Senate Bill S67004

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 4                                                        A. 4

                      Second Extraordinary Session

                      S E N A T E - A S S E M B L Y

                              July 30, 2010
                               ___________

IN  SENATE  --  Introduced  by  COMMITTEE ON RULES -- (at request of the
  Governor) -- read twice and ordered printed, and when  printed  to  be
  committed to the Committee on Rules

IN  ASSEMBLY  --  Introduced by COMMITTEE ON RULES -- (at request of the
  Governor) -- read once and referred to the Committee on Ways and Means

AN ACT to amend the tax law, in relation to  imposing  tax  on  beverage
  syrups and soft drinks

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph a of subdivision twenty-sixth of section  171  of
the tax law, as amended by section 1 of subpart D of part V-1 of chapter
57 of the laws of 2009, is amended to read as follows:
  a. Set the overpayment and underpayment rates of interest for purposes
of  articles  twelve-A, SIXTEEN, eighteen, twenty and twenty-one of this
chapter.  Such rates shall be the overpayment and underpayment rates  of
interest  set pursuant to subsection (e) of section one thousand ninety-
six of this chapter, but the underpayment rate shall not  be  less  than
seven and one-half percent per annum. Any such rates set by such commis-
sioner  shall  apply  to  taxes, or any portion thereof, which remain or
become due or overpaid (other than overpayments under such article twen-
ty and not including reimbursements, if any, under any of such articles)
on or after the date on which such  rates  become  effective  and  shall
apply  only  with respect to interest computed or computable for periods
or portions of periods occurring in the period during which  such  rates
are  in  effect.  In computing the amount of any interest required to be
paid under such articles by such commissioner or by the taxpayer, or any
other amount determined by reference to such amount  of  interest,  such
interest and such amount shall be compounded daily.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12306-01-0

S. 4                                2                               A. 4
              

  S  2.  Subdivision  1  of  section 171-a of the tax law, as amended by
section 1 of part R of chapter 60 of the laws of  2004,  is  amended  to
read as follows:
  1.  All  taxes,  interest, penalties and fees collected or received by
the commissioner or the commissioner's duly authorized agent under arti-
cles nine (except section one hundred eighty-two-a thereof and except as
otherwise  provided  in  section  two  hundred  five  thereof),  nine-A,
twelve-A  (except  as  otherwise provided in section two hundred eighty-
four-d thereof), thirteen, thirteen-A (except as otherwise  provided  in
section  three  hundred  twelve  thereof),  SIXTEEN (EXCEPT AS OTHERWISE
PROVIDED IN SECTION THREE HUNDRED SIXTY-FOUR THEREOF),  eighteen,  nine-
teen,  twenty  (except  as  otherwise  provided  in section four hundred
eighty-two thereof), twenty-one, twenty-two,  twenty-six,  twenty-six-B,
twenty-eight (except as otherwise provided in section eleven hundred two
or  eleven hundred three thereof), twenty-eight-A, thirty-one (except as
otherwise provided in  section  fourteen  hundred  twenty-one  thereof),
thirty-two,  thirty-three  and  thirty-three-A  of this chapter shall be
deposited daily in one account  with  such  responsible  banks,  banking
houses  or  trust  companies as may be designated by the comptroller, to
the credit of the comptroller. Such an account may be established in one
or more of such depositories. Such deposits shall be kept  separate  and
apart  from  all  other  money in the possession of the comptroller. The
comptroller shall require adequate security from all such  depositories.
Of  the  total revenue collected or received under such articles of this
chapter, the comptroller shall retain in the  comptroller's  hands  such
amount  as the commissioner may determine to be necessary for refunds or
reimbursements under such articles of  this  chapter  [and  article  ten
thereof]  out  of  which amount the comptroller shall pay any refunds or
reimbursements to which taxpayers shall be entitled under the provisions
of such articles of this chapter [and article ten thereof]. The  commis-
sioner  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  subdivi-
sion 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 seven-
ty-one-e of this [chapter]  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 overpayment of tax imposed by article nine,  nine-A,

S. 4                                3                               A. 4

twenty-two,  thirty,  thirty-A,  thirty-B, thirty-two or thirty-three of
this chapter, and any interest thereon, which is certified to the  comp-
troller by the commissioner as the amount to be credited against a past-
due  legally  enforceable  debt owed to a state agency pursuant to para-
graph (a) of subdivision six of section  one  hundred  seventy-one-f  of
this  article,  provided, however, he OR SHE shall credit to the special
offset fiduciary 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 arti-
cle 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 over-
payment of tax imposed by article twenty-two of  this  chapter  and  the
interest  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
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 3. The tax law is amended by adding a new  article  16  to  read  as
follows:
                               ARTICLE 16
                 TAX ON BEVERAGE SYRUPS AND SOFT DRINKS
SECTION 350. GENERAL DEFINITIONS.
        351. IMPOSITION OF TAX.
        352. EXEMPTIONS.
        353. REGISTRATION OF DISTRIBUTORS.
        354. BONDS OF DISTRIBUTORS.
        355. CANCELLATION OR SUSPENSION OF REGISTRATION OF DISTRIBUTORS.
        356. PRESUMPTION OF TAXABILITY.
        357. RECORDS TO BE KEPT BY DISTRIBUTORS AND OTHERS; EXAMINATION.
        358. PAYMENT OF TAX; RETURNS.
        359. DETERMINATION OF TAX.
        360. PROCEEDINGS TO RECOVER TAX.
        361. PENALTIES AND INTEREST.
        362. REFUNDS.
        363. MAILING RULES; HOLIDAYS.
        364. DEPOSIT AND DISPOSITION OF REVENUE.

S. 4                                4                               A. 4

        365. SPECIAL REVENUE DISPOSITION IN RESPECT OF SALES AND COMPEN-
               SATING USE TAXES.
  S 350. GENERAL DEFINITIONS. AS USED IN THIS ARTICLE: 1. "BOTTLE" MEANS
ANY  CLOSED  OR  SEALED  GLASS,  METAL,  PAPER, PLASTIC OR OTHER TYPE OF
CONTAINER, REGARDLESS OF SIZE OR SHAPE.
  2. "BOTTLED SOFT DRINK" MEANS ANY SOFT DRINK CONTAINED IN A BOTTLE.
  3. "DIETARY AID" MEANS A  LIQUID  PRODUCT  THAT  IS  INTENDED  BY  ITS
MANUFACTURER  FOR  USE  AS  (A)  A  REPLACEMENT FOR A DAILY MEAL FOR THE
PURPOSES OF WEIGHT REDUCTION, (B)  AN  ORAL  NUTRITIONAL  THERAPY  WHERE
CALORIC  AND  DIETARY NUTRIENTS FROM FOOD CANNOT BE ABSORBED OR METABOL-
IZED, (C) A SOURCE OF NECESSARY NUTRITION DUE TO A MEDICAL CONDITION, OR
(D) AN ORAL ELECTROLYTE SOLUTION FOR INFANTS AND CHILDREN FORMULATED  TO
PREVENT DEHYDRATION DUE TO DIARRHEA OR VOMITING.
  4.  "DISTRIBUTOR"  MEANS  ANY  PERSON  WHO (A) IMPORTS OR CAUSES TO BE
IMPORTED INTO THE STATE, FOR USE,  DISTRIBUTION,  BOTTLING,  STORAGE  OR
SALE ANY (I) SYRUPS OR SIMPLE SYRUPS, (II) BOTTLED SOFT DRINKS, OR (III)
POWDERS  OR  BASE  PRODUCTS, OR (B) PRODUCES, REFINES, BOTTLES, MANUFAC-
TURES, COMPOUNDS OR MIXES (I) SYRUPS OR SIMPLE SYRUPS, (II) BOTTLED SOFT
DRINKS, OR (III) POWDERS OR BASE PRODUCTS.
  5. "INFANT FORMULA" MEANS 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 FORMULA.
  6. "MILK" MEANS NATURAL LIQUID MILK, REGARDLESS OF  ANIMAL  SOURCE  OR
BUTTERFAT  CONTENT;  AND NATURAL MILK CONCENTRATE, WHETHER OR NOT RECON-
STITUTED, REGARDLESS OF ANIMAL SOURCE OR  BUTTERFAT  CONTENT;  OR  DEHY-
DRATED NATURAL MILK, WHETHER OR NOT RECONSTITUTED.
  7.  "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.
  8.  "MILK  SUBSTITUTE"  MEANS  ANY  LIQUID  THAT  IS  SOY-BASED AND IS
INTENDED BY ITS MANUFACTURER AS A SUBSTITUTE FOR MILK.
  9. "NATURAL FRUIT JUICE" MEANS THE ORIGINAL LIQUID RESULTING FROM  THE
PRESSING OF FRUIT, THE LIQUID RESULTING FROM THE RECONSTITUTION OF FRUIT
JUICE  CONCENTRATE OR THE LIQUID RESULTING FROM THE RESTORATION OF WATER
TO DEHYDRATED FRUIT JUICE.
  10. "NATURAL VEGETABLE JUICE" MEANS THE ORIGINAL LIQUID RESULTING FROM
THE PRESSING OF VEGETABLES, THE LIQUID RESULTING FROM THE RECONSTITUTION
OF VEGETABLE JUICE CONCENTRATE OR THE LIQUID RESULTING FROM THE RESTORA-
TION OF WATER TO DEHYDRATED VEGETABLE JUICE.
  11. "NONALCOHOLIC BEVERAGE" MEANS ANY  BEVERAGE  NOT  SUBJECT  TO  TAX
UNDER ARTICLE EIGHTEEN OF THIS CHAPTER.
  12.  "PERSON"  INCLUDES  AN INDIVIDUAL, PARTNERSHIP, LIMITED LIABILITY
COMPANY, SOCIETY, ASSOCIATION, JOINT STOCK COMPANY, CORPORATION, ESTATE,
RECEIVER, TRUSTEE, ASSIGNEE, REFEREE, AND ANY OTHER PERSON ACTING  IN  A
FIDUCIARY  OR  REPRESENTATIVE  CAPACITY, WHETHER APPOINTED BY A COURT OR
OTHERWISE, AND ANY COMBINATION OF THE FOREGOING.
  13. "PLACE OF BUSINESS" MEANS ANY PLACE WHERE  (A)  SYRUPS  OR  SIMPLE
SYRUPS  (B)  BOTTLED  SOFT  DRINKS,  OR (C) POWDERS OR BASE PRODUCTS ARE
EITHER MANUFACTURED OR RECEIVED.
  14. "POWDER OR BASE PRODUCT" MEANS A SOLID MIXTURE OF  BASIC  INGREDI-
ENTS  USED  IN MAKING, MIXING, OR COMPOUNDING SOFT DRINKS, BY MIXING THE
POWDER OR OTHER BASE WITH WATER, ICE, SYRUP, SIMPLE SYRUP, FRUITS, VEGE-
TABLES, FRUIT JUICE, VEGETABLE JUICE OR ANY OTHER  PRODUCT  SUITABLE  TO
MAKE A SOFT DRINK.
  15.  "RETAIL  DEALER"  MEANS ANY PERSON, OTHER THAN A DISTRIBUTOR, WHO
SELLS OR DISPENSES A SOFT DRINK TO AN ULTIMATE CONSUMER.

