N.Y. Tax Law § 480-a: Retail dealer and vending machine registration

§ 480-a. Retail dealer and vending machine registration. 1. (a) On and

after January first, nineteen hundred ninety-one, every retail dealer

shall publicly display a certificate of registration from the department

in each place of business in this state through which it sells

cigarettes or tobacco products at retail. A retail dealer who has no

regular place of business shall publicly display such certificate on

each of its carts, stands, trucks or other merchandising devices through

which it sells cigarettes or tobacco products in this state.

(b) Every person who owns or, if the owner is not the operator, then

any person who operates one or more vending machines through which

cigarettes or tobacco products are sold in this state, regardless of

whether located on the premises of the vending machine owner or, if the

owner is not the operator, then the premises of the operator or the

premises of any other person, must register each such vending machine

with the department. On and after January first, nineteen hundred

ninety-one, a vending machine registration certificate, in such form as

may be prescribed by the commissioner of taxation and finance, shall be

affixed to each vending machine through which cigarettes or tobacco

products are sold in this state.

(c) Registrations of retail dealers and vending machines shall be

valid for a calendar year period upon payment of the fee prescribed in

subdivision two of this section and must be renewed each year upon

payment of such fee. A registration shall not be assignable or

transferable. In the case of retail dealers a registration certificate

shall be surrendered to the department immediately upon the retail

dealer's ceasing to do business as specified in the registration

certificate, or in the event that such business never commenced.

(d) (i) The commissioner shall not register retail dealers or such

registration may be cancelled or suspended by the commissioner upon

notification that the applicant or retail dealer has been convicted in a

criminal proceeding of a violation of subdivision five of section 260.20

of the penal law or as directed by an enforcement officer pursuant to

article thirteen-F of the public health law. The clerk of the court

shall promptly report all criminal convictions under subdivision five of

section 260.20 of the penal law to the commissioner, together with a

direction to the commissioner to cancel such registration or to suspend

it for a specified period of time. Anything to the contrary in any law

notwithstanding, retail dealers shall have no right to a hearing under

this chapter and shall have no right to commence a court action or

proceeding or to any other legal recourse against the commissioner with

respect to any action taken by the commissioner under this paragraph,

provided nothing herein shall be construed to deny retail dealers a

hearing under article thirteen-F of the public health law or to prohibit

retail dealers from commencing a court action or proceeding against an

enforcement officer as defined in section thirteen hundred

ninety-nine-aa of the public health law.

(ii) Anything to the contrary in any law notwithstanding, the

commissioner shall provide upon request to an enforcement officer as

defined in section thirteen hundred ninety-nine-aa of the public health

law such registration information as is relevant and necessary for the

implementation of article thirteen-F of the public health law.

(e) The commissioner may refuse to register as a retail dealer or may

revoke the registration of a retail dealer where the applicant's or

retail dealer's place of business is at the same premises as that of a

retail dealer whose retail dealer registration has been revoked and

where such revocation is still in effect, unless the applicant or retail

dealer provides the commissioner with adequate documentation

demonstrating that such applicant or retail dealer acquired the premises

or business through an arm's length transaction as defined in this

paragraph and that the sale or lease was not conducted, in whole or in

part, for the purpose of permitting the original registrant to avoid the

effect of the previous revocation for the same premises. For purposes of

this paragraph, "arm's length transaction" means a sale of a fee or all

undivided interests in real property, or lease of any part thereof, or a

sale of a business, in good faith and for valuable consideration, that

reflects the fair market value of such real property or lease, or

business, in the open market, between two informed and willing parties,

where neither is under any compulsion to participate in the transaction,

unaffected by any unusual conditions indicating a reasonable possibility

that the sale or lease was made for the purpose of permitting the

original registrant to avoid the effect of the previous revocation for

the same premises. The following sales or leases shall be presumed not

to be arm's length transactions unless adequate documentation is

provided demonstrating that the sale or lease was not conducted, in

whole or in part, for the purpose of permitting the original registrant

to avoid the effect of the previous revocation for the same premises:

(i) a sale between relatives; or

(ii) a sale between related companies or partners in a business; or

(iii) a sale or lease affected by other facts or circumstances that

would indicate that the sale or lease is entered into for the primary

purpose of permitting the original registrant to avoid the effect of the

previous revocation for the same premises.

