§ 27-1012 — Deposit and disposition of refund values; registration; reports

§ 27-1012. Deposit and disposition of refund values; registration;\n reports.\n 1. Each deposit initiator shall deposit in a refund value account an\namount equal to the refund value initiated under section 27-1005 of this\ntitle which is received with respect to each beverage container sold by\nsuch deposit initiator. Such deposit initiator shall hold the amounts in\nthe refund value account in trust for the state. A refund value account\nshall be an interest-bearing account established in a banking\ninstitution located in this state, the deposits in which are insured by\nan agency of the federal government. Deposits of such amounts into the\nrefund value account shall be made not less frequently than every five\nbusiness days. All interest, dividends and returns earned on the refund\nvalue account shall be paid directly into said account. The monies in\nsuch accounts shall be kept separate and apart from all other monies in\nthe possession of the deposit initiator. The commissioner of taxation\nand finance may specify a system of accounts and records to be\nmaintained with respect to accounts established under this subdivision.\n 2. Payments of refund values pursuant to section 27-1007 of this title\nshall be paid from each deposit initiator's refund value account. No\nother payment or withdrawal from such account may be made except as\nprescribed by this section.\n 3. Each deposit initiator shall file quarterly reports with the\ncommissioner of taxation and finance on a form and in the manner\nprescribed by such commissioner. The commissioner of taxation and\nfinance may require such reports to be filed electronically. The\nquarterly reports required by this subdivision shall be filed for the\nquarterly periods ending on the last day of May, August, November and\nFebruary of each year, and each such report shall be filed within twenty\ndays after the end of the quarterly period covered thereby. Each such\nreport shall include all information such commissioner shall determine\nappropriate including but not limited to the following information:\n a. the balance in the refund value account at the beginning of the\nquarter for which the report is prepared;\n b. all such deposits credited to the refund value account and all\ninterest, dividends or returns received on such account, during such\nquarter;\n c. all withdrawals from the refund value account during such quarter,\nincluding all reimbursements paid pursuant to subdivision two of this\nsection, all service charges on the account, and all payments made\npursuant to subdivision four of this section; and\n d. the balance in the refund value account at the close of such\nquarter.\n 4. a. Quarterly payments. An amount equal to eighty percent of the\nbalance outstanding in the refund value account at the close of each\nquarter shall be paid to the commissioner of taxation and finance at the\ntime the report provided for in subdivision three of this section is\nrequired to be filed. The commissioner of taxation and finance may\nrequire that the payments be made electronically. The remaining twenty\npercent of the balance outstanding at the close of each quarter shall be\nthe monies of the deposit initiator and may be withdrawn from such\naccount by the deposit initiator. If the provisions of this section with\nrespect to such account have not been fully complied with, each deposit\ninitiator shall pay to such commissioner at such time, in lieu of the\namount described in the preceding sentence, an amount equal to the\nbalance which would have been outstanding on such date had such\nprovisions been fully complied with. The commissioner of taxation and\nfinance may require that the payments be made electronically.\n b. Refund value account shortfall. In the event a deposit initiator\npays out more in refund values than it collects in deposits of refund\nvalues during the course of a quarterly period as described in\nsubdivision three of this section, the deposit initiator may apply to\nthe commissioner of taxation and finance for a refund of the amount of\nsuch excess payment of refund values from sources other than the refund\nvalue account, in the manner as provided by the commissioner of taxation\nand finance. A deposit initiator must apply for a refund no later than\ntwelve months after the due date for filing the quarterly report for the\nquarterly period for which the refund claim is made. No interest shall\nbe payable for any refund paid pursuant to this paragraph.\n c. Final report. A deposit initiator who ceases to do business in this\nstate as a deposit initiator shall file a final report and remit payment\nof eighty percent of all amounts remaining in the refund value account\nas of the close of the deposit initiator's last day of business. The\ncommissioner of taxation and finance may require that the payments be\nmade electronically. The deposit initiator shall indicate on the report\nthat it is a "final report". The final report is due to be filed with\npayment twenty days after the close of the quarterly period in which the\ndeposit initiator ceases to do business. In the event the deposit\ninitiator pays out more in refund values than it collects in such final\nquarterly period, the deposit initiator may apply to the commissioner of\ntaxation and finance for a refund of the amount of such excess payment\nof refund values from sources other than the refund value account, in\nthe manner as provided by the commissioner of taxation and finance.