S. 4                                5                               A. 4

  16. "SALE" MEANS ANY TRANSFER OF TITLE OR POSSESSION OR BOTH, EXCHANGE
OR BARTER, RENTAL, LEASE OR LICENSE TO USE OR  CONSUME,  CONDITIONAL  OR
OTHERWISE,  IN  ANY MANNER OR BY ANY MEANS WHATSOEVER FOR CONSIDERATION,
OR ANY AGREEMENT THEREFOR.
  17. "SIMPLE SYRUP" MEANS A MIXTURE OF SUGAR AND WATER.
  18. "SOFT DRINK" MEANS ANY NONALCOHOLIC BEVERAGE, WHETHER NATURALLY OR
ARTIFICIALLY  FLAVORED,  WHETHER  CARBONATED  OR NONCARBONATED, SOLD FOR
HUMAN CONSUMPTION, CONTAINING MORE THAN TEN CALORIES PER  EIGHT  OUNCES,
INCLUDING,  BUT NOT LIMITED TO, (A) SODA, WATER, SPORTS DRINKS, "ENERGY"
DRINKS, COLAS, FLAVORED DRINKS, (B) FRUIT OR VEGETABLE DRINKS CONTAINING
LESS THAN SEVENTY PERCENT (70%) OF NATURAL FRUIT JUICE OR NATURAL  VEGE-
TABLE  JUICE,  OR  A COMBINATION OF JUICES, ANY FROZEN, FREEZE-DRIED, OR
OTHER CONCENTRATE TO WHICH WATER IS ADDED TO PRODUCE A BEVERAGE CONTAIN-
ING LESS THAN SEVENTY PERCENT (70%) OF NATURAL FRUIT  JUICE  OR  NATURAL
VEGETABLE JUICE, AND (C) COFFEE AND TEA BOTTLED AS A LIQUID FOR SALE.
  19.  "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 SOFT DRINK.
  20. "USE" MEANS (A) ANY COMPOUNDING OR  MIXING  OF  SYRUPS  OR  SIMPLE
SYRUPS,  BOTTLED  SOFT  DRINKS,  OR  POWDERS OR BASE PRODUCTS WITH OTHER
INGREDIENTS  OR  OTHER  TREATMENT  OR  (B)  THE  ACTUAL  CONSUMPTION  OR
POSSESSION  FOR  CONSUMPTION  OF  SYRUPS  OR SIMPLE SYRUPS, BOTTLED SOFT
DRINKS, OR POWDERS OR BASE PRODUCTS AS A BEVERAGE OR OTHERWISE.
  S 351. IMPOSITION OF TAX. 1. THERE ARE LEVIED AND IMPOSED TAXES AT THE
FOLLOWING RATES ON:
  (A) SYRUPS OR SIMPLE SYRUPS, THE TAX RATE SHALL BE SEVEN  DOLLARS  AND
SIXTY-EIGHT  CENTS PER GALLON BASED ON ONE GALLON BEING CONSTITUTED INTO
SEVEN HUNDRED SIXTY-EIGHT OUNCES OF SOFT DRINK. IN THE EVENT SUCH GALLON
OF SYRUP OR SIMPLE SYRUP RECONSTITUTES A GREATER AMOUNT  OF  SOFT  DRINK
THE RATE OF TAX PER GALLON SHALL BE INCREASED PROPORTIONALLY TO BE BASED
ON  THE  ACTUAL  NUMBER  OF  FLUID OUNCES OF SOFT DRINK PRODUCED BY SUCH
GALLON  OF  SYRUP  OR  SIMPLE  SYRUP  BY  FOLLOWING  THE  MANUFACTURER'S
DIRECTIONS;
  (B)  BOTTLED SOFT DRINKS, THE TAX RATE SHALL BE ONE DOLLAR AND TWENTY-
EIGHT CENTS PER GALLON; AND
  (C) POWDERS OR BASE PRODUCTS, THE TAX RATE SHALL  BE  ONE  DOLLAR  AND
TWENTY-EIGHT  CENTS  FOR  EACH GALLON OF SOFT DRINK THAT MAY BE PRODUCED
FROM EACH PACKAGE OR CONTAINER OF POWDERS OR BASE PRODUCTS BY  FOLLOWING
THE MANUFACTURER'S DIRECTIONS.
  2.  THE  TAXES  SHALL BE IMPOSED WHEN THE (A) SYRUPS OR SIMPLE SYRUPS,
BOTTLED SOFT DRINKS, OR POWDERS OR BASE PRODUCTS ARE  IMPORTED  INTO  OR
CAUSED  TO  BE  IMPORTED INTO THE STATE FOR USE, DISTRIBUTION, BOTTLING,
STORAGE, OR SALE IN THE STATE OR  (B)  UPON  SYRUPS  OR  SIMPLE  SYRUPS,
BOTTLED  SOFT  DRINKS,  OR  POWDERS OR BASE PRODUCTS WHICH ARE PRODUCED,
REFINED, BOTTLED, MANUFACTURED, COMPOUNDED OR MIXED BY A DISTRIBUTOR  IN
THE  STATE  (WHICH  ACTS SHALL HEREINAFTER IN THIS SUBDIVISION BE ENCOM-
PASSED BY THE PHRASE "IMPORTED OR MANUFACTURED").
  3. FOR PURPOSES OF THIS CHAPTER, IT IS PRESUMED THAT SYRUPS AND SIMPLE
SYRUPS ARE POSSESSED FOR THE PURPOSE OF SALE IN THIS STATE. IT  IS  ALSO
PRESUMED  THAT  BOTTLED  SOFT  DRINKS  OR  POWDERS  OR BASE PRODUCTS ARE
POSSESSED FOR THE PURPOSE OF SALE IN  THIS  STATE  IF  THE  QUANTITY  OF
BOTTLED SOFT DRINKS OR POWDERS OR BASE PRODUCTS POSSESSED IN THIS STATE,
IMPORTED  OR CAUSED TO BE IMPORTED INTO THIS STATE OR PRODUCED, REFINED,
BOTTLED, MANUFACTURED, COMPOUNDED OR MIXED IN THIS  STATE  EXCEEDS  FIVE
GALLONS.  SUCH  PRESUMPTION  MAY  BE  REBUTTED  BY  THE  INTRODUCTION OF

S. 4                                6                               A. 4

SUBSTANTIAL EVIDENCE TO THE CONTRARY. IN ANY CASE WHERE THE QUANTITY  OF
SYRUPS  AND  SIMPLE  SYRUPS,  BOTTLE  SOFT  DRINKS,  OR  POWDERS OR BASE
PRODUCTS TAXABLE PURSUANT TO THIS ARTICLE IS A FRACTIONAL  PART  OF  ONE
GALLON OR AN AMOUNT GREATER THAN A WHOLE MULTIPLE OF GALLONS, THE AMOUNT
OF  TAX  LEVIED  AND  IMPOSED  ON SUCH FRACTIONAL PART OF ONE GALLON, OR
FRACTIONAL PART OF A GALLON IN EXCESS OF A  WHOLE  MULTIPLE  OF  GALLONS
SHALL  BE SUCH FRACTIONAL PART OF THE RATE IMPOSED BY SUBDIVISION ONE OF
THIS SECTION.
  4. WHEN A RETAILER PURCHASES SYRUPS OR  SIMPLE  SYRUPS,  BOTTLED  SOFT
DRINKS,  OR POWDERS OR BASE PRODUCTS FROM ANY PERSON NOT REGISTERED AS A
DISTRIBUTOR, THE RETAILER SHALL BE LIABLE FOR THE TAX IMPOSED IN  SUBDI-
VISION ONE OF THIS SECTION.
  5.  NOTHING  IN THIS ARTICLE SHALL BE CONSTRUED TO REQUIRE THE PAYMENT
TO THE DEPARTMENT OF THE TAXES IMPOSED  BY  THIS  ARTICLE  ON  THE  SAME
GALLON OF PRODUCT MORE THAN ONCE.
  S  352. EXEMPTIONS. THE FOLLOWING SHALL BE EXEMPT FROM THE TAX IMPOSED
BY THIS ARTICLE ON:
  1. PRODUCTS.
  (A) DIETARY AIDS.
  (B) INFANT FORMULA.
  (C) MILK, MILK PRODUCTS AND MILK SUBSTITUTES.
  2. EXPORTS. SYRUPS OR SIMPLE SYRUPS, BOTTLED SOFT DRINKS,  OR  POWDERS
OR  BASE  PRODUCTS  IMPORTED OR CAUSED TO BE IMPORTED INTO THIS STATE OR
PRODUCED, REFINED, BOTTLED, MANUFACTURED, COMPOUNDED OR  MIXED  IN  THIS
STATE BY A DISTRIBUTOR, WHERE SUCH DISTRIBUTOR OR THE IMMEDIATE PURCHAS-
ER  OF  SUCH SYRUPS OR SIMPLE SYRUPS, BOTTLED SOFT DRINKS, OR POWDERS OR
BASE PRODUCTS EXPORTS SUCH PRODUCTS FROM THIS  STATE  FOR  SALE  OR  USE
OUTSIDE  THE  STATE.  IN  ORDER TO RECEIVE THIS EXEMPTION, A DISTRIBUTOR
SHALL HAVE TO COMPLY WITH ALL EVIDENTIARY REQUIREMENTS  OF  THE  COMMIS-
SIONER.
  3.  SALES  TO THE FEDERAL GOVERNMENT. SYRUPS OR SIMPLE SYRUPS, BOTTLED
SOFT DRINKS, OR POWDERS OR  BASE  PRODUCTS  IMPORTED  OR  CAUSED  TO  BE
IMPORTED  INTO  THIS  STATE OR PRODUCED, REFINED, BOTTLED, MANUFACTURED,
COMPOUNDED OR MIXED IN THIS STATE BY A DISTRIBUTOR,  AND  THEN  SOLD  BY
SUCH DISTRIBUTOR TO AN ORGANIZATION DESCRIBED IN PARAGRAPH TWO OF SUBDI-
VISION  (A) OF SECTION ELEVEN HUNDRED SIXTEEN OF THIS CHAPTER WHERE SUCH
SYRUPS OR SIMPLE  SYRUPS,  BOTTLED  SOFT  DRINKS,  OR  POWDERS  OR  BASE
PRODUCTS ARE USED BY SUCH ORGANIZATION FOR ITS OWN USE OR CONSUMPTION.
  4.  IMPORTATION  FOR PERSONAL USE AND CONSUMPTION. BOTTLED SOFT DRINKS
OR POWDERS OR BASE PRODUCTS IMPORTED OR CAUSED TO BE IMPORTED INTO  THIS
STATE  IN THE POSSESSION OF AN INDIVIDUAL IN THE AMOUNT OF ONE GALLON OR
LESS PER MONTH FOR SUCH INDIVIDUAL'S OWN USE AND CONSUMPTION.
  5. MANUFACTURE FOR PERSONAL USE AND CONSUMPTION. SOFT DRINKS  MANUFAC-
TURED FOR SUCH INDIVIDUAL'S OWN USE AND CONSUMPTION AND NOT FOR RESALE.
  6.  SUGAR ADDED AT THE REQUEST OF PURCHASER. THE TAX DOES NOT APPLY TO
INDIVIDUAL SERVINGS OF A BEVERAGE THAT WOULD NOT OTHERWISE BE SUBJECT TO
TAX AS A SOFT DRINK IF SUGAR IS ADDED BY THE RETAILER AT THE REQUEST  OF
THE PURCHASER AT THE TIME OF SALE.
  S  353.  REGISTRATION  OF  DISTRIBUTORS.   1. (A) THE COMMISSIONER MAY
REGISTER PERSONS AS DISTRIBUTORS UNDER THIS ARTICLE AS THE  COMMISSIONER
SHALL PRESCRIBE. IF THE COMMISSIONER REGISTERS DISTRIBUTORS, THE COMMIS-
SIONER  SHALL  REGISTER  DISTRIBUTORS UPON APPLICATION.  THE APPLICATION
SHALL BE IN A FORM AND CONTAIN  SUCH  DATA  AS  THE  COMMISSIONER  SHALL
PRESCRIBE.
  (B)   IF   THE  COMMISSIONER  REGISTERS  DISTRIBUTORS,  THE  FOLLOWING
PROVISIONS APPLY. NO PERSON, UNLESS SO REGISTERED, SHALL IMPORT OR CAUSE

