for residential purposes" shall have the same meaning as it has for purposes of section eleven hundred five-A of this article. (B) The term "distributor" shall have the same meaning as it has for purposes of article twelve-A of this chapter, excluding persons who are not required pursuant to section two hundred eighty-two-a to pay the tax imposed thereby. (C) The term "automotive fuel carrier" shall mean an automotive fuel carrier, as defined in article twenty-one of this chapter, who or which is engaged in sales of automotive fuel in this state. (D) The term "retail sale" shall, in addition to its meaning under this subparagraph, include the transfer of automotive fuel by a distributor into a motor vehicle, or into a container from which automotive fuel is supplied by the distributor to a motor vehicle or vehicles of the distributor or of others. § 77. Subdivision one of section eleven hundred thirty-one of such law, as amended by chapter five hundred seventy-five of the laws of nineteen hundred sixty-five, is amended to read as follows: (1) "Persons required to collect tax" or "person required to collect any tax imposed by this article" shall include: every vendor of tangible personal property or services; every recipient of amusement charges; and every operator of a hotel. Said terms shall also include any officer, director or employee of a corporation or of a dissolved corporation, any employee of a partnership or any employee of an individual proprietorship who as such officer [or], employee is under a duty to act for such corporation, partnership or individual proprietorship in complying with any requirement of this article; and any member of a partnership. § 78. Subdivision (c) of section eleven hundred thirty-two of such law, as amended by chapter eight hundred thirty-six of the laws of nineteen hundred seventy-four, is amended to read as follows: (၁ ) For the purpose of the proper administration of this article and to prevent evasion of the tax hereby imposed, it shall be presumed that all receipts for property or services of any type mentioned in subdivisions (a), (b), (c) and (d) of section eleven hundred five, all rents for occupancy of the type mentioned in subdivision (e) of said section, and all amusement charges of any type mentioned in subdivision (f) of said section, are subject to tax until the contrary is established, and the burden of proving that any receipt, amusement charge or rent is not taxable hereunder shall be upon the person required to collect tax or the customer. Unless (1) a vendor, not later than ninety days after delivery of the property or the rendition of the service, shall have taken from the purchaser a certificate in such form as the tax commission may prescribe, signed by the purchaser and setting forth his name and address and, except as otherwise provided by regulation of the tax commission, the number of his registration certificate, together with such other information as said commission may require, to the effect that the property or service was purchased for resale or for some use by reason of which the sale is exempt from tax under the provisions of section eleven hundred fifteen, and that the purchaser's certificate of authority has not been suspended or revoked and has not expired as provided in section eleven hundred thirty-four, or (2) the purchaser [prior to taking], not later than ninety days after delivery of the property or the rendition of the service, furnishes to the vendor: any affidavit, statement or additional evidence, documentary or otherwise, which the tax commission may require demonstrating that the purchaser is an exempt organization described in section eleven hundred sixteen, the sale shall be deemed a taxable sale at retail. Where a certificate or document referred to in the previous sentence is received within the time limit set forth therein, but is deficient in some material manner and where such deficiency is thereafter removed, the receipt of such certificate or document shall be deemed to have satisfied all of the requirements of the preceding sentence. Where such a certificate statement has been furnished to the vendor, the burden of proving that the receipt, amusement charge or rent is not taxable hereunder shall be solely upon the customer. The vendor shall not be required to collect tax from purchasers who furnish a certificate of resale [or], an exempt organization statement or other exemption certificateTM in proper form, unless, in the case of a certificate described in paragraph one of this subdivision, such purchaser's certificate of authority is invalid EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law or because it has been suspended or revoked as provided in section eleven hundred thirty-four, and the tax commission has furnished registered vendors with information identifying those persons whose certificates of authority have been suspended or revoked, or unless such purchaser's certificate of authority is invalid because it has expired, and the tax commission has provided registered vendors with a means of determining whether such expiration has occurred. Where the vendor accepts such a certificate from a person identified by the tax commission as one whose certificate of authority has been suspended or revoked or from a person whose certificate of authority has been identified as having expired, the receipt, amusement charge or rent from such transaction shall be deemed to be a taxable sale at retail. Provided, however, the tax commission may authorize a purchaser, who acquires tangible personal property or services under circumstances which make it impossible at the time of acquisition to determine the manner in which the tangible personal property or services will be used, to pay the tax directly to the tax commission and waive the collection of the tax by the vendor. Subject to such reasonable conditions as the tax commission may