N.Y. Tax Law § 1142: General powers of the tax commission

§ 1142. General powers of the tax commission. In addition to the

powers granted to the tax commission in this article, it is hereby

authorized and empowered:

1. To make, adopt and amend rules and regulations appropriate to the

carrying out of this article and the purposes thereof;

2. To extend, for cause shown, the time of filing any return or report

for a period not exceeding three months; and for cause shown, to remit

penalties but not interest computed at the rate of six percent per

annum;

3. To delegate its functions hereunder to a deputy commissioner of

taxation and finance or any employee or employees of the department of

taxation and finance;

4. To prescribe methods for determining the amount of receipts,

amusement charges, dues or rents and for determining which of them are

taxable and which are nontaxable;

5. To require any person required to collect tax to keep detailed

records of all receipts, amusement charges, dues or rents received,

charged or accrued, including those claimed to be nontaxable, and also

of the nature, type, value and amount of all purchases, sales, services

rendered, admissions, memberships, occupancies, names and addresses of

customers, and other facts relevant in determining the amount of tax due

and to furnish such information upon request to the tax commission;

6. To assess, determine, revise and readjust the taxes imposed by this

article;

7. To publish and maintain, as it deems necessary, lists of specific

items of tangible personal property which are found to be foods and

drugs exempt from tax under paragraphs (1) and (3) of section eleven

hundred fifteen. Assistance and cooperation in the formulation of such

lists shall be provided by the department of health upon request by the

tax commission.

8. To make such provision as it deems necessary for the joint

administration of the state and local taxes imposed by this article and

authorized by article twenty-nine of the tax law, including the joint

reporting, assessment, collection, determination and refund of such

taxes, and for that purpose to prescribe by regulation that any of the

commission's functions under said articles, and any returns, forms,

statements, documents or information to be submitted to the commission

under said articles, any books and records to be kept for purposes of

the taxes imposed or authorized by said articles, any schedules of

amounts to be collected under said articles, any registration required

under said articles, and the payment of taxes under said articles shall

be on a joint basis with respect to the taxes imposed by said articles.

9. To set the overpayment and underpayment rates of interest for

purposes of sections eleven hundred thirty-nine and eleven hundred

forty-five of this part. Such rates shall be the overpayment and

underpayment rates of interest set pursuant to subsection (e) of section

one thousand ninety-six of this chapter, but the underpayment rate shall

not be less than seven and one-half percent per annum. Any such rates

set by the commissioner shall apply to taxes, or any portion thereof,

which remain or become due or overpaid on or after the date on which

such rates become effective and shall apply only with respect to

interest computed or computable for periods or portions of periods

occurring in the period during which such rates are in effect. In

computing the amount of any interest required to be paid under this

article by the commissioner or by the taxpayer, or any other amount

determined by reference to such amount of interest, such interest and

such amount shall be compounded daily. The preceding sentence shall not

apply for purposes of computing the amount of any interest for failure

to pay estimated tax under subparagraph (iv) of paragraph one of

subdivision (a) of section eleven hundred forty-five of this part.

10. To delegate from time to time and in whole or in part, when it

deems it to be in the best interests of the state, to the commissioner

of finance of the city of New York and his employees and agents, and to

the county executives of Nassau and Suffolk counties and their employees

and agents its power to examine the books and records of any person in

the city of New York or the counties of Nassau and Suffolk who is

subject to the taxes imposed by or required to file returns pursuant to

this article; provided, however, that (a) such delegation shall relate

solely to examining books and records and not to review, assessment,

appeal, or any other action taken on the basis of such examination, (b)

every examination made pursuant to such delegation shall be conducted in

accordance with the direction, methods, rules, practices, procedures,

and regulations of the commissioner of taxation and finance, (c) no

power shall be delegated to re-examine books and records for periods

previously examined by the commissioner of taxation and finance, his

agents or employees, and (d) such delegation shall limit the county

executives of Nassau and Suffolk counties to examine only those books

and records of persons within their respective counties.

