LBD11803-04-0
S. 6644 2
which taxpayers shall be entitled under the provisions of such articles
of this chapter [and article ten thereof]. The commissioner and the
comptroller shall maintain a system of accounts showing the amount of
revenue collected or received from each of the taxes imposed by such
articles. The comptroller, after reserving the amount to pay such
refunds or reimbursements, shall, on or before the tenth day of each
month, pay into the state treasury to the credit of the general fund all
revenue deposited under this section during the preceding calendar month
and remaining to the comptroller's credit on the last day of such
preceding month, (i) except that the comptroller shall pay to the state
department of social services that amount of overpayments of tax imposed
by article twenty-two of this chapter and the interest on such amount
which is certified to the comptroller by the commissioner as the amount
to be credited against past-due support pursuant to subdivision six of
section one hundred seventy-one-c of this [chapter] ARTICLE, (ii) and
except that the comptroller shall pay to the New York state higher
education services corporation and the state university of New York or
the city university of New York respectively that amount of overpayments
of tax imposed by article twenty-two of this chapter and the interest on
such amount which is certified to the comptroller by the commissioner as
the amount to be credited against the amount of defaults in repayment of
guaranteed student loans and state university loans or city university
loans pursuant to subdivision five of section one hundred seventy-one-d
and subdivision six of section one hundred seventy-one-e of this [chap-
ter] ARTICLE, (iii) and except further that, notwithstanding any law,
the comptroller shall credit to the revenue arrearage account, pursuant
to section ninety-one-a of the state finance law, that amount of over-
payment of tax imposed by article nine, nine-A, twenty-two, thirty,
thirty-A, thirty-B, thirty-two or thirty-three of this chapter, and any
interest thereon, which is certified to the comptroller by the commis-
sioner as the amount to be credited against a past-due legally enforcea-
ble debt owed to a state agency pursuant to paragraph (a) of subdivision
six of section one hundred seventy-one-f of this article, provided,
however, [he] THE COMPTROLLER shall credit to the special offset fiduci-
ary account, pursuant to section ninety-one-c of the state finance law,
any such amount creditable as a liability as set forth in paragraph (b)
of subdivision six of section one hundred seventy-one-f of this article,
(iv) and except further that the comptroller shall pay to the city of
New York that amount of overpayment of tax imposed by article nine,
nine-A, twenty-two, thirty, thirty-A, thirty-B, thirty-two, or thirty-
three of this chapter and any interest thereon that is certified to the
comptroller by the commissioner as the amount to be credited against
city of New York tax warrant judgment debt pursuant to section one
hundred seventy-one-l of this article, (v) and except further that the
comptroller shall pay to a non-obligated spouse that amount of overpay-
ment of tax imposed by article twenty-two of this chapter and the inter-
est on such amount which has been credited pursuant to section one
hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy-
one-e, one hundred seventy-one-f or one hundred seventy-one-l of this
article and which is certified to the comptroller by the commissioner as
the amount due such non-obligated spouse pursuant to paragraph six of
subsection (b) of section six hundred fifty-one of this chapter; and
(vi) the comptroller shall deduct a like amount which the comptroller
shall pay into the treasury to the credit of the general fund from
amounts subsequently payable to the department of social services, the
state university of New York, the city university of New York, or the
S. 6644 3
higher education services corporation, or the revenue arrearage account
or special offset fiduciary account pursuant to section ninety-one-a or
ninety-one-c of the state finance law, as the case may be, whichever had
been credited the amount originally withheld from such overpayment, and
(vii) with respect to amounts originally withheld from such overpayment
pursuant to section one hundred seventy-one-l of this article and paid
to the city of New York, the comptroller shall collect a like amount
from the city of New York.
S 2. The tax law is amended by adding a new article 10 to read as
follows:
ARTICLE 10
POINT OF MANUFACTURER EXCISE TAX ON SWEETENED BEVERAGES
SECTION 220. DEFINITIONS.