require, the tax commission shall authorize an omnibus carrier described in subdivision (b) of section eleven hundred nineteen to pay the tax on the purchase or use of an omnibus directly to the tax commission and waive the collection of the tax by the vendor. No such authority shall be granted or exercised except upon application to the tax commission, and the issuance by the tax commission, in its discretion, of a direct payment permit. If a direct payment permit is granted, its use shall be subject to conditions specified by the tax commission, and the payment of tax on all acquisitions pursuant to the permit shall be made directly to the tax commission by the permit holder. The tax commission may suspend or revoke a direct payment permit where the permit holder fails to comply with any of the provisions of this article or any rule promulgated by the tax commission with respect to this article. The notice and hearing provisions applicable to the revocation and suspension of certificates of authority under section eleven hundred thirty-four shall apply to the suspension and revocation of direct payment permits. A vendor shall not be required to collect tax from a purchaser who furnishes a direct payment permit in proper form, unless such purchaser's direct payment permit has been suspended or revoked by the tax commission and the tax commission has provided registered vendors with information identifying those persons whose direct payment permits have been suspended or revoked. Where a vendor accepts a direct payment permit from a person whose direct payment permit has been suspended or revoked, the receipt, amusement charge or rent from such transaction shall be deemed to be subject to tax. § 79. Subdivision (a) of section eleven hundred thirty-four of such law, as amended by chapter nine hundred thirty of the laws of nineteen hundred eighty-two, is amended to read follows: (a) (1) (i) Every person required to collect any tax imposed by this article commencing business or opening a new place of business, [(2)] (ii) every person purchasing or selling tangible personal property for resale commencing business or opening a new place of business, [(3)] (iii) every person selling automotive fuel including persons who or which are not distributors[; and (4)], (iv) every person described in [paragraph one or two of this subdivision who takes possession of or pays for business assets under circumstances requiring notification by such person to the tax commission pursuant to subdivision (c) of section eleven hundred forty-one of this chapter and (v) every person described in subparagraph (i), (ii), (iii) or (iv) who or which has had its certificate of authority revoked under paragraph four of this subdivision, shall file with the tax commission a certificate of registration, in a form prescribed by it, at least twenty days prior to commencing business or opening a new place of business or such purchasing, selling or taking of possession or payment, whichever comes first. [The certificate of registration form shall contain information] Information with respect to the notice requirements of a purchaser, transferee or assignee and his liability for the payment of taxes pursuant to the provisions of subdivision (c) of section eleven hundred forty-one of this chapter shall be included in or accompany the certificate of registration form furnished the applicant. The tax commission shall also include with such information furnished to each applicant general information about the tax imposed under this article including information on records to be kept, returns and payments, notification requirements and forms. Such certifi cate of registration may be amended in accordance with rules promulgated by the tax commission. on [The] (2) Except as otherwise provided in this section, the tax commission [shall], within five days after receipt of [such] a certificate of registration filed as provided for in paragraph one of this subdivision, shall issue, without charge, to each registrant a certificate of authority empowering him to collect the tax and a duplicate thereof for each additional place of business of such registrant. [The tax commission shall issue with the certificate of authority general information about the tax imposed under this article, including information records to be kept, returns and payments, notification requirements and forms. ] Such certificate of authority may be issued for a specified term of not less than three years, subject to renewal in accordance with rules promulgated by the tax commission. Whether or not such certificate of authority is issued for a specified term, such certificate shall be subject to suspension or revocation as provided for in this section. Each certificate or duplicate shall state the place of business to which it is applicable. Such [certificates] certificate of authority or duplicate shall be be prominently displayed in [the places] the place of business of the registrant to which it applies. A registrant who has no regular place of doing business shall attach such certificate to each of his [cart, stand, truck or other merchandising device] carts, stands, trucks or other merchandising devices. Such certificates of authority and any duplicate shall be nonassignable and nontransferable and shall be surrendered to the tax commission immediately upon the registrant's ceasing to do business at the place named (unless the registrant amends his certificate of registration in accordance with rules promulgated by the tax commission) or in the event that such business never commenced. [However, a person who is presently registered pursuant to the provisions of title G, M, N or V of chapter forty-six of the administrative code of the city of New York or under any retail sales, compensating use, consumer's utility, admissions and dues or hotel room occupancy tax imposed by a city, county or school district