§ 1137 — Payment of tax

§ 1137. Payment of tax. (a) Every person required to file a return\nunder the preceding section whose total taxable receipts (as "taxable\nreceipts" are described in subdivision (a) of such section), amusement\ncharges and rents are subject to the tax imposed pursuant to\nsubdivisions (a), (c), (d), (e) and (f) of section eleven hundred five\nof this article shall, at the time of filing such return, pay to the\ncommissioner the total of the following:\n (i) Four percent of the total of all receipts, amusement charges and\nrents subject to tax under this article, and if any of such receipts,\namusement charges and rents are subject to local tax imposed pursuant to\narticle twenty-nine of this chapter, an additional percentage of the\ntotal thereof equal to the percentage rate of such local tax;\n (ii) All taxes imposed by section eleven hundred ten or pursuant to\narticle twenty-nine of this chapter upon such person's use of property\nor services;\n (iii) All moneys collected by such person, purportedly as tax imposed\nby this article or pursuant to article twenty-nine of this chapter, with\nrespect to any receipt, gallon of motor fuel or diesel motor fuel sold,\namusement charge or rent not subject to tax, and all moneys collected\nwith respect to any receipt, gallon of such fuel, amusement charge or\nrent subject to tax, purportedly in accordance with a schedule\nprescribed by the commissioner but actually in excess of the amount\nstated in such schedule as the amount to be collected; and\n (iv) The correct number of cents per gallon of motor fuel and diesel\nmotor fuel sold subject to tax under this article, and, if any of such\ngallons sold are subject to local tax imposed pursuant to article\ntwenty-nine of this chapter, an additional number of cents per gallon\nsold subject to such local taxes equal to the rates of such taxes.\n (b) Every person required to file a return under the preceding section\nand not subject to the provisions of subdivision (a) of this section\nshall, at the time of filing such return, pay to the commissioner the\ntaxes imposed by this article and pursuant to article twenty-nine of\nthis chapter as well as all other moneys collected by such person acting\nor purporting to act under the provisions of this article or of any\nlocal law, ordinance or resolution adopted pursuant to such article\ntwenty-nine; provided, however, that if the commissioner shall have\nfixed an effective rate of tax applicable to any or all of his or her\nreceipts, amusement charges and rents as provided in subdivision (d) of\nthis section, any such person may elect, with reference to such\nreceipts, amusement charges and rents and subject to approval by the\ncommissioner and to such regulations as the commissioner may promulgate,\nto pay to the commissioner at the time of filing his or her return the\ntotal of the following:\n (i) The percentage of such receipts, amusement charges and rents fixed\nby the commissioner as the effective rate of tax applicable thereto;\n (ii) All taxes imposed by section eleven hundred ten or pursuant to\narticle twenty-nine of this chapter upon such person's use of property\nor services;\n (iii) All moneys collected by such person, purportedly as tax imposed\nby this article or pursuant to article twenty-nine of this chapter, with\nrespect to any receipt, gallon of motor fuel or diesel motor fuel sold,\namusement charge or rent not subject to tax, and all moneys collected\nwith respect to any receipt, gallon of such fuel, amusement charge or\nrent subject to tax, purportedly in accordance with a schedule\nprescribed by the commissioner but actually in excess of the amount\nstated in such schedule as the amount to be collected;\n (iv) The amount of the taxes imposed by this article and pursuant to\narticle twenty-nine of this chapter with respect to all receipts,\namusement charges and rents as to which no effective rate of tax fixed\nby the commissioner is applicable; and\n (v) The correct number of cents per gallon of motor fuel and diesel\nmotor fuel sold subject to tax under this article, and, if any of such\ngallons sold are subject to local tax imposed pursuant to article\ntwenty-nine of this chapter, an additional number of cents per gallon\nsold subject to such local taxes equal to the rates of such taxes.\n (c) (1) The provisions of subdivisions (a) and (b) of this section\nshall not be applicable to: (i) a person filing a short-form,\npart-quarterly return as defined in paragraph (ii) of subdivision (a) of\nsection eleven hundred thirty-six hereof who, at the time of such filing\nshall pay to the tax commission one-third of the total state and local\nsales and compensating use taxes payable by the person to the tax\ncommission in the comparable quarter of the immediately preceding year\nunder this article and as taxes imposed pursuant to the authority of\narticle twenty-nine with respect to all receipts, amusement charges and\nrents, or (ii) a person filing a March estimated return as described in\nparagraph (ii) of subdivision (c) of section eleven hundred\nthirty-seven-A hereof who, at the time of such filing shall pay to the\ntax commission one-third of the sales and compensating use taxes payable\nby such person to the tax commission in the comparable quarter of the\nimmediately preceding year under this article. Notwithstanding the\npreceding sentence, for the purposes of subparagraph (ii) of this\nparagraph, the sales and compensating use taxes payable in the\ncomparable quarter of the immediately preceding year shall not include\ntaxes imposed by section eleven hundred seven or eleven hundred eight of\nthis article or pursuant to the authority of article twenty-nine of this\nchapter.