Imágenes de páginas
PDF
EPUB

as

any of

inspection. Every barge, tanker or other vessel so used for the transportation of motor fuel must be plainly and visibly marked on both sides thereof and above the water line with the word "Gasoline," or other name of the motor fuel being transported, in letters at least eight inches high and of corresponding appropriate width. The master or person in charge of such barge, tanker or other vessel, well as the owners thereof, shall be guilty of a violation of this section if such barge, tanker or other vessel is not so marked. [Any person violating the provisions of this section shall be guilty of a misdemeanor. ]

2. The tax commission may, by regulation, provide for the filing of monthly information returns by every person required

to maintain records, described in subdivision one 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-a. Section two hundred eighty-seven of such law, as amended by chapter ninety-four of the laws of nineteen hundred seventy-six, is amended to read as follows:

§ 287. Payment of tax; returns. 1. Every distributor shall, on or before the [twenty-seventh) twentieth day of each month [except 'March, and on or before the twentieth day of March], file with the department of taxation and finance a return, on forms to be prescribed by the tax commission and furnished by such department, stating the number of gallons of motor fuel imported, manufactured or sold by such distributor in the state during the preceding calendar month, except that the tax commission may, if it deems it necessary in order to insure the payment of the taxes imposed by this article, require returns to be made at such țimes and covering such periods as it may deem necessary, and, by regulation, may permit the filing of returns by distributors of Diesel motor fuel on a quarterly, semi-annual or annual basis, or may waive the fil. ing of returns by a distributor of Diesel motor fuel for such time and upon such terms as it may deem proper if satisfied that no tax imposed by this article with respect to Diesel motor fuel is or will be payable by him during the time for which returns are waived. Such returns shall contain such further information as the tax commission shall require. The fact that a distributor's name is signed to a filed return shall be prima facie , evidence for all purposes that the return was actually signed by such distributor. Each such distributor shall pay to the department with the filing of such return, the taxes imposed by this article on each gallon of motor fuel importéd, manufactured or sold by such distributor in the state, and so reported, during the period cova ered by such return, except that, where distributor has purchased motor fuel (prior to the expiration of the period covered by, the return, ] upon which the taxes imposed by this article have been paid or [are required to be paid by another distributor) paid over and in each instance the tax is included in the price, a credit shall be allowed for the amount of such taxes upon the subsequent sale of such fuel to the extent that such taxes are so paid and included in the price.

2. A distributor entitled to a refund under the provisions of section two hundred eighty-nine-c of this chapter, in lieu of such refund, may take credit therefor on a return filed pursuant to this section, unless the tax commission shall withdraw such privilege.

§ 11. Section two hundred eighty-eight of such law, as amended by chapter five hundred seven of the

laws of nineteen hundred seventyseven is amended to read as follows: $288.

288. Determination of tax. [If] 1.(a) Except as otherwise provided in this section, if a distributor files à return under this article, but such return is incorrect or insufficient, the state tax commission shall determine the amount of tax due at any time within three years after the return was filed (whether or not such return was filed on or after the due date), and give written notice of such determination to the distributors, except that).

(b) The tax commission shall determine the liability for the penalty imposed by, subdivision two of section two hundred eighty-nine-b of any officer, director, shareholder or employee of a corporation or of a dissolved corporation, member or employee of a partnership or employee of an individual proprietorship. The tax commission shall also determine the amount of such penalty. All of the provisions of this section shall apply to any determination made pursuant to this paragraph and for such purpose the term distributor, as used in subdivisions four, five and six of this section, shall also mean and include such officer, director, shareholder, employee or member as the case may be.

a

one

as

a

ar

[ocr errors]

(c) The tax commission shall determine the liability for the penalty, imposed by paragraph (e) of subdivision

of section two hundred eighty-nine-b of any person as an owner of a filling station. The tax commission shall also determine the amount of such penalty. All of the provisions of this section shall apply to any determination made pursuant to this paragraph and for such purpose the term distributor, used in subdivisions four, five and six of this section, shall also mean and include such person.

(d) The provisions of paragraphs (b) and (c) of this subdivision shall not be construed to linit in any manner the powers of the attorney seneral under subdivision one of section two hundred eighty-nine of this chapter or the powers of the tax commission to issue warrant under subdivision two of such section against any person whose liability has become finally and irrevocably fixed.

