N.Y. Tax Law § 283-a: Licensing of importing transporters

§ 283-a. Licensing of importing transporters. 1. The department, upon

the application of a person who transports motor fuel, shall license

such person as an importing transporter or exporting transporter, as the

case may be, 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 shall prescribe. No person, unless licensed

as an importing transporter, shall transport motor fuel in the state

where such motor fuel is being imported into the state for use,

distribution, storage or sale in the state. No person, unless licensed

as an exporting transporter, shall transport motor fuel in this state

where such motor fuel is being exported from a point in this state to

without this state.

2. Where a person files an application for licensing 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

article 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 State 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 license

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 license 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 commissioner may require a transporter seeking licensing to

file with the department 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 commissioner, in such amount as the

commissioner may fix, in an amount determined in accordance with rules

and regulations prescribed by the commissioner, to secure the

performance by such transporter of the duties and responsibilities

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

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

The commissioner may require that such a bond or other security be filed

before a transporter is licensed, and the amount thereof may be

increased at any time when in the commissioner's judgment the same is

necessary. If securities are deposited as security under this

subdivision, such securities shall be kept in the joint custody of the

comptroller and the commissioner and may be sold by the commissioner if

it becomes necessary so to do in order to recover against such

transporter but no such sale shall be had until after such transporter

shall have had opportunity to litigate the validity of the liability if

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

sums due shall be returned to such transporter. The department, when

authorized by the transporter, shall furnish information regarding the

transporter's license and any other information which the transporter

authorizes it to disclose.

4. The license of any importing or exporting transporter may be

cancelled or suspended by the commissioner where a licensee, or an

officer, director, shareholder, employee or partner of the licensee who

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

duty to act for such licensee or any shareholder directly or indirectly

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

licensee (where such licensee is a corporation) entitling the holder

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

licensee, fails to file a bond or other security when required or when

the amount thereof is increased, 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 with respect to motor

fuel adopted pursuant to such articles by the department 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 license as an importing

transporter or exporting transporter. A license may also be cancelled or

suspended if the commissioner determines that a licensee or an officer,

director, shareholder, employee or partner of the licensee who as such

officer, director, shareholder, employee or partner is under a duty to

act for such licensee or any shareholder directly or indirectly owning

more than ten percent of the number of shares of stock of the licensee

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

vote for the election of directors or trustees of such licensee:

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

committed fraud or deceit in procuring his license;

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

within or without the state, of a felony, as defined under subdivision

eight of section two hundred eighty-three of this article, bearing on

such transporter'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; or

(iv) 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.

A license may also be cancelled or suspended if the commissioner

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

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

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

licensee or any shareholder directly or indirectly owning more than ten

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

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

election of directors or trustees of such licensee, 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 license shall not be cancelled or suspended nor shall an

application for a license be refused unless the licensee or applicant

for a license has had an opportunity for a hearing, provided, however,

that an application for a license may be denied without a prior hearing.

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

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

the date prescribed for filing under this article or for nonpayment of

any sums due pursuant to this article or article twenty-eight or

twenty-nine of this chapter with respect to motor fuel if the licensee

shall have failed to file such return or report or pay such sums within

ten days after the date the demand therefor is sent by registered or

certified mail to the address of the transporter given in his

application for a license, or an address substituted therefor as in this

subdivision. A license may also be cancelled or suspended prior to a

hearing for the failure to continue to maintain in full force and effect

at all times the bond or other security filed with the commissioner.

Provided, however, if a surety bond is cancelled prior to expiration,

the commissioner, after considering all the relevant circumstances, may

make such other arrangements and require the filing of such other bond

or other security as the commissioner deems appropriate. Provided,

further, a license may be cancelled or suspended prior to a hearing for

the transfer of such license. A transporter shall immediately inform the

department, in writing, of any change in its address and, if the

transporter is a corporation or partnership, the transporter 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 a license.

6. The provisions of subdivisions six, eight, nine and ten of section

two hundred eighty-three of this article shall apply to the provisions

of this section in the same manner and with the same force and effect as

if the language of these subdivisions had been incorporated in full into

this section and had expressly referred to the importing transporter's

license or the exporting transporter's license under this section,

except to the extent that any such provision is either inconsistent with

a provision of this section or is not relevant to this section.