N.Y. Tax Law § 1132: Collection of tax from customer; proof required for registration of motor vehicles

§ 1132. Collection of tax from customer; proof required for

registration of motor vehicles. (a) (1) Except as otherwise permitted in

subdivision (d) of section eleven hundred thirty-three of this part,

every person required to collect the tax shall collect the tax from the

customer when collecting the price, amusement charge or rent to which it

applies. If the customer is given any sales slip, invoice, receipt or

other statement or memorandum of the price, amusement charge or rent

paid or payable, the tax shall be stated, charged and shown separately

on the first of such documents given to him. The tax shall be paid to

the person required to collect it as trustee for and on account of the

state.

(2) Notwithstanding any provision of this chapter to the contrary: (i)

If a person required to collect tax demonstrates to the satisfaction of

the commissioner by June first, of any year that, in any two quarterly

periods, as described in subdivision (b) of section eleven hundred

thirty-six of this part, within the most recent four consecutive

quarterly periods, such person was a materialman within the meaning of

section two of the lien law, primarily engaged in selling building

materials to contractors, subcontractors or repairmen for the

improvement of real property, and authorized by such law to file a

mechanics lien upon such real property and improvement, then such person

shall, with respect to such sales made through the quarterly period

ending the succeeding May thirty-first, collect tax due on such sales,

and on sales to such contractors, subcontractors or repairmen of

services described in paragraph two or three of subdivision (c) of

section eleven hundred five of this article to such building materials,

for such purpose and made during such June first through May

thirty-first period, at the time and to the extent that such person

receives the receipts from, or consideration for, such sales from such

contractors, subcontractors or repairmen; provided, however, that if

such person receives a portion of such receipts or consideration, such

person shall collect the tax due on such portion at the time such

portion is received. The taxes imposed by this article on such receipts

and consideration shall be deemed not to be imposed, solely for purposes

of determining when such person is required to collect and pay over such

taxes to the commissioner under section eleven hundred thirty-seven of

this part, until such person has received payment of such receipts or

consideration in money (or money's worth) from such contractor,

subcontractor or repairman. A contractor, subcontractor or repairman who

purchases building materials or services from such person pursuant to

this subparagraph shall, at the time such contractor, subcontractor or

repairman pays any portion of the purchase price, pay to such person the

tax due on the portion of the purchase price so paid.

(ii) In the event that a materialman described in subparagraph (i) of

this paragraph finances any portion of the receipts or consideration

from a sale described in such subparagraph (i), including any tax due

thereon, directly or indirectly, with any other person (other than a

contractor, subcontractor or repairman described in such subparagraph

(i)), whether by assignment of the receivable or debt due, factoring,

direct loan or any other means, then such materialman shall be deemed to

have received payment of such receipts or consideration in money (or

money's worth) from such contractor, subcontractor or repairman and

shall be required to pay over tax on such sale with the next return due,

with a credit against such tax for any tax already paid over with

respect to such sale. Any such amount of tax paid over in accordance

with the prior sentence shall be on account of the tax required to be

collected on the sale to which it relates and such materialman may take

a credit against any tax paid by such contractor, subcontractor or

repairman in the future on such sale, to ensure that tax paid over with

respect to such sale does not exceed the amount of tax imposed on such

sale as if the entire purchase price had been paid at the time of sale.

(iii) A materialman described in subparagraph (i) of this paragraph,

who has not collected the tax due on the full purchase price for a sale

described in such subparagraph (i) from a contractor, subcontractor or

repairman within one year of the date of such sale, shall be required to

pay over to the commissioner the tax due on any balance of such full

purchase price with such materialman's return for the period which

includes the date which is one year after the date of such sale.

(iv) The commissioner may assess additional tax due with respect to a

sale described in subparagraph (i) of this paragraph within three years

from the date the tax is required to be paid over to the commissioner

pursuant to this paragraph; provided, however, that in the case of a

willfully false or fraudulent return with intent to evade the tax, or

where no return has been filed as prescribed by law, the tax may be

assessed at any time.

(v) The other provisions of this article and any provision of law

applicable to the taxes imposed by this article shall apply to the

materialmen, contractors, subcontractors, repairmen, receipts and

consideration described in this paragraph, except to the extent that any

such provision is inconsistent with this paragraph.

