N.Y. Tax Law § 1133: Liability for the tax

§ 1133. Liability for the tax. (a) Except as otherwise provided in

section eleven hundred thirty-seven of this part, every person required

to collect any tax imposed by this article shall be personally liable

for the tax imposed, collected or required to be collected under this

article. Any such person shall have the same right in respect to

collecting the tax from their customer or in respect to nonpayment of

the tax by the customer as if the tax were a part of the purchase price

of the property or service, amusement charge or rent, as the case may

be, and payable at the same time; provided, however, that the tax

commission shall be joined as a party in any action or proceeding

brought to collect the tax.

(b) Where any customer has failed to pay a tax imposed by this article

to the person required to collect the same, then in addition to all

other rights, obligations and remedies provided, such tax shall be

payable by the customer directly to the tax commission and it shall be

the duty of the customer to file a return with the tax commission and to

pay the tax to it within twenty days of the date the tax was required to

be paid.

(c) The tax commission may, whenever it deems it necessary for the

proper enforcement of this article, provide by regulation that customers

shall file returns and pay directly to the tax commission any tax herein

imposed, at such times as returns are required to be filed and payment

made by persons required to collect the tax.

(d) (1) no person required to collect any tax imposed by this article

shall advertise or hold out to the public in any manner, directly or

indirectly, that the tax imposed by this article is not considered as an

element in the price, amusement charge or rent payable by customers.

However, such person required to collect tax may advertise, hold out, or

state to a retail purchaser or to the public, that such person will pay

the tax imposed by section eleven hundred five of this article on behalf

of a retail purchaser, subject to the following conditions:

(i) In so advertising, holding out, or stating to a retail purchaser

or to the public, such person required to collect tax shall expressly

state on every bill, memorandum, receipt or other statement of the

price, amusement charge or rent paid or payable given to such purchaser,

that such person will pay the tax imposed by section eleven hundred five

of this article on behalf of such purchaser, and such person shall not

indicate or imply that the transaction is exempt or excluded from any

tax imposed by this article; and

(ii) Every bill, memorandum, receipt or other statement of the price,

amusement charge or rent paid or payable given to such purchaser shall

separately state the amount of tax due pursuant to such section eleven

hundred five and that the tax was not collected from such purchaser.

Such person required to collect tax shall hold such tax as trustee for

and on account of the state; and

(iii) A retail purchaser, who in good faith accepts from a person

required to collect any tax imposed by this article, a bill, memorandum,

receipt or other statement of the price, amusement charge or rent that

indicates the amount of tax due pursuant to such section eleven hundred

five and that such person required to collect tax will be paying such

tax on behalf of such purchaser, shall not be liable for the tax imposed

by such section eleven hundred five, or any interest or penalties

thereon; provided, however that nothing in this subdivision shall exempt

such purchaser from any additional tax due pursuant to section eleven

hundred ten of this article.

(e) Applicability of Mobile Telecommunications Sourcing Act. The

provisions of sections 119(c), 120, 121 and 122 of title 4 of the United

States Code as enacted and in effect on July twenty-eighth, two

thousand, to the extent relevant and to the extent required by

preemption, shall apply to the provisions of this article in the same

manner and with the same force and effect as if the language of such

sections of such title 4 of the United States Code had been incorporated

in full into this article and had expressly referred to the taxes under

this article, with such modifications as may be necessary in order to

adapt the language of such provisions to the taxes imposed by this

article.

(f) A marketplace provider is relieved of liability under this section

for failure to collect the correct amount of tax to the extent that the

marketplace provider can show that the error was due to incorrect or

insufficient information given to the marketplace provider by the

marketplace seller. Provided, however, this subdivision shall not apply

if the marketplace seller and marketplace provider are affiliated within

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

hundred one of this article.

(g) A booking service shall be relieved of liability under this

section for failure to collect the correct amount of tax to the extent

that such booking service can show that the error was due to incorrect

or insufficient information given to the booking service by the

operator. Provided, however, this subdivision shall not apply if the

operator and booking service are affiliated within the meaning of

paragraph ten of subdivision (c) of section eleven hundred one of this

article.