11. To make such provision pursuant to rules and regulations for the

joint administration, in whole or in part, of the state and local taxes

imposed by this article and authorized by article twenty-nine of this

chapter upon the sale of petroleum products and the taxes imposed by

article twelve-A of this chapter and authorized to be imposed by such

article, including the joint reporting, assessment, collection,

determination and refund of such taxes, and for that purpose to

prescribe that any of the commissioner's functions under said articles,

and any returns, forms, statements, documents or information to be

submitted to the commissioner under said articles, any books and records

to be kept for purposes of the taxes imposed or authorized by said

articles, any schedules of amounts to be collected under said articles,

any registration required under said articles, and the payment of taxes

under said articles shall be on a joint basis with respect to the taxes

imposed by said articles.

12. To make such provision pursuant to rules and regulations for the

joint administration, in whole or in part, of the taxes imposed by this

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

chapter upon the sale or use of cigarettes and the taxes imposed by

article twenty of this chapter, including the joint reporting,

assessment, collection, determination and refund of such taxes, and, for

that purpose, to prescribe that any of the commissioner's functions

under such articles, any returns, forms, statements, documents or

information to be submitted to the commissioner under such articles, any

books and records required to be kept for purposes of the taxes imposed

or authorized by such articles, any schedules of amounts to be collected

under such articles, any registration required under such articles, and

the payment of taxes by stamp, meter impression or otherwise under such

articles shall be on a joint basis with respect to the taxes imposed or

authorized by such articles.

13. To authorize a qualified person who is not the vendor with respect

to a motor vehicle to collect any tax due under this article or pursuant

to the authority of article twenty-nine of this chapter upon the sale or

for the use of such motor vehicle, at the time such person performs the

function of registering such vehicle or accepting an application for a

certificate of title of such vehicle. A qualified person is a person (i)

who is registered with the commissioner as provided in section eleven

hundred thirty-four of this article (other than a person who elects to

file a certificate of registration under paragraph three of subdivision

(a) of section eleven hundred thirty-four of this article unless such

person agrees to subject itself to the jurisdiction of this state as a

condition for issuance of such certificate of registration and for

authorization under this subdivision) and (ii) who the commissioner of

motor vehicles has certified to the commissioner is a person authorized

by the commissioner of motor vehicles to perform the function of

registering a motor vehicle or accepting an application for a

certificate of title of a motor vehicle, pursuant to the authority of

the vehicle and traffic law. Where such a qualified person has been so

authorized by the commissioner and performs such function or accepts

such an application, (A) such person shall be deemed to be a person

required to collect tax with respect to the sale or use of such motor

vehicle; (B) such person shall collect the tax as trustee for and on

account of the state, in accordance with the provisions of subdivision

(a) of section eleven hundred thirty-two of this article; (C) such

person shall be personally liable for the tax imposed, collected or

required to be collected under this article and pursuant to article

twenty-nine of this chapter, as well as any penalty and interest in

connection therewith, and for any moneys collected purportedly as tax;

(D) such person shall be subject to and comply with all the other

provisions of this article and article twenty-nine of this chapter and

of any regulations adopted pursuant thereto, and to all the requirements

and obligations thereof, and have all the benefits and entitlements, of

a person required to collect tax under this article and pursuant to the

authority of such article twenty-nine with respect to such sale or use

and such tax required to be collected, as if the person were the vendor

with respect to such motor vehicle, provided, however, that no person

qualified under this article shall receive the credit allowed by

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

such person shall keep such additional records, provide such additional

information and cooperate with the commissioner, as provided by the

commissioner, to ensure the proper collection and remittance of tax

imposed, collected or required to be collected under this article and

such article twenty-nine; and (F) notwithstanding any provision of law

to the contrary, such person and any officer, director, manager,

employee or agent of such person shall be deemed to be a person who in

any manner has acquired knowledge of the contents of a return or report

filed with the commissioner pursuant to this article and such article

twenty-nine, with respect to any information such person or such

officer, director, manager, employee or agent acquired in conjunction

with performing such function of registering a motor vehicle or

accepting such an application for a certificate of title; and any such

information so acquired shall be deemed to be the contents of such a

return or report, for purposes of section eleven hundred forty-six of

this article. The term "such person" as used in the previous sentence

shall include any officer, director, manager or employee of such person,

who as such officer, director, manager or employee is under a duty to

act for such person in complying with any requirement of this article or

such article twenty-nine or who is otherwise subject to complying with

any such requirement of this article or article twenty-nine of this

chapter and any member of a partnership or limited liability company.