(b) The commissioner shall by regulation prescribe a method or methods

or a schedule or schedules of the amounts to be collected from customers

in respect to any receipt, gallon of motor fuel or diesel motor fuel,

amusement charge or rent upon which a tax is imposed by this article so

as to eliminate fractions of one cent and so that the aggregate

collections of taxes by a person required to collect tax shall, as far

as practicable, equal four percent of the total receipts, amusement

charges or rents of such person, or equal the correct rate per gallon of

motor fuel or diesel motor fuel sold by such person, upon whom a tax is

imposed by this article or, where a similar tax is imposed under the

authority of article twenty-nine of this chapter, equal four percent, or

such rate per gallon, plus the rate of tax imposed under the authority

of article twenty-nine of the total receipts, amusement charges or rents

of, or gallons of motor fuel or diesel motor fuel sold by, such person

upon whom a tax is imposed by this article and under the authority of

article twenty-nine, so that the tax rate to be applied shall be the sum

of the state and local tax rates. Such schedule or schedules may provide

that no tax need be collected from the customer upon receipts, amusement

charges or rents below a stated sum, and may be amended from time to

time so as to accomplish the purposes herein set forth. Such schedule or

schedules shall provide that no tax shall be collected from the customer

upon receipts from retail sales of tangible personal property which,

under the rate imposed by article twenty-eight, together with the rates

imposed under the authority of article twenty-nine, produce a tax of

five mills or less.

(c) (1) For the purpose of the proper administration of this article

and to prevent evasion of the tax hereby imposed, it shall be presumed

that all receipts for property or services of any type mentioned in

subdivisions (a), (b), (c) and (d) of section eleven hundred five, all

rents for occupancy of the type mentioned in subdivision (e) of said

section, and all amusement charges of any type mentioned in subdivision

(f) of said section, are subject to tax until the contrary is

established, and the burden of proving that any receipt, amusement

charge or rent is not taxable hereunder shall be upon the person

required to collect tax or the customer. Except as provided in

subdivision (h) or (k) of this section, unless (i) a vendor, not later

than ninety days after delivery of the property or the rendition of the

service, shall have taken from the purchaser a resale or exemption

certificate in such form as the commissioner may prescribe, signed by

the purchaser and setting forth the purchaser's name and address and,

except as otherwise provided by regulation of the commissioner, the

number of the purchaser's certificate of authority, together with such

other information as the commissioner may require, to the effect that

the property or service was purchased for resale or for some use by

reason of which the sale is exempt from tax under the provisions of

section eleven hundred fifteen, and, where such resale or exemption

certificate requires the inclusion of the purchaser's certificate of

authority number or other identification number required by regulations

of the commissioner, that the purchaser's certificate of authority has

not been suspended or revoked and has not expired as provided in section

eleven hundred thirty-four, or (ii) the purchaser, not later than ninety

days after delivery of the property or the rendition of the service,

furnishes to the vendor: any affidavit, statement or additional

evidence, documentary or otherwise, which the commissioner may require

demonstrating that the purchaser is an exempt organization described in

section eleven hundred sixteen, the sale shall be deemed a taxable sale

at retail. Where a resale or exemption certificate or an affidavit,

statement or additional evidence referred to in the previous sentence is

received within the time limit set forth therein, but is deficient in

some material manner, and where such deficiency is thereafter removed,

the receipt of such resale or exemption certificate or such affidavit,

statement or additional evidence shall be deemed to have satisfied all

of the requirements of the preceding sentence. Where such a resale or

exemption certificate or such an affidavit, statement or additional

evidence has been furnished to the vendor, the burden of proving that

the receipt, amusement charge or rent is not taxable hereunder shall be

solely upon the customer. The vendor shall not be required to collect

tax from purchasers who furnish a resale or exemption certificate, or

such an affidavit, statement or additional evidence in proper form,

unless, in the case of a resale or exemption certificate described in

clause (i) of the second sentence of this paragraph whereon the

purchaser's certificate of authority number, or other identification

number required by regulation of the commissioner, is required to be

included, such purchaser's certificate of authority is invalid because

it has been suspended or revoked as provided in section eleven hundred

thirty-four, and the commissioner has furnished registered vendors with

information identifying those persons whose certificates of authority

have been suspended or revoked, or unless such purchaser's certificate

of authority is invalid because it has expired, and the commissioner has

provided registered vendors with a means of determining whether such

expiration has occurred. Where the vendor accepts such a resale or

exemption certificate from a person identified by the commissioner as

one whose certificate of authority has been suspended or revoked or from

a person whose certificate of authority has been identified as having

expired, the receipt, amusement charge or rent from such transaction

shall be deemed to be a taxable sale at retail.

