§ 1142 — General powers of the tax commission

New York § 1142

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

Text

§ 1142. General powers of the tax commission. In addition to the\npowers granted to the tax commission in this article, it is hereby\nauthorized and empowered:\n 1. To make, adopt and amend rules and regulations appropriate to the\ncarrying out of this article and the purposes thereof;\n 2. To extend, for cause shown, the time of filing any return or report\nfor a period not exceeding three months; and for cause shown, to remit\npenalties but not interest computed at the rate of six percent per\nannum;\n 3. To delegate its functions hereunder to a deputy commissioner of\ntaxation and finance or any employee or employees of the department of\ntaxation and finance;\n 4. To prescribe methods for determining the amount of receipts,\namusement charges, dues or rents and for determining which of them are\ntaxable and which are nontaxable;\n 5. To require any person required to collect tax to keep detailed\nrecords of all receipts, amusement charges, dues or rents received,\ncharged or accrued, including those claimed to be nontaxable, and also\nof the nature, type, value and amount of all purchases, sales, services\nrendered, admissions, memberships, occupancies, names and addresses of\ncustomers, and other facts relevant in determining the amount of tax due\nand to furnish such information upon request to the tax commission;\n 6. To assess, determine, revise and readjust the taxes imposed by this\narticle;\n 7. To publish and maintain, as it deems necessary, lists of specific\nitems of tangible personal property which are found to be foods and\ndrugs exempt from tax under paragraphs (1) and (3) of section eleven\nhundred fifteen. Assistance and cooperation in the formulation of such\nlists shall be provided by the department of health upon request by the\ntax commission.\n 8. To make such provision as it deems necessary for the joint\nadministration of the state and local taxes imposed by this article and\nauthorized by article twenty-nine of the tax law, including the joint\nreporting, assessment, collection, determination and refund of such\ntaxes, and for that purpose to prescribe by regulation that any of the\ncommission's functions under said articles, and any returns, forms,\nstatements, documents or information to be submitted to the commission\nunder said articles, any books and records to be kept for purposes of\nthe taxes imposed or authorized by said articles, any schedules of\namounts to be collected under said articles, any registration required\nunder said articles, and the payment of taxes under said articles shall\nbe on a joint basis with respect to the taxes imposed by said articles.\n 9. To set the overpayment and underpayment rates of interest for\npurposes of sections eleven hundred thirty-nine and eleven hundred\nforty-five of this part. Such rates shall be the overpayment and\nunderpayment rates of interest set pursuant to subsection (e) of section\none thousand ninety-six of this chapter, but the underpayment rate shall\nnot be less than seven and one-half percent per annum. Any such rates\nset by the commissioner shall apply to taxes, or any portion thereof,\nwhich remain or become due or overpaid on or after the date on which\nsuch rates become effective and shall apply only with respect to\ninterest computed or computable for periods or portions of periods\noccurring in the period during which such rates are in effect. In\ncomputing the amount of any interest required to be paid under this\narticle by the commissioner or by the taxpayer, or any other amount\ndetermined by reference to such amount of interest, such interest and\nsuch amount shall be compounded daily. The preceding sentence shall not\napply for purposes of computing the amount of any interest for failure\nto pay estimated tax under subparagraph (iv) of paragraph one of\nsubdivision (a) of section eleven hundred forty-five of this part.\n 10. To delegate from time to time and in whole or in part, when it\ndeems it to be in the best interests of the state, to the commissioner\nof finance of the city of New York and his employees and agents, and to\nthe county executives of Nassau and Suffolk counties and their employees\nand agents its power to examine the books and records of any person in\nthe city of New York or the counties of Nassau and Suffolk who is\nsubject to the taxes imposed by or required to file returns pursuant to\nthis article; provided, however, that (a) such delegation shall relate\nsolely to examining books and records and not to review, assessment,\nappeal, or any other action taken on the basis of such examination, (b)\nevery examination made pursuant to such delegation shall be conducted in\naccordance with the direction, methods, rules, practices, procedures,\nand regulations of the commissioner of taxation and finance, (c) no\npower shall be delegated to re-examine books and records for periods\npreviously examined by the commissioner of taxation and finance, his\nagents or employees, and (d) such delegation shall limit the county\nexecutives of Nassau and Suffolk counties to examine only those books\nand records of persons within their respective counties.