§ 1136 — Returns

New York § 1136

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

Text

§ 1136. Returns. (a)(1) Every person required to register with the\ncommissioner as provided in section eleven hundred thirty-four of this\npart whose taxable receipts, amusement charges and rents total less than\nthree hundred thousand dollars, or in the case of any such person who is\na distributor whose sales of petroleum products total less than one\nhundred thousand gallons, in every quarter of the preceding four\nquarters, shall only file a return quarterly with the commissioner.\nProvided, however, that if the commissioner in the exercise of his or\nher discretion deems it necessary to protect the revenues to be obtained\nunder this article, he or she may give notice requiring such person, in\naddition to filing a quarterly return, to file either short-form or\nlong-form part quarterly returns, as specified in such notice.\n (2) Every person required to register with the commissioner as\nprovided in section eleven hundred thirty-four of this part whose\ntaxable receipts, amusement charges and rents total three hundred\nthousand dollars or more, or in the case of any such person who is a\ndistributor whose sales of petroleum products total one hundred thousand\ngallons or more, in any quarter of the preceding four quarters, shall,\nin addition to filing a quarterly return described in paragraph one of\nthis subdivision, and except as otherwise provided in section eleven\nhundred two or eleven hundred three of this article, file either a\nlong-form or short-form part-quarterly return monthly with the\ncommissioner.\n (3) However, a person required to register with the commissioner as\nprovided in section eleven hundred thirty-four of this part only because\nsuch person is purchasing or selling tangible personal property for\nresale, and who is not required to collect any tax or pay any tax\ndirectly to the commissioner under this article, shall file an\ninformation return annually in such form as the commissioner may\nprescribe. Likewise, a person, who is required to register and who is\nselling petroleum products who is not a distributor of motor fuel, shall\nfile an information return quarterly or, if the commissioner deems\nnecessary, monthly, in such form as the commissioner shall prescribe.\n (4) The return of a vendor of tangible personal property or services\nshall show such vendor's receipts from sales and the number of gallons\nof any motor fuel or diesel motor fuel sold and also the aggregate value\nof tangible personal property and services and number of gallons of such\nfuels sold by the vendor, the use of which is subject to tax under this\narticle, and the amount of tax payable thereon pursuant to the\nprovisions of section eleven hundred thirty-seven of this part. The\nreturn of a recipient of amusement charges shall show all such charges\nand the amount of tax thereon, and the return of an operator required to\ncollect tax on rents shall show all rents received or charged and the\namount of tax thereon. The return of a marketplace seller shall exclude\nthe receipts from a sale of tangible personal property facilitated by a\nmarketplace provider if, in regard to such sale: (A) the marketplace\nseller has timely received in good faith a properly completed\ncertificate of collection from the marketplace provider or the\nmarketplace provider has included a provision approved by the\ncommissioner in the publicly-available agreement between the marketplace\nprovider and the marketplace seller as described in subdivision one of\nsection eleven hundred thirty-two of this part, and (B) the information\nprovided by the marketplace seller to the marketplace provider about\nsuch tangible personal property is accurate. The return of an operator\nshall exclude the rent from occupancy of a short term rental unit\nfacilitated by a booking service if, in regard to such sale: (A) the\nshort term rental operator has timely received in good faith a properly\ncompleted certificate of collection from the booking service or the\nbooking service has included a provision approved by the commissioner in\nthe publicly-available agreement between the booking service and the\nshort term rental operator as described in subdivision (m) of section\neleven hundred thirty-two of this part, and (B) the information provided\nby the short term rental operator to the booking service about such rent\nand such occupancy is accurate.\n (5) The returns of any seller of petroleum products shall show the\nnumber of gallons of petroleum products sold, together with such\nadditional information as the commissioner shall require in order to\ncertify the amount of taxes, penalties and interest payable to local\ntaxing jurisdictions imposed on the sale or use of petroleum products\npursuant to the provisions of section twelve hundred sixty-one of this\nchapter.\n (6) The returns of any seller of cigarettes shall show the amount of\nprepaid tax assumed or paid thereon and passed through, together with\nsuch additional information as the commissioner shall require.