2. The state tax commission may determine the amount of tax due at any time if such distributor (i) has not registered as required by this ticle, , , [or), (ii) fails to file a return [or], (iii) 'files a [wilfully) willfully false or fraudulent return with intent to evade the tax, [such determination may be made at any time) or (iv) fails to comply with section two hundred eighty-three of this article in not informing the department, in writing, of any change in its address and, if a corporation or partnership, in not informing the department, in writing, of any change in its officers, directors or partners or their residence addresses as shown in its application for registration.

3. If distributor shall inform the department, in writing, of any change in its address and, if a corporation or partnership shall inform the department, in writing, of any change in its officers, directors or partners or their residence addresses as shown in its application for registration, the determination of the amount of tax due may be made at any time within three years after such information is received.

4. Notwithstanding any of the foregoing provisions of this section, where, before the expiration of the time prescribed in this section for the determination

of tax, both the tax commission and the [taxpayer] distributor have consented in writing to its determination after such time, the tax may be determined at any time prior to the expiration of the period agreed upon. The period so agreed upon may

be

extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.

5. Any determination made pursuant to this section shall finally and irrevocably fix the tax unless the distributor against whom it is

assessed shall, within

within ninety days after the giving of notice of such determination, apply to the tax commission for a hearing, or unless

the tax commission of its own motion, shall redetermine the same. After such hearing, the tax commission shall give notice of its decision to the distributor liable for the tax. The decision of the tax commission may be reviewed in the manner provided by article seventy-eight of the civil practice law and rules if the proceeding is commenced by the distributor within four months after the giving of notice thereof, but

the proceeding may not be commenced unless the amount of tax stated or referred to in the decision, with penalties and interest thereon, if any,

and the amount of any other penalty stated or referred to in the decision shall have been first deposited with the state tax commission, and an undertaking filed with it, in such amount and with such sureties as a justice of the supreme court shall approve, to the effect that if such proceeding be dismissed or the decision confirmed, the petitioner will pay all costs and charges which may

against him in the prosecution of the proceeding, or at the option of the petitioners such undertaking may be in a sum sufficient to cover the tax, penalties,

interest, costs and charges aforesaid, in which event the petitioner'shall not be required to pay such tax [and], penalties and interest as a dition precedent to the coinmencement of the proceeding.

6. The remedy provided by this section for review of a decision of the tax commission shall be the exclusive remedy available to any taxpayer to judicially determine the liability of such taxpayer fur taxes under this article.

§ 12. The second unnumbered paragraph of section two hundred eightynine of such law, as amended by chapter three hundred eighty-five of the laws of nineteen hundred forty-six, is amended to read as follows:

accrue

con

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law Whenever any distributor shall fail to pay, within the time limited herein, any tax which he is required to pay under the provisions of this article, the tax commission may issue a warrant under its official seal, directed to the sheriff of any county of the state, commanding him to levy, upon and sell the real and personal property of such distributor, found within his county, for the payment of the amount thereof, with the added penalties, interest and the cost of executing the warrant, and to return such warrant to the department of taxation and finance and to pay to it the money collected by virtue thereof within sixty days after the receipt of such warrant. The sheriff shall within five days after the receipt of the warrant, file with the clerk of his county a copy thereof, and thereupon the clerk shall enter in the judgment docket

to be omitted.

the name of the distributor, mentioned in the warrant, and the amount of the tax [and], penalties and interest for which the warrant is issued and the date when such copy is filed, and thereupon the amount of such warrant so docketed shall' become a lien upon the title to and interest in real and personal property Çor chattels real] of the distributor against whom the warrant is issued [in the same manner as a judgment duly "docketed in the office of such clerk]. Such lien shall not apply to personal property unless such warrant is also filed in the department of state. The said sheriff shall thereupon proceed upon the warrant in all respects, with like effect, and in the same manner prescribed by law in respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for his services in executing the

the warrant, to be collected in the same manner. In the discretion of the tax commission a warrant of like terms, force and effect may

be

issued and directed to any officer or employee of the department of taxation and finance, and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs, but shall be entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty. Upon such filing of a copy of a warrant, the tax commission shall have the same remedies to., enforce the claim for taxes, penalties and interest against the distributor as if the people of the state had recovered judgment

against such distributor for the amount of the tax.