(2) Notwithstanding paragraph one of this subdivision or any other law

to the contrary, the commissioner may authorize a purchaser, who

acquires tangible personal property or services under circumstances

which make it impossible at the time of acquisition to determine the

manner in which the tangible personal property or services will be used,

to pay the tax directly to the commissioner and waive the collection of

the tax by the vendor. Subject to such reasonable conditions as the

commissioner may require, the commissioner shall authorize an omnibus

carrier described in subdivision (b) of section eleven hundred nineteen

to pay the tax on the purchase or use of an omnibus directly to the

commissioner and waive the collection of the tax by the vendor. No such

authority shall be granted or exercised except upon application to the

commissioner, and the issuance by the commissioner, in the

commissioner's discretion, of a direct payment permit. If a direct

payment permit is granted, its use shall be subject to conditions

specified by the commissioner, and the payment of tax on all

acquisitions pursuant to the permit shall be made directly to the

commissioner by the permit holder. The commissioner may suspend or

revoke a direct payment permit where the permit holder fails to comply

with any of the provisions of this article or any rule promulgated by

the commissioner with respect to this article. The notice and hearing

provisions applicable to the revocation and suspension of certificates

of authority under section eleven hundred thirty-four shall apply to the

suspension and revocation of direct payment permits. A vendor shall not

be required to collect tax from a purchaser who furnishes a direct

payment permit in proper form, unless such purchaser's direct payment

permit has been suspended or revoked by the commissioner and the

commissioner has provided registered vendors with information

identifying those persons whose direct payment permits have been

suspended or revoked. Where a vendor accepts a direct payment permit

from a person whose direct payment permit has been suspended or revoked,

and the commissioner has provided registered vendors with information

identifying those persons whose direct payment permits have been

suspended or revoked, the receipt, amusement charge or rent from such

transaction shall be deemed to be subject to tax.

(d) The tax commission may provide by regulation that the tax upon

receipts from sales on the installment plan may be paid on the amount of

each installment and upon the date when such installment is due.

(e) The commissioner may provide, by regulation, for the exclusion

from taxable receipts, gallons of motor fuel or diesel motor fuel sold,

amusement charges or rents of amounts representing sales where the

contract of sale has been cancelled, the property returned or the

receipt, charge or rent has been ascertained to be uncollectible or, in

case the tax has been paid upon such receipt, gallons, charge or rent,

for refund of or credit for the tax so paid. Where the commissioner

provides for a credit for the tax so paid, he or she shall require an

application for credit to be filed, but he or she may also allow the

applicant to immediately take the credit on the return which is due

coincident with or immediately subsequent to the time the applicant

files his or her application for credit. However, the taking of the

credit on the return shall be deemed to be part of the application for

credit and shall be subject to the provisions in respect to applications

for credit in section eleven hundred thirty-nine of this part as

provided in subdivision (e) of such section.

(f) The commissioner of motor vehicles shall not issue a registration

certificate for any motor vehicle, snowmobile, vessel or all terrain

vehicle, except in the case of a renewal of registration by the same

owner, except upon proof, in a form approved by the tax commission and

the commissioner of motor vehicles, that any tax imposed by section

eleven hundred five or eleven hundred ten of this article with respect

to the sale of the motor vehicle, snowmobile, vessel or all terrain

vehicle to the registrant or his use thereof has been paid, or that no

such tax is due. For purposes of this subdivision, the term motor

vehicle shall include a motor vehicle as defined in section one hundred

twenty-five of the vehicle and traffic law; a trailer as defined in

section one hundred fifty-six of such law; a snowmobile as defined in

section twenty-two hundred twenty-one of such law; a vessel as defined

in section twenty-two hundred fifty of such law; and an all terrain

vehicle as defined in section twenty-two hundred eighty-one of such law.

(g) (1) The clerk of each county when performing the function of

registration of a motor vehicle, snowmobile, vessel or all terrain

vehicle or accepting an application for a certificate of title of a

motor vehicle or vessel, pursuant to the authority of the vehicle and

traffic law, or the commissioner of motor vehicles, when such

commissioner performs such functions, prior to performing such

functions, shall act as the agent of the state tax commission to collect

any retail sales tax due under this article and under a sales tax

imposed pursuant to section twelve hundred ten or twelve hundred eleven

upon sales of such motor vehicles, snowmobiles, vessels or all terrain

vehicles by persons other than dealers registered under sections four

hundred fifteen, twenty-two hundred twenty-two, twenty-two hundred

fifty-seven and twenty-two hundred eighty-two of the vehicle and traffic

law. Such county clerks and such commissioner shall also act as such

agents to collect any compensating use tax due under section eleven

hundred ten and under a compensating use tax imposed pursuant to section

twelve hundred ten or twelve hundred eleven for the use of a motor

vehicle, snowmobile, vessel or all terrain vehicle within this state.

