S T A T E O F N E W Y O R K
________________________________________________________________________
9415
I N A S S E M B L Y
(PREFILED)
January 6, 2010
___________
Introduced by M. of A. BENJAMIN -- read once and referred to the Commit-
tee on Ways and Means
AN ACT to amend the tax law, in relation to the prepayment of tax on
sales of beer under article 28 of such law and pursuant to the author-
ity of article 29 thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The tax law is amended by adding a new section 429-a to
read as follows:
S 429-A. PAYMENT OF TAX; BEER. THE COMMISSIONER IS HEREBY AUTHORIZED
AND DIRECTED TO ESTABLISH A SYSTEM FOR THE CREATION AND USE OF A TAX
STAMP OR OTHER MARKER TO BE AFFIXED TO BEER SOLD IN THIS STATE EVIDENC-
ING THE PAYMENT OF TAX IMPOSED UNDER THIS ARTICLE.
S 2. The tax law is amended by adding a new section 1103-A to read as
follows:
S 1103-A. PREPAYMENT OF SALES TAX ON BEER. (A)(1) EVERY BEER AGENT
SHALL PAY, AS A PREPAYMENT ON ACCOUNT OF THE TAXES IMPOSED BY THIS ARTI-
CLE AND PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAP-
TER, A TAX ON BEER, AS DEFINED IN SUBDIVISION FIVE OF SECTION FOUR
HUNDRED TWENTY OF THIS CHAPTER, POSSESSED FOR SALE OR USE IN THIS STATE.
SUCH AGENT SHALL BE REQUIRED TO AFFIX A STAMP OR OTHER MARKER TO BE
DETERMINED AND PRESCRIBED BY THE COMMISSIONER TO EVIDENCE PAYMENT OF THE
TAX IMPOSED BY ARTICLE EIGHTEEN OF THIS CHAPTER, EXCEPT NO TAX SHALL BE
REQUIRED TO BE PREPAID ON BEER SOLD UNDER CIRCUMSTANCES THAT THIS STATE
IS WITHOUT POWER TO IMPOSE SUCH PREPAYMENT OR SOLD TO THE UNITED STATES
OR SOLD TO OR BY A VOLUNTARY UNINCORPORATED ORGANIZATION OF THE ARMED
FORCES OF THE UNITED STATES OPERATING A PLACE FOR THE SALE OF GOODS
PURSUANT TO REGULATIONS PROMULGATED BY THE APPROPRIATE EXECUTIVE AGENCY
OF THE UNITED STATES, TO THE EXTENT PROVIDED IN SUCH REGULATIONS AND
WRITTEN POLICY STATEMENTS OF SUCH AN AGENCY APPLICABLE TO SUCH SALES.
(2) THE TAX IMPOSED BY THIS SECTION SHALL BE PAID AT THE SAME TIME AND
IN THE SAME MANNER AS THE TAX IMPOSED BY ARTICLE EIGHTEEN OF THIS CHAP-
TER WITH RESPECT TO BEER. THE COMMISSIONER MAY, IN THE COMMISSIONER'S
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14747-01-9
A. 9415 2
DISCRETION, PERMIT AN AGENT TO PAY THE TAX IMPOSED UNDER THIS SECTION AT
THE SAME TIME THAT THE AGENT PAYS FOR BEER TAX STAMPS OR OTHER MARKER
PRESCRIBED BY THE COMMISSIONER UNDER ARTICLE EIGHTEEN OF THIS CHAPTER
AND MAY REQUIRE ANY SUCH AGENT TO FILE WITH THE DEPARTMENT A BOND ISSUED
BY A SURETY COMPANY APPROVED BY THE SUPERINTENDENT OF INSURANCE AS TO
SOLVENCY AND RESPONSIBILITY AND AUTHORIZED TO TRANSACT BUSINESS IN THE
STATE OR OTHER SECURITY ACCEPTABLE TO THE COMMISSIONER, IN SUCH AMOUNT
AS THE COMMISSIONER MAY FIX, TO SECURE THE PAYMENT OF ANY SUMS DUE FROM
SUCH AGENT PURSUANT TO THIS SECTION. IF SECURITIES ARE DEPOSITED AS
SECURITY UNDER THIS SUBDIVISION, SUCH SECURITIES SHALL BE KEPT IN THE
CUSTODY OF THE COMMISSIONER ANY MAY BE SOLD BY THE COMMISSIONER IF IT
BECOMES NECESSARY TO DO SO IN ORDER TO RECOVER ANY SUMS DUE FROM SUCH
AGENT PURSUANT TO THIS SECTION, BUT NO SUCH SALE SHALL BE HAD UNTIL
AFTER SUCH AGENT SHALL HAVE HAD AN OPPORTUNITY TO LITIGATE THE VALIDITY
OF ANY PREPAYMENT OF TAX IF IT ELECTS TO SO. UPON ANY SUCH SALE, THE
SURPLUS, IF ANY, ABOVE THE SUMS DUE UNDER THIS SECTION SHALL BE RETURNED
TO SUCH AGENT.
