N.Y. Tax Law § 283: Registration of distributors

§ 283. Registration of distributors. 1. The department of taxation and

finance, upon the application of a person, shall register such person as

a distributor under this article except as provided in subdivisions two

and five of this section. The application shall be in a form and contain

such data as the department of taxation and finance shall prescribe. No

person, unless so registered, shall import or cause any motor fuel to be

imported into the state, for use, distribution, storage or sale within

the state or shall produce, refine, manufacture or compound motor fuel

within the state. No distributor, unless so registered, shall make any

sale, transfer, use or other disposition of motor fuel within the state,

except a sale, transfer, use or other disposition, if any, as to which

the state cannot impose such condition by reason of the United States

constitution and of laws of the United States enacted pursuant thereto.

2. Where a person files an application for registration under this

section and in considering such application the commissioner ascertains

that (a) any tax imposed under this chapter or any related statute as

defined in section eighteen hundred of this chapter has been finally

determined to be due from such applicant or from any officer, director

or partner of such applicant, shareholder directly or indirectly owning

more than ten percent of the number of shares of stock of such applicant

(where such applicant is a corporation) entitling the holder thereof to

vote for the election of directors or trustees, or any shareholder or

employee of such applicant under a duty to file a return under or

pursuant to the authority of this article or pay the taxes imposed by or

pursuant to the authority of this article on behalf of such applicant,

and has not been paid in full, (b) a liability for the penalty provided

for under subdivision two of section two hundred eighty-nine-b of this

chapter has been finally determined to be due from an officer, director,

shareholder directly or indirectly owning more than ten percent of the

number of shares of stock of such applicant (where such applicant is a

corporation) entitling the holder thereof to vote for the election of

directors or trustees, employee or partner of such applicant or a

shareholder of such applicant under a duty to file a return under or

pursuant to the authority of this article or pay the taxes imposed by or

pursuant to the authority of this article on behalf of such applicant,

and has not been paid in full, (c) such applicant has been convicted of

a crime provided for in this chapter or has been convicted under the tax

laws or penal laws of any other state, or a political subdivision of

this state or such other state, or of the United States of a criminal

offense which, if committed and prosecuted in this state, would

constitute a similar crime under this chapter, within the preceding five

years, (d) an officer, director or partner of such applicant, a

shareholder directly or indirectly owning more than ten percent of the

number of shares of stock of such applicant (where such applicant is a

corporation) entitling the holder thereof to vote for the election of

directors or trustees, or an employee or shareholder of such applicant

who, as such employee or shareholder, is under a duty to file a return

under or pursuant to the authority of this article or pay the taxes

imposed by or pursuant to the authority of this article on behalf of

such applicant, has been convicted of a crime provided for in this

chapter or has been convicted under the tax laws or penal laws of any

other state, or a political subdivision of this state or such other

state, or of the United States of a criminal offense which, if committed

and prosecuted in this state, would constitute a similar crime under

this chapter, within the preceding five years, or an employee of such

applicant was, in his capacity as a person under a duty to file a return

under or pursuant to the authority of this article or pay the taxes

imposed by or pursuant to the authority of this article on behalf of any

person, convicted of a crime provided for in this chapter or has been

convicted under the tax laws or penal laws of any other state, or a

political subdivision of this state or such other state, or of the

United States of a criminal offense which, if committed and prosecuted

in this state, would constitute a similar crime under this chapter,

within the preceding five years, (e) such applicant, or an officer,

director or partner of such applicant, shareholder directly or

indirectly owning more than ten percent of the number of shares of stock

of such applicant (where such applicant is a corporation) entitling the

holder thereof to vote for the election of directors or trustees, or

employee or shareholder of such applicant under a duty to file a return

under or pursuant to the authority of this article or to pay the taxes

imposed by or pursuant to the authority of this article on behalf of

such applicant, who was an officer, director or partner of another

person, or who directly or indirectly owned more than ten percent of the

number of shares of stock of another person (where such other person is

a corporation) entitling the holder thereof to vote for the election of

directors or trustees, or who was an employee or shareholder of another

person under a duty to file a return under or pursuant to the authority

of this article or pay the taxes imposed by or pursuant to the authority

of this article on behalf of such other person at the time any tax

imposed under this chapter or any related statute as defined in section

eighteen hundred of this chapter was finally determined to be due, from

such other person and where such tax has not been paid in full, or at

the time such other person was convicted of a crime provided for in this

chapter or has been convicted under the tax laws or penal laws of any

other state, or a political subdivision of this state or such other

state, or of the United States of a criminal offense which, if committed

and prosecuted in this state, would constitute a similar crime under