S. 4                                7                               A. 4

ANY SYRUPS OR SIMPLE SYRUPS, BOTTLED SOFT DRINKS,  OR  POWDERS  OR  BASE
PRODUCTS  TO  BE IMPORTED INTO THE STATE, FOR USE, DISTRIBUTION, STORAGE
OR SALE WITHIN THE STATE OR SHALL PRODUCE, REFINE, BOTTLE,  MANUFACTURE,
COMPOUND OR MIX SYRUPS OR SIMPLE SYRUPS, BOTTLED SOFT DRINKS, OR POWDERS
OR BASE PRODUCTS WITHIN THE STATE. NO DISTRIBUTOR, UNLESS SO REGISTERED,
SHALL  MAKE  ANY  SALE,  TRANSFER, USE OR OTHER DISPOSITION OF SYRUPS OR
SIMPLE SYRUPS, BOTTLED SOFT DRINKS, OR POWDERS OR BASE  PRODUCTS  WITHIN
THIS  STATE,  EXCEPT A SALE, TRANSFER, USE OR DISPOSITION, IF ANY, AS TO
WHICH THIS STATE CANNOT IMPOSE SUCH CONDITION BY REASON  OF  THE  UNITED
STATES  CONSTITUTION  AND  OF LAWS OF THE UNITED STATES ENACTED PURSUANT
THERETO.  PROVIDED, HOWEVER, THAT THE COMMISSIONER MAY EXCLUDE FROM  THE
REGISTRATION  REQUIREMENTS, ANY PERSON WHO IS A DISTRIBUTOR OF SYRUPS OR
SIMPLE SYRUPS, BOTTLED SOFT DRINKS, OR POWDERS OR BASE  PRODUCTS  SOLELY
BY  REASON  OF  THE  IMPORTATION  INTO  THIS  STATE OF NO MORE THAN FIVE
GALLONS OF BOTTLED SOFT DRINKS OR POWDERS OR BASE  PRODUCTS  SUBJECT  TO
TAX  BY  THIS  ARTICLE  EACH  MONTH  FOR  SUCH PERSON'S PERSONAL USE AND
CONSUMPTION.
  2. IF THE COMMISSIONER REGISTERS DISTRIBUTORS, THE REGISTRATION GRANT-
ED TO A DISTRIBUTOR BY THE  COMMISSIONER  SHALL  NOT  BE  ASSIGNABLE  OR
TRANSFERABLE.
  S  354.  BONDS  OF  DISTRIBUTORS.  1.  IF  THE  COMMISSIONER REGISTERS
DISTRIBUTORS, THE COMMISSIONER MAY ALSO REQUIRE  BONDS  AS  PROVIDED  IN
THIS SECTION.
  2. THE COMMISSIONER MAY REQUIRE A DISTRIBUTOR TO FILE WITH THE COMMIS-
SIONER  A BOND ISSUED BY A SURETY COMPANY APPROVED BY THE SUPERINTENDENT
OF INSURANCE AS TO SOLVENCY AND RESPONSIBILITY AND AUTHORIZED TO  TRANS-
ACT BUSINESS IN THIS STATE OR ANOTHER SECURITY ACCEPTABLE TO THE COMMIS-
SIONER,  IN  SUCH AMOUNT FIXED BY THE COMMISSIONER TO SECURE THE PAYMENT
OF ANY SUMS DUE FROM SUCH DISTRIBUTOR PURSUANT TO THIS ARTICLE.
  3. THE COMMISSIONER MAY REQUIRE THAT THE BOND  OR  OTHER  SECURITY  BE
FILED  BEFORE A DISTRIBUTOR IS REGISTERED, OR AT ANY TIME WHEN IN HIS OR
HER JUDGMENT A BOND IS NECESSARY FOR  THE  PROTECTION  OF  THE  REVENUES
UNDER THIS ARTICLE.
  4.  THE  COMMISSIONER  MAY  REQUIRE THAT THE AMOUNT OF A BOND OR OTHER
SECURITY BE INCREASED AT ANY TIME WHEN, IN  HIS  OR  HER  JUDGMENT,  THE
INCREASE  IS  NECESSARY AS A PROTECTION TO THE REVENUES UNDER THIS ARTI-
CLE.
  5. IF SECURITIES ARE DEPOSITED UNDER THIS  SECTION,  THESE  SECURITIES
SHALL  BE  KEPT  IN THE JOINT CUSTODY OF THE COMPTROLLER AND THE COMMIS-
SIONER AND MAY BE SOLD BY THE COMMISSIONER IF A SALE  BECOMES  NECESSARY
TO  RECOVER  ANY SUMS DUE FROM THE DISTRIBUTOR PURSUANT TO THIS ARTICLE,
BUT NO SALE SHALL BE HELD UNTIL AFTER THE DISTRIBUTOR SHALL HAVE HAD  AN
OPPORTUNITY  TO  LITIGATE THE VALIDITY OF ANY TAX. AFTER ANY SALE OF THE
SECURITIES, THE SURPLUS AMOUNT, IF ANY, ABOVE THE SUMS  DUE  UNDER  THIS
ARTICLE SHALL BE RETURNED TO THE DISTRIBUTOR.
  S  355. CANCELLATION OR SUSPENSION OF REGISTRATION OF DISTRIBUTORS. IF
THE  COMMISSIONER  REGISTERS  DISTRIBUTORS,  THE  REGISTRATION  OF   ANY
DISTRIBUTOR  MAY  BE  CANCELLED BY THE COMMISSIONER UPON A DISTRIBUTOR'S
FAILURE TO FILE A BOND OR OTHER SECURITY WHEN REQUIRED, AND  THE  REGIS-
TRATION  OF  A  DISTRIBUTOR  MAY BE CANCELLED BY THE COMMISSIONER UPON A
DISTRIBUTOR'S FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS ARTI-
CLE OR ANY REASONABLE REQUIREMENT, RULE OR REGULATION  ADOPTED  PURSUANT
TO THIS ARTICLE. ALL THE PROVISIONS OF SUBDIVISIONS FOUR THROUGH SIX AND
EIGHT  THROUGH  TEN  OF SECTION TWO HUNDRED EIGHTY-THREE OF THIS CHAPTER
RELATING TO REGISTRATION OF DISTRIBUTORS OF MOTOR FUEL SHALL BE APPLICA-
BLE TO THE REGISTRATION OF DISTRIBUTORS UNDER THIS ARTICLE WITH THE SAME

S. 4                                8                               A. 4

FORCE AND EFFECT AS IF THE  LANGUAGE  OF  THOSE  SUBDIVISIONS  HAD  BEEN
INCORPORATED  IN  FULL IN THIS SECTION AND HAD EXPRESSLY REFERRED TO THE
REGISTRATION OF DISTRIBUTORS UNDER THIS ARTICLE AND THE TAX  IMPOSED  BY
THIS  ARTICLE,  WITH  SUCH  MODIFICATION AS MAY BE NECESSARY IN ORDER TO
ADAPT THE LANGUAGE OF SUCH PROVISIONS TO THE PROVISIONS OF THIS ARTICLE,
PROVIDED, SPECIFICALLY, THAT THE TERM "MOTOR  FUEL"  SHALL  BE  READ  AS
"SYRUPS  OR  SIMPLE  SYRUPS,  BOTTLED  SOFT  DRINKS,  OR POWDERS OR BASE
PRODUCTS".
  S 356. PRESUMPTION OF TAXABILITY. 1. NO PERSON SHALL  PURCHASE  SYRUPS
OR  SIMPLE  SYRUPS,  BOTTLED SOFT DRINKS, OR POWDERS OR BASE PRODUCTS IN
THIS STATE, EXCLUDING A PURCHASE AT RETAIL, UNLESS THE TAXES IMPOSED  BY
THIS  ARTICLE  HAVE  BEEN  ASSUMED BY A DISTRIBUTOR IN ACCORDANCE WITH A
CERTIFICATION UNDER SUBDIVISION TWO OF THIS  SECTION  OR  PAID  BY  SUCH
DISTRIBUTOR. IN ADDITION TO ANY OTHER CIVIL AND CRIMINAL PENALTIES WHICH
MAY  APPLY,  ANY  PERSON  WHO PURCHASES SYRUPS OR SIMPLE SYRUPS, BOTTLED
SOFT DRINKS, OR POWDERS OR  BASE  PRODUCTS  WITHOUT  HAVING  RECEIVED  A
CERTIFICATION FROM THE SELLER IN ACCORDANCE WITH SUBDIVISION TWO OF THIS
SECTION  SHALL  BE JOINTLY AND SEVERALLY LIABLE TO PAY THE TAXES IMPOSED
BY THIS ARTICLE WITH RESPECT TO SUCH SYRUPS OR  SIMPLE  SYRUPS,  BOTTLED
SOFT DRINKS, OR POWDERS OR BASE PRODUCTS.
  2. (A) UPON EACH SALE OF SYRUPS OR SIMPLE SYRUPS, BOTTLED SOFT DRINKS,
OR  POWDERS  OR  BASE  PRODUCTS, OTHER THAN A SALE AT RETAIL, THE SELLER
MUST GIVE TO THE PURCHASER AND THE PURCHASER SHALL RECEIVE AT  THE  TIME
OF  DELIVERY  OF  SUCH  SALE  OF  SYRUPS  OR SIMPLE SYRUPS, BOTTLED SOFT
DRINKS, OR POWDERS OR BASE PRODUCTS,  A  CERTIFICATION  CONTAINING  SUCH
INFORMATION  AS  THE  COMMISSIONER  SHALL  REQUIRE WHICH SHALL INCLUDE A
STATEMENT TO THE EFFECT THAT THE SELLER ASSUMED THE PAYMENT OF  OR  PAID
THE TAXES IMPOSED BY THIS ARTICLE.
  (B)  IF  THE  CERTIFICATION  REQUIRED  BY  THIS  SUBDIVISION  HAS BEEN
FURNISHED TO THE PURCHASER AT DELIVERY AND ACCEPTED IN GOOD  FAITH,  THE
BURDEN OF PROVING THAT THE TAXES IMPOSED BY THIS ARTICLE WERE ASSUMED OR
PAID BY A DISTRIBUTOR SHALL BE SOLELY ON THE SELLER.
  (C)  WHERE  THE  CERTIFICATION  REQUIRED UNDER THIS SUBDIVISION IS NOT
FURNISHED BY THE SELLER AT DELIVERY OF  THE  SYRUPS  OR  SIMPLE  SYRUPS,
BOTTLED  SOFT  DRINKS, OR POWDERS OR BASE PRODUCTS, IT SHALL BE PRESUMED
THAT THE TAXES IMPOSED BY THIS ARTICLE HAVE NOT BEEN ASSUMED OR PAID  BY
A  DISTRIBUTOR  AND  THAT  THE  PURCHASER  IN  SUCH  CASE IS JOINTLY AND
SEVERALLY LIABLE FOR SUCH TAXES.
  (D) IF, DUE TO THE CIRCUMSTANCES OF DELIVERY, IT IS  NOT  POSSIBLE  TO
ISSUE  A  CERTIFICATION  REQUIRED  UNDER THIS SUBDIVISION AT THE TIME OF
DELIVERY OF SYRUPS OR SIMPLE SYRUPS, BOTTLED SOFT DRINKS, OR POWDERS  OR
BASE  PRODUCTS,  THE  COMMISSIONER  MAY  AUTHORIZE  THE  DELIVERY OF THE
CERTIFICATION REQUIRED UNDER THIS SUBDIVISION AT A TIME AFTER THE DELIV-
ERY OF THE SYRUPS OR SIMPLE SYRUPS, BOTTLED SOFT DRINKS, OR  POWDERS  OR
BASE  PRODUCTS  WHICH  ARE  THE  SUBJECT  OF  THE SALE UNDER THE LIMITED
CIRCUMSTANCES HE OR SHE SHALL PRESCRIBE AND UPON SUCH TERMS  AND  CONDI-
TIONS  HE  OR SHE SHALL DEEM NECESSARY TO ENSURE COLLECTION OF THE TAXES
IMPOSED BY THIS ARTICLE.
  S 357. RECORDS TO BE KEPT BY DISTRIBUTORS AND OTHERS; EXAMINATION.  1.
EVERY  DISTRIBUTOR WHO IMPORTS OR CAUSES TO BE IMPORTED INTO THIS STATE,
OR WHO PRODUCES, REFINES,  BOTTLES,  MANUFACTURES,  COMPOUNDS  OR  MIXES
WITHIN  THIS  STATE,  SHALL  KEEP  A COMPLETE AND ACCURATE RECORD OF ALL
PURCHASES AND SALES, USES OR OTHER  DISPOSITIONS  OF  SYRUPS  OR  SIMPLE
SYRUPS, BOTTLED SOFT DRINKS, OR POWDERS OR BASE PRODUCTS, AND A COMPLETE
AND ACCURATE RECORD OF THE NUMBER OF GALLONS OF SYRUPS OR SIMPLE SYRUPS,
BOTTLED  SOFT  DRINKS,  OR  POWDERS OR BASE PRODUCTS, PRODUCED, REFINED,

