Section 170. Department of taxation and finance

1. The existing department
  of taxation and finance and its present  functions  are  continued.  The
  head of the department of taxation and finance shall be the commissioner
  of taxation and finance who shall have sole charge of the administration
  of  such  department  except  with  regard  to the administration of the
  division of tax appeals which shall  be  the  sole  charge  of  the  tax
  appeals  tribunal  authorized  by  article  forty  of  this chapter. The
  commissioner of taxation and finance shall be appointed by the  governor
  by  and  with the advice and consent of the senate and shall hold office
  as commissioner of taxation and finance until the end of the term of the
  governor by whom he was appointed  and  until  his  successor  has  been
  appointed and has qualified.
    2.  Existing  divisions  or  bureaus in the department of taxation and
  finance  or  transferred  to  the  department   shall   continue   until
  consolidated  or  abolished  pursuant to this section. There shall be in
  the department of  taxation  and  finance  a  division  of  taxation,  a
  division  of  the  treasury, a division of the lottery and a division of
  tax appeals.
    3. The  commissioner  of  taxation  and  finance  may  establish  such
  additional  divisions  and  bureaus  as  he  may  deem necessary. He may
  appoint the heads of such divisions and bureaus and fix their duties and
  he may consolidate, alter or abolish any divisions  or  bureaus,  except
  that such commissioner shall have no such authority or power with regard
  to the division of tax appeals.
    3-a.  (a)  There  shall  be  in  the  division of taxation a bureau of
  conciliation and mediation  services  which  shall  be  responsible  for
  providing  conciliation  conferences. Such conference shall be provided,
  at the option of any  taxpayer  or  any  other  person  subject  to  the
  provisions  of  this  chapter  or any other provision of law relating to
  administration of taxes, where such taxpayer or any  other  such  person
  has  received  any  written  notice of a determination of tax due, a tax
  deficiency, a denial of a refund or credit application, a  cancellation,
  revocation  or suspension of a license, permit or registration, a denial
  of an application for a license, permit or  registration  or  any  other
  notice  which  gives  rise to a right to a hearing under this chapter if
  the time to petition for such a hearing has  not  elapsed.  Such  notice
  shall  contain information advising the recipient of the right to have a
  conciliation conference.
    (b) A request for a conciliation conference shall be  applied  for  in
  the  manner  as  set  forth  by  regulation  of  the  commissioner  and,
  notwithstanding any provision of law to the contrary, shall suspend  the
  running  of  the  period  of  limitations  for  the filing of a petition
  protesting such  notice  and  requesting  a  hearing,  except  that  the
  recipient  of  a  written  notice  described  in  paragraph  (h) of this
  subdivision will  have  thirty  days  from  the  time  such  request  of
  discontinuance  is  made  to  petition the division of tax appeals for a
  hearing. The commissioner shall notify the division of tax appeals  when
  any  person  requests  a  conference  or  requests  to  discontinue such
  conference.
    (c) A conciliation conferee, all of whom, unless otherwise provided by
  law, shall be  in  the  classified  civil  service,  shall  conduct  the
  conciliation  conference in an informal manner and shall hear or receive
  testimony and evidence deemed necessary or  desirable  for  a  just  and
  equitable  result.  The  commissioner of taxation and finance shall have
  the power to delegate  authority  to  a  conferee  to  waive  or  modify
  penalty,  interest  and  additions  to  tax  to  the same extent as such
  commissioner is permitted under this chapter.

    (d) The person who requests the conference may  appear  and  represent
  himself,  including  a  member  of  a  partnership,  in any conciliation
  conference, or may designate the person's spouse, parent or child, or an
  attorney admitted to practice in the courts of record of this  state,  a
  certified  public  accountant  licensed in this state, an enrolled agent
  enrolled to practice before the internal revenue service,  or  a  public
  accountant  licensed  in  this  state  to  appear  and represent him. In
  addition the commissioner shall  promulgate  rules  and  regulations  to
  permit  a  corporation  to  be  represented by one of its officers or an
  employee. The department may also allow an  attorney,  certified  public
  accountant  or  licensed  public  accountant  authorized  to practice or
  licensed in any other jurisdiction of the United States  to  appear  and
  represent  such  person  in a conciliation conference proceeding and, on
  the written request of such person, may allow any  other  individual  to
  represent  him.  An  employee  of the department of taxation and finance
  familiar with the controversy shall also be present at such proceedings.
    (e) A conciliation order shall be rendered within  thirty  days  after
  the  proceeding  is  concluded and such order shall, in the absence of a
  showing of fraud, malfeasance or misrepresentation of a  material  fact,
  be  binding  upon  the  department  and  the  person  who  requested the
  conference, except such order shall not be binding  on  such  person  if
  such  person  petitions  for the hearing provided for under this chapter
  within ninety days after the conciliation order is  issued,  or,  for  a
  conciliation order affirming a written notice described in paragraph (h)
  of  this subdivision, within thirty days after the conciliation order is
  issued, notwithstanding any other provision of law to the contrary.
    (f) Conciliation  conference  orders  shall  not  be  required  to  be
  published  and  such  orders  shall not be considered as precedent or be
  given any force or effect in any  subsequent  administrative  proceeding
  with  respect to the person who requested the conference or in any other
  proceeding.
    (g) The commissioner of taxation and finance  shall  collect,  compile
  and  prepare  for  publication statistics and other data with respect to
  the operations of the bureau of conciliation and mediation services, and
  to submit annually to the  governor,  the  temporary  president  of  the
  senate  and  the  speaker  of  the assembly a report on such operations,
  including but not limited  to,  the  number  of  conferences  held,  the
  dispositions made and the number of conferences pending.
    (h)  Notwithstanding  any provision of law to the contrary, any person
  who seeks review by the bureau of conciliation and mediation services of
  a  written  notice  that  advises  that  person  of  (i)  the   proposed
  cancellation,   revocation,   or   suspension   of  a  license,  permit,
  registration, or other credential issued under  the  authority  of  this
  chapter,  (ii)  the  denial  of  an  application  for a license, permit,
  registration, or other credential issued under  the  authority  of  this
  chapter  excluding  an  application  to renew a certificate of authority
  filed pursuant to paragraph five  of  subdivision  (a)  of  section  one
  thousand  one hundred thirty-four of this chapter and any other law, or,
  (iii) the imposition of a fraud penalty under this chapter, must request
  a conciliation conference within thirty days of receipt of that notice.
    4. The commissioner of taxation and finance  may  appoint  and  remove
  such  officers,  assistants and other employees as he may deem necessary
  for the exercise of the powers and duties of the department, all of whom
  shall be in the classified civil service unless  otherwise  provided  by
  law;  and  he  may  prescribe  their  duties, and fix their compensation
  within the amounts appropriated therefor. The commissioner  of  taxation
  and  finance  may transfer officers or employees from their positions to
  other positions in  the  department,  or  abolish  or  consolidate  such

