185.3 Failure to pay estimated tax.

(a) Addition to tax. [Tax Law, § 685(c)(1)-(4)]

(1) General

(i) Except as otherwise provided in section 685 of the Tax Law, in the case of any underpayment of estimated tax by an individual, there shall be imposed an addition to the tax for the taxable year.

(ii) Such addition to the tax is determined by applying to the amount of the underpayment for the period of underpayment:

(a) the applicable rate established under section 697(j) of article 22 of the Tax Law (see Part 2393 of this Title); or

(b) if no rate is set, the rate specified in section 685(c)(1) of the Tax Law.

(2) Amount and period of underpayment.

(i) The amount of the underpayment is the excess of ( a ) the required installment (see paragraph [4] of this subdivision) over ( b ) the amount, if any, of the installment paid on or before the due date for the installment (see paragraph [3] of this subdivision).

(ii) The period of the underpayment will run from the due date of the required installment to whichever of the following dates is the earlier:

(a) the 15th day of the fourth month following the close of the taxable year; or

(b) with respect to any portion of the underpayment, the date on which such portion is paid. For purposes of this clause, a payment of estimated tax will be credited against unpaid required installments in the order in which such installments are required to be paid.

(3) Number and due dates of required installments.

(i) General. For purposes of this subdivision, there will be four required installments for each taxable year. Generally, an individual must make such individual's first installment by April 15th. Such individual may either pay all of the estimated tax at that time or pay in four equal installments that are due on April 15th; June 15th; September 15th; and January 15th of the following taxable year.

(ii) In some instances, such as a change in income, deductions or exemptions, an individual may be required, in order to avoid the addition to tax referred to in this subdivision, to make such individual's first installment after April 15th. In such case, the installment due dates are as follows:

(4) Required installment.

(i) General. Except as provided in paragraph (5) of this subdivision, the amount of any required installment will be 25 percent of the required annual payment.

(ii) The required annual payment for purposes of subparagraph (i) of this paragraph is the lesser of:

(a) 90 percent of the tax shown on the return for the taxable year (or, if no return is filed, 90 percent of the tax for such year); or

(b) 100 percent of the tax shown on the return of the individual for the preceding taxable year (provided such individual had filed a return for such year and such year was a taxable year of 12 months).

(5) Lower required installment.

(i) General. In the case of any required installment, if the individual establishes that such individual's annualized income installment (see subparagraph (ii) of this paragraph) is less than the required installment determined under paragraph (4) of this subdivision (this could occur if an individual did not receive such individual's taxable income evenly throughout the year):

(a) the amount of such required installment will be the annualized income installment; and

(b) any reduction in a required installment which results from the application of this paragraph will be recaptured by increasing the amount of the next required installment determined under paragraph (4) of this subdivision, by the amount of such reduction and by increasing subsequent required installments to the extent that such reduction has not previously been recaptured under this clause.

(ii) The annualized income installment, in the case of any required installment, is the excess, if any, of:

(a) an amount equal to the applicable percentage of the tax for the taxable year computed by placing on an annualized basis the taxable income and minimum taxable income for months in the taxable year ending before the due date for the installment, over

(b) the aggregate amount of any prior required installments for the taxable year. The applicable percentage of tax, which will be computed without regard to any increase in the rates applicable to the taxable year unless such increase was enacted at least 30 days prior to the due date of the installment, will be as follows: The provisions of this subparagraph, with respect to determining an individual's annualized income installment for each installment period, can be illustrated as follows: Step 1: Annualized the taxable income and minimum taxable income for the months in the taxable year ending before the due date of the installment period and compute the tax due on this amount. Step 2: Multiply the tax computed in Step 1 by: 22½ percent if the payment due date is April 15th; 45 percent if the payment due date is June 15th; 67½ percent if the payment due date is September 15th; or 90 percent if the payment due date is January 15th of the following taxable year. Step 3: Figure the total of the required installments or annualized income installments for the preceding payment periods and subtract this amount from the amount in Step 2. Step 4: The result of Step 3 is the annualized income installment for the applicable installment period. If the annualized income installment for the installment period is less than the required installment, the individual need only pay such annualized income installment.

