N.Y. Tax Law § 1137: Payment of tax

§ 1137. Payment of tax. (a) Every person required to file a return

under the preceding section whose total taxable receipts (as "taxable

receipts" are described in subdivision (a) of such section), amusement

charges and rents are subject to the tax imposed pursuant to

subdivisions (a), (c), (d), (e) and (f) of section eleven hundred five

of this article shall, at the time of filing such return, pay to the

commissioner the total of the following:

(i) Four percent of the total of all receipts, amusement charges and

rents subject to tax under this article, and if any of such receipts,

amusement charges and rents are subject to local tax imposed pursuant to

article twenty-nine of this chapter, an additional percentage of the

total thereof equal to the percentage rate of such local tax;

(ii) All taxes imposed by section eleven hundred ten or pursuant to

article twenty-nine of this chapter upon such person's use of property

or services;

(iii) All moneys collected by such person, purportedly as tax imposed

by this article or pursuant to article twenty-nine of this chapter, with

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

amusement charge or rent not subject to tax, and all moneys collected

with respect to any receipt, gallon of such fuel, amusement charge or

rent subject to tax, purportedly in accordance with a schedule

prescribed by the commissioner but actually in excess of the amount

stated in such schedule as the amount to be collected; and

(iv) The correct number of cents per gallon of motor fuel and diesel

motor fuel sold subject to tax under this article, and, if any of such

gallons sold are subject to local tax imposed pursuant to article

twenty-nine of this chapter, an additional number of cents per gallon

sold subject to such local taxes equal to the rates of such taxes.

(b) Every person required to file a return under the preceding section

and not subject to the provisions of subdivision (a) of this section

shall, at the time of filing such return, pay to the commissioner the

taxes imposed by this article and pursuant to article twenty-nine of

this chapter as well as all other moneys collected by such person acting

or purporting to act under the provisions of this article or of any

local law, ordinance or resolution adopted pursuant to such article

twenty-nine; provided, however, that if the commissioner shall have

fixed an effective rate of tax applicable to any or all of his or her

receipts, amusement charges and rents as provided in subdivision (d) of

this section, any such person may elect, with reference to such

receipts, amusement charges and rents and subject to approval by the

commissioner and to such regulations as the commissioner may promulgate,

to pay to the commissioner at the time of filing his or her return the

total of the following:

(i) The percentage of such receipts, amusement charges and rents fixed

by the commissioner as the effective rate of tax applicable thereto;

(ii) All taxes imposed by section eleven hundred ten or pursuant to

article twenty-nine of this chapter upon such person's use of property

or services;

(iii) All moneys collected by such person, purportedly as tax imposed

by this article or pursuant to article twenty-nine of this chapter, with

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

amusement charge or rent not subject to tax, and all moneys collected

with respect to any receipt, gallon of such fuel, amusement charge or

rent subject to tax, purportedly in accordance with a schedule

prescribed by the commissioner but actually in excess of the amount

stated in such schedule as the amount to be collected;

(iv) The amount of the taxes imposed by this article and pursuant to

article twenty-nine of this chapter with respect to all receipts,

amusement charges and rents as to which no effective rate of tax fixed

by the commissioner is applicable; and

(v) The correct number of cents per gallon of motor fuel and diesel

motor fuel sold subject to tax under this article, and, if any of such

gallons sold are subject to local tax imposed pursuant to article

twenty-nine of this chapter, an additional number of cents per gallon

sold subject to such local taxes equal to the rates of such taxes.

(c) (1) The provisions of subdivisions (a) and (b) of this section

shall not be applicable to: (i) a person filing a short-form,

part-quarterly return as defined in paragraph (ii) of subdivision (a) of

section eleven hundred thirty-six hereof who, at the time of such filing

shall pay to the tax commission one-third of the total state and local

sales and compensating use taxes payable by the person to the tax

commission in the comparable quarter of the immediately preceding year

under this article and as taxes imposed pursuant to the authority of

article twenty-nine with respect to all receipts, amusement charges and

rents, or (ii) a person filing a March estimated return as described in

paragraph (ii) of subdivision (c) of section eleven hundred

thirty-seven-A hereof who, at the time of such filing shall pay to the

tax commission one-third of the sales and compensating use taxes payable

by such person to the tax commission in the comparable quarter of the

immediately preceding year under this article. Notwithstanding the

preceding sentence, for the purposes of subparagraph (ii) of this

paragraph, the sales and compensating use taxes payable in the

comparable quarter of the immediately preceding year shall not include

taxes imposed by section eleven hundred seven or eleven hundred eight of

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

chapter.

