tribunal to exercise any of the powers or perform any of the functions provided for in this subdivision. A subpoena issued under this subdivision shall be regulated by the civil practice law and rules. Any person who shall testify falsely in any proceeding conducted pursuant to the authority of the tribunal shall be guilty of and punishable for perjury.

f. The tribunal shall have power to provide that an attorney for any party at a hearing conducted before an administrative law judge may issue a subpoena as provided in the civil practice law and rules.

§ 136. Section 171 of the New York city charter, as added by a vote of the people of the city of New York at the general election held in November of 1988, is amended to read as follows:

§ 171. Decisions of the tribunal and judicial review. a. (1) The [tribunal shall render each of its] determinations of the administrative law judges and the decisions of the tribunal sitting en banc shall be in writing. Each [of its decisions] determination or decision, with the exception of those rendered [in] pursuant to the small claims [division] procedure, shall contain [a statement of the tribunal's judgment its] findings of fact[] and [the tribunal's] conclusions of law. A final decision of the tribunal may (i) grant in whole or in part the sought by the petitioner and/or the commissioner of finance, or (ii) dismiss the petition or request for counter-relief either on the merits or with leave to renew.

relief

(2) An administrative law judge shall render a determination after a hearing, within six months after submission of briefs subsequent to completion of such a hearing or, if such briefs are not submitted, then within six months after completion of such a hearing. Such six month period may be extended by the administrative law judge, for good cause shown, to no more than three additional months. If the administrative law judge fails to render a determination within such six month period (or such period as extended pursuant to this subdivision) the petitioner for such hearing or the commissioner of finance, or both, may institute a proceeding under article seventy-eight of the civil practice law and rules to compel the issuance of such determination.

(3) A decision of the tribunal sitting en banc shall be issued within six months from the date of the request to the tribunal for en banc review of an administrative law judge's determination, except that where oral argument is granted or written arguments are submitted such six month period will commence to run on the date that such oral argument was concluded or written argument received by the tribunal, whichever was later.

b. [Each] Except as otherwise provided in subdivisions d and e of section one hundred sixty-nine of the charter, each decision of the tribu nal, [including the decisions of its small claims division,] shall finally and irrevocably decide all the issues raised in the proceedings before it, unless the petitioner who commenced the proceeding [or the commissioner of finance] seeks judicial review of any such decision [in