[ ] is old law to be omitted.
LBD12574-04-1
S. 2811--B 2
administrative code of the city of New York which relates to such
franchise tax, to amend chapter 817 of the laws of 1987, amending the
tax law and the environmental conservation law, constituting the busi-
ness tax reform and rate reduction act of 1987, and to amend chapter
525 of the laws of 1988, amending the tax law and the administrative
code of the city of New York relating to the imposition of taxes in
the city of New York, in relation to the effectiveness of certain
provisions of such chapters; and to amend the tax law and the adminis-
trative code of the city of New York, in relation to making transi-
tional provisions relating to the federal Gramm-Leach-Bliley act
permanent (Part J); to amend the tax law and the criminal procedure
law, in relation to updating the tax classification of diesel motor
fuel to be consistent with federal laws and make the diesel tax struc-
ture consistent with this new tax treatment; and to repeal certain
provisions of the tax law and the administrative code of the city of
New York relating thereto (Part K); to amend the tax law, in relation
to making a technical correction to the E85 definition; and to amend
chapter 109 of the laws of 2006, amending the tax law relating to
providing exemptions, reimbursements and credits from various taxes
for certain alternative fuels, in relation to extending the alterna-
tive fuels tax exemptions for one year (Part L); to amend section 11
of part EE of chapter 63 of the laws of 2000, amending the tax law and
other laws relating to modifying the distribution of funds from the
motor vehicle fuel excise tax, in relation to the distribution of
motor vehicle fees (Part M); to amend the tax law, in relation to
restrictions on certain keno style lottery games (Part N); to amend
the tax law, in relation to video lottery free play allowance program
(Part O); to amend the tax law, in relation to prize payout of certain
instant lottery games (Part P); to amend the tax law, in relation to
prize payout in certain multi-jurisdictional lottery games (Part Q);
to amend the tax law, in relation to multi-jurisdictional video
lottery gaming (Part R); to amend the racing, pari-mutuel wagering and
breeding law, in relation to licenses for simulcast facilities, sums
relating to track simulcast, simulcast of out-of-state thoroughbred
races, simulcasting of races run by out-of-state harness tracks and
distributions of wagers; to amend chapter 281 of the laws of 1994
amending the racing, pari-mutuel wagering and breeding law and other
laws relating to simulcasting and chapter 346 of the laws of 1990
amending the racing, pari-mutuel wagering and breeding law and other
laws relating to simulcasting and the imposition of certain taxes, in
relation to extending certain provisions thereof; and to amend the
racing, pari-mutuel wagering and breeding law, in relation to extend-
ing certain provisions thereof (Part S); to repeal paragraph (h) of
subdivision 12-G of section 210 of the tax law relating to the appli-
cability of the qualified emerging technology company facilities,
operations and training credit (Part T); to amend the tax law and the
state finance law, in relation to application fees owed by retail
dealers of businesses that sell tobacco products and owners of ciga-
rette vending machines (Part U); to amend the tax law, in relation to
sales tax for transportation service (Part V); to amend the tax law,
in relation to the tax on certain tobacco products; and to amend the
public health law, in relation to regulation of tobacco products (Part
W); to amend the tax law, in relation to temporary deferral payout
credits (Part X); to amend part A of chapter 57 of the laws of 2010
amending the tax law relating to the statutory limitation on the
biofuel production credit and the qualified emerging technology compa-
S. 2811--B 3
ny facilities, operations and training credits, in relation to the
effectiveness thereof (Part Y); to amend the tax law, in relation to
an investment tax credit (Part Z); to amend the public service law, in
relation to a temporary annual assessment and to amend part NN of
chapter 59 of the laws of 2009 amending the public service law relat-
ing to financing operations of the department of public service, in
relation to the effectiveness thereof (Part AA); to amend the tax law,
in relation to the metropolitan commuter transportation mobility tax
(Part BB); to amend the tax law, in relation to removing the credit
for rehabilitation of historic properties from the temporary deferral
of certain tax credits (Part CC); to amend chapter 912 of the laws of
1920 relating to the regulation of boxing, sparring and wrestling, in
relation to establishing protocols for combative sports and authoriz-
ing mixed martial arts events in this state; to amend the tax law, in
relation to the imposition of a tax on the gross receipts of any
person holding any professional or amateur boxing, sparring or wrestl-
ing match or exhibition, or professional combative sports match or
exhibition; and providing for the repeal of such provisions upon expi-
ration thereof (Part DD); to amend the insurance law and the tax law,
in relation to establishing the surplus lines insurance multi-state
compliance compact with respect to surplus lines insurance and premium
tax allocation (Part EE); to amend the tax law, in relation to estab-
lishing a community transformation program credit (Part FF); and to
amend the racing, pari-mutuel wagering and breeding law and the state
finance law, in relation to the New York city off-track betting corpo-
ration and establishing the New York city off-track betting corpo-
ration fund; to amend the racing, pari-mutuel wagering and breeding
law, in relation to use and expenditure of funds of the capital acqui-
sition fund; to repeal certain provisions of the racing, pari-mutuel
wagering and breeding law relating thereto; and providing for the
repeal of certain provisions upon the expiration thereof (Part GG)
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act enacts into law major components of legislation
which are necessary to implement the state fiscal plan for the 2011-2012
state fiscal year. Each component is wholly contained within a Part
identified as Parts A through GG. The effective date for each particular
provision contained within such Part is set forth in the last section of
such Part. Any provision in any section contained within a Part, includ-
ing the effective date of the Part, which makes a reference to a section
"of this act", when used in connection with that particular component,
shall be deemed to mean and refer to the corresponding section of the
Part in which it is found. Section three of this act sets forth the
general effective date of this act.
PART A
Section 1. Paragraphs (a), (b) and (k) of subdivision 1 of section 300
of the abandoned property law, paragraph (a) as amended and paragraph
(k) as relettered by chapter 15 of the laws of 1983, subparagraph (iv)
of paragraph (a) as amended and subparagraph (v) of paragraph (a) as
added by chapter 409 of the laws of 1994, paragraphs (b) and (k) as
S. 2811--B 4
amended by chapter 78 of the laws of 1976, are amended to read as
follows:
(a) Any amounts due on deposits or any amounts to which a shareholder
of a savings and loan association or a credit union is entitled, held or
owing by a banking organization, which shall have remained unclaimed for
[five] THREE years by the person or persons appearing to be entitled
thereto, including any interest or dividends credited thereon, excepting
(i) any such amount which has been reduced or increased, exclusive of
dividend or interest payment, within [five] THREE years, or
(ii) any such amount which is represented by a passbook not in the
possession of the banking organization, which has been presented for
entry of dividend or interest credit within [five] THREE years, or
(iii) any such amount with respect to which the banking organization
has on file written evidence received within [five] THREE years that the
person or persons appearing to be entitled to such amounts had knowledge
thereof, or
(iv) any such amount payable only at or by a branch office located in
a foreign country, or payable in currency other than United States
currency, or
(v) any such amount that is separately identifiable and has been set
aside to meet the burial and related expenses of an individual, provided
however that said amount shall be deemed abandoned property where it
remains unclaimed for [five] THREE years subsequent to the death of the
individual for whom the amount was deposited.
(b) Any amounts, together with all accumulations of interest or other
increment thereon, held or owing by a banking organization for the
payment of an interest in a bond and mortgage apportioned or transferred
by it pursuant to subdivision seven of former section one hundred eight-
y-eight of the banking law as it existed prior to July first, nineteen
hundred thirty-seven, which shall have remained unclaimed by the person
or persons appearing to be entitled thereto for [five] THREE years after
the full and final liquidation of such mortgage, excepting
(i) any such amount which has been reduced by payment to the person or
persons appearing to be entitled thereto within [five] THREE years, or
(ii) any such amount which is represented by a certificate of share
ownership not in the possession of the banking organization, which
certificate has been presented for transfer within [five] THREE years,
or
(iii) any such amount with respect to which the banking organization
has on file written evidence received within [five] THREE years that the
person or persons appearing to be entitled to such amount had knowledge
thereof.
(k) Lost property or instruments as defined in section two hundred
fifty-one of the personal property law which shall have been held by a
safe deposit company or bank for [five] THREE years pursuant to the
provisions of section two hundred fifty-six of the personal property
law.
S 2. Paragraphs (a) and (c) of subdivision 1 of section 600 of the
abandoned property law, paragraph (a) as amended by chapter 655 of the
laws of 1978 and paragraph (c) as amended by chapter 281 of the laws of
1980, are amended to read as follows:
(a) Any moneys including the monetary proceeds from the sale of tangi-
ble personal property and securities or other intangible property paid
into court, which, except as provided in section ten hundred OF THIS
CHAPTER, shall have remained in the hands of any county treasurer, or
the commissioner of finance of the city of New York, for [five] THREE
S. 2811--B 5
years, together with all accumulations of interest or other increment
thereon, less such legal fees as he may be entitled to.
(c) Any moneys paid to a support bureau of a family court, for the
support of a spouse or child, which shall have remained in the custody
of a county treasurer, or the commissioner of finance of the city of New
York, for [five] THREE years, together with any interest due thereon,
less such legal fees as he may be entitled to. For purposes of this
section, "family court" includes the domestic relations court of the
city of New York prior to the first day of September, nineteen hundred
sixty-two.
S 3. Subdivision 1 of section 1000 of the abandoned property law, as
amended by chapter 670 of the laws of 1989, is amended to read as
follows:
1. (a) Any moneys held or owing for the payment of an award made by a
court in any condemnation proceeding and payable by a public corporation
or other corporation possessing powers of condemnation, which shall have
remained unclaimed by the person or persons appearing to be entitled
thereto for [five] THREE years after confirmation by the court, together
with any interest due thereon, less, when an award is payable by a
public corporation, any amount due such public corporation at the time
of title vesting for tax, water or any other liens on the same parcel
the award was for, with any interest due thereon, and any amount due
such public corporation at the time of title vesting or at the time of
confirmation, whichever is later, for an assessment on the same parcel
the award was for, with any interest due thereon, shall be deemed aban-
doned property. In any condemnation proceedings in which the court shall
have not made an award, any moneys paid into court, including interest
thereon, shall be subject to the provisions of article six of this chap-
ter and this section shall have no application thereto.
(b) The issuance of a warrant for such an award shall not prevent an
award from being deemed abandoned property if such warrant is unclaimed
[five] THREE years after confirmation of such award by the court.
S 4. Subdivision 1 of section 1300 of the abandoned property law is
amended to read as follows:
1. Any unclaimed moneys arising from the sale of any personal property
which shall have been pledged or mortgaged as security for the loan of
money with a corporation, except a banking organization or a licensed
lender, heretofore or hereafter organized by or pursuant to a special
statute for the purpose of, and principally engaged in, giving aid to
individuals by loans of money at interest upon the pledge or mortgage of
personal property, and which has subjected itself to special provisions
of the banking law, after deducting the amount of the loan, the interest
then due on the same and any other lawful charges, which shall have
remained in its possession for [six] THREE years from the date of such
sale, shall be deemed abandoned property.
S 5. Subdivision 2 of section 1315 of the abandoned property law, as
amended by section 2 of part II of chapter 57 of the laws of 2010, is
amended to read as follows:
2. Except as otherwise provided by law, any amount representing
unclaimed money or securities and held in escrow or otherwise by any
corporation (other than a public corporation), joint stock company,
individual, association of two or more individuals, committee or busi-
ness trust, to ensure the performance of any duty or obligation, shall
be deemed abandoned property when:
a. such amount is held or owing in this state, and
S. 2811--B 6
b. such amount has remained unclaimed by the person or persons enti-
tled thereto for [five] THREE years, except
c. where the duty or obligation for which such amount was deposited
has not been performed and such performance is still required, such
amounts shall not be deemed abandoned property.
S 6. Paragraph (a) of subdivision 1 of section 1002 of the abandoned
property law is amended to read as follows:
(a) That a report of all awards in condemnation proceedings unclaimed
for more than [five] THREE years has been made to the state comptroller
and that a copy thereof is on file and open to public inspection, if a
public corporation at the office of the chief fiscal officer thereof; or
if not a public corporation at the principal office or place of business
of such corporation;
S 7. Sections 301, 401, 701 and 1001 of the abandoned property law are
REPEALED.
S 8. Subdivision 1 of section 302 of the abandoned property law is
amended to read as follows:
1. [Within thirty days after making a report of abandoned property
pursuant to the provisions of section three hundred one, such banking]
EVERY BANKING organization shall cause to be published, ON OR BEFORE THE
FIRST DAY OF SEPTEMBER IN EACH YEAR, a notice entitled: "NOTICE OF NAMES
OF PERSONS APPEARING AS OWNERS OF CERTAIN UNCLAIMED PROPERTY HELD BY
(name of banking organization)."
S 9. The opening paragraph of subdivision 3 of section 302 of the
abandoned property law, as amended by chapter 315 of the laws of 1954,
is amended to read as follows:
Such notice shall[, in accordance with the classification prescribed
by the state comptroller for the report pursuant to the provisions of
section three hundred one,] set forth:
S 10. Section 303 of the abandoned property law is amended to read as
follows:
S 303. Payment of abandoned property. 1. In such succeeding month of
November, and on or before the tenth day thereof, every banking organ-
ization shall pay or deliver to the state comptroller all [abandoned]
property [specified in such report, excepting such abandoned property as
since the date of such report shall have ceased to be abandoned] WHICH,
AS OF THE THIRTIETH DAY OF JUNE NEXT PRECEDING, WAS DEEMED ABANDONED
PURSUANT TO SECTION THREE HUNDRED OF THIS ARTICLE, HELD OR OWING BY SUCH
BANKING ORGANIZATION.
2. Such payment shall be accompanied by a [statement] TRUE AND ACCU-
RATE REPORT setting forth such information as the state comptroller may
require relative to such abandoned property [as shall have ceased to be
abandoned]. SUCH REPORT SHALL INCLUDE:
(A) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (A) OF SUBDIVISION
ONE OF SECTION THREE HUNDRED WHICH ARE ABANDONED PROPERTY:
(I) THE NAME AND LAST KNOWN ADDRESS OF THE PERSON OR PERSONS APPEARING
FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE THE OWNER OF ANY
SUCH ABANDONED PROPERTY;
(II) THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE SUCH PERSON OR
PERSONS;
(III) THE DATE OF THE LAST TRANSACTION WITH RESPECT TO SUCH ABANDONED
PROPERTY;
(IV) THE NATURE AND IDENTIFYING NUMBER, IF ANY, OF SUCH ABANDONED
PROPERTY; AND
(V) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
S. 2811--B 7
(B) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (B) OF SUBDIVISION
ONE OF SECTION THREE HUNDRED OF THIS ARTICLE WHICH ARE ABANDONED PROPER-
TY:
(I) THE NAME AND LAST KNOWN ADDRESS, IF ANY, OF THE PERSON OR PERSONS
APPEARING FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE ENTITLED
TO RECEIVE SUCH ABANDONED PROPERTY;
(II) THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE SUCH PERSON OR
PERSONS;
(III) THE AMOUNT OF ANY INTEREST OR OTHER INCREMENT DUE THEREON;
(IV) THE DATE OF THE LAST TRANSACTION WITH RESPECT TO SUCH ABANDONED
PROPERTY; AND
(V) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
(C) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (C) OF SUBDIVISION
ONE OF SECTION THREE HUNDRED OF THIS ARTICLE WHICH ARE ABANDONED PROPER-
TY:
(I) THE NAME AND LAST KNOWN ADDRESS, IF ANY, OF THE PERSON OR PERSONS
APPEARING FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE ENTITLED
TO RECEIVE SUCH ABANDONED PROPERTY;
(II) A DESCRIPTION OF SUCH ABANDONED PROPERTY INCLUDING IDENTIFYING
NUMBERS, IF ANY, AND THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE OR
PAYABLE;
(III) THE AMOUNT OF ANY INTEREST OR OTHER INCREMENT DUE THEREON;
(IV) THE DATE SUCH ABANDONED PROPERTY WAS PAYABLE OR DEMANDABLE;
(V) THE AMOUNT AND IDENTIFYING NUMBER OF ANY SUCH INSTRUMENT WHERE THE
PAYEE THEREOF IS UNKNOWN TO THE BANKING ORGANIZATION; AND
(VI) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
(D) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (D) OF SUBDIVISION
ONE OF SECTION THREE HUNDRED OF THIS ARTICLE WHICH ARE ABANDONED PROPER-
TY:
(I) THE NAME AND LAST KNOWN ADDRESS, IF ANY, OF THE PERSON OR PERSONS
APPEARING FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE THE OWNER
OF ANY SUCH ABANDONED PROPERTY; AND
(II) SUCH OTHER INFORMATION AS THE STATE COMPTROLLER MAY REASONABLY
REQUIRE.
3. SUCH REPORT SHALL BE IN SUCH FORM AS THE STATE COMPTROLLER MAY
PRESCRIBE. ALL NAMES OF PERSONS APPEARING IN THE SECTION OF SUCH REPORT
RELATING TO DEPOSITS, APPEARING TO BE THE OWNERS THEREOF, SHALL BE LIST-
ED IN ALPHABETICAL ORDER. ABANDONED PROPERTY OTHER THAN DEPOSITS LISTED
IN SUCH REPORT SHALL BE CLASSIFIED IN SUCH MANNER AS THE STATE COMP-
TROLLER MAY PRESCRIBE, AND NAMES OF PERSONS APPEARING TO BE ENTITLED TO
SUCH ABANDONED PROPERTY APPEARING IN SUCH REPORT SHALL BE LISTED ALPHA-
BETICALLY WITHIN EACH SUCH CLASSIFICATION.
4. NO BANKING ORGANIZATION IN THIS STATE, ORGANIZED UNDER OR SUBJECT
TO THE PROVISIONS OF SECTION SIX HUNDRED ELEVEN OF TITLE TWELVE OF THE
UNITED STATES CODE, SHALL BE REQUIRED TO FILE REPORTS OF ABANDONED PROP-
ERTY RELATING TO ANY AMOUNTS RECEIVED ON OR BEFORE THE THIRTIETH DAY OF
JUNE, NINETEEN HUNDRED SEVENTY-SEVEN, UNLESS, AS OF THE EFFECTIVE DATE
OF THIS SUBDIVISION, SUCH AMOUNTS REMAIN RECORDED AND SHOWN IN THE BOOKS
AND RECORDS OF SUCH BANKING ORGANIZATION AS AN OUTSTANDING OBLIGATION
THEREOF.
S 11. Subdivision 1 of section 402 of the abandoned property law is
amended to read as follows:
1. [Within thirty days after making a report of abandoned property
pursuant to the provisions of section four hundred one,] EVERY such
S. 2811--B 8
corporation shall cause to be published, ON OR BEFORE THE FIRST DAY OF
SEPTEMBER IN EACH YEAR, a notice entitled: "NOTICE OF CERTAIN UNCLAIMED
PROPERTY HELD BY (name of corporation)."
S 12. Section 403 of the abandoned property law is amended to read as
follows:
S 403. Payment of abandoned property. 1. In such succeeding month of
October, and on or before the tenth day thereof, every such corporation
shall pay to the state comptroller all [abandoned] property [specified
in the last preceding report made to the state comptroller pursuant to
section four hundred one, excepting such abandoned property as since the
date of such report shall have ceased to be abandoned] WHICH, AS OF THE
FIRST DAY OF JULY NEXT PRECEDING, WAS DEEMED ABANDONED PURSUANT TO
SECTION FOUR HUNDRED OF THIS ARTICLE, HELD OR OWING BY SUCH CORPORATION.
2. Such payment shall be accompanied by a [statement] TRUE AND ACCU-
RATE REPORT setting forth such information as the state comptroller may
require relating to such abandoned property [as shall have ceased to be
abandoned] INCLUDING:
(A) AS TO ABANDONED PROPERTY SPECIFIED IN PARAGRAPHS (A) AND (B) OF
SUBDIVISION ONE OF SECTION FOUR HUNDRED OF THIS ARTICLE:
(I) THE NAME AND LAST KNOWN ADDRESS OF EACH DEPOSITOR OR SUBSCRIBER
APPEARING FROM THE RECORDS OF SUCH CORPORATION TO BE ENTITLED TO RECEIVE
ANY SUCH ABANDONED PROPERTY;
(II) THE DATE WHEN THE DEPOSIT WAS MADE OR AMOUNT PAID;
(III) THE AMOUNT OF SUCH DEPOSIT OR PAYMENT;
(IV) THE DATE WHEN UTILITY SERVICES FURNISHED TO SUCH CONSUMER OR
SUBSCRIBER CEASED;
(V) ANY SUMS DUE AND UNPAID TO THE CORPORATION BY SUCH CONSUMER OR
SUBSCRIBER, WITH INTEREST THEREON FROM THE DATE OF TERMINATION OF
SERVICE;
(VI) THE AMOUNT OF INTEREST DUE UPON SUCH DEPOSIT OR PAYMENT ON ANY
BALANCE THEREOF THAT HAS REMAINED WITH SUCH CORPORATION AND NOT BEEN
CREDITED TO SUCH CONSUMER'S OR SUBSCRIBER'S ACCOUNT;
(VII) THE AMOUNT OF SUCH ABANDONED PROPERTY; AND
(VIII) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
(B) AS TO ABANDONED PROPERTY SPECIFIED IN PARAGRAPH (C) OF SUBDIVISION
ONE OF SECTION FOUR HUNDRED OF THIS ARTICLE:
(I) THE NAME AND LAST KNOWN ADDRESS OF EACH PERSON APPEARING FROM THE
RECORDS OF SUCH CORPORATION TO BE ENTITLED TO RECEIVE THE SAME;
(II) THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE EACH SUCH
PERSON;
(III) THE DATE PAYMENT BECAME DUE; AND
(IV) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
3. SUCH REPORT SHALL BE IN SUCH FORM AND THE ABANDONED PROPERTY LISTED
SHALL BE CLASSIFIED IN SUCH MANNER AS THE STATE COMPTROLLER MAY
PRESCRIBE. NAMES OF PERSONS ENTITLED TO SUCH ABANDONED PROPERTY APPEAR-
ING IN SUCH REPORT SHALL BE LISTED IN ALPHABETICAL ORDER WITHIN EACH
SUCH CLASSIFICATION.
S 13. Paragraph (b) of subdivision 1 of section 700 of the abandoned
property law, as amended by chapter 78 of the laws of 1976, is amended
to read as follows:
(b) Any moneys held or owing by any life insurance corporation which
are payable under other kinds of life insurance policies to any person
whose last-known address, according to the records of the corporation,
is within this state, where the insured, if living, would[, prior to the
S. 2811--B 9
thirty-first day of December next preceding the report required by
section seven hundred one,] have attained the limiting age under the
mortality table on which the reserves are based, exclusive of
(i) any policy which has within three years been assigned, readjusted,
kept in force by payment of premium, reinstated or subjected to loan, or
(ii) any policy with respect to which such corporation has on file
written evidence received within three years that the person or persons
apparently entitled to claim thereunder have knowledge thereof.
S 14. Subdivision 1 of section 702 of the abandoned property law, as
amended by chapter 497 of the laws of 1944, is amended to read as
follows:
1. [Within thirty days after making a report of abandoned property
pursuant to the provisions of section seven hundred one,] EVERY such
life insurance corporation shall cause to be published, ON OR BEFORE THE
FIRST DAY OF MAY IN EACH YEAR, a notice entitled: "NOTICE OF NAMES OF
PERSONS APPEARING AS OWNERS OF CERTAIN UNCLAIMED PROPERTY HELD BY (name
of life insurance corporation)."
S 15. The opening paragraph of subdivision 3 of section 702 of the
abandoned property law, as amended by chapter 315 of the laws of 1954,
is amended to read as follows:
Such notice shall[, in accordance with the classification prescribed
by the state comptroller for the report pursuant to the provisions of
section seven hundred one,] set forth:
S 16. Section 703 of the abandoned property law, subdivision 1 as
amended by chapter 497 of the laws of 1944, is amended to read as
follows:
S 703. Payment of abandoned property. 1. In such succeeding month of
September, and on or before the succeeding tenth day thereof, every such
life insurance corporation shall pay to the state comptroller all [aban-
doned] property [specified in such report, excepting such abandoned
property as since the date of such report shall have ceased to be aban-
doned] WHICH, AS OF THE FIRST DAY OF JANUARY NEXT PRECEDING, WAS DEEMED
ABANDONED PURSUANT TO SECTION SEVEN HUNDRED OF THIS ARTICLE, HELD OR
OWING BY SUCH LIFE INSURANCE CORPORATION.
2. Such payment shall be accompanied by a [statement] TRUE AND ACCU-
RATE REPORT setting forth such information as the state comptroller may
require relative to such abandoned property [as shall have ceased to be
abandoned] INCLUDING:
(A) THE NAME AND LAST KNOWN ADDRESS OF ANY PERSON OR PERSONS APPEARING
FROM THE RECORDS OF SUCH LIFE INSURANCE CORPORATION TO BE ENTITLED TO
RECEIVE ANY SUCH ABANDONED PROPERTY;
(B) THE AMOUNT APPEARING FROM THE RECORDS OF SUCH CORPORATION TO BE
DUE;
(C) THE POLICY NUMBER AND POLICY AGE OF THE INSURED;
(D) THE DATE SUCH ABANDONED PROPERTY WAS PAYABLE;
(E) THE NAMES AND LAST KNOWN ADDRESSES OF EACH BENEFICIARY APPEARING
IN THE RECORDS OF THE INSURER; AND
(F) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
3. SUCH REPORT SHALL BE IN SUCH FORM AND THE ABANDONED PROPERTY LISTED
SHALL BE CLASSIFIED IN SUCH MANNER AS THE STATE COMPTROLLER MAY
PRESCRIBE. NAMES OF PERSONS APPEARING TO BE ENTITLED TO SUCH PROPERTY OR
OF BENEFICIARIES APPEARING IN SUCH REPORT SHALL BE LISTED IN ALPHABET-
ICAL ORDER WITHIN EACH SUCH CLASSIFICATION.
S 17. Section 1003 of the abandoned property law is amended to read as
follows:
S. 2811--B 10
S 1003. Payment of abandoned property. 1. In such succeeding month of
February, and on or before the tenth day thereof, every such public and
other corporation shall pay to the state comptroller all [abandoned]
property [specified in such report, excepting such abandoned property as
since the date of such report shall have ceased to be abandoned] WHICH,
AS OF THE FIRST DAY OF JULY NEXT PRECEDING, WAS DEEMED ABANDONED PURSU-
ANT TO SECTION ONE THOUSAND OF THIS ARTICLE, HELD OR OWING BY SUCH
CORPORATION.
2. Such payment shall be accompanied by a [statement] TRUE AND ACCU-
RATE REPORT setting forth such information as the state comptroller may
require in relation to such abandoned property [as shall have ceased to
be abandoned] INCLUDING THE TITLE OF THE PROCEEDING, THE NAME AND LAST
KNOWN ADDRESS OF THE AWARDEE IF SUCH AWARD IS MADE TO A KNOWN OWNER, THE
DATE OF CONFIRMATION, THE DAMAGE PARCEL NUMBER, THE AMOUNT OF THE AWARD,
AND THE AMOUNT OF ANY INTEREST DUE THEREON AND, IF A DEDUCTION IS
CLAIMED FOR LIENS BY A PUBLIC CORPORATION, THE NATURE AND AMOUNT OF SUCH
LIENS AND ANY INTEREST CLAIMED THEREON.
S 18. The opening paragraph of subdivision 1 of section 1002 of the
abandoned property law is amended to read as follows:
[Within thirty days after making a report of abandoned property pursu-
ant to the provisions of section ten hundred one,] EVERY such corpo-
ration shall cause to be published, ON OR BEFORE THE FIRST DAY OF NOVEM-
BER IN EACH YEAR, once in a newspaper of general circulation in each
county where a damaged parcel included in such report is located a
notice, approved as to form by the state comptroller, stating:
S 19. Paragraph (b) of subdivision 6 of section 1406 of the abandoned
property law, as amended by chapter 643 of the laws of 1989, is amended
to read as follows:
(b) Notwithstanding any other provision of law, payment for any aban-
doned condemnation award heretofore or hereafter paid to the state comp-
troller pursuant to sections ten hundred and ten hundred three of this
chapter for the benefit of known persons may be made by the state comp-
troller on sworn application, where the name and last known address of
the person or persons entitled to payment and any other identifying
information as appearing on the records of the court into which payment
was made is included in the report required to be filed pursuant to
section ten hundred [one] THREE of this chapter and when the identity of
the claimant as the person entitled to payment is established to the
satisfaction of the state comptroller. When, in the determination of the
state comptroller, the identifying information included in the report is
insufficient to enable the state comptroller to make a determination of
entitlement, such claim must be established only on order of the court
as set forth in paragraph (a) of this subdivision.
