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Failure to File Penalties

Failure to file or late filing 

We assess penalties under the Tax and UI laws when you:

  • Fail to file all required parts of the Quarterly Combined Withholding, Wage Reporting and Unemployment Insurance Return, (Form NYS-45/NYS-45-ATT)
  • File the return late

The amount of the penalty depends on:

  • How late the return was
  • Your past reporting history

If we do not receive all required parts of the Quarterly Combined Withholding, Wage Reporting and Unemployment Insurance Return by the due date, the return is considered delinquent.

About 50 days after the due date, we send a certified Notice of Failure to File to tell you:

  • That your report is late
  • An estimate of the penalty assessment

This notice also tells you about your right to file a protest.

When you file all required parts of the return, we notify you of:

  • The actual penalty assessment
  • How to file a protest

Failure-to-File Penalty

If we do not receive the return by the due date, the penalty is the greater of:

  • $1,000, or
  • $50 times the number of employees shown on the last quarterly return you filed (estimated if you filed no reports)

(The maximum penalty for any calendar quarter is $10,000.)

Penalty cancelled: We will remove the penalty automatically if you:

  • File all parts of the return before or within 30 days of the certified Notice of Failure to File and
  • Had no late filings in the prior four quarters

Penalty adjusted: We will recalculate this penalty based on actual figures and assess a penalty for late filing when we receive all required parts of the NYS-45 (and NYS-45-ATT, when applicable).

Make a timely protest against penalties imposed against your account.

Penalties For Late Filing

Returns received prior to or within 30 days of the certified notice that have been delinquent in any of the prior four quarters.

If we receive all parts of the return before or within 30 days of mailing the certified Notice of Failure to File, and the employer was delinquent in one or more of the last four quarters, the penalty will be the lesser one of the following:

$50 times the number of employees shown on the late return (not less than $1,000 or more than $10,000) -or-

If the return is less than one month late the penalty is:
  • the sum of 5% of the withholding tax shown on the return and 
  • 5% of the UI contribution shown on the return

If the return is more than 60 days late the penalty is:

  • 5% for each extra month the return is late (up to 25%); this amount is the lesser of $100 or 100% of the contribution or tax required PLUS
  • an extra 5% for each extra month the return is late (up to 25%, but not less than $100) 

Returns received more than 30 days after notification.

When we receive all required parts of the return more than 30 days after the mailing of the certified notice, the penalty is adjusted to the greater of the following:

$50 times the number of employees shown on the late return (not less than $1,000 or more than $10,000) -or-

If the return is less than one month late the penalty is:
  • the sum of 5% of the withholding tax shown on the return PLUS
  • 5% of the UI contributions shown on the return

If the return is more than 60 days late the penalty is:

  • 5% for each extra month the return is late (up to 25%); this amount is the lesser of $100 or 100% of the contribution or tax required and
  • an extra 5% for each extra month the return is late (up to 25%, but not less than $100)

Cancellation of Penalties

We may cancel a penalty if the employer:

  • Has since filed all required parts of the return AND
  • Can show reasonable cause for not filing a return by the due date

Penalty assessment notices explain how to file a protest.

For questions contact:

The New York State Department of Labor
Penalty/Wage Reporting Unit
State Office Building Campus
Albany NY 12240

Telephone (518) 457-6525
FAX (518) 485-2623

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