pursuant to the provisions of chapter two hundred seventy-eight of the laws of nineteen hundred forty-seven, as amended, need not register again under this article unless the tax commission shall require him to do so. ] (3) A person, other than one described in clauses (A), (B) and (C) of paragraph (8)[,] of subdivision (b)[,] of section eleven hundred one but who makes sales to persons within the state of tangible personal property or services, the use of which is subject to tax under this article, may if he so elects file a certificate of registration with the tax commission which may, in its discretion and subject to such conditions as it may impose, issue to him a certificate of authority to collect the compensating use tax imposed by this article. (4)(A) Where a person who holds a certificate of authority (i) willfully fails to file a report or return required by this article, (ii) willfully files, causes to be filed, gives or causes to be given a report, return, certificate or affidavit required under this article which is false, (iii) willfully fails to comply with the provisions of paragraph two or three of subdivision (e) of section eleven hundred thirty-seven of this article, (iv) willfully fails to collect, truthfully account for or pay over any tax imposed under this article or pursuant to the authority of article twenty-nine of this chapter, or (v) has been convicted of a crime provided for in this chapter, the tax commission may revoke or suspend such certificate of authority and all duplicates thereof. Provided, however, that the tax commission may revoke or suspend a certificate of authority based on the grounds set forth in clause (v) of this subparagraph only where the conviction referred to occurred not more than one year prior to the date of revocation or suspension. (B) Where a person files a certificate of registration for a certificate of authority under this subdivision and in considering such application the tax commission ascertains that (i) any tax imposed under this chapter or any related statute has been finally determined to be due from such person and has not been paid in full, (ii) a tax due under this article or any law, ordinance or resolution enacted pursuant to the authority of article twenty-nine of this chapter has been finally determined to be due from an officer, director, partner or employee of such person in his capacity as a person required to collect tax on behalf of EXPLANATION-Matter in italics is new; matter in brackets [] is old law such person or another person and has not been paid, (iii) such person has been convicted of a crime provided for in this chapter within one year from the date on which such certificate of registration is filed, (iv) an officer, director, partner or employee of such person, which officer, director, partner or employee is a person required to collect tax on behalf of such person filing a certificate of registration has in his capacity as a person required to collect tax on behalf of such person or of another person been convicted of a crime provided for in this chapter within one year from the date on which such certificate of registration is filed, (v) a shareholder owning more than fifty percent of the number of shares of stock of such person (where such person is 8 corporation) entitling the holder thereof to vote for the election of directors or trustees, who owned more than fifty percent of the number of such shares of another person (where such other person is a corporation) 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 and where such tax has not been paid in full, or at the time such other person was convicted of 8 crime provided for in this chapter within one year from the date on which such certificate of registration is filed, or (vi) a certificate of authority issued to such person has been revoked or suspended pursuant to subparagraph (A) of this paragraph within one year from the date on which such certificate of registration is filed, the tax commission may refuse to issue a certificate of authority. (C) In any of the foregoing instances where the tax commission may suspend or revoke or refuse to issue a certificate of authority, the tax commission may condition the retention or issuance of a certificate of authority upon the filing of a bond or the deposit of tax in the provided in paragraph two or three of subdivision (e) of section eleven hundred thirty-seven. manner a (D) Notice of proposed revocation, suspension or refusal to issue shall be given to the person holding a certificate of authority issued pursuant to this subdivision or to a person applying for such a certificate 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 eleven hundred thirty-eight shall apply to a not ice issued pursuant to this paragraph, insofar as such provisions can bẹ made applicable to the notice authorized by this paragraph, with such modifications as may be necessary in order to adapt the language of such provisions to the notice authorized by this paragraph. In the case of person applying for a certificate of authority a notice of proposed refusal to issue shall be issued within five days after timely registration pursuant to paragraph one of subdivision (a) of this section. Upon timely application therefor, a hearing shall be scheduled, and within three months from such application for hearing (determined with regard to any postponements of any scheduled hearing or conference made at request of the applicant) shall issue either a notice of refusal or a certificate of authority. If the tax commission fails to issue a notice of refusal within such three month period (or such period as extended pursuant to this subdivision), the tax commission shall immediately upon the conclusion of such period issue a certificate of authority to the applicant. Such notice of proposed revocation or suspension must be given to such person within three years from the date