N.Y. Comp. Codes R. & Regs. tit. 20 § 2399.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 2399.2 - Timely mailing, filing and paying

Tax Law, §§ 171, 289-d, 434-a, 514-a, 691(a), 1091(a), 1147(a), 1419(b), art. 11

(a)

(1) General.

(i) In general, where any document required to be filed with, or payment required to be made to, the Department of Taxation and Finance (or, for purposes of article 11 of the Tax Law, the appropriate recording officer) within a prescribed period or on or before a prescribed date is delivered in the manner and time provided in this section by United States mail to the appropriate address after the prescribed period or date, the date of the United States postmark as stamped on the envelope or other wrapper in which such document or payment is contained will be deemed to be the date of filing or paying.

(ii) Any reference in this section to the United States mail shall be treated as including a reference to any delivery service that has been designated by the commissioner or by the Secretary of the Treasury of the United States pursuant to section 7502 of the Internal Revenue Code (unless the commissioner determines such delivery service is not adequate to meet the needs of the State), and any reference to a postmark by the United States mail shall be treated as including a reference to any date recorded or marked in the manner described in such section of the Internal Revenue Code by a designated delivery service. Where delivery is made by courier, delivery messenger, or similar service that has not been so designated, the date of receipt by the department will be deemed to be the date of filing or paying.

(2) Mailing requirements.

Any document or payment which is not received within the prescribed period or on or before the prescribed date will not be considered to be timely filed or timely paid unless it is mailed in accordance with all of the following requirements:

(i) The document or payment must be contained in an envelope or other appropriate wrapper properly addressed to the address designated by the Department of Taxation and Finance (or appropriate recording officer, where applicable).

(ii) The envelope or wrapper containing the document or payment must be deposited in the mail of the United States within the prescribed period or on or before the prescribed date with sufficient postage prepaid. For this purpose, the document or payment is considered to be deposited in the mail of the United States when it is deposited with the domestic mail service of the United States Postal Service. The domestic mail service of the United States Postal Service includes mail transmitted within, among, and between the United States, its territories and possessions, and Army-Air Force (APO) and Navy (FPO) post offices.

(iii)

(a) If the postmark on the envelope or wrapper containing the document or payment is made by the United States Postal Service, the postmark must bear a date stamped by the United States Postal Service which is within the prescribed period or on or before the prescribed date for filing or paying (including any extensions of time granted for filing and/or paying, where applicable). If the postmark stamped by the United States Postal Service on the envelope or wrapper does not bear a date which falls within the prescribed period or on or before the prescribed date for filing or paying, the document or payment will not be considered to be timely filed or paid, regardless of when the envelope or wrapper was deposited in the mail. Accordingly, the sender assumes the risk that the envelope or wrapper will be are postmark date stamped by the United States Postal Service within the prescribed period or on or before the prescribed date for filing or paying (including any extensions of time granted for filing and/or paying, where applicable). However, see subdivision (b) of this section with respect to the use of registered mail or certified mail to avoid this risk. Furthermore, if the postmark made by the United States Postal Service on the envelope or wrapper containing the document or payment is not legible, the provisions of clause (c) of this subparagraph shall apply, unless the person who or which is required to file or pay can prove when the postmark was impressed by the United States Postal Service.

(b)

(1) If the postmark on the envelope or wrapper containing the document or payment is made by other than the United States Postal Service (i.e., metered mail):

(i) the postmark so made must bear a date which falls within the prescribed period or on or before the prescribed date for filing or paying (including any extensions of time granted for filing and/or paying, where applicable); and

(ii) the document or payment must be received by the Department of Taxation and Finance (or appropriate recording officer, where applicable) not later than the time when an envelope or other appropriate wrapper which has sufficient postage prepaid and is properly addressed, mailed and sent by the same class of mail would ordinarily be received at the address designated by the department (or appropriate recording officer, where applicable);

if it were postmarked at the same point of origin by the United States Postal Service on the last day of the prescribed period or on the prescribed date for filing or paying (including any extensions of time granted for filing and/or paying, where applicable).