221. IMPOSITION OF EXCISE TAX.
222. PAYMENT OF EXCISE TAX.
223. EXEMPTIONS.
S 220. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE TERM:
1. "BOTTLE" MEANS ANY CLOSED OR SEALED GLASS, METAL, PAPER, PLASTIC,
OR ANY OTHER TYPE OF CONTAINER REGARDLESS OF THE SIZE OR SHAPE OF SUCH
CONTAINER.
2. "BOTTLED SOFT DRINKS" MEANS ANY AND ALL NONALCOHOLIC BEVERAGES,
WHETHER CARBONATED OR NOT, SUCH AS SODA WATER, GINGER ALE, ALL DRINKS
COMMONLY REFERRED TO AS COLA, LIME, LEMON, LEMON-LIME AND OTHER FLAVORED
DRINKS, FRUIT JUICE WHEN ANY PLAIN OR CARBONATED WATER, FLAVORING OR
SYRUP IS ADDED, OR ANY AND ALL PREPARATIONS COMMONLY REFERRED TO AS
"SOFT DRINKS" OF WHATEVER KIND, WHICH ARE CLOSED AND SEALED IN GLASS,
PAPER, OR ANY OTHER TYPE OF CONTAINER, ENVELOPE, PACKAGE, OR BOTTLE,
WHETHER MANUFACTURED WITH OR WITHOUT THE USE OF ANY SYRUP. THE TERM
"BOTTLED SOFT DRINKS" SHALL NOT INCLUDE FLUID MILK TO WHICH NO FLAVORING
HAS BEEN ADDED, OR NATURAL UNDILUTED FRUIT JUICE OR VEGETABLE JUICE.
3. "DISTRIBUTOR, MANUFACTURER, OR WHOLESALE DEALER" MEANS ANY PERSON
WHO RECEIVES, STORES, MANUFACTURES, BOTTLES OR SELLS BOTTLED SOFT
DRINKS, SOFT DRINK SYRUPS, SIMPLE SYRUPS, OR POWDERS OR BASE PRODUCTS
FOR MIXING, COMPOUNDING OR MAKING SOFT DRINKS FOR SALE TO RETAIL DEAL-
ERS, OTHER MANUFACTURERS, WHOLESALE DEALERS OR DISTRIBUTORS FOR RESALE
PURPOSES.
4. "INFANT OR TODDLER FORMULA" MEANS ANY PRODUCT, WHETHER SOLD IN
LIQUID OR POWDER FORM, THAT IS INTENDED BY ITS MANUFACTURER FOR CONSUMP-
TION BY INFANTS OR TODDLERS THAT IS COMMONLY REFERRED TO AS INFANT OR
TODDLER FORMULA.
5. "MILK" MEANS NATURAL LIQUID MILK REGARDLESS OF ANIMAL SOURCE OR
BUTTERFAT CONTENT; OR NATURAL MILK CONCENTRATE, WHETHER OR NOT RECONSTI-
TUTED, REGARDLESS OF ANIMAL SOURCE OR BUTTERFAT CONTENT OR DEHYDRATED
NATURAL MILK WHETHER OR NOT RECONSTITUTED.
6. "MILK PRODUCT" MEANS ANY LIQUID THAT HAS MILK AS THE PREDOMINANT
INGREDIENT BY WEIGHT IN ACCORDANCE WITH THE REGULATIONS OF THE UNITED
STATES FOOD AND DRUG ADMINISTRATION.
7. "MILK SUBSTITUTE" MEANS ANY LIQUID THAT IS SOY-BASED AND IS
INTENDED BY ITS MANUFACTURER AS A SUBSTITUTE FOR MILK.
8. "NATURAL UNDILUTED FRUIT JUICE" MEANS THE LIQUID RESULTING FROM THE
PRESSING OF FRUIT WITH OR WITHOUT SWEETENER BEING ADDED, OR THE LIQUID
RESULTING FROM THE RECONSTITUTION OF NATURAL FRUIT JUICE CONCENTRATE BY
THE RESTORATION OF WATER TO DEHYDRATED NATURAL FRUIT JUICE WITH OR WITH-
OUT SWEETENER BEING ADDED.