(3) EVERY PERSON OTHER THAN AN AGENT SHALL PREPAY THE TAX IMPOSED BY
THIS SECTION AT THE SAME TIME AND IN THE SAME MANNER AS THE USE TAX
IMPOSED BY SECTION FOUR HUNDRED TWENTY-FOUR OF THIS CHAPTER.
(B) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE TAXES REQUIRED
TO BE PREPAID PURSUANT TO THIS SECTION SHALL BE ADMINISTERED AND
COLLECTED IN A LIKE MANNER AS THE TAXES IMPOSED BY SECTIONS ELEVEN
HUNDRED FIVE AND ELEVEN HUNDRED TEN OF THIS ARTICLE. ALL THE PROVISIONS
OF THIS ARTICLE RELATING TO OR APPLICABLE TO THE ADMINISTRATION,
COLLECTION AND DISPOSITION OF THE TAXES IMPOSED BY SUCH SECTIONS SHALL
APPLY TO THE TAX REQUIRED TO BE PREPAID UNDER THIS SECTION SO FAR AS
SUCH PROVISIONS CAN BE MADE APPLICABLE TO SUCH PREPAYMENTS OF TAX WITH
SUCH LIMITATIONS AS SET FORTH IN THIS ARTICLE AND SUCH MODIFICATIONS AS
MAY BE NECESSARY IN ORDER TO ADAPT SUCH LANGUAGE TO THE TAX SO IMPOSED;
PROVIDED, HOWEVER, THAT THE PROVISIONS OF PARAGRAPH ONE OF SUBDIVISION
(C) OF SECTION ELEVEN HUNDRED THIRTY-SEVEN OF THIS ARTICLE SHALL NOT BE
APPLICABLE TO SUCH TAX REQUIRED TO BE PREPAID UNDER THIS SECTION. SUCH
PROVISIONS SHALL APPLY WITH THE SAME FORCE AND EFFECT AS IF THE LANGUAGE
OF THOSE PROVISIONS HAD BEEN SET FORTH IN FULL IN THIS SECTION EXCEPT TO
THE EXTENT THAT ANY PROVISION IS EITHER INCONSISTENT WITH A PROVISION OF
THIS SECTION OR IS NOT RELEVANT TO THE TAX REQUIRED TO BE PREPAID BY
THIS SECTION. FOR PURPOSES OF THIS SECTION, ANY REFERENCE IN THIS ARTI-
CLE TO THE TAX OR TAXES IMPOSED BY THIS ARTICLE SHALL BE DEEMED TO REFER
TO THE TAX REQUIRED TO BE PREPAID PURSUANT TO THIS SECTION UNLESS A
DIFFERENT MEANING IS CLEARLY REQUIRED.
(C) NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO REQUIRE THE PAYMENT
OF THE TAX REQUIRED TO BE PREPAID PURSUANT TO THIS SECTION MORE THAN
ONCE UPON BEER POSSESSED FOR SALE OR USED WITHIN THE STATE. WHEN THE
PREPAID TAX IMPOSED PURSUANT TO THIS SECTION IS PAID, IT SHALL HAVE BEEN
SO PAID ON ACCOUNT OF THE TAXES IMPOSED BY THIS ARTICLE AND PURSUANT TO
THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER WITH RESPECT TO THE
RETAIL SALE OR THE USE OF BEER. NOTHING IN THIS SECTION SHALL MODIFY OR
AFFECT THE TAXES IMPOSED BY SECTIONS ELEVEN HUNDRED FIVE AND ELEVEN
HUNDRED TEN OF THIS ARTICLE AS APPLIED TO RECEIPTS FROM THE SALE, OR TO
THE USE, OF SUCH BEER.
(D) (1) CONSISTENT WITH SECTION ELEVEN HUNDRED FORTY-EIGHT OF THIS
ARTICLE AND SECTION TWELVE HUNDRED SIXTY-ONE OF THIS CHAPTER, THE TAXES
REQUIRED TO BE PREPAID PURSUANT TO THIS SECTION AND INTEREST AND PENAL-
TIES THEREON RECEIVED BY THE COMMISSIONER, AFTER DEDUCTING THE AMOUNT
WHICH THE COMMISSIONER SHALL DETERMINE TO BE NECESSARY FOR REASONABLE
A. 9415 3
COSTS OF THE COMMISSIONER IN ADMINISTERING, COLLECTING, AND DISTRIBUTING
SUCH TAXES, SHALL BE DEPOSITED DAILY WITH SUCH RESPONSIBLE BANKS, BANK-
ING HOUSES OR TRUST COMPANIES, AS MAY BE DESIGNATED BY THE COMPTROLLER,
TO THE CREDIT OF THE COMPTROLLER. OF THE TOTAL REVENUE COLLECTED OR
RECEIVED UNDER THIS SECTION, THE COMPTROLLER SHALL RETAIN IN THE COMP-
TROLLER'S HANDS SUCH AMOUNT AS THE COMMISSIONER MAY DETERMINE TO BE
NECESSARY FOR REFUNDS UNDER THIS ARTICLE AND PURSUANT TO THE AUTHORITY
OF ARTICLE TWENTY-NINE OF THIS CHAPTER.
