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five years, (e) a shareholder owning, more than fifty percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote
vote for the election of director's trustees, who owned more than fifty percent of the number of such shares of another person (where such other person is a corpora.. tion) at the time any tax imposed under this chapter or any related statute as defined in section eighteen hundred of 'this chapter was finally determined to be due and where such tax has not been paid in full, or at the time such other person was convicted of a crime provided for 'in this chapter within the preceding five years, or (f) the registration of such applicant has been cancelled
to subdivision four of this section within the preceding five years, the tax commission may refuse to register such applicant.
The tax commission (may) shall require (any) a distributor to file with the department of taxation and finance a bond issued by a surety company approved by the superintendent of insurance as to solvency and responsibility and authorized to transact business in this state in such amount as the tax commission may fix, to secure the payment of any sums due from such distributor (1) pursuant to this article and (11) pursuant to articles twenty-eight and twenty-nine of this chapter with respect to sales and uses of motor fuel. The tax commission [may] shall require that such a bond be filed before a distributor is registered, (or) and the amount thereof may be increased at any time when in its judgment the same is necessary as a protection to the revenues under this article and articles twenty-eight and twenty-nine of this chapter. In lieu of such bond a distributor may deposit securities approved by the tax commission in such amount as it may prescribe, which securities shall be kept in the joint custody of the comptroller and the commissioner of taxation and finance and may be sold by the tax commission if it becomes necessary so to do in order to recover any sums due from such distributor (i) pursuant to this article and (ii) pursuant to articles twenty-eight and twenty-nine of this chapter with respect to sales and uses of motor fuel, but no such sale shall be had until after such distributor shall have had opportunity, to litigate the validity of any, tax if it elects so to do. Upon any such sale the surplus, if
above the sums due (i) under this article and (ii) pursuant to articles twenty-eight and twenty-nine of this chapter with respect to sales and
of motor fuel shall be returned to such distributor. The department, when authorized by the distributor, shall furnish information regarding the distributor's registration and any other information which the distributor authorizes it to disclose.
4. The registration of any distributor may be cancelled or suspended by the tax commission upon its failure to filé a bond when required when the amount thereof is increased or to comply with any of the provi. sions of this article or any [reasonable] rule or regulation adopted pursuant to this article by the department of taxation and finance or by the tax commission. A [notice of cancellation] registration may also be cancelled or suspended if the tax commission determines that a registrant or, if the registrant is a corporation or a partnership, officer, director or partner thereof who as such' officer, director or partner is under a duty to act for such corporation or partnership:
(1) commits fraud or deceit in his operations as a distributor or has 071iftehastaneen convicted in account of competent jurisdiction, either within or without the state, of a felony, within the meaning of subdivi. sion seven
of this section, bearing on such distributor's duties and obligat ions under this chapter;
(iii) has knowingly aided and abetted a person who is not registered as a distributor in the importation, distribution, production, refining, manufacture or compounding of motor' fuel; or
(iv) has impersonated any person represented to be a distributor under this article but not in fact registered under this section.
5. A registration shall not be cancelled or suspended nor shall an application for registration be refused until the registrant has had an opportunity for a hearing, provided, however, that an application for registration may be denied without a hearing for failure to file a bond required by the tax commission in the amount fixed and a registration may be cancelled or suspended without a hearing, for failure to file a return within ten days of the date prescribed for filing a return under EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law
to be omitted.
this article or article twenty-eight of this chapter with respect sales and
of motor fuel, or for nonpayment of any taxes due pursuant to this article or article twenty-eight twenty-nine
this chapter with respect to sales and uses of motor fuel if the registrant shall have failed to file such return or pay such taxes within ten days after the date the demand therefor is sent by registered or certified mail to the address of the distributor given in his application for registration,
address substituted therefor as [in this section] provided[ , shall be sufficient notice to the distributor of such cancellation in this subdivision. A distributor shall immediately inform the department, in writing, of any change in its address and, if the distributor is a [corporate distributor] corporation or partnership, the distributor shall immediately inform the department, in writing, any change in its officers [or), directors or partners or their residence addresses as shown in its application for registration.
