54A:9-9. Petition to director.

(a) General. The form of a petition to the director, and further proceedings before the director in any case initiated by the filing of a petition, shall be governed by such rules as the director shall prescribe. No petition shall be deemed in whole or in part without opportunity for a hearing on reasonable prior notice. Such hearing shall be conducted by the director, or by a hearing officer designated by him to take evidence and report to the director. The director shall decide the case as quickly as practicable. Notice of the decision shall be mailed promptly to the taxpayer at his last known address, and such notice shall set forth the director's findings of fact and a brief statement of the grounds of decision in each case decided in whole or in part adversely to the taxpayer.

(b) Petition for redetermination of a deficiency. Within 90 days, or 150 days if the notice is addressed to a person outside of the United States, after the mailing of the notice of deficiency authorized by section 54A:9-2, the taxpayer may file a petition with the director for a redetermination of the deficiency. Such petition may also assert a claim for refund for the same taxable year or years, subject to the limitations of subsection (f) of section 54A:9-8.

(c) Petition for refund. A taxpayer may file a petition with the director for the amounts asserted in a claim for refund if--

(1) The taxpayer has filed a timely claim for refund with the director;

(2) The taxpayer has not previously filed with the director a timely petition under subsection (b) for the same taxable year unless the petition under this subsection relates to a separate claim for credit or refund properly filed under subsection (e) of section 54A:9-8; and

(3) Either (A) 6 months have expired since the claim was filed, or (B) the director has mailed to the taxpayer a notice of disallowance of such claim in whole or in part.

No petition under this subsection shall be filed more than 2 years after the date of mailing of a notice of disallowance, unless prior to the expiration of such 2-year period it has been extended by written agreement between the taxpayer and the director. If a taxpayer files a written waiver of the requirement that he be mailed a notice of disallowance, the 2-year period prescribed by this subsection for filing a petition for refund shall begin on the date such waiver is filed.

(d) Assertion of deficiency after filing petition.--

(1) Petition for redetermination of deficiency. If a taxpayer files with the director a petition for redetermination of a deficiency, the director shall have power to determine a greater deficiency than asserted in the notice of deficiency and to determine if there should be assessed any addition to tax or penalty provided in section 54A:9-6, if claim therefor is asserted at or before the hearing under rules of the director.

(2) Petition for refund. If the taxpayer files with the director a petition for credit or refund for a taxable year, the director may

(A) Determine a deficiency for such year as to any amount of deficiency asserted at or before the hearing under rules of the director, and within the period in which an assessment would be timely under section 54A:9-4, or

(B) Deny so much of the amount for which credit or refund is sought in the petition, as is offset by other issues pertaining to the same taxable year which are asserted at or before the hearing under rules of the director.

(3) Opportunity to respond. A taxpayer shall be given a reasonable opportunity to respond to any matters asserted by the director under this subsection.

(4) Restriction on further notices of deficiency. If the taxpayer files a petition with the director under this section, no notice of deficiency under section 54A:9-2 may thereafter be issued by the director for the same taxable year, except in case of fraud or with respect to a change or correction in Federal taxable income required to be reported under section 54A:8-7.

(e) Burden of proof. In any case before the director under this act, the burden of proof shall be upon the petitioner except for the following issues, as to which the burden of proof shall be upon the director:

(1) Whether the petitioner has been guilty of fraud with intent to evade tax;

(2) Whether the petitioner is liable as the transferee of property of a taxpayer, but not to show that the taxpayer was liable for the tax; and

(3) Whether the petitioner is liable for any increase in a deficiency where such increase is asserted initially after a notice of deficiency was mailed and a petition under this section filed, unless such increase in deficiency is the result of a change or correction of Federal taxable income required to be reported under section 54A:8-7, and of which change or correction the director had no notice at the time he mailed the notice of deficiency.

(f) Evidence of related Federal determination. Evidence of a Federal determination relating to issues raised in a case before the director under this section shall be admissible, under rules established by the director.

(g) Jurisdiction over other years. The director shall consider such facts with relation to the taxes for other years as may be necessary correctly to determine the tax for the taxable year, but in so doing shall have no jurisdiction to determine whether or not the tax for any other year has been overpaid or underpaid.

L.1976, c. 47, s. 54A:9-9, eff. July 8, 1976, operative Aug. 30, 1976.