of the act or omission described in subparagraph (A) of this paragraph, except that in the case of acts involving falsity or fraud, such notice may be issued at any time. All of such notices shall contain a statement advising the person to whom it is issued that the suspension, revocation or refusal to issue may be challenged through a hearing process and that the petition for such challenge must be filed with the tax commission within ninety days after the giving of such notice. the (E) After the tax commission has suspended or revoked a person's certificate of authority, by a notice of suspension or revocation, or has refused to issue a certificate of authority, by a notice of refusal, to such person and such decision has become final as provided for in this paragraph, or after a person's certificate of authority has expired and such person has failed to renew such certificate or obtain a new certificate of authority, such person is prohibited from engaging in any business in this state for which a certificate of authority is required. If despite such prohibition such person continues to be so engaged in business, the tax commission may bring an action to enjoin such person from so engaging in business. to (5) Notwithstanding any provision of this subdivision to the contrary, every show vendor shall file a certificate of registration for show vendors in the same manner and shall be subject to the same requirements as provided for in this article with respect to filing a certificate of registration. Each such show vendor shall receive a certificate of authority for show vendors in the same manner and shall be subject the same requirements as provided for in this article with respect to certificates of authority except that the tax commission may require the renewal of such certificates of authority for show vendors annually. (6) If the tax commission considers it necessary for the proper administration of the sales and use taxes imposed by this article and pursuant to the authority of article twenty-nine of this chapter, it may require every person under this section or section twelve hundred fiftythree of this chapter who holds a certificate of authority to file a new certificate of registration in such form and at such time as the tax commission may prescribe and to surrender such certificate of authority. The tax commission may require such filing and such surrender not more often than once every three years. Upon the filing of such certificate of registration and the surrender of such certificate of authority, the tax commission shall issue, within such time as it may prescribe, a new certificate of authority, without charge, to each registrant and a duplicate thereof for each additional place of business of such registrant. Subdivision (d) of section eleven hundred thirty-five of such law, as amended by chapter nine hundred thirty of the laws of nineteen hundred eighty-two, is amended and such section is further amended by adding a new subdivision (e) to read as follows: registo. (d) Every distributor shall keep records in the manner prescribed by the tax commission pursuant to rules and regulations which records shall show the number of gallons of automotive fuel sold, the purchaser thereof, the price paid therefor by the purchaser, the rate of tax, and the amount of tax collected thereon, and the regional average retail sales price applicable thereto together with such additional information as the tax commission shall require. The regional average retail sales price, the rate of tax, and the amount of tax collected shall be calculated in the manner set forth in section eleven hundred eleven of this article. [Such records shall be available for inspection and examination at any time upon demand by the tax commission or its duly authorized agent or employee and shall be preserved for a period of three years, except that the tax commission may consent to their destruction within that period or may require that they be kept longer. Such records may be kept within the meaning of this section when reproduced on any photographic, photostatic, microfilm, micro-card, miniature photographic other process which actually reproduced the original record. ] or (e) The records provided for in this section shall be available for inspection and examination at any time upon demand by the tax commission or its duly authorized agent or employee and shall be preserved for a period of three years, except that the tax commission may consent to their destruction within that period or may require that they be kept longer. Such records may be kept within the meaning of this section when reproduced on any photographic, photostatic, microfilm, microcard, miniature photographic or other process which actually reproduced the original record. § 81. Paragraph three of subdivision (e) of section eleven hundred thirty-seven of such law, as added by chapter ninety-five of the laws of nineteen hundred seventy-six and such subdivision as relettered by chapter eighty-nine of the laws of nineteen hundred seventy-six, is amended to read as follows: (3) As an additional or alternate requirement, whenever any person fails to collect, truthfully account for, pay over the tax, or file returns of the tax as required in this article, the tax commission, [after a finding in writing that the financial condition of such a person may impair his ability to pay over such tax,] in its discretion where it deems necessary to protect the revenues to be obtained under this article, may give notice requiring such person to collect the taxes which become collectible after the giving of such notice, to deposit such taxes in any banking institution approved by the tax commission and located in this state the deposits in which are insured by any agency of the federal government, in a separate account, in trust for and payable EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law |