(f) In addition to the grounds for refusal of a registration specified

in section eleven hundred thirty-four of this chapter, the commissioner

may refuse to register any person as a retail dealer where any tax under

this chapter, or a tax or fee administered by the commissioner under any

other law, has been finally determined to be due from such person, or

from a person required to collect tax with respect to such person or

another person, and has not been paid.

2. (a) (i) Every retail dealer and every person owning or, if the

owner is not the operator, then any person operating one or more vending

machines through which cigarettes or tobacco products are sold in this

state, who is required under section eleven hundred thirty-six of this

chapter to file a return for the quarterly period ending on the last day

of August, nineteen hundred ninety or for the quarterly period ending on

the last day of August in any year thereafter, must file an application

for registration under this section with that quarterly return, in such

form as shall be prescribed by the commissioner.

(ii) Each retail dealer must pay an application fee with the quarterly

return of three hundred dollars for each retail place of business in

this state through which it sells cigarettes or tobacco products.

(iii) Every person who owns or, if the owner is not the operator, then

any person who operates one or more vending machines through which

cigarettes or tobacco products are sold in this state, regardless of

whether located on the premises of the vending machine owner or, if the

owner is not the operator, then the premises of the operator or the

premises of any other person, must pay an application fee with the

quarterly return of one hundred dollars for each vending machine. The

department will issue a registration certificate, as prescribed by the

commissioner, after receipt of a registration application and the

appropriate registration fee, prior to the next succeeding January

first.

(b) Every retail dealer and every person who owns or, if the owner is

not the operator, then any person who operates one or more vending

machines through which cigarettes or tobacco products are sold in this

state who commences business after the last day of August, nineteen

hundred ninety, or who commences selling cigarettes or tobacco products

at retail through a new or different place of business in this state

after such date, or who commences selling cigarettes or tobacco products

through new or different vending machines after such date, must file

with the commissioner an application for registration, in a form

prescribed by him or her, at least thirty days prior to commencing

business or commencing sales. Each application must be accompanied by an

application fee of three hundred dollars for each retail place of

business and one hundred dollars for each vending machine to be

registered. The department, within ten days after receipt of an

application for registration under this paragraph and payment of the

proper fee for application for registration, will issue a registration

certificate, as prescribed by the commissioner, for each retail place of

business or cigarette or tobacco products vending machine registered.

(c) In addition to the powers granted to the commissioner of taxation

and finance in this chapter, the commissioner is hereby authorized to

make provisions for the joint administration, in whole or in part, of

the state and local taxes imposed by article twenty-eight and authorized

to be imposed by article twenty-nine of this chapter and the

registrations and fees for application for registration required by this

section, including the joint reporting, assessment, collection and

determination of such taxes and the registration and fees provided for

in this section, and for that purpose, to prescribe that any of the

commissioner's functions under such articles or this section, and any

returns, forms, statements, documents or information to be submitted to

the commissioner under such articles or this section, any books and

records to be kept for purposes of the taxes imposed or authorized to be

imposed by such articles or for purposes of this section, any schedules

of amounts to be collected under such articles or this section, any

registration required under such articles or this section, and the

payment of taxes under such articles, or of fees under this section

shall be on a joint basis.

(d) Except as otherwise provided in this section, all the provisions

of article twenty-eight of this chapter relating to the personal

liability for the tax, administration, collection and determination of

tax, and deposit and disposition of revenue, including section eleven

hundred thirty-eight of this chapter relating to determination of tax

and section eleven hundred forty-five of this chapter (but only

paragraphs one and two of subdivision (a) of such section) relating to

penalties and interest for failure to file a return or pay tax within

the time required, shall apply to the applications for registration and

the fees for filing such applications required by this section and the

penalty imposed pursuant to subdivision three of this section, as if

such applications were returns required under section eleven hundred

thirty-six of this chapter and such filing fees, penalties and interest

were taxes required to be paid pursuant to such article twenty-eight, in

the same manner and with the same force and effect as if the language of

such provisions of such article twenty-eight had been incorporated in

full into this article, except to the extent that any such provision is

either inconsistent with a provision of this section or is not relevant

thereto and with such other modifications as may be necessary to adapt

the language of such provisions to the provisions of this section.