\n 5. All moneys collected or received by the department of taxation and\nfinance pursuant to this title shall be deposited to the credit of the\ncomptroller with such responsible banks, banking houses or trust\ncompanies as may be designated by the comptroller. Such deposits shall\nbe kept separate and apart from all other moneys in the possession of\nthe comptroller. The comptroller shall require adequate security from\nall such depositories. Of the total revenue collected, the comptroller\nshall retain the amount determined by the commissioner of taxation and\nfinance to be necessary for refunds out of which the comptroller must\npay any refunds to which a deposit initiator may be entitled. After\nreserving the amount to pay refunds, the comptroller must, by the tenth\nday of each month, pay into the state treasury to the credit of the\ngeneral fund the revenue deposited under this subdivision during the\npreceding calendar month and remaining to the comptroller's credit on\nthe last day of that preceding month; provided, however, that, beginning\nApril first, two thousand thirteen, nineteen million dollars, and all\nfiscal years thereafter, twenty-three million dollars plus all funds\nreceived from the payments due each fiscal year pursuant to subdivision\nfour of this section in excess of the greater of the amount received\nfrom April first, two thousand twelve through March thirty-first, two\nthousand thirteen or one hundred twenty-two million two hundred thousand\ndollars, shall be deposited to the credit of the environmental\nprotection fund established pursuant to section ninety-two-s of the\nstate finance law.\n 6. The commissioner and the commissioner of taxation and finance shall\npromulgate, and shall consult each other in promulgating, such rules and\nregulations as may be necessary to effectuate the purposes of this\ntitle. The commissioner and the commissioner of taxation and finance\nshall provide all necessary aid and assistance to each other, including\nthe sharing of any information that is necessary to their respective\nadministration and enforcement responsibilities pursuant to the\nprovisions of this title.\n 7. a. Any person who is a deposit initiator under this title before\nApril first, two thousand nine, must apply by June first, two thousand\nnine to the commissioner of taxation and finance for registration as a\ndeposit initiator. Any person who becomes a deposit initiator on or\nafter April first, two thousand nine shall apply for registration prior\nto collecting any deposits as such a deposit initiator. Such application\nshall be in a form prescribed by the commissioner of taxation and\nfinance and shall require such information deemed to be necessary for\nproper administration of this title. The commissioner of taxation and\nfinance may require that applications for registration must be submitted\nelectronically. The commissioner of taxation and finance shall\nelectronically issue a deposit initiator registration certificate in a\nform prescribed by the commissioner of taxation and finance within\nfifteen days of receipt of such application or may take an additional\nten days if the commissioner of taxation and finance deems it necessary\nto consult with the commissioner before issuing such registration\ncertificate. A registration certificate issued pursuant to this\nsubdivision may be issued for a specified term of not less than three\nyears and shall be subject to renewal in accordance with procedures\nspecified by the commissioner of taxation and finance. The commissioner\nof taxation and finance shall furnish to the commissioner a complete\nlist of registered deposit initiators and shall continually update such\nlist as warranted. The commissioner shall share any information with the\ncommissioner of taxation and finance that is necessary for the\nadministration of this subdivision.\n b. The commissioner of taxation and finance shall have the authority\nto revoke or refuse to renew any registration issued pursuant to this\nsubdivision when he or she has determined or has been informed by the\ncommissioner that any of the provisions of this title or rules and\nregulations promulgated thereunder have been violated. Such violations\nshall include, but not be limited to, the failure to file quarterly\nreports, the failure to make payments pursuant to this subdivision, the\nproviding of false or fraudulent information to either the department of\ntaxation and finance or the department, or knowingly aiding or abetting\nanother person in violating any of the provisions of this title. A\nnotice of proposed revocation or non-renewal shall be given to the\ndeposit initiator in the manner prescribed for a notice of deficiency of\ntax and all the provisions applicable to a notice of deficiency under\narticle twenty-seven of the tax law shall apply to a notice issued\npursuant to this paragraph, insofar as such provisions can be made\napplicable to a notice authorized by this paragraph, with such\nmodifications as may be necessary in order to adapt the language of such\nprovisions to the notice authorized by this paragraph. All such notices\nissued by the commissioner of taxation and finance pursuant to this\nparagraph shall contain a statement advising the deposit initiator that\nthe revocation or non-renewal of registration may be challenged through\na hearing process and the petition for such a challenge must be filed\nwith the commissioner of taxation and finance within ninety days after\nsuch notice is issued. A deposit initiator whose registration has been\nso revoked or not renewed shall cease to do business as a deposit\ninitiator in this state, until this title has been complied with and a\nnew registration has been issued. Any deposit initiator whose\nregistration has been so revoked may not apply for registration for two\nyears from the date such revocation takes effect.