\n 11. To make such provision pursuant to rules and regulations for the\njoint administration, in whole or in part, of the state and local taxes\nimposed by this article and authorized by article twenty-nine of this\nchapter upon the sale of petroleum products and the taxes imposed by\narticle twelve-A of this chapter and authorized to be imposed by such\narticle, including the joint reporting, assessment, collection,\ndetermination and refund of such taxes, and for that purpose to\nprescribe that any of the commissioner's functions under said articles,\nand any returns, forms, statements, documents or information to be\nsubmitted to the commissioner under said articles, any books and records\nto be kept for purposes of the taxes imposed or authorized by said\narticles, any schedules of amounts to be collected under said articles,\nany registration required under said articles, and the payment of taxes\nunder said articles shall be on a joint basis with respect to the taxes\nimposed by said articles.\n 12. To make such provision pursuant to rules and regulations for the\njoint administration, in whole or in part, of the taxes imposed by this\narticle and pursuant to the authority of article twenty-nine of this\nchapter upon the sale or use of cigarettes and the taxes imposed by\narticle twenty of this chapter, including the joint reporting,\nassessment, collection, determination and refund of such taxes, and, for\nthat purpose, to prescribe that any of the commissioner's functions\nunder such articles, any returns, forms, statements, documents or\ninformation to be submitted to the commissioner under such articles, any\nbooks and records required to be kept for purposes of the taxes imposed\nor authorized by such articles, any schedules of amounts to be collected\nunder such articles, any registration required under such articles, and\nthe payment of taxes by stamp, meter impression or otherwise under such\narticles shall be on a joint basis with respect to the taxes imposed or\nauthorized by such articles.\n 13. To authorize a qualified person who is not the vendor with respect\nto a motor vehicle to collect any tax due under this article or pursuant\nto the authority of article twenty-nine of this chapter upon the sale or\nfor the use of such motor vehicle, at the time such person performs the\nfunction of registering such vehicle or accepting an application for a\ncertificate of title of such vehicle. A qualified person is a person (i)\nwho is registered with the commissioner as provided in section eleven\nhundred thirty-four of this article (other than a person who elects to\nfile a certificate of registration under paragraph three of subdivision\n(a) of section eleven hundred thirty-four of this article unless such\nperson agrees to subject itself to the jurisdiction of this state as a\ncondition for issuance of such certificate of registration and for\nauthorization under this subdivision) and (ii) who the commissioner of\nmotor vehicles has certified to the commissioner is a person authorized\nby the commissioner of motor vehicles to perform the function of\nregistering a motor vehicle or accepting an application for a\ncertificate of title of a motor vehicle, pursuant to the authority of\nthe vehicle and traffic law. Where such a qualified person has been so\nauthorized by the commissioner and performs such function or accepts\nsuch an application, (A) such person shall be deemed to be a person\nrequired to collect tax with respect to the sale or use of such motor\nvehicle; (B) such person shall collect the tax as trustee for and on\naccount of the state, in accordance with the provisions of subdivision\n(a) of section eleven hundred thirty-two of this article; (C) such\nperson shall be personally liable for the tax imposed, collected or\nrequired to be collected under this article and pursuant to article\ntwenty-nine of this chapter, as well as any penalty and interest in\nconnection therewith, and for any moneys collected purportedly as tax;\n(D) such person shall be subject to and comply with all the other\nprovisions of this article and article twenty-nine of this chapter and\nof any regulations adopted pursuant thereto, and to all the requirements\nand obligations thereof, and have all the benefits and entitlements, of\na person required to collect tax under this article and pursuant to the\nauthority of such article twenty-nine with respect to such sale or use\nand such tax required to be collected, as if the person were the vendor\nwith respect to such motor vehicle, provided, however, that no person\nqualified under this article shall receive the credit allowed by\nsubdivision (f) of section eleven hundred thirty-seven of this part; (E)\nsuch person shall keep such additional records, provide such additional\ninformation and cooperate with the commissioner, as provided by the\ncommissioner, to ensure the proper collection and remittance of tax\nimposed, collected or required to be collected under this article and\nsuch article twenty-nine; and (F) notwithstanding any provision of law\nto the contrary, such person and any officer, director, manager,\nemployee or agent of such person shall be deemed to be a person who in\nany manner has acquired knowledge of the contents of a return or report\nfiled with the commissioner pursuant to this article and such article\ntwenty-nine, with respect to any information such person or such\nofficer, director, manager, employee or agent acquired in conjunction\nwith performing such function of registering a motor vehicle or\naccepting such an application for a certificate of title; and any such\ninformation so acquired shall be deemed to be the contents of such a\nreturn or report, for purposes of section eleven hundred forty-six of\nthis article. The term "such person" as used in the previous sentence\nshall include any officer, director, manager or employee of such person,\nwho as such officer, director, manager or employee is under a duty to\nact for such person in complying with any requirement of this article or\nsuch article twenty-nine or who is otherwise subject to complying with\nany such requirement of this article or article twenty-nine of this\nchapter and any member of a partnership or limited liability company.