this chapter, within the preceding five years, or at the time the

registration of such other person was cancelled or suspended pursuant to

subdivision four of this section within the preceding five years, or at

the time such other person committed any of the acts or omissions which

are, or was convicted as, specified in subdivision four of this section

within the preceding five years, provided, however, where an applicant

or such officer, director, partner, shareholder or employee of such

applicant was only an employee of another person, the applicable

examination of tax payment history of such other person shall be limited

to the taxes imposed by this article or by or pursuant to article

twenty-eight or twenty-nine of this chapter with respect to motor fuel

and the applicable examination of prior criminal convictions shall be

limited to those which relate to motor fuel, (f) the registration of

such applicant or of an officer, director or partner of such applicant,

shareholder directly or indirectly owning more than ten percent of the

number of shares of stock of such applicant (where such applicant is a

corporation) entitling the holder thereof to vote for the election of

directors or trustees, or employee or shareholder of such applicant

under a duty to file a return under or pursuant to the authority of this

article or to pay the taxes imposed by or pursuant to the authority of

this article on behalf of such applicant has been cancelled or suspended

pursuant to subdivision four of this section within the preceding five

years, or (g) the applicant, an officer, director or partner of the

applicant, a shareholder directly or indirectly owning more than ten

percent of the number of shares of stock of such applicant (where such

applicant is a corporation) entitling the holder thereof to vote for the

election of directors or trustees, or an employee or shareholder of such

applicant under a duty to file a return under or pursuant to the

authority of this article or to pay the taxes imposed by or pursuant to

the authority of this article on behalf of the applicant, has committed

any of the acts or omissions which are, or was convicted as, specified

in subdivision four of this section within the preceding five years, the

commissioner may refuse to register such applicant.

3. The tax commission shall require a distributor to file with the

department of taxation and finance a bond issued by a surety company

approved by the superintendent of financial services as to solvency and

responsibility and authorized to transact business in this state or

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

tax commission may fix, in an amount determined in accordance with rules

and regulations prescribed by it, to secure the payment of any sums due

from such distributor (i) pursuant to this article and (ii) pursuant to

articles twenty-eight and twenty-nine of this chapter with respect to

sales and uses of motor fuel. The tax commission shall require that such

a bond or other security be filed before a distributor is registered,

and the amount thereof may be increased at any time when in its judgment

the same is necessary as a protection to the revenues under this article

and articles twenty-eight and twenty-nine of this chapter. If securities

are deposited as security under this subdivision, such securities shall

be kept in the joint custody of the comptroller and 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

distributor (i) pursuant to this article and (ii) pursuant to articles

twenty-eight and twenty-nine of this chapter with respect to sales and

uses of motor fuel, but no such sale shall be had until after such

distributor shall have had opportunity to litigate the validity of any

tax if it elects so to do. Upon any such sale the surplus, if any, above

the sums due (i) under this article and (ii) pursuant to articles

twenty-eight and twenty-nine of this chapter with respect to sales and

uses of motor fuel shall be returned to such distributor. The

department, when authorized by the distributor, shall furnish

information regarding the distributor's registration and any other

information which the distributor authorizes it to disclose.

4. The registration of any distributor may be cancelled or suspended

by the commissioner where a registrant, or an officer, director,

shareholder, employee or partner of the registrant who as such officer,

director, shareholder, employee or partner is under a duty to act for

such registrant or any shareholder directly or indirectly owning more

than ten percent of the number of shares of stock of the registrant

(where such registrant is a corporation) entitling the holder thereof to

vote for the election of directors or trustees of such registrant, fails

to file a bond or other security when required or when the amount

thereof is increased, or fails to continue to maintain in full force and

effect at all times the required bond or other security filed with the

commissioner, or fails to comply with any of the provisions of this

article or article twenty-eight of this chapter with respect to motor

fuel or any rule or regulation adopted pursuant to this article or

article twenty-eight of this chapter with respect to motor fuel by the

department of taxation and finance or by the commissioner, or knowingly

aids and abets another person in violating any of the provisions of such

articles or of any such rule or regulation with respect to motor fuel,

or transfers its registration as a distributor without the prior written

approval of the commissioner. A registration may also be cancelled or

suspended if the commissioner determines that a registrant or an

officer, director, shareholder, employee or partner of the registrant

who as such officer, director, shareholder, employee or partner is under

a duty to act for such registrant or any shareholder directly or

indirectly owning more than ten percent of the number of shares of stock

of the registrant (where such registrant is a corporation) entitling the

holder thereof to vote for the election of directors or trustees of such

registrant:

(i) commits fraud or deceit in his operations as a distributor or has

committed fraud or deceit in procuring his registration;

(ii) has been convicted in a court of competent jurisdiction, either

within or without the state, of a felony, within the meaning of

subdivision eight of this section, bearing on such distributor's duties

and obligations under this chapter;

(iii) has knowingly aided and abetted a person who is not registered

as a distributor in the importation, production, refining, manufacture

or compounding of motor fuel;

(iv) has impersonated any person represented to be a distributor under

this article but not in fact registered under this section; or

(v) has knowingly aided and abetted the distribution of motor fuel

imported, caused to be imported, produced, refined, manufactured or

compounded by a distributor who is not registered by the department of

taxation and finance.

A registration may also be cancelled or suspended if the commissioner

determines that a registrant or an officer, director, shareholder,

employee or partner of the registrant who as such officer, director,

shareholder, employee or partner is under a duty to act for such

registrant or any shareholder directly or indirectly owning more than

ten percent of the number of shares of stock of the registrant (where

such registrant is a corporation) entitling the holder thereof to vote

for the election of directors or trustees of such registrant, was an

officer, director, shareholder, employee or partner of another person

who as such officer, director, shareholder, employee or partner was

under a duty to act for such other person or was a shareholder directly

or indirectly owning more than ten percent of the number of shares of

stock of such other person (where such other person is a corporation)

entitling the holder thereof to vote for the election of directors or

trustees of such other person at the time such other person committed

any of the acts or omissions which are, or was convicted as, specified

in this subdivision within the preceding five years.

5. A registration shall not be cancelled or suspended nor shall an

application for registration be refused unless the registrant or

applicant has had an opportunity for a hearing, provided, however, that

an application for registration may be denied without a prior hearing.

Provided, further, a registration may be cancelled or suspended without

a prior hearing, for failure to file a return within ten days of the

date prescribed for filing a return under this article or article

twenty-eight of this chapter with respect to sales and uses of motor

fuel, or for nonpayment of any taxes due pursuant to this article or

article twenty-eight or twenty-nine of this chapter with respect to

sales and uses of motor fuel if the registrant shall have failed to file

such return or pay such taxes within ten days after the date the demand

therefor is sent by registered or certified mail to the address of the

distributor given in his application for registration, or an address

substituted therefor as provided in this subdivision. A registration may

be cancelled or suspended prior to a hearing for the failure to continue

to maintain in full force and effect at all times the required bond or

other security filed with the tax commission. Provided, however, if a

surety bond is cancelled prior to expiration, the tax commission, after

considering all the relevant circumstances, may make such other

arrangements and require the filing of such other bond or other security

as it deems appropriate. Provided, further, a registration may be

cancelled or suspended prior to a hearing for the transfer of such

registration without the prior written approval of the state tax

commission. A distributor shall immediately inform the department, in

writing, of any change in its address and, if the distributor is a

corporation or partnership, the distributor shall immediately inform the

department, in writing, of any change in its officers, directors or

partners or their residence addresses as shown in its application for

registration.

