§ 283-A — Licensing of importing transporters

§ 283-a. Licensing of importing transporters. 1. The department, upon\nthe application of a person who transports motor fuel, shall license\nsuch person as an importing transporter or exporting transporter, as the\ncase may be, under this article except as provided in subdivisions two\nand five of this section. The application shall be in a form and contain\nsuch data as the department shall prescribe. No person, unless licensed\nas an importing transporter, shall transport motor fuel in the state\nwhere such motor fuel is being imported into the state for use,\ndistribution, storage or sale in the state. No person, unless licensed\nas an exporting transporter, shall transport motor fuel in this state\nwhere such motor fuel is being exported from a point in this state to\nwithout this state.\n 2. Where a person files an application for licensing under this\nsection and in considering such application the commissioner ascertains\nthat (a) any tax imposed under this chapter or any related statute as\ndefined in section eighteen hundred of this chapter has been finally\ndetermined to be due from such applicant or from any officer, director\nor partner of such applicant, shareholder directly or indirectly owning\nmore than ten percent of the number of shares of stock of such applicant\n(where such applicant is a corporation) entitling the holder thereof to\nvote for the election of directors or trustees, or any shareholder or\nemployee of such applicant under a duty to file a return under or\npursuant to the authority of this article or pay the taxes imposed by or\npursuant to the authority of this article on behalf of such applicant,\nand has not been paid in full, (b) a liability for the penalty provided\nfor under subdivision two of section two hundred eighty-nine-b of this\narticle has been finally determined to be due from an officer, director,\nshareholder directly or indirectly owning more than ten percent of the\nnumber of shares of stock of such applicant (where such applicant is a\ncorporation) entitling the holder thereof to vote for the election of\ndirectors or trustees, employee or partner of such applicant or a\nshareholder of such applicant under a duty to file a return under or\npursuant to the authority of this article or pay the taxes imposed by or\npursuant to the authority of this article on behalf of such applicant,\nand has not been paid in full, (c) such applicant has been convicted of\na crime provided for in this chapter or has been convicted under the tax\nlaws or penal laws of any other state, or a political subdivision of\nthis state or such other state, or of the United States of a criminal\noffense which, if committed and prosecuted in this state, would\nconstitute a similar crime under this chapter, within the preceding five\nyears, (d) an officer, director or partner of such applicant, a\nshareholder directly or indirectly owning more than ten percent of the\nnumber of shares of stock of such applicant (where such applicant is a\ncorporation) entitling the holder thereof to vote for the election of\ndirectors or trustees, or an employee or shareholder of such applicant\nwho, as such employee or shareholder, is under a duty to file a return\nunder or pursuant to the authority of this article or pay the taxes\nimposed by or pursuant to the authority of this article on behalf of\nsuch applicant, has been convicted of a crime provided for in this\nchapter or has been convicted under the tax laws or penal laws of any\nother state, or a political subdivision of this state or such other\nstate, or of the United States of a criminal offense which, if committed\nand prosecuted in this state, would constitute a similar crime under\nthis chapter, within the preceding five years, or an employee of such\napplicant was, in his capacity as a person under a duty to file a return\nunder or pursuant to the authority of this article or pay the taxes\nimposed by or pursuant to the authority of this article on behalf of any\nperson, convicted of a crime provided for in this chapter or has been\nconvicted under the tax laws or penal laws of any other state, or a\npolitical subdivision of this state or such other state, or of the\nUnited States of a criminal offense which, if committed and prosecuted\nin this state, would constitute a similar crime under this chapter,\nwithin the preceding five years, (e) such applicant, or an officer,\ndirector or partner of such applicant, shareholder directly or\nindirectly owning more than ten percent of the number of shares of stock\nof such applicant (where such applicant is a corporation) entitling the\nholder thereof to vote for the election of directors or trustees, or\nemployee or shareholder of such applicant under a duty to file a return\nunder or pursuant to the authority of this article or to pay the taxes\nimposed by or pursuant to the authority of this article on behalf of\nsuch applicant, who was an officer, director or partner of another\nperson, or who directly or indirectly owned more than ten percent of the\nnumber of shares of stock of another person (where such other person is\na corporation) entitling the holder thereof to vote for the election of\ndirectors or trustees, or who was an employee or shareholder of another\nperson under a duty to file a return under or pursuant to