Wednesday, October 31, 2012

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 If an offer is withdrawn or rejected, any money sent in by the taxpayer with the offer in compromise will be promptly refunded without interest or, at the taxpayer’s request, applied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.


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.


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 DTF4, Offer in Compromise (For Liabilities Not Fixed andFinal and Subject to Administrative Review), or DTF4.1, Offer in Compromise (For Fixed and Final Liability), must be filed to request an offer in compromise.
A completed Form DTF5, 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 DTF4 or DTF4.1 to:

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 DTF4 or DTF4.1, 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

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
• 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 (212) 588-1113

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