The commissioner of motor vehicles shall act as such agent without fee.

Each such county clerk shall, after deducting his fee as provided in

paragraph two of this subdivision, and such commissioner shall remit to

the tax commission all funds collected pursuant to this subdivision and

shall follow such procedures and keep such records as shall be

prescribed by the tax commission.

(2) Each such county clerk shall retain, from the state and local

sales and compensating use taxes which he collects, the sum of one

dollar for each of the first five thousand motor vehicles or all terrain

vehicles in respect to which he has issued a certificate setting forth

the proof required by subdivision (f) of this section and subdivision

(d) of section twelve hundred fourteen of this chapter during each

annual period commencing on the first day of September and ending on the

next succeeding thirty-first day of August and the sum of seventy-five

cents for each motor vehicle or all terrain vehicle in excess of five

thousand for which he has issued such a certificate during such annual

period. Each such county clerk shall also retain, from the state and

local sales and compensating use taxes he collects, the sum of fifty

cents for each snowmobile and vessel in respect to which he has issued a

certificate setting forth the proof required by subdivision (f) of this

section and subdivision (d) of section twelve hundred fourteen of this

chapter. Such fees shall be payable even though the certificate issued

shows that no tax is due. Such fees shall belong to the county and be

paid into the county treasury monthly on or before the tenth day of the

month pursuant to section two hundred one of the county law. The county

shall pay all expenses occasioned by the duties of the county clerk

under this subdivision, including any expenses for hire of extra clerks.

(h) (1) (i) No person shall purchase motor fuel in this state,

excluding a purchase at retail, unless the tax required to be prepaid by

subdivision (a) of section eleven hundred two of this article has been

assumed by a distributor registered under article twelve-A of this

chapter in accordance with a certification under this paragraph or paid

by such distributor, and, in each of such instances, is passed through

to such purchaser. In addition to any other civil and criminal penalties

which may apply, any person who purchases motor fuel in violation of

this subparagraph shall be jointly and severally liable to pay the tax

required to be prepaid by section eleven hundred two of this article

with respect to such motor fuel.

(ii) For the purpose of the proper administration of this article and

to prevent evasion of the tax on motor fuel imposed by and pursuant to

this article, it shall be presumed that all motor fuel imported,

manufactured or sold, received or possessed in the state is intended for

use, distribution, storage or sale in the state and subject to the tax

required to be prepaid by section eleven hundred two of this article

until the contrary is established. It shall be further presumed that all

motor fuel so imported, manufactured, sold, received or possessed in the

state by any person, other than motor fuel delivered into the ordinary

fuel tank connected with the engine of a means of conveyance in order to

propel it, or in small drums or similar containers, which such person

cannot otherwise account for, is subject to the tax required to be

prepaid under section eleven hundred two of this article and such person

is responsible for such prepayment. Provided, however, a distributor of

motor fuel who imports, manufactures or sells and stores in the state or

who purchases and stores motor fuel in the state on which he has prepaid

the tax required to be prepaid pursuant to section eleven hundred two of

this article shall be allowed an adjustment in arriving at the gallons

subject to the taxes imposed by such section on account of the gallons

the distributor establishes were lost due to shrinkage, evaporation and

handling; provided, however, such allowance shall not exceed two percent

of the fuel stored. Provided, further, that in arriving at the gallons

of motor fuel subject to the tax required to be prepaid pursuant to

section eleven hundred two of this article, there shall be allowed an

adjustment on account of gallons lost or destroyed due to an accident,

such as fire, and at the time of such loss or destruction were being

held or transported for sale other than at retail. The burden of proving

that any motor fuel is not so subject shall be upon the person so

responsible for such prepayment with respect to such fuel.

(iii) Upon each sale of motor fuel, other than a sale at retail, the

seller must give to the purchaser and the purchaser shall receive, at

the time of delivery of such motor fuel, a certification containing such

information as the tax commission shall require which shall include a

statement to the effect (A) if such seller is a distributor registered

under article twelve-A of this chapter, that he has assumed the payment

of or paid the tax required to be prepaid by section eleven hundred two

of this article and, in each case, is passing through such tax or (B)

that such seller is passing through such tax which was so previously

assumed or paid by an identified distributor registered under article

twelve-A of this chapter, and passed through to him.

(iv) If the certification required by this paragraph has been

furnished to the purchaser by the seller at delivery and accepted in

good faith, the burden of proving that the tax required to be paid by

section eleven hundred two of this article was assumed or paid by a

distributor registered as such under article twelve-A of this chapter

and passed through shall be solely on the seller.