\n (7) Taxable receipts as used in this section shall include taxable\nreceipts from the sale of petroleum products and cigarettes and any\nreceipts from the sale of motor fuel or diesel motor fuel or cigarettes\nin this state whether or not such receipts are subject to the taxes\nimposed by section eleven hundred two, eleven hundred three, eleven\nhundred five or eleven hundred ten of this article and regardless of\nwhether the provisions of section eleven hundred twenty or eleven\nhundred twenty-one of this article are applicable to the taxes imposed\nin respect of such receipts or numbers of gallons of motor fuel or\ndiesel motor fuel sold.\n (8) For purposes of this article the term "long-form, part-quarterly\nreturn" shall mean a return in a form determined by the commissioner\nproviding for the calculation of the actual sales and compensating use\ntaxes for the preceding month in the manner set forth in subdivisions\n(a) and (b) of section eleven hundred thirty-seven of this part. A\nperson filing a long-form, part-quarterly return for each of the months\ncontained in a quarter shall also be required to file a quarterly return\nfor such quarter.\n (9) For purposes of this article the term "short-form, part-quarterly\nreturn" shall mean a return which shall be available for use in filing\nas a return for the first two months of any quarter and only by a person\nrequired to file a return monthly who has had at least four successive\nquarterly tax periods immediately preceding the month for which the\nreturn is to be filed and who elects such use, and is in a form\ndetermined by the commissioner and providing for the calculation of\none-third of the total state and local sales and compensating use taxes\npaid by the person to the commissioner in the comparable quarter of the\nimmediately preceding year under this article and as taxes imposed\npursuant to the authority of article twenty-nine with respect to all\nreceipts, amusement charges and rents.\n (b) The returns and information returns required by this section to be\nfiled quarterly shall be filed for quarterly periods ending on the last\nday of February, May, August and November of each year, and each return\nand each information return shall be filed within twenty days after the\nend of the quarterly period covered thereby. The returns required by\nthis section to be filed monthly shall be filed for monthly periods\nending on the last day of each month and each return shall be filed\nwithin twenty days after the end of each prior month. The information\nreturns required to be filed annually shall be filed for twelve month\nperiods ending on the last day of May of each year, and each such\ninformation return shall be filed within twenty days after the end of\nthe twelve month period covered thereby.\n (c) The tax commission may permit or require returns to be made\ncovering other periods and upon such dates as it may specify. If the tax\ncommission deems it necessary in order to insure the payment of the\ntaxes imposed by this article, it may require returns to be made for\nshorter periods than those prescribed pursuant to the foregoing\nsubdivisions of this section, and upon such dates as it may specify.\n (d) The form of returns shall be prescribed by the tax commission and\nshall contain such information as it may deem necessary for the proper\nadministration of this article. The commission may require amended\nreturns to be filed within twenty days after notice and to contain the\ninformation specified in the notice.\n (d-1)(1) Notwithstanding subdivision (d) of this section, a return may\nbe amended where such amendment would not result in the reduction or\nelimination of a past-due tax liability, as such term is defined in\nsection one hundred seventy-one-v of this chapter. Provided, however,\nthat a person required to collect tax, as defined in section eleven\nhundred thirty-one of this part, may amend a return within one hundred\neighty days of the date such return was due if the past-due liability\nwas self-assessed and reported by such person.\n (2) Where there is no such past-due tax liability, an amended return\nthat would result in the reduction or elimination of tax due shall be\ndeemed a claim for credit or refund and must be filed within the time\nrequired for filing a claim for credit or refund under section eleven\nhundred thirty-nine of this part and otherwise meet the requirements of\nsuch section.\n (3) Where the commissioner has determined the amount of tax due\npursuant to paragraph one of subdivision (a) of section eleven hundred\nthirty-eight of this part, an original return may be filed within one\nhundred eighty days after mailing of notice of such determination.\nProvided, however, that nothing in this paragraph shall affect any\npenalty or interest that may have accrued for such tax period on account\nof failure to timely file the original return.\n (4) An assessment of tax, penalty and interest, including recovery of\na previously paid refund, attributable to a change or correction on a\nreturn, may be made at any time within three years after such return is\nfiled.\n (e) The tax commission may by regulation require lessors as defined in\nparagraph (8) of subdivision (d) of section eleven hundred one to file\ninformation returns showing all leases, subleases and licenses to use\ngranted to persons who make amusement charges, and may prescribe the\nform of such returns, the time when they are to be filed and the\ninformation to be contained therein.