  positions.  He  shall  have  all  powers necessary to perform the duties
  conferred upon him regarding the state  lottery  authorized  by  article
  thirty-four  of  this chapter. However, the commissioner of taxation and
  finance  shall  have  no power to appoint or remove any personnel of the
  division of tax appeals nor shall such commissioner have  any  power  or
  authority  with  regard  to  the  operation  and  administration of such
  division including any power or authority over such  division's  budget.
  The  commissioner  shall  furnish to the director of the division of the
  budget the itemized estimates of the financial needs of the division  of
  tax  appeals  prepared  by  the  tax  appeals  tribunal.  Such  itemized
  estimates  may  not  be  revised  or  altered  in  any  manner  by   the
  commissioner.
    5.  The  head of the division of taxation shall be the commissioner of
  taxation and finance who shall be appointed by the governor as  provided
  in  subdivision  one  of  this  section. No person shall be appointed as
  commissioner  of  taxation  and  finance  unless  at  the  time  of  his
  appointment he is a resident of the state and known to have knowledge on
  the  subject  of  taxation and skill in matters pertaining thereto. Such
  commissioner shall devote his entire time to the duties of  his  office.
  The  commissioner  of  taxation  and  finance  may  after  notice and an
  opportunity to be heard, be removed by the governor for neglect of  duty
  or  misfeasance in office, and the commissioner may be removed for other
  cause  by  the  senate  on  the  recommendation  of  the  governor.  The
  commissioner  of  taxation  and  finance  shall receive an annual salary
  within the amounts appropriated therefor.
    6. The head of the division  of  the  treasury  shall  be  an  officer
  entitled the deputy commissioner and treasurer to be appointed by and to
  hold office during the pleasure of the commissioner. The state treasury,
  the custody of monies therein and the custody of all other funds, as now
  or  hereafter  prescribed  by  law shall continue to be in the immediate
  charge of the head of such division,  subject  to  the  supervision  and
  control  of  the commissioner; and the head of such division, subject to
  such supervision and  control,  shall  make  the  payments  out  of  the
  treasury  and  from such funds authorized or directed by law to be made.
  Notwithstanding any other provision of  law,  expenditures  relating  to
  financial  services  performed by the division of the treasury as fiscal
  agent, trustee or  sole  custodian  of  funds,  moneys  or  accounts  of
  agencies,  authorities  or  other  entities,  shall  be  charged to such
  agencies, authorities or other entities. Payment of such  charges  shall
  be  in  a  manner  prescribed  by  the  commissioner and may include the
  withholding of interest due on any investments made for  such  agencies,
  authorities  or  other  entities. All income derived from fees levied by
  the commissioner for such financial services shall be deposited  by  the
  commissioner  in  the  miscellaneous  special  revenue  fund, investment
  services account. The commissioner may  assign  to  such  division  such
  other  powers and duties of the department of taxation and finance as he
  may deem proper.
    7. The head of the division of the lottery shall be an officer  to  be
  appointed by, and hold office during the pleasure of the commissioner of
  taxation and finance.
    8.  The  reasonable  and necessary traveling and other expenses of the
  commissioner, deputy commissioners and other officers and  employees  of
  the  department,  while  actually  engaged  in  the performance of their
  duties, outside of the city of Albany, or if such officer or employee be
  in charge of or actually employed at a branch office of the  department,
  the reasonable and necessary traveling and other expenses outside of the
  place  in  which  such  branch  office  is  located,  and  the necessary
  traveling expenses incurred in the performance of their  duties  in  the

  place in which their duties are performed of such officers and employees
  as  are specifically authorized by order of the commissioner of taxation
  and finance, shall be paid  upon  the  order  of  the  comptroller  upon
  vouchers approved by the commissioner of taxation and finance.