(2) The provisions of subdivisions (a) and (b) of this section,

however, shall apply to a person filing a March estimated return as

described in paragraph (i) of subdivision (c) of section eleven hundred

thirty-seven-A hereof who, at the time of such filing shall pay to the

tax commission the sales and compensating use taxes, that are estimated

to be payable by such person for such month of March. Notwithstanding

the preceding sentence, for the purposes of this paragraph, the sales

and compensating use taxes that are estimated to be payable by such

person for such month of March shall not include taxes imposed by

section eleven hundred seven or eleven hundred eight of this article or

pursuant to the authority of article twenty-nine of this chapter.

(d) The tax commission is hereby authorized to fix the effective rate

of tax applicable to any or all of the taxable receipts, amusement

charges and rents of any person required to collect tax, or of any group

or classification of such persons. Any effective rate so fixed shall be

fixed at such a percentage rate as to require, so far as practicable,

payment of an amount equal to the total taxes imposed by this article

and pursuant to article twenty-nine.

(e) (1) The amount so payable to the tax commission for the period for

which a return is required to be filed shall be due and payable to the

tax commission on the date limited for the filing of the return for such

period, without regard to whether a return is filed or whether the

return which is filed correctly shows the amount of receipts, amusement

charges or rents or the value of property or services sold or purchased

or the taxes due thereon.

(2) Where the tax commission, in its discretion, deems it necessary to

protect the revenues to be obtained under this article, it may require

any person required to collect any tax imposed by this article to file

with it a bond, issued by a surety company authorized to transact

business in this state and approved by the superintendent of financial

services of this state as to solvency and responsibility or other

security acceptable to the tax commission, in such amount as the tax

commission may fix, to secure the payment or payment over of any tax,

penalties or interest due or which may become due from such person under

this article. In the event that the tax commission determines that such

person is to file such bond or other security, it shall give notice to

him to that effect specifying the amount of the bond or other security

required. Such person shall file such bond or other security within

thirty days after the giving of such notice unless within five days

after the giving of such notice he shall request, in writing, a hearing

before the tax commission at which the necessity, propriety and amount

of the bond or other security shall be determined by the tax commission.

Such determination shall be final and shall be complied with within

thirty days after the giving of notice thereof. If securities are

deposited as security under this paragraph, such securities shall be

kept in the custody of the commissioner of taxation and finance and may

be sold by the tax commission if it becomes necessary so to do in order

to recover any sums due from such person pursuant to this article, but

no such sale shall be had until after such person shall have had

opportunity to litigate the validity of any tax if he elects so to do.

Upon any such sale, the surplus, if any, above the sums due under this

article shall be returned to such person.

* (3) As an additional or alternate requirement, whenever any person

fails to collect, truthfully account for, pay over the tax, or file

returns of the tax as required in this article, the commissioner, in his

or her discretion where he or she deems necessary to protect the

revenues to be obtained under this article, may give notice requiring

such person to collect the taxes which become collectible after the

giving of such notice, to deposit such taxes at least one time per week

in a separate account in any banking institution approved by the

commissioner and located in this state the deposits in which are insured

by any agency of the federal government. Such notice may require either

(i) that such account be held in trust for and payable to the

commissioner, and that the amount of such tax shall be kept in such

account until payment over to the commissioner; or (ii) that such person

authorize the commissioner to debit such account. Any notice given by

the commissioner under this paragraph shall remain in effect until a

notice of cancellation is given by the commissioner. Any such person who

fails to comply with a notice issued under this paragraph shall be

required to file a bond pursuant to paragraph two of this subdivision.

* NB Effective until December 31, 2029

* (3) As an additional or alternate requirement, whenever any person

fails to collect, truthfully account for, pay over the tax, or file

returns of the tax as required in this article, the tax commission, in

its discretion where it deems necessary to protect the revenues to be

obtained under this article, may give notice requiring such person to

collect the taxes which become collectible after the giving of such

notice, to deposit such taxes in any banking institution approved by the

tax commission and located in this state the deposits in which are

insured by any agency of the federal government, in a separate account,

in trust for and payable to the tax commission, and to keep the amount

of such tax in such account until payment over to the tax commission.

