§ 1133 — Liability for the tax

New York § 1133

• Jurisdiction: New York
• Law TAX: Tax
• Part 4: Administrative Provisions
• Art. 28: Sales and Compensating Use Taxes

Text

§ 1133. Liability for the tax. (a) Except as otherwise provided in\nsection eleven hundred thirty-seven of this part, every person required\nto collect any tax imposed by this article shall be personally liable\nfor the tax imposed, collected or required to be collected under this\narticle. Any such person shall have the same right in respect to\ncollecting the tax from their customer or in respect to nonpayment of\nthe tax by the customer as if the tax were a part of the purchase price\nof the property or service, amusement charge or rent, as the case may\nbe, and payable at the same time; provided, however, that the tax\ncommission shall be joined as a party in any action or proceeding\nbrought to collect the tax.\n (b) Where any customer has failed to pay a tax imposed by this article\nto the person required to collect the same, then in addition to all\nother rights, obligations and remedies provided, such tax shall be\npayable by the customer directly to the tax commission and it shall be\nthe duty of the customer to file a return with the tax commission and to\npay the tax to it within twenty days of the date the tax was required to\nbe paid.\n (c) The tax commission may, whenever it deems it necessary for the\nproper enforcement of this article, provide by regulation that customers\nshall file returns and pay directly to the tax commission any tax herein\nimposed, at such times as returns are required to be filed and payment\nmade by persons required to collect the tax.\n (d) (1) no person required to collect any tax imposed by this article\nshall advertise or hold out to the public in any manner, directly or\nindirectly, that the tax imposed by this article is not considered as an\nelement in the price, amusement charge or rent payable by customers.\nHowever, such person required to collect tax may advertise, hold out, or\nstate to a retail purchaser or to the public, that such person will pay\nthe tax imposed by section eleven hundred five of this article on behalf\nof a retail purchaser, subject to the following conditions:\n (i) In so advertising, holding out, or stating to a retail purchaser\nor to the public, such person required to collect tax shall expressly\nstate on every bill, memorandum, receipt or other statement of the\nprice, amusement charge or rent paid or payable given to such purchaser,\nthat such person will pay the tax imposed by section eleven hundred five\nof this article on behalf of such purchaser, and such person shall not\nindicate or imply that the transaction is exempt or excluded from any\ntax imposed by this article; and\n (ii) Every bill, memorandum, receipt or other statement of the price,\namusement charge or rent paid or payable given to such purchaser shall\nseparately state the amount of tax due pursuant to such section eleven\nhundred five and that the tax was not collected from such purchaser.\nSuch person required to collect tax shall hold such tax as trustee for\nand on account of the state; and\n (iii) A retail purchaser, who in good faith accepts from a person\nrequired to collect any tax imposed by this article, a bill, memorandum,\nreceipt or other statement of the price, amusement charge or rent that\nindicates the amount of tax due pursuant to such section eleven hundred\nfive and that such person required to collect tax will be paying such\ntax on behalf of such purchaser, shall not be liable for the tax imposed\nby such section eleven hundred five, or any interest or penalties\nthereon; provided, however that nothing in this subdivision shall exempt\nsuch purchaser from any additional tax due pursuant to section eleven\nhundred ten of this article.\n (e) Applicability of Mobile Telecommunications Sourcing Act. The\nprovisions of sections 119(c), 120, 121 and 122 of title 4 of the United\nStates Code as enacted and in effect on July twenty-eighth, two\nthousand, to the extent relevant and to the extent required by\npreemption, shall apply to the provisions of this article in the same\nmanner and with the same force and effect as if the language of such\nsections of such title 4 of the United States Code had been incorporated\nin full into this article and had expressly referred to the taxes under\nthis article, with such modifications as may be necessary in order to\nadapt the language of such provisions to the taxes imposed by this\narticle.\n (f) A marketplace provider is relieved of liability under this section\nfor failure to collect the correct amount of tax to the extent that the\nmarketplace provider can show that the error was due to incorrect or\ninsufficient information given to the marketplace provider by the\nmarketplace seller. Provided, however, this subdivision shall not apply\nif the marketplace seller and marketplace provider are affiliated within\nthe meaning of paragraph one of subdivision (e) of section eleven\nhundred one of this article.\n (g) A booking service shall be relieved of liability under this\nsection for failure to collect the correct amount of tax to the extent\nthat such booking service can show that the error was due to incorrect\nor insufficient information given to the booking service by the\noperator. Provided, however, this subdivision shall not apply if the\noperator and booking service are affiliated within the meaning of\nparagraph ten of subdivision (c) of section eleven hundred one of this\narticle.\n