S. 4                                9                               A. 4

BOTTLED, MANUFACTURED, COMPOUNDED AND MIXED. SUCH RECORDS  SHALL  BE  IN
THE  FORM  AND  CONTAIN  WHATEVER OTHER INFORMATION THE COMMISSIONER MAY
PRESCRIBE. SUCH RECORDS, UNLESS  REQUIRED  BY  THE  COMMISSIONER  TO  BE
PRESERVED  FOR A LONGER PERIOD, SHALL BE PRESERVED FOR A PERIOD OF THREE
YEARS AND SHALL BE OFFERED FOR INSPECTION AT ANY TIME UPON ORAL OR WRIT-
TEN DEMAND BY THE COMMISSIONER OR  THE  COMMISSIONER'S  DULY  AUTHORIZED
AGENTS,  AND  EVERY  SUCH  DISTRIBUTOR  SHALL  MAKE  SUCH REPORTS TO THE
COMMISSIONER AS MAY BE REQUIRED  BY  THE  COMMISSIONER.  TO  VERIFY  THE
AMOUNT OF TAX DUE UNDER THIS ARTICLE, EACH PERSON IS HEREBY DIRECTED AND
REQUIRED  TO GIVE TO THE COMMISSIONER OR THE COMMISSIONER'S DULY AUTHOR-
IZED REPRESENTATIVES THE MEANS, FACILITIES,  AND  OPPORTUNITY  FOR  SUCH
EXAMINATIONS AS ARE HEREIN PROVIDED FOR AND REQUIRED.
  2.  EVERY  PERSON  WHO SHALL POSSESS OR TRANSPORT ANY SYRUPS OR SIMPLE
SYRUPS, BOTTLED SOFT DRINKS, OR POWDERS OR BASE PRODUCTS UPON THE PUBLIC
HIGHWAYS, ROADS OR STREETS OF THE STATE, SHALL BE REQUIRED  TO  HAVE  IN
HIS  OR  HER  ACTUAL  POSSESSION  INVOICES  OR DELIVERY TICKETS FOR SUCH
SYRUPS OR SIMPLE  SYRUPS,  BOTTLED  SOFT  DRINKS,  OR  POWDERS  OR  BASE
PRODUCTS.  SUCH  INVOICES  OR  DELIVERY  TICKETS SHALL SHOW THE NAME AND
ADDRESS OF THE  CONSIGNOR  OR  SELLER,  THE  NAME  AND  ADDRESS  OF  THE
CONSIGNEE  OR PURCHASER, THE QUANTITY AND BRANDS OF THE SYRUPS OR SIMPLE
SYRUPS, BOTTLED SOFT DRINKS, OR POWDERS OR  BASE  PRODUCTS  TRANSPORTED,
AND  THE  NAME  AND  ADDRESS  OF  THE PERSON WHO HAS OR SHALL ASSUME THE
PAYMENT OF THE TAX. THE ABSENCE OF SUCH  INVOICES  OR  DELIVERY  TICKETS
SHALL  BE  PRIMA  FACIE  EVIDENCE  THAT  SUCH PERSON IS A DISTRIBUTOR OF
SYRUPS OR SIMPLE  SYRUPS,  BOTTLED  SOFT  DRINKS,  OR  POWDERS  OR  BASE
PRODUCTS.  NOTHING  CONTAINED  IN  THIS  SECTION  SHALL  BE CONSTRUED TO
REQUIRE THE KEEPING OF A RECORD OF PURCHASE OR DISPOSITION OF SYRUPS  OR
SIMPLE  SYRUPS,  BOTTLED  SOFT  DRINKS, OR POWDERS OR BASE PRODUCTS BY A
CONSUMER THEREOF, EXCEPT BY A PERSON WHO USES THE  SAME  FOR  COMMERCIAL
PURPOSES,  OR  OF  THE  SALE  OF  SYRUPS  OR SIMPLE SYRUPS, BOTTLED SOFT
DRINKS, OR POWDERS OR BASE PRODUCTS AT RETAIL.
  3. THE COMMISSIONER MAY, BY REGULATION,  PROVIDE  FOR  THE  FILING  OF
MONTHLY INFORMATION RETURNS BY EVERY PERSON REQUIRED TO MAINTAIN RECORDS
AS PRESCRIBED IN SUBDIVISION ONE OF THIS SECTION. THESE RETURNS SHALL IN
ALL  MATERIAL  RESPECTS REFLECT THE INFORMATION REQUIRED TO BE CONTAINED
IN THOSE RECORDS.  THESE RETURNS SHALL BE IN THE FORM  AND  CONTAIN  ALL
OTHER INFORMATION THE COMMISSIONER MAY REQUIRE.
  S  358.  PAYMENT  OF  TAX;  RETURNS. 1. EVERY DISTRIBUTOR SHALL, ON OR
BEFORE THE TWENTIETH DAY OF EACH MONTH, FILE  WITH  THE  COMMISSIONER  A
RETURN,  ON  FORMS  TO  BE PRESCRIBED AND FURNISHED BY THE COMMISSIONER,
STATING THE NUMBER OF GALLONS OF SYRUPS OR SIMPLE SYRUPS,  BOTTLED  SOFT
DRINKS,  OR  POWDERS OR BASE PRODUCTS IMPORTED OR CAUSED TO BE IMPORTED,
PRODUCED, REFINED, BOTTLED, MANUFACTURED, COMPOUNDED  OR  MIXED  BY  THE
DISTRIBUTOR  IN  THE  STATE  DURING THE PRECEDING CALENDAR MONTH AND ANY
OTHER INFORMATION THAT THE  COMMISSIONER  MAY  REQUIRE  FOR  THE  PROPER
ENFORCEMENT OF THE PROVISIONS OF THIS ARTICLE.
  2. THE COMMISSIONER MAY ALSO, IF HE OR SHE DEEMS IT NECESSARY IN ORDER
TO  INSURE  THE  PAYMENT  OF  THE TAXES IMPOSED BY THIS ARTICLE, REQUIRE
RETURNS TO BE MADE AT SUCH TIMES AND COVERING SUCH PERIODS AS HE OR  SHE
MAY DEEM NECESSARY, AND, BY REGULATION, MAY PERMIT THE FILING OF RETURNS
BY  DISTRIBUTORS  ON  A  QUARTERLY, SEMI-ANNUAL, OR ANNUAL BASIS, OR MAY
WAIVE THE FILING OF RETURNS BY A DISTRIBUTOR FOR SUCH TIME AND UPON SUCH
TERMS AS HE OR SHE MAY DEEM PROPER IF SATISFIED THAT NO TAX  IMPOSED  BY
THIS  ARTICLE  IS OR SHALL BE PAYABLE BY THE DISTRIBUTOR DURING THE TIME
FOR WHICH RETURNS ARE WAIVED. SUCH RETURNS SHALL  CONTAIN  SUCH  FURTHER
INFORMATION AS THE COMMISSIONER SHALL REQUIRE.

S. 4                               10                               A. 4

  3.  THE  COMMISSIONER  MAY REQUIRE EACH DISTRIBUTOR UNDER THIS ARTICLE
TO:
  (A) ELECTRONICALLY PAY OVER TO THE COMMISSIONER ALL TAXES COLLECTED;
  (B) ELECTRONICALLY FILE A RETURN WITH THE COMMISSIONER; AND
  (C)  ELECTRONICALLY  FILE A RETURN INDICATING THAT NO TAX IS DUE IF NO
TAX IS DUE.
  4. THE FACT THAT A DISTRIBUTOR'S NAME IS  SIGNED  TO  A  FILED  RETURN
SHALL BE PRIMA FACIE EVIDENCE FOR ALL PURPOSES THAT THE RETURN WAS ACTU-
ALLY  SIGNED BY THAT DISTRIBUTOR. EACH SUCH DISTRIBUTOR SHALL PAY TO THE
COMMISSIONER WITH THE FILING OF THE RETURN, THE TAXES  IMPOSED  BY  THIS
ARTICLE DURING THE PERIOD COVERED BY THE RETURN.
  5.  A  DISTRIBUTOR WHO IS ENTITLED TO A REFUND UNDER THE PROVISIONS OF
SECTION THREE HUNDRED SIXTY-TWO OF THIS ARTICLE, IN LIEU OF SUCH REFUND,
MAY TAKE CREDIT THEREFOR ON A RETURN FILED  PURSUANT  TO  THIS  SECTION,
UNLESS THE COMMISSIONER WITHDRAWS THAT PRIVILEGE.
  S  359.  DETERMINATION OF TAX. 1. EXCEPT AS OTHERWISE PROVIDED IN THIS
SECTION, IF A DISTRIBUTOR FILES A RETURN UNDER THIS  ARTICLE,  BUT  THAT
RETURN  IS  INCORRECT  OR INSUFFICIENT, THE COMMISSIONER SHALL DETERMINE
THE AMOUNT OF TAX DUE AT ANY TIME WITHIN THREE YEARS  AFTER  THE  RETURN
WAS  FILED  (WHETHER  OR  NOT  SUCH RETURN WAS FILED ON OR AFTER THE DUE
DATE), AND GIVE WRITTEN NOTICE OF THAT DETERMINATION TO THE DISTRIBUTOR.
FOR THE PURPOSES OF THIS SECTION THE TERM DISTRIBUTOR SHALL ALSO INCLUDE
ANY OTHER PERSON LIABLE FOR THE TAXES IMPOSED BY THIS ARTICLE.
  2. THE COMMISSIONER SHALL DETERMINE THE AMOUNT OF TAX DUE AT ANY  TIME
IF A DISTRIBUTOR (A) HAS NOT REGISTERED AS REQUIRED BY THIS ARTICLE, (B)
FAILS  TO  FILE  A RETURN, OR (C) WILLFULLY DELIVERS OR DISCLOSES TO THE
COMMISSIONER ANY LIST, RETURN,  REPORT,  ACCOUNT,  STATEMENT,  OR  OTHER
DOCUMENT  KNOWN BY THE DISTRIBUTOR TO BE FRAUDULENT OR TO BE FALSE AS TO
ANY MATERIAL MATTER,  OR  OMITS  ANY  MATERIAL  MATTER  WITH  INTENT  TO
DECEIVE.
  3.  NOTWITHSTANDING  ANY  OF THE FOREGOING PROVISIONS OF THIS SECTION,
WHERE, BEFORE THE EXPIRATION OF THE TIME PRESCRIBED IN THIS SECTION  FOR
THE DETERMINATION OF TAX, BOTH THE COMMISSIONER AND THE DISTRIBUTOR HAVE
CONSENTED  IN  WRITING TO ITS DETERMINATION AFTER SUCH TIME, THE TAX MAY
BE DETERMINED AT ANY TIME PRIOR TO THE EXPIRATION OF THE  PERIOD  AGREED
UPON. THE PERIOD SO AGREED UPON MAY BE EXTENDED BY SUBSEQUENT AGREEMENTS
IN  WRITING  MADE  BEFORE THE EXPIRATION OF THE PERIOD PREVIOUSLY AGREED
UPON.
  4. ANY DETERMINATION MADE PURSUANT TO THIS SECTION  WILL  FINALLY  AND
IRREVOCABLY  FIX  THE  TAX  UNLESS  THE  DISTRIBUTOR  AGAINST WHOM IT IS
ASSESSED, WITHIN NINETY DAYS AFTER THE GIVING OF NOTICE OF SUCH DETERMI-
NATION, PETITIONS THE DIVISION OF TAX APPEALS FOR A HEARING,  OR  UNLESS
THE  COMMISSIONER,  ON  HIS  OR  HER OWN MOTION, RE-DETERMINES THE SAME.
AFTER SUCH HEARING, THE DIVISION OF TAX APPEALS SHALL GIVE NOTICE OF THE
DETERMINATION OF THE ADMINISTRATIVE LAW JUDGE TO THE DISTRIBUTOR  LIABLE
FOR  THE TAX AND TO THE COMMISSIONER. THAT DETERMINATION MAY BE REVIEWED
BY THE TAX APPEALS TRIBUNAL AS PROVIDED IN ARTICLE FORTY OF  THIS  CHAP-
TER.  THE  DECISION  OF  THE  TAX  APPEALS  TRIBUNAL  MAY BE REVIEWED AS
PROVIDED IN SECTION TWO  THOUSAND  SIXTEEN  OF  THIS  CHAPTER,  BUT  THE
PROCEEDING  MAY  NOT  BE  COMMENCED  UNLESS  THE AMOUNT OF TAX STATED OR
REFERRED TO IN THE DECISION, WITH PENALTIES  AND  INTEREST  THEREON,  IF
ANY,  AND  THE  AMOUNT OF ANY OTHER PENALTY STATED OR REFERRED TO IN THE
DECISION, IS FIRST DEPOSITED WITH THE COMMISSIONER.
  5. THE REMEDY PROVIDED BY THIS SECTION FOR REVIEW OF A DECISION OF THE
TAX APPEALS TRIBUNAL IS THE EXCLUSIVE REMEDY AVAILABLE TO  ANY  TAXPAYER