Such notice shall remain in effect until a notice of cancellation is

given by the tax commission.

* NB Effective December 31, 2029

(f) (1) Except as otherwise provided in this subdivision, a person

required to collect tax who files a return required to be filed under

section eleven hundred thirty-six of this part for a quarterly or longer

period shall be allowed a credit against the taxes and fees required to

be reported on, and paid with, such return, in an amount as determined

in paragraph two of this subdivision, but only where such person files

the return on or before the filing due date and pays or pays over with

such return the total amount shown on such return (determined with

regard to this subdivision); provided, however, that no credit pursuant

to this subdivision shall be allowed for any person who files or is

required to file a return pursuant to paragraph two of subdivision (a)

of section eleven hundred thirty-six of this part or any person who pays

or is required to pay tax pursuant to section ten of this chapter.

(2) The amount of the credit authorized by paragraph one of this

subdivision shall be five percent of the amount of taxes and fees (but

not including any penalty or interest thereon) required to be reported

on, and paid or paid over with, the return but only if the return is

filed on or before the filing due date, but not more than two hundred

dollars, for each quarterly or longer period, except that, with respect

to returns required to be filed for quarterly or longer periods ending

on or before the last day of February, two thousand seven, the amount of

the credit shall be not more than one hundred seventy-five dollars for

each such quarterly or longer period.

(3) Notwithstanding any other provision of law: The credit afforded by

this subdivision shall be taken only on the return for the quarterly or

longer period to which the credit applies. No refund, carryforward or

carryback of any credit, or any interest thereon, and no application for

credit or refund of any tax, penalty or interest shall be allowed or

paid under this subdivision. No claim for credit may be filed or allowed

under this subdivision other than with the original return for such

period and any later claim, whether sought to be taken on an amended

return or otherwise, shall be void and any allowance erroneous. The

commissioner may, on the commissioner's own motion, correct any

erroneous disallowance of the credit provided by this subdivision.

(4) Notwithstanding any other provision of law: The credit authorized

by this subdivision shall be computed with reference to state and local

taxes and fees described in paragraph two of this subdivision, but shall

be charged and allowed only against revenues from taxes imposed by

sections eleven hundred five and eleven hundred ten of this article. The

commissioner shall account for the aggregate amounts of such credits

monthly in accordance with the schedule for certifications to the state

comptroller in section twelve hundred sixty-one of this chapter. Such

aggregate monthly amounts of credits shall be netted against revenues

from the taxes under such sections eleven hundred five and eleven

hundred ten, to ensure that revenues from the taxes and fees imposed by

other sections of law or by counties, cities and school districts

pursuant to the authority of article twenty-nine of this chapter are not

reduced and are deposited as provided with respect to the taxes and fees

imposed by such other sections or as provided in such article

twenty-nine of this chapter with respect to taxes of counties, cities

and school districts. Any overpayment or underpayment of revenues of a

county, city or school district or of revenues from another tax or fee,

on account of the allowance of credits under this subdivision, shall be

adjusted in the manner described in subdivision (c) of such section

twelve hundred sixty-one of this chapter. The credit authorized by this

subdivision shall not be incorporated into article twenty-nine of this

chapter or into local laws, ordinances or resolutions enacted pursuant

to the authority of such article twenty-nine of this chapter.

(5) (i) Where a person takes a credit pursuant to this subdivision in

an amount greater than allowed or under circumstances where the credit

is not authorized, or (ii) where a person takes a credit pursuant to

this subdivision at the time of filing a return for a quarterly or

longer period and such person later becomes subject to a penalty imposed

under subparagraph (vi) of paragraph one of subdivision (a) or under

paragraph two of subdivision (a) of section eleven hundred forty-five of

this part or is later found guilty of a crime or offense under section

eighteen hundred three, eighteen hundred four, eighteen hundred five,

eighteen hundred six, or eighteen hundred seventeen of this chapter,

relating to the period for which the return was filed, the amount of

such credit taken in such greater amount, under such circumstances or

for such period shall be disallowed and the person shall be required to

pay, as tax, an amount equal to the credit so taken, at such time and in

such manner as prescribed by the commissioner; provided, however, that

such amount shall be paid and disposed of in the same manner as other

revenues from this article, and may be determined, assessed, collected

and enforced in the same manner as the tax imposed by this article.