6. Where a hearing is available under this section, notice of proposed cancellation or suspension of registration or refusal to register shall be given to the person registered pursuant to this article or to a person applying for such registration in the manner prescribed for a notice of determination of tax and all the provisions of this article applicable to a notice of determination under section two hundred eighty-eight of this chapter shall apply to a notice issued pursuant to this subdivision, insofar as such provisions can be made applicable to the notice authorized by this subdivision, with such modifications as may be necessary in order to adapt the language of such provisions the notice authorized by this subdivision. In the case of a person applying to register, a notice of proposed refusal to register shall be issued promptly after application for registration is received by the tax commission. Upon timely application therefor, a hearing shall be scheduled, and within three months from such application for hearing (determined with regard to any post ponements of any scheduled hearing conference other delay made the request of the applicant) the tax commission shall issue a notice of refusal to register shall register the applicant. If the tax commission fails to issue a notice of refusal to register within such three-month period (or such period as extended pursuant to this subdivision), the tax commission shall register the applicant immediately upon the conclusion of such period. Such notice of proposed cancellation or of proposed refusal to issue must be given to such person within five years from the date of the act
omission referred to in subdivision four of this section, except that in the case of acts involving falsity or fraud, such not ice may be issued at any time. All of such notices shall contain a statement advising the person to whom it is issued that the cancellation or refusal to register may be challenged through a hearing process
process and that the petition for such challenge must be filed with the tax commission within ninety days after the giving of such not ice.
7. Whenever evidence is furnished by the tax commission to any justice of the supreme court, in court or at chambers, showing that any person not registered as a distributor as required by this section has imported motor fuel into this state or caused motor fuel to be imported into this state or has produced, refined, manufactured or compounded motor fuel within this state, such justice shall make a summary order prohibiting such person and his agents from selling such motor fuel or any motor fuel illegally, and also prohibiting, all other persons from selling any motor fuel illegally sold by such person until such person shall have registered, reported the sale of such motor fuel illegally sold and paid the tax thereon or until the tax commission consents to such sale.
8. (a) In determining whether a distributor, an applicant for registration or, if the registrant is a corporation or a partnership, any of ficer, director or partner thereof has been convicted of a felony, the provisions of this subdiyision shall apply; provided, however such conviction be subsequently set aside or reversed upon appeal and the accused acquitted or discharged, the registration which has been cancelled or suspended shall be restored.
(b) A conviction of a felony shall include the conviction of a felony by any court in this state or by any court of the United States or апу court of any other state of the United States; provided, however, that if a crime of which the registrant, applicant, officer, director or member of a partnership is convicted by any court of the United States or any other state is a felony in the jurisdiction in which the conviction is had but is not a felony in the state of New York, then the conviction shall not be deemed a conviction of a felony for the purpose
this article. In the event that a crime of which the registrant, applicant, officer, director or member of a partnership is convicted by any court
of the United States or by any court of any other state is not a felony in the jurisdiction in which the conviction is had but is felony in the state of New York, then the conviction shall be deemed a conviction of a felony for the purposes of this article.
(c) If a person convicted of a felony or crime deemed hereby to be a felony is subsequently pardoned by the governor of the state where such conviction had, or by the president of the United States, or shall receive a certificate of good conduct granted by the board of parole pursuant to the provisions of the executive law for the purpose of removing the disability under this section because of such conviction, the tax commission may, in its discretion, on application of such person and compliance with subdivision two of this section, and on the submission to it of satisfactory evidence of good moral character and suitability, again register such person as a distributor under this article.
§ 4. Subdivision one of section two hundred eighty-four of such law, as amended by chapter five hundred thirty-four of the laws of nineteen hundred seventy-five, is amended to read as follows:
1. There is hereby levied and imposed an excise tax of four cents per gallon upon motor fuel (sold within) imported into or caused to be imported into the state by a distributor for use, distribution, storage or sale in the state or upon motor fuel which is produced, refined, manu(actured or compounded by a distributor in the state' (which acts shall hereinafter in this article be encompassed by
the phrase "imported, manufactured or sold"), except when imported, manufactured or sold under circumstances which preclude the collection of such tax by reason of the United States constitution and of laws of the United States enacted pursuant thereto, except kero- jet fuel when sold to a distributor which is an airline, and except (as provided in subdivisions three or four of this section] when sold to purchaser which is an
organization described in paragraph one or two of subdivision (a) of section eleven hundred sixteen of this chapter or a hospital included in the organizations described in paragraph four of such subdivision. Provided, further, no motor fuel shall be included in the measure of the tax
unless it shall have previously
to rest within the meaning of federal decisional law interpreting the United States constitution. All tax for the period for which a return is required to be filed shall be due on the date limited for the filing of the return for such period,
regardless of whether a return is filed by such distributor as required by this article or whether the return which is filed correctly shows the amount of tax due.