9. "NATURAL UNDILUTED VEGETABLE JUICE" MEANS THE LIQUID RESULTING FROM
THE PRESSING OF VEGETABLES WITH OR WITHOUT SWEETENER BEING ADDED OR THE
S. 6644 4
LIQUID RESULTING FROM THE RECONSTITUTION OF NATURAL VEGETABLE JUICE
CONCENTRATE BY THE RESTORATION OF WATER TO DEHYDRATED NATURAL VEGETABLE
JUICE WITH OR WITHOUT SWEETENER BEING ADDED.
10. "NON-ALCOHOLIC BEVERAGE" MEANS AND INCLUDES ALL BEVERAGES NOT
SUBJECT TO TAX UNDER ARTICLE EIGHTEEN OF THIS CHAPTER.
11. "PLACE OF BUSINESS" MEANS ANY PLACE WHERE SOFT DRINKS, SYRUPS,
SIMPLE SYRUPS, POWDER OR BASE PRODUCTS ARE MANUFACTURED OR ANY PLACE
WHERE BOTTLED SOFT DRINKS, SOFT DRINK SYRUP, SIMPLE SYRUP, SOFT DRINK
POWDER OR OTHER SOFT DRINK BASE PRODUCT OR ANY OTHER ITEM ASSESSED UNDER
THIS ARTICLE ARE RECEIVED.
12. "POWDER", "BASE PRODUCT" OR "OTHER BASE" MEANS A SOLID MIXTURE OF
BASIC INGREDIENTS USED IN MAKING, MIXING OR COMPOUNDING SOFT DRINKS BY
MIXING THE POWDER OR OTHER BASE WITH WATER, ICE, SYRUP, HIGH FRUCTOSE
CORN SYRUP, OR SIMPLE SYRUP, FRUITS, VEGETABLES, FRUIT JUICE, VEGETABLE
JUICE, OR ANY OTHER PRODUCT SUITABLE TO MAKE A SOFT DRINK.
13. "RETAILER" OR "RETAIL DEALER" MEANS ANY PERSON OTHER THAN A
MANUFACTURER, DISTRIBUTOR OR WHOLESALER, WHO RECEIVES, STORES, MIXES,
COMPOUNDS OR MANUFACTURES ANY SOFT DRINK AND SELLS OR OTHERWISE
DISPENSES THE SAME TO THE ULTIMATE CONSUMER.
14. "SALE" MEANS THE TRANSFER OF TITLE OR POSSESSION FOR A VALUABLE
CONSIDERATION OF TANGIBLE PERSONAL PROPERTY REGARDLESS OF THE MANNER BY
WHICH THE TRANSFER IS ACCOMPLISHED. WHEN A RETAILER IS ALSO ACTING AS A
WHOLESALER OR DISTRIBUTOR, THE DUTY TO REPORT AND PAY THE EXCISE TAX
IMPOSED BY THIS ARTICLE ARISES WHEN THE PROPERTY IS TRANSFERRED TO A
RETAIL STORE FOR SALE TO THE ULTIMATE CONSUMER AS REFLECTED BY THE
RECORDS OF THE EXCISE TAX PAYER.
15. "SIMPLE SYRUP" MEANS THE MAKING, MIXING, COMPOUNDING, OR MANUFAC-
TURING, BY DISSOLVING SUGAR AND WATER OR ANY OTHER MIXTURES THAT WILL
CREATE SIMPLE SYRUP TO WHICH MAY OR MAY NOT BE ADDED CONCENTRATES OR
EXTRACTS.
