N.Y. Tax Law § 1142-a: Special requirements relating to the service of providing parking, garaging or storing for motor vehicles

§ 1142-A. Special requirements relating to the service of providing

parking, garaging or storing for motor vehicles. (a) Every person

required to collect the taxes described in paragraph six of subdivision

(c) of section eleven hundred five, subdivision (c) of section eleven

hundred seven and paragraph one of subdivision (a) of section twelve

hundred twelve-A of this chapter, or, if the tax described in

subdivision (c) of section eleven hundred seven of this article is not

in effect, a similar tax imposed pursuant to the authority of

subdivision (a) of section twelve hundred ten of this chapter, in a

county with a population density in excess of fifty thousand persons per

square mile in any city in this state having a population of one million

or more, shall be subject to the requirements set forth in this section,

except as otherwise provided herein.

(b) Every person described in subdivision (a) of this section shall

keep records in addition to the records required to be kept by section

eleven hundred thirty-five of this article. Such additional records

shall include copies of each ticket or other documentation given to each

purchaser of such service, which such person shall be required to

furnish to each such purchaser at the initiation of such parking,

garaging or storing, except as hereinafter provided. Such tickets or

other documentation shall be consecutively numbered or issued by a

computer, in a manner approved by the commissioner, and shall indicate

the date and time of entry of the motor vehicle. The date and time of

exit of such motor vehicle shall also be indicated on the ticket or

other documentation (or the copy thereof) retained by such person

described in subdivision (a) of this section except where such person

charges a flat fee for any such service based on time elapsed, the price

for such service is indicated on the ticket or other memorandum as a

flat fee and it is not the practice of such person to date- and

time-stamp the ticket or other documentation when the purchaser pays for

such service for which a flat fee is charged. In the case of a monthly

or longer term purchaser to whom such a ticket or other documentation is

issued, such ticket or other documentation shall include such

purchaser's (1) printed name and signature or (2) identification number

assigned to such purchaser by such person required to collect tax.

Provided, however, that where such person required to collect tax sells

such service on a monthly or longer term basis and issues a computer

access card or a prenumbered decal or tag to the purchaser, then such

person shall not be required to give such a ticket or such other

documentation to any such purchaser to whom such card, decal or tag has

been issued, or to retain copies thereof. Such person required to

collect tax shall retain a list containing the name, address and

signature of each monthly or other longer-term purchaser of service, the

valid period of such monthly or longer-term service, and the number of

authorized vehicles entitled to such parking services, without regard to

whether a ticket or other documentation is issued to such purchaser.

(c) Such persons required to collect tax, described in subdivision (a)

of this section, shall file, together with, and as a part of, the

returns required under sections eleven hundred thirty-six and twelve

hundred fifty-one of this chapter, a report or schedule, or make a

separate entry thereon, in the discretion of the commissioner, for each

separate garage, parking lot or other place of business where such

person provides parking, garaging or storing services in such a county.

Such report or schedule shall not include any receipts from any garage,

parking lot or other place of business located outside such a county.

Such report or schedule shall identify the specific location and

address, and licensed capacity if licensed, of each such garage, parking

lot or other place of business. If such garage, parking lot or other

place of business has been licensed by an agency of a city, the report

or schedule shall include any applicable license number. Such report or

schedule shall include for each monthly period included therein such

schedules of additional information, data and other matters as shall be

prescribed by the commissioner of taxation and finance. Such returns

required under sections eleven hundred thirty-six and twelve hundred

fifty-one for such persons described in subdivision (a) of this section

shall be deemed incomplete and not filed unless the separate information

required to be reported for each separate garage, parking lot or other

place of business is contained therein.