§ 5. Subdivisions three and four of section two hundred eighty-four of such law are repealed and a new subdivision three is added to read follows:
3. Any purchaser who purchases or uses motor fuel in the state upon which the taxes imposed by this article have not been paid by or passed through to him shall be personally liable for the taxes imposed. Where any purchaser receives fuel in this state upon which the taxes imposed by this article have not been paid by a distributor for and on account of the state, such tax shall be payable by the purchaser directly to the tax department, except when purchased by the United States or any other purchaser against which this state is without power to impose tax by, reason of the United States constitution and the laws of the United States enacted pursuant thereto. It shall be the duty of such purchaser to file return with the tax department in such form and containing such information as the tax commission may require and to pay such taxes to it within twenty-four hours after the day on which such purchaser received such fuel except that, where such purchaser is distributor registered under this article, such purchaser may report and pay such taxes at the time otherwise limited by this article to report taxes fuel sold on that day. Such purchaser shall be subject to all other provisions of this article relating to distributors, except that such a person shall not be subject to the provisions of section two hundred eighty-three of this article unless such person imports causes to be imported, produces, refines, manufactures or compounds or produces or sells any, ingredients which may be manufactured compounded into motor fuel in this state.
EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law
to be omitted.
& 6. Section two hundred eighty-four-a of such law, as separately amended by chapters two hundred forty-four and ten hundred twenty-three of the laws of nineteen hundred sixty-eight, is amended to read as follows:
$ 284-a. Additional motor fuel tax. [On and after June first, nineteen hundred sixty-eight, in] In addition to the tax imposed by section two hundred eighty-four of this chapter, a like tax shall be imposed at the rate of three cents per gallon upon motor fuel imported, manufactured or sold within this state by a distributor. All the provisions of this article shall apply with respect to the additional tax imposed by this section to the same extent as if it were imposed by said section two hundred eighty-four.
§ 7. Section two hundred eighty-four-c of such law, as amended by chapter forty-five of the laws of nineteen hundred eighty-three, is amended to read as follows:
§ 284-c. Supplemental motor_fuel tax. [On and after February first, nineteen hundred seventy-two, in) In addition to the taxes imposed by sections two hundred eighty-four and two hundred eighty-four-a of this chapter, a like ţax shall be imposed at the rate of one cent per gallon upon motor fuel imported, manufactured or sold within this state by a distributor. Except for paragraph (b) of subdivision three of section two hundred eighty-nine-c, all the provisions of this article shall apply with respect to the supplemental tax imposed by this section to the same extent as if it were imposed by said section two hundred eightyfour. On and after the first day of October, nineteen hundred seventytwo, twenty-five per centum of the monies received by the department of taxation and finance pursuant to the provisions of this section shall be deposited to the credit of the emergency highway reconditioning and preservation fund established pursuant, to the provisions of section eighty-nine of the state finance law. Beginning on April first, nineteen hundred eighty-three, twenty-five per centum of the monies received by the department of taxation and finance pursuant to the provisions of this section shall be deposited to the credit of the emergency, highway construction and reconstruction fund established pursuant to the provisions of section eighty-nine-a of the state finance law.
