New York Offers in Compromise

The New York State Offer in Compromise Program

The New York State Offer in Compromise Program allows qualifying, financially distressed taxpayers the opportunity to put overwhelming tax liabilities behind them by paying a reasonable amount in compromise. The Tax Department will not necessarily, however, accept every offer in compromise (also referred to as offer throughout this publication).

The Commissioner of Taxation and Finance is empowered to compromise taxes for qualifying taxpayers under Tax Law sections 171.15th, for liabilities considered fixed and final; 171.18th-a, for liabilities still subject to administrative review; and 171.18th-d, for certain joint personal income tax liabilities. Under section 171.15th, if the tax portion of the liability is more than $100,000 (not including penalties and interest), compromises must be approved by a New York State Supreme Court justice. Other standards set forth in the Tax Law, and requirements in Parts 5000 and 5005 of the New York State Official Compilation of Codes, Rules, and Regulations (NYCRR), are described below. In most cases, to be eligible for an offer in compromise, taxpayers must be insolvent (liabilities exceed assets), and the Tax

Department’s ability to collect more than the amount offered must be in doubt. In addition, taxpayers making an offer must have filed all applicable New York State tax returns. The taxpayer should make a reasonable monetary offer based on his or her financial situation. If an offer is withdrawn or rejected, any money sent in by the taxpayer with the offer in compromise will be promptly refunded without interest or, at the taxpayer’s request, applied to the tax liability. In addition, collection activities may continue while an offer is under review.

Insolvency

A taxpayer is considered insolvent when the taxpayer’s liabilities, including tax liabilities, exceed the fair market value of his or her assets. The taxpayer must conclusively demonstrate this insolvency.

Collectibility

The department, after an evaluation, determines an amount that it realistically expects could be collected within a reasonable period of time from the taxpayer’s assets. The amount acceptable in compromise cannot be less than what could be expected to be collected from the taxpayer over that period through legal proceedings, such as levies, income executions, and seizures.

Offer in compromise forms

Form DTF‑4, Offer in Compromise (For Liabilities Not Fixed andFinal and Subject to Administrative Review), or DTF‑4.1, Offer in Compromise (For Fixed and Final Liability), must be filed to request an offer in compromise.

A completed Form DTF‑5, Statement of Financial Condition andOther Information, must be submitted with the last three years of federal income tax returns, a credit report less than 30 days old, the last 12 months of bank statements, and Form DTF‑4 or DTF‑4.1 to:

NYS TAX DEPARTMENT

OIC PROGRAM

PO BOX 5100

ALBANY NY 12205-0100

Offers in compromise when the liabilities are considered fixed and final (Tax Law

section 171.15th)

Offers under this subdivision apply to tax liabilities for which further administrative or judicial review is not available. Therefore, the primary consideration is collectibility. An offer would be considered if the taxpayer has been discharged from bankruptcy within the last year or is shown to be insolvent. The amount accepted cannot

be less than what could realistically be expected to be collected from the taxpayer through legal proceedings.

Offers in compromise when the liabilities are still subject to administrative review (Tax Law

section 171.18th-a)

Offers under this subdivision apply to tax liabilities that are still subject to administrative review, and are not fixed and final. The offer may be based on doubt as to the taxpayer’s liability for the taxes due, or doubt as to the taxpayer’s ability to pay the taxes due, in full, over a reasonable period.

Trust tax liabilities

For trust tax liabilities (e.g., withholding tax, sales tax), an amount less than the tax amount owed, exclusive of penalties and interest, will not normally be accepted. However, upon evaluation of the facts of the specific case, the department may determine that a lesser amount is acceptable if it is in the best interest of all parties

concerned. The department considers whether the business is still in operation, and whether the trust taxes were actually collected.

Joint income tax liabilities

For joint income tax liabilities, the taxpayers may file an offer jointly on one Form DTF‑4 or DTF‑4.1, or may each file a separate offer.If only one taxpayer’s offer is accepted and paid, the remaining taxpayer continues to be liable for the outstanding balance of the liability. An accepted offer forgives further payment only for the taxpayer whose offer was accepted.