S 20. Subdivision 3 of section 1311 of the abandoned property law is
REPEALED.
S 21. Subdivision 4 of section 1311 of the abandoned property law, as
added by chapter 778 of the laws of 1956, is renumbered subdivision 3
and amended to read as follows:
3. On or before the tenth day of October in each year, every such
corporation shall pay to the state comptroller all [abandoned] property
[specified in the last preceding report made to the state comptroller
pursuant to this section, excepting such abandoned property as since the
date of the report shall have ceased to be abandoned] WHICH, AS OF THE
FIRST DAY OF JULY NEXT PRECEDING, WAS DEEMED ABANDONED PURSUANT TO THIS
SECTION, HELD OR OWING BY SUCH CORPORATION. SUCH PAYMENT SHALL BE ACCOM-
S. 2811--B 11
PANIED BY A TRUE AND ACCURATE REPORT CONTAINING SUCH IDENTIFYING INFOR-
MATION AS THE STATE COMPTROLLER MAY REQUIRE.
S 22. Subdivision 2 of section 1316 of the abandoned property law is
REPEALED.
S 23. Subdivisions 3 and 4 of section 1316 of the abandoned property
law, as amended by chapter 166 of the laws of 1991, are renumbered
subdivisions 2 and 3 and amended to read as follows:
2. [Within thirty days following the filing of the report of abandoned
property with the comptroller pursuant to subdivision two of this
section, the] EVERY insurer shall cause to be published, ON OR BEFORE
THE FIRST DAY OF MAY IN EACH YEAR, a list of such abandoned property in
the same manner as that prescribed for life insurance companies by
section seven hundred two of this chapter.
3. Such [abandoned] property WHICH WAS DEEMED ABANDONED PURSUANT TO
SUBDIVISION ONE OF THIS SECTION shall be paid or delivered to the comp-
troller within the first ten days of September of each year. SUCH
PAYMENT SHALL BE ACCOMPANIED BY A TRUE AND ACCURATE REPORT THAT SHALL BE
IN SUCH FORM AND MANNER AS THE STATE COMPTROLLER MAY PRESCRIBE.
S 24. Section 1408 of the abandoned property law is REPEALED.
S 25. The opening paragraph of section 503 of the abandoned property
law, as amended by chapter 815 of the laws of 1963, is amended to read
as follows:
Each payment or delivery of abandoned property pursuant to section
five hundred two shall be accompanied by a [verified] written report, in
such form as the state comptroller shall prescribe, setting forth:
S 26. The opening paragraph of section 513 of the abandoned property
law, as amended by chapter 815 of the laws of 1963, is amended to read
as follows:
A payment or delivery pursuant to section five hundred twelve shall be
accompanied by a [verified] written report, in such form as the state
comptroller may prescribe, setting forth:
S 27. Subdivision 4 of section 513 of the abandoned property law is
REPEALED.
S 28. Subdivision 5 of section 513 of the abandoned property law, as
added by chapter 617 of the laws of 1973, is renumbered subdivision 4
and amended to read as follows:
4. In case any broker or dealer determines the property which shall be
deemed abandoned property pursuant to subdivisions one and three of
section five hundred eleven by the method provided in subdivision six of
that section, the payment of such abandoned property shall be accompa-
nied by a [verified] written report, in such form as the state comp-
troller may prescribe, which, among other things, shall set forth the
computation of the average factor of such broker or dealer pursuant to
subdivision six of section five hundred eleven. Each [verified] written
report accompanying the payment of abandoned property determined pursu-
ant to subdivision six of section five hundred eleven shall contain an
undertaking by the broker or dealer making such payment to honor all
claims to the extent herein provided whenever made against such broker
or dealer by any person determined by him or proved to be entitled to
receive from him a stock or cash dividend received in this state during
the calendar year covered by such report as the holder of record of a
security or an interest payment on a security received in this state
during such year. Such undertaking shall obligate the broker or dealer
to honor any such claim provided that the payment of abandoned property
relating to the year in question determined pursuant to subdivision six
of section five hundred eleven made by such broker or dealer to the
S. 2811--B 12
state comptroller has been exhausted as a result of reimbursements by
the state comptroller to the broker or dealer or to other persons claim-
ing such abandoned property as provided in subdivision two of section
five hundred fourteen. To the extent related to any stock dividend, any
such claim shall not exceed the fair market value of such stock dividend
on the thirty-first day of December of the year in which such stock
dividend was deemed abandoned property.
S 29. The opening paragraph of section 603 of the abandoned property
law is amended to read as follows:
Each such payment of abandoned property pursuant to section six
hundred two shall be accompanied by a [verified] written report, classi-
fied as the state comptroller shall prescribe, setting forth:
S 30. Subdivision 2 of section 1304 of the abandoned property law, as
added by chapter 698 of the laws of 1943, is amended to read as follows:
2. Any such abandoned property shall be paid or delivered forthwith to
the state comptroller. Such payment shall be accompanied by a [verified]
written report setting forth such identifying information as the state
comptroller may require.
S 31. Section 1305 of the abandoned property law, as amended by chap-
ter 149 of the laws of 1977, is amended to read as follows:
S 1305. Unclaimed surplus moneys after recovery of cost of public
assistance and care.
Any amount comprising a balance credited to an estate or person pursu-
ant to sections one hundred fifty-two-b or three hundred sixty of the
social services law which, on June thirtieth in any year, has for four
years from the date of such credit remained unclaimed by the estate or
person entitled thereto shall be deemed abandoned property.
On or before the tenth day of September in each year every public
welfare official shall pay such abandoned property to the state comp-
troller. Such payment shall be accompanied by a [verified] written
report in such form as the state comptroller may prescribe.
S 32. Subdivision 3 of section 1307 of the abandoned property law, as
added by chapter 700 of the laws of 1943, is amended to read as follows:
3. Any sheriff or county treasurer holding any such abandoned proper-
ty, shall pay the same to the state comptroller immediately after such
property shall have been deemed abandoned. Each such payment shall be
accompanied by a [verified] written report which shall set forth such
information as the state comptroller may require.
S 33. Subdivision 5 of section 1313 of the abandoned property law is
REPEALED.
S 34. Subdivision 2 of section 1314 of the abandoned property law, as
added by chapter 228 of the laws of 1977, is amended to read as follows:
2. Such transfer of moneys shall be accompanied by a [verified] writ-
ten report, in such form as the state comptroller may prescribe.
S 35. Section 1402 of the abandoned property law is REPEALED and a new
section 1402 is added to read as follows:
S 1402. PUBLICATION OF ABANDONED PROPERTY BY STATE COMPTROLLER. 1. (A)
THE COMPTROLLER SHALL MAINTAIN ON HIS OR HER WEBSITE IN A READILY
SEARCHABLE FORMAT OR IN ANY OTHER MEDIUM AT LEAST EQUALLY ACCESSIBLE TO
THE PUBLIC, A LIST OF SUCH ABANDONED PROPERTY AS HAS BEEN PAID OR DELIV-
ERED TO THE COMPTROLLER IN THE PREVIOUS TWELVE MONTHS THAT HAS A VALUE
EXCEEDING TWENTY DOLLARS.
(B) THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO ABANDONED
PROPERTY PAID PURSUANT TO SECTION ONE THOUSAND THREE HUNDRED OF THIS
CHAPTER OR SECTION FOUR HUNDRED TWENTY-FOUR OF THE VEHICLE AND TRAFFIC
LAW.
S. 2811--B 13
2. SUCH LIST SHALL BE IN SUCH FORM AND CLASSIFIED IN SUCH MANNER AS
THE STATE COMPTROLLER SHALL DETERMINE AND SHALL INCLUDE:
(A) THE NAMES AND LAST KNOWN ADDRESSES OF ALL PERSONS APPEARING FROM
THE RECORDS IN THE COMPTROLLER'S OFFICE, AS SET FORTH IN THE REPORT
FILED BY THE HOLDER, TO BE ENTITLED TO RECEIVE SUCH ABANDONED PROPERTY
EXCEEDING TWENTY DOLLARS IN VALUE; AND
(B) SUCH OTHER INFORMATION AS THE STATE COMPTROLLER MAY DETERMINE.
3. SUCH LISTING SHALL INCLUDE A STATEMENT THAT: (A) INFORMATION ABOUT
THE PROPERTY AND ITS RETURN TO THE OWNER MAY BE AVAILABLE TO A PERSON
HAVING A LEGAL OR BENEFICIAL INTEREST IN THE PROPERTY, UPON REQUEST TO
THE COMPTROLLER; AND
(B) A PUBLIC RECORD IS MAINTAINED IN THE OFFICE OF THE STATE COMP-
TROLLER OF ALL ABANDONED PROPERTY IN ACCORDANCE WITH SECTION FOURTEEN
HUNDRED ONE OF THIS ARTICLE; AND THAT A CLAIM FOR ANY SUCH ABANDONED
PROPERTY SHOULD BE FILED WITH THE STATE COMPTROLLER AT HIS OR HER OFFICE
IN THE CITY OF ALBANY.
4. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, THE STATE
COMPTROLLER MAY OMIT FROM SUCH LIST THE NAME AND LAST KNOWN ADDRESS OF
ANY PERSON WHERE SPECIAL CIRCUMSTANCES MAKE IT DESIRABLE THAT SUCH
INFORMATION BE WITHHELD.
S 36. Subdivision 12 of section 211 of the tax law is REPEALED and a
new subdivision 12 is added to read as follows:
12. (A) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION EIGHT OF THIS
SECTION, THE COMMISSIONER AND THE COMPTROLLER SHALL ENTER INTO AN AGREE-
MENT PURSUANT TO WHICH THE COMMISSIONER SHALL, UPON REQUEST, PROVIDE THE
COMPTROLLER WITH A REPORT, NOT MORE FREQUENTLY THAN ANNUALLY, WITH
RESPECT TO CORPORATIONS OR OTHER ENTITIES WHICH HAVE FILED A BUSINESS
CORPORATION FRANCHISE TAX REPORT UNDER THIS ARTICLE FOR ANY TAXABLE YEAR
WITHIN TEN CALENDAR YEARS PRIOR TO THE REPORT TO THE COMPTROLLER MADE
PURSUANT TO THIS SUBDIVISION, PROVIDING THE FOLLOWING INFORMATION, TO
THE EXTENT THAT SUCH INFORMATION IS READILY AVAILABLE FROM THE DEPART-
MENT'S SYSTEM FOR IDENTIFYING TAXPAYER INDICATIVE DATA:
(1) BUSINESS NAME AND LEGAL NAME, IF DIFFERENT;
(2) BUSINESS ADDRESS AND MAILING ADDRESS;
(3) FEDERAL EMPLOYER IDENTIFICATION NUMBER;
(4) DATE ENTERED INTO BUSINESS.
(B) EACH REPORT TO THE COMPTROLLER MADE PURSUANT TO THIS SUBDIVISION
SHALL LIST EACH CORPORATION OR OTHER ENTITY WITH RESPECT TO WHICH SUCH
REPORT IS MADE ACCORDING TO THE TOTAL ASSETS REPORTED FOR THE END OF THE
YEAR ON ITS MOST RECENT AVAILABLE BUSINESS CORPORATION FRANCHISE TAX
REPORT, IN DESCENDING ORDER. SUCH REPORTS TO THE COMPTROLLER SHALL NOT
DISCLOSE THE ACTUAL AMOUNT OF TOTAL ASSETS REPORTED ON SUCH BUSINESS
CORPORATION FRANCHISE TAX REPORTS.
(C) THE INFORMATION PROVIDED TO THE COMPTROLLER PURSUANT TO THIS
SUBDIVISION SHALL BE USED ONLY FOR ADMINISTRATION AND ENFORCEMENT OF THE
ABANDONED PROPERTY LAW. THE COMPTROLLER MAY REDISCLOSE THE INFORMATION
PROVIDED UNDER THIS SUBDIVISION ONLY TO THE EXTENT NECESSARY FOR
ENFORCEMENT OR ADMINISTRATION OF THE ABANDONED PROPERTY LAW.
(D) THE REPORTS TO THE COMPTROLLER REQUIRED UNDER THIS SUBDIVISION
SHALL BE SUBMITTED BY ELECTRONIC MEANS OR IN SOME OTHER FORMAT WHICH IS
MUTUALLY ACCEPTABLE TO THE COMPTROLLER AND THE COMMISSIONER. THE WRITTEN
AGREEMENT WITH THE COMPTROLLER SHALL SET FORTH THE PROCEDURES FOR
PROVIDING THE INFORMATION THE COMMISSIONER IS ALLOWED TO DISCLOSE PURSU-
ANT TO THIS SUBDIVISION.
(E) NOTWITHSTANDING ARTICLE SIX OF THE PUBLIC OFFICERS LAW OR ANY
OTHER PROVISION OF LAW, THE REPORTS TO BE FURNISHED TO THE COMPTROLLER
S. 2811--B 14
PURSUANT TO THIS SUBDIVISION SHALL NOT BE OPEN TO THE PUBLIC FOR
INSPECTION.
S 37. This act shall take effect immediately.
PART B
Section 1. Section 12 of part N of chapter 61 of the laws of 2005,
amending the tax law relating to certain transactions and related infor-
mation and relating to the voluntary compliance initiative, subdivision
(iii) as amended by section 16 of subpart J of part V-1 of chapter 57 of
the laws of 2009, is amended to read as follows:
S 12. This act shall take effect immediately; provided, however, that
(i) section one of this act shall apply to all disclosure statements
described in paragraph 1 of subdivision (a) of section 25 of the tax
law, as added by section one of this act, that were required to be filed
with the internal revenue service at any time with respect to "listed
transactions" as described in such paragraph 1, and shall apply to all
disclosure statements described in paragraph 1 of subdivision (a) of
section 25 of the tax law, as added by section one of this act, that
were required to be filed with the internal revenue service with respect
to "reportable transactions" as described in such paragraph 1, other
than "listed transactions", in which a taxpayer participated during any
taxable year for which the statute of limitations for assessment has not
expired as of the date this act shall take effect, and shall apply to
returns or statements described in such paragraph 1 required to be filed
by taxpayers (or persons as described in such paragraph) with the
commissioner of taxation and finance on or after the sixtieth day after
this act shall have become a law;
(ii) sections two through four and seven through nine of this act
shall apply to any tax liability for which the statute of limitations on
assessment has not expired as of the date this act shall take effect;
and
(iii) provided, further, that the provisions of this act, except
section five of this act, shall expire and be deemed repealed July 1,
[2011. The commissioner of taxation and finance shall cause to be
prepared a written report on the tax shelter law. Notwithstanding any
other provision of law to the contrary, such report shall include, but
not be limited to, statistical information regarding the listed and
reportable transactions and avoidance transactions under this act. A
copy of such report shall be delivered to the governor, the temporary
president of the senate, and the speaker of the assembly no later than
April 1, 2007] 2015; provided, that, such expiration and repeal shall
not affect any requirement imposed pursuant to this act.
S 2. This act shall take effect immediately.
PART C
Intentionally omitted.
PART D
Section 1. The tax law is amended by adding a new section 1613-c to
read as follows:
S 1613-C. CREDITING OF LOTTERY PRIZES AGAINST LIABILITIES FOR TAXES
ADMINISTERED BY THE COMMISSIONER. (1) THE DIRECTOR, ON BEHALF OF THE
DIVISION, SHALL ENTER INTO A WRITTEN AGREEMENT WITH THE COMMISSIONER, ON
S. 2811--B 15
BEHALF OF THE DEPARTMENT, WITHIN SIXTY DAYS OF THE EFFECTIVE DATE OF
THIS SECTION, WHICH WILL SET FORTH PROCEDURES FOR CREDITING LOTTERY
PRIZES OF MORE THAN SIX HUNDRED DOLLARS AWARDED TO HOLDERS OF WINNING
LOTTERY TICKETS, WHETHER INDIVIDUALS, CORPORATIONS, ASSOCIATIONS, COMPA-
NIES, PARTNERSHIPS, LIMITED LIABILITY PARTNERSHIPS OR COMPANIES, PART-
NERS, MEMBERS, MANAGERS, ESTATES, TRUST FIDUCIARIES OR ENTITIES, AGAINST
PAST DUE TAX LIABILITIES OWED BY SUCH HOLDERS FOR ANY TAX ADMINISTERED
BY THE COMMISSIONER, ABOUT WHICH THE DIRECTOR HAS BEEN NOTIFIED BY THE
COMMISSIONER PURSUANT TO THE PROVISIONS OF SUCH AGREEMENT.
(2) SUCH AGREEMENT SHALL APPLY TO ANY PAST DUE TAX LIABILITY WHICH
ARISES FROM (I) AN ENFORCEABLE WARRANT OR JUDGMENT, (II) AN ENFORCEABLE
DETERMINATION OF AN ADMINISTRATIVE BODY WHICH IS NO LONGER SUBJECT TO
ADMINISTRATIVE OR JUDICIAL REVIEW, OR (III) AN ASSESSMENT OR DETERMI-
NATION (INCLUDING SELF-ASSESSMENT OR SELF-ASSESSED DETERMINATION) WHICH
HAS BECOME FINAL OR FINALLY AND IRREVOCABLY FIXED AND NO LONGER SUBJECT
TO ADMINISTRATIVE OR JUDICIAL REVIEW.
(3) SUCH AGREEMENT SHALL INCLUDE:
(A) THE PROCEDURE UNDER WHICH THE DEPARTMENT WILL NOTIFY THE DIVISION
OF TAX LIABILITIES, INCLUDING WHEN THE DIVISION WILL BE NOTIFIED AND THE
CONTENT OF THAT NOTIFICATION;
(B) THE PROCEDURE FOR REIMBURSEMENT OF THE DIVISION BY THE DEPARTMENT
FOR THE COST OF CARRYING OUT THE PROCEDURES AUTHORIZED BY THIS SECTION;
AND
(C) ANY OTHER MATTERS THE PARTIES TO THE AGREEMENT DEEM NECESSARY TO
CARRY OUT THE PROVISIONS OF THIS SECTION.
(4) PRIOR TO AWARDING LOTTERY PRIZES OF MORE THAN SIX HUNDRED DOLLARS,
THE DIVISION SHALL REVIEW THE MOST RECENT NOTICE OF TAX LIABILITIES
PROVIDED BY THE COMMISSIONER. FOR HOLDERS OF WINNING LOTTERY TICKETS
IDENTIFIED ON THAT NOTICE, THE DIVISION SHALL CREDIT TO THE DEPARTMENT
THE AMOUNT OF EACH HOLDER'S PRIZE NECESSARY TO SATISFY THAT HOLDER'S TAX
LIABILITY, AND THE REMAINDER OF THE PRIZE SHALL BE AWARDED TO THE HOLDER
OF THE WINNING TICKET.
(5) IF THE DIVISION HAS ALSO RECEIVED A NOTICE OF LIABILITY OF A PRIZE
WINNER FOR PAST-DUE SUPPORT OR PUBLIC ASSISTANCE BENEFITS PURSUANT TO
SECTION SIXTEEN HUNDRED THIRTEEN-A OR SIXTEEN HUNDRED THIRTEEN-B OF THIS
ARTICLE, THEN THE AMOUNT OF ANY PRIZE SHALL BE FIRST CREDITED OR APPLIED
TO THE INCOME TAX REQUIRED TO BE WITHHELD BY LAW, THEN AS REQUIRED BY
SECTION SIXTEEN HUNDRED THIRTEEN-A OR SIXTEEN HUNDRED THIRTEEN-B OF THIS
ARTICLE, THEN TO THE PAST DUE TAX LIABILITY AS REQUIRED BY THIS SECTION.
THE BALANCE WILL THEN BE PAID TO THE HOLDER OF THE WINNING LOTTERY TICK-
ET.
(6) THE DIVISION SHALL CERTIFY TO THE COMPTROLLER THE TOTAL AMOUNT OF
THE LOTTERY PRIZE TO BE CREDITED AGAINST PAST DUE TAX LIABILITIES AND
THE REMAINDER OF THE PRIZE TO BE AWARDED TO THE HOLDER OF THE WINNING
LOTTERY TICKET.
(7) THE DIVISION SHALL NOTIFY THE HOLDER OF THE WINNING LOTTERY TICK-
ET, IN WRITING, OF THE TOTAL AMOUNT OF THE LOTTERY PRIZE CREDITED
AGAINST PAST DUE TAX LIABILITIES AND THE REMAINDER OF THE PRIZE TO BE
AWARDED TO THE HOLDER. THAT NOTICE MUST ALSO ADVISE THE HOLDER THAT THE
DEPARTMENT WILL PROVIDE SEPARATE NOTICE, IN WRITING, OF THE PROCEDURE
FOR AND TIME FRAME BY WHICH THE HOLDER MAY CONTEST SUCH CREDITING.
(8) THE DEPARTMENT SHALL NOTIFY THE HOLDER OF THE WINNING LOTTERY
TICKET, IN WRITING, OF THE AMOUNT OF A PRIZE TO BE CREDITED AGAINST PAST
DUE TAX LIABILITIES AND THE PROCEDURE FOR AND TIME FRAME BY WHICH THE
HOLDER MAY CONTEST THE CREDITING OF THE PRIZE.
S. 2811--B 16
(9) FROM THE TIME THE DIVISION IS NOTIFIED BY THE DEPARTMENT OF A PAST
DUE TAX LIABILITY OF A HOLDER OF A WINNING LOTTERY TICKET, THE DIVISION
SHALL BE RELIEVED FROM ALL LIABILITY TO THE HOLDER, AND THE HOLDER'S
HEIRS, REPRESENTATIVES, ESTATE, SUCCESSORS OR ASSIGNS FOR THE AMOUNT OF
A PRIZE CERTIFIED TO THE COMPTROLLER TO BE CREDITED AGAINST PAST DUE TAX
LIABILITIES AND THE HOLDER AND THE HOLDER'S HEIRS, REPRESENTATIVES,
ESTATE, SUCCESSOR OR ASSIGNS SHALL HAVE NO RIGHT TO COMMENCE A COURT
ACTION OR PROCEEDING OR TO ANY OTHER LEGAL RECOURSE AGAINST THE DIVISION
TO RECOVER ANY AMOUNT CERTIFIED TO THE COMPTROLLER TO BE CREDITED
AGAINST PAST DUE TAX LIABILITIES. PROVIDED HOWEVER, NOTHING HEREIN SHALL
BE CONSTRUED TO PROHIBIT A HOLDER OF A WINNING LOTTERY TICKET AND THE
HOLDER'S HEIRS, REPRESENTATIVES, ESTATE, SUCCESSORS OR ASSIGNS FROM
PROCEEDING AGAINST THE DEPARTMENT TO RECOVER THE PART OF THE PRIZE
CERTIFIED TO THE COMPTROLLER AND CREDITED TO PAST DUE TAX LIABILITIES
WHICH IS GREATER THAN THE AMOUNT OF PAST DUE TAX LIABILITIES OWED BY
THAT HOLDER ON THE DATE OF CERTIFICATION.
(10) NOTWITHSTANDING ANY LAW TO THE CONTRARY, THE DEPARTMENT AND ITS
OFFICERS AND EMPLOYEES MAY FURNISH TO THE DIVISION ANY ABSTRACT OF ANY
TAX RETURN OR REPORT, OR ANY INFORMATION CONCERNING AN ITEM CONTAINED IN
ANY SUCH RETURN OR REPORT OR DISCLOSED BY ANY INVESTIGATION OF TAX
LIABILITY UNDER THIS CHAPTER, BUT ONLY FOR THE PURPOSE OF CREDITING
LOTTERY PRIZES AGAINST PAST DUE TAX LIABILITIES DESCRIBED IN SUBDIVISION
TWO OF THIS SECTION.
S 2. This act shall take effect on the first of August next succeeding
the date on which it shall have become a law, provided that the depart-
ment of taxation and finance and the division of the lottery may take
steps to effectuate the written agreement between the director of the
division of the lottery and the commissioner of taxation and finance
prior to such effective date.
PART E
Section 1. Paragraph c of subdivision 2 of section 124 of part A of
chapter 56 of the laws of 1998, amending the tax law and other laws
relating to extending the dates of application of the investment tax
credit under articles 9-A, 22 and 32 of the tax law, as amended by
section 1 of part YY-1 of chapter 57 of the laws of 2008, is amended to
read as follows:
c. Sections fifteen through twenty-seven of this act shall apply to
property placed in service on or after October 1, 1998 [and before Octo-
ber 1, 2011].
S 2. Section 2 of part L of chapter 63 of the laws of 2000, amending
the tax law and other laws relating to extending the dates of applica-
tion of the investment tax credit under article 33 of the tax law, as
amended by section 2 of part YY-1 of chapter 57 of the laws of 2008, is
amended to read as follows:
S 2. This act shall take effect immediately and shall apply to proper-
ty placed in service on or after January 1, 2002 [and before October 1,
2011].
S 3. This act shall take effect immediately.
PART F
Section 1. Subdivision 4 of section 22 of the public housing law, as
amended by section 1 of part P of chapter 57 of the laws of 2010, is
amended to read as follows:
S. 2811--B 17
4. Statewide limitation. The aggregate dollar amount of credit which
the commissioner may allocate to eligible low-income buildings under
this article shall be [twenty-eight] THIRTY-TWO million dollars. The
limitation provided by this subdivision applies only to allocation of
the aggregate dollar amount of credit by the commissioner, and does not
apply to allowance to a taxpayer of the credit with respect to an eligi-
ble low-income building for each year of the credit period.
S 2. This act shall take effect immediately.
PART G
Intentionally omitted.
PART H
Intentionally omitted.
PART I
Section 1. Paragraphs 4, 16 and 39 of subsection (a) of section 107 of
the insurance law are amended to read as follows:
(4) "Affiliate" means a corporation, a majority of whose shares is
owned or controlled by shareholders, directors or officers of another
corporation, who own or control a majority of the shares of the other
corporation EXCEPT FOR PURPOSES OF INSURANCE PROCURED BY EXCESS LINE
BROKERS LICENSED PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED FIVE OF
THIS CHAPTER.
(16) "Control". Except for the purposes of article fifteen of this
chapter AND INSURANCE PROCURED BY EXCESS LINE BROKERS LICENSED PURSUANT
TO SECTION TWO THOUSAND ONE HUNDRED FIVE OF THIS CHAPTER, "control",
including the terms "controlling", "controlled by" and "under common
control with", means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of an
institution, whether through the ownership of voting securities, by
contract or otherwise.
(39) "State" means any state of the United States, the commonwealth of
Puerto Rico [and], the District of Columbia, GUAM, THE NORTHERN MARIANA
ISLANDS, THE VIRGIN ISLANDS AND AMERICAN SAMOA.
S 2. Subsection (l) of section 2101 of the insurance law, as added by
chapter 687 of the laws of 2003, is amended and five new subsections
(w), (x), (y), (z) and (aa) are added to read as follows:
(l) In this article, WITH RESPECT TO AN INSURANCE PRODUCER, "[home]
RESIDENT state" means the District of Columbia or any state or territory
of the United States in which an insurance producer maintains his, her
or its principal place of residence or principal place of business and
is licensed to act as an insurance producer.
(W) IN THIS ARTICLE, FOR PURPOSES OF INSURANCE PROCURED BY EXCESS LINE
BROKERS LICENSED PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED FIVE OF
THIS CHAPTER, THE TERM "AFFILIATE" MEANS, WITH RESPECT TO AN INSURED,
ANY ENTITY THAT CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL
WITH, THE INSURED. THE TERM "AFFILIATED GROUP" MEANS ANY GROUP OF ENTI-
TIES THAT ARE ALL AFFILIATED.
(X) IN THIS ARTICLE, FOR PURPOSES OF INSURANCE PROCURED BY EXCESS LINE
BROKERS LICENSED PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED FIVE OF
THIS CHAPTER, AN ENTITY HAS "CONTROL" OVER ANOTHER ENTITY IF:
S. 2811--B 18
(1) THE ENTITY DIRECTLY OR INDIRECTLY OR ACTING THROUGH ONE OR MORE
OTHER PERSONS OWNS, CONTROLS, OR HAS THE POWER TO VOTE TWENTY-FIVE
PERCENT OR MORE OF ANY CLASS OF VOTING SECURITIES OF THE OTHER ENTITY;
OR
(2) THE ENTITY CONTROLS IN ANY MANNER THE ELECTION OF A MAJORITY OF
THE DIRECTORS OR TRUSTEES OF THE OTHER ENTITY.