(b) Definitions. [Tax Law, § 685(c)(5)(A)] For purposes of this section and section 185.4 of this Part, the term tax means:

(1) the tax imposed under article 22 of the Tax Law; minus

(2)

(i) the credits allowed against these taxes, other than the credit under section 673 of the Tax Law relating to tax withheld on wages (see Part 173 of this Title).

(ii) The credit for the taxable year under section 673 of the Tax Law (see Part 173 of this Title) is deemed to be a payment of estimated tax. An equal part of such amount is deemed paid on each installment due date for such taxable year. However, if a taxpayer establishes the dates on which all amounts were actually withheld, the amounts to withheld are deemed to be payments of estimated tax on the dates on which such amounts were actually withheld.

(c) Rule for returns filed on or before January 31st. [Tax Law, § 685(c)(5)(B)] If, on or before January 31st of the following taxable year:

(1) a taxpayer files a return for the taxable year and pays in full the amount computed on the return as payable; then

(2) no addition to tax will be imposed under section 685(c) of the Tax Law (see subdivision [a] of this section) with respect to any underpayment of the fourth required installment for the taxable year.

(d) Rules for farmers and fishermen. [Tax Law, § 685(c)(5)(C)]

(1)

(i) General. If an individual is a farmer or fisherman (see subparagraph [ii] of this paragraph) for any taxable year:

(a) there will be only one required installment for the taxable year;

(b) the due date for such installment will be January 15th of the following taxable year;

(c) the amount of such installment will be the required annual payment determined as follows:

(1) 66 2 / 3 percent of the tax shown on the return for the taxable year (or, if no return is filed, 66 2 / 3 percent of the tax for such year); or

(2) 100 percent of the tax shown on the return of the individual for the preceding taxable year (provided such individual had filed a return for such year and such year was a taxable year of 12 months);

(d) the provisions of subdivision (c) of this section (Rule for returns filed on or before January 31st) will be applied by:

(1) substituting March 1st for January 31st; and

(2) treating the required installment described in clause ( a ) of this subparagraph as the fourth required installment.

(ii) An individual is a farmer or fisherman, for purposes of this subdivision, for any taxable year, if such individual's New York adjusted gross income from farming (see paragraph [2] of this subdivision) or fishing (see paragraph [3] of this subdivision) is:

(a) at least two thirds of such individual's total New York adjusted gross income from all sources for the taxable year; or

(b) at least two thirds of such individual's total New York adjusted gross income from all sources shown on such individual's return for the preceding taxable year.

(2) Farming, New York adjusted gross income from farming is the income resulting from oyster farming, the cultivation of the soil, the raising or harvesting of any agriculture or horticultural commodities and the raising of livestock, bees or poultry. In other words, the requisite percentage of New York adjusted gross income must be derived from the operations of a stock, dairy, poultry, fruit or truck farm, or from a plantation, ranch, nursery, orchard or oyster bed. If an individual receives for the use of his land income in the form of a share of the crops produced thereon, such income is from farming.

(3) Fishing. New York adjusted gross income from fishing is the income resulting from the catching, harvesting, cultivating, or farming of any kind of fish, shellfish (for example, clams and mussels), crustacea (for example, lobsters, crabs and shrimp), sponges, seaweeds or other aquatic forms of animal and vegetable life. Income from fishing includes the income received by an officer or member of the crew of a vessel while the vessel is engaged in any such activity, whether or not the officer or member of the crew is himself so engaged, and, in the case of an individual who is engaged in any such activity in the employ of any person, it includes the income received by such individual from such employment. In addition, income received for services performed as an ordinary incident to any such activity is income from fishing. Similarly, for example, income from fishing includes income received from the shore services of an officer or member of the crew of a vessel engaged in any such activity, if such services are an ordinary incident to any such activity. Services performed as an ordinary incident to such activities include, for example, services performed in such cleaning, icing and packing of fish as are necessary for the immediate preservation of the catch.