6. (a) A notice of proposed cancellation or suspension of registration

or refusal to register shall be given to the person registered pursuant

to this article or to a person applying for such registration in the

manner prescribed for a notice of determination of tax and all the

provisions of this article applicable to a notice of determination under

section two hundred eighty-eight of this chapter, including, but not

limited to, those provisions authorizing the commissioner to make a

redetermination on the commissioner's own motion, shall apply to a

notice issued pursuant to this subdivision, insofar as such provisions

can be made applicable to the notice authorized by this subdivision,

with such modifications as may be necessary in order to adapt the

language of such provisions to the notice authorized by this

subdivision. In the case of a person applying to register, a notice of

proposed refusal to register shall be issued promptly after application

for registration is received by the commissioner. Upon timely

application therefor, a hearing shall be scheduled in the division of

tax appeals, and within three months from such application for hearing

(determined with regard to any postponements of any scheduled hearing or

conference or other delay made at the request of the applicant) the

administrative law judge shall render a determination either upholding

the commissioner's refusal to register or ordering the commissioner to

register the applicant. Within fifteen days after the giving of notice

of the administrative law judge's determination, the applicant or the

commissioner may take exception to the determination. If an exception is

taken, the tax appeals tribunal, within seventy-five days from the date

of notice to the tribunal that exception is being taken to an

administrative law judge's determination, shall issue a decision either

affirming or reversing such determination. If the administrative law

judge renders a determination ordering the commissioner to register the

applicant and the commissioner takes exception to such determination,

the commissioner shall not be required to register such applicant unless

and until the tax appeals tribunal issues a decision affirming such

determination. The applicant shall not be registered until there has

been filed a bond or other security in the required amount. Such notice

of proposed cancellation or suspension or of proposed refusal to

register must be given to such person within five years from the date of

the act or omission referred to in subdivision two or four of this

section, except that in the case of acts involving falsity or fraud,

such notice may be issued at any time. All of such notices of proposed

cancellation or suspension or of proposed refusal to register shall

contain a statement advising the person to whom it is issued that the

cancellation, suspension or refusal to register may be challenged

through a hearing process and that the petition for such challenge must

be filed with the division of tax appeals within ninety days after the

giving of such notice. Where a registration is cancelled or suspended

prior to a hearing, the cancellation or suspension may be challenged

through the hearing process provided the petition for such challenge is

filed within ninety days after the giving of notice of such cancellation

or suspension.

(b) Notwithstanding any other provision to the contrary:

(i) In the event that the commissioner determines that an increase in

the amount of the bond or other security filed by a registrant is

required to secure the liability of such registrant, such bond increase

or other security increase must be filed by such registrant within

thirty days from the day the notice and demand therefor has been given

by the commissioner. If the registrant fails to (A) file such increase

in the amount of bond or other security within such period or (B) make

timely application for a hearing with particular respect to the amount

of the increase of such bond or other security, the commissioner shall

cancel or suspend the registration of such registrant.

(ii) The registrant may apply to the division of tax appeals for a

hearing to review an increase in the amount of the bond or other

security required to be filed by making application therefor within

seven days of the day that the notice and demand for an increase is

given by the commissioner, provided, the division of tax appeals may, by

regulation, for the causes stated therein, extend such period to a

period not exceeding fifteen days from the day such notice and demand is

given. If the registrant timely applies for a hearing to review the

increase, such hearing shall be held, unless extended by the division of

tax appeals for good cause, no less than seven days and no more than ten

days after the application for a hearing is received by the division of

tax appeals. Within fifteen days of the receipt of the application for a

hearing, unless extended by the division of tax appeals, the

administrative law judge shall render a determination with respect to

the increase in the amount of the bond or other security and, if the

amount of such bond or other security is determined to be due, such

increase shall be filed within seven days from the day the

administrative law judge gives notice of the determination, or, if

later, thirty days from the day the notice and demand for the increase

had been given by the commissioner. Notwithstanding that the registrant

takes exception to the administrative law judge's determination that an

increased bond or other security is due, if the increased bond or other

security is not filed within such time, the commissioner shall cancel or

suspend the registration of the registrant. Where the administrative law

judge determines that an increased bond or other security is not due but

such determination is reversed by the tax appeals tribunal, if the

increased bond or other security is not filed within seven days from the

day the tax appeals tribunal gives notice of its decision

notwithstanding any judicial review of such decision of the tax appeals

tribunal, the commissioner shall cancel or suspend the registration of

the registrant.

7. Temporary restraining order and permanent injunction against

unlawful importation and forfeiture of unlawfully imported or produced

motor fuel or diesel motor fuel. (a) Whenever evidence is furnished by

the commissioner to any justice of the supreme court, in court or at

chambers, showing that any person not registered as a distributor as

required by this article has imported motor fuel or diesel motor fuel

into this state or caused motor fuel or diesel motor fuel to be imported

into this state or has produced, refined, manufactured or compounded

motor fuel or diesel motor fuel, such justice may make a temporary order

without notice prohibiting such person and his agents from selling,

transferring or otherwise disposing of any such fuel or any fuel and

also prohibiting all other persons in possession of or having control

over the same from selling, releasing, transferring or otherwise

disposing of any motor fuel or diesel motor fuel imported, produced,

refined, manufactured, compounded, sold or transferred by such person

not so registered pending a hearing for a preliminary injunction.