(Y)(1) IN THIS ARTICLE, FOR PURPOSES OF INSURANCE PROCURED BY EXCESS
LINE BROKERS LICENSED PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED FIVE
OF THIS CHAPTER, THE TERM "HOME STATE" WITH RESPECT TO AN INSURED MEANS:
(A) THE STATE IN WHICH AN INSURED MAINTAINS ITS PRINCIPAL PLACE OF
BUSINESS OR, IN THE CASE OF AN INDIVIDUAL, THE INDIVIDUAL'S PRINCIPAL
RESIDENCE; OR
(B) IF ONE HUNDRED PERCENT OF THE INSURED RISK IS LOCATED OUT OF THE
STATE REFERRED TO IN SUBPARAGRAPH (A) OF THIS PARAGRAPH, THE STATE TO
WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT
INSURANCE CONTRACT IS ALLOCATED.
(2) IF MORE THAN ONE INSURED FROM AN AFFILIATED GROUP ARE INSURED BY A
SINGLE INSURANCE CONTRACT PROCURED BY AN EXCESS LINE BROKER, THE TERM
"HOME STATE" MEANS THE HOME STATE, AS DETERMINED PURSUANT TO PARAGRAPH
(1) OF THIS SUBSECTION, OF THE MEMBER OF THE AFFILIATED GROUP THAT HAS
THE LARGEST PERCENTAGE OF PREMIUM ATTRIBUTED TO IT UNDER SUCH INSURANCE
CONTRACT.
(Z) IN THIS ARTICLE, FOR PURPOSES OF INSURANCE PROCURED BY EXCESS LINE
BROKERS LICENSED PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED FIVE OF
THIS CHAPTER, THE TERM "EXEMPT COMMERCIAL PURCHASER" MEANS ANY PERSON
PURCHASING COMMERCIAL INSURANCE THAT, AT THE TIME OF PLACEMENT, MEETS
THE FOLLOWING REQUIREMENTS:
(1) THE PERSON EMPLOYS OR RETAINS A QUALIFIED RISK MANAGER TO NEGOTI-
ATE INSURANCE COVERAGE;
(2) THE PERSON HAS PAID AGGREGATE NATIONWIDE COMMERCIAL PROPERTY AND
CASUALTY INSURANCE PREMIUMS IN EXCESS OF ONE HUNDRED THOUSAND DOLLARS IN
THE IMMEDIATELY PRECEDING TWELVE MONTHS; AND
(3) THE PERSON MEETS AT LEAST ONE OF THE FOLLOWING CRITERIA:
(A) THE PERSON POSSESSES A NET WORTH IN EXCESS OF TWENTY MILLION
DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO PARAGRAPH (2) OF THIS
SUBSECTION;
(B) THE PERSON GENERATES ANNUAL REVENUES IN EXCESS OF FIFTY MILLION
DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO PARAGRAPH (2) OF THIS
SUBSECTION;
(C) THE PERSON EMPLOYS MORE THAN FIVE HUNDRED FULL-TIME OR FULL-TIME
EQUIVALENT EMPLOYEES PER INDIVIDUAL INSURED OR IS A MEMBER OF AN AFFIL-
IATED GROUP EMPLOYING MORE THAN ONE THOUSAND EMPLOYEES IN THE AGGREGATE;
(D) THE PERSON IS A NOT-FOR-PROFIT ORGANIZATION OR PUBLIC ENTITY
GENERATING ANNUAL BUDGETED EXPENDITURES OF AT LEAST THIRTY MILLION
DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO PARAGRAPH (2) OF THIS
SUBSECTION;
(E) THE PERSON IS A MUNICIPALITY WITH A POPULATION IN EXCESS OF FIFTY
THOUSAND PERSONS.
(4) EFFECTIVE ON THE FIFTH JANUARY FIRST OCCURRING AFTER THE DATE OF
THE ENACTMENT OF THIS ARTICLE AND EACH FIFTH JANUARY FIRST OCCURRING
THEREAFTER, THE AMOUNTS IN SUBPARAGRAPHS (A), (B), AND (D) OF PARAGRAPH
(3) OF THIS SUBSECTION SHALL BE ADJUSTED TO REFLECT THE PERCENTAGE
CHANGE FOR SUCH FIVE-YEAR PERIOD IN THE CONSUMER PRICE INDEX FOR ALL
URBAN CONSUMERS PUBLISHED BY THE BUREAU OF LABOR STATISTICS OF THE
DEPARTMENT OF LABOR.
S. 2811--B 19
(AA) FOR PURPOSES OF INSURANCE PROCURED BY EXCESS LINE BROKERS
LICENSED PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED FIVE OF THIS CHAP-
TER, THE TERM "QUALIFIED RISK MANAGER" MEANS, WITH RESPECT TO A POLICY-
HOLDER OF COMMERCIAL INSURANCE, A PERSON WHO MEETS ALL OF THE FOLLOWING
REQUIREMENTS:
(1) THE PERSON IS AN EMPLOYEE OF, OR THIRD-PARTY CONSULTANT RETAINED
BY, THE COMMERCIAL POLICYHOLDER;
(2) THE PERSON PROVIDES SKILLED SERVICES IN LOSS PREVENTION, LOSS
REDUCTION, OR RISK AND INSURANCE COVERAGE ANALYSIS, AND PURCHASE OF
INSURANCE;
(3) THE PERSON:
(A) HAS, AT A MINIMUM, A BACHELOR'S DEGREE FROM AN ACCREDITED COLLEGE
OR UNIVERSITY IN RISK MANAGEMENT, BUSINESS ADMINISTRATION, FINANCE,
ECONOMICS, OR ANY OTHER FIELD DETERMINED BY THE SUPERINTENDENT OR OTHER
STATE REGULATORY OFFICIAL OR ENTITY TO DEMONSTRATE MINIMUM COMPETENCE IN
RISK MANAGEMENT; AND
(B) HAS THREE YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS ADMINIS-
TRATION, LOSS PREVENTION, RISK AND INSURANCE ANALYSIS, OR PURCHASING
COMMERCIAL LINES OF INSURANCE; OR
(C) HAS A DESIGNATION AS A CHARTERED PROPERTY AND CASUALTY UNDERWRITER
("CPCU") ISSUED BY THE AMERICAN INSTITUTE FOR CPCU/INSURANCE INSTITUTE
OF AMERICA;
(D) HAS A DESIGNATION AS AN ASSOCIATE IN RISK MANAGEMENT ("ARM")
ISSUED BY THE AMERICAN INSTITUTE FOR CPCU/INSURANCE INSTITUTE OF AMERI-
CA;
(E) HAS A DESIGNATION AS CERTIFIED RISK MANAGER ("CRM") ISSUED BY THE
NATIONAL ALLIANCE FOR INSURANCE EDUCATION & RESEARCH;
(F) HAS A DESIGNATION AS A RIMS FELLOW ("RF") ISSUED BY THE GLOBAL
RISK MANAGEMENT INSTITUTE; OR
(G) HAS ANY OTHER DESIGNATION, CERTIFICATION, OR LICENSE DETERMINED BY
THE SUPERINTENDENT OR OTHER STATE INSURANCE REGULATORY OFFICIAL OR ENTI-
TY TO DEMONSTRATE MINIMUM COMPETENCY IN RISK MANAGEMENT;
(4) HAS AT LEAST SEVEN YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS
ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE COVERAGE ANALYSIS,
OR PURCHASING COMMERCIAL LINES OF INSURANCE; AND
(A) HAS ANY ONE OF THE DESIGNATIONS SPECIFIED IN SUBPARAGRAPHS (A)
THROUGH (G) OF PARAGRAPH (3) OF SUBSECTION (AA) OF THIS SECTION;
(B) HAS AT LEAST TEN YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS
ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE COVERAGE ANALYSIS,
OR PURCHASING COMMERCIAL LINES OF INSURANCE; OR
(C) HAS A GRADUATE DEGREE FROM AN ACCREDITED COLLEGE OR UNIVERSITY IN
RISK MANAGEMENT, BUSINESS ADMINISTRATION, FINANCE, ECONOMICS, OR ANY
OTHER FIELD DETERMINED BY THE SUPERINTENDENT OR OTHER STATE REGULATORY
OFFICIAL OR ENTITY TO DEMONSTRATE MINIMUM COMPETENCE IN RISK MANAGEMENT.
S 3. Paragraph 11 of subsection (g) of section 2103 of the insurance
law, as added by chapter 687 of the laws of 2003, is amended to read as
follows:
(11) of any individual who applies for an insurance agent license in
this state who was previously licensed for the same line or lines of
authority in another state, provided, however, that the applicant's
[home] RESIDENT state grants non-resident licenses to residents of this
state on the same basis. Such individual shall also not be required to
complete any prelicensing education. This exemption is only available if
the person is currently licensed in that state or if the application is
received within ninety days of the date of cancellation of the appli-
cant's previous license and if the prior state issues a certification
S. 2811--B 20
that, at the time of cancellation, the applicant was in good standing in
that state or the state's producer database records, maintained by the
National Association of Insurance Commissioners, its affiliates or
subsidiaries, indicate that the producer is or was licensed in good
standing for the line of authority requested. An individual or entity
licensed in another state who moves to this state shall make an applica-
tion within ninety days of establishing legal residence to become a
resident licensee. No prelicensing education or examination shall be
required of that person to obtain any line of authority previously held
in the prior state except where the superintendent determines otherwise
by regulation.
S 4. Subparagraph (G) of paragraph 3 of subsection (e) of section 2104
of the insurance law, as amended by chapter 687 of the laws of 2003, is
amended to read as follows:
(G) was previously licensed for the same line or lines of authority in
another state, provided, however, that the applicant's [home] RESIDENT
state grants non-resident licenses to residents of this state on the
same basis. Such individual shall also not be required to complete any
prelicensing education. This exemption is only available if the person
is currently licensed in that state or if the application is received
within ninety days of the date of cancellation of the applicant's previ-
ous license and if the prior state issues a certification that, at the
time of cancellation, the applicant was in good standing in that state
or the state's producer database records, maintained by the National
Association of Insurance Commissioners, its affiliates or subsidiaries,
indicate that the producer is or was licensed in good standing for the
line of authority requested. An individual or entity licensed in another
state who moves to this state shall make an application within ninety
days of establishing legal residence to become a resident licensee. No
prelicensing education or examination shall be required of that person
to obtain any line of authority previously held in the prior state
except where the superintendent determines otherwise by regulation.
S 5. Subsections (a) and (b) of section 2105 of the insurance law,
subsection (a) as amended by chapter 626 of the laws of 2006 and
subsection (b) as amended by chapter 687 of the laws of 2003, are
amended and a new subsection (i) is added to read as follows:
(a) The superintendent may issue an excess line broker's license to
any person, firm, association or corporation who or which is domiciled
or maintains an office in this state and is licensed as an insurance
broker under section two thousand one hundred four of this article, or
who or which is licensed as an excess line broker in the licensee's
[home] RESIDENT state, provided, however, that the applicant's [home]
RESIDENT state grants non-resident licenses to residents of this state
on the same basis, except that reciprocity is not required in regard to
the placement of liability insurance on behalf of a purchasing group or
any of its members; authorizing such person, firm, association or corpo-
ration to procure, subject to the restrictions herein provided, policies
of insurance from insurers which are not authorized to transact business
in this state of the kind or kinds of insurance specified in paragraphs
four through fourteen, sixteen, seventeen, nineteen, twenty, twenty-two,
twenty-seven, twenty-eight and thirty-one of subsection (a) of section
one thousand one hundred thirteen of this chapter and in subsection (h)
of this section, provided, however, that the provisions of this section
and section two thousand one hundred eighteen of this article shall not
apply to ocean marine insurance and other contracts of insurance enumer-
ated in subsections (b) and (c) of section two thousand one hundred
S. 2811--B 21
seventeen of this article. Such license may be suspended or revoked by
the superintendent whenever in his OR HER judgment such suspension or
revocation will best promote the interests of the people of this state.
NOTWITHSTANDING ANYTHING IN THIS CHAPTER TO THE CONTRARY, NO PERSON,
FIRM, ASSOCIATION OR CORPORATION IS REQUIRED TO OBTAIN AN EXCESS LINE
BROKER'S LICENSE TO PROCURE INSURANCE FOR AN INSURED WHOSE HOME STATE IS
A STATE OTHER THAN NEW YORK.
(b) Before the superintendent issues any such license or renewal,
there shall be filed in the superintendent's office an application by
the person, firm, association or corporation desiring such license, in
such form or forms, and supplements thereto, and containing information
the superintendent prescribes. For each business entity, the sub-licen-
see or sub-licensees named in the application shall be designated
responsible for the business entity's compliance with the insurance
laws, rules and regulations of this state. A person or entity licensed
as an excess line broker in his, her or its [home] RESIDENT state may
receive a non-resident excess line broker license pursuant to subsection
(a) of this section with the submission of the application.
(I) ON AND AFTER JULY 21, 2012, NO FEES RELATING TO THE LICENSING OF
AN INDIVIDUAL OR ENTITY AS AN EXCESS LINE BROKER ARE PERMITTED TO BE
CHARGED UNLESS THE STATE HAS IN EFFECT AT SUCH TIME LAWS OR REGULATIONS
THAT PROVIDE FOR PARTICIPATION BY THE STATE IN THE NATIONAL INSURANCE
PRODUCER DATABASE OF THE NATIONAL ASSOCIATION OF INSURANCE COMMISSION-
ERS, OR ANY OTHER EQUIVALENT UNIFORM NATIONAL DATABASE, FOR THE LICEN-
SURE OF EXCESS LINE BROKERS AND THE RENEWAL OF SUCH LICENSES.
S 6. Subparagraph (B) of paragraph 1 of subsection (f) of section 2106
of the insurance law, as amended by chapter 687 of the laws of 2003, is
amended to read as follows:
(B) A "non-resident reinsurance intermediary" means a person who is a
non-resident of this state and who is licensed to act as a reinsurance
intermediary in their [home] RESIDENT state.
S 7. Paragraphs 2 and 4 of subsection (f) of section 2110 of the
insurance law, as amended by chapter 687 of the laws of 2003, are
amended to read as follows:
(2) A non-resident insurance producer's license or sub-license may be
summarily revoked in the event that the licensee's license as an agent,
broker, adjuster or in any other capacity under the insurance law of the
licensee's [home] RESIDENT state of domicile or such license of the firm
or association of which the licensee is a member, employee or sub-licen-
see, or such license of the corporation of which the licensee is an
officer, director, employee or sub-licensee has been suspended or
revoked or renewal thereof denied in the licensee's [home] RESIDENT
state of domicile by a procedure affording to the licensee or it a stat-
utory right to a hearing, for action or conduct which, if it had been
established upon a hearing before the superintendent, would have consti-
tuted grounds for revocation of a license under subsection (a) of this
section.
(4) Upon submission to the superintendent of satisfactory proof that a
suspension or revocation of a license issued by a [home] RESIDENT state
to act as an insurance agent, insurance broker, adjuster or in another
licensed capacity under the insurance law of such other state or a
denial of renewal thereof has been duly withdrawn, set aside, reversed
or voided, the superintendent shall thereupon reinstate and restore any
and all licenses revoked in accordance with the provisions of this
subsection.
S. 2811--B 22
S 8. Subsection (a) of section 2118 of the insurance law, as amended
by chapter 220 of the laws of 1986, and paragraph 2 as amended by chap-
ter 663 of the laws of 1993, is amended to read as follows:
(a) (1) NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER TO THE CONTRARY,
THE PLACEMENT OF EXCESS LINE INSURANCE SHALL BE EXCLUSIVELY SUBJECT TO
THE LAWS OF THE INSURED'S HOME STATE AS DEFINED IN SUBSECTION (Y) OF
SECTION TWO THOUSAND ONE HUNDRED ONE OF THIS ARTICLE. ANY LAW, REGU-
LATION, PROVISION OR ACTION OF ANY STATE THAT PURPORTS TO APPLY TO
EXCESS LINE INSURANCE SOLD TO, SOLICITED BY, OR NEGOTIATED WITH AN
INSURED WHOSE HOME STATE IS ANOTHER STATE SHALL BE PREEMPTED WITH
RESPECT TO SUCH APPLICATION.
(2) Every licensee licensed pursuant to section two thousand one
hundred five of this article shall be required to use due care in
selecting the unauthorized insurer from whom policies are procured under
his OR HER license.
[(2) (A) No policy of insurance may be procured by a licensee from any
foreign or alien insurer which is controlled, by a foreign government or
by a political subdivision thereof, or which is an agency of any such
government or subdivision if the superintendent determines that: (i)
such insurer receives a subsidy or other competitive advantage, as a
result of such control or status, that would enable it to compete
unfairly with similarly situated insurers which are not so controlled or
constituted; (ii) such insurer is entitled to claim sovereign immunity
as a result of such control and the insurer has not waived the sovereign
immunity; or (iii) the use of such insurer would be detrimental to the
interests of the people of this state.
(B) No licensee shall be deemed to be in noncompliance with this
subsection unless: (i) the superintendent has made a prior determination
that the foreign or alien insurer from which the licensee procured a
policy of insurance should not be used as an excess line insurer in this
state in accordance with the provisions of this subsection; or (ii) the
licensee knew or should have known that such insurer should not be used
as an excess line insurer in accordance with the provisions of this
subsection. The superintendent may promulgate regulations to provide
guidance to the licensee.
(C)] (3)(A) THE SUPERINTENDENT MAY NOT PROHIBIT AN UNAUTHORIZED ALIEN
INSURER FROM INSURING ANY RISK OF THE KINDS OF INSURANCE SET FORTH IN
SUBSECTION (A) OF SECTION TWO THOUSAND ONE HUNDRED FIVE OF THIS CHAPTER
PLACED BY EXCESS LINE BROKERS LICENSED UNDER THIS ARTICLE IF SUCH INSUR-
ER IS LISTED ON THE MOST CURRENT QUARTERLY LISTING OF ALIEN INSURERS
MAINTAINED BY THE INTERNATIONAL INSURERS DEPARTMENT OF THE NATIONAL
ASSOCIATION OF INSURANCE COMMISSIONERS.
(B) AN UNAUTHORIZED FOREIGN INSURER IS ELIGIBLE TO INSURE RISKS PLACED
BY EXCESS LINE BROKERS LICENSED UNDER THIS ARTICLE PROVIDED SUCH INSURER
FURNISHES SATISFACTORY PROOF AS DETERMINED BY THE SUPERINTENDENT IN A
REGULATION THAT IT IS PERMITTED TO WRITE THE TYPE OF INSURANCE REQUESTED
IN ITS DOMICILIARY JURISDICTION, AND HAS CAPITAL AND SURPLUS OR ITS
EQUIVALENT UNDER THE LAWS OF ITS DOMICILIARY JURISDICTION EQUAL TO THE
GREATER OF FIFTEEN MILLION DOLLARS OR AN AMOUNT SET FORTH AND DETERMINED
BY THE SUPERINTENDENT IN A REGULATION.
(4) Every such insurer shall otherwise satisfy all applicable require-
ments for placement by an excess line broker.
S 9. Paragraph 3 of subsection (b) of section 2118 of the insurance
law is amended by adding a new subparagraph (F) to read as follows:
(F) AN EXCESS LINE BROKER SEEKING TO PROCURE OR PLACE INSURANCE WITH
AN UNAUTHORIZED INSURER FOR AN EXEMPT COMMERCIAL PURCHASER SHALL NOT BE
S. 2811--B 23
REQUIRED TO SATISFY ANY REQUIREMENT TO MAKE A DILIGENT EFFORT TO DETER-
MINE WHETHER THE FULL AMOUNT OR TYPE OF INSURANCE SOUGHT BY SUCH EXEMPT
COMMERCIAL PURCHASER CAN BE OBTAINED FROM AUTHORIZED INSURERS IF:
(I) THE BROKER PROCURING OR PLACING THE EXCESS LINE INSURANCE HAS
DISCLOSED TO THE EXEMPT COMMERCIAL PURCHASER THAT SUCH INSURANCE MAY OR
MAY NOT BE AVAILABLE FROM AUTHORIZED INSURERS THAT MAY PROVIDE GREATER
PROTECTION WITH MORE REGULATORY OVERSIGHT; AND
(II) THE EXEMPT COMMERCIAL PURCHASER HAS SUBSEQUENTLY REQUESTED, IN
WRITING, THE BROKER TO PROCURE OR PLACE SUCH INSURANCE FROM AN UNAUTHOR-
IZED INSURER.
S 10. Paragraphs 5, 8 and 9 of subsection (b) of section 2118 of the
insurance law, paragraph 5 as amended by chapter 630 of the laws of 1988
and paragraphs 8 and 9 as added by chapter 687 of the laws of 2003, are
amended to read as follows:
(5) Before placing business with an unauthorized insurer, each licen-
see shall ascertain and verify the fact that such insurer is authorized
in its domiciliary jurisdiction to write the insurance policy proposed
to be procured from it by the licensee. No unauthorized insurer shall be
deemed unacceptable for placement of business solely on the ground that
it has been so authorized to write such business in its domiciliary
jurisdiction for a period of less than three years preceding the place-
ment of such risk by the licensee. [In determining whether business may
be placed with such unauthorized insurer, the superintendent shall
consider such factors as: the interests of the public and policyholders,
the length of time such insurer has been authorized in its domiciliary
jurisdiction and elsewhere, its financial condition, and unavailability
of particular coverages from authorized insurers.] IF AN UNAUTHORIZED
INSURER DOES NOT MEET THE ELIGIBILITY REQUIREMENTS OF PARAGRAPH (2) OF
SUBSECTION (A) OF SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THIS
CHAPTER, AN EXCESS LINE BROKER MAY NONETHELESS PLACE A RISK WITH SUCH AN
INSURER UPON AN AFFIRMATIVE FINDING OF ACCEPTABILITY BY THE SUPERINTEN-
DENT. THE FINDING SHALL BE BASED UPON SUCH FACTORS AS QUALITY OF MANAGE-
MENT, CAPITAL AND SURPLUS OF ANY PARENT COMPANY, COMPANY UNDERWRITING
PROFIT AND INVESTMENT INCOME TRENDS, MARKET AVAILABILITY AND COMPANY
RECORD AND REPUTATION WITHIN THE INDUSTRY. IN NO EVENT SHALL THE SUPER-
INTENDENT MAKE AN AFFIRMATIVE FINDING OF ACCEPTABILITY WHEN THE UNAU-
THORIZED INSURER'S CAPITAL AND SURPLUS IS LESS THAN FOUR MILLION FIVE
HUNDRED THOUSAND DOLLARS.
(8) For purposes of this article, unless exempt under the provisions
of section two thousand one hundred seventeen of this article, a policy
of insurance obtained from an insurer not authorized to transact busi-
ness in this state must be procured pursuant to an excess line license
when [the entire property or risk exposure insured or any part thereof,
is located in this state and:] THE HOME STATE OF THE INSURED IS NEW
YORK.
[(A) the insured negotiated to acquire the coverage from within this
state; or
(B) the policy was delivered to the insured in this state.]
(9) Nothing in this article shall prohibit an excess line licensee
from placing risks under the excess or surplus line law of another state
provided that the excess line licensee[:
(A)] is licensed under the [applicable state law] LAWS OF THE HOME
STATE OF THE INSURED as an excess or surplus line broker or places such
risk through a licensed excess or surplus line broker in such state[;
and
S. 2811--B 24
(B) either no portion of the property or risk exposure is in this
state, or the insured has property or risk exposure both in this state
and in another state where the insured maintains a bona fide office from
which it negotiated to acquire the coverage and to which the policy is
delivered].
S 10-a. Paragraph 1 of subsection (d) of section 2118 of the insurance
law, as amended by chapter 190 of the laws of 1990, is amended to read
as follows:
(1) Every person, firm, association or corporation licensed pursuant
to the provisions of section two thousand one hundred five of this arti-
cle shall pay A PREMIUM TAX to the superintendent IN a sum equal to
three and six-tenths percent of the gross premiums charged the insureds
by the insurers for insurance procured by such licensee pursuant to such
license, less the amount of such premiums returned to such insureds.
Where the insurance covers property or risks located or resident both in
and out of this state, AND THE COVERAGE INCEPTS ON OR PRIOR TO JULY 20,
2011, the sum payable shall be computed on that portion of the gross
premiums allocated to this state pursuant to subsection (b) of section
nine thousand one hundred two of this chapter less the amount of gross
premiums allocated to this state and returned to the insured; PROVIDED,
HOWEVER, THAT FOR SUCH POLICIES IN WHICH COVERAGE INCEPTS ON OR AFTER
JULY 21, 2011, THIS TAX SHALL ONLY APPLY TO EXCESS LINE TRANSACTIONS IN
WHICH THE INSURED'S HOME STATE IS NEW YORK AS THAT TERM IS DEFINED IN
SUBSECTION (Y) OF SECTION TWO THOUSAND ONE HUNDRED ONE OF THIS ARTICLE,
AND SUCH TAX SHALL NOT BE ALLOCATED PURSUANT TO SUBSECTION (B) OF
SECTION NINE THOUSAND ONE HUNDRED TWO OF THIS CHAPTER. FOR PURPOSES OF
THIS SECTION, THE TERM "PREMIUM TAX" MEANS, WITH RESPECT TO EXCESS LINE
INSURANCE, ANY TAX, FEE, ASSESSMENT OR ANY OTHER CHARGE IMPOSED BY THE
STATE DIRECTLY OR INDIRECTLY BASED ON ANY PAYMENT MADE AS CONSIDERATION
FOR SUCH POLICY OF INSURANCE, INCLUDING PREMIUM DEPOSITS, ASSESSMENTS,
REGISTRATION FEES AND ANY OTHER COMPENSATION GIVEN IN CONSIDERATION FOR
SUCH POLICY OF INSURANCE.
S 11. Subsection (b) of section 2134 of the insurance law, as added by
chapter 687 of the laws of 2003, is amended to read as follows:
(b) In addition to the requirements of subsection (a) of this section,
a nonresident insurance producer who changes his, her or its [home]
RESIDENT state, or a resident insurance producer who changes his, her or
its [home] RESIDENT state to another state, within thirty days of the
date of change, shall provide certification of such change from the new
[home] RESIDENT state. No fee or license application shall be required
therefor.
S 12. Subsections (a), (b) and (d) of section 2136 of the insurance
law, as added by chapter 687 of the laws of 2003, are amended to read as
follows:
(a) the applicant has a current and valid license in his or her [home]
RESIDENT state and is in good standing in his or her [home] RESIDENT
state;
(b) the applicant has submitted a completed application in the form
prescribed by the superintendent or submitted the application for licen-
sure submitted to his or her [home] RESIDENT state;
(d) the applicant's [home] RESIDENT state awards nonresident insurance
producer licenses to residents of this state on the same basis as
provided in this subsection.
S 13. Subparagraph (E) of paragraph 1 of subsection (f) of section
2137 of the insurance law, as added by chapter 499 of the laws of 2009,
is amended to read as follows:
S. 2811--B 25
(E) any individual seeking to be named a licensee or sub-licensee, who
is a nonresident and a life settlement broker or who is licensed as an
insurance producer with a life line of authority in the individual's
[home] RESIDENT state for at least one year; provided, however, that the
individual's [home] RESIDENT state grants nonresident licenses to resi-
dents of this state on the same basis.
S 14. Subsection (a) and paragraph 1 of subsection (b) of section 9102
of the insurance law, as amended by chapter 190 of the laws of 1990, are
amended to read as follows:
(a) In determining the amount of direct premiums taxable in this
state, all such premiums written, procured, or received in this state
shall be deemed written on property or risks located or resident in this
state except such premiums properly allocated and reported as taxable
premiums of any other state or states, PROVIDED THAT FOR PURPOSES OF
INSURANCE PROCURED BY EXCESS LINE BROKERS PURSUANT TO SECTION TWO THOU-
SAND ONE HUNDRED FIVE OF THIS CHAPTER, NO SUCH ALLOCATION SHALL BE MADE
WHERE THE EXCESS LINE TRANSACTION INVOLVES AN INSURED WHOSE HOME STATE
IS NEW YORK AS THAT TERM IS DEFINED IN SUBSECTION (Y) OF SECTION TWO
THOUSAND ONE HUNDRED ONE OF THIS CHAPTER WITH RESPECT TO EXCESS LINE
PLACEMENTS IN WHICH COVERAGE INCEPTS ON OR AFTER JULY 21, 2011.