S. 4                               11                               A. 4

FOR  JUDICIAL  DETERMINATION  OF THE LIABILITY OF THE TAXPAYER FOR TAXES
UNDER THIS ARTICLE.
  S 360. PROCEEDINGS TO RECOVER TAX. WHENEVER ANY DISTRIBUTOR SHALL FAIL
TO  PAY,  WITHIN  THE  TIME  LIMITED  HEREIN, ANY TAX WHICH HE OR SHE IS
REQUIRED TO PAY UNDER THE  PROVISIONS  OF  THIS  ARTICLE,  THE  ATTORNEY
GENERAL  SHALL,  UPON  THE REQUEST OF THE DEPARTMENT, ENFORCE PAYMENT OF
SUCH TAX BY CIVIL ACTION IN THE SUPREME COURT, IN THE NAME OF THE PEOPLE
OF THE STATE, AGAINST SUCH DISTRIBUTOR FOR THE AMOUNT OF SUCH TAX,  WITH
INTEREST.  THE  PROCEEDS  OF  THE JUDGMENT, IF ANY, SHALL BE PAID TO THE
DEPARTMENT.
  WHENEVER ANY DISTRIBUTOR SHALL FAIL TO PAY, WITHIN  THE  TIME  LIMITED
HEREIN,  ANY TAX WHICH HE OR SHE IS REQUIRED TO PAY UNDER THE PROVISIONS
OF THIS ARTICLE, THE COMMISSIONER MAY ISSUE A WARRANT UNDER HIS  OR  HER
OFFICIAL  SEAL,  DIRECTED  TO  THE  SHERIFF  OF ANY COUNTY OF THE STATE,
COMMANDING HIM OR HER TO LEVY UPON AND SELL THE REAL AND PERSONAL  PROP-
ERTY  OF  SUCH  DISTRIBUTOR,  FOUND  WITHIN  HIS  OR HER COUNTY, FOR THE
PAYMENT OF THE AMOUNT THEREOF, WITH THE ADDED  PENALTIES,  INTEREST  AND
THE  COST  OF  EXECUTING  THE WARRANT, AND TO RETURN SUCH WARRANT TO THE
DEPARTMENT AND TO PAY TO IT THE MONEY COLLECTED BY VIRTUE THEREOF WITHIN
SIXTY DAYS AFTER THE RECEIPT OF SUCH WARRANT. THE SHERIFF SHALL,  WITHIN
FIVE  DAYS  AFTER THE RECEIPT OF THE WARRANT, FILE WITH THE CLERK OF HIS
OR HER COUNTY A COPY THEREOF, AND THEREUPON THE CLERK SHALL ENTER IN THE
JUDGMENT DOCKET THE NAME OF THE DISTRIBUTOR MENTIONED  IN  THE  WARRANT,
AND  THE AMOUNT OF THE TAX, PENALTIES AND INTEREST FOR WHICH THE WARRANT
IS ISSUED AND THE DATE WHEN SUCH COPY IS FILED, AND THEREUPON THE AMOUNT
OF SUCH WARRANT SO DOCKETED SHALL BECOME A LIEN UPON THE TITLE  TO,  AND
INTEREST  IN, REAL AND PERSONAL PROPERTY OF THE DISTRIBUTOR AGAINST WHOM
THE WARRANT IS ISSUED. SUCH LIEN SHALL NOT APPLY  TO  PERSONAL  PROPERTY
UNLESS  SUCH WARRANT IS ALSO FILED IN THE DEPARTMENT OF STATE.  THE SAID
SHERIFF SHALL THEREUPON PROCEED UPON THE WARRANT IN ALL  RESPECTS,  WITH
LIKE  EFFECT,  AND  IN  THE  SAME MANNER PRESCRIBED BY LAW IN RESPECT TO
EXECUTIONS ISSUED AGAINST PROPERTY UPON JUDGMENTS OF A COURT OF  RECORD,
AND  SHALL  BE  ENTITLED  TO  THE  SAME  FEES FOR HIS OR HER SERVICES IN
EXECUTING THE WARRANT, TO BE  COLLECTED  IN  THE  SAME  MANNER.  IN  THE
DISCRETION OF THE COMMISSIONER A WARRANT OF LIKE TERMS, FORCE AND EFFECT
MAY BE ISSUED AND DIRECTED TO ANY OFFICER OR EMPLOYEE OF THE DEPARTMENT,
AND IN THE EXECUTION THEREOF SUCH OFFICER OR EMPLOYEE SHALL HAVE ALL THE
POWERS  CONFERRED  BY LAW UPON SHERIFFS, BUT SHALL BE ENTITLED TO NO FEE
OR COMPENSATION IN EXCESS OF ACTUAL EXPENSES PAID IN THE PERFORMANCE  OF
SUCH  DUTY.  UPON  SUCH  FILING OF A COPY OF A WARRANT, THE COMMISSIONER
SHALL HAVE THE SAME REMEDIES TO ENFORCE THE CLAIM FOR  TAXES,  PENALTIES
AND  INTEREST  AGAINST THE DISTRIBUTOR AS IF THE PEOPLE OF THE STATE HAD
RECOVERED JUDGMENT AGAINST SUCH DISTRIBUTOR FOR THE AMOUNT OF THE TAX.
  S 361. PENALTIES AND INTEREST. 1. (A)(I) A DISTRIBUTOR OR OTHER PERSON
WHO OR WHICH FAILS TO FILE A RETURN OR TO PAY ANY TAX  WITHIN  THE  TIME
REQUIRED  BY  THIS  ARTICLE  (DETERMINED WITH REGARD TO ANY EXTENSION OF
TIME FOR FILING OR PAYING) SHALL BE SUBJECT TO  A  PENALTY  OF  TEN  PER
CENTUM  OF  THE  AMOUNT  OF TAX DETERMINED TO BE DUE AS PROVIDED IN THIS
ARTICLE PLUS ONE PER CENTUM OF SUCH AMOUNT FOR EACH  MONTH  OR  FRACTION
THEREOF  DURING  WHICH THE FAILURE CONTINUES AFTER THE EXPIRATION OF THE
FIRST MONTH DURING WHICH THAT RETURN WAS REQUIRED TO BE  FILED  OR  SUCH
TAX BECAME DUE, NOT EXCEEDING THIRTY PER CENTUM IN THE AGGREGATE.
  (II)  IN  THE  CASE OF A FAILURE TO FILE A RETURN WITHIN SIXTY DAYS OF
THE DATE PRESCRIBED FOR FILING A RETURN BY THIS ARTICLE (DETERMINED WITH
REGARD TO ANY EXTENSION OF TIME FOR FILING), THE PENALTY IMPOSED BY THIS
PARAGRAPH SHALL NOT BE LESS THAN THE LESSER OF ONE  HUNDRED  DOLLARS  OR

S. 4                               12                               A. 4

ONE HUNDRED PER CENTUM OF THE AMOUNT REQUIRED TO BE SHOWN AS TAX ON THAT
RETURN.  FOR  THE  PURPOSE  OF THE PRECEDING SENTENCE, THE AMOUNT OF TAX
REQUIRED TO BE SHOWN ON THE RETURN SHALL BE REDUCED BY THE AMOUNT OF ANY
PART  OF  THE  TAX  THAT  IS  PAID  ON OR BEFORE THE DATE PRESCRIBED FOR
PAYMENT OF THE TAX.
  (B) IF ANY AMOUNT OF TAX IS NOT  PAID  ON  OR  BEFORE  THE  LAST  DATE
PRESCRIBED  IN  THIS ARTICLE FOR PAYMENT, INTEREST ON SUCH AMOUNT AT THE
UNDERPAYMENT RATE SET BY THE COMMISSIONER PURSUANT TO SUBDIVISION  TWEN-
TY-SIXTH  OF  SECTION  ONE  HUNDRED SEVENTY-ONE OF THIS CHAPTER SHALL BE
PAID FOR THE PERIOD FROM THAT LAST DATE TO THE DATE PAID, WHETHER OR NOT
ANY EXTENSION OF TIME FOR PAYMENT WAS  GRANTED.    INTEREST  UNDER  THIS
PARAGRAPH  SHALL  NOT  BE  OWED  IF  THE AMOUNT THEREOF IS LESS THAN ONE
DOLLAR.
  (C) IF THE COMMISSIONER  DETERMINES  THAT  SUCH  FAILURE  WAS  DUE  TO
REASONABLE  CAUSE  (AS DETERMINED UNDER REGULATIONS OF THE COMMISSIONER)
AND NOT DUE TO WILLFUL NEGLECT, HE OR SHE SHALL ABATE  ALL  OR  PART  OF
SUCH PENALTY.
  (D)  IF  THE  FAILURE  TO  PAY  ANY TAX WITHIN THE TIME REQUIRED BY OR
PURSUANT TO THIS ARTICLE IS DUE TO FRAUD, IN LIEU OF THE  PENALTIES  AND
INTEREST  PROVIDED  FOR  IN  PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION,
THERE SHALL BE ADDED TO THE TAX (I) A PENALTY OF TWO TIMES THE AMOUNT OF
TAX DUE, PLUS (II) INTEREST ON SUCH UNPAID TAX AT THE UNDERPAYMENT  RATE
SET  BY THE COMMISSIONER PURSUANT TO SUBDIVISION TWENTY-SIXTH OF SECTION
ONE HUNDRED SEVENTY-ONE OF THIS CHAPTER FOR THE PERIOD BEGINNING ON  THE
LAST  DAY PRESCRIBED BY THIS ARTICLE FOR THE PAYMENT OF SUCH TAX (DETER-
MINED WITHOUT REGARD TO ANY EXTENSION OF TIME FOR PAYING) AND ENDING  ON
THE DAY ON WHICH SUCH TAX IS PAID.
  (E)  THE  PENALTIES AND INTEREST PROVIDED FOR IN THIS SECTION SHALL BE
DETERMINED, ASSESSED, COLLECTED AND PAID IN THE SAME MANNER AS THE TAXES
IMPOSED BY THIS ARTICLE AND SHALL BE DISPOSED OF AS HEREINAFTER PROVIDED
WITH RESPECT TO MONIES DERIVED FROM THE TAX. UNPAID PENALTIES AND INTER-
EST UNDER THIS SUBDIVISION MAY BE RECOVERED BY THE ATTORNEY  GENERAL  IN
AN  ACTION BROUGHT PURSUANT TO SECTION THREE HUNDRED SIXTY OF THIS ARTI-
CLE. INTEREST UNDER THIS SUBDIVISION SHALL BE COMPOUNDED DAILY.
  2. FOR PURPOSES OF THIS CHAPTER, THE FAILURE TO DO ANY ACT REQUIRED BY
THIS ARTICLE SHALL BE DEEMED AN ACT COMMITTED IN PART AT THE  OFFICE  OF
THE  COMMISSIONER  IN  ALBANY. FOR PURPOSES OF THIS CHAPTER, THE CERTIF-
ICATE OF THE COMMISSIONER TO THE EFFECT THAT A TAX HAS  NOT  BEEN  PAID,
THAT  A  RETURN  HAS  NOT  BEEN  FILED, OR THAT INFORMATION HAS NOT BEEN
SUPPLIED, AS REQUIRED BY OR UNDER THE PROVISIONS  OF  THIS  ARTICLE,  OR
THAT  A  CLAIM  FOR REFUND HAS BEEN FILED, SHALL BE PRIMA FACIE EVIDENCE
THAT THE TAX HAS NOT BEEN PAID, THE  RETURN  HAS  NOT  BEEN  FILED,  THE
INFORMATION HAS NOT BEEN SUPPLIED, OR THE CLAIM HAS NOT BEEN FILED.
  3. FOR CRIMINAL PENALTIES, SEE ARTICLE THIRTY-SEVEN OF THIS CHAPTER.
  S 362. REFUNDS. 1. IN THE MANNER PROVIDED IN THIS SECTION, THE COMMIS-
SIONER SHALL REFUND OR CREDIT ANY TAX, PENALTY, OR INTEREST ERRONEOUSLY,
ILLEGALLY  OR  UNCONSTITUTIONALLY COLLECTED OR PAID IF AN APPLICATION IS
FILED WITH THE COMMISSIONER WITHIN THREE YEARS AFTER THE DATE  WHEN  THE
TAX,  PENALTY,  OR INTEREST WAS PAID UNDER THIS ARTICLE. THE APPLICATION
SHALL BE IN A FORM PRESCRIBED BY THE COMMISSIONER.
  2. WITH RESPECT TO SYRUPS OR SIMPLE SYRUPS, BOTTLED  SOFT  DRINKS,  OR
POWDERS  OR BASE PRODUCTS IMPORTED, MANUFACTURED OR SOLD OR PURCHASED IN
THIS STATE, A DISTRIBUTOR SHALL BE ALLOWED A REFUND OR CREDIT OF THE TAX
REQUIRED TO BE PAID PURSUANT TO THIS ARTICLE UPON SUCH SYRUPS OR  SIMPLE
SYRUPS,  BOTTLED  SOFT DRINKS, OR POWDERS OR BASE PRODUCTS IN THE AMOUNT
OF SUCH TAX PAID IF SUCH SYRUPS OR SIMPLE SYRUPS, BOTTLED  SOFT  DRINKS,