(v) Where the certification required under this paragraph is not

furnished by the seller at delivery of motor fuel, it shall be presumed

that the tax required to be prepaid by section eleven hundred two of

this article has not been assumed or paid by a distributor registered as

such under article twelve-A of this chapter and that the purchaser in

such case is jointly and severally liable for the tax.

(vi) If, due to the circumstances of delivery, it is not possible to

issue a certification required under this paragraph at the time of

delivery of motor fuel, the tax commission may authorize the delivery of

the certification required under this paragraph at a time after the

delivery of the motor fuel which is the subject of the sale under the

limited circumstances it shall prescribe and upon such terms and

conditions it shall deem necessary to ensure collection of the tax

imposed by section eleven hundred two of this article and the motor fuel

taxes imposed by article twelve-A of this chapter.

(2) (i) Except with respect to the exemptions from the prepaid tax on

Diesel motor fuel set forth in paragraph two of subdivision (a) of

section eleven hundred two of this article, no person shall purchase

Diesel motor fuel in this state unless the prepaid tax has been assumed

by a registered distributor of Diesel motor fuel in accordance with a

certification under this paragraph or paid by such distributor and, in

each of such instances, except in the case of a purchase at retail, are

passed through to such purchaser. In addition to any other civil and

criminal penalties which may apply, any person who purchases Diesel

motor fuel without having received a certification from the seller in

accordance with this paragraph shall be jointly and severally liable to

pay the tax required to be prepaid by section eleven hundred two of this

article with respect to such Diesel motor fuel.

(ii) For purposes of the proper administration of this article and to

prevent evasion of the taxes imposed on Diesel motor fuel by this

article, it shall be presumed that all Diesel motor fuel sold, received

or possessed in the state is subject to the taxes imposed by this

article until the contrary is established. It shall be further presumed

that any person so selling, receiving or possessing such Diesel motor

fuel is responsible for payment of the excise taxes on such fuel.

(iii) The exemption from the tax required to be prepaid by section

eleven hundred two of this article provided for in paragraph two of

subdivision (a) of section eleven hundred two of this article shall be

established by means of an interdistributor sale certificate. If such

exemption is applicable, such certificate shall be provided by the

purchaser to the seller at the time of or prior to delivery of the

Diesel motor fuel. Such certificate shall set forth the name and address

of the purchaser, the purchaser's registration number, an affirmation by

such purchaser that the purchaser is registered as a distributor of

Diesel motor fuel and that such registration has not been suspended or

cancelled and shall be signed by such purchaser and by the seller. Such

certificate shall be in such form and contain such other information as

the commissioner of taxation and finance shall require. Where a proper

and complete interdistributor sale certificate has been furnished and

accepted by the seller in good faith, such certificate under such

circumstance shall relieve the seller of the burden of proving that the

Diesel motor fuel covered by such certificate is exempt from the tax

required to be prepaid by section eleven hundred two of this article by

reason of paragraph two of subdivision (a) of section eleven hundred two

of this article. For purposes of this subparagraph, a seller shall not

have accepted such certificate in good faith if the purchaser's

registration is invalid because it has been suspended or cancelled, or

if the purchaser is not registered, and the commissioner of taxation and

finance has furnished registered distributors with information

identifying all those persons then validly registered as distributors of

Diesel motor fuel and those persons whose registrations have been

suspended or cancelled. Any purchaser who furnishes to his seller a

false or fraudulent interdistributor sale certificate for the purpose of

establishing an exemption from the tax required to be prepaid by section

eleven hundred two of this article shall be jointly and severally liable

for the tax imposed by such section.

(iv) (A) Upon each sale, other than a retail sale at a filling

station, the seller must give to the purchaser and the purchaser shall

receive at the time of delivery of such Diesel motor fuel, a

certification containing such information as the commissioner of

taxation and finance shall require which, unless otherwise provided in

this paragraph, shall include a statement to the effect: (i) if such

seller is a distributor registered under article twelve-A of this

chapter, that he has assumed the payment of or paid the taxes imposed by

this article and, in each case, is passing through such taxes; (ii) that

such seller is passing through such taxes which were so previously

assumed or paid by an identified distributor registered under article

twelve-A of this chapter, and passed through to him; or (iii) if such

seller is making a retail sale to a purchaser, that such taxes are not

being passed through on the retail sale of Diesel motor fuel, in

accordance with subparagraph (i) of this paragraph. In the case of a

sale of Diesel motor fuel described in paragraph two of subdivision (a)

of section eleven hundred two of this article which is exempt from the

tax required to be prepaid by section eleven hundred two, the

certificate, in lieu of the foregoing statements, shall state that,

based upon good faith reliance on the interdistributor sales

certificate, such Diesel motor fuel is being sold under the

circumstances described in such paragraph two of subdivision (a) of

section eleven hundred two and that the tax imposed by section eleven

hundred two of this article is not applicable.