§ 13. Section two hundred eighty-nine-b of such law, as added by chapter three hundred sixty-four of the laws of nineteen hundred twentynine, subdivision one as amended by chapter five hundred seven of the laws of nineteen hundred seventy-seven, subdivision two amended by chapter fifty-two of the laws of nineteen hundred fifty-one, subdivision three as amended by chapter four hundred seventy-five of the laws of nineteen hundred thirty-four and subdivision four as amended by chapter three hundred sixty-eight of the laws of nineteen hundred thirty-six, is amended to read as follows:

§ 289-b. Penalties and interest. 1. (a) A distributor or other person who or which fails to file a return or to pay any tax within the time required by or pursuant to this article (determined with regard to any extension of time for filing or paying) shall [thereby forfeit to the state] be subject to penalty of [five] ten per centum of the amount of tax determined to be due as provided in this article plus

one per centum of such amount for each month [of delay] or fraction thereof during which such failure continues after the expiration of the first month after such return was required to be filed or such tax became due[; but the tax commission, if satisfied that the delay was excusable, may remit all or any part of such penalty. Such penalty), not exceeding thirty per centum in the aggregate. Provided, however, in the case of a failure to file such return within sixty days of the date prescribed for filing, of such return by or pursuant to this article (determined with regard to any extension of time for filing), the penalty, imposed by this paragraph shall not be less than the lesser of one hundred dollars or one hundred per centum of the amount required to be shown as tax on such return. For the purpose of the preceding sentence, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the date

prescribed

for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return.

(b) If any amount of tax is not paid on or before the last date prescribed in this article for payment, interest on such amount at the rate set by the tax commission pursuant to subdivision twenty-sixth of section one hundred seventy-one of this chapter shall be paid for

the period from such last date to the date paid, whether or not any exten

as

a

paid

а

sion of time for payment was granted. Interest under this paragraph shall not be paid if the amount thereof is less than one dollar.

(c) If the tax commission determines that such failure or delay was due to reasonable cause and not due to willful neglect, it shall remit all or part of such penalty. The tax commission shall promulgate rules and regulations as to what constitutes reasonable cause.

(d) If the failure to pay any tax within the time required by or pursuant to this article is due to fraud, in lieu of the penalties and interest provided for in paragraphs (a) and (b) of this subdivision, there shall be added to the tax (i) a penalty of fifty per centum of the amount of tax due, plus (ii) interest on such unpaid tax at the rate set by the tax commission pursuant to subdivision twenty-sixth of section one hundred seventy-one of this chapter for the period beginning on the last day prescribed by this article for the payment of such tax (determined without regard to any extension of time for paying) and ending on the day on which such tax is paid, plus (iii) for the period beginning on the last day prescribed by this article for the payment of such tax (determined without regard to any extension of time for paying) and ending on the day the amount of tax due is finally determined or, if earlier, on the day on which such tax is paid, an amount equal to fifty per centum of the interest, payable under subparagraph (ii) of this paragraph on that portion of the unpaid tax which is attributable to fraud.

(e) Any owner of a filling station (other than a distributor of motor fuel registered as such under this article) who shall willfully and knowingly have in his custody, possession or under his control any motor fuel on which the taxes imposed by or pursuant to the authority of this article have not been included in the cost to him of such fuel shall be liable for a penalty equal to twice the amount of tax so, not included. Such penalty shall be determined, assessed, collected and paid in the same manner as taxes imposed by this article and all the provisions of this article relating to determination of tax, proceedings to recover, tax, refunds (but only of monies

in error), mailing rules and disposition of revenue shall be deemed also to refer to the penalty imposed by this paragraph and, for this purpose, the term "owner of filling station" "shall be substituted for the term "distributor" wherever appearing in such provisions. Such penalty may be determined at any time within three years after such motor fuel shall have come into the custody, possession or control of such owner of a filling station. For purposes of this paragraph, such owner shall willfully and knowingly have in his custody, possession or under his control any motor fuel on which such taxes are required to have been included in his cost when such owner has known of the requirement that such taxes be so included and where to his knowledge such taxes have not been so included.

(f) The penalties and interest provided for in this section shall be determined, assessed,,collected and paid in the same manner as the taxes imposed by this article and shall be disposed of as hereinafter provided with respect to moneys derived from the tax, Unpaid penalties and interest under this subdivision (shall) may be recovered by the attorneygeneral by action in the name of the people, and all penalties and interest due from the same distributor may be sued for in one action. Interest under this subdivision shall be compounded daily.