16. "SOFT DRINK" MEANS ANY NONALCOHOLIC BEVERAGE, WHETHER NATURALLY OR
ARTIFICIALLY FLAVORED, WHETHER CARBONATED OR NOT, SOLD FOR HUMAN
CONSUMPTION INCLUDING, BUT NOT LIMITED TO, SODA WATER, GINGER ALE, ALL
DRINKS COMMONLY REFERRED TO AS COLA, LIME, LEMON, LEMON-LIME AND OTHER
FLAVORED DRINKS, INCLUDING ANY FRUIT OR VEGETABLE DRINK CONTAINING
SEVENTY PERCENT (70%) OR LESS NATURAL FRUIT JUICE, NATURAL VEGETABLE
JUICE, AND ALL OTHER DRINKS AND BEVERAGES COMMONLY REFERRED TO AS SOFT
DRINKS BUT NOT INCLUDING COFFEE OR TEA UNLESS THE COFFEE OR TEA IS
BOTTLED AS A LIQUID FOR SALE.
17. "SYRUP" MEANS THE LIQUID MIXTURE OF BASIC INGREDIENTS USED IN
MAKING, MIXING OR COMPOUNDING SOFT DRINKS BY MIXING THE SYRUP WITH
WATER, SIMPLE SYRUP, ICE, FRUITS, VEGETABLES, FRUIT JUICE, VEGETABLE
JUICE, OR ANY OTHER PRODUCT SUITABLE TO MAKE A COMPLETE SOFT DRINK.
18. "SWEETENER" MEANS SUGAR ONLY, ARTIFICIAL OR NATURAL, WHICH SINGU-
LARLY FLAVORS THE TASTE OF A NATURAL UNDILUTED FRUIT JUICE OR NATURAL
UNDILUTED VEGETABLE JUICE.
S 221. IMPOSITION OF EXCISE TAX. 1. ON AND AFTER OCTOBER FIRST, TWO
THOUSAND TEN, AN EXCISE TAX IS HEREBY IMPOSED AND SHALL BE PAID BY EVERY
DISTRIBUTOR, MANUFACTURER OR WHOLESALE DEALER TO BE CALCULATED AS
FOLLOWS:
(A) TEN DOLLARS PER GALLON FOR EACH GALLON OF SOFT DRINK SYRUP OR
SIMPLE SYRUP SOLD OR OFFERED FOR SALE IN THE STATE;
(B) ONE DOLLAR AND FIFTY CENTS PER GALLON FOR EACH GALLON OF BOTTLED
SOFT DRINKS SOLD OR OFFERED FOR SALE IN THE STATE; OR
(C) ONE DOLLAR AND FIFTY CENTS FOR EACH GALLON OF SOFT DRINK WHICH MAY
BE PRODUCED FROM EACH PACKAGE OR CONTAINER BY FOLLOWING THE MANUFACTUR-
S. 6644 5
ER'S DIRECTIONS IN THE CASE IN WHICH A PACKAGE OR CONTAINER OF POWDER OR
OTHER BASE PRODUCT OTHER THAN A SYRUP OR SIMPLE SYRUP IS SOLD OR OFFERED
FOR SALE IN THE STATE. THIS EXCISE TAX APPLIES WHEN THE SALE OF THE
POWDER OR OTHER BASE IS SOLD TO A RETAILER FOR SALE TO THE ULTIMATE
CONSUMER AFTER THE LIQUID SOFT DRINK IS PRODUCED BY THE RETAILER.
2. ANY PERSON MANUFACTURING OR PRODUCING WITHIN THIS STATE ANY BOTTLED
SOFT DRINK OR SOFT DRINK SYRUP FOR SALE WITHIN THIS STATE AND ANY
DISTRIBUTOR, WHOLESALE DEALER OR RETAIL DEALER OR ANY OTHER PERSON WHO
IS THE ORIGINAL CONSIGNEE OF ANY BOTTLED SOFT DRINK OR SOFT DRINK SYRUP
MANUFACTURED OR PRODUCED OUTSIDE THIS STATE, OR WHO BRINGS SUCH DRINKS
OR SYRUPS INTO THIS STATE, SHALL BE LIABLE FOR THE EXCISE TAX IMPOSED
UNDER THIS SECTION. THE EXCISE TAX HEREBY IMPOSED SHALL NOT BE COLLECTED
MORE THAN ONCE IN RESPECT TO ANY BOTTLED SOFT DRINK OR SOFT DRINK SYRUP
MANUFACTURED, SOLD, USED, OR DISTRIBUTED IN THIS STATE.