(B) In the case of a sale of Diesel motor fuel subject to the tax

required to be prepaid by section eleven hundred two of this article and

in all cases where such tax is required to be passed through, if the

certification required by this subparagraph has been furnished to the

purchaser at the time of delivery of such fuel and accepted in good

faith, the burden of proving that the tax required to be prepaid by

section eleven hundred two of this article was assumed or paid by a

distributor registered as such under article twelve-A of this chapter

and passed through shall be solely on the seller.

(C) Where the certification required under this subdivision is not

furnished by the seller at the time of delivery of the Diesel motor

fuel, it shall be presumed that the tax required to be prepaid by

section eleven hundred two of this article is due and owing and has not

been assumed or paid by a distributor registered as such under article

twelve-A of this chapter and that the purchaser in such case is jointly

and severally liable for the tax.

(D) If, due to the circumstances of delivery, it is not possible to

issue a certification required under this subdivision at the time of

delivery of Diesel motor fuel, the commissioner of taxation and finance

may authorize the delivery of the certification required under this

subdivision at a time after the delivery of the Diesel motor fuel which

is the subject of the sale under the limited circumstances he shall

prescribe and upon such terms and conditions he shall deem necessary to

ensure collection of the tax imposed by section eleven hundred two of

this article and the Diesel motor fuel taxes imposed by article twelve-A

of this chapter.

(3) (i) For the purpose of the proper administration of this article

and to prevent evasion of the tax hereby imposed, it shall be presumed

that all retail sales of motor fuel or diesel motor fuel are subject to

the tax required to be collected by subdivision (a) of section eleven

hundred five of this article or paid by the provisions of section eleven

hundred ten of this article until the contrary is established, and it

shall be presumed that all motor fuel or diesel motor fuel imported,

manufactured, sold, received or possessed by any person in this state,

which such person cannot otherwise account for as having been sold

subject to the tax required to be collected by subdivision (a) of

section eleven hundred five or paid by the provisions of section eleven

hundred ten of this article, has been sold subject to the tax required

to be collected by subdivision (a) of section eleven hundred five or

paid by the provisions of section eleven hundred ten except that no such

presumption shall apply with respect to motor fuel or diesel motor fuel

in the fuel tank of a motor vehicle used to propel such vehicle or to

motor fuel in small drums or similar containers. The burden of proving

that any sale is not so subject shall be upon the person required to

collect such tax and the purchaser of such fuel.

(ii) Unless the vendor has received from the purchaser a statement or

certificate in such form as the commissioner may require, that the

purchaser pursuant to the provisions of subdivision (a) of section

eleven hundred five-A, subdivision (j) of section eleven hundred fifteen

or subdivision (b) of section eleven hundred sixteen of this article is

not subject to the provisions of this paragraph, such sale shall be

deemed a sale subject to the provisions of sections eleven hundred five

and eleven hundred ten of this article notwithstanding any provision of

subdivision (c) of this section.

(iii) Where any certificate or statement required under this paragraph

has been furnished to the vendor and accepted in good faith, the burden

of proving that the receipt is not taxable hereunder shall be solely

upon the purchaser. The vendor shall not be required to collect such

taxes from purchasers who furnish such certificates or statements in

proper form.

(i) The commissioner shall, by regulation, provide for a certificate

which must be furnished by a purchaser of a large volume of motor fuel

or diesel motor fuel who or which is commonly referred to as a

commercial account where such purchase is for consumption by such

purchaser and is not resold in order for the sales tax on such sale to

be based on the actual receipts therefor.

(k) (1) (i) No person shall purchase cigarettes in this state, other

than in a purchase at retail, unless the tax required to be prepaid by

subdivision (a) of section eleven hundred three of this article has been

paid by an agent and passed through by such agent and by a wholesale

dealer or retail dealer, authorized, licensed or registered under

article twenty of this chapter, in accordance with a certification under

this paragraph or paid by such agent, wholesale dealer or retail dealer,

and, in each of such instances, is passed through to such purchaser. In

addition to any other civil and criminal penalties which may apply, any

person who purchases cigarettes in violation of this subparagraph shall

be jointly and severally liable to pay the tax required to be prepaid by

section eleven hundred three of this article with respect to such

cigarettes.

