N.Y. Environmental Conservation Law § 27-1012: Deposit and disposition of refund values; registration; reports

§ 27-1012. Deposit and disposition of refund values; registration;

reports.

1. Each deposit initiator shall deposit in a refund value account an

amount equal to the refund value initiated under section 27-1005 of this

title which is received with respect to each beverage container sold by

such deposit initiator. Such deposit initiator shall hold the amounts in

the refund value account in trust for the state. A refund value account

shall be an interest-bearing account established in a banking

institution located in this state, the deposits in which are insured by

an agency of the federal government. Deposits of such amounts into the

refund value account shall be made not less frequently than every five

business days. All interest, dividends and returns earned on the refund

value account shall be paid directly into said account. The monies in

such accounts shall be kept separate and apart from all other monies in

the possession of the deposit initiator. The commissioner of taxation

and finance may specify a system of accounts and records to be

maintained with respect to accounts established under this subdivision.

2. Payments of refund values pursuant to section 27-1007 of this title

shall be paid from each deposit initiator's refund value account. No

other payment or withdrawal from such account may be made except as

prescribed by this section.

3. Each deposit initiator shall file quarterly reports with the

commissioner of taxation and finance on a form and in the manner

prescribed by such commissioner. The commissioner of taxation and

finance may require such reports to be filed electronically. The

quarterly reports required by this subdivision shall be filed for the

quarterly periods ending on the last day of May, August, November and

February of each year, and each such report shall be filed within twenty

days after the end of the quarterly period covered thereby. Each such

report shall include all information such commissioner shall determine

appropriate including but not limited to the following information:

a. the balance in the refund value account at the beginning of the

quarter for which the report is prepared;

b. all such deposits credited to the refund value account and all

interest, dividends or returns received on such account, during such

quarter;

c. all withdrawals from the refund value account during such quarter,

including all reimbursements paid pursuant to subdivision two of this

section, all service charges on the account, and all payments made

pursuant to subdivision four of this section; and

d. the balance in the refund value account at the close of such

quarter.

4. a. Quarterly payments. An amount equal to eighty percent of the

balance outstanding in the refund value account at the close of each

quarter shall be paid to the commissioner of taxation and finance at the

time the report provided for in subdivision three of this section is

required to be filed. The commissioner of taxation and finance may

require that the payments be made electronically. The remaining twenty

percent of the balance outstanding at the close of each quarter shall be

the monies of the deposit initiator and may be withdrawn from such

account by the deposit initiator. If the provisions of this section with

respect to such account have not been fully complied with, each deposit

initiator shall pay to such commissioner at such time, in lieu of the

amount described in the preceding sentence, an amount equal to the

balance which would have been outstanding on such date had such

provisions been fully complied with. The commissioner of taxation and

finance may require that the payments be made electronically.

b. Refund value account shortfall. In the event a deposit initiator

pays out more in refund values than it collects in deposits of refund

values during the course of a quarterly period as described in

subdivision three of this section, the deposit initiator may apply to

the commissioner of taxation and finance for a refund of the amount of

such excess payment of refund values from sources other than the refund

value account, in the manner as provided by the commissioner of taxation

and finance. A deposit initiator must apply for a refund no later than

twelve months after the due date for filing the quarterly report for the

quarterly period for which the refund claim is made. No interest shall

be payable for any refund paid pursuant to this paragraph.

c. Final report. A deposit initiator who ceases to do business in this

state as a deposit initiator shall file a final report and remit payment

of eighty percent of all amounts remaining in the refund value account

as of the close of the deposit initiator's last day of business. The

commissioner of taxation and finance may require that the payments be

made electronically. The deposit initiator shall indicate on the report

that it is a "final report". The final report is due to be filed with

payment twenty days after the close of the quarterly period in which the

deposit initiator ceases to do business. In the event the deposit

initiator pays out more in refund values than it collects in such final

quarterly period, the deposit initiator may apply to the commissioner of

taxation and finance for a refund of the amount of such excess payment

of refund values from sources other than the refund value account, in

the manner as provided by the commissioner of taxation and finance.