(e) Fiscal years. [Tax Law, § 685(c)(5)(D)] The provisions of this section apply to a taxable year other than a calendar year by the substitution of the corresponding fiscal year months for the calendar months referred to in this section. Therefore in the case of an individual on a fiscal year basis, the dates prescribed for payment of installments of estimated tax will be the 15th day of the fourth month, the 15th day of the sixth month, the 15th day of the ninth month of the taxable year and the 15th day of the first month of the succeeding taxable year. For example, if an individual having a fiscal year ending on June 30th, first met the requirements (in order to avoid the addition to tax referred to in subdivision (a) of this section) to pay estimated tax on January 15th, the estimated tax should have been paid in two equal installments, one on March 15th and the other on or before July 15th; unless such individual elected to pay the full amount due on the due date of the first installment, March 15th.

(f) Short taxable year. [Tax Law, § 685(c)(5)(E)]

(1)

(i) General. Installments of estimated tax may not be made for a period of more than 12 months. For purposes of this subdivision, a taxable year of 52 or 53 weeks is deemed to be a period of 12 months. If a taxpayer must make installments of estimated tax in order to avoid the addition to tax referred to in subdivision (a) of this section and a short taxable year is involved (see sections 105.1 through 105.3 of this Title), separate installments of estimated tax for such fractional part of the year will be due, except as otherwise provided in section 185.4 of this Part.

(ii) For purposes of subparagraph (i) of this paragraph, the estimated tax is to be paid in equal installments.

(a) If the requirement to pay estimated tax in order to avoid the addition to tax referred to in subdivision (a) of this section is met on or before the first day of the fourth month of the short taxable year, the installment due dates are: the 15th day of the fourth month of such taxable year, the 15th day of the sixth month of such taxable year, the 15th day of the ninth month of such taxable year (unless the short taxable year closed prior to such sixth or ninth month, in which case the respective installment will be eliminated) and the 15th day of the first month of the succeeding taxable year.

(b) If the requirement to pay estimated tax in order to avoid the addition to tax referred to in subdivision (a) of this section is met after the first day of the fourth month but before the second day of the sixth month of the short taxable year, the installment due dates are: the 15th day of the sixth month of such taxable year, the 15th day of the ninth month of such taxable year (unless the short taxable year closed prior to such ninth month, in which case the installment will be eliminated) and the 15th day of the first month of the succeeding taxable year.

(c) If the requirement to pay estimated tax in order to avoid the addition to tax referred to in subdivision (a) of this section is met after the first day of the sixth month but before the second day of the ninth month of the short taxable year, the installment due dates are: the 15th day of the ninth month of such taxable year and the 15th day of the first month of the succeeding taxable year.

(d) If, however, the period for which installments of estimated tax are due is:

(1) at least four months but less than six months;

(2) at least six months but less than nine months and the requirement to pay estimated tax in order to avoid the addition to tax referred to in subdivision (a) of this section is not met until after the first day of the fourth month; or

(3) one of nine months or more and such requirement is not met until after the first day of the sixth month, the installment of estimated tax may be paid in one installment on or before the 15th day of the succeeding taxable year. Assume an individual's short taxable year is the period of 10 months from January 1, 1990 to October 31, 1990 and such individual met the requirement to pay estimated tax in order to avoid the addition to tax referred to in subdivision (a) of this section on or before April 1, 1990. Such estimated tax is payable in four equal installments: due on April 15th, June 15th, September 15th and November 15th. Assume the same facts as in example 1, except that the requirement to pay estimated tax in order to avoid the addition to tax referred to in subdivision (a) of this section was met on April 30, 1990. Such estimated tax is payable in three equal installments: due on June 15th, September 15th and November 15th.

(2) In the case of a short taxable year of a farmer or fisherman who is required to pay estimated tax in order to avoid the addition to tax referred to in subdivision (a) of this section, the installment is due on or before the 15th day of the month immediately following the close of the short taxable year.

(g) Joint estimated tax of husband and wife. [Tax Law, § 685(c)(5)(F)]

(1) General. A husband and wife may make the required annual payment determined under subparagraph (ii) of paragraph (4) of subdivision (a) of this section as if they were one taxpayer. If joint installments of estimated tax are made by such husband and wife, the liability determined under paragraph (1) of subdivision (a) of this section is joint and several. While joint installments may be made by a husband and wife, even though they are not living together, no such installments may be made if such husband and wife are separated under a decree of divorce or separate maintenance, or if they have different taxable years. If joint installments are made, the tax, as defined in subdivision (b) of this section, must be estimated as if a joint New York State personal income tax return will be filed for the taxable year.

