§ 481 — Penalties and interest

§ 481. Penalties and interest. 1. (a)(i)(A) An agent or distributor or\nother person treated as a distributor pursuant to section four hundred\nseventy-one-d who or which fails to file a return or to pay any tax\nwithin the time required by or pursuant to this article (determined with\nregard to any extension of time for filing or paying) shall be subject\nto a penalty of ten per centum of the amount of tax determined to be due\nas provided in this article plus one per centum of such amount for each\nmonth or fraction thereof during which such failure continues after the\nexpiration of the first month after such return was required to be filed\nor such tax became due, not exceeding thirty per centum in the\naggregate.\n (B) If a tax on cigarettes or on tobacco products under this article\nis not paid when due by any other person, the person liable for the\npayment of such tax shall be subject to a penalty of fifty per centum of\nthe amount of such tax determined to be due as provided in this article\nplus one per centum of such amount for each month or fraction thereof\nduring which such failure to pay continues after the expiration of the\nfirst month after such tax became due.\n (C) In the case of a failure to file such return within sixty days of\nthe date prescribed for filing of such return by or pursuant to this\narticle (determined with regard to any extension of time for filing),\nthe penalty imposed by this paragraph shall not be less than the lesser\nof one hundred dollars or one hundred per centum of the amount required\nto be shown as tax on such return. For the purpose of the preceding\nsentence, the amount of tax required to be shown on the return shall be\nreduced by the amount of any part of the tax which is paid on or before\nthe date prescribed for payment of the tax and by the amount of any\ncredit against the tax which may be claimed upon the return.\n (ii) If any amount of tax is not paid on or before the last date\nprescribed in this article for payment, interest on such amount at the\nunderpayment rate set by the commissioner of taxation and finance\npursuant to subdivision twenty-sixth of section one hundred seventy-one\nof this chapter shall be paid for the period from such last date to the\ndate paid, whether or not any extension of time for payment was granted.\nInterest under this subparagraph shall not be paid if the amount thereof\nis less than one dollar.\n (iii) If the tax commission determines that such failure or delay was\ndue to reasonable cause and not due to willful neglect, it shall remit\nall or part of such penalty. The tax commission shall promulgate rules\nand regulations as to what constitutes reasonable cause.\n (iv) If the failure to pay any tax within the time required by or\npursuant to this article is due to fraud, in lieu of the penalties and\ninterest provided for in subparagraphs (i) and (ii) of this paragraph,\nthere shall be added to the tax (A) a penalty of two times the amount of\ntax due, plus (B) interest on such unpaid tax at the underpayment rate\nset by the commissioner of taxation and finance pursuant to subdivision\ntwenty-sixth of section one hundred seventy-one of this chapter for the\nperiod beginning on the last day prescribed by this article for the\npayment of such tax (determined without regard to any extension of time\nfor paying) and ending on the day on which such tax is paid.\n (v) The penalties and interest provided for in this paragraph shall be\ndetermined, assessed, collected and paid in the same manner as the taxes\nimposed by this article and shall be disposed of as hereinafter provided\nwith respect to moneys derived from the tax. Interest under this\nparagraph shall be compounded daily.\n (b) (i) In addition to any other penalty imposed by this article, the\ncommissioner may (A) impose a penalty of not more than six hundred\ndollars for each two hundred cigarettes, or fraction thereof, in excess\nof one thousand cigarettes in unstamped or unlawfully stamped packages\nin the possession or under the control of any person or (B) impose a\npenalty of not more than two hundred dollars for each ten unaffixed\nfalse, altered or counterfeit cigarette tax stamps, imprints or\nimpressions, or fraction thereof, in the possession or under the control\nof any person. In addition, the commissioner may impose a penalty of not\nmore than seventy-five dollars for each fifty cigars or one pound of\ntobacco, or fraction thereof, in excess of two hundred fifty cigars or\nfive pounds of tobacco in the possession or under the control of any\nperson and a penalty of not more than one hundred fifty dollars for each\nfifty cigars or pound of tobacco, or fraction thereof, in excess