(1) In determining the amount of gross premiums taxable in this state
pursuant to paragraph one of subsection (d) of section two thousand one
hundred eighteen of this chapter, where a placement of excess line
insurance INCEPTS ON OR PRIOR TO JULY 20, 2011 AND covers property or
risks located or resident both in and out of this state, the sum paid to
the superintendent shall be computed on that portion of the policy
premium that is attributable to property or risks located or resident in
this state, as determined by reference to an allocation schedule
prescribed by the superintendent in a regulation. WITH RESPECT TO EXCESS
LINE PLACEMENTS IN WHICH COVERAGE INCEPTS ON OR AFTER JULY 21, 2011, ONE
HUNDRED PERCENT OF THE PREMIUM CHARGED SHALL BE SUBJECT TO THE TAX WITH-
OUT ALLOCATION, BUT ONLY TO PLACEMENTS WHERE THE HOME STATE OF THE
INSURED, AS THAT TERM IS DEFINED IN SUBSECTION (Y) OF SECTION TWO THOU-
SAND ONE HUNDRED ONE OF THIS CHAPTER, IS NEW YORK.
S 15. Subsection (b) of section 1550 of the tax law, as added by chap-
ter 190 of the laws of 1990, is amended and two new subsections (d) and
(e) are added to read as follows:
(b) The term "premium" includes all amounts paid as consideration for
insurance contracts and shall include premium deposits, assessments,
policy fees, membership fees, REGISTRATION FEES and every other compen-
sation for such contract. The term "premium" includes all such amounts
paid irrespective of whether such amounts are deductible for federal
income tax purposes.
(D) THE TERM "INDEPENDENTLY PROCURED INSURANCE" MEANS INSURANCE
OBTAINED DIRECTLY BY AN INSURED FROM AN INSURER NOT AUTHORIZED TO TRANS-
ACT BUSINESS IN THIS STATE UNDER A CERTIFICATE OF AUTHORITY FROM THE
SUPERINTENDENT OF INSURANCE.
(E) THE TERM "PREMIUM TAX" MEANS, WITH RESPECT TO INDEPENDENTLY
PROCURED INSURANCE, ANY TAX, FEE, ASSESSMENT OR OTHER CHARGE IMPOSED BY
THIS STATE DIRECTLY OR INDIRECTLY BASED ON ANY PAYMENT MADE AS CONSIDER-
ATION FOR SUCH INSURANCE, INCLUDING PREMIUM DEPOSITS, ASSESSMENTS,
REGISTRATION FEES AND ANY OTHER COMPENSATION GIVEN IN CONSIDERATION FOR
SUCH A POLICY OF INSURANCE.
S 16. Section 1551 of the tax law, as amended by chapter 73 of the
laws of 1991, is amended to read as follows:
S. 2811--B 26
S 1551. Imposition of tax. There is hereby imposed on any person who
[purchases or renews a taxable insurance contract from an insurer not
authorized to transact business in this state under a certificate of
authority from the superintendent of insurance] INDEPENDENTLY PROCURES
INSURANCE, a PREMIUM tax at the rate of three and six-tenths percent of
the premiums paid or to be paid, less returns thereon, for such insur-
ance. Nothing in this article modifies or abrogates any provision of the
insurance law. THIS TAX SHALL ONLY APPLY TO INDEPENDENTLY PROCURED
INSURANCE TRANSACTIONS FOR INSUREDS WHOSE HOME STATE IS NEW YORK AS THAT
TERM IS DEFINED IN SUBSECTION (Y) OF SECTION TWO THOUSAND ONE HUNDRED
ONE OF THE INSURANCE LAW ON COVERAGE WHICH INCEPTS ON OR AFTER JULY 21,
2011.
S 17. Section 1552 of the tax law, as added by chapter 190 of the laws
of 1990, is amended to read as follows:
S 1552. Allocation. Where the taxable insurance contract covers risks
located or resident both within and without this state, WITH RESPECT TO
INDEPENDENTLY PROCURED INSURANCE IN WHICH COVERAGE INCEPTS ON OR PRIOR
TO JULY TWENTIETH, TWO THOUSAND ELEVEN the amount of premiums allocable
to risks resident or located within this state shall be determined
pursuant to rules and regulations of the commissioner of taxation and
finance. In promulgating such rules and regulations, the commissioner of
taxation and finance shall give due consideration to the rules and regu-
lations promulgated by the superintendent of insurance pursuant to
subsection (b) of section nine thousand one hundred two of the insurance
law. INDEPENDENTLY PROCURED INSURANCE POLICIES INCEPTING ON AND AFTER
JULY TWENTY-FIRST, TWO THOUSAND ELEVEN SHALL BE SUBJECT TO TAX ON ONE
HUNDRED PERCENT OF THE PREMIUM CHARGED WITHOUT ALLOCATION.
S 18. This act shall take effect on July 21, 2011 and applies to all
insurance policies procured by excess line licensees with an effective
date on or after July 21, 2011, provided, however, that the amendments
to subsection (b) of section 2118 of the insurance law made by sections
nine and ten of this act shall not affect the expiration and reversion
of such subsection and shall be deemed to expire therewith.
PART J
Section 1. Section 51 of chapter 298 of the laws of 1985, amending the
tax law relating to the franchise tax on banking corporations imposed by
the tax law, authorized to be imposed by any city having a population of
one million or more by chapter 772 of the laws of 1966 and imposed by
the administrative code of the city of New York and relating to other
provisions of the tax law, chapter 883 of the laws of 1975 and the
administrative code of the city of New York which relates to such fran-
chise tax, as amended by chapter 67 of the laws of 2010, is amended to
read as follows:
S 51. This act shall take effect immediately and shall apply to taxa-
ble years beginning on or after January 1, 1985[, except that:
(a) sections one through eight shall not apply to taxable years begin-
ning on or after January 1, 2011;
(b) sections nine, twelve, the amendment made to paragraph 9 of
subsection (a) of section 1452 of the tax law by section thirteen,
sections fifteen, sixteen, eighteen, nineteen, twenty, twenty-three,
twenty-seven, thirty and thirty-two, the amendment made to paragraph 9
of subdivision (a) of section 11-640 of the administrative code of the
city of New York by section thirty-three, sections thirty-five, thirty-
six, thirty-eight, thirty-nine, forty, and forty-five shall not apply to
S. 2811--B 27
corporations other than savings banks and savings and loan associations
for taxable years beginning on or after January 1, 2011.
(c) sections twenty-one, twenty-two, twenty-four, forty-one and
forty-two shall not apply to corporations other than savings banks and
savings and loan associations for taxable years beginning on or after
January 1, 2011, provided, however, that the provisions of such sections
which relate to the alternative minimum tax measured by taxable assets
shall continue to apply to all taxpayers for taxable years beginning on
or after January 1, 2011;
(d) the amendment to the section heading and the opening paragraph of
section 11-643.3 of the administrative code of the city of New York made
by section forty-three shall not apply to corporations other than
savings banks and savings and loan associations for taxable years begin-
ning on or after January 1, 2011 with respect to those provisions of
such section 11-643.3 which relate to the basic tax measured by entire
net income; and
(e) section twenty-eight, and the addition of new section 11-643.5 of
the administrative code of the city of New York made by section forty-
four shall not apply to corporations other than savings banks and
savings and loan associations for taxable years beginning on or after
January 1, 2011, provided, however, that the provisions of such sections
which relate to the alternative minimum taxes measured by assets, issued
capital stock and one hundred twenty-five dollars shall continue to
apply to all taxpayers for taxable years beginning on or after January
1, 2011].
S 2. Subdivisions (d) and (f) of section 110 of chapter 817 of the
laws of 1987, amending the tax law and the environmental conservation
law, constituting the business tax reform and rate reduction act of
1987, as amended by chapter 67 of the laws of 2010, are amended to read
as follows:
(d) The provisions of section sixty-seven of this act except insofar
as it amends paragraph 10 of subsection (b) of section 1453 of the tax
law, seventy-one and seventy-four shall apply to taxable years beginning
after December 31, 1986[, provided, however, that new paragraphs 11 and
12 of subsection (b) of section 1453 of the tax law as added by section
sixty-seven of this act, the amendments made by section seventy-one of
this act, and new subsection (i) of section 1453 of the tax law as added
by section seventy-four of this act shall not apply to taxable years
beginning on or after January 1, 2011];
(f) The provisions of section one hundred four of this act shall apply
to taxable years beginning after December 31, 1986[, and shall not apply
to corporations other than savings banks and savings and loan associ-
ations for taxable years beginning on or after January 1, 2011,
provided, however, that the provisions of such section which relate to
the alternative minimum tax measured by taxable assets shall continue to
apply to all taxpayers for taxable years beginning on or after January
1, 2011].
S 3. Subdivisions (c) and (d) of section 68 of chapter 525 of the
laws of 1988, amending the tax law and the administrative code of the
city of New York relating to the imposition of taxes in the city of New
York, as amended by chapter 67 of the laws of 2010, are amended to read
as follows:
(c) The provisions of sections one, thirty-one, thirty-two, thirty-
three, thirty-six, thirty-seven, forty through forty-five, forty-seven
and forty-eight of this act shall apply to taxable years beginning after
December 31, 1986[, provided, however, that the amendments made by
S. 2811--B 28
sections thirty-six and forty-one of this act, and new subdivision (i)
of section 11-641 of the administrative code of the city of New York as
added by section forty-four of this act shall not apply to taxable years
beginning on or after January 1, 2011];
(d) The provisions of section forty-six of this act shall apply to
taxable years beginning after December 31, 1986[, and shall not apply to
corporations other than savings banks and savings and loan associations
for taxable years beginning on or after January 1, 2011, provided,
however, that the provisions of such section which relate to the alter-
native minimum tax measured by taxable assets shall continue to apply to
all taxpayers for taxable years beginning on or after January 1, 2011];
S 4. Paragraphs 1 and 2 of subsection (m) of section 1452 of the tax
law, as amended by chapter 24 of the laws of 2010, are amended to read
as follows:
(1) Notwithstanding anything to the contrary contained in this section
other than subsection (n) of this section, a corporation [that was in
existence before January first, two thousand ten and was] subject to tax
under article nine-A of this chapter [for its last taxable year begin-
ning before January first, two thousand ten], shall continue to be taxa-
ble under such article [for all taxable years beginning on or after
January first, two thousand ten and before January first, two thousand
eleven]. The preceding sentence shall not apply to any taxable year
during which such corporation is a banking corporation described in
paragraphs one through eight of subsection (a) of this section. Notwith-
standing anything to the contrary contained in this section other than
subsection (n) of this section, a banking corporation [or corporation]
that [was in existence before January first, two thousand ten and] was
subject to tax under this article [for its last taxable year beginning
before January first, two thousand ten], shall continue to be taxable
under this article [for all taxable years beginning on or after January
first, two thousand ten and before January first, two thousand eleven or
in which the corporation satisfies the requirements for a corporation to
elect to be taxable under this article]. ONLY IF THE CORPORATION IS A
BANKING CORPORATION AS DEFINED IN SUBSECTION (A) OF THIS SECTION AS OF
JANUARY FIRST, TWO THOUSAND ELEVEN. Provided further, that nothing in
this subsection shall prohibit a corporation that elected pursuant to
subsection (d) of this section to be taxable under article nine-A of
this chapter from revoking that election in accordance with such
subsection (d).
For purposes of this paragraph, a corporation shall be considered to
be subject to tax under article nine-A of this chapter for a taxable
year if such corporation was not a taxpayer but was properly included in
a combined report filed pursuant to section two hundred eleven of this
chapter for such taxable year and a corporation shall be considered to
be subject to tax under this article for a taxable year if such corpo-
ration was not a taxpayer but was properly included in a combined return
filed pursuant to subsection (f) or (g) of section fourteen hundred
sixty-two of this article for such taxable year. A corporation [that was
in existence before January first, two thousand ten but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand ten and before January first, two thousand eleven,] shall be
considered for purposes of this paragraph to have been subject to tax
under article nine-A of this chapter for its last taxable year [begin-
ning before January first, two thousand ten] if such corporation would
have been subject to tax under such article for such taxable year if it
had been a taxpayer during such taxable year. A corporation [that was in
S. 2811--B 29
existence before January first, two thousand ten but first becomes a
taxpayer in a taxable year beginning on or after January first, two
thousand ten and before January first, two thousand eleven,] shall be
considered, for purposes of this paragraph, to have been subject to tax
under this article [for its last taxable year beginning before January
first, two thousand ten] if such corporation would have been subject to
tax under this article for such taxable year if it had been a taxpayer
during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subsection (n) of this section, a corporation [formed on or
after January first, two thousand ten and before January first, two
thousand eleven] may elect to be subject to tax under this article or
under article nine-A of this chapter [for its first taxable year begin-
ning on or after January first, two thousand ten and before January
first, two thousand eleven in which] IF either (i) sixty-five percent or
more of its voting stock is owned or controlled, directly or indirectly
by a financial holding company, provided the corporation whose voting
stock is so owned or controlled is principally engaged in activities
that are described in section 4(k)(4) or 4(k)(5) of the federal bank
holding company act of nineteen hundred fifty-six, as amended and the
regulations promulgated pursuant to the authority of such section, or
(ii) it is a financial subsidiary. An election under this paragraph may
not be made by a corporation described in paragraphs one through eight
of subsection (a) of this section or in subsection (e) of this section.
In addition, an election under this paragraph may not be made by a
corporation that is a party to a reorganization, as defined in
subsection (a) of section 368 of the internal revenue code of 1986, as
amended, of a corporation described in paragraph one of this subsection
if both corporations were sixty-five percent or more owned or
controlled, directly or indirectly, by the same interests at the time of
the reorganization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return (determined with regard to
extensions of time for filing) for the applicable taxable year. The
election to be taxed under article nine-A of this chapter shall be made
by the taxpayer by filing the report required pursuant to section two
hundred eleven of this chapter and the election to be taxed under this
article shall be made by the taxpayer by filing the return required
pursuant to section fourteen hundred sixty-two of this article. Any
election made pursuant to this paragraph shall be irrevocable and shall
apply to each subsequent taxable year [beginning on or after January
first, two thousand ten and before January first, two thousand eleven],
provided that the stock ownership and activities requirements described
in subparagraph (i) of this paragraph are met or such corporation
described in subparagraph (ii) of this paragraph continues as a finan-
cial subsidiary.
S 5. Paragraphs 1 and 2 of subdivision (l) of section 11-640 of the
administrative code of the city of New York, as amended by chapter 24 of
the laws of 2010, are amended to read as follows:
(1) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation [that was in
existence before January first, two thousand ten and was] subject to tax
under subchapter two of this chapter [for its last taxable year begin-
ning before January first, two thousand ten,] shall continue to be taxa-
ble under such subchapter for all taxable years [beginning on or after
January first, two thousand ten and before January first, two thousand
S. 2811--B 30
eleven]. The preceding sentence shall not apply to any taxable year
during which such corporation is a banking corporation described in
paragraphs one through eight of subdivision (a) of this section.
Notwithstanding anything to the contrary contained in this section other
than subdivision (m) of this section, a banking corporation [or corpo-
ration that was in existence before January first, two thousand ten and
was subject to tax under this subchapter for its last taxable year
beginning before January first, two thousand ten,] shall continue to be
taxable under this subchapter for all taxable years [beginning on or
after January first, two thousand ten and before January first, two
thousand eleven or] ONLY IF THE CORPORATION IS A BANKING CORPORATION AS
DEFINED IN SUBDIVISION (A) OF THIS SECTION AS OF JANUARY FIRST, TWO
THOSUAND ELEVEN in which the corporation satisfies the requirements for
a corporation to elect to be taxable under this subchapter. Provided
further, that nothing in this subdivision shall prohibit a corporation
that elected pursuant to subdivision (d) of this section to be taxable
under subchapter two of this chapter from revoking that election in
accordance with subdivision (d) of this section. For purposes of this
paragraph, a corporation shall be considered to be subject to tax under
subchapter two of this chapter for a taxable year if such corporation
was not a taxpayer but was properly included in a combined report filed
pursuant to subdivision four of section 11-605 of this chapter for such
taxable year and a corporation shall be considered to be subject to tax
under this subchapter for a taxable year if such corporation was not a
taxpayer but was properly included in a combined report filed pursuant
to subdivision (f) or (g) of section 11-646 of this part for such taxa-
ble year. A corporation [that was in existence before January first, two
thousand ten but first becomes a taxpayer in a taxable year beginning on
or after January first, two thousand ten and before January first, two
thousand eleven,] shall be considered for purposes of this paragraph to
have been subject to tax under subchapter two of this chapter for its
last taxable year [beginning before January first, two thousand ten] if
such corporation would have been subject to tax under such subchapter
for such taxable year if it had been a taxpayer during such taxable
year. A corporation [that was in existence before January first, two
thousand ten but first becomes a taxpayer in a taxable year beginning on
or after January first, two thousand ten and before January first, two
thousand eleven,] shall be considered for purposes of this paragraph to
have been subject to tax under this subchapter for its last taxable year
[beginning before January first, two thousand ten] if such corporation
would have been subject to tax under this subchapter for such taxable
year if it had been a taxpayer during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation [formed on or
after January first, two thousand ten and before January first, two
thousand eleven] may elect to be subject to tax under this subchapter or
under subchapter two of this chapter for its first taxable year [begin-
ning on or after January first, two thousand ten and before January
first, two thousand eleven in which] IF either (i) sixty-five percent or
more of its voting stock is owned or controlled, directly or indirectly
by a financial holding company, provided the corporation whose voting
stock is so owned or controlled is principally engaged in activities
that are described in section 4(k)(4) or 4(k)(5) of the federal bank
holding company act of nineteen hundred fifty-six, as amended and the
regulations promulgated pursuant to the authority of such section or
(ii) it is a financial subsidiary. An election under this paragraph may
S. 2811--B 31
not be made by a corporation described in paragraphs one through eight
of subdivision (a) of this section or in subdivision (e) of this
section. In addition, an election under this paragraph may not be made
by a corporation that is a party to a reorganization, as defined in
subsection (a) of section 368 of the internal revenue code of 1986, as
amended, of a corporation described in paragraph one of this subdivision
if both corporations were sixty-five percent or more owned or
controlled, directly or indirectly by the same interests at the time of
the reorganization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return (determined with regard to
extensions of time for filing) for the applicable taxable year. The
election to be taxed under subchapter two of this chapter shall be made
by the taxpayer by filing the return required pursuant to subdivision
one of section 11-605 of this chapter and the election to be taxed under
this subchapter shall be made by the taxpayer by filing the return
required pursuant to subdivision (a) of section 11-646 of this part. Any
election made pursuant to this paragraph shall be irrevocable and shall
apply to each subsequent taxable year [beginning on or after January
first, two thousand ten and before January first, two thousand eleven],
provided that the stock ownership and activities requirements described
in subparagraph (i) of this paragraph are met or such corporation
described in subparagraph (ii) of this paragraph continues as a finan-
cial subsidiary.
S 6. Subparagraph (iv) of paragraph 2 of subdivision (f) of section
1462 of the tax law, as amended by chapter 24 of the laws of 2010, is
amended to read as follows:
(iv) (A) Notwithstanding any provision of this paragraph, any bank
holding company exercising its corporate franchise or doing business in
the state may make a return on a combined basis without seeking the
permission of the commissioner with any banking corporation exercising
its corporate franchise or doing business in the state in a corporate or
organized capacity sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly, by such bank holding compa-
ny, for the first taxable year [beginning on or after January first, two
thousand and before January first, two thousand eleven] during which
such bank holding company registers for the first time under the federal
bank holding company act, as amended, and also elects to be a financial
holding company. In addition, for each subsequent taxable year [begin-
ning after January first, two thousand and before January first, two
thousand eleven], any such bank holding company may file on a combined
basis without seeking the permission of the commissioner with any bank-
ing corporation that is exercising its corporate franchise or doing
business in the state and sixty-five percent or more of whose voting
stock is owned or controlled, directly or indirectly, by such bank hold-
ing company if either such banking corporation is exercising its corpo-
rate franchise or doing business in the state in a corporate or organ-
ized capacity for the first time during such subsequent taxable year, or
sixty-five percent or more of the voting stock of such banking corpo-
ration is owned or controlled, directly or indirectly, by such bank
holding company for the first time during such subsequent taxable year.
Provided however, for each subsequent taxable year [beginning after
January first, two thousand and before January first, two thousand elev-
en], a banking corporation described in either of the two preceding
sentences which filed on a combined basis with any such bank holding
company in a previous taxable year, must continue to file on a combined
S. 2811--B 32
basis with such bank holding company if such banking corporation, during
such subsequent taxable year, continues to exercise its corporate fran-
chise or do business in the state in a corporate or organized capacity
and sixty-five percent or more of such banking corporation's voting
stock continues to be owned or controlled, directly or indirectly, by
such bank holding company, unless the permission of the commissioner has
been obtained to file on a separate basis for such subsequent taxable
year. Provided further, however, for each subsequent taxable year
[beginning after January first, two thousand and before January first,
two thousand eleven], a banking corporation described in either of the
first two sentences of this clause which did not file on a combined
basis with any such bank holding company in a previous taxable year, may
not file on a combined basis with such bank holding company during any
such subsequent taxable year unless the permission of the commissioner
has been obtained to file on a combined basis for such subsequent taxa-
ble year.
(B) Notwithstanding any provision of this paragraph other than clause
(A) of this subparagraph, the commissioner may not require a bank hold-
ing company which, during a taxable year [beginning on or after January
first, two thousand and before January first, two thousand eleven],
registers for the first time during such taxable year under the federal
bank holding company act, as amended, and also elects to be a financial
holding company, to make a return on a combined basis for any taxable
year [beginning on or after January first, two thousand and before Janu-
ary first, two thousand eleven] with a banking corporation sixty-five
percent or more of whose voting stock is owned or controlled, directly
or indirectly, by such bank holding company.
S 7. Subparagraph (iv) of paragraph 2 of subdivision (f) of section
11-646 of the administrative code of the city of New York, as amended by
chapter 24 of the laws of 2010, is amended to read as follows:
(iv) (A) Notwithstanding any provision of this paragraph, any bank
holding company exercising its corporate franchise or doing business in
the city may make a return on a combined basis without seeking the
permission of the commissioner with any banking corporation exercising
its corporate franchise or doing business in the city in a corporate or
organized capacity sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly, by such bank holding compa-
ny, for the first taxable year [beginning on or after January first, two
thousand and before January first, two thousand eleven] during which
such bank holding company registers for the first time under the federal
bank holding company act, as amended, and also elects to be a financial
holding company. In addition, for each subsequent taxable year [begin-
ning after January first, two thousand and before January first, two
thousand eleven], any such bank holding company may file on a combined
basis without seeking the permission of the commissioner with any bank-
ing corporation that is exercising its corporate franchise or doing
business in the city and sixty-five percent or more of whose voting
stock is owned or controlled, directly or indirectly, by such bank hold-
ing company if either such banking corporation is exercising its corpo-
rate franchise or doing business in the city in a corporate or organized
capacity for the first time during such subsequent taxable year, or
sixty-five percent or more of the voting stock of such banking corpo-
ration is owned or controlled, directly or indirectly, by such bank
holding company for the first time during such subsequent taxable year.
Provided however, for each subsequent taxable year [beginning after
January first, two thousand and before January first, two thousand elev-
S. 2811--B 33
en], a banking corporation described in either of the two preceding
sentences which filed on a combined basis with any such bank holding
company in a previous taxable year, must continue to file on a combined
basis with such bank holding company if such banking corporation, during
such subsequent taxable year, continues to exercise its corporate fran-
chise or do business in the city in a corporate or organized capacity
and sixty-five percent or more of such banking corporation's voting
stock continues to be owned or controlled, directly or indirectly, by
such bank holding company, unless the permission of the commissioner has
been obtained to file on a separate basis for such subsequent taxable
year. Provided further, however, for each subsequent taxable year
[beginning after January first, two thousand and before January first,
two thousand eleven], a banking corporation described in either of the
first two sentences of this clause which did not file on a combined
basis with any such bank holding company in a previous taxable year, may
not file on a combined basis with such bank holding company during any
such subsequent taxable year unless the permission of the commissioner
has been obtained to file on a combined basis for such subsequent taxa-
ble year.
(B) Notwithstanding any provision of this paragraph other than clause
(A) of this subparagraph, the commissioner may not require a bank hold-
ing company which, during a taxable year [beginning on or after January
first, two thousand and before January first, two thousand eleven],
registers for the first time during such taxable year under the federal
bank holding company act, as amended, and also elects to be a financial
holding company, to make a return on a combined basis for any taxable
year [beginning on or after January first, two thousand and before Janu-
ary first, two thousand eleven] with a banking corporation sixty-five
percent or more of whose voting stock is owned or controlled, directly
or indirectly, by such bank holding company.
S 8. This act shall take effect immediately.
PART K
Section 1. Paragraph b of subdivision 1, subdivisions 2, 6, 14, 22 and
23 of section 282 of the tax law, paragraph b of subdivision 1 and
subdivision 14 as amended by chapter 245 of the laws of 1989, subdivi-
sion 2 as amended by chapter 509 of the laws of 1937, subdivision 6 as
amended by chapter 261 of the laws of 1988 and subdivisions 22 and 23 as
added by section 1 of part W-1 of chapter 109 of the laws of 2006, are
amended to read as follows:
b. With respect to Diesel motor fuel, "distributor" means any person,
firm, association or corporation (i) who or which imports or causes to
be imported into the state, for use, distribution, storage or sale with-
in the state, any Diesel motor fuel; (ii) who or which produces,
refines, manufactures or compounds Diesel motor fuel within the state;
(iii) [who or which engages in the enhancement of Diesel motor fuel in
this state; (iv)] who or which makes a sale or use of Diesel motor fuel
in this state other than: (A) a retail sale not in bulk or (B) the self-
use of Diesel motor fuel which has been the subject of a retail sale to
such person; [(v)] (IV) who or which is registered by the department [of
taxation and finance] as a distributor of kero-jet fuel pursuant to the
provisions of subdivision two of section two hundred eighty-two-a of
this article. For the purposes of this article when used with respect to
Diesel motor fuel, a "retail sale not in bulk" means the making or
offering to make any sale of Diesel motor fuel to a consumer of such
S. 2811--B 34
fuel which is delivered directly into a motor vehicle for use in the
operation of such vehicle. A "retail sale in bulk" means the making or
offering to make any sale of Diesel motor fuel to a consumer which is
other than a "retail sale not in bulk". Motor fuel or Diesel motor fuel
brought into the state in the ordinary fuel tank connecting with the
engine of a motor vehicle, aeroplane, motor boat or other conveyance
propelled by the use of such motor fuel or Diesel motor fuel, and to be
used only in the operation thereof, shall not be deemed imported within
the meaning of this article, if not removed from such tank except as
used in the propulsion of such engine.
2. "Motor fuel" means gasoline, benzol, REFORMULATED BLEND STOCK FOR
OXYGENATE BLENDING, CONVENTIONAL BLEND STOCK FOR OXYGENATE BLENDING,
E85, FUEL GRADE ETHANOL THAT MEETS THE ASTM INTERNATIONAL ACTIVE STAND-
ARDS SPECIFICATIONS D4806 OR D4814 or other product[, except kerosene
and crude oil,] which is suitable for use in operation of a motor vehi-
cle engine[, but if kerosene or crude oil is compounded or mixed with
any other product or products, and the resulting compound or mixture is
suitable for use in the operation of any such motor vehicle engine, such
resulting compound or mixture in its entirety shall be a "motor fuel."].
6. "Filling station" shall include any place, location or station
where motor fuel [or], HIGHWAY Diesel motor fuel OR WATER-WHITE KEROSENE
(EXCLUSIVELY FOR HEATING PURPOSES IN CONTAINERS OF NO MORE THAN TWENTY
GALLONS), is offered for sale at retail.
14. "Diesel motor fuel" shall mean NO. 1 DIESEL FUEL, NO. 2 DIESEL
FUEL, BIODIESEL, kerosene, crude oil, fuel oil or other middle distil-
late and also motor fuel suitable for use in the operation of an engine
of the diesel type, excluding, however, any product specifically desig-
nated "No. 4 Diesel fuel" and not suitable as a fuel used in the opera-
tion of a motor vehicle engine.
22. "E85" means a [mixture consisting by volume of eighty-five
percent] FUEL BLEND CONSISTING OF ethanol and [the remainder of which
is] motor fuel, WHICH MEETS THE ASTM INTERNATIONAL ACTIVE STANDARD D5798
FOR FUEL ETHANOL.