\n (f) Every show promoter shall file a report monthly, within twenty\ndays after the end of the prior month, for all shows with respect to\nwhich he was a show promoter in such prior month, listing the date and\nplace of each show and the name, address and certificate of authority\nnumber, by show, of every person whom he permitted to display for sale\nor to sell tangible personal property or services subject to tax at such\nshow. Every person shall furnish the show promoter of any show at which\nhe displays for sale or sells tangible personal property or services\nsubject to tax, with a statement of his name, address and certificate of\nauthority number for the show promoter's use in filing the report\nrequired herein.\n (g) Every entertainment promoter shall file a report monthly, within\ntwenty days after the end of the prior month, for all entertainment\nevents with respect to which he was an entertainment promoter in such\nprior month, listing the date and place of each such event, and the\nname, address and certificate of authority number, by event, of every\nperson who made taxable sales of tangible personal property at such\nevent. Every entertainment vendor shall furnish the entertainment\npromoter of any entertainment event at which he makes taxable sales of\ntangible personal property, with a statement containing his name,\naddress and certificate of authority number, for the entertainment\npromoter's use in filing the report required herein.\n (h) The commissioner may, by regulation, require any person registered\nor required to be registered with the commissioner under section eleven\nhundred thirty-four of this article to file a report regarding sales in\nthis state of tangible personal property or services by such person to\nitinerant vendors where such sales are sales for resale. Any such\nreport, if required to be filed by the commissioner, shall contain the\nname and certificate of authority number of every itinerant vendor who\npurchases tangible personal property or services for resale from such\nperson, the sales for resale made to each such vendor and the amounts\npaid, charged or due thereon, together with such other information as\nthe commissioner may require. The commissioner may prescribe the form of\nsuch report and shall indicate the time when it is to be filed and the\nperiod to be covered, provided that such reports may not be required to\nbe filed more frequently than on a quarterly basis. For purposes of this\nsubdivision, the term "itinerant vendor" shall include a person with no\npermanent and fixed place of business in this state from which it makes\nsales or renders services subject to tax, such as street peddlers, show\nvendors or any similar vendors who transport a supply of tangible\npersonal property from place to place, whether upon trucks, wagons or\notherwise, exposing such property for sale, soliciting and negotiating\nsales, and immediately delivering the property, but shall not include a\nperson who makes sales or renders services by sample, brochure or\ncatalogue for future delivery.\n (i) (1) The following persons must file, in addition to any other\nreturn required by this chapter, annual information returns with the\ncommissioner providing the information specified below about their\ntransactions with vendors, hotel operators, and recipients of amusement\ncharges:\n (A) Every insurer licensed to issue motor vehicle physical damage or\nmotor vehicle property damage liability insurance for motor vehicles\nregistered in this state if, during the period covered by the return, it\nhas paid consideration or an amount under an insurance contract for the\nservicing or repair of a motor vehicle on behalf of an insured. For each\nperson to whom the insurer has paid the consideration or amount\ndescribed in the preceding sentence, the return must report the total\namount paid for that period, along with the other information required\nby paragraph two of this subdivision.\n (B) Every franchisor, as defined by section six hundred eighty-one of\nthe general business law, that has at least one franchisee, as defined\nby subdivision four of section six hundred eighty-one of the general\nbusiness law, that is required to be registered under section eleven\nhundred thirty-four of this part. For each franchisee, the return must\ninclude the gross sales of the franchisee in this state reported by the\nfranchisee to the franchisor, the total amount of sales by the\nfranchisor to the franchisee, and any income reported to the franchisor\nby each franchisee, along with the information required by paragraph two\nof this subdivision.\n (C) Every wholesaler, as defined by section three of the alcoholic\nbeverage control law, if it has made a sale of an alcoholic beverage, as\ndefined by section four hundred twenty of this chapter, without\ncollecting sales or use tax during the period covered by the return,\nexcept (i) a sale to a person that has furnished an exempt organization\ncertificate to the wholesaler for that sale; or (ii) a sale to another\nwholesaler whose license under the alcoholic beverage control law does\nnot allow it to make retail sales of the alcoholic beverage. For each\nvendor, operator, or recipient to whom the wholesaler has made a sale\nwithout collecting sales or compensating use tax, the return must\ninclude the total value of those sales made during the period covered by\nthe return (excepting the sales described in clauses (i) and (ii) of\nthis subparagraph) and the vendor's, operator's or recipient's state\nliquor authority license number, along with the information required by\nparagraph two of this subdivision.