\n (2) The provisions of subdivisions (a) and (b) of this section,\nhowever, shall apply to a person filing a March estimated return as\ndescribed in paragraph (i) of subdivision (c) of section eleven hundred\nthirty-seven-A hereof who, at the time of such filing shall pay to the\ntax commission the sales and compensating use taxes, that are estimated\nto be payable by such person for such month of March. Notwithstanding\nthe preceding sentence, for the purposes of this paragraph, the sales\nand compensating use taxes that are estimated to be payable by such\nperson for such month of March shall not include taxes imposed by\nsection eleven hundred seven or eleven hundred eight of this article or\npursuant to the authority of article twenty-nine of this chapter.\n (d) The tax commission is hereby authorized to fix the effective rate\nof tax applicable to any or all of the taxable receipts, amusement\ncharges and rents of any person required to collect tax, or of any group\nor classification of such persons. Any effective rate so fixed shall be\nfixed at such a percentage rate as to require, so far as practicable,\npayment of an amount equal to the total taxes imposed by this article\nand pursuant to article twenty-nine.\n (e) (1) The amount so payable to the tax commission for the period for\nwhich a return is required to be filed shall be due and payable to the\ntax commission on the date limited for the filing of the return for such\nperiod, without regard to whether a return is filed or whether the\nreturn which is filed correctly shows the amount of receipts, amusement\ncharges or rents or the value of property or services sold or purchased\nor the taxes due thereon.\n (2) Where the tax commission, in its discretion, deems it necessary to\nprotect the revenues to be obtained under this article, it may require\nany person required to collect any tax imposed by this article to file\nwith it a bond, issued by a surety company authorized to transact\nbusiness in this state and approved by the superintendent of financial\nservices of this state as to solvency and responsibility or other\nsecurity acceptable to the tax commission, in such amount as the tax\ncommission may fix, to secure the payment or payment over of any tax,\npenalties or interest due or which may become due from such person under\nthis article. In the event that the tax commission determines that such\nperson is to file such bond or other security, it shall give notice to\nhim to that effect specifying the amount of the bond or other security\nrequired. Such person shall file such bond or other security within\nthirty days after the giving of such notice unless within five days\nafter the giving of such notice he shall request, in writing, a hearing\nbefore the tax commission at which the necessity, propriety and amount\nof the bond or other security shall be determined by the tax commission.\nSuch determination shall be final and shall be complied with within\nthirty days after the giving of notice thereof. If securities are\ndeposited as security under this paragraph, such securities shall be\nkept in the custody of the commissioner of taxation and finance and may\nbe sold by the tax commission if it becomes necessary so to do in order\nto recover any sums due from such person pursuant to this article, but\nno such sale shall be had until after such person shall have had\nopportunity to litigate the validity of any tax if he elects so to do.\nUpon any such sale, the surplus, if any, above the sums due under this\narticle shall be returned to such person.\n * (3) As an additional or alternate requirement, whenever any person\nfails to collect, truthfully account for, pay over the tax, or file\nreturns of the tax as required in this article, the commissioner, in his\nor her discretion where he or she deems necessary to protect the\nrevenues to be obtained under this article, may give notice requiring\nsuch person to collect the taxes which become collectible after the\ngiving of such notice, to deposit such taxes at least one time per week\nin a separate account in any banking institution approved by the\ncommissioner and located in this state the deposits in which are insured\nby any agency of the federal government. Such notice may require either\n(i) that such account be held in trust for and payable to the\ncommissioner, and that the amount of such tax shall be kept in such\naccount until payment over to the commissioner; or (ii) that such person\nauthorize the commissioner to debit such account. Any notice given by\nthe commissioner under this paragraph shall remain in effect until a\nnotice of cancellation is given by the commissioner. Any such person who\nfails to comply with a notice issued under this paragraph shall be\nrequired to file a bond pursuant to paragraph two of this subdivision.\n * NB Effective until December 31, 2029\n * (3) As an additional or alternate requirement, whenever any person\nfails to collect, truthfully account for, pay over the tax, or file\nreturns of the tax as required in this article, the tax commission, in\nits discretion where it deems necessary to protect the revenues to be\nobtained under this article, may give notice requiring such person to\ncollect the taxes which become collectible after the giving of such\nnotice, to deposit such taxes in any banking institution approved by the\ntax commission and located in this state the deposits in which are\ninsured by any agency of the federal government, in a separate account,\nin trust for and payable to the tax commission, and to keep the amount\nof such tax in such account until payment over to the tax commission.