§ 1142-A — Special requirements relating to the service of providing parking, garaging or storing for motor vehicles

§ 1142-A. Special requirements relating to the service of providing\nparking, garaging or storing for motor vehicles. (a) Every person\nrequired to collect the taxes described in paragraph six of subdivision\n(c) of section eleven hundred five, subdivision (c) of section eleven\nhundred seven and paragraph one of subdivision (a) of section twelve\nhundred twelve-A of this chapter, or, if the tax described in\nsubdivision (c) of section eleven hundred seven of this article is not\nin effect, a similar tax imposed pursuant to the authority of\nsubdivision (a) of section twelve hundred ten of this chapter, in a\ncounty with a population density in excess of fifty thousand persons per\nsquare mile in any city in this state having a population of one million\nor more, shall be subject to the requirements set forth in this section,\nexcept as otherwise provided herein.\n (b) Every person described in subdivision (a) of this section shall\nkeep records in addition to the records required to be kept by section\neleven hundred thirty-five of this article. Such additional records\nshall include copies of each ticket or other documentation given to each\npurchaser of such service, which such person shall be required to\nfurnish to each such purchaser at the initiation of such parking,\ngaraging or storing, except as hereinafter provided. Such tickets or\nother documentation shall be consecutively numbered or issued by a\ncomputer, in a manner approved by the commissioner, and shall indicate\nthe date and time of entry of the motor vehicle. The date and time of\nexit of such motor vehicle shall also be indicated on the ticket or\nother documentation (or the copy thereof) retained by such person\ndescribed in subdivision (a) of this section except where such person\ncharges a flat fee for any such service based on time elapsed, the price\nfor such service is indicated on the ticket or other memorandum as a\nflat fee and it is not the practice of such person to date- and\ntime-stamp the ticket or other documentation when the purchaser pays for\nsuch service for which a flat fee is charged. In the case of a monthly\nor longer term purchaser to whom such a ticket or other documentation is\nissued, such ticket or other documentation shall include such\npurchaser's (1) printed name and signature or (2) identification number\nassigned to such purchaser by such person required to collect tax.\nProvided, however, that where such person required to collect tax sells\nsuch service on a monthly or longer term basis and issues a computer\naccess card or a prenumbered decal or tag to the purchaser, then such\nperson shall not be required to give such a ticket or such other\ndocumentation to any such purchaser to whom such card, decal or tag has\nbeen issued, or to retain copies thereof. Such person required to\ncollect tax shall retain a list containing the name, address and\nsignature of each monthly or other longer-term purchaser of service, the\nvalid period of such monthly or longer-term service, and the number of\nauthorized vehicles entitled to such parking services, without regard to\nwhether a ticket or other documentation is issued to such purchaser.\n (c) Such persons required to collect tax, described in subdivision (a)\nof this section, shall file, together with, and as a part of, the\nreturns required under sections eleven hundred thirty-six and twelve\nhundred fifty-one of this chapter, a report or schedule, or make a\nseparate entry thereon, in the discretion of the commissioner, for each\nseparate garage, parking lot or other place of business where such\nperson provides parking, garaging or storing services in such a county.\nSuch report or schedule shall not include any receipts from any garage,\nparking lot or other place of business located outside such a county.\nSuch report or schedule shall identify the specific location and\naddress, and licensed capacity if licensed, of each such garage, parking\nlot or other place of business. If such garage, parking lot or other\nplace of business has been licensed by an agency of a city, the report\nor schedule shall include any applicable license number. Such report or\nschedule shall include for each monthly period included therein such\nschedules of additional information, data and other matters as shall be\nprescribed by the commissioner of taxation and finance. Such returns\nrequired under sections eleven hundred thirty-six and twelve hundred\nfifty-one for such persons described in subdivision (a) of this section\nshall be deemed incomplete and not filed unless the separate information\nrequired to be reported for each separate garage, parking lot or other\nplace of business is contained therein.\n (d) Upon the arrival of the commissioner, or any authorized employee\nof the department or agent of such commissioner or such department, at\nthe premises of a person required to collect tax, described in\nsubdivision (a) of this section, the announcing by such commissioner,\nagent or employee of his or her presence and the display of his or her\nidentification to such person or to any officer or employee of such\nperson, such commissioner, employee or agent may, during the hours that\nsuch premises are open for business, enter and walk about the portion of\nthe premises in such a county where such person required to collect tax\nprovides such service of parking, garaging or storing for motor\nvehicles. Such person and the officers and employees of such persons\nshall not interfere with the commissioner or such employee or agent when\nsuch commissioner, employee or agent enters and walks about such\npremises to observe or record the make, model and license plate number\nof any vehicle parked, entering, exiting or being operated within such\npremises, the length of time such vehicle is on such premises, the true\nmotor vehicle capacity of the premises, and the series of tickets or\nother memoranda, and their numbers, being issued at the time of