\n (D) Notwithstanding the provisions of subparagraph (C) of this\nparagraph, a person operating pursuant to any of the following licenses\nshall not be subject to any of the requirements of this subdivision: (i)\na farm winery license, as provided in section seventy-six-a of the\nalcoholic beverage control law; (ii) a winery license, as provided in\nsection seventy-six of the alcoholic beverage control law, where the\nnumber of gallons of wine, cider and mead produced annually by such\nperson does not exceed the annual limits on the number of finished\ngallons of wine, cider and mead permitted to be produced by a farm\nwinery under subdivision nine of section seventy-six-a of the alcoholic\nbeverage control law; (iii) a farm distillery license, as provided in\nsubdivision two-c of section sixty-one of the alcoholic beverage control\nlaw; (iv) a distiller's license, as provided in section sixty-one of the\nalcoholic beverage control law, where the number of gallons of liquor\nproduced annually by such person does not exceed the annual limits on\nthe number of gallons of liquor permitted to be produced by a farm\ndistillery under paragraph (f) of subdivision two-c of section sixty-one\nof the alcoholic beverage control law; (v) a farm cidery license, as\nprovided in section fifty-eight-c of the alcoholic beverage control law;\n(vi) a cider producers' license, as provided in section fifty-eight of\nthe alcoholic beverage control law, where the number of gallons of cider\nproduced annually by such person does not exceed the annual limits on\nthe number of gallons of cider permitted to be produced by a farm cidery\nunder subdivision ten of section fifty-eight-c of the alcoholic beverage\ncontrol law; (vii) a farm brewery license, as provided in section\nfifty-one-a of the alcoholic beverage control law; (viii) a brewer's\nlicense, as provided in section fifty-one of the alcoholic beverage\ncontrol law, where the number of finished barrels of beer, cider and\nbraggot produced annually by such person does not exceed the annual\nnumber of finished barrels of beer, cider and braggot permitted to be\nproduced by a farm brewery under subdivision ten of section fifty-one-a\nof the alcoholic beverage control law; (ix) a farm meadery license, as\nprovided in section thirty-one of the alcoholic beverage control law; or\n(x) a mead producers' license, as provided in section thirty of the\nalcoholic beverage control law, where the number of gallons of mead and\nbraggot produced annually by such person does not exceed the annual\nnumber of finished barrels of mead and braggot permitted to be produced\nby a farm meadery under subdivision ten of section thirty-one of the\nalcoholic beverage control law. Nothing in this subparagraph shall\nexempt a person operating pursuant to multiple licenses under the\nalcoholic beverage control law from the requirements of subparagraph (C)\nof this paragraph if such person produces an amount of any alcoholic\nbeverage in excess of the amounts permitted to be produced annually by a\nperson who holds only a farm winery, farm cidery, farm distillery, farm\nbrewery or farm meadery license for such beverage, nor shall this\nsection exempt any person holding a wholesalers' license under the\nalcoholic beverage control law from the requirements of subparagraph (C)\nof this paragraph.\n (2) The returns required by paragraph one of this subdivision must\nalso include, for each vendor, operator, or recipient about whom\ninformation is required to be reported under such paragraph, the name\nand address, and the certificate of authority or federal identification\nnumber, and any other information required by the commissioner. The\ncommissioner may, in the commissioner's discretion, require the\nreporting of less than all the information otherwise required to be\nreported by this paragraph and paragraph one of this subdivision.\n (3) The returns required by paragraph one of this subdivision must be\nfiled annually on or before March twentieth and must cover the four\nsales tax quarterly periods immediately preceding such date.\nNotwithstanding section three hundred five of the state technology law\nor any other law to the contrary, the returns must be filed\nelectronically in the manner prescribed by the commissioner.\n (4) Any person required to file a return under paragraph one of this\nsubdivision must, on or before March twentieth, give to each vendor,\noperator, or recipient about whom information is required to be reported\nin the return the information pertaining to that person. The\ncommissioner may prescribe a form to be used to provide the information\nrequired to be given by this paragraph.\n (5) Nothing in this subdivision is to be construed to limit the\npersons from whom the commissioner can secure information or the\ninformation the commissioner can require from those persons pursuant to\nthe commissioner's authority under section eleven hundred forty-three of\nthis part or any other provision of law.\n