\nSuch notice shall remain in effect until a notice of cancellation is\ngiven by the tax commission.\n * NB Effective December 31, 2029\n (f) (1) Except as otherwise provided in this subdivision, a person\nrequired to collect tax who files a return required to be filed under\nsection eleven hundred thirty-six of this part for a quarterly or longer\nperiod shall be allowed a credit against the taxes and fees required to\nbe reported on, and paid with, such return, in an amount as determined\nin paragraph two of this subdivision, but only where such person files\nthe return on or before the filing due date and pays or pays over with\nsuch return the total amount shown on such return (determined with\nregard to this subdivision); provided, however, that no credit pursuant\nto this subdivision shall be allowed for any person who files or is\nrequired to file a return pursuant to paragraph two of subdivision (a)\nof section eleven hundred thirty-six of this part or any person who pays\nor is required to pay tax pursuant to section ten of this chapter.\n (2) The amount of the credit authorized by paragraph one of this\nsubdivision shall be five percent of the amount of taxes and fees (but\nnot including any penalty or interest thereon) required to be reported\non, and paid or paid over with, the return but only if the return is\nfiled on or before the filing due date, but not more than two hundred\ndollars, for each quarterly or longer period, except that, with respect\nto returns required to be filed for quarterly or longer periods ending\non or before the last day of February, two thousand seven, the amount of\nthe credit shall be not more than one hundred seventy-five dollars for\neach such quarterly or longer period.\n (3) Notwithstanding any other provision of law: The credit afforded by\nthis subdivision shall be taken only on the return for the quarterly or\nlonger period to which the credit applies. No refund, carryforward or\ncarryback of any credit, or any interest thereon, and no application for\ncredit or refund of any tax, penalty or interest shall be allowed or\npaid under this subdivision. No claim for credit may be filed or allowed\nunder this subdivision other than with the original return for such\nperiod and any later claim, whether sought to be taken on an amended\nreturn or otherwise, shall be void and any allowance erroneous. The\ncommissioner may, on the commissioner's own motion, correct any\nerroneous disallowance of the credit provided by this subdivision.\n (4) Notwithstanding any other provision of law: The credit authorized\nby this subdivision shall be computed with reference to state and local\ntaxes and fees described in paragraph two of this subdivision, but shall\nbe charged and allowed only against revenues from taxes imposed by\nsections eleven hundred five and eleven hundred ten of this article. The\ncommissioner shall account for the aggregate amounts of such credits\nmonthly in accordance with the schedule for certifications to the state\ncomptroller in section twelve hundred sixty-one of this chapter. Such\naggregate monthly amounts of credits shall be netted against revenues\nfrom the taxes under such sections eleven hundred five and eleven\nhundred ten, to ensure that revenues from the taxes and fees imposed by\nother sections of law or by counties, cities and school districts\npursuant to the authority of article twenty-nine of this chapter are not\nreduced and are deposited as provided with respect to the taxes and fees\nimposed by such other sections or as provided in such article\ntwenty-nine of this chapter with respect to taxes of counties, cities\nand school districts. Any overpayment or underpayment of revenues of a\ncounty, city or school district or of revenues from another tax or fee,\non account of the allowance of credits under this subdivision, shall be\nadjusted in the manner described in subdivision (c) of such section\ntwelve hundred sixty-one of this chapter. The credit authorized by this\nsubdivision shall not be incorporated into article twenty-nine of this\nchapter or into local laws, ordinances or resolutions enacted pursuant\nto the authority of such article twenty-nine of this chapter.\n (5) (i) Where a person takes a credit pursuant to this subdivision in\nan amount greater than allowed or under circumstances where the credit\nis not authorized, or (ii) where a person takes a credit pursuant to\nthis subdivision at the time of filing a return for a quarterly or\nlonger period and such person later becomes subject to a penalty imposed\nunder subparagraph (vi) of paragraph one of subdivision (a) or under\nparagraph two of subdivision (a) of section eleven hundred forty-five of\nthis part or is later found guilty of a crime or offense under section\neighteen hundred three, eighteen hundred four, eighteen hundred five,\neighteen hundred six, or eighteen hundred seventeen of this chapter,\nrelating to the period for which the return was filed, the amount of\nsuch credit taken in such greater amount, under such circumstances or\nfor such period shall be disallowed and the person shall be required to\npay, as tax, an amount equal to the credit so taken, at such time and in\nsuch manner as prescribed by the commissioner; provided, however, that\nsuch amount shall be paid and disposed of in the same manner as other\nrevenues from this article, and may be determined, assessed, collected\nand enforced in the same manner as the tax imposed by this article.\n