the authority\nof this article or pay the taxes imposed by or pursuant to the authority\nof this article on behalf of such other person at the time any tax\nimposed under this chapter or any related statute as defined in section\neighteen hundred of this chapter was finally determined to be due from\nsuch other person and where such tax has not been paid in full, or at\nthe time such other person was convicted of a crime provided for in this\nchapter or has been convicted under the tax laws or penal laws of any\nother state, or a political subdivision of this state or such other\nstate, or of the United State of a criminal offense which, if committed\nand prosecuted in this state, would constitute a similar crime under\nthis chapter, within the preceding five years or at the time the license\nof such other person was cancelled or suspended pursuant to subdivision\nfour of this section within the preceding five years, or at the time\nsuch other person committed any of the acts or omissions which are, or\nwas convicted as, specified in subdivision four of this section within\nthe preceding five years, provided, however, where an applicant or such\nofficer, director, partner, shareholder or employee of such applicant\nwas only an employee of another person, the applicable examination of\ntax payment history of such other person shall be limited to the taxes\nimposed by this article or by or pursuant to article twenty-eight or\ntwenty-nine of this chapter with respect to motor fuel and the\napplicable examination of prior criminal convictions shall be limited to\nthose which relate to motor fuel, (f) the license of such applicant or\nof an officer, director or partner of such applicant, shareholder\ndirectly or indirectly owning more than ten percent of the number of\nshares of stock of such applicant (where such applicant is a\ncorporation) entitling the holder thereof to vote for the election of\ndirectors or trustees, or employee or shareholder of such applicant\nunder a duty to file a return under or pursuant to the authority of this\narticle or to pay the taxes imposed by or pursuant to the authority of\nthis article on behalf of such applicant has been cancelled or suspended\npursuant to subdivision four of this section within the preceding five\nyears, or (g) the applicant, an officer, director or partner of the\napplicant, a shareholder directly or indirectly owning more than ten\npercent of the number of shares of stock of such applicant (where such\napplicant is a corporation) entitling the holder thereof to vote for the\nelection of directors or trustees, or an employee or shareholder of such\napplicant under a duty to file a return under or pursuant to the\nauthority of this article or to pay the taxes imposed by or pursuant to\nthe authority of this article on behalf of the applicant, has committed\nany of the acts or omissions which are, or was convicted as, specified\nin subdivision four of this section within the preceding five years, the\ncommissioner may refuse to register such applicant.\n 3. The commissioner may require a transporter seeking licensing to\nfile with the department a bond issued by a surety company approved by\nthe superintendent of financial services as to solvency and\nresponsibility and authorized to transact business in this state or\nother security acceptable to the commissioner, in such amount as the\ncommissioner may fix, in an amount determined in accordance with rules\nand regulations prescribed by the commissioner, to secure the\nperformance by such transporter of the duties and responsibilities\nrequired (i) pursuant to this article and (ii) pursuant to articles\ntwenty-eight and twenty-nine of this chapter with respect to motor fuel.\nThe commissioner may require that such a bond or other security be filed\nbefore a transporter is licensed, and the amount thereof may be\nincreased at any time when in the commissioner's judgment the same is\nnecessary. If securities are deposited as security under this\nsubdivision, such securities shall be kept in the joint custody of the\ncomptroller and the commissioner and may be sold by the commissioner if\nit becomes necessary so to do in order to recover against such\ntransporter but no such sale shall be had until after such transporter\nshall have had opportunity to litigate the validity of the liability if\nit elects so to do. Upon any such sale the surplus, if any, above the\nsums due shall be returned to such transporter. The department, when\nauthorized by the transporter, shall furnish information regarding the\ntransporter's license and any other information which the transporter\nauthorizes it to disclose.