of five\nhundred cigars or ten pounds of tobacco in the possession or under the\ncontrol of any person, with respect to which the tobacco products tax\nhas not been paid or assumed by a distributor or tobacco products\ndealer; provided, however, that any such penalty imposed shall not\nexceed seven thousand five hundred dollars in the aggregate. The\ncommissioner may impose a penalty of not more than seventy-five dollars\nfor each fifty cigars or one pound of tobacco, or fraction thereof, in\nexcess of fifty cigars or one pound of tobacco in the possession or\nunder the control of any tobacco products dealer or distributor\nappointed by the commissioner, and a penalty of not more than one\nhundred fifty dollars for each fifty cigars or pound of tobacco, or\nfraction thereof, in excess of two hundred fifty cigars or five pounds\nof tobacco in the possession or under the control of any such dealer or\ndistributor, with respect to which the tobacco products tax has not been\npaid or assumed by a distributor or a tobacco products dealer; provided,\nhowever, that any such penalty imposed shall not exceed fifteen thousand\ndollars in the aggregate.\n (ii) The penalties imposed by this subparagraph may be imposed by the\ncommissioner in addition to any other penalty imposed by this article,\nbut in lieu of the penalties imposed by subparagraph (i) of this\nparagraph:\n (A)(I)(1) not less than thirty dollars but not more than two hundred\ndollars for each two hundred cigarettes, or fraction thereof, in excess\nof one thousand cigarettes but less than or equal to five thousand\ncigarettes in unstamped or unlawfully stamped packages knowingly in the\npossession or knowingly under the control of any person or (2) not less\nthan thirty dollars but not more than two hundred dollars for each ten\nunaffixed false, altered or counterfeit cigarette tax stamps, imprints\nor impressions, or fraction thereof, less than or equal to two hundred\nfifty unaffixed false, altered or counterfeit cigarette tax stamps,\nimprints or impressions, knowingly in the possession or knowing under\nthe control of any person;\n (II)(1) not less than seventy-five dollars but not more than two\nhundred dollars for each two hundred cigarettes, or fraction thereof, in\nexcess of five thousand cigarettes but less than or equal to twenty\nthousand cigarettes in unstamped or unlawfully stamped packages\nknowingly in the possession or knowingly under the control of any person\nor (2) not less than seventy-five dollars but not more than two hundred\ndollars for each ten unaffixed false, altered or counterfeit cigarette\ntax stamps, imprints or impressions, or fraction thereof, in excess of\ntwo hundred fifty unaffixed false, altered or counterfeit cigarette tax\nstamps, imprints or impressions but less than or equal to one thousand\nunaffixed false, altered or counterfeit cigarette tax stamps, imprints\nor impressions, knowingly in the possession or knowingly under the\ncontrol of any person; and\n (III)(1) not less than one hundred dollars but not more than two\nhundred dollars for each two hundred cigarettes, or fraction thereof, in\nexcess of twenty thousand cigarettes in unstamped or unlawfully stamped\npackages, knowingly in the possession or knowingly under the control of\nany person or (2) not less than one hundred dollars but not more than\ntwo hundred dollars for each ten unaffixed false, altered or counterfeit\ncigarette tax stamps, imprints or impressions, or fraction thereof, in\nexcess of one thousand unaffixed false, altered or counterfeit cigarette\ntax stamps, imprints or impressions, knowingly in the possession or\nknowingly under the control of any person.\n (B)(I) not less than twenty-five dollars but not more than one hundred\ndollars for each fifty cigars or one pound of tobacco, or fraction\nthereof, in excess of two hundred fifty cigars or five pounds of tobacco\nknowingly in the possession or knowingly under the control of any\nperson, with respect to which the tobacco products tax has not been paid\nor assumed by a distributor or tobacco products dealer; and\n (II) not less than fifty dollars but not more than two hundred dollars\nfor each fifty cigars or pound of tobacco, or fraction thereof, in\nexcess of five hundred cigars or ten pounds of tobacco knowingly in the\npossession or knowingly under the control of any person, with respect to\nwhich the tobacco products tax has not been paid or assumed by a\ndistributor or tobacco products dealer; provided, however, that any such\npenalty imposed under this clause shall not exceed ten thousand dollars\nin the aggregate.