§ 288.08. Refunds.

1.

In the manner provided in this section, the Commissioner of Motor Vehicles shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if application for such refund shall be made within one year from the payment thereof to the Commissioner of Motor Vehicles or to the Commissioner of Finance, if designated as his or her agent. Whenever a refund is made, the reasons therefor shall be stated, in writing, by the Commissioner of Motor Vehicles or by the Commissioner of Finance, as the case may be, who, in lieu of any refund, may allow credit therefor on payments due from the applicant.

2.

An application for a refund or credit made as herein provided shall be deemed an application for a revision of any tax, penalty or interest complained of and the Commissioner of Motor Vehicles or the Commissioner of Finance, if designated as his or her agent, shall hold a hearing and receive evidence with respect thereto. 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 applicant who shall be entitled to review such determination by a proceeding pursuant to Article 78 of the Civil Practice Law and Rules, provided that such proceeding is instituted within four months after the giving of notice in such determination, and provided that a final determination of tax due was not previously made. Such a proceeding shall not be instituted unless an undertaking is filed with the Commissioner of Motor Vehicles in such amount and with such sureties as a Justice of the Supreme Court shall approve, to the effect that if such proceeding be dismissed or the tax confirmed, the petition will pay all costs and charges which may accrue in the prosecution of such proceeding.

3.

A person shall not be entitled to a revision, refund or credit under this section of a tax, interest or penalty which has been determined to be due pursuant to the provisions of section 288.06 of this chapter where he or she has had a hearing or an opportunity for a hearing, as provided in said section, or has failed to avail himself or herself of the remedies therein provided. No refund or credit shall be made of a tax, interest or penalty paid after a determination made pursuant to section 288.06 of this chapter, unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper after a hearing or, on his or her own motion, by the Commissioner of Motor Vehicles or by the Commissioner of Finance, as the case may be, or in a proceeding under Article 78 of the Civil Practice Law and Rules, pursuant to the provisions of said section, in which event refund or credit without interest shall be made of the tax, interest or penalty found to have been overpaid.

(Added by L.L. No. 2-1991)