Section 804. Review; assessment of additional tax

Any final determination
  of the amount of any tax  payable  hereunder  shall  be  reviewable  for
  error,  illegality or unconstitutionality or any other reason whatsoever
  by a proceeding under article seventy-eight of the  civil  practice  law
  and  rules  if  the proceeding is commenced within ninety days after the
  giving of the notice of such  final  determination,  provided,  however,
  that  any  such  proceeding shall not be instituted unless the amount of
  any tax sought to be reviewed, with such interest and penalties  thereon
  as  may  be  provided  for by local law, shall first be deposited and an
  undertaking filed, 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 petitioner will pay  all  costs  and
  charges which may accrue in the prosecution of such proceeding.
    Where any tax imposed hereunder shall have been erroneously, illegally
  or  unconstitutionally  collected and application for the refund thereof
  duly made to the  proper  officer  or  officers,  and  such  officer  or
  officers  shall  have  made  a  determination  denying such refund, such
  determination  shall  be  reviewable  by  a  proceeding  under   article
  seventy-eight  of  the civil practice law and rules if the proceeding is
  commenced within ninety days after the giving  of  the  notice  of  such
  denial,  that  a final determination of tax due was not previously made,
  and that an undertaking is filed with the proper officer or officers  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 petitioner will pay all costs and charges which may
  accrue in the prosecution of such proceeding.
    Except in the case of a wilfully  false  and  fraudulent  return  with
  intent  to  evade the tax, no assessment of additional tax shall be made
  with respect to the tax imposed under this article, after the expiration
  of more than three years from the  date  of  the  filing  of  a  return,
  provided,  however,  that  where no return has been filed as provided by
  local law, the tax may be assessed at any time.