\nFor purposes of this subdivision, the term "motor vehicle" shall have\nthe same meaning that such term has for purposes of subdivision (f) of\nsection eleven hundred thirty-two of this article. In order to\neffectuate the authority granted by this paragraph and to enforce and\nadminister the taxes imposed by this article and pursuant to the\nauthority of article twenty-nine of this chapter:\n (a) The commissioner may modify the requirements to file returns and\nto pay or pay over tax or other moneys in section ten of this chapter,\nsections eleven hundred thirty-six and eleven hundred thirty-seven of\nthis article and in such article twenty-nine, with respect to returns\nrequired to be filed under this article or pursuant to article\ntwenty-nine of this chapter and taxes and moneys required to be paid or\npaid over under such sections ten and eleven hundred thirty-seven and\narticle twenty-nine, by qualified persons authorized to collect tax\nunder this subdivision, where the commissioner provides that any class\nof such persons shall pay or pay over such taxes or moneys to the\ncommissioner of motor vehicles as agent of the commissioner.\n (b) Any authorization granted pursuant to the opening paragraph of\nthis subdivision shall be evidenced by a certificate issued by the\ncommissioner and may be for a specified term; and, if such authorization\nis for a specified term, it shall be subject to renewal in accordance\nwith rules promulgated by the commissioner. A qualified person to whom\nthe commissioner has issued such a certificate shall display the\ncertificate prominently at the place where such person performs such\nfunction or accepts such an application.\n (c) In addition to the commissioner's authority in section eleven\nhundred thirty-four of this article, the commissioner may revoke or\nsuspend the authority granted to a qualified person pursuant to this\nsubdivision if such person fails to comply with any requirement of this\narticle or article twenty-nine of this chapter or if the commissioner of\nmotor vehicles advises the commissioner that such person is no longer\ncertified to perform the functions described in the opening paragraph of\nthis subdivision.\n (d) In addition to any other general or specific authority under this\narticle to make, adopt and amend rules, regulations, procedures and\nforms, the commissioner may make, adopt and amend rules, regulations,\nprocedures and forms necessary for the proper administration of this\nsubdivision, to ensure the integrity and qualifications of any person\nseeking authorization under the opening paragraph of this subdivision,\nand to ensure the proper collection, payment over and protection of\ntaxes imposed and revenues to be obtained under this article and\npursuant to the authority of article twenty-nine of this chapter,\ntogether with any related penalties and interest and moneys collected\npurportedly as tax.\n (e) The commissioner of motor vehicles shall cooperate with the\ncommissioner and provide such information and assistance as the\ncommissioner requires, to enable the commissioner to carry out the\ncommissioner's responsibilities under this article, article twenty-nine\nof this chapter and the purposes thereof; and the commissioner of motor\nvehicles shall require a qualified person authorized pursuant to the\nopening paragraph of this subdivision to file with either the\ncommissioner of motor vehicles or the commissioner a bond issued by a\nsurety company authorized to transact business in this state and\napproved by the superintendent of financial services as to solvency and\nresponsibility, or other security acceptable to the commissioner, in\nsuch amounts as the commissioner may fix, to secure the payment or\npayment over of any tax, penalties or interest due or which may become\ndue from such person under this article or pursuant to the authority of\narticle twenty-nine of this chapter, as well as any moneys collected by\nsuch person purportedly as tax imposed by this article or pursuant to\narticle twenty-nine.\n (f) Nothing in this subdivision shall be construed to mean or provide\nthat a person required to collect tax shall not be required to collect\ntax when such person sells a motor vehicle to a purchaser who seeks or\nmay seek to register or submit an application for a certificate of title\nfor such vehicle with another person authorized to collect tax pursuant\nto the opening paragraph of this subdivision. Where a person required to\ncollect tax is the vendor of a motor vehicle, such person must collect\nany tax due from the purchaser without regard to the other provisions of\nthis subdivision.