5. All moneys collected or received by the department of taxation and

finance pursuant to this title shall be deposited to the credit of the

comptroller with such responsible banks, banking houses or trust

companies as may be designated by the comptroller. Such deposits shall

be kept separate and apart from all other moneys in the possession of

the comptroller. The comptroller shall require adequate security from

all such depositories. Of the total revenue collected, the comptroller

shall retain the amount determined by the commissioner of taxation and

finance to be necessary for refunds out of which the comptroller must

pay any refunds to which a deposit initiator may be entitled. After

reserving the amount to pay refunds, the comptroller must, by the tenth

day of each month, pay into the state treasury to the credit of the

general fund the revenue deposited under this subdivision during the

preceding calendar month and remaining to the comptroller's credit on

the last day of that preceding month; provided, however, that, beginning

April first, two thousand thirteen, nineteen million dollars, and all

fiscal years thereafter, twenty-three million dollars plus all funds

received from the payments due each fiscal year pursuant to subdivision

four of this section in excess of the greater of the amount received

from April first, two thousand twelve through March thirty-first, two

thousand thirteen or one hundred twenty-two million two hundred thousand

dollars, shall be deposited to the credit of the environmental

protection fund established pursuant to section ninety-two-s of the

state finance law.

6. The commissioner and the commissioner of taxation and finance shall

promulgate, and shall consult each other in promulgating, such rules and

regulations as may be necessary to effectuate the purposes of this

title. The commissioner and the commissioner of taxation and finance

shall provide all necessary aid and assistance to each other, including

the sharing of any information that is necessary to their respective

administration and enforcement responsibilities pursuant to the

provisions of this title.

7. a. Any person who is a deposit initiator under this title before

April first, two thousand nine, must apply by June first, two thousand

nine to the commissioner of taxation and finance for registration as a

deposit initiator. Any person who becomes a deposit initiator on or

after April first, two thousand nine shall apply for registration prior

to collecting any deposits as such a deposit initiator. Such application

shall be in a form prescribed by the commissioner of taxation and

finance and shall require such information deemed to be necessary for

proper administration of this title. The commissioner of taxation and

finance may require that applications for registration must be submitted

electronically. The commissioner of taxation and finance shall

electronically issue a deposit initiator registration certificate in a

form prescribed by the commissioner of taxation and finance within

fifteen days of receipt of such application or may take an additional

ten days if the commissioner of taxation and finance deems it necessary

to consult with the commissioner before issuing such registration

certificate. A registration certificate issued pursuant to this

subdivision may be issued for a specified term of not less than three

years and shall be subject to renewal in accordance with procedures

specified by the commissioner of taxation and finance. The commissioner

of taxation and finance shall furnish to the commissioner a complete

list of registered deposit initiators and shall continually update such

list as warranted. The commissioner shall share any information with the

commissioner of taxation and finance that is necessary for the

administration of this subdivision.

b. The commissioner of taxation and finance shall have the authority

to revoke or refuse to renew any registration issued pursuant to this

subdivision when he or she has determined or has been informed by the

commissioner that any of the provisions of this title or rules and

regulations promulgated thereunder have been violated. Such violations

shall include, but not be limited to, the failure to file quarterly

reports, the failure to make payments pursuant to this subdivision, the

providing of false or fraudulent information to either the department of

taxation and finance or the department, or knowingly aiding or abetting

another person in violating any of the provisions of this title. A

notice of proposed revocation or non-renewal shall be given to the

deposit initiator in the manner prescribed for a notice of deficiency of

tax and all the provisions applicable to a notice of deficiency under

article twenty-seven of the tax law shall apply to a notice issued

pursuant to this paragraph, insofar as such provisions can be made

applicable to a notice authorized by this paragraph, with such

modifications as may be necessary in order to adapt the language of such

provisions to the notice authorized by this paragraph. All such notices

issued by the commissioner of taxation and finance pursuant to this

paragraph shall contain a statement advising the deposit initiator that

the revocation or non-renewal of registration may be challenged through

a hearing process and the petition for such a challenge must be filed

with the commissioner of taxation and finance within ninety days after

such notice is issued. A deposit initiator whose registration has been

so revoked or not renewed shall cease to do business as a deposit

initiator in this state, until this title has been complied with and a

new registration has been issued. Any deposit initiator whose

registration has been so revoked may not apply for registration for two

years from the date such revocation takes effect.