23. "B20" means a mixture consisting by volume of twenty percent biod-
iesel and the remainder of which is diesel motor fuel. [For purposes of
this subdivision "biodiesel"] "BIODIESEL" shall mean EITHER "QUALIFIED
BIODIESEL" OR "UNQUALIFIED BIODIESEL." "QUALIFIED BIODIESEL" MEANS a
diesel motor fuel substitute produced from nonpetroleum renewable
resources that meets the registration requirements for fuels and fuel
additives established by the Environmental Protection Agency under
section 211 of the Clean Air Act (42 U.S.C. 7545) and that meets the
[American Society for Testing and Materials D6751-02a Standard Specifi-
cation for Biodiesel Fuel (B100) Blend Stock for Distillate Fuels] ASTM
INTERNATIONAL ACTIVE STANDARD D6751 FOR BIODIESEL FUEL. "UNQUALIFIED
BIODIESEL" MEANS A DIESEL MOTOR FUEL SUBSTITUTE PRODUCED FROM NONPETRO-
LEUM RENEWABLE RESOURCES THAT DOES NOT MEET THE ASTM INTERNATIONAL
ACTIVE STANDARD D6751 FOR BIODIESEL FUEL.
S 1-a. Subdivision 15 of section 282 of the tax law is REPEALED.
S 2. Subdivision 16 of section 282 of the tax law is REPEALED and two
new subdivisions 16 and 16-a are added to read as follows:
16. "NON-HIGHWAY DIESEL MOTOR FUEL" MEANS ANY DIESEL MOTOR FUEL THAT
IS DESIGNATED FOR USE OTHER THAN ON A PUBLIC HIGHWAY (EXCEPT FOR THE USE
OF THE PUBLIC HIGHWAY BY FARMERS TO REACH ADJACENT LANDS), AND IS DYED
DIESEL MOTOR FUEL AS DEFINED IN SUBDIVISION EIGHTEEN-A OF THIS SECTION.
16-A. "HIGHWAY DIESEL MOTOR FUEL" MEANS ANY DIESEL MOTOR FUEL WHICH IS
NOT NON-HIGHWAY DIESEL MOTOR FUEL.
S. 2811--B 35
S 3. Subdivision 18 of section 282 of the tax law, as added by chapter
302 of the laws of 2006, is renumbered subdivision 18-a and is amended
to read as follows:
18-a. "Dyed Diesel motor fuel" means Diesel motor fuel which [is
enhanced Diesel motor fuel and which] has been dyed in accordance with
and for the purpose of complying with the provisions of 26 USC S4082(a)
and the regulations thereunder, as may be amended from time to time.
S 4. Section 282 of the tax law is amended by adding a new subdivision
26 to read as follows:
26. "PUBLIC HIGHWAY" MEANS PUBLIC HIGHWAY AS DEFINED IN SUBDIVISION
SIX OF SECTION FIVE HUNDRED ONE OF THIS CHAPTER.
S 5. Subdivisions 2, 3, 4 and 5 of section 282-a of the tax law,
subdivision 2 and paragraph (b) of subdivision 3 as amended by chapter
245 of the laws of 1989, subdivisions 3, 4 and 5 as added by chapter 261
of the laws of 1988 and paragraph (c) of subdivision 3 as added by chap-
ter 302 of the laws of 2006, are amended to read as follows:
2. No person shall [engage] SELL OR USE DIESEL MOTOR FUEL within this
state [in the enhancement of Diesel motor fuel, make a sale or use of
Diesel motor fuel] (other than a retail sale not in bulk or self-use of
Diesel motor fuel which has been the subject of a retail sale), import
or cause the importation of Diesel motor fuel into the state or produce,
refine, manufacture or compound Diesel motor fuel within the state
unless such person shall be registered by the department [of taxation
and finance] as a distributor of Diesel motor fuel. Provided, the
commissioner [of taxation and finance] shall not register as a distribu-
tor of Diesel motor fuel any person who is engaged solely in one or both
of the following: (i) any person who makes or offers to make a retail
sale not in bulk of such fuel or (ii) any person who purchases Diesel
motor fuel in bulk in this state for the sole purpose of self-use. The
commissioner may, however, register as a distributor of kero-jet fuel
only a fixed base operator who makes no sales of kero-jet fuel other
than retail sales not in bulk delivered directly into the fuel tank of
an airplane for use in the operation of such airplane and who makes no
other sales of diesel motor fuel. Such registration shall apply only to
the wholesale purchase of kero-jet fuel and the retail sale of such fuel
not in bulk for delivery directly into the fuel tank of an airplane for
use in the operation thereof. Provided, further, that if the commission-
er is satisfied that full registration is not necessary in order to
protect tax revenues, the commissioner may limit or modify the require-
ment of registration as a distributor with respect to any person other-
wise required to register solely because such person engages in the sale
of NON-HIGHWAY Diesel motor fuel where such person makes sales of
NON-HIGHWAY Diesel motor fuel to the consumer solely for the purposes
described in subparagraph (i) of paragraph (b) of subdivision three of
this section, provided that if the commissioner so limits or modifies
such registration requirement with respect to such person, then such
registration shall apply only to the importation, sale and distribution
of SUCH NON-HIGHWAY Diesel motor fuel [for the purposes described in
such subparagraph (i)]. The commissioner [of taxation and finance] may
also waive any other requirement imposed by this article on such a
distributor. All the provisions of section two hundred eighty-three of
this article shall apply to applicants for registration and registrants
with respect to Diesel motor fuel, and, in addition, distributors with
respect to Diesel motor fuel shall be subject to all other provisions of
this article relating to distributors of motor fuel, including but not
limited to, the keeping of records, the fixing, determination and
S. 2811--B 36
payment of tax and filing of returns. PROVIDED, FURTHER, THE COMMISSION-
ER MAY LIMIT OR MODIFY THE REQUIREMENT OF REGISTRATION AS A DISTRIBUTOR
WITH RESPECT TO ANY PERSON WHO PRODUCES FOR SELF USE "UNQUALIFIED BIOD-
IESEL."
3. (a) The tax imposed by this section shall not apply to the sale of
untaxed Diesel motor fuel to or the use of such fuel by an organization
described in paragraph one or two of subdivision (a) of section eleven
hundred sixteen of this chapter where such Diesel motor fuel is used by
such organization for its own use or consumption.
(b) The tax on the [incident] INCIDENCE of sale or use imposed by
subdivision one of this section shall not apply to: (i) the sale [to] or
use [by the consumer of previously untaxed Diesel motor fuel which is
not enhanced Diesel motor fuel and which is used exclusively for heating
purposes or for the purpose of use or consumption directly and exclu-
sively in the production of tangible personal property, gas, electric-
ity, refrigeration or steam, for sale,] OF NON-HIGHWAY DIESEL MOTOR
FUEL, but only if all of such fuel is consumed other than on the PUBLIC
highways of this state (EXCEPT FOR THE USE OF THE PUBLIC HIGHWAY BY
FARMERS TO REACH ADJACENT FARMLANDS); provided, however, this exemption
shall in no event apply to a sale of NON-HIGHWAY Diesel motor fuel which
involves a delivery at a filling station or into a repository which is
equipped with a hose or other apparatus by which such fuel can be
dispensed into the fuel tank of a motor vehicle (EXCEPT FOR DELIVERY AT
A FARM SITE WHICH QUALIFIES FOR THE EXEMPTION UNDER SUBDIVISION (G) OF
SECTION THREE HUNDRED ONE-B OF THIS CHAPTER); or (ii) [the sale of
previously untaxed Diesel motor fuel which is not enhanced Diesel motor
fuel to a person registered under this article as a distributor of
Diesel motor fuel other than (A) a retail sale to such person or (B) a
sale to such person which involves a delivery at a filling station or
into a repository which is equipped with a hose or other apparatus by
which such fuel can be dispensed into the fuel tank of a motor vehicle;
or (iii) a sale or use of enhanced Diesel motor fuel to or by a consumer
exclusively for the purposes of heating specified in subparagraph (i) of
this paragraph but only if such enhanced Diesel motor fuel is delivered
into a storage tank which is not equipped with a hose or other apparatus
by which such fuel can be dispensed into the fuel tank of a motor vehi-
cle and such storage tank is attached to the heating unit burning such
fuel, provided that each delivery of such fuel of over four thousand
five hundred gallons shall be evidenced by a certificate signed by the
purchaser stating that the product will be used exclusively for heating
purposes; or (iv) a sale or use consisting of no more than four thousand
five hundred gallons of Diesel motor fuel in a thirty-day period to or
by a consumer who purchases or uses such fuel for use or consumption
directly and exclusively in the production for sale of tangible personal
property by farming but only if all of such fuel is delivered on the
farm site and is consumed other than on the highways of this state
(except for the use of the highway to reach adjacent farmlands)
provided, however, a farmer may purchase more than four thousand five
hundred gallons of Diesel motor fuel in a thirty-day period for such use
or consumption exempt from the tax in accordance with prior clearance
given by the commissioner of taxation and finance; or (v)] a sale to the
consumer consisting of not more than twenty gallons of water-white kero-
sene to be used and consumed exclusively for heating purposes; or [(vi)]
(III) the sale to or delivery at a filling station or other retail
vendor of water-white kerosene provided such filling station or other
retail vendor only sells such water-white kerosene exclusively for heat-
S. 2811--B 37
ing purposes in containers of no more than twenty gallons; or [(vii)]
(IV) a sale of kero-jet fuel to an airline for use in its airplanes or a
use of kero-jet fuel by an airline in its airplanes; or [(viii)] (V) a
sale of kero-jet fuel by a registered distributor of Diesel motor fuel
to a fixed base operator registered under this article as a distributor
of kero-jet fuel only where such fixed base operator is engaged solely
in making or offering to make retail sales not in bulk of kero-jet fuel
directly into the fuel tank of an airplane for the purpose of operating
such airplane; or [(ix)] (VI) a retail sale not in bulk of kero-jet fuel
by a fixed base operator registered under this article as a distributor
of kero-jet fuel only where such fuel is delivered directly into the
fuel tank of an airplane for use in the operation of such airplane.
(c) [Limited exemptions for dyed Diesel motor fuel. (i) The tax
imposed by this section shall not apply to: (A) the sale of dyed Diesel
motor fuel by the importer to a purchaser under the circumstances and
subject to the terms and conditions as follows: (1) the importer and
purchaser are each registered under this article as a full Diesel motor
fuel distributor; (2) such importer has imported the enhanced Diesel
motor fuel, which is the subject of the sale, into the state and has
dyed such fuel to comply with the provisions of 26 USC S 4082(a) and the
regulations thereunder, as may be amended from time to time; (3) the
purchaser is a holder of a currently valid direct payment permit issued
pursuant to section two hundred eighty-three-d of this article; and (4)
such purchaser is primarily engaged in the retail heating oil business
and such dyed Diesel motor fuel will be sold by such purchaser in a
retail sale to a consumer for use solely as residential or commercial
heating oil; (B) a first sale of the dyed Diesel motor fuel, which as
the subject of an exempt sale described in clause (A) of this subpara-
graph, by the purchaser described therein to a purchaser likewise hold-
ing a currently valid direct pay permit under the circumstances and
subject to the terms and conditions as follows: (1) the sale of such
second purchaser by such first purchaser is the first and only sale of
such dyed Diesel motor fuel by such first purchaser; (2) such second
purchaser is primarily engaged in the retail heating oil business and
such dyed Diesel motor fuel will be sold by such second purchaser in a
retail sale to a consumer for use solely as residential or commercial
heating oil; (3) on the sale to the second purchaser, such first
purchaser described in such clause (A) attaches to the invoice a copy of
the invoice given by the importer on the exempt sale described in such
clause (A), so as to identify the origin of the dyed Diesel fuel which
is the subject of the sale to such second purchaser; and (4) such second
purchaser certifies that such dyed Diesel motor fuel is to be sold by it
only to a consumer for use solely as residential or commercial heating
oil. (ii) Prior to, or at the time of, such sale of such dyed Diesel
motor fuel described in clause (A) or (B) of subparagraph (i) of this
paragraph, the purchaser shall give a certificate to the seller setting
forth the intended use of the dyed Diesel motor fuel which is sought to
be qualified for exemption under this paragraph, that the purchaser has
been issued a direct payment permit which is currently valid, that such
permit has not been suspended or revoked and that the purchaser other-
wise meets the qualifications of this paragraph. (iii) The limited
exemptions allowed under this paragraph shall in no event apply to any
dyed Diesel motor fuel which is delivered into a repository equipped
with hose or other apparatus capable of being used to dispense fuel into
the fuel tank of a motor vehicle, or where the purchaser's direct
payment permit has been suspended or revoked and the commissioner has
S. 2811--B 38
made generally available the identity of those persons whose direct
payment permits have been suspended or revoked.] NOTHING IN THIS ARTICLE
SHALL EXEMPT NON-HIGHWAY DIESEL MOTOR FUEL FROM THE IMPOSITION OF THE
TAX UNDER THIS SECTION, IF SUCH NON-HIGHWAY DIESEL MOTOR FUEL IS
INTENDED FOR USE ON THE WATERWAYS OF THE STATE INCLUDING ANY OTHER
WATERWAYS BORDERING ON THE STATE, FOR OPERATING PLEASURE OR RECREATIONAL
MOTOR BOATS THEREON.
4. The tax imposed by this section on Diesel motor fuel shall be
passed through by the seller and included as part of the selling price
to each purchaser of such fuel. Provided, however, the amount of the tax
imposed by this section may be excluded from the selling price of Diesel
motor fuel where (i) a sale of Diesel motor fuel is made to an organiza-
tion described in paragraph (a) of subdivision three of this section
solely for the purpose stated therein; (ii) a sale of [enhanced]
NON-HIGHWAY Diesel motor fuel is made to a consumer [exclusively for the
purposes of heating specified in subparagraph (i) of paragraph (b) of
subdivision three of this section] but only if such [enhanced] NON-HIGH-
WAY Diesel motor fuel is NOT DELIVERED TO A FILLING STATION, NOR deliv-
ered into a storage tank which is [not] equipped with a hose or other
apparatus by which such fuel can be dispensed into the fuel tank of a
motor vehicle [and such storage tank is attached to the heating unit
burning such fuel, provided that each delivery of such fuel of over four
thousand five hundred gallons shall be evidenced by a certificate signed
by the purchaser stating that the product will be used exclusively for
heating purposes; (iii) a sale is made consisting of no more than four
thousand five hundred gallons (or a greater amount which has been given
prior clearance by the commissioner of taxation and finance) of Diesel
motor fuel in a thirty-day period to a consumer who purchases such fuel
for use or consumption directly and exclusively in the production for
sale of tangible personal property by farming but only if all of such
fuel is consumed other than on the highways or waterways of this state];
or [(iv)] (III) the sale to or delivery at a filling station or other
retail vendor of water-white kerosene provided such filling station or
other retail vendor only sells such water-white kerosene exclusively for
heating purposes in containers of no more than twenty gallons; or [(v)]
(IV) a sale of kero-jet fuel is made to an airline for use in its
airplanes.
5. All the provisions of this article relating to the administration
and collection of the taxes on motor fuel, except sections two hundred
eighty-three-a and two hundred eighty-three-b of this article, shall be
applicable to the tax imposed by this section with such limitation as
specifically provided for in this article with respect to Diesel motor
fuel and with such modification as may be necessary to adapt the
language of such provisions to the tax imposed by this section. With
respect to the bond or other security required by subdivision three of
section two hundred eighty-three of this article, the commissioner [of
taxation and finance], in determining the amount of bond or other secu-
rity required for the purpose of securing tax payments, shall take into
account the volume of [heating fuel] NON-HIGHWAY DIESEL MOTOR FUEL and
other Diesel motor fuel sold for exempt purposes by a distributor of
Diesel motor fuel during prior periods as a factor reducing potential
tax liability along with any other relevant factors in determining the
amount of security required. With respect to the bond required to be
filed prior to registration as a Diesel motor fuel distributor, no bond
shall be required of an applicant upon a finding of the applicant's
fiscal responsibility, as reflected by such factors as net worth,
S. 2811--B 39
current assets and liabilities, and tax reporting and payment history,
and the department shall not provide for a minimum bond of every appli-
cant.
S 6. Subdivision 7 of section 283 of the tax law, as amended by chap-
ter 261 of the laws of 1988, is amended to read as follows:
7. Temporary restraining order and permanent [injuction] INJUNCTION
against unlawful importation and forfeiture of unlawfully imported or
produced [automotive] MOTOR FUEL OR DIESEL MOTOR fuel. (a) Whenever
evidence is furnished by the commissioner [of taxation and finance] to
any justice of the supreme court, in court or at chambers, showing that
any person not registered as a distributor as required by this article
has imported [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL into this
state or caused [automotive] MOTOR FUEL OR DIESEL MOTOR fuel to be
imported into this state or has produced, refined, manufactured or
compounded [automotive fuel or has subjected diesel motor fuel to the
process of enhancement within this state] MOTOR FUEL OR DIESEL MOTOR
FUEL, such justice may make a temporary order without notice prohibiting
such person and his agents from selling, transferring or otherwise
disposing of any such fuel or any fuel and also prohibiting all other
persons in possession of or having control over the same from selling,
releasing, transferring or otherwise disposing of any [automotive fuel]
MOTOR FUEL OR DIESEL MOTOR FUEL imported, produced, refined, manufac-
tured, compounded, [enhanced,] sold or transferred by such person not so
registered pending a hearing for a preliminary injunction.
(b) Upon granting a temporary order, the court shall direct that a
hearing be held at the earliest possible time upon such notice and
service as the court shall direct and at the same time, if such action
has not yet been commenced, the commissioner [of taxation and finance]
shall commence an action in supreme court for a permanent injunction and
forfeiture of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL pursuant
to paragraph (c) of this subdivision. Where, after such opportunity for
a hearing, the court determines that there is a substantial probability
that the commissioner will prevail in such action, the court shall grant
a preliminary injunction restraining the sale, release, transfer or
other disposition of fuel subject to the temporary order.
(c) (1) If it is established by clear and convincing evidence that
[automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL was imported, caused
to be imported, produced, refined, manufactured or compounded [or diesel
motor fuel was subjected to the process of enhancement] by any person
not registered as a distributor as required by this article, the court
shall grant a judgment (i) permanently enjoining such person and his
agents from selling, transferring or otherwise disposing of any such
fuel or any fuel within this state and (ii) declaring the forfeiture of
any fuel that was so imported, caused to be imported, produced, refined,
manufactured, OR compounded [or enhanced] by such person.
(2) With respect to [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL
that was imported, caused to be imported, produced, refined, manufac-
tured or compounded, [or diesel motor fuel that was subjected to the
process of enhancement] by a person not registered as a distributor as
required by this article or that was unlawfully sold or transferred by
such person, if it is established by clear and convincing evidence that
any other person in possession of or having control over such fuel was
not a purchaser or transferee in good faith of such fuel with respect to
the fact that such fuel was so imported, caused to be imported,
produced, refined, manufactured, OR compounded [or enhanced] by a person
not registered as a distributor as required by this article or that such
S. 2811--B 40
fuel was so unlawfully sold or transferred by such person, the court
shall grant a judgment (i) permanently enjoining such other person and
his OR HER agents from selling, releasing, transferring or otherwise
disposing of any such fuel and (ii) declaring the forfeiture of such
fuel in the possession or under the control of such other person.
(d) The commissioner may, at any time subsequent to the granting of
the temporary order pursuant to paragraph (a) of this subdivision, in
his OR HER sole discretion consent to a sale of [automotive fuel] MOTOR
FUEL OR DIESEL MOTOR FUEL subject to such temporary order which is in
the possession or under the control of a person other than the person or
the agent of the person who imported, caused to be imported, produced,
refined, manufactured, compounded [or enhanced] or unlawfully sold or
transferred such fuel. As a condition of granting permission to a sale
of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL pursuant to this
subdivision, the commissioner shall require the payment of all taxes,
penalties and interest imposed by and pursuant to the authority of this
chapter with respect to such fuel.
(e) (1) At any time during the pendency of an action under this
section, the [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL subject
to a temporary, preliminary or permanent order hereunder may be released
from the scope of such order if there is given an undertaking, in an
amount equal to the market value of such fuel plus state excise and
sales taxes and federal excise taxes, to the effect that there will be
paid to the commissioner the amount of the market value of such fuel and
such taxes in the event that such fuel is adjudged forfeited.
(2) Any person enjoined by a temporary order or a preliminary injunc-
tion issued pursuant to this subdivision may move at any time, on
notice, to vacate or modify it.
(f) The procedures of the civil practice law and rules applicable to
temporary restraining orders, preliminary injunctions and permanent
injunctions not inconsistent with this subdivision shall apply to tempo-
rary orders, preliminary injunctions and permanent injunctions issued
under this subdivision and any provision of this subdivision which is
not in accord with the constitutional mandate of such procedures of the
civil practice law and rules shall be deemed to be modified as necessary
to accord with such a mandate. The procedural provisions set forth in
paragraph three of subdivision (d) and in subdivision (j) of section
eighteen hundred forty-eight of this chapter shall apply to the forfei-
ture proceedings under this subdivision and, in respect to a declaration
of forfeiture under this subdivision, the court shall direct the commis-
sioner to sell or otherwise dispose of such forfeited [automotive fuel]
MOTOR FUEL OR DIESEL MOTOR FUEL on such conditions the commissioner
deems most advantageous and just under the circumstances. The commis-
sioner shall not be required to file any undertaking in connection with
an action pursuant to this subdivision.
S 7. Sections 283-d and 284-b of the tax law are REPEALED.
S 8. Subdivision 3 of section 285-b of the tax law, as amended by
chapter 245 of the laws of 1989, is amended to read as follows:
3. (a) The claim for or exemption from tax provided for in subpara-
graphs (i), (II), (iii), (iv), [(v),] AND (vi)[, (vii) and (ix)] of
paragraph (b) of subdivision three of section two hundred eighty-two-a
of this article shall be established by means of an exempt transaction
certificate. If any such exemption is applicable, such certificate shall
be provided by the purchaser to the seller at the time of or prior to
delivery of the Diesel motor fuel. Such exempt transaction certificate
shall set forth the name and address of the purchaser and the basis of
S. 2811--B 41
the exemption and shall be signed by such purchaser and by the seller.
Such certificate shall be in such form and contain such other informa-
tion as the commissioner [of taxation and finance] shall require. Where
a proper and complete exempt transaction certificate has been furnished
and accepted by the seller in good faith, such certificate under such
circumstance shall relieve the seller of the burden of proving that the
Diesel motor fuel covered by such certificate is exempt from tax by
reason of subparagraph (i), (II), (iii), (iv), [(v),] OR (vi)[, (vii) or
(ix)] of paragraph (b) of subdivision three of such section two hundred
eighty-two-a. Any purchaser who furnishes to his seller a false or frau-
dulent exempt transaction certificate for the purpose of establishing an
exemption from the tax imposed by section two hundred eighty-two-a of
this article shall be jointly and severally liable for the tax imposed
by such section. In lieu of an exempt transaction certificate, the
commissioner [of taxation and finance] may provide for the establishment
of such exemption by means of a procedure or other document which he OR
SHE deems appropriate so as to secure the revenues from the excise tax
on Diesel motor fuel. Provided, further, in the case of the exemption
provided by subparagraph (i) of paragraph (b) of subdivision three of
section two hundred eighty-two-a of this article, the commissioner shall
provide for an alternative procedure or other document signed only by
the seller, such as a metered delivery ticket, for the establishment of
such exemption in those cases where such commissioner is satisfied that
the use of such alternative procedure or other document will not jeop-
ardize the revenues from the excise tax on Diesel motor fuel.
(b) A claim for the exemption from tax provided for in subparagraph
[(ii) or (viii)] (V) of paragraph (b) of subdivision three of section
two hundred eighty-two-a of this article shall be established by means
of an interdistributor sale certificate. If such exemption is applica-
ble, such certificate shall be provided by the purchaser to the seller
at the time of or prior to delivery of the Diesel motor fuel. Such
certificate shall set forth the name and address of the purchaser, the
purchaser's registration number, an affirmation by such purchaser that
the purchaser is registered as a distributor and that such registration
has not been suspended or cancelled and shall be signed by such purchas-
er and by the seller. Such certificate shall be in such form and contain
such other information as the commissioner [of taxation and finance]
shall require. Where a proper and complete interdistributor sale certif-
icate has been furnished and accepted by the seller in good faith, such
certificate under such circumstance shall relieve the seller of the
burden of proving that the Diesel motor fuel covered by such certificate
is exempt from tax by reason of subparagraph [(ii) or (viii)] (V) of
paragraph (b) of subdivision three of such section two hundred eighty-
two-a. For purposes of this paragraph, a seller shall not have accepted
such certificate in good faith if the purchaser's registration is inval-
id because it has been suspended or cancelled, or if the purchaser is
not registered, and the commissioner [of taxation and finance] has
furnished registered distributors with information identifying all those
persons then validly registered as distributors of Diesel motor fuel and
those persons whose registrations have been suspended or cancelled. Any
purchaser who furnishes to his seller a false or fraudulent interdis-
tributor sale certificate for the purpose of establishing an exemption
from the tax imposed by section two hundred eighty-two-a of this article
shall be jointly and severally liable for the tax imposed by such
section.
S. 2811--B 42
S 9. Subdivision 1 of section 286 of the tax law, as amended by chap-
ter 302 of the laws of 2006, is amended to read as follows:
1. Every person who imports or causes to be imported into this state,
or who produces, refines, manufactures or compounds within this state,
or who purchases or sells in this state motor fuel or diesel motor fuel
or ingredients which may be manufactured or compounded into motor fuel
or diesel motor fuel, [or engages in the enhancement of diesel motor
fuel,] shall keep a complete and accurate record of all purchases and
sales, uses or other dispositions thereof and a complete and accurate
record of the number of gallons of motor fuel or diesel motor fuel or
such ingredients so imported, produced, refined, manufactured[,] OR
compounded [or enhanced]. Every person who stores motor fuel or diesel
motor fuel shall keep a complete and accurate record of the identity of
the person for whom such fuel is stored, the quantity and type of fuel
so stored, the identity of the person to whom such fuel is released from
storage and the quantity and type of fuel so released. Such records
shall be in such form and contain such other information as the commis-
sioner shall prescribe. Said commissioner, by rule or regulation, also
may require the delivery of statements to purchasers with consignments
of motor fuel or diesel motor fuel or such ingredients, and prescribe
the matters to be contained therein. Such records and statements, 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 written demand by such commissioner
or the commissioner's duly authorized agents. The commissioner is hereby
further authorized to examine the equipment of any such person pertain-
ing to the storage, sale or delivery of such fuels, as well as the stock
of such fuels in the possession or control of such person. To verify the
amount of tax due under this article, each such person is hereby
directed and required to give to the commissioner or the commissioner's
duly authorized representatives, the means, facilities and opportunity
for such examinations as are herein provided for and required. Nothing
CONTAINED in this section [contained] shall be construed to require the
keeping for purposes of this article of a record of purchases or sales
of motor fuel or diesel motor fuel or such ingredients at retail in
small quantities (less than thirty gallons) or of motor fuel or diesel
motor fuel imported into this state in the tank of a motor vehicle which
supplies the fuel for its operation.
S 10. Section 286-a of the tax law, as amended by chapter 261 of the
laws of 1988, is amended to read as follows:
S 286-a. Records and reports of transportation of [automotive] MOTOR
FUEL AND DIESEL MOTOR fuel. Every person transporting [automotive] MOTOR
FUEL OR DIESEL MOTOR fuel within this state, whether such transportation
originates within or without this state, when required by the [tax
commission] COMMISSIONER, shall keep a true and accurate record of all
[automotive] MOTOR FUEL AND DIESEL MOTOR fuel so transported, including
ingredients which may be manufactured or compounded into [automotive]
MOTOR FUEL OR DIESEL MOTOR fuel, showing such facts with relation to
such [automotive] fuel and ingredients and their transportation as the
[tax commission] COMMISSIONER may require. Such record shall be open to
inspection by the representatives of the department [of taxation and
finance] at any time and the [tax commission] COMMISSIONER may require
from any such person sworn returns of all or any part of the information
shown by such records.