\n 8. The commissioner of taxation and finance may require the\nmaintenance of such accounts, records or documents relating to the sale\nof beverage containers, by any deposit initiator, bottler, distributor,\ndealer or redemption center as such commissioner may deem appropriate\nfor the administration of this section. Such commissioner may make\nexaminations, including the conduct of facility inspections during\nregular business hours, with respect to the accounts, records or\ndocuments required to be maintained under this subdivision. Such\naccounts, records and documents shall be preserved for a period of three\nyears, except that such commissioner may consent to their destruction\nwithin that period or may require that they be kept longer. Such\naccounts, records and documents may be kept within the meaning of this\nsubdivision when reproduced by any photographic, photostatic, microfilm,\nmicro-card, miniature photographic or other process which actually\nreproduces the original accounts, records or documents.\n 9. a. Any person required to be registered under this section who,\nwithout being so registered, sells or offers for sale beverage\ncontainers in this state, in addition to any other penalty imposed by\nthis title, shall be subject to a penalty to be assessed by the\ncommissioner of taxation and finance in an amount not to exceed five\nhundred dollars for the first day on which such sales or offers for sale\nare made, plus an amount not to exceed five hundred dollars for each\nsubsequent day on which such sales or offers for sale are made, not to\nexceed twenty-five thousand dollars in the aggregate.\n b. Any deposit initiator who fails to file reports, make quarterly\npayments or maintain accounts or records pursuant to this section,\nunless it is shown that such failure was due to reasonable cause and not\ndue to negligence or willful neglect, in addition to any other penalty\nimposed by this title, shall be subject to a penalty to be assessed by\nthe commissioner of taxation and finance of not more than one thousand\ndollars for each quarter during which such failure occurred, and an\nadditional penalty of not more than one thousand dollars for each\nquarter such failure continues.\n 10. The provisions of article twenty-seven of the tax law shall apply\nto the provisions of this title for which the commissioner of taxation\nand finance is responsible, including collection of refund value\namounts, in the same manner and with the same force and effect as if the\nlanguage of such article had been incorporated in full into this section\nexcept to the extent that any provision of such article is either\ninconsistent with a provision of this section or is not relevant to this\nsection as determined by the commissioner of taxation and finance.\nFurthermore, for purposes of applying the provisions of article\ntwenty-seven of the tax law, where the terms "tax" and "taxes" appear in\nsuch article, such terms shall be construed to mean "refund value" or\n"balance in the refund value account".\n 11. If any deposit initiator fails or refuses to file a report or\nfurnish any information requested in writing by the department of\ntaxation and finance or the department, the department of taxation and\nfinance with the assistance of the department may, from any information\nin its possession, make an estimate of the deficiency and collect such\ndeficiency from such deposit initiator.\n 12. a. Each deposit initiator shall provide a report to the department\ndescribing all the types of beverage containers on which it initiates\ndeposits. The report shall include the product name, type of beverage,\nsize and composition of the beverage container, universal product code,\nand any other information the department may require. Upon request, a\ndeposit initiator shall also provide to the department a copy of the\ncontainer label or a picture of any beverage container sold or offered\nfor sale in this state on which it initiates a deposit. Such information\nshall be provided in a form as prescribed by the department. The\ndepartment may require that such forms be filed electronically.\n b. A bottler may place on a beverage container a universal product\ncode or other distinctive marking that is specific to the state or used\nonly in the state and any other states with laws substantially similar\nto this title as a means of preventing the sale or redemption of\nbeverage containers on which no deposit was initiated.\n c. A bottler or deposit initiator shall notify the department, in a\nform prescribed by the department, whenever a beverage container or\nbeverage container label is revised by altering the universal product\ncode, or whenever the container on which a universal product code\nappears is changed in size, composition or glass color, or whenever the\ncontainer or container label on which a universal product code appears\nis changed to include a universal product code that is unique to the\nstate or used only in the state and any other states with laws\nsubstantially similar to this title.\n