8. The commissioner of taxation and finance may require the

maintenance of such accounts, records or documents relating to the sale

of beverage containers, by any deposit initiator, bottler, distributor,

dealer or redemption center as such commissioner may deem appropriate

for the administration of this section. Such commissioner may make

examinations, including the conduct of facility inspections during

regular business hours, with respect to the accounts, records or

documents required to be maintained under this subdivision. Such

accounts, records and documents shall be preserved for a period of three

years, except that such commissioner may consent to their destruction

within that period or may require that they be kept longer. Such

accounts, records and documents may be kept within the meaning of this

subdivision when reproduced by any photographic, photostatic, microfilm,

micro-card, miniature photographic or other process which actually

reproduces the original accounts, records or documents.

9. a. Any person required to be registered under this section who,

without being so registered, sells or offers for sale beverage

containers in this state, in addition to any other penalty imposed by

this title, shall be subject to a penalty to be assessed by the

commissioner of taxation and finance in an amount not to exceed five

hundred dollars for the first day on which such sales or offers for sale

are made, plus an amount not to exceed five hundred dollars for each

subsequent day on which such sales or offers for sale are made, not to

exceed twenty-five thousand dollars in the aggregate.

b. Any deposit initiator who fails to file reports, make quarterly

payments or maintain accounts or records pursuant to this section,

unless it is shown that such failure was due to reasonable cause and not

due to negligence or willful neglect, in addition to any other penalty

imposed by this title, shall be subject to a penalty to be assessed by

the commissioner of taxation and finance of not more than one thousand

dollars for each quarter during which such failure occurred, and an

additional penalty of not more than one thousand dollars for each

quarter such failure continues.

10. The provisions of article twenty-seven of the tax law shall apply

to the provisions of this title for which the commissioner of taxation

and finance is responsible, including collection of refund value

amounts, in the same manner and with the same force and effect as if the

language of such article had been incorporated in full into this section

except to the extent that any provision of such article is either

inconsistent with a provision of this section or is not relevant to this

section as determined by the commissioner of taxation and finance.

Furthermore, for purposes of applying the provisions of article

twenty-seven of the tax law, where the terms "tax" and "taxes" appear in

such article, such terms shall be construed to mean "refund value" or

"balance in the refund value account".

11. If any deposit initiator fails or refuses to file a report or

furnish any information requested in writing by the department of

taxation and finance or the department, the department of taxation and

finance with the assistance of the department may, from any information

in its possession, make an estimate of the deficiency and collect such

deficiency from such deposit initiator.

12. a. Each deposit initiator shall provide a report to the department

describing all the types of beverage containers on which it initiates

deposits. The report shall include the product name, type of beverage,

size and composition of the beverage container, universal product code,

and any other information the department may require. Upon request, a

deposit initiator shall also provide to the department a copy of the

container label or a picture of any beverage container sold or offered

for sale in this state on which it initiates a deposit. Such information

shall be provided in a form as prescribed by the department. The

department may require that such forms be filed electronically.

b. A bottler may place on a beverage container a universal product

code or other distinctive marking that is specific to the state or used

only in the state and any other states with laws substantially similar

to this title as a means of preventing the sale or redemption of

beverage containers on which no deposit was initiated.

c. A bottler or deposit initiator shall notify the department, in a

form prescribed by the department, whenever a beverage container or

beverage container label is revised by altering the universal product

code, or whenever the container on which a universal product code

appears is changed in size, composition or glass color, or whenever the

container or container label on which a universal product code appears

is changed to include a universal product code that is unique to the

state or used only in the state and any other states with laws

substantially similar to this title.