The investigation began a month ago and seeks to determine whether the foundation and President Donald Trump broke New York law by transferring assets or misrepresenting tax liability and tax assignment, Cuomo administration officials told the New York Daily News.
Once the tax department probe is complete, the findings could be referred to the appropriate law enforcement agency to present to a grand jury for criminal action.
Cuomo said the investigation is moving forward in the form of a review by the state tax department as well as a civil case by the attorney general's office.
"For the Trump Foundation, the law is the law," he said Thursday. "It doesn't matter who you are, the law is the law. So Tax and Finance is doing an investigation. If they believe it should be referred, they will refer."
New York Attorney General Barbara Underwood filed a lawsuit against the Donald Trump Foundation in June, citing a "pattern of illegal conduct" by the organization for more than a decade -- including unlawful political coordination with Trump's presidential campaign, repeated and willful self-dealing transactions to benefit personal and business interests, and violations of basic legal obligations for non-profit foundations.
Late Wednesday, Cuomo's counsel, Alphonso David, said he would make a referral for the attorney general's office to criminally investigate the foundation.
"At Governor Cuomo's direction, the state stands ready to provide the attorney general with the appropriate criminal referral on this matter if and when she asks for it," he said.
Underwood's office said it isn't seeking a referral as criminal action may lead to a stay in its civil case, which seeks restitution of $2.8 million plus penalties, the dissolution of the foundation, and bans on Trump and his children from serving on other charitable boards of directors for at least a year.
"As our lawsuit against the Trump Foundation illustrates, we intend to hold the foundation and its directors accountable for all violations of state law," Underwood senior policy adviser Amy Spitalnick said. "We continue to evaluate the evidence to determine what additional actions may be warranted, and will seek a criminal referral from the appropriate state agency as necessary."