Responsible person

A taxpayer assessed as a responsible person liable for the

collection and payment of trust taxes for a business may

compromise his or her trust tax liability separately from the

business. Any or all of the responsible persons may apply for

an individual offer in compromise. The department will make a

separate determination on each offer, based on the circumstances

of each responsible person who applies. If the offer is accepted,

the payments made toward the offer will reduce the business’s

liability by that same amount. While the taxpayer’s responsible

person assessments are abated upon full payment of the accepted

offer, the business’s assessments and the assessments of any

other responsible person will remain open and collectible, less all

payments made under the offer.

If a business applies for an offer in compromise and the

responsible persons do not apply individually, acceptance of the

business’s offer would have no effect on a responsible person’s

liability other than reducing his or her individual liability by an

amount equal to that paid by the business

Offers in compromise when the liabilities concern

certain joint personal income tax liabilities (Tax Law

section 171.18th-d)

To qualify for an offer under this subdivision, a taxpayer must

have a liability on a previously filed joint income tax return and, at

the time of the offer, the taxpayer and his or her spouse must be

separated under a decree of divorce or separate maintenance or

a written separation agreement, or a judicial decree of separation,

or living apart and not considered married under section 7703(b)

of the Internal Revenue Code. It must also be determined that the

collection of the spouse’s share of the liability from the taxpayer

cannot be accomplished within a reasonable period without

imposing substantial economic hardship on the taxpayer.

Offer in compromise withdrawal

The taxpayer or the taxpayer’s representative may withdraw an

offer before an official review has been completed and before a

final decision has been made on the offer. In some cases, such

as when a taxpayer fails to supply requested information, the

department considers the offer to be withdrawn as incomplete and

advises the taxpayer in writing of the decision.

Offer in compromise acceptance

Upon acceptance of an offer, written notification will be provided to

the taxpayer or the taxpayer’s designated representative specifying

the terms and conditions. Under the terms of the accepted offer,

the taxpayer agrees to remain fully compliant with all Tax Law

requirements, including filing returns and paying tax when

required for the next five years. Any state tax refunds payable

to the taxpayer for periods prior to and including the calendar

year in which the offer is accepted will be applied to the original

outstanding liability. Any excess will be refunded to the taxpayer.

The taxpayer(s) waive(s) any statute of limitations defenses

to the assessment and collection of the liability sought to be

compromised and further waives(s) any statute of limitations

defenses against the issuance of new assessment(s) for the

compromised liability in the event the taxpayer(s) fail(s) to comply

with the terms of the Offer in Compromise.

The taxpayer also agrees to forfeit any current capital loss or net

operating loss credits taken on any future New York State tax

returns.

Offer in compromise rejection

Written notification is provided if an offer is rejected. Examples of

reasons for rejection include, but are not limited to:

• The taxpayer does not meet the statutory requirements set forth

in the New York State Tax Law.

• The taxpayer submits false or misleading information.

• The taxpayer submits a frivolous offer.

• The taxpayer fails to make full financial disclosure.

• There is evidence that assets were transferred for less than the

fair market value.

• The taxpayer shows a lack of a good faith effort to repay the

liability.

• The tax liability sought to be compromised directly relates to a

crime for which the taxpayer has pleaded or been found guilty.

Depending on the circumstances, the department may reconsider

a rejected offer if there is a material change in the taxpayer’s

circumstances, if the department misinterpreted information

contained in the original offer, or if the taxpayer offers a substantial

increase in the amount that was originally offered.

Defaulted offers

If a taxpayer fails to abide by all of the terms and conditions

of the offer in compromise, the offer is in default. Upon default

and revocation, the original liability is reinstated, including all

appropriate penalty and interest, minus any payments received on

the offer.

Offers made to the Internal Revenue Service

The New York State Offer in Compromise Program is distinct from

similar programs offered by the federal government. For example,

the guidelines for the acceptance of offers differ. However, the

department will accept a copy of the federal offer in compromise

collection information statement as part of the application process.

If you have questions about the New York State Offer in

Compromise Program, please call (518) 457-9086 from 8:00 a.m.

to 4:25 p.m. (eastern time), Monday through Friday. For forms and

other information, see Need help?

Personal Income Tax Information Center: 1 800 225-5829

From areas outside the U.S. and outside Canada: (518) 485-6800

Text Telephone (TTY) Hotline (for persons with

hearing and speech disabilities using a TTY): 1 800 634-2110

www.irstaxattorney.com (212) 588-1113 ab@irstaxattorney.com