S 222. PAYMENT OF EXCISE TAX. THIS EXCISE TAX SHALL BE PAID BY THE
DISTRIBUTOR, WHOLESALER, OR MANUFACTURER WHEN THE SYRUP, POWDER OR BASE
PRODUCT OR SOFT DRINK IS SOLD. THE EXCISE TAX LEVIED BY THIS ARTICLE
SHALL BE SHALL BE PAID BY A RETAILER WHO PURCHASES SYRUPS, POWDER OR
BASE PRODUCTS OR SOFT DRINKS FROM AN UNLICENSED DISTRIBUTOR, WHOLESALER
OR MANUFACTURER. THESE AFOREMENTIONED PARTIES SUBJECT TO PAY THIS EXCISE
TAX SHALL PAY IT MONTHLY TO THE COMPTROLLER IN A FORMAT TO BE SPECIFIED
BY THE COMMISSIONER.
S 223. EXEMPTIONS. THE FOLLOWING ARE EXEMPTED FROM THE EXCISE TAX
IMPOSED BY THIS ARTICLE:
1. SYRUPS, SIMPLE SYRUPS, POWDER, BASE PRODUCTS, OR SOFT DRINKS SOLD
TO THE FEDERAL GOVERNMENT;
2. SYRUPS, SIMPLE SYRUPS, POWDER, BASE PRODUCTS, OR SOFT DRINKS
EXPORTED FROM THE STATE BY A DISTRIBUTOR, MANUFACTURER, OR WHOLESALE
DEALER;
3. ANY POWDER OR BASE PRODUCT USED IN PREPARING COFFEE OR TEA;
4. ANY FROZEN, FREEZE-DRIED, OR OTHER CONCENTRATE TO WHICH ONLY WATER
IS ADDED TO PRODUCE A NONALCOHOLIC BEVERAGE CONTAINING MORE THAN TEN
PERCENT NATURAL FRUIT JUICE OR NATURAL VEGETABLE JUICE;
5. ANY NONALCOHOLIC BEVERAGE CONTAINING MORE THAN SEVENTY PERCENT
NATURAL FRUIT JUICE OR NATURAL VEGETABLE JUICE;
6. ANY PRODUCT, WHETHER SOLD IN LIQUID OR POWDER FORM, THAT IS
INTENDED BY ITS MANUFACTURER FOR CONSUMPTION BY INFANTS AND THAT IS
COMMONLY REFERRED TO AS INFANT OR TODDLER FORMULA;
7. WATER TO WHICH NO FLAVORING, WHETHER ARTIFICIAL OR NATURAL, HAS
BEEN ADDED AND THAT HAS NOT BEEN ARTIFICIALLY CARBONATED;
8. ANY PRODUCT, WHETHER SOLD IN LIQUID OR POWDER FORM, THAT IS
INTENDED BY ITS MANUFACTURER FOR USE AS A DIETARY SUPPLEMENT OR FOR
WEIGHT REDUCTION;