S 11. Section 286-b of the tax law, as amended by chapter 261 of the
laws of 1988, is amended to read as follows:
S. 2811--B 43
S 286-b. Transportation of [automotive] MOTOR FUEL OR DIESEL MOTOR
fuel; manifest required. 1. The master or other person in charge of any
barge, tanker or other vessel in which [automotive] MOTOR FUEL OR DIESEL
MOTOR fuel is being transported over any of the navigable waters of this
state, the operator of a motor vehicle in which [automotive] MOTOR FUEL
OR DIESEL MOTOR fuel is being transported in this state, or the operator
of a pipeline through which [automotive] MOTOR FUEL OR DIESEL MOTOR fuel
is being transported in this state, other than [automotive] MOTOR FUEL
OR DIESEL MOTOR fuel being transported for use in operating the engine
which propels such vessel or motor vehicle, as the case may be, must
have in his OR HER possession a manifest which shows the name and
address of the person from whom such [automotive] fuel was received by
him OR HER and the place of receipt of such fuel and the name and
address of every person to whom he OR SHE is to make delivery of the
same and the place of delivery, together with the number of gallons to
be delivered to each such person, and, if such [automotive] fuel is
being imported into the state in such vessel, motor vehicle or pipeline
for use, storage, distribution or sale in the state, the name of the
distributor importing or causing such fuel to be imported into the state
and such other information as the [tax commission] COMMISSIONER may
require pursuant to rule or regulation, and shall at the request of a
peace officer, acting pursuant to his OR HER special duties, a police
officer, any representative of the department [of taxation and finance]
or any other person authorized by law to inquire into or investigate the
transportation of such [automotive] fuel, produce such manifest for
inspection. The person causing the operation of such vessel, motor vehi-
cle or pipeline shall be responsible to cause the operator of such
vessel, motor vehicle or pipeline to keep in his OR HER possession on
such vessel, in such motor vehicle or in the main control building of
such pipeline in this state the manifest required by this section. The
absence of the manifest required by this section shall give rise to a
presumption that the [automotive] MOTOR FUEL OR DIESEL MOTOR fuel being
transported is intended for sale, use, distribution or storage in this
state and is being imported or caused to be imported by other than a
registered distributor. Moreover, the absence of (1) the place of deliv-
ery of motor fuel OR DIESEL MOTOR FUEL on the manifest with respect to
[automotive] MOTOR FUEL OR DIESEL MOTOR fuel being imported into the
state shall give rise to a presumption that such fuel is being imported
into the state for use, distribution, storage or sale in the state and
(2) the name of a registered distributor on the manifest with respect to
[automotive] MOTOR FUEL OR DIESEL MOTOR fuel being imported into the
state for use, distribution, storage or sale in the state shall give
rise to a presumption that such fuel is being so imported or caused to
be imported by other than a registered distributor. Every barge, tanker
or other vessel so used for the transportation of motor fuel must be
plainly and visibly marked on both sides thereof and above the water
line with the word "Gasoline," or other name of the motor fuel being
transported, in letters at least eight inches high and of corresponding
appropriate width, or must be identified as prescribed by the [tax
commission] COMMISSIONER pursuant to rule or regulation. The master or
person in charge of such barge, tanker or other vessel, as well as the
owners thereof, shall be guilty of a violation of this section if such
barge, tanker or other vessel is not so marked.
2. The commissioner may, by regulation provide for the form and
content of the manifest required for [automotive] MOTOR AND DIESEL MOTOR
fuel and for the filing of monthly information returns by every person
S. 2811--B 44
required to maintain records, described in subdivision one of this
section, which shall in all material respects reflect the information
required to be contained in such records. Such returns shall be in such
form and contain such other information as the commissioner shall
require.
S 12. Subdivision 1 of section 287 of the tax law, as amended by chap-
ter 261 of the laws of 1988, is amended to read as follows:
1. Every distributor shall, on or before the twentieth day of each
month, file with the department [of taxation and finance] a return, on
forms to be prescribed by the commissioner and furnished by such depart-
ment, stating the number of gallons of motor fuel imported, manufactured
or sold by such distributor in the state during the preceding calendar
month and in the case of Diesel motor fuel, the number of gallons of
[enhanced] Diesel motor fuel imported[, the number of gallons enhanced]
and the number of gallons which have been sold or used. Provided, howev-
er, the commissioner may, if he OR SHE deems it necessary in order to
[insure] ENSURE 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 of Diesel motor fuel on a quarterly, semi-annual
or annual basis, or may waive the filing of returns by a distributor of
Diesel motor fuel for such time and upon such terms as he OR SHE may
deem proper if satisfied that no tax imposed by this article with
respect to Diesel motor fuel is or will be payable by him OR HER during
the time for which returns are waived. Such returns shall contain such
further information as the commissioner shall require. 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 actually signed by such
distributor. Each such distributor shall, with respect to motor fuel,
pay to the department with the filing of such return, the taxes imposed
by this article on each gallon of motor fuel imported, manufactured or
sold by such distributor in the state, and so reported, during the peri-
od covered by such return. Each distributor shall, with respect to
Diesel motor fuel, pay to the department with the filing of the return
the taxes imposed by this article on the number of gallons of Diesel
motor fuel sold or used or delivered to a filling station or delivered
into the fuel tank of a motor vehicle during the period covered by the
return. Provided, however, that where a distributor has purchased [auto-
motive] MOTOR FUEL OR DIESEL MOTOR fuel upon which the taxes imposed by
this article have been paid or paid over and in each instance the tax is
included in the price, a credit shall be allowed for the amount of such
taxes upon the subsequent sale of such fuel to the extent that such
taxes are so paid and included in the price.
S 13. Paragraphs (a) and (c) of subdivision 3 of section 289-c of the
tax law, paragraph (a) as amended by chapter 558 of the laws of 1965 and
paragraph (c) as amended by chapter 302 of the laws of 2006, are amended
to read as follows:
(a) Except as otherwise provided in paragraph (b) of this section, any
person who shall buy any motor fuel or diesel motor fuel, on which the
tax imposed by this article shall have been paid, and shall consume the
same in any manner except in the operation of a motor vehicle upon or
over the PUBLIC highways of this state, or in the operation of a pleas-
ure or recreational motor boat upon or over the waterways of the state
including waterways bordering on the state, shall be reimbursed the
amount of such tax in the manner and subject to the conditions herein
provided except that there shall be no reimbursement of tax paid on
S. 2811--B 45
motor fuel or diesel motor fuel taken out of this state in a fuel tank
connected with the engine of a motor vehicle and consumed outside of
this state.
(c) All claims for reimbursement shall be in such form and contain
such information as the commissioner shall prescribe and shall be filed
within three years from (i) the date of the purchase, in the case of the
purchaser; or (ii) the date of the sale, in the case of the seller, of
the motor fuel so subject to reimbursement. Every such claim shall
include a certificate by or on behalf of the party presenting the same
to the effect that it is just, true and correct, that no part thereof
has been paid, except as stated therein, and that the balance therein
stated is actually due and owing. The claimant shall satisfy the depart-
ment that the claimant has borne the tax and that the motor fuel has
been consumed by the claimant in a manner other than the operation of a
motor vehicle upon or over the PUBLIC highways of this state, the opera-
tion of a pleasure or recreational motorboat upon or over the waterways
of the state including waterways bordering on the state or, in the case
of an omnibus carrier, taxicab licensee, nonpublic school operator or
volunteer ambulance service, that the claimant has borne the tax and
that the amount claimed is the amount of such tax reimbursable under
paragraph (b), (d), (e) or (f) of THIS subdivision [three of this
section]. The department may require such further information or proof
as it shall deem necessary for the administration of such claim. Claims
for reimbursement approved by the department shall be paid from revenues
collected under this article and deposited to the credit of the comp-
troller as hereinafter provided; but no such claims shall be paid unless
the department is satisfied that the amount of the tax for which the
reimbursement is claimed has actually been collected by the state. The
amount of any erroneous or excessive payment to a claimant for
reimbursement may be determined by the department and may be recovered
from such claimant in the same manner as a tax imposed by this article,
provided, however, that any such determination shall be made within
three years after the date of such erroneous or excessive payment.
S 14. Subdivision 4 of sections 289-c of the tax law is REPEALED.
S 15. Subdivision 1 of section 289-e of the tax law, as amended by
section 5 of part EE of chapter 63 of the laws of 2000, is amended to
read as follows:
1. All taxes, interest, penalties and fees collected or received by
the commissioner under the taxes imposed by this article, except as
provided otherwise in subdivision two and subdivision three of this
section and sections two hundred eighty-two-b, two hundred eighty-two-c,
two hundred eighty-four-a and two hundred eighty-four-c, other than
[those imposed by section two hundred eighty-four-b and] the fee imposed
by section two hundred eighty-four-d and penalties and interest on such
fee, shall be deposited and disposed of pursuant to the provisions of
section one hundred seventy-one-a of this chapter; provided that an
amount equal to thirty-seven and one-half per centum of the moneys
collected under section two hundred eighty-four of this chapter shall be
appropriated and used for the acquisition of property necessary for the
construction and reconstruction of highways and bridges or culverts on
the state highway system, and for the construction, maintenance and
repair of such highways and bridges or culverts, all under the direction
of the commissioner of transportation.
S 16. Section 289-f of the tax law, as added by chapter 44 of the laws
of 1985, is amended to read as follows:
S. 2811--B 46
S 289-f. Joint administration of taxes. In addition to the powers
granted to the [tax commission] COMMISSIONER in this chapter, the
[commission] COMMISSIONER is hereby authorized to make provisions pursu-
ant to rules and regulations for the joint administration, in whole or
in part, of the state and local taxes imposed by article twenty-eight
and authorized to be imposed by article twenty-nine of this chapter upon
the sale of [automotive] MOTOR FUEL OR DIESEL MOTOR fuel and the taxes
imposed and authorized to be imposed by this article, including the
joint reporting, assessment, collection, determination and refund of
such taxes, and for that purpose to prescribe that any of the [commis-
sion's] COMMISSIONER'S functions under such articles, and any returns,
forms, statements, documents or information to be submitted to the
[commission] COMMISSIONER under such articles, any books and records to
be kept for purposes of the taxes imposed or authorized to be imposed by
such articles, any schedules of amounts to be collected under such arti-
cles, any registration required under such articles, and the payment of
taxes under such articles shall be on a joint basis with respect to the
taxes imposed by such articles.
S 17. Paragraph 2 of subdivision (b) and subdivisions (c), (k), (l)
and (m) of section 300 of the tax law, paragraph 2 of subdivision (b) as
amended by chapter 170 of the laws of 1994, subdivision (c) as added by
chapter 190 of the laws of 1990, subdivision (k) as amended by section 1
of part H of chapter 407 of the laws of 1999 and subdivisions (l) and
(m) as added by chapter 309 of the laws of 1996, are amended to read as
follows:
(2) With respect to diesel motor fuel, every corporation and unincor-
porated business (i) importing diesel motor fuel or causing diesel motor
fuel to be imported into the state for use, distribution, storage or
sale in the state, (ii) producing, refining, manufacturing or compound-
ing diesel motor fuel within the state, (iii) [engaging in the enhance-
ment of diesel motor fuel within the state, (iv)] making a sale or use
of diesel motor fuel in the state, other than a retail sale not in bulk
or self-use of diesel motor fuel which has been the subject of a retail
sale to such corporation or unincorporated business, or [(v)] (IV)
registered by the department [of taxation and finance] as a "distributor
of kero-jet fuel only" pursuant to the provisions of subdivision two of
section two hundred eighty-two-a of this chapter. Diesel motor fuel
brought into this state in the ordinary fuel tank connecting with the
engine of a motor vehicle, airplane or other conveyance, but not a
vessel (other than a recreational motor boat or a commercial fishing
vessel as defined in subdivision (j) of this section if the diesel motor
fuel imported into and consumed in this state is used to operate such
vessel while it is engaged in the harvesting of fish for sale),
propelled by the use of such diesel motor fuel and to be used only in
the operation thereof, shall not be deemed imported within the meaning
of this article, if not removed from such tank except as used in the
propulsion of such engine.
(c) [(1)] The [term (A)] TERMS (1) "diesel motor fuel" means such term
as defined in subdivision fourteen of section two hundred eighty-two of
this chapter [and regulations thereunder including any regulations
relating to product specifically designated "No. 4 diesel fuel" and not
suitable as a fuel used in the operation of a motor vehicle engine], and
[(B) "enhanced] (2) "HIGHWAY diesel motor fuel" means such term as
defined in subdivision [sixteen] SIXTEEN-A of section two hundred eight-
y-two of this chapter, and
S. 2811--B 47
[(C)(i) "nonautomotive type diesel motor fuel" as used in relation to
the rates of the tax imposed by section three hundred one-a of this
article means any diesel motor fuel, as described in subparagraph (A) of
this paragraph, which would be excluded from the diesel motor fuel
excise tax imposed by section two hundred eighty-two-a of this chapter
solely by reason of the enumerated exclusions based on ultimate use of
the product set forth in paragraph (b) of subdivision three of such
section, and (ii) "automotive-type diesel motor fuel" as used in
relation to the rates of tax imposed by such section three hundred one-a
means diesel motor fuel which is not nonautomotive-type diesel motor
fuel.]
(3) "NON-HIGHWAY DIESEL MOTOR FUEL" MEANS SUCH TERM AS DEFINED IN
SUBDIVISION SIXTEEN OF SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER.
[(2)] (4) As used in this article, references to persons or petroleum
businesses registered under article twelve-A of this chapter as distrib-
utors of diesel motor fuel shall include all such persons or petroleum
businesses registered under such article as distributors of diesel motor
fuel and persons or petroleum businesses operating under valid limited
registrations relating to persons or petroleum businesses making retail
sales of diesel motor fuel to consumers solely for the purposes
described in subparagraph (i) of paragraph (b) of subdivision three of
section two hundred eighty-two-a of this chapter, but such references
shall not include persons and petroleum businesses registered as
"distributors of kero-jet fuel only" pursuant to the provisions of
subdivision two of section two hundred eighty-two-a of this chapter.
(k) "Commercial gallonage" means gallonage (1) which is [nonautomo-
tive-type] NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel
motor fuel)] or residual petroleum product, (2) which is included in the
full measure of the [nonautomotive-type] NON-HIGHWAY diesel motor fuel
component or the residual petroleum product component of the tax imposed
under section three hundred one-a of this article, [and] (3) which does
not (and will not) qualify (A) for the utility credit or reimbursement
provided for in section three hundred one-d of this article, (B) as
"manufacturing gallonage", as such term is defined in subdivision (m) of
this section, (C) for the not-for-profit organization exemption provided
for in subdivision (h) of section three hundred one-b of this article,
or (D) for the heating exemption provided for in paragraph two of subdi-
vision (d) of section three hundred one-b of this article or the heating
reimbursement provided for in paragraph two of subdivision (a) of
section three hundred one-c of this article, AND (4) WHICH WILL NOT BE
USED NOR HAS BEEN USED IN THE FUEL TANK CONNECTING WITH THE ENGINE OF A
VESSEL. No gallonage shall qualify as "commercial gallonage" where such
gallonage is eligible for the (i) utility credit or reimbursement under
such section three hundred one-d of this article, (ii) [if before Janu-
ary first, nineteen hundred ninety-eight, the manufacturing exemption or
reimbursement under paragraph one of subdivision (b) of section three
hundred one-j of this article and, if on or after January first, nine-
teen hundred ninety-eight, the] "manufacturing exemption" under para-
graph [four] THREE of subdivision (f) of section three hundred one-a of
this article, (iii) [the] not-for-profit organization exemption under
subdivision (h) of section three hundred one-b of this article, or (iv)
heating exemption provided for in paragraph two of subdivision (d) of
section three hundred one-b of this article or the heating reimbursement
provided for in paragraph two of subdivision (a) of section three
hundred one-c of this article. The commissioner shall require such docu-
S. 2811--B 48
mentary proof to substantiate the classification of product as "commer-
cial gallonage" as the commissioner deems appropriate.
(l) "Railroad diesel" means NON-HIGHWAY diesel motor fuel for use and
consumption directly and exclusively in the operation of a locomotive or
a self-propelled vehicle run only on rails or tracks, but only if either
(1) all such fuel is delivered into a storage facility which is not
equipped with a hose or other apparatus by which such fuel can be
dispensed into the fuel tank of a motor vehicle and such facility is
used only to fuel such locomotives or such self-propelled vehicles, or
(2) in accordance with the terms of sale, all such fuel is delivered
directly into the tank of a locomotive or self-propelled vehicle.
Provided, however, that a sale to a purchaser who will use such
NON-HIGHWAY diesel motor fuel as "railroad diesel" shall be evidenced by
a certificate signed by the purchaser stating that such diesel motor
fuel will be used and consumed as prescribed in this subdivision and the
commissioner may require such other information as the commissioner
deems appropriate.
(m) "Manufacturing gallonage" means residual petroleum product or
NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor
fuel)] used and consumed directly and exclusively in the production of
tangible personal property for sale by manufacturing, processing or
assembly, but only if (I) all of such fuel or product is delivered on
the manufacturing site [and is consumed other than on the highways of
this state], OR (II) THE PURCHASER CAUSES SUCH FUEL OR PRODUCT TO BE
DELIVERED TO ITS MANUFACTURING SITE. "Manufacturing gallonage" shall in
no event [include diesel motor fuel] BE CONSUMED ON THE PUBLIC HIGHWAYS
OF THIS STATE OR delivered at a filling station or into a repository
which is equipped with a hose or other apparatus by which such fuel can
be dispensed into the fuel tank of a motor vehicle. The commissioner
shall require such documentary proof to substantiate the classification
of product as "manufacturing gallonage" as the commissioner deems appro-
priate.
S 18. Section 301 of the tax law is REPEALED.
S 19. Subdivision (a), paragraph 1 of subdivision (b) and subdivisions
(c), (e), (f) and (h) of section 301-a of the tax law, subdivision (a)
as amended by section 1 of part U of chapter 63 of the laws of 2000,
paragraph 1 of subdivision (b) and paragraph 1 of subdivision (c) as
amended by section 154 of part A of chapter 389 of the laws of 1997,
subdivisions (c), (e), (f) and (h) as added by chapter 190 of the laws
of 1990, paragraph 3 of subdivision (e) and paragraph 3 of subdivision
(f) as amended by chapter 170 of the laws of 1994 and paragraph 4 of
subdivision (e) and paragraph 4 of subdivision (f) as added by chapter
309 of the laws of 1996, are amended to read as follows:
(a) General. Notwithstanding any other provision of this chapter, or
of any other law, [for taxable months commencing on or after the first
day of September, nineteen hundred ninety,] there is hereby imposed upon
every petroleum business for the privilege of engaging in business,
doing business, employing capital, owning or leasing property, or main-
taining an office in this state, a monthly tax for each or any part of a
taxable month equal to the sum of the motor fuel component determined
pursuant to subdivision (b) of this section, the [automotive-type] HIGH-
WAY diesel motor fuel component determined pursuant to paragraph one of
subdivision (c) of this section, the [nonautomotive-type] NON-HIGHWAY
diesel motor fuel component determined pursuant to paragraph two of
subdivision (c) of this section and the residual petroleum product
component determined pursuant to subdivision (d) of this section.
S. 2811--B 49
(1) The motor fuel component shall be determined by multiplying the
motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate times
the number of gallons of (1) motor fuel imported or caused to be
imported into this state by the petroleum business for use, distrib-
ution, storage or sale in the state or (2) produced, refined, manufac-
tured or compounded in the state by the petroleum business during the
month covered by the return under this article. Provided, however, that
no motor fuel shall be included in the measure of the tax unless it
shall have previously come to rest within the meaning of federal deci-
sional law interpreting the United States constitution, nor shall any
motor fuel be included in the measure of the tax imposed by this article
more than once.
(c) (1) [Automotive-type] HIGHWAY Diesel motor fuel component. (A) The
[automotive-type] HIGHWAY diesel motor fuel component shall be deter-
mined by multiplying the motor fuel and [automotive-type] HIGHWAY diesel
motor fuel rate times (1) the number of gallons of [automotive-type]
HIGHWAY diesel motor fuel sold or used by a petroleum business in this
state during the month covered by the return under this article and (2)
with respect to any gallonage which prior thereto has not been included
in the measure of the tax imposed by this article, times the number of
gallons of HIGHWAY diesel motor fuel delivered (i) to a filling station
or (ii) into the fuel tank connecting with the engine of a motor vehicle
for use in the operation thereof, whichever of the latter two events
shall be the first to occur. Provided, however, that no HIGHWAY diesel
motor fuel shall be included in the measure of the tax unless it shall
have previously come to rest within the meaning of federal decisional
law interpreting the United States constitution, nor decisional law, nor
shall any HIGHWAY diesel motor fuel be included in the measure of the
tax imposed by this article more than once.
(B) [Diesel] HIGHWAY DIESEL motor fuel brought into this state in the
fuel tank connecting with the engine of a vessel propelled by the use of
such diesel motor fuel shall be deemed to constitute a taxable use of
diesel motor fuel for the purpose of this paragraph to the extent of the
fuel that is consumed in the operation of the vessel in this state.
Provided, however, this paragraph shall not apply to (i) a recreational
motor boat or (ii) [subsequent to August thirty-first, nineteen hundred
ninety-four,] a commercial fishing vessel (as defined in subdivision (j)
of section three hundred of this article) if the HIGHWAY diesel motor
fuel imported into and consumed in this state is used to operate such
commercial fishing vessel while it is engaged in the harvesting of fish
for sale. Provided, further, that tax liability for gallonage that a
vessel consumes in this state shall be the tax liability with respect to
the positive difference between the gallonage consumed in this state
during the reporting period and the gallonage purchased in this state
(upon which the tax imposed by this section has been paid) during such
period. A credit or refund shall be available for any excess of tax
liability for gallonage purchased in this state during the period over
tax liability on gallonage so consumed in this state during such period,
which excess shall be presumed to have been used outside this state.
(2) [Nonautomotive-type] NON-HIGHWAY diesel motor fuel component. The
[nonautomotive-type] NON-HIGHWAY diesel fuel component shall be deter-
mined by multiplying the [nonautomotive-type] NON-HIGHWAY diesel motor
fuel rate times the number of gallons of [nonautomotive-type] NON-HIGH-
WAY diesel motor fuel sold or used by a petroleum business in this state
during the month covered by the return under this section. Provided,
however, that no NON-HIGHWAY diesel motor fuel shall be included in the
S. 2811--B 50
measure of the tax unless it shall have previously come to rest within
the meaning of federal decisional law interpreting the United States
constitution, nor shall any [nonautomotive-type] NON-HIGHWAY diesel
motor fuel be included in the measure of the tax imposed by this article
more than once.
(e) Motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate.
(1) The basic motor fuel and HIGHWAY diesel [automotive-type] motor fuel
rate shall be [five and one-half] TEN AND TWO-TENTHS cents per gallon.
(2) [Commencing April first, nineteen hundred ninety-one, the motor
fuel and automotive-type diesel motor fuel rate shall be the product of
the basic rate set forth in paragraph one of this subdivision multiplied
by a fraction, the numerator of which is the sum of the monthly producer
price index (unadjusted) published by the bureau of labor statistics of
the United States department of labor for the category of commodities
designated "refined petroleum products" for the twelve consecutive
months ending with the month of November, nineteen hundred ninety, and
the denominator of which is the sum of the monthly producer price index
(unadjusted) published by the bureau of labor statistics of the United
States department of labor for the category of commodities designated
"refined petroleum products" for the twelve consecutive months ending
with the month of November, nineteen hundred eighty-nine.
(3) Commencing on the first day of January, nineteen hundred ninety-
two, the motor fuel and automotive-type diesel motor fuel rate then in
effect on the immediately preceding December thirty-first shall be
adjusted as follows: such rate shall be multiplied by a fraction the
numerator of which is the sum of the monthly producer price index (unad-
justed) published by the bureau of labor statistics of the United States
department of labor for the category of commodities designated "refined
petroleum products" for the twelve consecutive months ending with the
month of August, nineteen hundred ninety-one and the denominator of
which is the sum of the monthly producer price index (unadjusted)
published by the bureau of labor statistics of the United States depart-
ment of labor for the category of commodities designated "refined petro-
leum products" for the twelve consecutive months ending with the month
of August, nineteen hundred ninety. Commencing on the first day of Janu-
ary of nineteen hundred ninety-six and every] EVERY year [thereafter] AS
OF JANUARY FIRST, the motor fuel and [automotive-type] HIGHWAY diesel
motor fuel rate then in effect on the immediately preceding December
thirty-first shall be adjusted as follows: such rate shall be multiplied
by a fraction the numerator of which is the sum of the monthly producer
price index (unadjusted) published by the bureau of labor statistics of
the United States department of labor for the category of commodities
designated "refined petroleum products" for the twelve consecutive
months ending with the month of August of the immediately preceding year
and the denominator of which is the sum of the monthly producer price
index (unadjusted) published by the bureau of labor statistics of the
United States department of labor for the category of commodities desig-
nated "refined petroleum products" for the twelve consecutive months
ending with the month of August in the year prior to such immediately
preceding year, provided, however, that the adjusted rate [to take
effect on January first, nineteen hundred ninety-six and each January
first thereafter] shall not increase above or decrease below the rate in
effect on the immediately preceding December thirty-first by more than
five percent.
[(4)] (3) Notwithstanding any other provision of this article,
[commencing January first, nineteen hundred ninety-seven,] the per
S. 2811--B 51
gallon rate with respect to "railroad diesel" shall be the adjusted
motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate under
paragraphs one [through three] AND TWO of this subdivision [for the
period commencing such January first, nineteen hundred ninety-seven,]
minus one and three tenths cents per gallon. [Commencing on the first
day of January each year thereafter, the per gallon rate with respect to
"railroad diesel" shall be determined by taking the then motor fuel and
automotive-type diesel motor fuel rate under paragraphs one through
three of this subdivision which commences on such first day of January
and subtracting one and three tenths cents per gallon.]
(f) [Nonautomotive-type] NON-HIGHWAY diesel motor fuel rate.
(1) The basic [nonautomotive-type] NON-HIGHWAY diesel motor fuel rate
shall be [five] NINE AND THREE-TENTHS cents per gallon.
(2) [Commencing April first, nineteen hundred ninety-one, the nonauto-
motive-type diesel motor fuel rate shall be the product of the basic
rate set forth in paragraph one of this subdivision multiplied by a
fraction the numerator of which is the sum of the monthly producer price
index (unadjusted) published by the bureau of labor statistics of the
United States department of labor for the category of commodities desig-
nated "refined petroleum products" for the twelve consecutive months
ending with the month of November, nineteen hundred ninety, and the
denominator of which is the sum of the monthly producer price index
(unadjusted) published by the bureau of the labor statistics of the
United States department of labor for the category of commodities desig-
nated "refined petroleum products" for the twelve consecutive months
ending with the month of November, nineteen hundred eighty-nine.
(3) Commencing on the first day of January, nineteen hundred ninety-
two, the nonautomotive-type diesel motor fuel rate then in effect on the
immediately preceding December thirty-first shall be adjusted as
follows: Such rate shall be multiplied by a fraction the numerator of
which is the sum of the monthly producer price index (unadjusted)
published by the bureau of labor statistics of the United States depart-
ment of labor for the category of commodities designated "refined petro-
leum products" for the twelve consecutive months ending with the month
of August, nineteen hundred ninety-one and the denominator of which is
the sum of the monthly producer price index (unadjusted) published by
the bureau of labor statistics of the United States department of labor
for the category of commodities designated "refined petroleum products"
for the twelve consecutive months ending with the month of August, nine-
teen hundred ninety. Commencing on the first day of January of nineteen
hundred ninety-six and every] EVERY year [thereafter,] AS OF JANUARY
FIRST the [nonautomotive-type] NON-HIGHWAY diesel motor fuel rate then
in effect on the immediately preceding December thirty-first shall be
adjusted as follows: Such rate shall be multiplied by a fraction the
numerator of which is the sum of the monthly producer price index (unad-
justed) published by the bureau of labor statistics of the United States
department of labor for the category of commodities designated "refined
petroleum products" for the twelve consecutive months ending with the
month of August of the immediately preceding year and the denominator of
which is the sum of the monthly producer price index (unadjusted)
published by the bureau of labor statistics of the United States depart-
ment of labor for the category of commodities designated "refined petro-
leum products" for the twelve consecutive months ending with the month
of August in the year prior to such immediately preceding year,
provided, however, that the adjusted rate [to take effect on January
first, nineteen hundred ninety-six and each January first thereafter]
S. 2811--B 52
shall not increase above or decrease below the rate in effect on the
immediately preceding December thirty-first by more than five percent.
[(4)] (3) Notwithstanding any other provision of this article,
[commencing January first, nineteen hundred ninety-eight, nonautomo-
tive-type] NON-HIGHWAY diesel motor fuel which is "manufacturing gallo-
nage," as such term is defined in subdivision (m) of section three
hundred of this article, shall be exempt from the measure of the [nonau-
tomotive-type] NON-HIGHWAY diesel motor fuel component of the tax
imposed under this section.