\n 14. To issue a notice to a credit card issuer and, where applicable,\nthe fuel distributor, and any government entity, as such terms are\ndefined in subdivision (h) of section eleven hundred thirty-nine of this\npart, that, as of the date specified by the commissioner in such notice,\nthe credit card issuer or fuel distributor shall no longer be eligible\nto apply for refunds or credit with respect to purchases of motor fuel\nor diesel motor fuel by such government entity, the government entity\nshall no longer be eligible to employ any other credit card issuer or\nfuel distributor pursuant to such subdivision (h) and no such claim for\ncredit or refund will be allowed or paid in accordance with such\nsubdivision (h), where the commissioner has determined that (a) the\nmotor fuel or diesel motor fuel purchased through the use of the credit\ncard issuer's credit card was not for the government entity's own use or\nconsumption or (b) it is necessary for the proper enforcement of this\narticle to issue such notice. The commissioner, in his or her\ndiscretion, may cancel or suspend the operation of such notice where the\ncredit card issuer, fuel distributor, where applicable, and the\ngovernment entity establish, to the commissioner's satisfaction, that\nappropriate steps have been undertaken to rectify the circumstances\nleading to the issuance of such notice. In such case, the commissioner\nwill notify the credit card issuer or fuel distributor, where\napplicable, that the designated person will be eligible to apply for\nrefunds or credits pursuant to subdivision (h) of section eleven hundred\nthirty-nine of this part in accordance with such terms as set forth by\nthe commissioner. Nothing in this subdivision shall be deemed to affect\nthe eligibility of the government entity to claim a refund or credit for\ntax paid on motor fuel or diesel motor fuel it purchased where such\npurchase qualifies for exemption pursuant to paragraph five of\nsubdivision (b) of section eleven hundred sixteen of this article.\nNotwithstanding any other provision of law, if the credit card issuer,\nfuel distributor, where applicable, or government entity disputes any\naspect of the notice issued pursuant to this subdivision:\n (i) the credit card issuer, fuel distributor, where applicable, and\nthe government entity who receive such a notice shall have the right to\nhave the issuance of such notice reviewed by the commissioner or his or\nher designee by contacting the department at a telephone number or an\naddress to be disclosed in the notice within ten days of the recipient's\nreceipt of the notice. The recipient may present written evidence or\narguments in support of its claim, or the recipient may appear at a\nscheduled conference with the commissioner or such designee to present\noral arguments and written and oral evidence in support of such\nposition. The commissioner or such designee is authorized to delay the\neffective date of the notice to enable the recipient to present further\nevidence or arguments in connection with the issuance of the notice. The\ncommissioner or such designee shall cancel the notice if the\ncommissioner or such designee is not satisfied by a preponderance of the\nevidence that the facts underlying such notice do not support the\nissuance of such notice.\n (ii) except as provided for in paragraph (i) of this subdivision, the\ncredit card issuer, fuel distributor or the government entity shall not\nhave any right to a hearing under any other provision of this chapter to\nchallenge the issuance of such notice. Rather, such determination shall\nbe reviewable only by a proceeding under article seventy-eight of the\ncivil practice law and rules, provided, however, that (A) such\nproceeding is commenced within four months of the date the commissioner\nissued such notice or, if such notice is disputed, within four months of\nthe date the commissioner or such designee upholds such notice in whole\nor in part, (B) the credit card issuer, fuel distributor, where\napplicable, and any affected government entity are named as parties to\nthe action, and (C) the only issue which may be considered by such\nreview is whether such notice was within the discretion of the\ncommissioner under this article. Such proceeding shall be instituted in\nAlbany county. Upon the filing of such petition, the court shall have\njurisdiction to set aside such notice or to dismiss the petition. The\njurisdiction of the supreme court shall be exclusive and its order shall\nbe final, subject to review by the appellate division of the supreme\ncourt and the court of appeals in the same manner and form and with the\nsame effect as provided by law for appeal from a judgment in a special\nproceeding. All such proceedings for review shall be heard on the\npetition, transcript and other papers, and on appeal shall be heard on\nthe record, without requirement of printing.\n (15) To publish a list on the department's website of marketplace\nproviders whose certificates of authority have been revoked and, if\nnecessary to protect sales tax revenue, provide by regulation or\notherwise that a marketplace seller who is a vendor will be relieved of\nthe duty to collect tax for sales of tangible personal property\nfacilitated by a marketplace provider only if, in addition to the\nconditions prescribed by paragraph two of subdivision (l) of section\neleven hundred thirty-two of this part being met, such marketplace\nprovider is not on such list at the commencement of the quarterly period\ncovered thereby.\n 16. To publish a list on the department's website regarding booking\nservices that have a valid certificate of authority and, if necessary to\nprotect sales tax revenue, provide by regulation or otherwise that a\nshort term rental unit operator will be relieved of the requirement to\nregister and the duty to collect tax on the rent for occupancy of a\nshort term rental unit facilitated by a booking service only if, in\naddition to the conditions prescribed by paragraph two of subdivision\n(m) of section eleven hundred thirty-two and paragraph six of\nsubdivision (a) of section eleven hundred thirty-four of this part being\nmet, such booking service has a valid certificate of authority at the\ncommencement of the quarterly period covered thereby.\n