§ 1817 — Sales and compensating use taxes

New York § 1817

• Jurisdiction: New York
• Law TAX: Tax
• Part 3: Other Taxes
• Art. 37: Crimes and Other Offenses, Seizures and Forfeitures

Text

§ 1817. Sales and compensating use taxes.-- (a) Any person required to\nobtain a certificate of authority under section eleven hundred\nthirty-four of this chapter who, without possessing a valid certificate\nof authority, willfully (1) sells tangible personal property or services\nsubject to tax, receives amusement charges or operates a hotel or short\nterm rental unit, (2) purchases or sells tangible personal property for\nresale, or (3) sells petroleum products; and any person who fails to\nsurrender a certificate of authority as required by such article shall\nbe guilty of a misdemeanor.\n (b) Any person required to obtain a certificate of authority under\nsection eleven hundred thirty-four of this chapter who within five years\nafter a determination by the commissioner, pursuant to such section, to\nsuspend, revoke or refuse to issue a certificate of authority has become\nfinal, and without possession of a valid certificate of authority (1)\nsells tangible personal property or services subject to tax, receives\namusement charges or operates a hotel or short term rental unit, (2)\npurchases or sells tangible personal property for resale, or (3) sells\npetroleum products, shall be guilty of a misdemeanor. It shall be an\naffirmative defense that such person performed the acts described in\nthis subdivision without knowledge of such determination. Any person who\nviolates a provision of this subdivision, upon conviction, shall be\nsubject to a fine in any amount authorized by this article, but not less\nthan five hundred dollars, in addition to any other penalty provided by\nlaw.\n (c) Any person who willfully fails to file a notice of a show as\nrequired by article twenty-eight of this chapter or who willfully rents,\nleases or grants a license to use space for a show or operates a show\nwithout obtaining a permit pursuant to paragraph two of subdivision (b)\nof section eleven hundred thirty-four of this chapter shall be guilty of\na misdemeanor.\n (d) Any person (1) who willfully fails to charge separately the tax\nimposed under article twenty-eight of this chapter or to state such tax\nseparately on any bill, statement, memorandum, receipt or other\nstatement issued or employed by him or her upon which the tax is\nrequired to be stated separately as provided in subdivision (a) of\nsection eleven hundred thirty-two of this chapter; or (2) who shall\nrefer or cause reference to be made to such tax in a form or manner\nother than that required by such article twenty-eight, shall be guilty\nof a misdemeanor. Provided however, that a person who has paid the tax\non behalf of a retail purchaser as provided in subdivision (d) of\nsection eleven hundred thirty-three of this chapter shall not be guilty\nof a misdemeanor for failure to separately charge the tax imposed by\nsuch article twenty-eight.\n (e) Any person willfully failing to file a bond or other security or\ndeposit taxes in any banking institution where such filing or deposit is\nrequired pursuant to the provisions of paragraph two or three of\nsubdivision (e) of section eleven hundred thirty-seven of this chapter\nshall be guilty of a misdemeanor.\n (f) Any owner of a filling station who shall willfully and knowingly\nhave in his custody, possession or under his control any motor fuel or\ndiesel motor fuel on which (1) the prepaid tax imposed by section eleven\nhundred two of this chapter has not been assumed or paid by a\ndistributor registered as such under article twelve-A of this chapter or\n(2) the prepaid tax imposed by section eleven hundred two of this\nchapter was required to have been passed through to him and has not been\nincluded in the cost of such fuel to him, shall in either case, be\nguilty of a class E felony. For purposes of this subdivision, such owner\nshall willfully and knowingly have in his custody, possession or under\nhis control any motor fuel or diesel motor fuel on which such tax has\nnot been assumed or paid by a distributor registered as such where such\nowner has knowledge of the requirement that such tax be paid and where,\nto his knowledge, such tax has not been assumed or paid by such\nregistered distributor on such motor fuel or diesel motor fuel. Such\nowner shall willfully and knowingly have in his custody, possession or\nunder his control motor fuel or diesel motor fuel on which such tax is\nrequired to have been passed through to him and has not been included in\nthe cost to him where such owner has knowledge of the requirement that\nsuch tax be passed through and where to his knowledge such tax has not\nbeen so included.\n (g) Any person who willfully fails to keep any records required by\narticle twenty-eight of this chapter shall be guilty of a misdemeanor.\n (h) The penalties provided for in this section shall not preclude\nprosecution pursuant to the penal law with respect to the willful\nfailure of any person to pay over to the state any sales tax imposed by\nsection eleven hundred four, eleven hundred five, eleven hundred seven,\neleven hundred eight or eleven hundred nine of this chapter or by any\nlocal law adopted by any city or county pursuant to article twenty-nine\nof this chapter, whenever such person has been required to collect and\nhas collected any such sales tax. In any such prosecution under the\npenal law, a person who has been required to collect and has collected\nany such tax shall be deemed to have acted in a fiduciary character with\nrespect to the state or a political subdivision thereof, and the tax\ncollected shall be deemed to have been entrusted to such person by the\nstate or a political subdivision thereof.