N.Y. Comp. Codes R. & Regs. tit. 20 § 2375.6

Current through Register Vol. 46, No. 50, December 11, 2024

Section 2375.6 - Technical memoranda (TSB-Ms)

(a) General.

(1) Technical memoranda are informational statements of the Division of Taxation's policies. Where practicable, such memoranda are written in nontechnical language. They are intended:

(i) to advise and inform taxpayers, tax practitioners, personnel of the division and members of the general public of the division's existing interpretations of provisions of the Tax Law, related statutes and regulations adopted thereunder; and

(ii) to alert such taxpayers and other persons to changes in such interpretations, laws or regulations or to significant Tax Appeals Tribunal or judicial decisions.

Technical memoranda generally address distinct statutory or regulatory provisions or distinct issues. For example, a technical memorandum might provide detailed guidance for a specific circumstance that, based on experience, requires a more detailed articulation of a general principle set forth in the law or regulations. Technical memoranda are primarily designed to keep taxpayers and other interested persons informed and to ensure consistent understandings throughout the division.

(2) Technical memoranda are subject to the provisions of subdivision 23 of section 171 of the Tax Law. Pursuant to such subdivision, technical memoranda will in no event be issued by the division in violation of the provisions of the State Administrative Procedure Act where duly promulgated regulations would be required.

(b) Dissemination. Technical memoranda are initiated by the division or the commissioner, published by the division and widely disseminated. These memoranda are provided to all taxpayers and tax practitioners who have requested to be included on the technical memoranda notification list. In addition, the division provides technical memoranda upon individual request and to targeted groups who may be interested in such memoranda. Technical memoranda are also distributed, or otherwise made available, to all personnel of the division and are available on the department's website.

(c) Force and effect. Technical memoranda are advisory in nature and fall within the exclusions from the rule making procedure imposed by the State Administrative Procedure Act. That is, these statements in themselves have no legal effect but are merely explanatory (see also, section 2375.2[b][2] of this Part). Accordingly, technical memoranda do not have legal force or effect, do not set precedent and are not binding. However, it is well established that there is a need for administrative agencies such as the division to publicize information concerning the laws and regulations that they administer and enforce. To the extent that technical memoranda are reasonable and consistent with the governing laws and regulations, these vehicles for informing taxpayers and others are and should be employed by such persons to assist them in understanding the law and regulations and acting accordingly. Technical memoranda are current as of the date issued. Subsequent judicial decisions, Tax Appeals Tribunal decisions, or changes in the law, regulations, or division policies could affect the validity of the information presented in a technical memoranda. Technical memoranda are not generally modified, but are retained to indicate the division's policies at the time of issuance.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 2375.6