(2) Application to separate New York State personal income tax returns. The fact that joint installments of estimated tax are made by a husband and wife will not preclude them from filing separate New York State personal income tax returns. Where joint installments of estimated tax are made but joint New York State personal income tax returns are not filed for the same taxable year, the estimated tax installments for such year may be treated as installments on account of the tax (as defined in subdivision (b) of this section) liability of either the husband or wife for the taxable year or may be divided between them in such manner as they may agree. In the event the husband and wife fail to agree to a division, the portion of such installments allocated to a spouse will be that portion of the aggregate of all such installments of estimated tax made, as the amount of tax (as defined in subdivision (b) of this section) shown on the separate New York State personal income tax return of the taxpayer bears to the sum of the taxes (as defined in subdivision (b) of this section) shown on the separate New York State personal income tax returns of the taxpayer and such taxpayer's spouse.

(3) Death of a spouse.

(i) If joint installments of estimated tax are made by a husband and wife and thereafter one spouse dies, no further installments of estimated tax are required from the estate of the decedent. (An estate is not required, in order to avoid the addition to tax referred to in subdivision (a) of this section, to make estimated tax payments for the first two taxable years after the date of the death of the decedent. See subdivision (h) of this section.) The surviving spouse, however, may either continue to make joint installments of estimated tax or such spouse may make separate installments of estimated tax. If a surviving spouse elects to make separate installments of estimated tax and in the event a joint New York State personal income tax return is not filed, the joint installments previously made, may be divided between the decedent and the surviving spouse in such proportion as the surviving spouse and the legal representative of the decedent may agree.

(ii) In the absence of such agreement, if separate New York State personal income tax returns are filed by or on behalf of both the decedent and surviving spouse, the joint installments of estimated tax made up to the date of death will be allocated to each New York State personal income tax return in the proportion that the amount of the tax (as defined in subdivision (b) of this section) shown on the separate New York State personal income tax return bears to the tax (as defined in subdivision (b) of this section) shown the on such separate New York State personal income tax returns of the surviving spouse and of the decedent. If such separate New York State personal income tax returns are filed by or on behalf of each spouse and both New York State personal income tax returns disclose no tax (as defined in subdivision (b) of this section) liability or if a separate New York State personal income tax return is not filed by or on behalf of either spouse, the aggregate amount of such installments will be equally divided.

(h) Estates and trusts.

(1) General. Certain estates and all trusts are required, in order to avoid the addition to tax referred to in subdivision (a) of this section, to make estimated tax payments in the same manner as individuals.

(2) Estates. This section shall apply to an estate only with respect to any taxable year ending two or more years after the date of the decedent's death.

(3) Trusts.

(i) The trustee may elect to treat any amount of estimated tax payments made by the trust for any taxable year of the trust as a payment made by a beneficiary or beneficiaries where the following conditions are met:

(a) the payments of estimated tax made by the trust for the taxable year exceed the tax shown as due on such trust's return for the same taxable year; and

(b) such election is made on the New York State fiduciary income tax return of such trust that is filed within 65 days after the end of the taxable year for which the election is being made.

(ii) Where the election in subparagraph (i) of this paragraph is made, the beneficiary who is treated as making the estimated tax payment is deemed to receive a distribution on the last day of the trust's taxable year, and is deemed to make a payment of estimated tax on the January 15th following the end of such beneficiary's taxable year in which such payment was made.

(i) Amended installments. In making an installment of estimated tax, the taxpayer is required to take into account the then existing facts and circumstances, as well as those reasonably to be anticipated, relating to the computation of tax (as defined in subdivision [b] of this section) due for the taxable year. Amended installments of estimated tax may be made in any case in which such taxpayer estimates such taxpayer's tax (as defined in subdivision [b] of this section) due for the taxable year will differ from the tax (as defined in subdivision [b] of this section) due for the taxable year reflected in such taxpayer's previous installment(s) of estimated tax. However, an amended installment of estimated tax may be made only as of an installment date and no further amendment may be made until a succeeding installment date. An amended joint instalment of estimated tax may be made by a husband and wife even though separate installments have previously been made. No refund will be issued because of an amended installment of estimated tax as consideration will be given to a refund only in connection with a completed New York State personal income tax return filed by a taxpayer for the taxable year covered by such taxpayer's installments of estimated tax.