(b) Upon granting a temporary order, the court shall direct that a

hearing be held at the earliest possible time upon such notice and

service as the court shall direct and at the same time, if such action

has not yet been commenced, the commissioner shall commence an action in

supreme court for a permanent injunction and forfeiture of motor fuel or

diesel motor fuel pursuant to paragraph (c) of this subdivision. Where,

after such opportunity for a hearing, the court determines that there is

a substantial probability that the commissioner will prevail in such

action, the court shall grant a preliminary injunction restraining the

sale, release, transfer or other disposition of fuel subject to the

temporary order.

(c) (1) If it is established by clear and convincing evidence that

motor fuel or diesel motor fuel was imported, caused to be imported,

produced, refined, manufactured or compounded by any person not

registered as a distributor as required by this article, the court shall

grant a judgment (i) permanently enjoining such person and his agents

from selling, transferring or otherwise disposing of any such fuel or

any fuel within this state and (ii) declaring the forfeiture of any fuel

that was so imported, caused to be imported, produced, refined,

manufactured, or compounded by such person.

(2) With respect to motor fuel or diesel motor fuel that was imported,

caused to be imported, produced, refined, manufactured or compounded, by

a person not registered as a distributor as required by this article or

that was unlawfully sold or transferred by such person, if it is

established by clear and convincing evidence that any other person in

possession of or having control over such fuel was not a purchaser or

transferee in good faith of such fuel with respect to the fact that such

fuel was so imported, caused to be imported, produced, refined,

manufactured, or compounded by a person not registered as a distributor

as required by this article or that such fuel was so unlawfully sold or

transferred by such person, the court shall grant a judgment (i)

permanently enjoining such other person and his or her agents from

selling, releasing, transferring or otherwise disposing of any such fuel

and (ii) declaring the forfeiture of such fuel in the possession or

under the control of such other person.

(d) The commissioner may, at any time subsequent to the granting of

the temporary order pursuant to paragraph (a) of this subdivision, in

his or her sole discretion consent to a sale of motor fuel or diesel

motor fuel subject to such temporary order which is in the possession or

under the control of a person other than the person or the agent of the

person who imported, caused to be imported, produced, refined,

manufactured, compounded or unlawfully sold or transferred such fuel. As

a condition of granting permission to a sale of motor fuel or diesel

motor fuel pursuant to this subdivision, the commissioner shall require

the payment of all taxes, penalties and interest imposed by and pursuant

to the authority of this chapter with respect to such fuel.

(e) (1) At any time during the pendency of an action under this

section, the motor fuel or diesel motor fuel subject to a temporary,

preliminary or permanent order hereunder may be released from the scope

of such order if there is given an undertaking, in an amount equal to

the market value of such fuel plus state excise and sales taxes and

federal excise taxes, to the effect that there will be paid to the

commissioner the amount of the market value of such fuel and such taxes

in the event that such fuel is adjudged forfeited.

(2) Any person enjoined by a temporary order or a preliminary

injunction issued pursuant to this subdivision may move at any time, on

notice, to vacate or modify it.

(f) The procedures of the civil practice law and rules applicable to

temporary restraining orders, preliminary injunctions and permanent

injunctions not inconsistent with this subdivision shall apply to

temporary orders, preliminary injunctions and permanent injunctions

issued under this subdivision and any provision of this subdivision

which is not in accord with the constitutional mandate of such

procedures of the civil practice law and rules shall be deemed to be

modified as necessary to accord with such a mandate. The procedural

provisions set forth in paragraph three of subdivision (d) and in

subdivision (j) of section eighteen hundred forty-eight of this chapter

shall apply to the forfeiture proceedings under this subdivision and, in

respect to a declaration of forfeiture under this subdivision, the court

shall direct the commissioner to sell or otherwise dispose of such

forfeited motor fuel or diesel motor fuel on such conditions the

commissioner deems most advantageous and just under the circumstances.