Provided, however, that the commissioner of taxation and finance shall

refund or credit an application fee paid with respect to the

registration of a vending machine or a retail place of business in this

state through which cigarettes or tobacco products were to be sold if,

prior to the beginning of the calendar year with respect to which such

registration relates, the certificate of registration described in

paragraph (a) of this subdivision is returned to the department of

taxation and finance, or if such certificate has been destroyed, the

retail dealer or vending machine operator satisfactorily accounts to the

commissioner for the missing certificate, but such vending machine or

retail place of business may not be used to sell cigarettes or tobacco

products in this state during such calendar year, unless it is

re-registered. The provisions of section eleven hundred thirty-nine of

this chapter shall apply to the refund or credit authorized by the

preceding sentence and for such purposes, such refund or credit shall be

deemed a refund of tax paid in error provided, however, no interest

shall be allowed or paid on any such refund.

3. In addition to any other penalty imposed by this chapter: (a) Any

retail dealer who violates the provisions of this section, after due

notice and an opportunity for a hearing, for a first violation is liable

for a civil fine not less than five thousand dollars but not to exceed

twenty-five thousand dollars and for a second or subsequent violation

within three years following a prior finding of violation is liable for

a civil fine not less than ten thousand dollars but not to exceed

thirty-five thousand dollars; or

(b) Any person who owns or, if the owner is not the operator, then any

person who operates one or more vending machines through which

cigarettes or tobacco products are sold in this state and who violates

the provisions of this section, after due notice and an opportunity for

a hearing, for a first violation is liable for a civil fine not less

than seven hundred fifty dollars but not to exceed two thousand dollars

and for a second or subsequent violation within three years following a

prior finding of violation be liable for a civil fine not less than two

thousand dollars but not to exceed six thousand dollars.

(c) If a retail dealer does not possess a valid registration, either

because it failed to obtain a registration or its registration is

suspended or revoked and the commissioner or their designee, pursuant to

their authority under this article, attempts to inspect such premises

for a violation of this section and such retail dealer, including an

agent thereof, is found, after notice and opportunity to be heard, to

have refused such inspection, such retail dealer shall be subject to a

penalty of up to four thousand dollars for a first refusal and up to

eight thousand dollars for a second or subsequent refusal within three

years of a prior refusal.

4. (a) If a retail dealer possesses or sells unstamped or unlawfully

stamped packages of cigarettes, or if a retail dealer is also licensed

as an agent pursuant to section four hundred seventy-two and it

possesses unlawfully stamped packages of cigarettes or sells unstamped

or unlawfully stamped packages of cigarettes at retail, (i) its

registration shall be revoked for a period of one year, or (ii) for a

second such possession or sale within a period of five years by a retail

dealer or any affiliated person of such retail dealer, the registration

of such retail dealer and the registration of any retail dealer that is

an affiliated person of such retail dealer shall be revoked for a period

of three years, or (iii) for a third such possession or sale within a

period of five years by a retail dealer or any affiliated person of such

retail dealer, the registration of such retail dealer and the

registration of any retail dealer that is an affiliated person of such

retail dealer shall be revoked for a period of five years. A retail

dealer registration shall be revoked pursuant to this subdivision

immediately upon such dealer's receipt of written notice of revocation

from the commissioner. If unstamped or unlawfully stamped cigarettes are

found in a retail dealer's warehouse or a warehouse of any affiliated

person of such retail dealer, the revocation of the retail dealer's

registration pursuant to this subdivision shall be applicable to each

retail place of business in this state through which such retail dealer

and any affiliated person of such retail dealer sells cigarettes.