(h) Publication and rounding of rate. (1) The commissioner [of taxa-
tion and finance] shall cause to be published in the section for miscel-
laneous notices in the state register, and give other appropriate gener-
al notice of, the rate adjustment calculation and the resulting motor
fuel and [automotive-type] HIGHWAY diesel motor fuel rate, [nonautomo-
tive-type] NON-HIGHWAY diesel motor fuel rate and residual petroleum
product rate fixed by this section for the period commencing on [April
first, nineteen hundred ninety-one, no later than the immediately
preceding first day of March] JANUARY FIRST, TWO THOUSAND TWELVE, and
for each calendar year thereafter, no later than the immediately preced-
ing first day of December. The calculation and publication of the rates
of tax so fixed by provisions of this section shall not be included
within paragraph (a) of subdivision two of section one hundred two of
the state administrative procedure act relating to the definition of a
rule.
(2) The rates determined pursuant to this section shall be rounded to
the nearest one-tenth of one cent.
S 19-a. Subdivision (k) of section 301-a of the tax law is REPEALED.
S 20. Section 301-a of the tax law is amended by adding a new subdivi-
sion (m) to read as follows:
(M) SPECIAL RATE ADJUSTMENT FOR CERTAIN VESSELS. NOTWITHSTANDING ANY
PROVISION OF THIS SECTION TO THE CONTRARY, THE USE OF NON-HIGHWAY DIESEL
MOTOR FUEL IN THE ENGINE OF A VESSEL TO PROPEL SUCH VESSEL SHALL BE
SUBJECT TO TAX AT THE MOTOR FUEL AND HIGHWAY DIESEL MOTOR FUEL RATE
PROVIDED FOR IN THIS SECTION, AND SHALL BE SUBJECT TO THE PROVISIONS OF
SECTION THREE HUNDRED ONE-J OF THIS ARTICLE, INCLUDING THE ADJUSTMENT
SET FORTH IN PARAGRAPH FOUR OF SUBDIVISION (A) OF SUCH SECTION THREE
HUNDRED ONE-J. A CREDIT OR REFUND SHALL BE AVAILABLE TO THE EXTENT TAX
PAID ON GALLONAGE USED TO PROPEL ANY SUCH VESSEL EXCEEDS THE AMOUNT OF
TAX DUE BASED ON THE TAX RATE SET FORTH HEREIN. PROVIDED, HOWEVER, THAT
THE COMMISSIONER SHALL REQUIRE SUCH DOCUMENTARY PROOF TO QUALIFY FOR ANY
CREDIT OR REIMBURSEMENT PROVIDED HEREUNDER AS THE COMMISSIONER DEEMS
APPROPRIATE.
S 21. Paragraph 2 of subdivision (b), paragraphs 2 and 3 of subdivi-
sion (c), subdivisions (d) and (e), paragraph 1 of subdivision (f) and
subdivisions (g), (h) and (i) of section 301-b of the tax law, paragraph
2 of subdivision (b) and paragraphs 2 and 3 of subdivision (c) and
subdivision (e) as added by chapter 190 of the laws of 1990, the opening
paragraph of paragraph 2 of subdivision (b) as amended by section 155 of
part A of chapter 389 of the laws of 1997, subdivision (d) as amended by
section 2 of part H of chapter 407 of the laws of 1999 and subparagraph
(C) of paragraph 2 of subdivision (d) as amended by section 1 of part X
of chapter 63 of the laws of 2000, paragraph 1 of subdivision (f) as
added by chapter 166 of the laws of 1991, subdivision (g) as added by
chapter 170 of the laws of 1994, subdivision (h) as amended by chapter
302 of the laws of 2006 and subdivision (i) as added by chapter 468 of
the laws of 2000, are amended to read as follows:
S. 2811--B 53
(2) [Enhanced] HIGHWAY diesel motor fuel imported or caused to be
imported into this state or produced, refined, manufactured or
compounded in this state by a petroleum business registered under arti-
cle twelve-A of this chapter, as a distributor of diesel motor fuel,
which is sold by such petroleum business to a purchaser who then exports
such HIGHWAY diesel motor fuel from this state for sale or use outside
the state where
(A) such purchaser exporting such fuel is duly registered with or
licensed by the taxing authorities of the state to which such fuel is
exported as a distributor or a dealer in the product being so exported,
(B) in connection with the exportation, such fuel was immediately
shipped to an identified facility in the state to which such fuel is
exported, and
(C) the rules and regulations of the commissioner [of taxation and
finance] relating to evidentiary requirements are complied with.
(2) [Enhanced] HIGHWAY diesel motor fuel imported or caused to be
imported into this state or produced, refined, manufactured or
compounded by a petroleum business registered under article twelve-A of
this chapter, as a distributor of diesel motor fuel, and then sold by
such petroleum business to an organization described in paragraph one or
two of subdivision (a) of section eleven hundred sixteen of this chapter
where such HIGHWAY DIESEL motor fuel is used by such organization for
its own use or consumption.
(3) NON-HIGHWAY Diesel motor fuel[, which is not enhanced diesel motor
fuel,] sold by a petroleum business registered under article twelve-A of
this chapter as a distributor of diesel motor fuel to an organization
described in paragraph one or two of subdivision (a) of section eleven
hundred sixteen of this chapter where such NON-HIGHWAY diesel motor fuel
is used by such organization for its own use or consumption.
(d) Sales to consumers for heating purposes. (1) Total residential
heating exemption. [(A) Unenhanced] NON-HIGHWAY diesel motor fuel sold
by a petroleum business registered under article twelve-A of this chap-
ter as a distributor of diesel motor fuel or residual petroleum product
sold by a petroleum business registered under this article as a residual
petroleum product business to the consumer exclusively for residential
heating purposes[.
(B) Enhanced diesel motor fuel sold by a petroleum business registered
under article twelve-A of this chapter as a distributor of diesel motor
fuel to the consumer exclusively for residential heating purposes but]
only if such [enhanced] NON-HIGHWAY diesel motor fuel is delivered into
a storage tank which is not equipped with a hose or other apparatus by
which such fuel can be dispensed into the fuel tank of a motor vehicle
and such storage tank is attached to the heating unit burning such
fuel[, provided, that with respect to each delivery of such fuel over
four thousand five hundred gallons, to obtain this exemption there shall
be required a certificate signed by the purchaser stating that the prod-
uct will be used exclusively for residential heating purposes].
(2) Partial non-residential heating exemption. (A) [Unenhanced]
NON-HIGHWAY diesel motor fuel sold by a petroleum business registered
under article twelve-A of this chapter as a distributor of diesel motor
fuel or residual petroleum product sold by a petroleum business regis-
tered under this article as a residual petroleum product business to the
consumer exclusively for heating, other than residential heating
purposes[.
(B) Enhanced diesel motor fuel sold by a petroleum business registered
under article twelve-A of this chapter as a distributor of diesel motor
S. 2811--B 54
fuel to the consumer exclusively for heating, other than residential
heating purposes, but] only if such [enhanced] NON-HIGHWAY diesel motor
fuel is delivered into a storage tank which is not equipped with a hose
or other apparatus by which such fuel can be dispensed into the fuel
tank of a motor vehicle and such storage tank is attached to the heating
unit burning such fuel[, provided, that with respect to each delivery of
such fuel over four thousand five hundred gallons, to obtain this
exemption there shall be required a certificate signed by the purchaser
stating that the product will be used exclusively for heating, other
than residential heating purposes.
(C)] (B) Calculation of partial exemption. [Notwithstanding any other
provision of this article, commencing April first, two thousand one and
ending August thirty-first, two thousand two, the amount of the partial
exemption under this paragraph shall be determined by multiplying the
quantity of diesel motor fuel and residual petroleum product eligible
for the exemption times the sum of the then current rate of the supple-
mental tax imposed by section three hundred one-j of this article and
twenty percent of the then current rate of the tax imposed by section
three hundred one-a of this article, with respect to the specific diesel
motor fuel or residual petroleum product rate, as the case may be, and
commencing September first, two thousand two, the amount of the] THE
partial exemption under this paragraph shall be determined by multiply-
ing the quantity of NON-HIGHWAY diesel motor fuel and residual petroleum
product eligible for the exemption times the sum of the then current
rate of the supplemental tax imposed by section three hundred one-j of
this article and forty-six percent of the then current rate of the tax
imposed by section three hundred one-a of this article, with respect to
the specific NON-HIGHWAY diesel motor fuel or residual petroleum product
rate, as the case may be.
(e) Sales of NON-HIGHWAY diesel motor fuel and residual petroleum
product to registered distributors of diesel motor fuel and registered
residual petroleum product businesses.
(1) NON-HIGHWAY Diesel motor fuel[, which is not enhanced diesel motor
fuel,] sold by a person registered under article twelve-A of this chap-
ter as a distributor of diesel motor fuel to a person registered under
such article twelve-A as a distributor of diesel motor fuel where such
sale is not a retail sale or a sale that involves a delivery at a fill-
ing station or into a repository equipped with a hose or other apparatus
by which such NON-HIGHWAY DIESEL MOTOR fuel can be dispensed into the
fuel tank of a motor vehicle.
(2) Residual petroleum product sold by a person registered under this
article as a residual petroleum product business to a person registered
under this article as a residual petroleum product business where such
sale is not a retail sale. Provided, however, that the commissioner [of
taxation and finance] may require such documentary proof to qualify for
any exemption provided in this section as the commissioner deems appro-
priate, including the expansion of any certifications required pursuant
to section two hundred eighty-five-a or two hundred eighty-five-b of
this chapter to cover the taxes imposed by this article.
(1) Residual petroleum product and NON-HIGHWAY diesel motor fuel
[(which is not enhanced diesel motor fuel)] sold to an electric corpo-
ration, as described in subdivision (a) of section three hundred one-d
of this article, which is registered with the department [of taxation
and finance] as a petroleum business tax direct pay permittee, and used
by such electric corporation to fuel generators for the purpose of manu-
facturing or producing electricity where such electric corporation
S. 2811--B 55
provides a copy of a direct pay permit authorized and issued by the
commissioner [of taxation and finance], to the petroleum business making
such sale. If so registered, such corporation shall be a taxpayer under
this article and (i) such electric corporation shall file a return
monthly and pay the applicable tax under this article, after the appli-
cation of allowable credits, on all such purchases directly to the
commissioner, (ii) such electric corporation shall be subject to all of
the provisions of this article relating to the responsibilities and
liabilities of taxpayers under this article with respect to such resi-
dual petroleum product and NON-HIGHWAY diesel motor fuel.
(g) Sales or uses of NON-HIGHWAY diesel motor fuel and residual petro-
leum product for farm production. NON-HIGHWAY Diesel motor fuel or resi-
dual petroleum product sold to or used by a consumer who purchases or
uses such NON-HIGHWAY DIESEL MOTOR fuel or product for use or consump-
tion directly and exclusively in the production for sale of tangible
personal property by farming, but only if all such NON-HIGHWAY DIESEL
MOTOR fuel or product is delivered on the farm site and is consumed
other than on the PUBLIC highways of this state (except for the use of
the PUBLIC highway to reach adjacent farmlands)[; provided, however,
that a farmer may purchase no more than four thousand five hundred
gallons of diesel motor fuel in a thirty-day period for such use or
consumption exempt from the measure of the tax imposed by section three
hundred one-a of this article, except in accordance with prior clearance
given by the commissioner].
(h) Exemption for certain not-for-profit organizations. There shall be
exempt from the measure of the petroleum business tax imposed by section
three hundred one-a of this article a sale or use of residual petroleum
product, OR NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel
motor fuel) or dyed diesel motor fuel,] to or by an organization which
has qualified under paragraph four or five of subdivision (a) of section
eleven hundred sixteen of this chapter where such NON-HIGHWAY diesel
motor fuel or residual petroleum product is exclusively for use and
consumption by such organization, but only if all of such NON-HIGHWAY
diesel motor fuel or product is consumed other than on the PUBLIC high-
ways of this state. Provided, however, this exemption shall in no event
apply to a sale of NON-HIGHWAY diesel motor fuel which involves a deliv-
ery at a filling station or into a repository which is equipped with a
hose or other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can
be dispensed into the fuel tank of a motor vehicle and all deliveries
hereunder shall be made to the premises occupied by the qualifying
organization and used by such organization in furtherance of the exempt
purposes of such organization. Provided, however, that the commissioner
shall require such documentary proof to qualify for any exemption
provided herein as the commissioner deems appropriate. Provided,
further, the distributor selling such NON-HIGHWAY DIESEL MOTOR fuel and
product shall separately report on its return the gallonage sold during
the reporting period exempt from tax under the provisions of this subdi-
vision and provide such other information with respect to such sales as
the commissioner deems appropriate to prevent evasion. [The term "dyed
diesel motor fuel" as used in this subdivision shall have the same mean-
ing it has in subdivision eighteen of section two hundred eighty-two of
this chapter.]
(i) Exemption for passenger commuter ferries. A use by a passenger
commuter ferry of NON-HIGHWAY diesel motor fuel or residual petroleum
product where such NON-HIGHWAY diesel motor fuel or residual petroleum
product was used and consumed by a passenger commuter ferry exclusively
S. 2811--B 56
in providing mass transportation service. Provided, that the commission-
er shall require such documentary proof to qualify for any exemption
provided hereunder as the commissioner deems appropriate.
S 22. Subdivision (j) of section 301-b of the tax law is REPEALED.
S 23. Subdivisions (a), (e), (f), (h), (i), (j), (k), (l) and (m) of
section 301-c of the tax law, subdivision (a) as amended by section 4
and subdivision (l) as added by section 5 of part H of chapter 407 of
the laws of 1999, subparagraph (B) of paragraph 2 of subdivision (a) as
amended by section 2 of part X of chapter 63 of the laws of 2000, subdi-
visions (e) and (f) as added by chapter 170 of the laws of 1994, subdi-
vision (h) as amended by chapter 302 of the laws of 2006, subdivisions
(i), (j) and (k) as added by chapter 309 of the laws of 1996, and subdi-
vision (m) as added by chapter 468 of the laws of 2000, are amended to
read as follows:
(a) NON-HIGHWAY Diesel motor fuel used for heating purposes. (1) Total
residential heating reimbursement. NON-HIGHWAY Diesel motor fuel
purchased in this state and sold by such purchaser to a consumer for use
exclusively for residential heating purposes but only where (i) such
NON-HIGHWAY diesel motor fuel is delivered into a storage tank which is
not equipped with a hose or other apparatus by which such NON-HIGHWAY
DIESEL MOTOR fuel can be dispensed into the fuel tank of a motor vehicle
and such storage tank is attached to the heating unit burning such NON-
HIGHWAY DIESEL MOTOR fuel, (ii) the tax imposed pursuant to this article
has been paid with respect to such NON-HIGHWAY diesel motor fuel and the
entire amount of such tax has been absorbed by such purchaser, and (iii)
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 is authorized, in the event that the commissioner determines that
it would not threaten the integrity of the administration and enforce-
ment of the tax imposed by this article, to provide a reimbursement with
respect to a retail sale to a consumer for residential heating purposes
of less than ten gallons of NON-HIGHWAY diesel motor fuel provided such
fuel is not dispensed into the tank of a motor vehicle. [Provided,
further, that with respect to each delivery of enhanced diesel motor
fuel of over four thousand five hundred gallons, to obtain this
reimbursement there shall be required a certificate signed by the
consumer stating that the product will be used exclusively for residen-
tial heating purposes.]
(2) Partial non-residential heating reimbursement. (A) NON-HIGHWAY
Diesel motor fuel purchased in this state and sold by such purchaser to
a consumer for use exclusively for heating, other than for residential
heating purposes, but only where (i) such NON-HIGHWAY diesel motor fuel
is delivered into a storage tank which is not equipped with a hose or
other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can be
dispensed into the fuel tank of a motor vehicle and such storage tank is
attached to the heating unit burning such NON-HIGHWAY DIESEL MOTOR fuel,
(ii) the tax imposed pursuant to this article has been paid with respect
to such NON-HIGHWAY diesel motor fuel and the entire amount of such tax
has been absorbed by such purchaser, and (iii) such purchaser possesses
documentary proof satisfactory to the commissioner evidencing the
absorption by it of the entire amount of the tax imposed pursuant to
this article. [Provided, however, that with respect to each delivery of
enhanced diesel motor fuel of over four thousand five hundred gallons,
to obtain this reimbursement there shall be required a certificate
S. 2811--B 57
signed by the consumer stating that the product will be used exclusively
for heating, other than for residential heating purposes.]
(B) Calculation of partial reimbursement. Notwithstanding any other
provision of this article, [commencing April first, two thousand one and
ending August thirty-first, two thousand two, the amount of the
reimbursement under this paragraph shall be determined by multiplying
the quantity of diesel motor fuel eligible for the reimbursement times
the sum of the then current rate of the supplemental tax imposed by
section three hundred one-j of this article and twenty percent of the
then current rate of the tax imposed by section three hundred one-a of
this article, with respect to the specific diesel motor fuel rate, as
the case may be, and commencing September first, two thousand two,] the
amount of the reimbursement under this paragraph shall be determined by
multiplying the quantity of NON-HIGHWAY diesel motor fuel eligible for
the reimbursement times the sum of the then current rate of the supple-
mental tax imposed by section three hundred one-j of this article and
forty-six percent of the then current rate of the tax imposed by section
three hundred one-a of this article, with respect to the [specific]
NON-HIGHWAY diesel motor fuel rate, as the case may be.
(e) NON-HIGHWAY Diesel motor fuel and residual petroleum product used
for farm production. NON-HIGHWAY Diesel motor fuel or residual petroleum
product purchased in this state and sold by such purchaser to a consumer
for use or consumption directly and exclusively in the production for
sale of tangible personal property by farming, but only if all of such
NON-HIGHWAY DIESEL MOTOR fuel or product is delivered on the farm site
and is consumed other than on the PUBLIC highways of this state (except
for the use of the PUBLIC highway to reach adjacent farmlands)[;
provided, however, that a subsequent purchaser shall be eligible for
this reimbursement with respect to no more than four thousand five
hundred gallons of diesel motor fuel sold to a consumer in a thirty-day
period for such use or consumption, except in accordance with prior
clearance given by the commissioner]. This reimbursement may be claimed
only where (i) the tax imposed pursuant to this article has been paid
with respect to such NON-HIGHWAY diesel motor fuel or residual petroleum
product and the entire amount of such tax has been absorbed by such
purchaser, and (ii) such purchaser possesses documentary proof satisfac-
tory to the commissioner evidencing the absorption by it of the entire
amount of the tax imposed pursuant to this article. Provided, however,
that the commissioner shall require such documentary proof to qualify
for any reimbursement of tax provided by this section as the commission-
er deems appropriate[, including any certification required pursuant to
section two hundred eighty-five-b of this chapter and any such prior
clearance described in the first sentence of this subdivision].
(f) Motor fuel used for farm production. No more than one thousand
five hundred gallons of motor fuel purchased in this state in a thirty-
day period or a greater amount which has been given prior clearance by
the commissioner, by a consumer for use or consumption directly and
exclusively in the production for sale of tangible personal property by
farming, but only if all of such fuel is delivered on the farm site and
is consumed other than on the PUBLIC highways of this state (except for
the use of the PUBLIC highway to reach adjacent farmlands). This
reimbursement to such purchaser who used such motor fuel in the manner
specified in this subdivision may be claimed only where, (i) the tax
imposed pursuant to this article has been paid with respect to such
motor fuel and the entire amount of such tax has been absorbed by such
purchaser, and (ii) such purchaser possesses documentary proof satisfac-
S. 2811--B 58
tory to the commissioner evidencing the absorption by it of the entire
amount of the tax imposed pursuant to this article. Provided, however,
that the commissioner shall require such documentary proof to qualify
for any reimbursement of tax provided by this subdivision as the commis-
sioner deems appropriate. The commissioner is hereby empowered to make
such provisions as deemed necessary to define the procedures for grant-
ing prior clearance for purchases of more than one thousand five hundred
gallons in a thirty-day period.
(h) A subsequent purchaser which is registered as a distributor of
diesel motor fuel shall be eligible for reimbursement of the tax imposed
by section three hundred one-a of this article with respect to gallonage
of residual petroleum product[,] AND NON-HIGHWAY diesel motor fuel
[(which is not enhanced diesel motor fuel) and dyed diesel motor fuel,]
subsequently sold by such purchaser to an organization which has quali-
fied under paragraph four or five of subdivision (a) of section eleven
hundred sixteen of this chapter for the exclusive use and consumption by
such organization. Provided, however, this exemption shall in no event
apply to a sale of NON-HIGHWAY diesel motor fuel which involves a deliv-
ery at a filling station or into a repository which is equipped with a
hose or other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can
be dispensed into the fuel tank of a motor vehicle and all deliveries
hereunder shall be made to the premises occupied by the qualifying
organization and used by such organization in furtherance of the exempt
purposes of such organization. This reimbursement may be claimed only
where (i) the tax imposed pursuant to this article has been paid with
respect to such NON-HIGHWAY diesel motor fuel or residual petroleum
product and the entire amount of such tax has been absorbed by such
purchaser, and (ii) such purchaser possesses documentary proof satisfac-
tory to the commissioner evidencing the absorption by it of the entire
amount of the tax imposed pursuant to this article. Provided, further,
that the commissioner shall require such other documentary proof to
qualify for any reimbursement of tax provided by this section as the
commissioner deems appropriate. [The term "dyed diesel motor fuel" as
used in this subdivision shall have the same meaning it has in subdivi-
sion eighteen of section two hundred eighty-two of this chapter.]
(i) Reimbursement for commercial gallonage. (1) [Commencing March
first, nineteen hundred ninety-seven, a] A reimbursement shall be
allowed to a consumer with respect to gallonage of [nonautomotive-type]
NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor
fuel)] or residual petroleum product (i) which was purchased by such
consumer and where the supplemental tax imposed by section three hundred
one-j of this article with respect to such gallonage was paid by a
petroleum business and passed through to such consumer, (ii) such
consumer absorbed the entirety of such tax in the purchase price of such
gallonage, and (iii) such gallonage was used and consumed by such
consumer exclusively as "commercial gallonage". Provided, however, that
the commissioner shall require such documentary proof to qualify for any
reimbursement of tax provided by this subdivision as the commissioner
deems appropriate, including a certification by the consumer that the
product was used and consumed exclusively as "commercial gallonage" by
such consumer.
(2) Calculation. The amount of the reimbursement shall be determined
by multiplying the quantity of "commercial gallonage" eligible for
reimbursement times the then current rate of the supplemental tax
imposed by section three hundred one-j of this article with respect to
[nonautomotive-type] NON-HIGHWAY diesel motor fuel or residual petroleum
S. 2811--B 59
product, as the case may be. Any reimbursement of tax may be applied for
not more often than monthly.
(j) Reimbursement for manufacturing gallonage. [Commencing January
first, nineteen hundred ninety-eight, a] A subsequent purchaser shall be
eligible for reimbursement of any taxes imposed under this article with
respect to gallonage of residual petroleum product and NON-HIGHWAY
diesel motor fuel [(which is not enhanced diesel motor fuel),] subse-
quently sold by such purchaser to a consumer as "manufacturing gallo-
nage." This reimbursement may be claimed only where (1) any tax imposed
pursuant to this article has been paid with respect to such gallonage
and the entire amount of such tax has been absorbed by such purchaser,
and (2) such purchaser possesses documentary proof satisfactory to the
commissioner evidencing the absorption by it of the entire amount of
such tax. Provided, however, that the commissioner shall require such
documentary proof to qualify for any reimbursement of tax provided by
this subdivision as the commissioner deems appropriate including a
certificate by the consumer that such product is to be used and consumed
exclusively as "manufacturing gallonage".
(k) Reimbursement for railroad gallonage. (1) [Commencing January
first, nineteen hundred ninety-seven, a] A subsequent purchaser, which
is registered as a distributor of diesel motor fuel, shall be eligible
for a reimbursement in accordance with this subdivision with respect to
NON-HIGHWAY diesel motor fuel subsequently sold by such purchaser to a
consumer as "railroad diesel".
(2) The amount of the reimbursement with respect to such product shall
be equal to the difference between (i) the tax actually paid under this
article by a petroleum business with respect to such product and subse-
quently passed through to and absorbed by such purchaser, and (ii) the
tax under this article that would have been paid with respect to such
product had an importing distributor sold such product directly to a
purchaser as "railroad diesel". Provided that the commissioner shall
require such documentary proof as the commissioner deems necessary to
substantiate a reimbursement claim under this subdivision. Any
reimbursement of tax may be applied for not more often than monthly.
(l) Reimbursement for mining and extraction. A purchaser shall be
eligible for reimbursement of the tax imposed by section three hundred
one-a of this article with respect to gallonage of residual petroleum
product and NON-HIGHWAY diesel motor fuel, purchased for use and
consumption directly and exclusively in the production of tangible
personal property for sale by mining or extracting, but only if all of
such fuel or product is delivered at the mining or extracting site and
is consumed other than on the PUBLIC highways of this state; provided,
however, this reimbursement shall in no event apply to a sale of
NON-HIGHWAY diesel motor fuel which involves a delivery at a filling
station. This reimbursement may be claimed only where (i) the tax
imposed pursuant to this article has been paid with respect to such
NON-HIGHWAY diesel motor fuel or residual petroleum product and the
entire amount of such tax has been absorbed by such purchaser, and (ii)
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.
(m) Reimbursement for passenger commuter ferries. A use by a passenger
commuter ferry of NON-HIGHWAY diesel motor fuel or residual petroleum
S. 2811--B 60
product where such NON-HIGHWAY diesel motor fuel or residual petroleum
product was used and consumed by a passenger commuter ferry exclusively
in providing mass transportation service. This reimbursement may be
claimed only where (1) any tax imposed pursuant to this article has been
paid with respect to such gallonage and the entire amount of such tax
has been absorbed by such purchaser, and (2) such ferry possesses docu-
mentary proof satisfactory to the commissioner evidencing the absorption
by it of the entire amount of such tax. Provided, that the commissioner
shall require such documentary proof to qualify for any reimbursement
provided hereunder as the commissioner deems appropriate.
S 24. Paragraphs 1 and 2 of subdivision (a) of section 301-d of the
tax law, as amended by chapter 410 of the laws of 1991, are amended to
read as follows:
(1) Credit. Residual petroleum product and NON-HIGHWAY diesel motor
fuel [(which is not enhanced diesel motor fuel)] (i) imported into this
state by such electric corporation which is a petroleum business where
the tax liability under section three hundred one-a of this article is
imposed on such electric corporation and where the residual petroleum or
NON-HIGHWAY diesel product so imported is used by such electric corpo-
ration to fuel generators for the purpose of manufacturing or producing
electricity or (ii) purchased in this state by such electric corporation
by the use of a valid direct payment permit whereby such electric corpo-
ration assumed full liability for tax with respect to such product where
such product so purchased is used by such electric corporation to fuel
generators for the purpose of manufacturing or producing electricity.
(2) Reimbursement. Residual petroleum product and NON-HIGHWAY diesel
motor fuel [(which is not enhanced diesel motor fuel)] purchased in this
state by such electric corporation where the tax imposed by section
three hundred one-a of this article with respect to such residual petro-
leum or diesel product was paid and the utility absorbed such tax in the
purchase price of such fuel and where such product is used by such elec-
tric corporation to fuel generators for the purpose of manufacturing or
producing electricity.
S 25. Subdivision (c) of section 301-e of the tax law, as amended by
chapter 2 of the laws of 1995, is amended to read as follows:
(c) Kero-jet fuel component. The kero-jet fuel component shall be
determined by multiplying the kero-jet fuel rate times the number of
gallons of (1) kero-jet fuel imported or caused to be imported into this
state by an aviation fuel business and consumed in this state by such
business in the operation of its aircraft; and (2) kero-jet fuel, which
has not been previously included in the measure of the tax imposed by
this section, (i) which is sold in this state by an aviation fuel busi-
ness to persons other than those registered under this article as
aviation fuel businesses or (ii) which is consumed in this state by an
aviation fuel business in the operation of its aircraft. Provided that
importation of kero-jet fuel in the fuel tanks of aircraft shall be
importation for the purposes of this section. The basic kero-jet fuel
rate shall be [one and nine-tenths] SIX AND EIGHT-TENTHS cents per
gallon. The rate shall be adjusted at the same time as the rates of the
components of the petroleum business tax imposed by section three
hundred one-a of this article, and the method of making adjustments to
the kero-jet fuel rate shall be the same as the method used for such
rates. [Provided, however, that commencing July first, nineteen hundred
ninety-one, the kero-jet fuel rate shall be equal to the motor fuel and
automotive-type diesel motor fuel rate set by subdivision (e) of section
three hundred one-a of this article as such rate may be adjusted as
S. 2811--B 61
provided in such subdivision. Provided, further, that commencing Septem-
ber first, nineteen hundred ninety-five, the kero-jet fuel rate shall be
five and two-tenths cents per gallon. The rate shall be adjusted at the
same time as the rates of the components of the petroleum business tax
imposed by section three hundred one-a of this article, and the method
of making adjustments to the kero-jet fuel rate shall be the same as the
method used for such rates.]