(ii) For the purpose of the proper administration of this article and

to prevent evasion of the tax on sales and uses of cigarettes imposed by

this article and pursuant to the authority of article twenty-nine of

this chapter, it shall be presumed that all cigarettes possessed in this

state, other than four hundred or fewer cigarettes brought into the

state by, or in the possession of, any person, are intended for sale or

use in the state and subject to the tax required to be prepaid by

section eleven hundred three of this article until the contrary is

established and that such person is responsible for such prepayment.

(iii) Upon each sale of cigarettes, other than a sale at retail, the

seller must give to the purchaser and the purchaser shall receive, at

the time of delivery of such cigarettes, a certification containing such

information as the commissioner shall require which shall include a

statement to the effect (A) if such seller is an agent under article

twenty of this chapter, that such agent has paid the amount of tax

required to be prepaid by section eleven hundred three of this article

and is passing through such amount of tax, or (B) that such seller is

passing through such amount of tax which was so previously assumed or

paid by an agent under article twenty of this chapter identified on such

certification, and passed through to such seller.

(iv) If the certification required by this paragraph has been

furnished to the purchaser by the seller at delivery and accepted in

good faith on cigarettes bearing a cigarette tax stamp under article

twenty of this chapter and this article of an issue currently in effect,

the burden of proving that the tax required to be paid by section eleven

hundred three of this article was assumed or paid by an agent licensed

as such under article twenty of this chapter and passed through shall be

solely on the seller.

(v) Where the certification required under this paragraph is not

furnished by the seller to the purchaser at delivery of cigarettes, it

shall be presumed that no amount of tax required to be prepaid by

section eleven hundred three of this article has been paid by an agent

authorized as such under article twenty of this chapter and that the

purchaser in such case is jointly and severally liable for the tax

imposed by such section eleven hundred three.

(2) (i) For the purpose of the proper administration of this article

and to prevent evasion of the tax imposed under this article, it shall

be presumed that all retail sales of cigarettes are subject to the tax

imposed by subdivision (a) of section eleven hundred five and required

to be collected by section eleven hundred thirty-two of this article or

required to be paid by the provisions of section eleven hundred ten of

this article until the contrary is established; and it shall be presumed

that all cigarettes possessed in this state, which such person cannot

otherwise account for as having been sold subject to the tax imposed by

subdivision (a) of section eleven hundred five and required to be

collected by section eleven hundred thirty-two or required to be paid by

the provisions of section eleven hundred ten of this article, have been

sold subject to the tax imposed by subdivision (a) of section eleven

hundred five and required to be collected by section eleven hundred

thirty-two or required to be paid by the provisions of section eleven

hundred ten, except that no such presumption shall apply with respect to

four hundred or fewer cigarettes brought into the state by, or in the

possession of, any person. The burden of proving that any sale is not so

subject to tax shall be upon the person required to collect such tax and

the purchaser or user of such cigarettes.

(ii) Unless the vendor has received from the purchaser a statement or

certificate, in such form as the commissioner may require, that the

purchaser pursuant to the provisions of paragraph six of subdivision (b)

of section eleven hundred sixteen of this article is not subject to the

provisions of this paragraph, such sale shall be deemed a sale subject

to the provisions of sections eleven hundred five and eleven hundred ten

of this article notwithstanding any provision of subdivision (c) of this

section.

(iii) Where any certificate or statement required under this paragraph

has been furnished to the vendor and accepted in good faith, the burden

of proving that the receipt is not taxable hereunder shall be solely

upon the purchaser. The vendor shall not be required to collect such

taxes from purchasers who furnish such certificates or statements in

proper form.

(l)(1) A marketplace provider with respect to a sale of tangible

personal property it facilitates: (A) shall have all the obligations and

rights of a vendor under this article and article twenty-nine of this

chapter and under any regulations adopted pursuant thereto, including,

but not limited to, the duty to obtain a certificate of authority, to

collect tax, file returns, remit tax, and the right to accept a

certificate or other documentation from a customer substantiating an

exemption or exclusion from tax, the right to receive the refund

authorized by subdivision (e) of this section and the credit allowed by

subdivision (f) of section eleven hundred thirty-seven of this part

subject to the provisions of such subdivisions; and (B) shall keep such

records and information and cooperate with the commissioner to ensure

the proper collection and remittance of tax imposed, collected or

required to be collected under this article and article twenty-nine of

this chapter.