\n (C)(I) not less than twenty-five dollars but not more than one hundred\ndollars for each fifty cigars or one pound of tobacco, or fraction\nthereof, in excess of fifty cigars or one pound of tobacco knowingly in\nthe possession or knowingly under the control of any person, with\nrespect to which the tobacco products tax has not been paid or assumed\nby a distributor or tobacco products dealer; and\n (II) not less than fifty dollars but not more than two hundred dollars\nfor each fifty cigars or pound of tobacco, or fraction thereof, in\nexcess of two hundred fifty cigars or five pounds of tobacco knowingly\nin the possession or knowingly under the control of any person, with\nrespect to which the tobacco products tax has not been paid or assumed\nby a distributor or a tobacco products dealer; provided, however, that\nany such penalty imposed under this clause shall not exceed twenty\nthousand dollars in the aggregate.\n (iii) Any penalty provided for in this paragraph shall be determined\nas provided in section four hundred seventy-eight of this chapter, and\nmay be reviewed only pursuant to such section. Such penalty shall be\ncollected in the same manner as the taxes imposed by this article. The\ncommissioner in the commissioner's discretion, may remit all or part of\nsuch penalty. Such penalty shall be paid to the department and disposed\nof as hereinafter provided with respect to moneys derived from the tax.\n (c) In addition to any other penalties that may be imposed by law, the\ncommissioner may impose a civil penalty not to exceed five thousand\ndollars against any tobacco product manufacturer or cigarette tax agent\nwho violates the provisions of section four hundred eighty-b of this\narticle, including but not limited to the filing of a false\ncertification, and may seek to suspend or cancel any license,\nregistration or appointment which has been issued to such person\npursuant to this chapter.\n (d) In addition to any other penalties that may be imposed by law, the\ncommissioner may impose a civil penalty not to exceed five thousand\ndollars against any tobacco product manufacturer or distributor who\nviolates the provisions of section four hundred eighty-c of this\narticle, including but not limited to the filing of a false\ncertification, and may seek to suspend or cancel any license,\nregistration or appointment that has been issued to the tobacco product\nmanufacturer or distributor under this chapter.\n 2. (a) The possession within this state of more than four hundred\ncigarettes in unstamped or unlawfully stamped packages or more than two\nhundred fifty cigars, or more than five pounds of tobacco other than\nroll-your-own tobacco, or more than thirty-six ounces of roll-your-own\ntobacco by any person other than an agent or distributor, as the case\nmay be, at any one time shall be presumptive evidence that such\ncigarettes or tobacco products are subject to tax as provided by this\narticle.\n (b) Nothing in this section shall apply to common or contract carriers\nor warehousemen while engaged in lawfully transporting or storing\ntobacco products or unstamped packages of cigarettes as merchandise, nor\nto any employee of such carrier or warehouseman acting within the scope\nof his employment, nor to public officers or employees in the\nperformance of their official duties requiring possession or control of\ntobacco products or unstamped or unlawfully stamped packages of\ncigarettes, nor to temporary incidental possession by employees or\nagents of persons lawfully entitled to possession, nor to persons whose\npossession is for the purpose of aiding police officers in performing\ntheir duties.\n 3. For purposes of this chapter, the certificate of the commissioner\nof taxation and finance to the effect that a tax or fee imposed by this\narticle has not been paid, that a return required by or under the\nprovisions of this article has not been filed, or that information has\nnot been supplied, as required by or under the provisions of this\narticle, or that a bond or other security required by or pursuant to the\nprovisions of this article has not been filed, or that books, accounts,\nrecords, memoranda, documents or papers have not been supplied as\nrequired by or pursuant to the authority of this article, or that a\nretail dealer or vending machine owner or operator is not currently or\nvalidly registered as required by this article shall be prima facie\nevidence that such tax or fee has not been paid, such return not filed,\nsuch information not supplied, such bond or other security not filed,\nthat such books, accounts, records, memoranda, documents or papers have\nnot been supplied, or that such retail dealer or vending machine owner\nor operator is not currently or validly registered.\n 4. Cross-reference: For criminal penalties, see article thirty-seven\nof this chapter.\n