N.Y. Tax Law § 1817: Sales and compensating use taxes

§ 1817. Sales and compensating use taxes.-- (a) Any person required to

obtain a certificate of authority under section eleven hundred

thirty-four of this chapter who, without possessing a valid certificate

of authority, willfully (1) sells tangible personal property or services

subject to tax, receives amusement charges or operates a hotel or short

term rental unit, (2) purchases or sells tangible personal property for

resale, or (3) sells petroleum products; and any person who fails to

surrender a certificate of authority as required by such article shall

be guilty of a misdemeanor.

(b) Any person required to obtain a certificate of authority under

section eleven hundred thirty-four of this chapter who within five years

after a determination by the commissioner, pursuant to such section, to

suspend, revoke or refuse to issue a certificate of authority has become

final, and without possession of a valid certificate of authority (1)

sells tangible personal property or services subject to tax, receives

amusement charges or operates a hotel or short term rental unit, (2)

purchases or sells tangible personal property for resale, or (3) sells

petroleum products, shall be guilty of a misdemeanor. It shall be an

affirmative defense that such person performed the acts described in

this subdivision without knowledge of such determination. Any person who

violates a provision of this subdivision, upon conviction, shall be

subject to a fine in any amount authorized by this article, but not less

than five hundred dollars, in addition to any other penalty provided by

law.

(c) Any person who willfully fails to file a notice of a show as

required by article twenty-eight of this chapter or who willfully rents,

leases or grants a license to use space for a show or operates a show

without obtaining a permit pursuant to paragraph two of subdivision (b)

of section eleven hundred thirty-four of this chapter shall be guilty of

a misdemeanor.

(d) Any person (1) who willfully fails to charge separately the tax

imposed under article twenty-eight of this chapter or to state such tax

separately on any bill, statement, memorandum, receipt or other

statement issued or employed by him or her upon which the tax is

required to be stated separately as provided in subdivision (a) of

section eleven hundred thirty-two of this chapter; or (2) who shall

refer or cause reference to be made to such tax in a form or manner

other than that required by such article twenty-eight, shall be guilty

of a misdemeanor. Provided however, that a person who has paid the tax

on behalf of a retail purchaser as provided in subdivision (d) of

section eleven hundred thirty-three of this chapter shall not be guilty

of a misdemeanor for failure to separately charge the tax imposed by

such article twenty-eight.

(e) Any person willfully failing to file a bond or other security or

deposit taxes in any banking institution where such filing or deposit is

required pursuant to the provisions of paragraph two or three of

subdivision (e) of section eleven hundred thirty-seven of this chapter

shall be guilty of a misdemeanor.

(f) Any owner of a filling station who shall willfully and knowingly

have in his custody, possession or under his control any motor fuel or

diesel motor fuel on which (1) the prepaid tax imposed by section eleven

hundred two of this chapter has not been assumed or paid by a

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

(2) the prepaid tax imposed by section eleven hundred two of this

chapter was required to have been passed through to him and has not been

included in the cost of such fuel to him, shall in either case, be

guilty of a class E felony. For purposes of this subdivision, such owner

shall willfully and knowingly have in his custody, possession or under

his control any motor fuel or diesel motor fuel on which such tax has

not been assumed or paid by a distributor registered as such where such

owner has knowledge of the requirement that such tax be paid and where,

to his knowledge, such tax has not been assumed or paid by such

registered distributor on such motor fuel or diesel motor fuel. Such

owner shall willfully and knowingly have in his custody, possession or

under his control motor fuel or diesel motor fuel on which such tax is

required to have been passed through to him and has not been included in

the cost to him where such owner has knowledge of the requirement that

such tax be passed through and where to his knowledge such tax has not

been so included.

(g) Any person who willfully fails to keep any records required by

article twenty-eight of this chapter shall be guilty of a misdemeanor.

(h) The penalties provided for in this section shall not preclude

prosecution pursuant to the penal law with respect to the willful

failure of any person to pay over to the state any sales tax imposed by

section eleven hundred four, eleven hundred five, eleven hundred seven,

eleven hundred eight or eleven hundred nine of this chapter or by any

local law adopted by any city or county pursuant to article twenty-nine

of this chapter, whenever such person has been required to collect and

has collected any such sales tax. In any such prosecution under the

penal law, a person who has been required to collect and has collected

any such tax shall be deemed to have acted in a fiduciary character with

respect to the state or a political subdivision thereof, and the tax

collected shall be deemed to have been entrusted to such person by the

state or a political subdivision thereof.