$ 8. Such law is amended by adding a new section two hundred eightyfive-a to read as follows:
§ 285-8. Presumption of taxability. All motor fuel imported, manufactured or sold in this state is presumed to be subject to the taxes imposed by this article and it shall be presumed that all motor fuel imported, manufactured, received or possessed by any person,
which such person cannot otherwise account for, has been imported, manufactured or sold for use, distribution, storage or sale in this state, except that
such presumption shall apply with respect to motor fuel in the fuel tank of a motor vehicle used to propel such vehicle or to motor fuel in small drums or similar containers. A distributor of motor fuel who imports, manufactures or sells and stores motor fuel in the state who purchases and stores motor fuel in the state on which the tax imposed by this article shall have been paid or who shall pay such tax on fuel so purchased and stored shall be allowed an adjustment in arriving at the gallons subject to the taxes imposed by this article on account of the gallons the distributor, establishes were lost due to shrinkage, evaporation and handling provided,, however, such allowance shall not exceed two percent of the fuel stored. The burden of proof that motor fuel was not so imported, manufactured or sold shall be upon such person. Except otherwise provided in this article, motor fuel shall not be so imported, manufactured or sold in this state unless the taxes imposed by this article are collected and included in the price, Unless a purchaser shall have paid such tax to the person making the sale, have received a statement in such form as may be prescribed by the tax commission to the effect that the taxes imposed by this article have previously been
paid to or paid over by an identified distributor registered under this article or to or by an identified person required to pay tax by subdivision three of section two hundred eighty-four of this article and in each of the foregoing instances are passed through to the purchaser,
such purs chaser shall pay such taxes directly to the tax commission in accordance with such subdivision three of section two hundred eighty-four of this article. Provided, however, the foregoing requirements shall not be applicable in the instance where motor fuel is sold to the United States or for some other reason for which the tax is not payable under the constitution or laws of the United States or this state, provided the
son making the sale complies with all regulations and other requirements of the tax commission relating, thereto.
§ 9. Section two hundred eighty-six of such law, as amended by chapter eighty-five of the laws of nineteen hundred sixty, is amended to read as follows:
§ 286. Records to be kept by distributors and others. 1. Every person who imports or causes to be imported into this state, or who produces, refines, manufactures or compounds within this state, or who purchases or sells in this state motor fuel or diesel motor fuel or ingredients which may be manufactured or compounded into motor fuel or diesel motor fuel, shall keep a complete and accurate record of all purchases and sales or other dispositions thereof and a complete and accurate record of the number of gallons of motor fuel or diesel motor fuel or such ingredients imported, produced, refined, manufactured or compounded. Every person who stores motor fuel or diesel motor fuel for compensation shall keep a complete and accurate record of the identity of the person for whom such fuel is stored, the quantity and type of fuel stored, the identity of the person to who such fuel is released from storage and the quantity and type of fuel so released. Such records shall be such form and contain such other information as the tax commission shall prescribe. Said commission, by rule or regulation, also may require the delivery of statements to purchasers with consignments of motor fuel or diesel motor fuel or such ingredients, and prescribe the matters to be contained therein. Such records and statements, unless required by the tax commission to be preserved for a longer period, shall be
preserved for a period of two years and shall be offered for inspection at any time upon oral or written demand by the commissioner of taxation and finance or his duly authorized agents. The tax commission is hereby further authorized to examine the equipment of any such person , pertaining to the storage, sale or delivery of such fuels, as well as the stock of such fuels in the possession or control of such person, Το verify the amount of tax due under this article, each such person is hereby directed and required to give to the tax commission or its duly authorized representatives, the means, facilities and opportunity for such examinations as are herein provided for and required. Nothing in this section contained shall be construed to reqạire the keeping of a record of purchases or sales of motor fuel or diesel motor fuel or such ingredients at retail in small quantities or of motor fuel or diesel motor fuel imported into this state in the tank of a motor vehicle which supplies the fuel for its operation.
2. The tax commission may, by regulation, provide for the filing of monthly information returns by every person required
maintain such records, prescribed in subdivision one of this section, which shall in all material respects reflect the information required to be tained in such records. Such returns shall be in such form and contain such other information as the tax commission shall require.
3. The tax commission shall provide for the filing of monthly information returns by every distributor required to maintain such records, prescribed in subdivision
of this section, which shall in all material respects reflect the information required to be contained in such records. Such returns shall be in such form and contain such other information as the tax commission shall require.
§ 10. Section two hundred eighty-six-b of such law, as amended by chapter eight hundred forty-three of the laws of nineteen hundred eighty, is amended to read as follows:
$ 286-b. Transportation of motor fuel by water. 1. The master or other person in charge of any barge, tanker or other vessel in which motor fuel is being transported over any of the navigable waters of this state, other than motor fuel being transported for use in operating the engine
which propels such vessel, must have in his possession an invoice, bill of sale or other record evidence showing the
and address of the person from whom such motor fuel was received by him and the name and address of every person to whom he is to make delivery of the same, together with the number of gallons to be delivered to each such person, and shall at the request of a peace officer, acting puro suant to his special duties, a police officer, any representative of the department of taxation and finance or any other person authorized by law to inquire into or investigate the transportation of such motor fuel, produce such invoice, bill of sale
other record evidence for EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law
to be omitted.