(2) In a case where the document or payment is received after the time when a document or payment so mailed and so postmarked by the United States Postal Service would ordinarily be received at the address designated by the Department of Taxation and Finance, the document or payment will be treated as having been received at a time when a document or payment so mailed and postmarked would ordinarily have been received, if the person who or which is required to file or pay establishes:

(i) that it was actually deposited in the mail before the last collection of the mail from the place of deposit which was postmarked (except for metered mail) by the United States Postal Service within the prescribed period or on or before the prescribed date for filing or paying;

(ii) that the delay in receiving the document or payment was due to a delay in the transmission of the mail; and

(iii) the cause of the delay.

(3) If the envelope or wrapper containing the document or payment has a postmark made by the United States Postal Service in addition to a postmark made by other than the United States Postal Service, the postmark which was not made by the United States Postal Service will be disregarded, and whether the envelope or wrapper was mailed in accordance with this subdivision will be determined solely by applying the provisions of clause (a) of this subparagraph.

(c) If the envelope or wrapper containing the document or payment bears sufficient prepaid United States postage but is missing any postmark whatsoever, the document or payment must be received by the Department of Taxation and Finance (or appropriate recording officer, where applicable) not later than the time when an envelope or wrapper which has sufficient postage prepaid and is properly addressed, mailed and sent by the same class of mail would ordinarily be received at the address designated by the department (or appropriate recording officer, where applicable) if it were postmarked at the same point of origin by the United States Postal Service on the last day of the prescribed period or on the prescribed date for filing or paying (including any extensions of time granted for filing and/or paying, where applicable). In a case where the document or payment is received after such time, the provisions of subclause (b)(2) of this subparagraph shall apply.

(b)

(1) If an envelope or wrapper containing a document or payment is sent by United States registered mail, the date of the registration is treated as the postmark date and the date of filing or paying.

(2) If an envelope or wrapper containing a document or payment is sent by United States certified mail and the sender's receipt for certified mail is postmarked by the postal employee to whom the envelope or wrapper is presented, the date of the postmark on the receipt for certified mail is treated as the postmark date and the date of filing or paying.

(c) If the envelope or wrapper containing the document or payment is mailed from a foreign country and received by the Department of Taxation and Finance (or appropriate recording officer, where applicable), the date of the official postmark stamped on the envelope or wrapper will be deemed to be the date of filing or paying. The envelope or wrapper must be properly addressed, have sufficient postage prepaid and bear a date stamped by the foreign country's official postal service which is within the prescribed period or on or before the prescribed date for filing or paying (including any valid extensions of time, where applicable). Provided, however, if the receipt of any payment mailed from a foreign country is inordinately delayed, the Department of Taxation and Finance will require payment by some other means, including, but not limited to, a requirement that payment must be received by the department within the prescribed period or on or before the prescribed date for paying.

(d)

(1) The term document, as used in this section, means any return, report, declaration of estimated tax, claim, statement, notice, application, affidavit, or other document required to be filed within a prescribed period or on or before a prescribed date under the authority of any provision of the applicable article of the Tax Law or other applicable laws concerning matters under the jurisdiction of the commissioner. Provided, however, such term does not include any document that is permitted or required in conjunction with an electronic funds transfer pursuant to section 9 or section 10 of the Tax Law-see Part 2396 and Part 2397, respectively, of this Title.

(2) The term payment, as used in this section, means any payment (or fee) required to be made (or paid over) within a prescribed period or on or before a prescribed date under the authority of any provision of the applicable article of the Tax Law or other applicable laws concerning matters under the jurisdiction of the commissioner. However, the term does not include any remittance unless the amount thereof is actually received by the Department of Taxation and Finance (or appropriate recording officer, where applicable). For example, if a check is used as a form of payment, this section does not apply if such check is not received or, if received, is not honored upon presentment. Furthermore, such term does not include any electronic funds transfer pursuant to section 9 or section 10 of the Tax Law-see Part 2396 and Part 2397, respectively, of this Title.