S. 4                               13                               A. 4

OR  POWDERS  OR  BASE PRODUCTS WERE EXPORTED FROM THIS STATE FOR SALE OR
USE OUTSIDE THIS STATE. THE DISTRIBUTOR MUST  FILE  AN  APPLICATION  FOR
SUCH  REFUND  OR  CREDIT  AND COMPLY WITH ALL REQUIREMENTS AND RULES AND
REGULATIONS  OF  THE  COMMISSIONER,  INCLUDING  ANY  AND ALL EVIDENTIARY
REQUIREMENTS. UPON RECEIPT OF A CLAIM FOR REFUND  IN  PROCESSIBLE  FORM,
INTEREST  SHALL  BE  ALLOWED AND PAID AT THE OVERPAYMENT RATE SET BY THE
COMMISSIONER PURSUANT TO SUBDIVISION TWENTY-SIXTH OF SECTION ONE HUNDRED
SEVENTY-ONE OF THIS CHAPTER FROM THE DUE DATE OF THE REFUND CLAIM TO THE
DATE IMMEDIATELY PRECEDING THE DATE OF THE REFUND CHECK EXCEPT  NO  SUCH
INTEREST  SHALL  BE ALLOWED OR PAID IF THE REFUND CHECK IS MAILED WITHIN
THIRTY DAYS OF SUCH RECEIPT AND EXCEPT NO INTEREST SHALL BE  ALLOWED  OR
PAID  IF THE AMOUNT THEREOF WOULD BE LESS THAN ONE DOLLAR.  FOR PURPOSES
OF THIS SUBDIVISION, A CLAIM SHALL NOT BE TREATED AS FILED UNTIL  IT  IS
FILED IN PROCESSIBLE FORM. A CLAIM IS IN A PROCESSIBLE FORM IF THE CLAIM
IS  FILED ON A PERMITTED FORM, AND CONTAINS THE TAXPAYER'S NAME, ADDRESS
AND IDENTIFYING NUMBER  AND  THE  REQUIRED  SIGNATURES,  AND  SUFFICIENT
REQUIRED  INFORMATION  (WHETHER ON THE CLAIM OR ON REQUIRED ATTACHMENTS)
TO PERMIT THE MATHEMATICAL VERIFICATION OF REFUND SHOWN ON THE CLAIM.
  3. IF AN APPLICATION FOR REFUND OR CREDIT IS FILED  WITH  THE  COMMIS-
SIONER  AS PROVIDED IN SUBDIVISION ONE OF THIS SECTION, THE COMMISSIONER
SHALL GRANT OR DENY THAT APPLICATION IN WHOLE  OR  IN  PART  WITHIN  SIX
MONTHS  OF RECEIPT OF THE APPLICATION IN A FORM THAT IS ABLE TO BE PROC-
ESSED AND SHALL NOTIFY THE APPLICANT BY MAIL ACCORDINGLY. THAT  DETERMI-
NATION SHALL BE FINAL AND IRREVOCABLE UNLESS THE APPLICANT, WITHIN NINE-
TY DAYS AFTER THE MAILING OF NOTICE OF SUCH DETERMINATION, PETITIONS THE
DIVISION  OF TAX APPEALS FOR A HEARING.  AFTER THE HEARING, THE DIVISION
OF TAX APPEALS SHALL MAIL NOTICE OF THE DETERMINATION OF THE ADMINISTRA-
TIVE LAW JUDGE TO THE APPLICANT AND TO THE COMMISSIONER.  THAT  DETERMI-
NATION  MAY BE REVIEWED BY THE TAX APPEALS TRIBUNAL AS PROVIDED IN ARTI-
CLE FORTY OF THIS CHAPTER. THE DECISION OF THE TAX APPEALS TRIBUNAL  MAY
BE REVIEWED AS PROVIDED IN SECTION TWO THOUSAND SIXTEEN OF THIS CHAPTER.
  4.  A  SUBSEQUENT PURCHASER SHALL BE ELIGIBLE FOR REIMBURSEMENT OF TAX
IMPOSED UNDER THIS SECTION WITH RESPECT TO ANY SYRUPS OR SIMPLE  SYRUPS,
BOTTLED  SOFT  DRINKS,  OR  POWDERS  OR  BASE PRODUCTS PURCHASED BY SUCH
SUBSEQUENT PURCHASER TO WHICH AN EXEMPTION UNDER SUBDIVISIONS  ONE,  TWO
OR  THREE  OF SECTION THREE HUNDRED FIFTY-TWO OF THIS ARTICLE WOULD HAVE
APPLIED. THIS REIMBURSEMENT MAY  BE  CLAIMED  ONLY  WHERE  (A)  THE  TAX
IMPOSED PURSUANT TO THIS ARTICLE HAS BEEN PAID WITH RESPECT TO SYRUPS OR
SIMPLE SYRUPS, BOTTLED SOFT DRINKS, OR POWDERS OR BASE PRODUCTS, AND THE
ENTIRE  AMOUNT  OF SUCH TAX HAS BEEN ABSORBED BY SUCH PURCHASER, AND (B)
SUCH PURCHASER POSSESSES DOCUMENTARY PROOF SATISFACTORY TO  THE  COMMIS-
SIONER  EVIDENCING  THE ABSORPTION BY IT OF THE ENTIRE AMOUNT OF THE TAX
IMPOSED PURSUANT TO THIS ARTICLE. PROVIDED, HOWEVER,  THAT  THE  COMMIS-
SIONER   SHALL  REQUIRE  SUCH  DOCUMENTARY  PROOF  TO  QUALIFY  FOR  ANY
REIMBURSEMENT OF TAX PROVIDED BY THIS SECTION AS THE COMMISSIONER  DEEMS
APPROPRIATE.
  S  363.  MAILING  RULES; HOLIDAYS. 1. IF ANY RETURN, CLAIM, STATEMENT,
NOTICE, APPLICATION, OR OTHER DOCUMENT REQUIRED  TO  BE  FILED,  OR  ANY
PAYMENT  REQUIRED TO BE MADE, WITHIN A PRESCRIBED PERIOD OR ON OR BEFORE
A PRESCRIBED DATE UNDER AUTHORITY OF ANY PROVISION OF THIS  ARTICLE  IS,
AFTER  SUCH  PERIOD OR SUCH DATE, DELIVERED BY UNITED STATES MAIL TO THE
COMMISSIONER, DEPARTMENT, BUREAU, OFFICE, OFFICER OR PERSON  WITH  WHICH
OR  WITH  WHOM  SUCH DOCUMENT IS REQUIRED TO BE FILED, OR TO WHICH OR TO
WHOM SUCH PAYMENT IS REQUIRED TO BE MADE, THE DATE OF THE UNITED  STATES
POSTMARK  STAMPED  ON  THE  ENVELOPE  SHALL  BE DEEMED TO BE THE DATE OF
DELIVERY. THIS SUBDIVISION SHALL APPLY ONLY IF THE POSTMARK  DATE  FALLS

S. 4                               14                               A. 4

WITHIN THE PRESCRIBED PERIOD OR ON OR BEFORE THE PRESCRIBED DATE FOR THE
FILING OF SUCH DOCUMENT, OR FOR MAKING THE PAYMENT, INCLUDING ANY EXTEN-
SION  GRANTED  FOR  SUCH FILING OR PAYMENT, AND ONLY IF SUCH DOCUMENT OR
PAYMENT  WAS  DEPOSITED IN THE MAIL, POSTAGE PREPAID, PROPERLY ADDRESSED
TO THE COMMISSIONER, DEPARTMENT, BUREAU, OFFICE, OFFICER OR PERSON  WITH
WHICH  OR  WITH WHOM THE DOCUMENT IS REQUIRED TO BE FILED OR TO WHICH OR
TO WHOM SUCH PAYMENT IS REQUIRED TO BE MADE.  IF ANY DOCUMENT IS SENT BY
UNITED STATES REGISTERED MAIL, SUCH REGISTRATION SHALL  BE  PRIMA  FACIE
EVIDENCE  THAT  SUCH DOCUMENT WAS DELIVERED TO THE COMMISSIONER, DEPART-
MENT, BUREAU, OFFICE, OFFICER OR PERSON TO WHICH OR TO  WHOM  ADDRESSED.
TO  THE  EXTENT  THAT  THE  COMMISSIONER  SHALL PRESCRIBE BY REGULATION,
CERTIFIED MAIL MAY BE  USED  IN  LIEU  OF  REGISTERED  MAIL  UNDER  THIS
SECTION.  THIS SUBDIVISION SHALL APPLY IN THE CASE OF POSTMARKS NOT MADE
BY THE UNITED STATES POST OFFICE ONLY IF AND TO THE EXTENT  PROVIDED  BY
REGULATIONS OF THE COMMISSIONER.
  2.  ANY  NOTICE AUTHORIZED OR REQUIRED UNDER THIS ARTICLE MAY BE GIVEN
BY MAILING IT TO THE PERSON FOR WHOM  IT  IS  INTENDED,  IN  A  POSTPAID
ENVELOPE  ADDRESSED TO SUCH PERSON AT THE ADDRESS GIVEN BY HIM OR HER IN
HIS OR HER APPLICATION FOR REGISTRATION AS A DISTRIBUTOR OR IN THE  LAST
RETURN  FILED  BY HIM OR HER UNDER THIS ARTICLE OR, IF NO APPLICATION OR
RETURN HAS BEEN FILED, THEN TO SUCH ADDRESS AS MAY  BE  OBTAINABLE.  THE
MAILING  OF  SUCH NOTICE SHALL BE PRESUMPTIVE EVIDENCE OF ITS RECEIPT BY
THE PERSON TO WHOM ADDRESSED.  ANY PERIOD OF TIME, WHICH  IS  DETERMINED
ACCORDING  TO  THE  PROVISIONS OF THIS ARTICLE, FOR THE GIVING OF NOTICE
SHALL COMMENCE TO RUN FROM THE DATE OF MAILING OF SUCH NOTICE.
  3. WHEN THE LAST  DAY  PRESCRIBED  UNDER  AUTHORITY  OF  THIS  ARTICLE
(INCLUDING ANY EXTENSION OF TIME) FOR PERFORMING ANY ACT FALLS ON SATUR-
DAY, SUNDAY OR A LEGAL HOLIDAY IN THE STATE OF NEW YORK, THE PERFORMANCE
OF  SUCH  ACT  SHALL BE CONSIDERED TIMELY IF IT IS PERFORMED ON THE NEXT
SUCCEEDING DAY WHICH IS NOT A SATURDAY, SUNDAY OR A LEGAL HOLIDAY.
  4. (A) ANY REFERENCE IN SUBDIVISION ONE OF THIS SECTION TO THE  UNITED
STATES  MAIL  SHALL  BE TREATED AS INCLUDING A REFERENCE TO ANY DELIVERY
SERVICE DESIGNATED BY THE SECRETARY OF THE TREASURY OF THE UNITED STATES
PURSUANT TO SECTION SEVENTY-FIVE HUNDRED TWO  OF  THE  INTERNAL  REVENUE
CODE  AND ANY REFERENCE IN SUBDIVISION ONE OF THIS SECTION TO A POSTMARK
BY THE UNITED STATES MAIL SHALL BE TREATED AS INCLUDING A  REFERENCE  TO
ANY  DATE RECORDED OR MARKED IN THE MANNER DESCRIBED IN SECTION SEVENTY-
FIVE HUNDRED TWO OF THE INTERNAL REVENUE CODE BY A  DESIGNATED  DELIVERY
SERVICE.  IF THE COMMISSIONER FINDS THAT ANY DELIVERY SERVICE DESIGNATED
BY SUCH SECRETARY IS INADEQUATE FOR THE NEEDS OF THE STATE, THE  COMMIS-
SIONER  MAY  WITHDRAW SUCH DESIGNATION FOR PURPOSES OF THIS ARTICLE. THE
COMMISSIONER MAY ALSO DESIGNATE ADDITIONAL DELIVERY SERVICES MEETING THE
CRITERIA OF SECTION SEVENTY-FIVE HUNDRED TWO  OF  THE  INTERNAL  REVENUE
CODE  FOR PURPOSES OF THIS ARTICLE, OR MAY WITHDRAW ANY SUCH DESIGNATION
IF THE COMMISSIONER FINDS THAT A DELIVERY SERVICE SO DESIGNATED IS INAD-
EQUATE FOR THE NEEDS OF THE STATE. ANY REFERENCE IN SUBDIVISION  ONE  OF
THIS  SECTION  TO THE UNITED STATES MAIL SHALL BE TREATED AS INCLUDING A
REFERENCE TO ANY DELIVERY SERVICE DESIGNATED BY THE COMMISSIONER AND ANY
REFERENCE IN SUBDIVISION ONE OF THIS SECTION TO A POSTMARK BY THE UNITED
STATES MAIL SHALL BE TREATED  AS  INCLUDING  A  REFERENCE  TO  ANY  DATE
RECORDED  OR  MARKED  IN  THE  MANNER  DESCRIBED IN SECTION SEVENTY-FIVE
HUNDRED TWO OF THE INTERNAL REVENUE CODE BY A  DELIVERY  SERVICE  DESIG-
NATED BY THE COMMISSIONER.
  (B)  ANY  EQUIVALENT OF REGISTERED OR CERTIFIED MAIL DESIGNATED BY THE
UNITED STATES SECRETARY OF THE TREASURY, OR AS MAY BE DESIGNATED BY  THE
COMMISSIONER  PURSUANT  TO  THE SAME CRITERIA USED BY SUCH SECRETARY FOR

