What the Notice Means, Why the 90-Day Clock Matters, and the Fastest Paths to Challenge It
In New York, a sales tax audit can stretch on for months, but your ability to challenge the outcome can disappear in ninety days. Once the New York State Department of Taxation and Finance issues a Notice of Determination, a strict ninety-day deadline begins to run. Missing that deadline can permanently end your ability to dispute the assessment, regardless of whether it is substantively wrong.
If the ninety-day window expires, the assessment typically becomes fixed and final. At that point, the Department may proceed with enforced collection, even while underlying factual or legal disputes remain unresolved. Understanding what a Notice of Determination is and how the deadline operates is essential to preserving your rights.
What a New York Notice of Determination Really Means
During an audit, taxpayers often see draft schedules, preliminary findings, or proposed assessments. These documents matter, but they do not trigger formal appeal rights. A Notice of Determination is different because it represents the Department’s final administrative assessment for specific tax periods and amounts.
The notice typically identifies the tax type, the audit periods covered, the tax, penalties and interest assessed, and the instructions for filing an appeal protest or petition. The mailing date shown on the notice and envelope is critical, because the ninety-day deadline generally runs from the date of mailing, not the date the notice is opened. Monitoring both physical mail and electronic tax accounts is therefore essential.
If you receive a New York Notice of Determination and are unsure whether it is the final assessment or just a proposal, a quick review with Sales Tax Helper can help you confirm what the document means and when your ninety-day deadline expires.
How the Ninety Day Deadline Works
New York allows taxpayers to challenge a Notice of Determination in one of two ways. A taxpayer may request a conciliation conference with the Bureau of Conciliation and Mediation Services (BCMS) or file a petition with the Division of Tax Appeals. In most cases, one of these actions must be taken within ninety days of the notice’s mailing date.
The deadline is treated as jurisdictional. Late filings are routinely rejected, even when the delay is minimal. Because of this, calculating the deadline accurately and acting early is critical.
Choosing Between BCMS and the Division of Tax Appeals
BCMS provides an informal, conference-style forum designed to resolve disputes without a full hearing. It is often appropriate where disputes are primarily factual, documentation-based, or capable of narrowing through negotiation. Many New York sales tax cases resolve at this stage.
The Division of Tax Appeals is more formal and resembles a tax court proceeding. Cases are heard by an administrative law judge, decisions are issued in writing, and further review by the Tax Appeals Tribunal or courts may be available. Taxpayers typically choose this route for large or complex assessments or where legal interpretation is central.
For the full audit-and-appeal roadmap (including BCMS and Division of Tax Appeals options), see the New York Sales Tax Audit Ultimate Guide.
New York Sales Tax Protest Options
Option | Level of Formality | Typical Use Case | Effect on Collection |
BCMS conciliation conference | Less formal, conference | Documentation issues, narrower factual disputes | Assessment often held while case is pending |
Division of Tax Appeals petition | More formal, hearing based | Large or complex New York sales tax assessments | Timely petition usually protects appeal rights and can limit collection on disputed amounts |
You can generally choose either path during the ninety-day period, but you must choose something before the deadline passes if you want to preserve your New York sales tax appeal rights.
What To Include in Your BCMS Request or Division Petition
A proper filing must do more than state disagreement. It should clearly identify the Notice of Determination, list the periods and amounts at issue, and summarize the primary grounds for challenge, such as sampling errors, exemption disallowance, or nexus disputes. The filing should also indicate that supporting documentation exists or will be provided.
While full evidentiary submissions are not required at the initial stage, the filing must show a concrete and legitimate dispute. Organized audit files make this process significantly easier and strengthen the taxpayer’s position from the outset.
If you want help framing your arguments clearly and strategically, Sales Tax Helper can assist in drafting BCMS requests and Division petitions that preserve your rights and set up a stronger negotiation or hearing position.
What Happens If You Miss the Ninety Day Deadline
If no timely BCMS request or Division petition is filed, administrative appeal rights are generally lost. The assessment becomes final, and the Division of Tax Appeals may refuse to hear the case for lack of jurisdiction. The Department may then begin or continue enforced collection activity.
Although limited relief may exist in rare circumstances, taxpayers should not rely on exceptions. In practice, missing the ninety-day deadline almost always ends the ability to challenge the assessment administratively.
Practical Tips For Managing The Ninety-Day Window
Confirm that the document received is a Notice of Determination rather than preliminary audit correspondence. Record the mailing date and calculate the ninetieth day immediately, with reminders well in advance. Decide early whether to proceed through BCMS or the Division of Tax Appeals and begin organizing supporting records.
FAQ
What triggers the ninety-day deadline?
The deadline is triggered by the mailing of a Notice of Determination. Draft audit schedules and proposed assessments generally do not start the clock.
Can the ninety-day deadline be extended?
No. New York treats the deadline as a strict jurisdictional requirement. Late filings are typically dismissed.
Does filing a petition stop collection?
A timely filing generally preserves appeal rights and can limit aggressive collection on disputed amounts. The effect on collection depends on the notice and procedural posture.
Next Steps
If you receive a Notice of Determination, acting quickly is critical. A consultation with Sales Tax Helper can help confirm your deadline, evaluate whether BCMS or the Division of Tax Appeals is appropriate, and prepare a filing that preserves your rights before the ninety-day clock expires.