§ 1141 — Proceedings to recover tax

New York § 1141

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

Text

§ 1141. Proceedings to recover tax. (a) Whenever any person required\nto collect tax shall fail to collect or pay over any tax, penalty or\ninterest imposed by this article as therein provided, or whenever any\ncustomer shall fail to pay any such tax, penalty or interest, the\nattorney general shall, upon the request of the tax commission, bring or\ncause to be brought an action to enforce the payment of the same on\nbehalf of the state of New York in any court of the state of New York or\nof any other state or of the United States.\n (b) As an additional or alternate remedy, the tax commission may issue\na warrant, directed to the sheriff of any county commanding him to levy\nupon and sell the real and personal property of any person liable for\nthe tax, which may be found within his county, for the payment of the\namount thereof, with any penalties and interest, and the cost of\nexecuting the warrant, and to return such warrant to the tax commission\nand to pay it the money collected by virtue thereof within sixty days\nafter the receipt of such warrant. The sheriff shall within five days\nafter the receipt of the warrant file with the county clerk a copy\nthereof, and thereupon such clerk shall enter in the judgment docket the\nname of the person mentioned in the warrant and the amount of the tax,\npenalties and interest for which the warrant is issued and the date when\nsuch copy is filed. Thereupon the amount of such warrant so docketed\nshall become a lien upon the title to and interest in real and personal\nproperty of the person against whom the warrant is issued. Such lien\nshall not apply to personal property unless such warrant is filed in the\ndepartment of state. The sheriff shall then proceed upon the warrant, in\nthe same manner, and with like effect, as that provided by law in\nrespect to executions issued against property upon judgments of a court\nof record and for services in executing the warrant he shall be entitled\nto the same fees, which he may collect in the same manner. In the\ndiscretion of the tax commission a warrant of like terms, force and\neffect may be issued and directed to any officer or employee of the\ndepartment of taxation and finance, and in the execution thereof such\nofficer or employee shall have all the powers conferred by law upon\nsheriffs, but shall be entitled to no fee or compensation in excess of\nthe actual expenses paid in the performance of such duty. Upon such\nfiling of a copy of a warrant, the tax commission shall have the same\nremedies to enforce the amount due thereunder as if the state had\nrecovered judgment therefor.\n (c) Whenever a person required to collect tax shall make a sale,\ntransfer, or assignment in bulk of any part or the whole of his business\nassets, otherwise than in the ordinary course of business, the\npurchaser, transferee or assignee shall at least ten days before taking\npossession of the subject of said sale, transfer or assignment, or\npaying therefor, notify the tax commission by registered mail of the\nproposed sale and of the price, terms and conditions thereof whether or\nnot the seller, transferrer or assignor, has represented to, or informed\nthe purchaser, transferee or assignee that he owes any tax pursuant to\nthis article, and whether or not the purchaser, transferee, or assignee\nhas knowledge that such taxes are owing, and whether any such taxes are\nin fact owing.\n Whenever the purchaser, transferee or assignee shall fail to give\nnotice to the tax commission as required by the preceding paragraph, or\nwhenever the tax commission shall inform the purchaser, transferee or\nassignee that a possible claim for such tax or taxes exists, any sums of\nmoney, property or choses in action, or other consideration, which the\npurchaser, transferee or assignee is required to transfer over to the\nseller, transferrer or assignor shall be subject to a first priority\nright and lien for any such taxes theretofore or thereafter determined\nto be due from the seller, transferrer or assignor to the state, and the\npurchaser, transferee or assignee is forbidden to transfer to the\nseller, transferrer or assignor any such sums of money, property or\nchoses in action to the extent of the amount of the state's claim.\nWithin ninety days of receipt of the notice of the sale, transfer, or\nassignment from the purchaser, transferee or assignee, the tax\ncommission shall give notice to the purchaser, transferee or assignee\nand to the seller, transferrer, or assignor of the total amount of any\ntax or taxes which the state claims to be due from the seller,\ntransferrer, or assignor to the state, and whenever the tax commission\nshall fail to give such notice to the purchaser, transferee, or assignee\nand the seller, transferrer, or assignor within ninety days from receipt\nof notice of the sale, transfer, or assignment, such failure will\nrelease the purchaser, transferee or assignee from any further\nobligation to withhold any sums of money, property or choses in action,\nor other consideration, which the purchaser, transferee or assignee is\nrequired to transfer over to the seller, transferrer or assignor, except\nthat with respect to pending matters such ninety day periods shall not\nbegin to run until ninety days after the effective date of this\nprovision. For failure to comply with the provisions of this subdivision\nthe purchaser, transferee or assignee, in addition to being subject to\nthe liabilities and remedies imposed under the provisions of article six\nof the uniform commercial code, shall be personally liable for the\npayment to the state of any such taxes theretofore or thereafter\ndetermined to be due to the state from the seller, transferrer or\nassignor, except that the liability of the purchaser, transferee or\nassignee shall be limited to an amount not in excess of the purchase\nprice or fair market value of the business assets sold, transferred or\nassigned to such purchaser, transferee, or assignee, whichever is\nhigher, and such liability may be assessed and enforced in the same\nmanner as the liability for tax under this article. Upon receipt within\nthe ninety days as aforesaid of the notice of the total amount of the\nstate's claim from the tax commission, and demand for payment thereof,\nthe purchaser, transferee or assignee may make payment of such claim to\nthe state from any sums of money, property, or choses in action withheld\nin accord with the provisions of this paragraph, except that such\npayment shall be limited to an amount not in excess of the purchase\nprice or fair market value of the business assets sold, transferred, or\nassigned to such purchaser, transferee, or assignee, whichever is\nhigher, and upon making the payment, such purchaser, transferee, or\nassignee shall be relieved of all liability for such amounts to the\nseller, transferrer, or assignor, and such amounts paid to the state\nshall be deemed satisfaction of the tax liability of the seller,\ntransferrer, or assignor to the extent of the amount of such payment.\n Where the liability of a purchaser, transferee or assignee, for the\npayment to the state of any such taxes determined to be due from the\nseller, transferrer or assignor, has been wholly paid or satisfied or no\nlonger exists, the tax commission shall mail to such purchaser,\ntransferee or assignee a notice, addressed to his last known address,\nsetting forth that such liability has been wholly paid or satisfied or\nno longer exists. The tax commission shall include in such notice the\nfollowing additional information:\n (1) the name and last known address of the purchaser, transferee or\nassignee;\n (2) the amount of the lien paid, satisfied or vacated; and\n (3) a statement to the effect that consumer reporting agencies must\ndelete from a credit file any reference to the particular tax lien\nwithin thirty days of receipt from the purchaser, transferee or assignee\nof such notice. Provided, however, no order or decree in a bankruptcy\nproceeding shall be construed as giving rise to the requirement that the\nnotice provided for in this paragraph be given.\n