If a return required by this article is not filed or if a return,
when filed, is incorrect or insufficient, the amount of tax due shall
be determined by the City Commissioner of Finance from such information
as may be obtainable, and, if necessary, the tax may be estimated
on the basis of external indices, such as number of rooms, locations,
scale of rents, comparable rents, type of accommodations and service,
number of employees and/or other factors. Notice of such determination
shall be given to the person liable for the collection and/or payment
of the tax. Such determination shall finally and irrevocably fix the
tax unless the person against whom it is assessed, within 30 days
after giving notice of such determination, shall apply to the City
Commissioner of Finance for a hearing or unless the City Commissioner
of Finance on his/her own motion shall redetermine the same. After
such hearing, the City Commissioner of Finance shall give notice of
his/her determination to the person against whom the tax is assessed.
The determination of the City Commissioner of Finance shall be reviewable
for error, illegality, unconstitutionality or any other recognizable
basis whatsoever by proceeding under Article 78 of the Civil Practice
Law and Rules if application therefor is made to the Supreme Court
within 30 days after the giving of the notice of such determination.
A proceeding under Article 78 of the Civil Practice Law and Rules
shall not be instituted unless the amount of any tax sought to be
reviewed, with penalties and interest thereon, if any, shall be first
deposited with the City Commissioner of Finance and there shall be
filed with the City Commissioner of Finance an undertaking, issued
by a surety company authorized to transact business in this state
and approved by the Superintendent of Insurance of this state as to
solvency and responsibility, in such amount as a Justice of the Supreme
Court shall approve to the effect that, if such proceedings be dismissed
or the tax confirmed, the petitioner will pay all costs and charges
which may accrue, including reasonable counsel fees, in the prosecution
of the proceeding, or, at the option of the applicant, such undertaking
filed with the City Commissioner of Finance may be in a sum sufficient
to cover the taxes, penalties and interest thereon stated in such
determination plus the costs and charges, including reasonable counsel
fees, which may accrue against it in the prosecution of the proceedings,
in which event the applicant shall not be required to deposit such
taxes, penalties and interest as a condition precedent to the application.