9. ANY POWDER OR BASE PRODUCT THAT IS INTENDED BY ITS MANUFACTURER TO
BE SOLD AND USED TO DOMESTICALLY MIX SOFT DRINKS BY THE ULTIMATE CONSUM-
ER; AND
10. ANY PRODUCT CONTAINING MILK OR MILK PRODUCTS.
S 3. Subparagraph 15 of paragraph j of subdivision 1 of section 54 of
the state finance law, as added by chapter 430 of the laws of 1997, is
amended to read as follows:
(15) article twenty-eight of the tax law, EXCEPT TAXES, PENALTIES AND
INTEREST IMPOSED BY ARTICLE TEN OF THE TAX LAW;
S 4. Subdivisions (d) and (h) of section 1817 of the tax law, as
amended by section 30 of subpart I of part V-1 of chapter 57 of the laws
of 2009, are amended to read as follows:
S. 6644 6
(d) Any person (1) who willfully fails to charge separately [the] ANY
tax OR TAXES imposed under article twenty-eight of this chapter or to
state ANY such tax OR TAXES separately on any bill, statement, memoran-
dum or receipt issued or employed by [him] SUCH PERSON upon which the
tax is required to be stated separately as provided in subdivision (a)
of section eleven hundred thirty-two of this chapter; or (2) who shall
refer or cause reference to be made to ANY such tax OR TAXES in a form
or manner other than that required by such article twenty-eight, shall
be guilty of a misdemeanor.
(h) The penalties provided for in this section shall not preclude
prosecution pursuant to the penal law with respect to the willful fail-
ure of any person to pay over to the state any sales tax imposed by
section eleven hundred four, eleven hundred five, eleven hundred seven,
eleven hundred eight or eleven hundred nine of this chapter or by any
local law adopted by any city or county pursuant to article twenty-nine
of this chapter, whenever such person has been required to collect and
has collected any such sales tax. In any such prosecution under the
penal law, a person who has been required to collect and has collected
any such tax shall be deemed to have acted in a fiduciary character with
respect to the state or a political subdivision thereof, and the tax OR
TAXES collected shall be deemed to have been entrusted to such person by
the state or a political subdivision thereof.
S 5. Subdivisions (a) and (b) of section 92-dd of the state finance
law, as amended by section 125-c of part C of chapter 58 of the laws of
2009, are amended to read as follows:
(a) On and after April first, two thousand five, such fund shall
consist of the revenues heretofore and hereafter collected or required
to be deposited pursuant to paragraph (a) of subdivision eighteen of
section twenty-eight hundred seven-c, and sections twenty-eight hundred
seven-j, twenty-eight hundred seven-s and twenty-eight hundred seven-t
of the public health law, subdivisions (b) and (c) of section four
hundred eighty-two AND ARTICLE TEN of the tax law and required to be
credited to the tobacco control and insurance initiatives pool, subpara-
graph (O) of paragraph four of subsection (j) of section four thousand
three hundred one of the insurance law, section twenty-seven of part A
of chapter one of the laws of two thousand two and all other moneys
credited or transferred thereto from any other fund or source pursuant
to law.
(b) The pool administrator under contract with the commissioner of
health pursuant to section twenty-eight hundred seven-y of the public
health law shall continue to collect moneys required to be collected or
deposited pursuant to paragraph (a) of subdivision eighteen of section
twenty-eight hundred seven-c, and sections twenty-eight hundred seven-j,
twenty-eight hundred seven-s and twenty-eight hundred seven-t of the
public health law, and shall deposit such moneys in the HCRA resources
fund. The comptroller shall deposit moneys collected or required to be
deposited pursuant to subdivisions (b) and (c) of section four hundred
eighty-two AND ARTICLE TEN of the tax law and required to be credited to
the tobacco control and insurance initiatives pool, subparagraph (O) of
paragraph four of subsection (j) of section four thousand three hundred
one of the insurance law, section twenty-seven of part A of chapter one
of the laws of two thousand two and all other moneys credited or trans-
ferred thereto from any other fund or source pursuant to law in the HCRA
resources fund.
S 6. This act shall take effect on the one hundred eightieth day after
it shall have become law, and shall apply to sales and charges made,
S. 6644 7
uses occurring and services rendered on and after such date, in accord-
ance with applicable transitional provisions in the tax law; provided,
however, that the amendments to subdivisions (a) and (b) of section
92-dd of the state finance law made by section five of this act shall
take effect April 1, 2010.