(e)Timely filed electronic documents.

(1) Notwithstanding any other provisions of this Title and except in the case of an electronic funds transfer pursuant to section 9 or 10 of the Tax Law, any document that is filed electronically with the department (or with the department's designee) in the manner and time provided by the commissioner is deemed to be filed on the date of the electronic postmark. Thus, if the electronic postmark is timely, the document is considered filed timely although it is received after the last date prescribed for filing.

(2)

(i) For purposes of this subdivision and except as provided in paragraph (3) of this subdivision, the term electronic postmark means a record of the date and time (in a particular time zone) that an authorized electronic return transmitter receives the transmission of a taxpayer's electronically filed document on its host system. However, if the taxpayer and the electronic return transmitter are located in different time zones, it is the taxpayer's time zone that controls the timeliness of the electronically filed document. This is, the date and time that the transmitter receives the transmission are converted to the date and time in the taxpayer's time zone.

(ii) An electronic return transmitter is a person or other entity that transmits electronic documents directly to this department or directly to the Internal Revenue Service for forwarding to this department. A tax preparation service, electronic return originator, software developer, or other person or entity that does not transmit documents directly to this department or directly to the Internal Revenue Service for forwarding to this department is not an electronic return transmitter. The commissioner or the Commissioner of the Internal Revenue Service (as the case may be) may enter into an agreement with an electronic return transmitter or prescribe in forms, instructions, or other appropriate guidance the procedures under which the electronic return transmitter is authorized to provide taxpayers with an electronic postmark to acknowledge the date and time that the electronic return transmitter received the electronically filed document.

(3) If a taxpayer electronically files a document directly with this department, directly with the Internal Revenue Service for forwarding to this department, or directly or indirectly with an electronic return transmitter and no electronic postmark is assigned by the transmitter, the electronic postmark is deemed to be the record of the date and time that the department receives the transmission of the taxpayer's electronically filed document. If it can be established by the taxpayer or otherwise that the Internal Revenue Service received the transmission of a New York State document at an earlier date and time, the electronic postmark will be considered such earlier date and time. In either case, it is the taxpayer's time zone that controls the timeliness of the electronically filed document.

(f)Timely payments by electronic funds withdrawals, credit card, and debit card.

(1)

(i) Notwithstanding any other provision of this Title and except in the case of an electronic funds transfer pursuant to section 9 or 10 of the Tax Law, any payment that is made by electronic funds withdrawal in the manner provided by the commissioner is deemed to be made on the date that the taxpayer specifies as the date for withdrawal provided that the date specified is not beyond the last date prescribed for payment, the funds are available for withdrawal on such date, and the document to which the funds apply is filed timely in accordance with this Part. Therefore, if a document is filed on or before the prescribed due date, any applicable payment by electronic funds withdrawal is considered to be timely made if the funds are available and the taxpayer specifies any date up to an including the due date as the date for withdrawal of the funds. If no date for withdrawal of the funds is specified by the taxpayer, payment is deemed to be made on the last date prescribed for such payment.

(ii) If the document to which the funds apply is not filed timely in accordance with this Part, any prior payment that is made by electronic funds withdrawal in the manner provided by the commissioner on or before the last date prescribed for paying is deemed to be timely made provided such payment can be associated with the proper tax liability, as evidenced by the taxpayer.

(2) Notwithstanding any other provision of this Title, any payment that is made by credit card or debit card in the manner provided by the commissioner is deemed to be made on the date that the issuer of the card properly authorizes the transaction provided that the payment is actually received by the department in the ordinary course of business and is not returned due to correction of errors relating to the credit card account or debit card account. Accordingly, a payment made by credit or debit card is considered to be timely if the issuer properly authorizes the payment on or before the last date prescribed for paying and such payment is received by the department in the ordinary course of business for such a transaction and is not returned.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 2399.2