(2) ON OR BEFORE THE TWELFTH DAY OF EACH MONTH, AFTER RESERVING SUCH
AMOUNT FOR SUCH REFUNDS AND SUCH COSTS, THE COMMISSIONER SHALL DETERMINE
THE AMOUNT OF ALL REVENUES SO RECEIVED DURING THE PRIOR MONTH AS A
RESULT OF THE TAXES, INTEREST AND PENALTIES SO IMPOSED AND, IN ADDITION,
ON OR BEFORE THE LAST DAY OF JUNE AND DECEMBER THE COMMISSIONER SHALL
DETERMINE IN LIKE MANNER THE AMOUNT OF SUCH MONEYS RECEIVED DURING AND
INCLUDING THE FIRST TWENTY-FIVE DAYS OF SAID MONTHS. THE COMMISSIONER
SHALL DETERMINE THE PROPORTION OF REVENUES ATTRIBUTABLE TO RECEIPTS FOR
THE PERIOD FOR WHICH THE DETERMINATION IS MADE PURSUANT TO THE PRECEDING
SENTENCE FROM TAXES ON SALES AND USES OF PROPERTY AND SERVICES AND RENT
AND AMUSEMENT CHARGES IMPOSED BY THIS ARTICLE AND PURSUANT TO THE
AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER AND ADMINISTERED BY THE
COMMISSIONER WHICH IS PAYABLE TO EACH JURISDICTION DETERMINED WITHOUT
REGARD TO THIS SECTION. THE AMOUNT OF REVENUES SO DETERMINED PURSUANT TO
THIS SECTION SHALL BE DEPOSITED AND DISTRIBUTED BY THE COMPTROLLER IN
ACCORDANCE WITH THE SAME PERCENTAGE AMOUNT TO WHICH A JURISDICTION IS
ENTITLED DETERMINED WITHOUT REGARD TO THIS SECTION. WHERE THE AMOUNT SO
DETERMINED IN ANY DISTRIBUTION FROM SUCH TAXES (OTHER THAN THE TAX
IMPOSED BY THIS SECTION) IS MORE OR LESS THAN THE AMOUNT DUE, THE AMOUNT
OF THE OVERPAYMENT OR UNDERPAYMENT SHALL BE DETERMINED AS SOON AFTER THE
DISCOVERY OF THE OVERPAYMENT OR UNDERPAYMENT AS IS REASONABLY POSSIBLE
AND SUBSEQUENT DETERMINATIONS SHALL BE ADJUSTED BY SUBTRACTING THE
AMOUNT OF ANY SUCH OVERPAYMENT FROM OR BY ADDING THE AMOUNT OF ANY SUCH
UNDERPAYMENT TO SUCH NUMBER OF SUBSEQUENT PAYMENTS AS THE COMPTROLLER
AND THE COMMISSIONER SHALL CONSIDER REASONABLE IN VIEW OF THE AMOUNT OF
THE OVERPAYMENT OR UNDERPAYMENT AND ALL OTHER PERTINENT FACTS AND
CIRCUMSTANCES. THE COMMISSIONER SHALL NOT BE LIABLE FOR ANY OVERESTIMATE
OR UNDERESTIMATE OF THE AMOUNT OF THE DISTRIBUTION. NOR SHALL THE
COMMISSIONER BE LIABLE FOR ANY INACCURACY IN ANY DETERMINATION WITH
RESPECT TO THE AMOUNT OF THE DISTRIBUTION OR ANY REQUIRED ADJUSTMENT
WITH RESPECT TO THE DISTRIBUTION, BUT THE COMMISSIONER SHALL AS SOON AS
PRACTICABLE AFTER DISCOVERY OF ANY ERROR ADJUST THE NEXT DETERMINATION
UNDER THIS SECTION TO REFLECT ANY SUCH ERROR.
S 3. This act shall take effect September 1, 2010, and shall apply to
all taxable events respecting beer as such events are described in
section 1103-A of the tax law, as added by section two of this act,
occurring on or after such date.