For purposes of this subdivision, the term "motor vehicle" shall have

the same meaning that such term has for purposes of subdivision (f) of

section eleven hundred thirty-two of this article. In order to

effectuate the authority granted by this paragraph and to enforce and

administer the taxes imposed by this article and pursuant to the

authority of article twenty-nine of this chapter:

(a) The commissioner may modify the requirements to file returns and

to pay or pay over tax or other moneys in section ten of this chapter,

sections eleven hundred thirty-six and eleven hundred thirty-seven of

this article and in such article twenty-nine, with respect to returns

required to be filed under this article or pursuant to article

twenty-nine of this chapter and taxes and moneys required to be paid or

paid over under such sections ten and eleven hundred thirty-seven and

article twenty-nine, by qualified persons authorized to collect tax

under this subdivision, where the commissioner provides that any class

of such persons shall pay or pay over such taxes or moneys to the

commissioner of motor vehicles as agent of the commissioner.

(b) Any authorization granted pursuant to the opening paragraph of

this subdivision shall be evidenced by a certificate issued by the

commissioner and may be for a specified term; and, if such authorization

is for a specified term, it shall be subject to renewal in accordance

with rules promulgated by the commissioner. A qualified person to whom

the commissioner has issued such a certificate shall display the

certificate prominently at the place where such person performs such

function or accepts such an application.

(c) In addition to the commissioner's authority in section eleven

hundred thirty-four of this article, the commissioner may revoke or

suspend the authority granted to a qualified person pursuant to this

subdivision if such person fails to comply with any requirement of this

article or article twenty-nine of this chapter or if the commissioner of

motor vehicles advises the commissioner that such person is no longer

certified to perform the functions described in the opening paragraph of

this subdivision.

(d) In addition to any other general or specific authority under this

article to make, adopt and amend rules, regulations, procedures and

forms, the commissioner may make, adopt and amend rules, regulations,

procedures and forms necessary for the proper administration of this

subdivision, to ensure the integrity and qualifications of any person

seeking authorization under the opening paragraph of this subdivision,

and to ensure the proper collection, payment over and protection of

taxes imposed and revenues to be obtained under this article and

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

together with any related penalties and interest and moneys collected

purportedly as tax.

(e) The commissioner of motor vehicles shall cooperate with the

commissioner and provide such information and assistance as the

commissioner requires, to enable the commissioner to carry out the

commissioner's responsibilities under this article, article twenty-nine

of this chapter and the purposes thereof; and the commissioner of motor

vehicles shall require a qualified person authorized pursuant to the

opening paragraph of this subdivision to file with either the

commissioner of motor vehicles or the commissioner a bond issued by a

surety company authorized to transact business in this state and

approved by the superintendent of financial services as to solvency and

responsibility, or other security acceptable to the commissioner, in

such amounts as the commissioner 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 or pursuant to the authority of

article twenty-nine of this chapter, as well as any moneys collected by

such person purportedly as tax imposed by this article or pursuant to

article twenty-nine.

(f) Nothing in this subdivision shall be construed to mean or provide

that a person required to collect tax shall not be required to collect

tax when such person sells a motor vehicle to a purchaser who seeks or

may seek to register or submit an application for a certificate of title

for such vehicle with another person authorized to collect tax pursuant

to the opening paragraph of this subdivision. Where a person required to

collect tax is the vendor of a motor vehicle, such person must collect

any tax due from the purchaser without regard to the other provisions of

this subdivision.