\n (i) Any entertainment promoter who willfully authorizes an\nentertainment vendor, to whom such promoter has either directly or\nindirectly rented, leased, granted a license to use or under any other\narrangement made space available in order for such vendor to make\ntaxable sales of tangible personal property at an entertainment event,\nwithout first requiring such vendor to obtain a certificate of authority\nor who willfully fails to obtain an entertainment promoter certificate\nas required under article twenty-eight of this chapter shall be guilty\nof a misdemeanor.\n (j) Any person described in subdivision (a) of section eleven hundred\nforty-two-A of this chapter who willfully fails to include all\ninformation required under such section on a ticket or other memorandum\nas described in such section shall be guilty of a misdemeanor.\n (k) Any owner of a place of business selling cigarettes at retail who\nshall willfully and knowingly have in such owner's custody or possession\nor under such owner's control any cigarettes on which (1) the prepaid\ntax imposed by section eleven hundred three of this chapter has not been\nassumed or paid by an agent licensed as such under article twenty of\nthis chapter or (2) the prepaid tax imposed by section eleven hundred\nthree of this chapter was required to have been passed through to such\nowner and has not been included in the cost of such cigarettes to such\nowner shall, in either case, be guilty of a misdemeanor. Provided,\nhowever, if the amount of cigarettes is twenty thousand or more, such\nowner shall be guilty of a class E felony. For purposes of this\nsubdivision, such owner shall willfully and knowingly have in such\nowner's custody or possession or under such owner's control any\ncigarettes on which such tax has not been assumed or paid by an agent\nlicensed as such under such article twenty where such owner has\nknowledge of the requirement that such tax be assumed or paid and where,\nto such owner's knowledge, such tax has not been assumed or paid by such\nan agent on such cigarettes. Such owner shall willfully and knowingly\nhave in such owner's custody or possession or under such owner's control\ncigarettes on which such tax is required to have been passed through to\nsuch owner and has not been included in the cost to such owner where\nsuch owner has knowledge of the requirement that such tax be passed\nthrough and where to such owner's knowledge such tax has not been so\nincluded.\n (l) Any person who falsely or fraudulently makes, alters or\ncounterfeits any stamp prescribed by the commissioner under the\nprovisions of article twenty-eight or pursuant to the authority of\narticle twenty-nine of this chapter, or causes or procures to be falsely\nor fraudulently made, altered or counterfeited any such stamp, or\nknowingly and willfully utters, purchases, passes or tenders as true any\nsuch false, altered or counterfeited stamp, or knowingly and willfully\npossesses any cigarettes in packages bearing any such false, altered or\ncounterfeited stamp, and any person who knowingly and willfully makes,\ncauses to be made, purchases or receives any device for forging or\ncounterfeiting any stamp prescribed by the commissioner under the\nprovisions of article twenty-eight or pursuant to the authority of\narticle twenty-nine of this chapter, or who knowingly and willfully\npossesses any such device, shall be guilty of a class E felony. For the\npurposes of this subdivision, the words "stamp prescribed by the\ncommissioner" shall include a stamp, impression or imprint made by a\nmetering machine, the design of which has been approved by the\ncommissioner.\n (m) All of the provisions of this section shall apply for purposes of\nany taxes administered by the commissioner and imposed pursuant to the\nauthority of article twenty-nine of this chapter and for the purposes of\nany taxes imposed by article twenty-eight-A of this chapter. References\nin subdivisions (f), (k), and (l) of this section to taxes imposed by or\npursuant to the authority of article twenty-eight or twenty-nine of this\nchapter include the taxes required to be prepaid pursuant to section\neleven hundred two or eleven hundred three of this chapter.\n (n) (1) Every person engaged in the retail sale of motor fuel and/or\ndiesel motor fuel or a distributor of such fuels, as defined in article\ntwelve-A of this chapter, shall comply with the provisions of section\nthree hundred ninety-two-i of the general business law by reducing the\nprices charged for motor fuel and diesel motor fuel in an amount equal\nto any reduction in taxes prepaid by the distributor or imposed on\nretail customers resulting from computing sales and compensating use\ntaxes at a cents per gallon rate pursuant to the provisions of paragraph\ntwo of subdivision (e) and subdivision (m) of section one thousand one\nhundred eleven of this chapter.\n (2) The commissioner shall monitor the prices charged by persons\nengaged in the retail sale or distribution of motor fuel and diesel\nmotor fuel.\n (3) Upon a finding by the commissioner that a person engaged in the\nretail sale of motor fuel and/or diesel motor fuel or in the\ndistribution of such fuels has violated the provisions of section three\nhundred ninety-two-i of the general business law, the commissioner shall\nprovide notice of such violation to such person and hold a hearing on\nsuch violation, with an opportunity for the accused to be heard, not\nless than ten days after notice is provided. A violation of section\nthree hundred ninety-two-i of the general business law shall subject the\nperson violating such section to a civil penalty of up to five thousand\ndollars for each day such violation occurs.\n