(a-1) If a retail dealer, including an agent thereof, refuses to

comply with the requirements of subdivision four of section four hundred

seventy-four of this article its registration may be revoked (i) for a

period of one year, or (ii) for a second such violation within a period

of five years for up to three years, or (iii) for a third or subsequent

violation within a period of seven years for a period up to ten years. A

retail dealer registration shall be considered to be revoked pursuant to

this subdivision immediately upon such dealer's receipt of written

notice of revocation from the commissioner.

(b) A retail dealer who is notified of a revocation of its

registration pursuant to this subdivision shall have the right to have

the revocation 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 of revocation within ten days of such dealer's

receipt of such notification. The retail dealer may present written

evidence or argument in support of its defense to the revocation, or may

appear at a scheduled conference with the commissioner or his or her

designee to present oral arguments and written and oral evidence in

support of such defense. The commissioner or his or her designee is

authorized to delay the effective date of the revocation to enable the

retail dealer to present further evidence or arguments in connection

with the revocation. The commissioner or his or her designee shall

cancel the revocation of registration if the commissioner or his or her

designee is not satisfied by a preponderance of the evidence that the

retail dealer violated paragraph (a) or (a-1) of this subdivision, as

may be applicable.

(c) An order of revocation of a retail dealer registration shall not

be reviewable by the division of tax appeals, but may be reviewed

pursuant to article seventy-eight of the civil practice law and rules by

a proceeding commenced in the supreme court within four months of the

revocation of registration petitioning that the order of revocation be

enjoined or set aside. Such proceeding shall be instituted in the county

where the commissioner has his or her principal office. Upon the filing

of such petition the court shall have jurisdiction to set aside such

order of revocation, in whole or in part, or to dismiss the petition.

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

dismissing the petition or enjoining or setting aside such order, in

whole or in part, 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 appeals

from a judgment in a special proceeding. All such proceedings shall be

heard and determined by the court and by any appellate court as

expeditiously as possible and with lawful precedence over other civil

matters. 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.

(d) After review of the revocation of registration by the commissioner

or his or her designee is complete, or the time within which a retail

dealer may request such review has expired without such a request having

been made, notice of the revocation of a retail dealer registration

pursuant to paragraph (a) of this subdivision shall be given by the

commissioner to the head of the division of the lottery for the purpose

of enforcement of section sixteen hundred seven of this chapter and such

division may suspend or revoke any license issued with respect to a

lottery agent's specific location pursuant to article thirty-four of

this chapter if such lottery agent is a retail dealer of cigarettes

whose registration for such location is suspended or revoked pursuant to

this section. In addition, notice of such revocation shall also be given

to the state liquor authority and such revocation shall constitute

cause, for purposes of section one hundred eighteen of the alcoholic

beverage control law, for revocation, cancellation or suspension of any

license or permit issued pursuant to such law.

5. Except for subdivision (i) of section eighteen hundred fourteen of

this chapter, the criminal penalties set forth in article thirty-seven

of this chapter shall not apply to a violation of this section.

6. (a) No retail dealer who has its retail dealer registration

cancelled, suspended or revoked pursuant to this section or has been

forbidden from selling cigarettes or tobacco products pursuant to

paragraph (j) of subdivision one of section four hundred eighty of this

article shall possess cigarettes or tobacco products in any place of

business, cart, stand, truck or other merchandising device in this state

beginning on the tenth day after such cancellation, suspension,

revocation, or forbiddance and continuing for the duration of the same;

provided however, such retail dealer shall not be prohibited before the

tenth day after such cancellation, suspension, revocation, or

forbiddance from selling or transferring its inventory of lawfully

stamped cigarettes or tobacco products on which the taxes imposed by

this article have been assumed or paid to a properly registered retail

dealer whose registration is not cancelled, suspended, or revoked or who

has not been forbidden from selling cigarettes or tobacco products.

(b) No retail dealer shall possess cigarettes or tobacco products in

any place of business, cart, stand, truck or other merchandising device

in this state unless it has obtained a valid retail dealer registration

from the commissioner.

(c) The possession of cigarettes or tobacco products by an unlicensed

retail dealer in violation of paragraph (a) or (b) of this subdivision

shall be subject to the penalties authorized by subdivision three of

this section.