(2) A marketplace seller who is a vendor is relieved from the duty to

collect tax in regard to a particular sale of tangible personal property

subject to tax under subdivision (a) of section eleven hundred five of

this article and shall not include the receipts from such sale in its

taxable receipts for purposes of section eleven hundred thirty-six of

this part if, in regard to such sale: (A) the marketplace seller can

show that such sale was facilitated by a marketplace provider from whom

such seller has received in good faith a properly completed certificate

of collection in a form prescribed by the commissioner, certifying that

the marketplace provider is registered to collect sales tax and will

collect sales tax on all taxable sales of tangible personal property by

the marketplace seller facilitated by the marketplace provider, and with

such other information as the commissioner may prescribe; and (B) any

failure of the marketplace provider to collect the proper amount of tax

in regard to such sale was not the result of such marketplace seller

providing the marketplace provider with incorrect information. This

provision shall be administered in a manner consistent with subparagraph

(i) of paragraph one of subdivision (c) of this section as if a

certificate of collection were a resale or exemption certificate for

purposes of such subparagraph, including with regard to the completeness

of such certificate of collection and the timing of its acceptance by

the marketplace seller. Provided that, with regard to any sales of

tangible personal property by a marketplace seller that are facilitated

by a marketplace provider who is affiliated with such marketplace seller

within the meaning of paragraph one of subdivision (e) of section eleven

hundred one of this article, the marketplace seller shall be deemed

liable as a person under a duty to act for such marketplace provider for

purposes of subdivision one of section eleven hundred thirty-one of this

part.

(3) The commissioner may, in his or her discretion: (A) develop a

standard provision, or approve a provision developed by a marketplace

provider, in which the marketplace provider obligates itself to collect

the tax on behalf of all the marketplace sellers for whom the

marketplace provider facilitates sales of tangible personal property,

with respect to all sales that it facilitates for such sellers where

delivery occurs in the state; and (B) provide by regulation or otherwise

that the inclusion of such provision in the publicly-available agreement

between the marketplace provider and marketplace seller will have the

same effect as a marketplace seller's acceptance of a certificate of

collection from such marketplace provider under paragraph two of this

subdivision.

(m) (1) A booking service with respect to a sale for every occupancy

of a short term rental unit it facilitates: (A) shall have all the

obligations and rights of a vendor under this article and article

twenty-nine of this chapter and under any regulations adopted pursuant

thereto, including, but not limited to, the duty to obtain a certificate

of authority, to collect tax, file returns, remit tax, and the right to

accept a certificate or other documentation from a customer

substantiating an exemption or exclusion from tax, the right to receive

the refund authorized by subdivision (e) of this section and the credit

allowed by subdivision (f) of section eleven hundred thirty-seven of

this part subject to the provisions of such subdivisions; and (B) shall

keep such records and information and cooperate with the commissioner to

ensure the proper collection and remittance of tax imposed, collected,

or required to be collected under this article and article twenty-nine

of this chapter.

(2) An operator is relieved from the duty to collect tax in regard to

a particular rent for the occupancy of a short term rental unit subject

to tax under subdivision (e) of section eleven hundred five of this

article and shall not include the rent from such occupancy in its

taxable sales for purposes of section eleven hundred thirty-six of this

part if in regard to such occupancy:

(A) the operator of the short term rental can show that such occupancy

was facilitated by a booking service from whom such operator has

received in good faith a properly completed certificate of collection in

a form prescribed by the commissioner certifying that the booking

service is registered to collect sales tax and will collect sales tax on

all taxable sales of occupancy of a short term rental unit by the

operator facilitated by the booking service, and with such other

information as the commissioner may prescribe; and

(B) any failure of the booking service to collect the proper amount of

tax in regard to such sale was not the result of such operator providing

the booking service with incorrect information.

This provision shall be administered in a manner consistent with

subparagraph (i) of paragraph one of subdivision (c) of this section as

if a certificate of collection were a resale or exemption certificate

for purposes of such subparagraph, including with regard to the

completeness of such certificate of collection and the timing of its

acceptance by the operator. Provided that with regard to any sales of

occupancy of a short term rental unit by an operator that are

facilitated by a booking service who is affiliated with such operator

within the meaning of paragraph ten of subdivision (c) of section eleven

hundred one of this article, the operator shall be deemed liable as a

person under a duty to act for such booking service for purposes of

subdivision one of section eleven hundred thirty-one of this part.

(3) The commissioner may, at their discretion: (A) develop a standard

provision, or approve a provision developed by a booking service, in

which the booking service obligates itself to collect the tax on behalf

of all operators for whom the booking service facilitates sales of

occupancy of a short term rental unit, with respect to all sales that it

facilitates for such operators where the rental occurs in the state; and

(B) provide by regulation or otherwise that the inclusion of such

provision in the publicly-available agreement between the booking

service and operator will have the same effect as an operator's

acceptance of a certificate of collection from such booking service

under paragraph two of this subdivision.