\n 4. The license of any importing or exporting transporter may be\ncancelled or suspended by the commissioner where a licensee, or an\nofficer, director, shareholder, employee or partner of the licensee who\nas such officer, director, shareholder, employee or partner is under a\nduty to act for such licensee or any shareholder directly or indirectly\nowning more than ten percent of the number of shares of stock of the\nlicensee (where such licensee is a corporation) entitling the holder\nthereof to vote for the election of directors or trustees of such\nlicensee, fails to file a bond or other security when required or when\nthe amount thereof is increased, or fails to comply with any of the\nprovisions of this article or article twenty-eight of this chapter with\nrespect to motor fuel or any rule or regulation with respect to motor\nfuel adopted pursuant to such articles by the department or by the\ncommissioner, or knowingly aids and abets another person in violating\nany of the provisions of such articles or of any such rule or regulation\nwith respect to motor fuel, or transfers its license as an importing\ntransporter or exporting transporter. A license may also be cancelled or\nsuspended if the commissioner determines that a licensee or an officer,\ndirector, shareholder, employee or partner of the licensee who as such\nofficer, director, shareholder, employee or partner is under a duty to\nact for such licensee or any shareholder directly or indirectly owning\nmore than ten percent of the number of shares of stock of the licensee\n(where such licensee is a corporation) entitling the holder thereof to\nvote for the election of directors or trustees of such licensee:\n (i) commits fraud or deceit in his operations as a transporter or has\ncommitted fraud or deceit in procuring his license;\n (ii) has been convicted in a court of competent jurisdiction, either\nwithin or without the state, of a felony, as defined under subdivision\neight of section two hundred eighty-three of this article, bearing on\nsuch transporter's duties and obligations under this chapter;\n (iii) has knowingly aided and abetted a person who is not registered\nas a distributor in the importation, production, refining, manufacture\nor compounding of motor fuel; or\n (iv) has knowingly aided and abetted the distribution of motor fuel\nimported, caused to be imported, produced, refined, manufactured or\ncompounded by a distributor who is not registered by the department.\n A license may also be cancelled or suspended if the commissioner\ndetermines that a licensee or an officer, director, shareholder,\nemployee or partner of the licensee who as such officer, director,\nshareholder, employee or partner is under a duty to act for such\nlicensee or any shareholder directly or indirectly owning more than ten\npercent of the number of shares of stock of the licensee (where such\nlicensee is a corporation) entitling the holder thereof to vote for the\nelection of directors or trustees of such licensee, was an officer,\ndirector, shareholder, employee or partner of another person who as such\nofficer, director, shareholder, employee or partner was under a duty to\nact for such other person or was a shareholder directly or indirectly\nowning more than ten percent of the number of shares of stock of such\nother person (where such other person is a corporation) entitling the\nholder thereof to vote for the election of directors or trustees of such\nother person at the time such other person committed any of the acts or\nomissions which are, or was convicted as, specified in this subdivision\nwithin the preceding five years.\n 5. A license shall not be cancelled or suspended nor shall an\napplication for a license be refused unless the licensee or applicant\nfor a license has had an opportunity for a hearing, provided, however,\nthat an application for a license may be denied without a prior hearing.\nProvided, further, a license may be cancelled or suspended without a\nprior hearing, for failure to file a return or report within ten days of\nthe date prescribed for filing under this article or for nonpayment of\nany sums due pursuant to this article or article twenty-eight or\ntwenty-nine of this chapter with respect to motor fuel if the licensee\nshall have failed to file such return or report or pay such sums within\nten days after the date the demand therefor is sent by registered or\ncertified mail to the address of the transporter given in his\napplication for a license, or an address substituted therefor as in this\nsubdivision. A license may also be cancelled or suspended prior to a\nhearing for the failure to continue to maintain in full force and effect\nat all times the bond or other security filed with the commissioner.\nProvided, however, if a surety bond is cancelled prior to expiration,\nthe commissioner, after considering all the relevant circumstances, may\nmake such other arrangements and require the filing of such other bond\nor other security as the commissioner deems appropriate. Provided,\nfurther, a license may be cancelled or suspended prior to a hearing for\nthe transfer of such license. A transporter shall immediately inform the\ndepartment, in writing, of any change in its address and, if the\ntransporter is a corporation or partnership, the transporter shall\nimmediately inform the department, in writing, of any change in its\nofficers, directors or partners or their residence addresses as shown in\nits application for a license.\n 6. The provisions of subdivisions six, eight, nine and ten of section\ntwo hundred eighty-three of this article shall apply to the provisions\nof this section in the same manner and with the same force and effect as\nif the language of these subdivisions had been incorporated in full into\nthis section and had expressly referred to the importing transporter's\nlicense or the exporting transporter's license under this section,\nexcept to the extent that any such provision is either inconsistent with\na provision of this section or is not relevant to this section.\n