2. [Any distributor or owner who or which' files or causes to be filed any return or statement, required or permitted by this article, which is wilfully false shall be guilty of a felony:

3. Except in the case specified in subdivision two of this section, any distributor, seller or purchaser of motor fuel, any owner, or any other person, who or which violates any provisions of this article, pr any reasonable rule or regulation adopted pursuant to this article by the tax commission, or who wilfully attempts in any manner to evade or defeat any tax imposed by this article or the payment thereof shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than five thousand dollars, or imprisonment for not more than year, or both. ] Any officer, director, shareholder or employee of a corporation or of a dissolved corporation, any employee of a partnership or any employee of an individual proprietorship, who as such officer, director, shareholder or employee is under a duty to act for such corporation, partnership or proprietorship in complying with any requirement of this article, and any member of a partnership which is a distributor who fails to pay the taxes imposed by or pursuant to this EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

to be omitted.

one

[ocr errors]

[The

as

article, shall, in addition to other penalties provided by law, be liable to penalty equal to the total amount of the tax not paid, plus penalties and interest computed pursuant to subdivision one of this section as if such person were a distributor. If the tax commission determines that such failure was due to reasonable cause and not due to willful neglect,

it

shall remit all or part of such penalty imposed under this subdivision. Such penalty shall be determined, assessed, collected and paid in the same manner as the taxes imposed by this article and shall be disposed of as hereinafter provided with

respect to moneys derived from the tax.

[4. The] 3. For purposes of this chapter, the failure to do any act required by or under the provisions of this article shall be deemed an act committed in part at the office of the department of taxation and finance in Albany. (The) for purposes of this chapter, the certificate of the tax commission to the effect that a tax has not been paid, that a return has not been filed, or that information has not been supplied, as required by or under the provisions of this article, or that a claim for refund has been filed, shall be prima facie evidence that such tax has not been paid, that such return has not been filed, that such information has not been suppliediler, that purchaser," ""owner," and "person

been filed. terms "distributor," used in this section, shall include an officer, director, stockholder, or employee of a corporation, or a member of a partnership, who as such officer, director, stockholder, employee or member is under the duty to perform the act in respect of which the violation occurs].

4., Cross-reference: For criminal penalties, see article thirty-seven of this chapter.

S 14. Subdivision three of section two hundred eighty-nine-c of such law is amended by adding a new paragraph (g) to read as follows:

(8). The state of New York, or any of its agencies, instrumentalities, public corporations (including a public corporation created pursuant to agreement or compact with another state or Canada) or political subdivisions or a fire company or fire department, as defined in section three of the volunteer firefighters' benefit law, or a volunteer rescue squad supported in whole or in part by tax money where any such entity is the purchaser,

consumer of motor fuel or diesel motor fuel in a vehicle owned and operated by it and used exclusively for its purposes shall be reimbursed the amount of the taxes on motor fuel and diesel motor fuel imposed by or pursuant to the authority of this article included in the price paid.

§ 14-a. Section two hundred eighty-nine-c of such law is amended by adding a new subdivision eight to read as follows:

8. With respect to motor fuel imported, manufactured or sold or purchased in this state, a refund or credit shall be allowed a distributor

purchaser dulý registered with or licensed by the taxing authorities of another state as a distributor of or а dealer in motor fuel therein, of the tax required to be paid pursuant to this article upon motor fuel in the amount of such tax paid by or included in the price paid by distributor or such purchaser to the seller thereof if such fuel was exported from this state for sale outside this state and in connection with such exportation such fuel was immediately shipped to an identified facility outside this state provided the applicant complies with all requirements and rules and regulations of the tax commission, including evident iary requirements, relating thereto; and provided further that upon receipt of a claim for refund in processible form, interest shall be allowed and paid at the rate set by the tax commission pursuant to subdivision twenty-sixth of section one hundred seventy-one of this chapter from the due date of the return to the date preceding the date of the refund check except no such interest shall be allowed or paid within thirty days of such receipt and except no interest shall be allowed or paid if the amount thereof would be less than one dollar.

§ 15. Such law is amended by adding a new section two hundred eightynine-f to read as follows:

§ 289-f. Joint administration of taxes. In addition to the powers granted to the tax commission in this chapter, the commission is hereby authorized to make provisions pursuant to rules and regulations for the joint administration, in whole or in part, of the state and local taxes imposed by article twenty-eight and authorized to be imposed by article twenty-nine of this chapter upon the sale of automotive fuel and the taxes imposed and authorized to be imposed by this article, including the joint report ing, assessment, collection, determination and refund of such taxes, and

for that
purpose to prescribe that any

of the

user

or

or

[ocr errors]

a

« AnteriorContinuar »