If a return required by this chapter is not filed or if a return when filed is incorrect
or insufficient or if a tax or any part thereof due hereunder be not paid when required,
the amount of tax due shall be determined by the Commissioner of Motor Vehicles or
by the Commissioner of Finance, if designated as his or her agent, from such information
as may be obtainable, including motor vehicle registration with the Department of
Motor Vehicles of the State of New York and/or other factors. Notice of such determination
shall be given to the person liable for the tax. Such determination shall finally
and irrevocably fix the tax unless the person against whom it is assessed, within
30 days after the giving of notice of such determination, shall apply to the Commissioner
of Motor Vehicles or to the Commissioner of Finance, if designated as his or her agent,
for a hearing or unless such commissioner or agent, as the case may be, of his or
her own motions shall redetermine the same. After such hearing, the Commissioner of
Motor Vehicles, if he or she holds the hearing, or the Commissioner of Finance, if
the Commissioner of Finance holds the hearing, shall give notice of the determination
of such application to the person against whom the tax is assessed. Such determination
shall be reviewable for error, illegality or unconstitutionality or any other reason
whatsoever by a preceding under Article 78 of the Civil Practice Law and Rules if
application therefor is made to the supreme court within four months after the giving
of the notice of such determination. A proceeding under Article 78 of the Civil Practice
Law and Rules shall not be instituted unless the amount of any tax sought to be reviewed,
with penalties and interest thereon, if any, shall be first deposited with the Commissioner
of Motor Vehicles and there shall be filed with the Commissioner of Motor Vehicles
an undertaking, issued by a surety company authorized to transact business in this
state and approved by the superintendent of insurance of this state as to solvency
and responsibility, in such amount as a justice of the supreme court shall approve,
to the effect that if such proceeding be dismissed or the tax confirmed, the petitioner
will pay all costs and charges which may accrue in the prosecution of the proceeding;
or at the option of the applicant such undertaking filed with the Commissioner of
Motor Vehicles may be in a sum sufficient to cover the taxes, penalties and interest
thereon stated in such determination, plus the costs and charges which may accrue
against it in the prosecution of the proceeding, in which event the applicant shall
not be required to deposit such taxes, penalties and interest as a condition precedent
to the application.
(Added by L.L. No. 2-1991)
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