The commissioner shall not be required to file any undertaking in

connection with an action pursuant to this subdivision.

8. (a) For the purposes of this section, in determining whether any

person has been convicted of a felony, the provisions of this

subdivision shall apply; provided, however if any such conviction be

subsequently set aside or reversed upon appeal and the accused acquitted

or discharged, the registration which has been cancelled or suspended as

a result of such conviction shall be restored.

(b) A conviction of a felony shall include the conviction of a felony

by any court in this state or by any court of the United States or by

any court of any other state of the United States; provided, however,

that if a crime of which a person is convicted by any court of the

United States or any other state is a felony in the jurisdiction in

which the conviction is had but is not a felony in the state of New

York, then the conviction shall not be deemed a conviction of a felony

for the purpose of this article. In the event that a crime of which a

person is convicted by any court of the United States or by any court of

any other state is not a felony in the jurisdiction in which the

conviction is had but is a felony in the state of New York, then the

conviction shall be deemed a conviction of a felony for the purposes of

this article.

(c) If a person convicted of a felony or crime deemed hereby to be a

felony is subsequently pardoned by the governor of the state where such

conviction was had, or by the president of the United States, or shall

receive a certificate of relief from disabilities or a certificate of

good conduct pursuant to article twenty-three of the correction law for

the purpose of removing the disability under this section because of

such conviction, the tax commission may, in its discretion, on

application of such person and compliance with subdivision two of this

section, and on the submission to it of satisfactory evidence of good

moral character and suitability, again register such person as a

distributor under this article.

9. (a) The registration granted to a distributor by the state tax

commission shall be personal to the person to whom it is granted. The

transfer of such registration without the prior written approval of the

state tax commission is invalid and such transfer without approval shall

be grounds for the immediate cancellation or suspension of the

registration of the registrant. The tax commission shall establish by

rule or regulation a specific procedure for the review of an application

for registration in these instances where there has been a proposed

transfer of registration, and the tax commission in making its

determination with respect to such approval shall review such

application in such instance as any other application for registration

under this section and shall make its determination in accordance with

the criteria set forth in this section. Provided further, the state tax

commission shall issue a determination with respect to such application

where there has been a proposed transfer of registration within

seventy-five days after the day of the receipt of a properly completed

application containing such information as the said tax commission may

require. If the tax commission fails to issue a determination within

such time, the tax commission shall be required to register such

proposed transferee.

(b) For the purposes of this subdivision, a registration shall be

considered to be transferred where, among other things, there is any

addition or substitution of a partner of the registrant or the

acquisition by any person of such shares of stock of the registrant

(where such registrant is a corporation) so that such person becomes the

owner of more than ten percent of the number of shares of stock of such

registrant entitling the holder thereof to vote for the election of

directors or trustees. Provided, however, where stock of the registrant

or a partnership interest in the registrant or, where the registrant is

a sole proprietorship, the interest of the decedent therein along with

the registration, is transferred pursuant to bequest or inheritance to

(A) an ancestor of the decedent, (B) the spouse of the decedent, (C) a

lineal descendent of the decedent, of the descendent's spouse, or of a

parent of the decedent, or (D) the spouse of any lineal descendent

described in (C) hereof, such transfer shall not, in and of itself, be

grounds for cancellation or suspension. Provided, however, within ninety

days of the death of the decedent in such instance, the registrant, the

personal representative of the decedent's estate or such person

described in subparagraphs (A), (B), (C) or (D) of this paragraph must

submit a revised application for registration as a distributor. The

state tax commission may then cancel or suspend the registration because

of the existence of grounds to do so specified in this section for

refusal or denial of an application for registration or for cancellation

or suspension of a registration. The failure to submit a revised

application for registration within such ninety day period shall be

grounds for immediate cancellation or suspension of the registration.

10. For purposes of this section, where reference is made to

ownership, directly or indirectly, of more than ten percent of the

shares of stock of the applicant or another person entitling the holder

thereof to vote for the election of directors or trustees, in the case

of an applicant or another person which at the relevant time has four or

fewer shareholders holding shares entitling the holders thereof to vote

for the election of directors or trustees, twenty-five percent or more

shall be substituted as the applicable percentage in such references to

ownership, directly or indirectly, of voting stock.