S. 4                               15                               A. 4

SUCH DESIGNATIONS PURSUANT TO SECTION SEVENTY-FIVE HUNDRED  TWO  OF  THE
INTERNAL  REVENUE  CODE,  SHALL BE INCLUDED WITHIN THE MEANING OF REGIS-
TERED OR CERTIFIED MAIL AS USED IN SUBDIVISION ONE OF THIS  SECTION.  IF
THE  COMMISSIONER  FINDS  THAT ANY EQUIVALENT OF REGISTERED OR CERTIFIED
MAIL IS INADEQUATE FOR THE NEEDS OF  THE  STATE,  THE  COMMISSIONER  MAY
WITHDRAW SUCH DESIGNATION FOR PURPOSES OF THIS ARTICLE.
  S  364.  DEPOSIT AND DISPOSITION OF REVENUE. ALL TAXES, FEES, INTEREST
AND PENALTIES COLLECTED OR RECEIVED BY THE COMMISSIONER UNDER THE  TAXES
IMPOSED  BY  THIS ARTICLE SHALL BE DEPOSITED AND DISPOSED OF PURSUANT TO
THE PROVISIONS OF SECTION ONE HUNDRED SEVENTY-ONE-A OF THIS CHAPTER.
  S 365. SPECIAL REVENUE DISPOSITION IN RESPECT OF SALES AND  COMPENSAT-
ING USE TAXES. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY: (A)
THE COMMISSIONER SHALL ESTIMATE, FOR EACH SALES TAX QUARTERLY PERIOD, AS
DESCRIBED  IN  SUBDIVISION  (B)  OF SECTION ELEVEN HUNDRED THIRTY-SIX OF
THIS CHAPTER, THE NET CHANGE ON A  STATEWIDE  BASIS  IN  THE  AMOUNT  OF
RECEIPTS  AND  CONSIDERATION  EXEMPT FROM OR SUBJECT TO THE SALES TAX ON
RETAIL SALES OF TANGIBLE PERSONAL PROPERTY AND THE CORRESPONDING COMPEN-
SATING USE TAX UNDER ARTICLE TWENTY-EIGHT OF THIS CHAPTER RESULTING FROM
CHANGING THE BASE OF SUCH PROPERTY EXEMPT FROM OR SUBJECT TO SUCH  TAXES
AS  REGARDS  (I) SYRUPS, SIMPLE SYRUPS, BOTTLED SOFT DRINKS, AND POWDERS
OR BASE PRODUCTS, OTHER THAN UNSWEETENED COFFEE, TEA AND COCOA,  SUBJECT
TO  SUCH TAXES AND (II) DRINKS AND BEVERAGES EXEMPT FROM SUCH TAXES, THE
TAXABILITY OF WHICH CHANGED AS OF THE EFFECTIVE DATE OF THIS SECTION  ON
ACCOUNT OF CONFORMING THE BASE OF PROPERTY SUBJECT TO SUCH SALES AND USE
TAXES  TO  THE  BASE  OF PROPERTY SUBJECT TO TAX UNDER THIS ARTICLE. FOR
PURPOSES OF THIS QUARTERLY ESTIMATE, THE  COMMISSIONER  SHALL  NOT  TAKE
INTO  ACCOUNT ITEMS OF PROPERTY THAT WERE SUBJECT TO OR EXEMPT FROM SUCH
SALES AND USE TAXES BEFORE SUCH EFFECTIVE DATE, THE STATUS OF WHICH  WAS
NOT  CHANGED  ON ACCOUNT OF SUCH BASE CONFORMITY. THE COMMISSIONER SHALL
MAKE SUCH STATEWIDE ESTIMATE  BASED  ON  INFORMATION  AVAILABLE  TO  THE
COMMISSIONER,  INCLUDING  FOOD  AND  BEVERAGE  INDUSTRY  SALES  DATA AND
MARKETING RESEARCH, CONSUMER EXPENDITURE SURVEYS, ECONOMIC  TRENDS,  AND
THE  LIKE,  AND SHALL TAKE INTO ACCOUNT SEASONALITY AND OTHER FACTORS AS
THEY MAY APPLY TO PURCHASE AND CONSUMPTION OF SUCH PROPERTY. THE COMMIS-
SIONER SHALL ROUND SUCH STATEWIDE  QUARTERLY  ESTIMATE  TO  THE  NEAREST
MILLION  DOLLARS  BEFORE  USING SUCH ESTIMATE AS PROVIDED IN SUBDIVISION
(B) OF THIS SECTION.
  (B) IF THE COMMISSIONER  FINDS  A  NET  REDUCTION  IN  THE  AMOUNT  OF
RECEIPTS  AND  CONSIDERATION SUBJECT TO SALES AND COMPENSATING USE TAXES
ON ACCOUNT OF SUCH BASE CONFORMITY,  THE  COMMISSIONER  SHALL  USE  SUCH
ESTIMATE TO DETERMINE THE AMOUNT OF REVENUE LOST UNDER THE TAXES IMPOSED
BY  SECTION ELEVEN HUNDRED NINE OR PURSUANT TO THE AUTHORITY OF SUBDIVI-
SION (A) OF SECTION TWELVE HUNDRED TEN OF THIS  CHAPTER  RESULTING  FROM
SUCH BASE CONFORMITY. THE COMMISSIONER SHALL DETERMINE THE AMOUNT OF TAX
REVENUE  LOST UNDER SUCH TAXES IMPOSED BY SECTION ELEVEN HUNDRED NINE OF
THIS CHAPTER BY MULTIPLYING SUCH NET REDUCTION BY THE RATE OF SUCH TAXES
IN THAT QUARTERLY PERIOD, AND THEN MULTIPLYING THAT PRODUCT BY  A  FRAC-
TION, THE NUMERATOR OF WHICH SHALL BE THE POPULATION OF THE METROPOLITAN
COMMUTER  TRANSPORTATION  DISTRICT,  AS  ESTABLISHED  BY  SECTION TWELVE
HUNDRED SIXTY-TWO OF THE PUBLIC AUTHORITIES LAW, AND THE DENOMINATOR  OF
WHICH  SHALL BE THE STATE'S POPULATION. THE COMMISSIONER SHALL DETERMINE
THE AMOUNT OF TAX REVENUE LOST UNDER THE TAXES IMPOSED BY  A  COUNTY  OR
CITY  PURSUANT  TO  THE  AUTHORITY  OF SUBDIVISION (A) OF SECTION TWELVE
HUNDRED TEN OF THIS CHAPTER BY MULTIPLYING SUCH  NET  REDUCTION  BY  THE
RATE  OF THE COUNTY'S OR CITY'S TAXES IN THAT QUARTERLY PERIOD, AND THEN
MULTIPLYING THAT PRODUCT BY A FRACTION, THE NUMERATOR OF WHICH SHALL  BE

S. 4                               16                               A. 4

THE  COUNTY'S OR CITY'S POPULATION AND THE DENOMINATOR OF WHICH SHALL BE
THE STATE'S POPULATION. IF A COUNTY AND A CITY IN THE COUNTY EACH IMPOSE
SUCH SALES AND USE TAXES, THE  COUNTY'S  REVENUE  LOSS  SHALL  FIRST  BE
CALCULATED  AS  DESCRIBED  IN THE PRIOR SENTENCE BUT EXCLUDING THE POPU-
LATION IN THE AREA OF THE CITY, AND TO THAT AMOUNT SO  DETERMINED  SHALL
BE  ADDED AN AMOUNT CALCULATED AS REGARDS THE POPULATION IN THE CITY BUT
USING THE COUNTY'S EFFECTIVE RATE OF TAX IN THE CITY RESULTING FROM  THE
CITY'S  PREEMPTION.  IN SUCH A CASE, THE CITY'S REVENUE LOSS SHALL LIKE-
WISE BE CALCULATED AS DESCRIBED ABOVE, BUT ALSO USING ITS EFFECTIVE RATE
OF TAX RESULTING FROM THE  COUNTY'S  PREEMPTION.  ALL  SUCH  POPULATIONS
UNDER  THIS SECTION SHALL BE AS DETERMINED IN ACCORDANCE WITH THE LATEST
DECENNIAL FEDERAL CENSUS.
  (C) THE COMMISSIONER SHALL SEPARATELY DETERMINE ANY SUCH LOSS  IN  TAX
REVENUE  DESCRIBED  IN  SUBDIVISION (B) OF THIS SECTION BY THE TWENTIETH
DAY FOLLOWING THE END OF EACH SUCH QUARTERLY PERIOD. SUCH AMOUNTS DETER-
MINED BY THE COMMISSIONER SHALL BE DEEMED TO  BE  TAX  REVENUE  LOST  ON
ACCOUNT  OF  SUCH  TAXES  IMPOSED BY SECTION ELEVEN HUNDRED NINE OF THIS
CHAPTER OR BY EACH SUCH COUNTY OR CITY  PURSUANT  TO  THE  AUTHORITY  OF
SUBDIVISION  (A)  OF  SECTION  TWELVE  HUNDRED  TEN OF THIS CHAPTER. THE
COMMISSIONER SHALL CERTIFY SUCH QUARTERLY AMOUNT OF TAX REVENUE LOST  IN
RESPECT OF EACH OF THEM TO THE STATE COMPTROLLER BY THE LAST DAY OF THAT
MONTH. NEITHER THE COMMISSIONER NOR THE COMPTROLLER SHALL BE HELD LIABLE
FOR ANY INACCURACY IN ANY SUCH ESTIMATE OR CERTIFICATION.
  (D)  IF  THE  COMMISSIONER  CERTIFIES  TO  THE COMPTROLLER ANY NET TAX
REVENUE LOSS DESCRIBED IN SUBDIVISION (C) OF  THIS  SECTION,  THE  COMP-
TROLLER  SHALL, ON THE TWELFTH DAY OF THE FOLLOWING MONTH, WITHDRAW EACH
SUCH AMOUNT FROM THE TAXES, PENALTIES,  AND  INTEREST  IMPOSED  BY  THIS
ARTICLE  AND  DEPOSITED  AND  DISPOSED  OF PURSUANT TO THE PROVISIONS OF
SECTION THREE HUNDRED SIXTY-FOUR OF THIS ARTICLE AND,  WITH  RESPECT  TO
THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED NINE OF THIS CHAPTER, DEPOS-
IT  SUCH  AMOUNT  IN  THE  MASS TRANSPORTATION OPERATING ASSISTANCE FUND
ESTABLISHED BY SECTION EIGHTY-EIGHT-A OF THE STATE FINANCE  LAW  TO  THE
CREDIT  OF  THE  METROPOLITAN  MASS  TRANSPORTATION OPERATING ASSISTANCE
ACCOUNT THEREIN, AS IF SUCH AMOUNT WAS REVENUE FROM THE TAXES IMPOSED BY
SUCH SECTION ELEVEN HUNDRED NINE, AND WITH RESPECT TO TAXES IMPOSED BY A
COUNTY OR CITY, PAY SUCH AMOUNT TO THE  APPROPRIATE  FISCAL  OFFICER  OF
EACH  SUCH COUNTY AND CITY AS DESCRIBED IN SECTION TWELVE HUNDRED SIXTY-
ONE OF THIS CHAPTER. ANY SUCH AMOUNT PAID TO A COUNTY OR CITY  SHALL  BE
DEEMED  TO  BE  NET  COLLECTIONS FROM THE TAXES IMPOSED BY THE COUNTY OR
CITY FOR PURPOSES OF ARTICLE TWENTY-NINE OF THIS CHAPTER,  AND,  AS  NET
COLLECTIONS,  SHALL  BE  SUBJECT  TO  ANY PROVISION OF STATE LAW OR OF A
LOCAL LAW, ORDINANCE OR RESOLUTION OF SUCH COUNTY OR CITY, APPLICABLE TO
NET COLLECTIONS FROM ITS SALES AND COMPENSATING USE TAXES. IF THE COUNTY
OR CITY IMPOSES AN ADDITIONAL RATE OR RATES OF SUCH SALES AND COMPENSAT-
ING USE TAXES, SUCH PAYMENT  SHALL  BE  PROPORTIONALLY  SUBJECT  TO  THE
PROVISIONS  APPLICABLE TO THE COUNTY'S OR CITY'S MAXIMUM AUTHORIZED RATE
AND TO ITS ADDITIONAL RATE OR RATES.
  (E) THE COMMISSIONER SHALL CERTIFY TO THE COMPTROLLER  THE  AMOUNT  OF
ANY  OVER ESTIMATION OR UNDER ESTIMATION AND RESULTING ERRONEOUS PAYMENT
CERTIFICATION MADE UNDER THIS SECTION THAT RESULT  FROM  A  MATHEMATICAL
ERROR,  AS  SOON AFTER ITS DISCOVERY AS REASONABLY POSSIBLE. THE COMMIS-
SIONER SHALL NOT BE HELD LIABLE FOR ANY INACCURACY IN SUCH  CERTIFICATE.
SUBSEQUENT DEPOSITS TO OR WITHDRAWALS FROM THE MASS TRANSPORTATION OPER-
ATING  ASSISTANCE FUND OR PAYMENTS TO A COUNTY OR CITY TO WHICH THE OVER
ESTIMATION OR UNDER ESTIMATION AND ERRONEOUS PAYMENTS  RELATE  SHALL  BE
ADJUSTED  ACCORDINGLY,  PROVIDED  THAT  THE  COMPTROLLER MAY ADJUST SUCH