(d) Upon the arrival of the commissioner, or any authorized employee

of the department or agent of such commissioner or such department, at

the premises of a person required to collect tax, described in

subdivision (a) of this section, the announcing by such commissioner,

agent or employee of his or her presence and the display of his or her

identification to such person or to any officer or employee of such

person, such commissioner, employee or agent may, during the hours that

such premises are open for business, enter and walk about the portion of

the premises in such a county where such person required to collect tax

provides such service of parking, garaging or storing for motor

vehicles. Such person and the officers and employees of such persons

shall not interfere with the commissioner or such employee or agent when

such commissioner, employee or agent enters and walks about such

premises to observe or record the make, model and license plate number

of any vehicle parked, entering, exiting or being operated within such

premises, the length of time such vehicle is on such premises, the true

motor vehicle capacity of the premises, and the series of tickets or

other memoranda, and their numbers, being issued at the time of the

observation or recording. Such entering and walking about and such

observation and recording are to be performed only in connection with an

examination of a return, report or schedule, or entry thereon, of such

person required to be filed under or pursuant to articles twenty-eight

and twenty-nine of this chapter or in connection with the liability of

such person for tax required to be shown on such return, report or

schedule, or during the consideration of the initiation of such an

examination. Nothing in this section shall authorize or be construed to

authorize a forced entry into the premises; a search of the premises,

with or without a warrant; the entry into any vehicle or compartment or

container thereof, whether locked or unlocked; the seizure of any

person, property, books, records, documents or other matter or thing; or

the use of any information obtained by such observation or recording in

any civil or criminal proceeding. Provided, however, that: (1) any such

information may be used to assess, determine, fix, collect, enforce or

administer any tax, fee, penalty or interest imposed on the person

required to collect tax, described in subdivision (a) of this section,

under or pursuant to articles twenty-eight and twenty-nine of this

chapter; and (2) may be used in the prosecution of any crime or offense

related thereto pursuant to articles twenty-eight and twenty-nine of

this chapter or the penal law where such information was obtained either

as a result of the entry and walking about of an area as to which the

person required to collect the tax has no reasonable expectation of

privacy or as a result of a lawful investigative procedure other than

the entry and walking about authorized pursuant to this subdivision.

Such entry and walking about shall be sought and made only during the

hours that such premises are open for business. The commissioner of

taxation and finance, such employee of the department and such agent of

the commissioner or such department shall not be required to give notice

to such person or such person's representative of an intent to enter the

premises prior to the time that such commissioner, employee or agent

arrives at such person's premises.

(e) Every person described in subdivision (a) of this section shall,

upon receipt of a certificate of authority and on an annual basis

thereafter, provided such person periodically re-registers and remains

in possession of such certificate of authority, receive from the

commissioner a copy of subdivision (d) of this section, a copy of all

rules and regulations adopted thereunder, and a written explanation of

the power of the commissioner of taxation and finance to enter and walk

about and the limitations thereon. Provided, however, that absence of

notice will not constitute a defense in any proceeding brought under

this chapter.

(f) The commissioner shall prepare, have printed and distribute to

every person described in subdivision (a) of this section, a sign or

poster that provides notice that the premises of such person are subject

to periodic inspections by the department for purposes of enforcing this

article. Such sign or poster must have conspicuous lettering in at least

seventy-two point bold face type, except that such sign or poster shall

be captioned with the word "notice" in at least two inch lettering. Such

person shall prominently display such sign or poster in each place of

business where such person provides parking, garaging or storing

services.

(g) An organization described in subdivision (a) of section eleven

hundred sixteen of this article shall be exempt from the requirements of

this section. Nothing in this subdivision shall be construed to exempt

any other person from the requirements of this section, whether or not

such other person operates a garage, parking or other place of business

or sells the services of providing parking, garaging or storing for

motor vehicles for or on behalf of such an organization or on the

property of such an organization.

(h) The failure of any person described in subdivision (a) of this

section to keep any of the records required to be kept by such person in

the manner provided for any portion of the period during which tax can

be determined or the inability of the commissioner or any authorized

employee of the department, or agent of either of them, to enter and

walk about such person's premises for the purposes described in

subdivision (d) of this section due to such person's lack of cooperation

or interference in affording such entering and walking about for such

purposes shall be sufficient grounds under subdivision (a) of section

eleven hundred thirty-eight of this article for the commissioner to

estimate on the basis of such external indices selected by the

commissioner the amount of tax that is due from such person.

(i) The commissioner shall promulgate rules and regulations necessary

to implement the provisions of this section.

(j) The commissioner, by regulation, shall establish procedures

designed to require implementation of subdivision (d) of this section in

a manner that will not unreasonably interfere with the operation of the

person described in subdivision (a) of this section, with respect to

such person providing the service of parking, garaging or storing of

motor vehicles. Such regulations shall take into account reasonable time

periods for such commissioner, agent or employee to arrive at the

premises of such person.

(k) If a person described in subdivision (a) of this section can

demonstrate to the satisfaction of the commissioner that due to the

limited annual liability incurred under this article, the provisions of

this section create undue hardship for such person, then such person

shall not be required to comply with the provisions of this section;

provided, however, that such person must comply with such other

recordkeeping requirements as the commissioner may require. The

commissioner shall establish general rules for which such hardship can

be claimed.