(i) Any entertainment promoter who willfully authorizes an

entertainment vendor, to whom such promoter has either directly or

indirectly rented, leased, granted a license to use or under any other

arrangement made space available in order for such vendor to make

taxable sales of tangible personal property at an entertainment event,

without first requiring such vendor to obtain a certificate of authority

or who willfully fails to obtain an entertainment promoter certificate

as required under article twenty-eight of this chapter shall be guilty

of a misdemeanor.

(j) Any person described in subdivision (a) of section eleven hundred

forty-two-A of this chapter who willfully fails to include all

information required under such section on a ticket or other memorandum

as described in such section shall be guilty of a misdemeanor.

(k) Any owner of a place of business selling cigarettes at retail who

shall willfully and knowingly have in such owner's custody or possession

or under such owner's control any cigarettes on which (1) the prepaid

tax imposed by section eleven hundred three of this chapter has not been

assumed or paid by an agent licensed as such under article twenty of

this chapter or (2) the prepaid tax imposed by section eleven hundred

three of this chapter was required to have been passed through to such

owner and has not been included in the cost of such cigarettes to such

owner shall, in either case, be guilty of a misdemeanor. Provided,

however, if the amount of cigarettes is twenty thousand or more, such

owner shall be guilty of a class E felony. For purposes of this

subdivision, such owner shall willfully and knowingly have in such

owner's custody or possession or under such owner's control any

cigarettes on which such tax has not been assumed or paid by an agent

licensed as such under such article twenty where such owner has

knowledge of the requirement that such tax be assumed or paid and where,

to such owner's knowledge, such tax has not been assumed or paid by such

an agent on such cigarettes. Such owner shall willfully and knowingly

have in such owner's custody or possession or under such owner's control

cigarettes on which such tax is required to have been passed through to

such owner and has not been included in the cost to such owner where

such owner has knowledge of the requirement that such tax be passed

through and where to such owner's knowledge such tax has not been so

included.

(l) Any person who falsely or fraudulently makes, alters or

counterfeits any stamp prescribed by the commissioner under the

provisions of article twenty-eight or pursuant to the authority of

article twenty-nine of this chapter, or causes or procures to be falsely

or fraudulently made, altered or counterfeited any such stamp, or

knowingly and willfully utters, purchases, passes or tenders as true any

such false, altered or counterfeited stamp, or knowingly and willfully

possesses any cigarettes in packages bearing any such false, altered or

counterfeited stamp, and any person who knowingly and willfully makes,

causes to be made, purchases or receives any device for forging or

counterfeiting any stamp prescribed by the commissioner under the

provisions of article twenty-eight or pursuant to the authority of

article twenty-nine of this chapter, or who knowingly and willfully

possesses any such device, shall be guilty of a class E felony. For the

purposes of this subdivision, the words "stamp prescribed by the

commissioner" shall include a stamp, impression or imprint made by a

metering machine, the design of which has been approved by the

commissioner.

(m) All of the provisions of this section shall apply for purposes of

any taxes administered by the commissioner and imposed pursuant to the

authority of article twenty-nine of this chapter and for the purposes of

any taxes imposed by article twenty-eight-A of this chapter. References

in subdivisions (f), (k), and (l) of this section to taxes imposed by or

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

chapter include the taxes required to be prepaid pursuant to section

eleven hundred two or eleven hundred three of this chapter.

(n) (1) Every person engaged in the retail sale of motor fuel and/or

diesel motor fuel or a distributor of such fuels, as defined in article

twelve-A of this chapter, shall comply with the provisions of section

three hundred ninety-two-i of the general business law by reducing the

prices charged for motor fuel and diesel motor fuel in an amount equal

to any reduction in taxes prepaid by the distributor or imposed on

retail customers resulting from computing sales and compensating use

taxes at a cents per gallon rate pursuant to the provisions of paragraph

two of subdivision (e) and subdivision (m) of section one thousand one

hundred eleven of this chapter.

(2) The commissioner shall monitor the prices charged by persons

engaged in the retail sale or distribution of motor fuel and diesel

motor fuel.

(3) Upon a finding by the commissioner that a person engaged in the

retail sale of motor fuel and/or diesel motor fuel or in the

distribution of such fuels has violated the provisions of section three

hundred ninety-two-i of the general business law, the commissioner shall

provide notice of such violation to such person and hold a hearing on

such violation, with an opportunity for the accused to be heard, not

less than ten days after notice is provided. A violation of section

three hundred ninety-two-i of the general business law shall subject the

person violating such section to a civil penalty of up to five thousand

dollars for each day such violation occurs.