S. 4                               17                               A. 4

NUMBER OF SUBSEQUENT DEPOSITS TO OR WITHDRAWALS FROM SUCH  FUND  AS  THE
COMPTROLLER  SHALL  CONSIDER  REASONABLE  IN  VIEW  OF THE AMOUNT OF THE
ADJUSTMENT AND ALL OTHER FACTS AND CIRCUMSTANCES. SUBSEQUENT PAYMENTS BY
THE COMPTROLLER TO A COUNTY OR CITY SHALL BE ADJUSTED BY SUBTRACTING THE
AMOUNT  OF ANY OVERPAYMENT FROM OR BY ADDING THE AMOUNT OF ANY UNDERPAY-
MENT TO SUCH NUMBER OF SUBSEQUENT  PAYMENTS  AS  THE  COMPTROLLER  SHALL
CONSIDER  REASONABLE  IN  VIEW  OF  THE AMOUNT OF THE ADJUSTMENT AND ALL
OTHER FACTS AND CIRCUMSTANCES. ESTIMATES AND CERTIFICATIONS MADE  FOR  A
QUARTERLY  PERIOD  SHALL  NOT BE REVISED BECAUSE THE COMMISSIONER USES A
DIFFERENT ESTIMATE METHODOLOGY FOR A LATER QUARTERLY PERIOD.
  S 3-a. Paragraph 1 of subdivision (a) of section 1115 of the tax  law,
as  amended by section 1 of part O of chapter 63 of the laws of 2000, is
amended to read as follows:
  (1) Food, food products, beverages, dietary foods and  health  supple-
ments,  sold  for  human  consumption,  but  not including (i) candy and
confectionery, (ii)  [fruit  drinks  which  contain  less  than  seventy
percent  of  natural fruit juice, (iii) soft drinks, sodas and beverages
such as are ordinarily dispensed at  soda  fountains  or  in  connection
therewith  (other  than coffee, tea and cocoa)] "SYRUP," "SIMPLE SYRUP,"
"BOTTLED SOFT DRINK," AND "POWDER OR BASE PRODUCT," AS  SUCH  TERMS  ARE
DEFINED  IN ARTICLE SIXTEEN OF THIS CHAPTER, and [(iv)] (III) beer, wine
or other alcoholic beverages, all of  which  shall  be  subject  to  the
retail sales and compensating use taxes, whether or not the item is sold
in liquid form. [The food and drink excluded from the exemption provided
by  this  paragraph  under subparagraphs] NOTWITHSTANDING THE FOREGOING,
THE CANDY AND CONFECTIONERY DESCRIBED IN  SUBPARAGRAPH  (i)[,  (ii)  and
(iii)] of this paragraph AND THE PRODUCTS DESCRIBED IN SUBPARAGRAPH (II)
OF  THIS  PARAGRAPH, WHETHER OR NOT SOLD IN LIQUID FORM, shall be exempt
[under this paragraph] FROM THE TAXES  IMPOSED  BY  SUBDIVISION  (A)  OF
SECTION ELEVEN HUNDRED FIVE AND SECTION ELEVEN HUNDRED TEN OF THIS ARTI-
CLE  when  sold  for  seventy-five cents or less through [any] A vending
machine activated by the use of coin, currency,  credit  card  or  debit
card.  [With  the exception of the provision in this paragraph providing
for an exemption for certain food or drink sold for  seventy-five  cents
or  less through vending machines, nothing herein] NOTHING IN THIS PARA-
GRAPH shall be construed as exempting food or drink from the tax imposed
under subdivision (d) of section eleven hundred five  OF  THIS  ARTICLE.
SEE SUBDIVISION (GG) OF THIS SECTION FOR EXEMPTIONS FROM THE TAX IMPOSED
UNDER SUCH SUBDIVISION (D) OF SECTION ELEVEN HUNDRED FIVE.
  S  3-b.  Subparagraph 3 of paragraph (i) of subdivision (d) of section
1105 of the tax law, as amended by section 1 of part DD of  chapter  407
of the laws of 1999, is amended to read as follows:
  (3) in those instances where EITHER the sale is made through a vending
machine  [that  is  activated  by  use of coin, currency, credit card or
debit card (except the sale of drinks in a  heated  state  made  through
such a vending machine)] or THE SALE is for consumption off the premises
of  the  vendor,  except  where food (other than sandwiches) or drink or
both are (A) sold in an unheated state and[,] (B) are of a type commonly
sold for consumption off the premises and in the same  form  and  condi-
tion,  quantities and packaging, in establishments which are food stores
other than those principally engaged in selling foods prepared and ready
to be eaten.
  S 3-c. Subdivision (d) of section 1105 of the tax law  is  amended  by
adding a new paragraph (iii) to read as follows:
  (III)  NOTWITHSTANDING  THE  FOREGOING PROVISIONS OF THIS SUBDIVISION,
NOTHING IN THIS SUBDIVISION, OTHER THAN SUBPARAGRAPH  (A)  OF  PARAGRAPH

S. 4                               18                               A. 4

(II)  OF  THIS SUBDIVISION, SHALL EXCLUDE OR EXEMPT FROM THE TAX IMPOSED
UNDER THIS SUBDIVISION  RECEIPTS  FROM  THE  SALE  OF  "SYRUP,"  "SIMPLE
SYRUP," "BOTTLED SOFT DRINK," OR "POWDER OR BASE PRODUCT," AS SUCH TERMS
ARE DEFINED IN ARTICLE SIXTEEN OF THIS CHAPTER.
  S 3-d. Section 1115 of the tax law is amended by adding a new subdivi-
sion (gg) to read as follows:
  (GG)  (1)  RECEIPTS FROM THE SALE OF (I) CANDY AND CONFECTIONERY, (II)
FRUIT DRINKS WHICH CONTAIN LESS THAN SEVENTY PERCENT  OF  NATURAL  FRUIT
JUICE, AND (III) SOFT DRINKS, SODAS AND BEVERAGES SUCH AS ARE ORDINARILY
DISPENSED  AT SODA FOUNTAINS OR IN CONNECTION THEREWITH, SHALL BE EXEMPT
FROM THE TAX IMPOSED BY SUBDIVISION (D) OF SECTION ELEVEN  HUNDRED  FIVE
OF  THIS ARTICLE WHEN SOLD IN OR BY A RESTAURANT, TAVERN OR OTHER ESTAB-
LISHMENT IN THIS STATE, OR BY A CATERER, FOR SEVENTY-FIVE CENTS OR  LESS
THROUGH A VENDING MACHINE ACTIVATED BY THE USE OF COIN, CURRENCY, CREDIT
CARD OR DEBIT CARD, WHETHER OR NOT SOLD IN LIQUID FORM.
  (2) RECEIPTS FROM THE SALE OF DRINKS IN A HEATED STATE SHALL BE EXEMPT
FROM  THE  TAX IMPOSED BY SUBDIVISION (D) OF SECTION ELEVEN HUNDRED FIVE
OF THIS ARTICLE WHEN SOLD IN OR BY A RESTAURANT, TAVERN OR OTHER  ESTAB-
LISHMENT IN THIS STATE, OR BY A CATERER, THROUGH A VENDING MACHINE ACTI-
VATED  BY  THE USE OF COIN, CURRENCY, CREDIT CARD OR DEBIT CARD, WHETHER
OR NOT SOLD IN LIQUID FORM.
  S 3-e. Paragraph 1 of subdivision (f) of section 1262 of the tax  law,
as  added  by chapter 93 of the laws of 1965, such subdivision as relet-
tered by chapter 363 of the laws of 1967, is amended to read as follows:
  (1) Net collections. The moneys collected from a tax or taxes  imposed
pursuant to this article, after deducting therefrom expenses of adminis-
tration  and collection and amounts refunded or to be refunded, PLUS, IN
THE CASE OF A COUNTY OR CITY THAT IMPOSES  SALES  AND  COMPENSATING  USE
TAXES  PURSUANT  TO  THE  AUTHORITY OF SUBDIVISION (A) OF SECTION TWELVE
HUNDRED TEN OF THIS ARTICLE, THE AMOUNT DETERMINED BY THE  COMMISSIONER,
CERTIFIED TO THE STATE COMPTROLLER, AND PAID TO THE COUNTY OR CITY UNDER
SECTION THREE HUNDRED SIXTY-FIVE OF THIS CHAPTER.
  S  4. The tax law is amended by adding a new section 1812-g to read as
follows:
  S 1812-G. ARTICLE SIXTEEN TAX. 1. ANY PERSON WHO WILLFULLY ATTEMPTS IN
ANY MANNER TO EVADE OR DEFEAT ANY TAX IMPOSED BY ARTICLE SIXTEEN OF THIS
CHAPTER OR THE  PAYMENT  THEREOF  SHALL  BE  GUILTY  OF  A  MISDEMEANOR;
PROVIDED,  HOWEVER,  THAT  IF  THE TAX LIABILITY EVADED OR DEFEATED AS A
RESULT OF SUCH CONDUCT IS EQUAL TO OR GREATER THAN ONE THOUSAND DOLLARS,
SUCH PERSON SHALL BE GUILTY OF CLASS E FELONY.
  2. ANY WILLFUL ACT OR OMISSION, OTHER THAN THOSE DESCRIBED IN  SECTION
EIGHTEEN HUNDRED ONE OF THIS ARTICLE OR SUBDIVISION ONE OF THIS SECTION,
BY  ANY  PERSON  THAT AMOUNTS TO A VIOLATION OF ANY PROVISION OF ARTICLE
SIXTEEN OF THIS CHAPTER, CONSTITUTES A MISDEMEANOR.
  S 5. This act shall  take  effect  December  1,  2010,  provided  that
sections  three-a, three-b, three-c, and three-d of this act shall apply
in accordance with applicable transitional provisions in  sections  1106
and 1217 of the tax law.