the\nobservation or recording. Such entering and walking about and such\nobservation and recording are to be performed only in connection with an\nexamination of a return, report or schedule, or entry thereon, of such\nperson required to be filed under or pursuant to articles twenty-eight\nand twenty-nine of this chapter or in connection with the liability of\nsuch person for tax required to be shown on such return, report or\nschedule, or during the consideration of the initiation of such an\nexamination. Nothing in this section shall authorize or be construed to\nauthorize a forced entry into the premises; a search of the premises,\nwith or without a warrant; the entry into any vehicle or compartment or\ncontainer thereof, whether locked or unlocked; the seizure of any\nperson, property, books, records, documents or other matter or thing; or\nthe use of any information obtained by such observation or recording in\nany civil or criminal proceeding. Provided, however, that: (1) any such\ninformation may be used to assess, determine, fix, collect, enforce or\nadminister any tax, fee, penalty or interest imposed on the person\nrequired to collect tax, described in subdivision (a) of this section,\nunder or pursuant to articles twenty-eight and twenty-nine of this\nchapter; and (2) may be used in the prosecution of any crime or offense\nrelated thereto pursuant to articles twenty-eight and twenty-nine of\nthis chapter or the penal law where such information was obtained either\nas a result of the entry and walking about of an area as to which the\nperson required to collect the tax has no reasonable expectation of\nprivacy or as a result of a lawful investigative procedure other than\nthe entry and walking about authorized pursuant to this subdivision.\nSuch entry and walking about shall be sought and made only during the\nhours that such premises are open for business. The commissioner of\ntaxation and finance, such employee of the department and such agent of\nthe commissioner or such department shall not be required to give notice\nto such person or such person's representative of an intent to enter the\npremises prior to the time that such commissioner, employee or agent\narrives at such person's premises.\n (e) Every person described in subdivision (a) of this section shall,\nupon receipt of a certificate of authority and on an annual basis\nthereafter, provided such person periodically re-registers and remains\nin possession of such certificate of authority, receive from the\ncommissioner a copy of subdivision (d) of this section, a copy of all\nrules and regulations adopted thereunder, and a written explanation of\nthe power of the commissioner of taxation and finance to enter and walk\nabout and the limitations thereon. Provided, however, that absence of\nnotice will not constitute a defense in any proceeding brought under\nthis chapter.\n (f) The commissioner shall prepare, have printed and distribute to\nevery person described in subdivision (a) of this section, a sign or\nposter that provides notice that the premises of such person are subject\nto periodic inspections by the department for purposes of enforcing this\narticle. Such sign or poster must have conspicuous lettering in at least\nseventy-two point bold face type, except that such sign or poster shall\nbe captioned with the word "notice" in at least two inch lettering. Such\nperson shall prominently display such sign or poster in each place of\nbusiness where such person provides parking, garaging or storing\nservices.\n (g) An organization described in subdivision (a) of section eleven\nhundred sixteen of this article shall be exempt from the requirements of\nthis section. Nothing in this subdivision shall be construed to exempt\nany other person from the requirements of this section, whether or not\nsuch other person operates a garage, parking or other place of business\nor sells the services of providing parking, garaging or storing for\nmotor vehicles for or on behalf of such an organization or on the\nproperty of such an organization.\n (h) The failure of any person described in subdivision (a) of this\nsection to keep any of the records required to be kept by such person in\nthe manner provided for any portion of the period during which tax can\nbe determined or the inability of the commissioner or any authorized\nemployee of the department, or agent of either of them, to enter and\nwalk about such person's premises for the purposes described in\nsubdivision (d) of this section due to such person's lack of cooperation\nor interference in affording such entering and walking about for such\npurposes shall be sufficient grounds under subdivision (a) of section\neleven hundred thirty-eight of this article for the commissioner to\nestimate on the basis of such external indices selected by the\ncommissioner the amount of tax that is due from such person.\n (i) The commissioner shall promulgate rules and regulations necessary\nto implement the provisions of this section.\n (j) The commissioner, by regulation, shall establish procedures\ndesigned to require implementation of subdivision (d) of this section in\na manner that will not unreasonably interfere with the operation of the\nperson described in subdivision (a) of this section, with respect to\nsuch person providing the service of parking, garaging or storing of\nmotor vehicles. Such regulations shall take into account reasonable time\nperiods for such commissioner, agent or employee to arrive at the\npremises of such person.\n (k) If a person described in subdivision (a) of this section can\ndemonstrate to the satisfaction of the commissioner that due to the\nlimited annual liability incurred under this article, the provisions of\nthis section create undue hardship for such person, then such person\nshall not be required to comply with the provisions of this section;\nprovided, however, that such person must comply with such other\nrecordkeeping requirements as the commissioner may require. The\ncommissioner shall establish general rules for which such hardship can\nbe claimed.\n