(j) Partnerships. Partnerships are not required to make installments of estimated tax. However, partners are required, in order to avoid the addition to tax referred to in subdivision (a) of this section, to make installments of estimated tax in their individual capacity, taking into consideration their estimated distributive shares of income or gains from such partnerships. See also subdivision (k) of this section with regard to combined installments of estimated tax in the case of electing nonresident partners.

(k) Group required installments.

(1) Partnerships.

(i) Any partnership, including a limited liability partnership or a limited liability company that is treated as a partnership for Federal tax purposes, hereinafter referred to as a partnership electing to make group required installments (see paragraph [a][4] of of this section) on behalf of 35 or more electing qualified nonresident partners (for the definition of a “qualified nonresident partner” see section 151.17[c] of this Title) or a limited liability company members hereinafter referred to in this section as partners, must first obtain permission from the Department of Taxation and Finance to file a group New York State nonresident personal income tax return for such nonresident partners in accordance with the requirements and conditions described in section 151.17 of this Title.

(ii)

(a) A partnership must make such group required installments on forms and in the manner prescribed by the Department of Taxation and Finance. The group required installments must contain the name and address of the partnership and the same special identifying number assigned to the partnership by the department for the purpose of filing a group New York State nonresident personal income tax return.

(b) A partnership must also attach a detailed schedule to the first group installment showing:

(1) the name of the partnership;

(2) the special identifying number;

(3) the taxable year for which the group installment is being made; and

(4) the names (in columnar form and in alphabetical order by last name or other order acceptable to the Department of Taxation and Finance), address, social security numbers and amounts of estimated tax of the participating partners.

(2) Nonresident professional athletes.

(i) Any professional athletic team electing to make group installments (see paragraph [a][4] of this section) on behalf of its electing qualified nonresident members (for the definition of a “qualified member of a professional athletic team” see section 151.18[b][3] of this Title) must first obtain permission from the Department of Taxation and Finance to file a group New York State nonresident personal income tax return for such nonresident members in accordance with the requirements and conditions described in section 151.18 of this Title.

(ii)

(a) A professional athletic team must make such group required installments on forms and in the manner prescribed by the Department of Taxation and Finance. The group required installments must contain the name and address of the professional team and the same special identifying number assigned to such team by the department for the purpose of filing a group New York State nonresident personal income tax return.

(b) The first group installment must include a detailed schedule showing:

(1) the name and address of the professional team;

(2) the special identifying number;

(3) the taxable year for which the group installment is being made; and

(4) the names (in columnar form and in alphabetical order by last name or other order acceptable to the Department of Taxation and Finance), addresses, social security numbers and amounts of estimated tax of the participating members.

(3) The rules pertaining to group required installments for partnerships, as provided by paragraph (1) of this subdivision, shall be applicable, in their entirety, to New York S corporations and any other authorized groups or organizations electing to make group required installments. The provisions of such paragraph shall apply in the same manner and effect as if such provisions had been incorporated in full in this paragraph, except where inconsistent or irrelevant, and as if the language therein had expressly referred to New York S corporations and shareholders thereof or such other authorized groups or organizations and their members, rather than partnerships and partners.

(l) Place for paying required installments. The required installments, for purposes of this section, are to be remitted to the address furnished in the forms and instructions for payment of estimated tax issued by the New York State Department of Taxation and Finance.

(n) Cross-references.

(1) For signature of taxpayer or agent, see Part 153 of this Title.

(2) For extension of time for payment of estimated tax, see Part 157 of this Title.

(3) For election to credit an overpayment of New York State income tax to estimated income tax of a succeeding year, see Part 161 of this Title.

(4) For exceptions to additions to tax for failure to pay estimated tax, see section 185.4 of this Part.