14. To issue a notice to a credit card issuer and, where applicable,

the fuel distributor, and any government entity, as such terms are

defined in subdivision (h) of section eleven hundred thirty-nine of this

part, that, as of the date specified by the commissioner in such notice,

the credit card issuer or fuel distributor shall no longer be eligible

to apply for refunds or credit with respect to purchases of motor fuel

or diesel motor fuel by such government entity, the government entity

shall no longer be eligible to employ any other credit card issuer or

fuel distributor pursuant to such subdivision (h) and no such claim for

credit or refund will be allowed or paid in accordance with such

subdivision (h), where the commissioner has determined that (a) the

motor fuel or diesel motor fuel purchased through the use of the credit

card issuer's credit card was not for the government entity's own use or

consumption or (b) it is necessary for the proper enforcement of this

article to issue such notice. The commissioner, in his or her

discretion, may cancel or suspend the operation of such notice where the

credit card issuer, fuel distributor, where applicable, and the

government entity establish, to the commissioner's satisfaction, that

appropriate steps have been undertaken to rectify the circumstances

leading to the issuance of such notice. In such case, the commissioner

will notify the credit card issuer or fuel distributor, where

applicable, that the designated person will be eligible to apply for

refunds or credits pursuant to subdivision (h) of section eleven hundred

thirty-nine of this part in accordance with such terms as set forth by

the commissioner. Nothing in this subdivision shall be deemed to affect

the eligibility of the government entity to claim a refund or credit for

tax paid on motor fuel or diesel motor fuel it purchased where such

purchase qualifies for exemption pursuant to paragraph five of

subdivision (b) of section eleven hundred sixteen of this article.

Notwithstanding any other provision of law, if the credit card issuer,

fuel distributor, where applicable, or government entity disputes any

aspect of the notice issued pursuant to this subdivision:

(i) the credit card issuer, fuel distributor, where applicable, and

the government entity who receive such a notice shall have the right to

have the issuance of such notice reviewed by the commissioner or his or

her designee by contacting the department at a telephone number or an

address to be disclosed in the notice within ten days of the recipient's

receipt of the notice. The recipient may present written evidence or

arguments in support of its claim, or the recipient may appear at a

scheduled conference with the commissioner or such designee to present

oral arguments and written and oral evidence in support of such

position. The commissioner or such designee is authorized to delay the

effective date of the notice to enable the recipient to present further

evidence or arguments in connection with the issuance of the notice. The

commissioner or such designee shall cancel the notice if the

commissioner or such designee is not satisfied by a preponderance of the

evidence that the facts underlying such notice do not support the

issuance of such notice.

(ii) except as provided for in paragraph (i) of this subdivision, the

credit card issuer, fuel distributor or the government entity shall not

have any right to a hearing under any other provision of this chapter to

challenge the issuance of such notice. Rather, such determination shall

be reviewable only by a proceeding under article seventy-eight of the

civil practice law and rules, provided, however, that (A) such

proceeding is commenced within four months of the date the commissioner

issued such notice or, if such notice is disputed, within four months of

the date the commissioner or such designee upholds such notice in whole

or in part, (B) the credit card issuer, fuel distributor, where

applicable, and any affected government entity are named as parties to

the action, and (C) the only issue which may be considered by such

review is whether such notice was within the discretion of the

commissioner under this article. Such proceeding shall be instituted in

Albany county. Upon the filing of such petition, the court shall have

jurisdiction to set aside such notice or to dismiss the petition. The

jurisdiction of the supreme court shall be exclusive and its order shall

be final, subject to review by the appellate division of the supreme

court and the court of appeals in the same manner and form and with the

same effect as provided by law for appeal from a judgment in a special

proceeding. All such proceedings for review shall be heard on the

petition, transcript and other papers, and on appeal shall be heard on

the record, without requirement of printing.

(15) To publish a list on the department's website of marketplace

providers whose certificates of authority have been revoked and, if

necessary to protect sales tax revenue, provide by regulation or

otherwise that a marketplace seller who is a vendor will be relieved of

the duty to collect tax for sales of tangible personal property

facilitated by a marketplace provider only if, in addition to the

conditions prescribed by paragraph two of subdivision (l) of section

eleven hundred thirty-two of this part being met, such marketplace

provider is not on such list at the commencement of the quarterly period

covered thereby.

16. To publish a list on the department's website regarding booking

services that have a valid certificate of authority and, if necessary to

protect sales tax revenue, provide by regulation or otherwise that a

short term rental unit operator will be relieved of the requirement to

register and the duty to collect tax on the rent for occupancy of a

short term rental unit facilitated by a booking service only if, in

addition to the conditions prescribed by paragraph two of subdivision

(m) of section eleven hundred thirty-two and paragraph six of

subdivision (a) of section eleven hundred thirty-four of this part being

met, such booking service has a valid certificate of authority at the

commencement of the quarterly period covered thereby.