S 26. Sections 301-f and 301-g of the tax law are REPEALED.
S 27. Paragraph 2 of subdivision (a) of section 301-h of the tax law,
as amended by chapter 170 of the laws of 1994, is amended to read as
follows:
(2) The rate of the tax imposed by this section shall be equal to the
motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate set by
subdivision (e) of section three hundred one-a plus the rate of the
supplemental tax imposed by section three hundred one-j of this article
as such rates are specified therein and as they may be adjusted as
provided in such provisions. [In addition, the tax surcharge imposed by
section three hundred-one-g of this article shall be imposed with
respect to the tax imposed by this section as if the tax imposed here-
under were imposed by section three hundred-one-a of this article.]
S 28. Section 301-i of the tax law is REPEALED.
S 29. Paragraphs 1, 2, 3 and 4 of subdivision (a) and subdivision (c)
of section 301-j of the tax law, paragraph 1 of subdivision (a) as
amended and paragraphs 2, 3 and 4 of subdivision (a) as added by chapter
309 of the laws of 1996 and subdivision (c) as amended by chapter 410 of
the laws of 1991, are amended to read as follows:
(1) In addition to the taxes imposed by sections three hundred one-a
and three hundred one-e of this article, [for taxable months commencing
on or after July first, nineteen hundred ninety-one] there is hereby
imposed upon every petroleum business subject to tax imposed under
section three hundred one-a of this article and every aviation fuel
business subject to the aviation gasoline component of the tax imposed
under section three hundred one-e of this article, a supplemental month-
ly tax for each or any part of a taxable month at a rate of [four and
one-half] SIX AND EIGHT-TENTHS cents per gallon with respect to the
products included in each component of the taxes imposed by such
[sections] SECTION three hundred one-a and the aviation gasoline compo-
nent of the tax imposed by such section three hundred one-e of this
article.
(2) Provided, however, [commencing March first, nineteen hundred nine-
ty-seven,] "commercial gallonage," as such term is defined in subdivi-
sion (k) of section three hundred of this article, shall be exempt from
the measure of the tax imposed under this section.
(3) Provided, further, [commencing January first, nineteen hundred
ninety-seven,] "railroad diesel," as such term is defined in subdivision
(l) of section three hundred of this article, shall be exempt from the
measure of the tax imposed under this section.
(4) Provided, further, [commencing January first, nineteen hundred
ninety-eight,] a separate per gallon rate shall apply with respect to
[automotive-type] HIGHWAY diesel motor fuel. Such rate shall be deter-
mined by taking the adjusted rate per gallon of tax imposed under para-
graph one of this subdivision as adjusted in accordance with paragraph
five of this subdivision [which commences on such date] and subtracting
therefrom [three-quarters of one cent. On January first, nineteen
hundred ninety-nine, the automotive-type diesel motor fuel rate shall be
determined by taking the adjusted rate per gallon of tax imposed under
S. 2811--B 62
paragraph one of this subdivision, as adjusted in accordance with para-
graph five of this subdivision which commences on such date and
subtracting therefrom three-quarters of one cent. On April first, nine-
teen hundred ninety-nine, there shall be a new rate applicable to such
fuel which shall be such adjusted rate of tax per gallon under such
paragraph one of this subdivision, as adjusted in accordance with para-
graph five of this subdivision then in effect, minus] one and three-
quarters cents. Commencing January first, two thousand TWELVE, and each
January thereafter, the per gallon rate applicable to [automotive-type]
HIGHWAY diesel motor fuel shall be the adjusted rate under paragraph one
of this subdivision as adjusted in accordance with paragraph five of
this subdivision which commences on such date minus one and three-quar-
ters cents. The resulting rate under this paragraph shall be expressed
in hundredths of a cent.
(c) Rate adjustment [and surcharge]. [Commencing January first, nine-
teen hundred ninety-two and on the first day of January every year ther-
eafter, the] THE rate of the supplemental tax shall be adjusted at the
same time as the rates of the components of the taxes imposed by
sections three hundred one-a and three hundred one-e of this article,
and the method of making adjustments to the rate of the supplemental tax
shall be the same as the method used for such rates.
S 30. The opening paragraph and subdivisions (a) and (c) of section
301-1 of the tax law, as added by chapter 170 of the laws of 1994, are
amended to read as follows:
There shall be allowed to a registered petroleum business or aviation
fuel business a refund under this section for the taxes [and tax
surcharge] imposed by sections three hundred one-a, three hundred one-e,
[three hundred one-g] and three hundred one-j of this article for the
tax paid under such sections with respect to gallonage which is repres-
ented by a worthless debt as follows:
(a) The refund shall be allowed to a registered petroleum business or
aviation fuel business for gallonage with respect to which tax liability
for the taxes under this article is imposed on such petroleum business
or aviation fuel business where (i) such gallonage has been included in
the reports filed by such petroleum business or aviation fuel business
and all the taxes under this article with respect to such gallonage have
been paid by such business, (ii) such gallonage was sold in-bulk by such
petroleum or aviation fuel business to a purchaser for such purchaser's
own use and consumption and (iii) such sale gave rise to a debt which
became worthless, as that term is used for federal income tax purposes,
and where such debt is deducted as a worthless debt for federal income
tax purposes for the taxable year covering the month in which such
refund claim relating to such debt is filed. Provided, however, for the
purposes of this section, a sale of motor fuel and [enhanced] HIGHWAY
diesel motor fuel to a filling station shall be deemed to be a sale
in-bulk for such filling station's own use and consumption and,
provided, further, in no event shall a worthless debt qualify with
respect to the refund hereunder where such debt arises from a retail
sale at a filling station or sale wherein product is delivered directly
into the fuel tank of a motor vehicle, airplane or other conveyance.
(c) Upon receipt of a claim for refund in processible form, interest
shall be allowed and paid at the overpayment rate set by the commission-
er pursuant to subdivision twenty-sixth of section one hundred seventy-
one of this chapter from the date of the receipt 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
S. 2811--B 63
within ninety days of such receipt and except no interest shall be
allowed or paid if the amount thereof would be less than one dollar.
Provided, further, the refund shall be granted pro rata against sections
three hundred one-a, three hundred one-e, [three hundred one-g] and
three hundred one-j of this article, as the case may be, to the same
extent as represented by the remittance of the petroleum business or
aviation fuel business with respect to the gallonage represented by the
worthless debt.
S 31. Subdivision (b) of section 302 of the tax law, as added by chap-
ter 190 of the laws of 1990, is amended to read as follows:
(b) Residual petroleum product business. The department [of taxation
and finance], upon the application of a corporation or unincorporated
business, shall register such corporation or unincorporated business as
a residual petroleum product business except that the commissioner [of
taxation and finance] may refuse to register an applicant for any of the
grounds specified in subdivision two or five of section two hundred
eighty-three of this chapter or in subdivision (d) of this section. The
application shall be in such form and contain such information as the
commissioner shall prescribe. All of the provisions of subdivisions two,
four, five, six, seven, eight, nine and ten of section two hundred
eighty-three of this chapter relating to registration of distributors
shall be applicable to the registration of residual petroleum product
businesses under this section with the same 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 residual
petroleum product businesses 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, specif-
ically, that the term "distributor" shall be read as "residual petroleum
product business" and the [terms] TERM "motor fuel" [and "automotive
fuel"] shall be read as "residual petroleum product". Provided, however,
that if the commissioner is satisfied that the requirements of such
provisions for registration are not necessary in order to protect tax
revenues, the commissioner may limit or modify such requirements with
respect to corporations or unincorporated businesses not required to be
registered as distributors of motor fuel or diesel motor fuel.
S 32. Section 312 of the tax law, as amended by chapter 166 of the
laws of 1991 and subdivision (b) as amended by section 8 of part EE of
chapter 63 of the laws of 2000, is amended to read as follows:
S 312. Deposit and disposition of revenue.--[(a) Except as provided in
sections three hundred one-f and three hundred one-g of this chapter, of
all of the taxes, interest and penalties collected or received by the
commissioner of taxation and finance under section three hundred one of
this article with respect to any taxable year commencing on or after
April first, nineteen hundred eighty-four and to that portion of any
taxable year commencing prior thereto to the extent of that portion of
such year which includes the period which commences with April first,
nineteen hundred eighty-four, seventy-two and seven-tenths percent shall
be deposited and disposed of pursuant to the provisions of section one
hundred seventy-one-a of this chapter and the balance thereof shall be
deposited in the mass transportation operating assistance fund to the
credit of the metropolitan mass transportation operating assistance
account and the public transportation systems operating assistance
account thereof in the manner provided by subdivision eleven of section
one hundred eighty-two-a of this chapter. Provided, however, that the
actual amount of such taxes, interest and penalties which shall be
S. 2811--B 64
deposited in such mass transportation operating assistance fund pursuant
to this section during the twelve-month period from April first, nine-
teen hundred eighty-four to and including March thirty-first, nineteen
hundred eighty-five shall not be less than an amount which, when added
to the actual amount that is deposited in such fund during such twelve-
month period and that is attributable to the taxes, interest and penal-
ties collected and received under section one hundred eighty-two-a of
this chapter, yields the sum of seventy-nine million five hundred thou-
sand dollars and provided further that of such actual amounts deposited
in such fund pursuant to this section and to section one hundred eight-
y-two-a of this chapter during the twelve-month period from April first,
nineteen hundred eighty-five to March thirty-first, nineteen hundred
eighty-six and during the twelve-month period from April first, nineteen
hundred eighty-six to March thirty-first, nineteen hundred eighty-seven,
the amount which shall be deposited to the credit of the public trans-
portation systems operating assistance account thereof during each such
period shall be not less than thirty-six million dollars. Provided
further that if the total amount deposited in the mass transportation
operating assistance fund during the twelve month period commencing
April first, nineteen hundred eighty-five pursuant to this section and
to section one hundred eighty-two-a of this chapter is less than eighty
million dollars, the comptroller shall deposit to the credit of the
metropolitan mass transportation operating assistance account on or
after April first, nineteen hundred eighty-six and on or before June
thirtieth, nineteen hundred eighty-six from any taxes, interest, and
penalties collected or received by the commissioner of taxation and
finance under this article in addition to amounts which would otherwise
be deposited to the credit of the mass transportation operating assist-
ance fund, an amount equal to the difference between eighty million
dollars and the amounts actually deposited in the mass transportation
operating assistance fund during such twelve-month period pursuant to
this section and to section one hundred eighty-two-a of this chapter.
Provided further that if the total amount deposited in the mass trans-
portation operating assistance fund during the twelve month period
commencing April first, nineteen hundred eighty-six pursuant to this
section and to section one hundred eighty-two-a of this chapter, exclu-
sive of the amount deposited in such fund to the credit of the metropol-
itan mass transportation operating assistance account on or after April
first, nineteen hundred eighty-six and on or before June thirtieth,
nineteen hundred eighty-six pursuant to the preceding sentence, is less
than eighty million dollars, the comptroller shall deposit to the credit
of the metropolitan mass transportation operating assistance account on
or after April first, nineteen hundred eighty-seven and on or before
June thirtieth, nineteen hundred eighty-seven from any taxes, interest,
and penalties collected or received by the commissioner of taxation and
finance under this article in addition to amounts which would otherwise
be deposited to the credit of the mass transportation operating assist-
ance fund, an amount equal to the difference between eighty million
dollars and the amounts actually deposited in the mass transportation
operating assistance fund during such twelve-month period pursuant to
this section and to section one hundred eighty-two-a of this chapter,
exclusive of the amount deposited in such fund to the credit of the
metropolitan mass transportation operating assistance account on or
after April first, nineteen hundred eighty-six and on or before June
thirtieth, nineteen hundred eighty-six pursuant to the preceding
sentence. Provided, further, however, with respect to all taxes, and
S. 2811--B 65
interest and penalties relating thereto, collected or received by the
commissioner of taxation and finance under the tax imposed by section
three hundred one of this article with respect to any taxable year
commencing on and after June first, nineteen hundred ninety and to that
portion of any taxable year commencing prior thereto to the extent of
that portion of such year which includes the period which commences June
first, nineteen hundred ninety, eighty-nine and one-half percent of such
collections shall be deposited and disposed of pursuant to the
provisions of section one hundred seventy-one-a of this chapter and the
balance thereof shall be deposited in the mass transportation operating
assistance fund to the credit of the metropolitan mass transportation
operating assistance account and the public transportation systems oper-
ating assistance account thereof in the manner provided by subdivision
eleven of section one hundred eighty-two-a of this chapter.
(b) Of all of the taxes collected or received by the commissioner on
or before March thirty-first, nineteen hundred ninety-one under the
taxes imposed by sections three hundred one-a and three hundred one-e of
this article, and all interest and penalties relating thereto, eighty-
seven and five-hundredths percent of such collections shall be deposited
and disposed of pursuant to the provisions of section one hundred seven-
ty-one-a of this chapter and the balance thereof shall be deposited in
the mass transportation operating assistance fund to the credit of the
metropolitan mass transportation operating assistance account and the
public transportation systems operating assistance account thereof in
the manner provided by subdivision eleven of section one hundred eight-
y-two-a of this chapter. Of all taxes, interest and penalties collected
or received after March thirty-first, nineteen hundred ninety-one, and
before April first, nineteen hundred ninety-three, from the taxes
imposed by sections three hundred one-a and three hundred one-e of this
article, initially thirty-five percent shall be deposited and disposed
of pursuant to such section one hundred seventy-one-a. The balance ther-
eof shall then be disposed of as follows: seventy-two and seven-tenths
percent shall be deposited and disposed of pursuant to such section one
hundred seventy-one-a and twenty-seven and three-tenths percent shall be
deposited in such mass transportation operating assistance fund as
prescribed in the aforestated manner. Except as otherwise provided, of
all taxes, interest and penalties collected or received after March
thirty-first, nineteen hundred ninety-three, and before April first,
nineteen hundred ninety-four, from the taxes imposed by sections three
hundred one-a and three hundred one-e of this article, (i) initially
fifty-four percent shall be deposited, as prescribed by subdivision (d)
of section three hundred one-j of this chapter, (ii) twenty-eight and
three-tenths percent shall be deposited and disposed of pursuant to such
section one hundred seventy-one-a of this chapter in the general fund
and (iii) seventeen and seven-tenths percent shall be deposited in such
mass transportation operating assistance fund as prescribed in the
aforestated manner. Provided, however, that, prior to such deposit, from
the amounts so collected or received during the period commencing on
January first, nineteen hundred ninety-four and ending on March thirty-
first, nineteen hundred ninety-four, an amount equal to the portion of
the taxes, interest and penalties so received or collected resulting
from the amendments made by sections forty-two, forty-three and forty-
four of chapter fifty-seven of the laws of nineteen hundred ninety-three
shall be deposited and disposed of pursuant to the provisions of subdi-
vision one of section one hundred seventy-one-a of this chapter. Except
as otherwise provided, of all taxes, interest and penalties collected or
S. 2811--B 66
received on or after April first, nineteen hundred ninety-four, from the
taxes imposed by sections three hundred one-a and three hundred one-e of
this article, (i) initially fifty-four percent shall be deposited, as
prescribed by subdivision (d) of section three hundred one-j of this
article, (ii) twenty-eight and three-tenths percent shall be deposited
and disposed of pursuant to such section one hundred seventy-one-a of
this chapter in the general fund, (iii) seven and nine hundred sixty-
five thousandths percent shall be deposited in such mass transportation
operating assistance fund as prescribed in the aforestated manner and
(iv) nine and seven hundred thirty-five thousandths percent shall be
deposited in the revenue accumulation fund. Except as otherwise
provided, of all taxes, interest and penalties collected or received on
or after September first, nineteen hundred ninety-four and before
September first, nineteen hundred ninety-five, from the taxes imposed by
sections three hundred one-a and three hundred one-e of this article,
(i) initially fifty-nine percent shall be deposited, as prescribed by
subdivision (d) of section three hundred one-j of this article, (ii)
twenty-two and four-tenths percent shall be deposited and disposed of
pursuant to such section one hundred seventy-one-a of this chapter in
the general fund, (iii) eight and three hundred seventy thousandths
percent shall be deposited in such mass transportation operating assist-
ance fund as prescribed in the aforestated manner and (iv) ten and two
hundred thirty thousandths percent shall be deposited in the revenue
accumulation fund. Except as otherwise provided, of all taxes, interest
and penalties, collected or received on or after September first, nine-
teen hundred ninety-five and before April first, nineteen hundred nine-
ty-six from the taxes imposed by sections three hundred one-a and three
hundred one-e of this article, (i) initially sixty-two and eight-tenths
percent shall be deposited as prescribed by subdivision (d) of section
three hundred one-j of this article, (ii) eighteen percent shall be
deposited and disposed of pursuant to section one hundred seventy-one-a
of this chapter in the general fund, (iii) eight and six hundred forty
thousandths percent shall be deposited in such mass transportation oper-
ating assistance fund as prescribed in the aforestated manner and (iv)
ten and five hundred sixty thousandths percent shall be deposited in the
revenue accumulation fund. Except as otherwise provided, of all taxes,
interest and penalties collected or received on or after April first,
nineteen hundred ninety-six, and before January first, nineteen hundred
ninety-seven from the taxes imposed by sections three hundred one-a and
three hundred one-e of this article, (i) initially sixty-three and
three-tenths percent shall be deposited, as prescribed by subdivision
(d) of section three hundred one-j of this article, (ii) seventeen and
four-tenths percent shall be deposited and disposed of pursuant to such
section one hundred seventy-one-a of this chapter in the general fund
and (iii) nineteen and three-tenths percent shall be deposited in such
mass transportation operating assistance fund as prescribed in the
aforestated manner. Except as otherwise provided, of all taxes, inter-
est and penalties collected or received on or after January first, nine-
teen hundred ninety-seven and before January first, nineteen hundred
ninety-eight from the taxes imposed by sections three hundred one-a and
three hundred one-e of this article, (i) initially sixty-six and two-
tenths percent shall be deposited, as prescribed by subdivision (d) of
section three hundred one-j of this article, (ii) fourteen and one-half
percent shall be deposited and disposed of pursuant to such section one
hundred seventy-one-a of this chapter in the general fund and (iii)
nineteen and three-tenths percent shall be deposited in such mass trans-
S. 2811--B 67
portation operating assistance fund as prescribed in the aforestated
manner. Except as otherwise provided, of all taxes, interest and penal-
ties collected or received on or after January first, nineteen hundred
ninety-eight and before April first, nineteen hundred ninety-nine from
the taxes imposed by sections three hundred one-a and three hundred
one-e of this article, (i) initially sixty-eight and one-tenth percent
shall be deposited, as prescribed by subdivision (d) of section three
hundred one-j of this article, (ii) twelve and four-tenths percent shall
be deposited and disposed of pursuant to such section one hundred seven-
ty-one-a of this chapter in the general fund and (iii) nineteen and
one-half percent shall be deposited in such mass transportation operat-
ing assistance fund as prescribed in the aforestated manner. Except as
otherwise provided, of all taxes, interest and penalties collected or
received on or after April first, nineteen hundred ninety-nine, from the
taxes imposed by sections three hundred one-a and three hundred one-e of
this article, (i) initially sixty-nine and eight-tenths percent shall be
deposited, as prescribed by subdivision (d) of section three hundred
one-j of this article, (ii) ten and seven-tenths percent shall be depos-
ited and disposed of pursuant to such section one hundred seventy-one-a
of this chapter in the general fund and (iii) nineteen and one-half
percent shall be deposited in such mass transportation operating assist-
ance fund as prescribed in the aforestated manner.] Except as otherwise
provided, of all taxes, interest and penalties collected or received on
or after April first, two thousand one, from the taxes imposed by
sections three hundred one-a and three hundred one-e of this article,
(i) initially eighty and three-tenths percent shall be deposited, as
prescribed by subdivision (d) of section three hundred one-j of this
article and (ii) nineteen and seven-tenths percent shall be deposited in
such mass transportation operating assistance fund [as prescribed in the
aforestated manner] TO THE CREDIT OF THE METROPOLITAN MASS TRANSPORTA-
TION OPERATING ASSISTANCE ACCOUNT AND THE PUBLIC TRANSPORTATION SYSTEMS
OPERATING ASSISTANCE ACCOUNT THEREOF IN THE MANNER PROVIDED BY SUBDIVI-
SION ELEVEN OF SECTION ONE HUNDRED EIGHTY-TWO-A OF THIS CHAPTER.
[Provided, further, that on or before the twenty-fifth day of each month
commencing with October, nineteen hundred ninety and terminating with
the month of March, two thousand one, the comptroller shall deduct the
amount of six hundred twenty-five thousand dollars prior to any deposit
or disposition of the taxes, interest and penalties collected or
received pursuant to such sections three hundred one-a and three hundred
one-e and shall pay such amount to the state treasury to the credit of
the general fund.] Provided, further that on or before the twenty-fifth
day of each month commencing with April, two thousand one, the comp-
troller shall deduct the amount of six hundred twenty-five thousand
dollars prior to any deposit or disposition of the taxes, interest, and
penalties collected or received pursuant to such sections three hundred
one-a and three hundred one-e and shall deposit such amount in the dedi-
cated fund accounts pursuant to subdivision (d) of section three hundred
one-j of this article. Provided, further, that commencing January
fifteenth, nineteen hundred ninety-one, and on or before the tenth day
of March and the fifteenth day of June and September of such year, the
commissioner shall, based on information supplied by taxpayers and other
appropriate sources, estimate the amount of the utility credit author-
ized by section three hundred one-d of this article which has been
accrued to reduce tax liability under section one hundred eighty-six-a
of this chapter during the period covered by such estimate and certify
to the state comptroller such estimated amount. The comptroller shall
S. 2811--B 68
forthwith, after receiving such certificate, deduct the amount of such
credit so certified by the commissioner prior to any deposit or disposi-
tion of the taxes, interest and penalties collected or received pursuant
to such sections three hundred one-a and three hundred one-e and shall
pay such amount so certified and deducted into the state treasury to the
credit of the general fund. [As soon as practicable after April first,
nineteen hundred ninety-one, nineteen hundred ninety-two and nineteen
hundred ninety-three, but before June fifteenth of each such year, the
commissioner shall determine the amount of the utility tax credit which
has been actually used to reduce tax liability under such section one
hundred eighty-six-a and shall certify the difference between such actu-
al amount and the earlier estimated amount.] Also, subsequently, during
the fiscal year when the commissioner becomes aware of changes or
modifications with respect to actual credit usage, the commissioner
shall, as soon as practicable, issue a certification setting forth the
amount of any required adjustment to the amount of actual credit usage
previously certified. After receiving the certificate of the commission-
er with respect to actual credit usage or modification of the same, the
comptroller shall forthwith adjust general fund receipts and the reven-
ues to be deposited or disposed of under this article to reflect the
difference so certified by the commissioner. The commissioner shall not
be liable for any overestimate or underestimate of the amount of the
utility credit which has been accrued to reduce tax liability under such
section one hundred eighty-six-a. Nor shall the commissioner be liable
for any inaccuracy in any certificate with respect to the amount of such
credit actually used or any required adjustment with respect to actual
credit usage, but the commissioner shall as soon as practicable after
discovery of any error adjust the next certification under this section
to reflect any such error.
[On or before July thirty-first, nineteen hundred ninety-two and on or
before July thirty-first, nineteen hundred ninety-three, the commission-
er shall conduct the following reconciliation with respect to the
preceding fiscal year: he shall multiply the total of all taxes, penal-
ties and interest, after refunds and reimbursements, which are derived
from the motor fuel component, the automotive-type diesel motor fuel
component and the aviation gasoline component by twenty fifty-fifths;
the total of all taxes, penalties and interest, after refunds and
reimbursements, which are derived from the nonautomotive-type diesel
motor fuel component (excluding taxes, penalties and interest which are
derived from product with respect to which the credit or reimbursement
provided by section three hundred one-d is taken) by twenty-fiftieths;
and all taxes, penalties and interest, after refunds and reimbursements,
which are derived from the residual petroleum product component (exclud-
ing taxes, penalties and interest which are derived from product with
respect to which the credit or reimbursement provided by section three
hundred one-d is taken) by twenty-fortieths. The products of the forego-
ing multiplications shall be added together and the resulting sum of
such products shall be compared with the total of the amounts initially
distributed during such fiscal year with respect to such components
(excluding receipts derived from product with respect to which the cred-
it or reimbursement provided by section three hundred one-d is taken and
excluding any amount which represents a reconciliation adjustment pursu-
ant to this paragraph) pursuant to section one hundred seventy-one-a of
this chapter which represented thirty-five percent of the total, after
refunds and reimbursements, of all taxes, penalties and interest
collected or received during such fiscal year under sections three
S. 2811--B 69
hundred one-a and three hundred one-e during the months of such fiscal
year with respect to such components. The commissioner shall then certi-
fy the amount of such difference to the comptroller. If the amounts
initially distributed in such fiscal year are greater than the sum of
such products, the comptroller shall withhold an amount equal to twen-
ty-seven and three-tenths percent of such difference from the first
moneys otherwise payable to the general fund pursuant to this subdivi-
sion and shall pay such amount to the mass transportation operating
assistance fund to the credit of the metropolitan mass transportation
operating assistance account and the public transportation systems oper-
ating assistance account thereof in the aforestated manner. If the
amounts initially distributed in such fiscal year are less than the sum
of such products, the comptroller shall withhold an amount equal to
twenty-seven and three-tenths percent of such difference from the first
moneys otherwise payable to the mass transportation operating assistance
fund pursuant to this subdivision and shall pay such amount to the
general fund.
When the commissioner becomes aware of changes or modifications with
respect to the distribution of revenue under this article, the commis-
sioner shall, as soon as practicable, issue a certification setting
forth the amount of any required adjustment. After receiving the certif-
icate of the commissioner with respect to any adjustments, the comp-
troller shall forthwith adjust general fund receipts and the revenues to
be deposited or disposed of under this article to reflect the difference
so certified by the commissioner. 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 certif-
icate 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
certification under this section to reflect any such error.] Prior to
making deposits as provided in this [subdivision] SECTION, the comp-
troller shall retain such amount as the commissioner may determine to be
necessary, subject to the approval of the director of the budget, for
reasonable costs of the department in administering and collecting the
taxes deposited pursuant to this [subdivision] SECTION and for refunds
and reimbursements with respect to such taxes, out of which the comp-
troller shall pay any refunds or reimbursements of such taxes to which
taxpayers shall be entitled.
S 33. Subdivision (b) of section 315 of the tax law, as amended by
section 156 of part A of chapter 389 of the laws of 1997, is amended to
read as follows:
(b) Joint administration of taxes. In addition to the powers granted
to the commissioner in this chapter, the commissioner is hereby author-
ized to make provisions for the joint administration, in whole or in
part, of the taxes imposed by articles twelve-A and twenty-eight and
pursuant to the authority of article twenty-nine of this chapter upon
[automotive fuel] MOTOR FUEL AND DIESEL MOTOR FUEL and the taxes imposed
by this article, including the joint reporting, assessment, collection,
determination and refund of such taxes, and for that purpose to
prescribe that any of the commissioner's functions under such articles,
and any returns, forms, statements, documents or information to be
submitted to the commissioner under such articles, any books and records
to be kept for purposes of the taxes imposed or authorized to be imposed
by such articles, any schedules of amounts to be collected under such
articles, any registration required under such articles, and the payment
S. 2811--B 70
of taxes under such articles, shall be on a joint basis with respect to
the taxes imposed by or pursuant to such articles. Provided, notwith-
standing any provision of this article to the contrary, in the further-
ance of joint administration, the provisions of subdivision one of
section two hundred eighty-five-a and subdivision one of section two
hundred eighty-nine-c of this chapter shall apply to the taxes imposed
under this article with the same force and effect as if those provisions
specifically referred to the taxes imposed hereunder and all the
products with respect to which the taxes are imposed under this article.
Provided, further, a reimbursement (or credit) of taxes imposed under
this article shall be available to subsequent purchasers of motor fuel,
diesel motor fuel or residual petroleum product under the circumstances
specified in subdivision eight of section two hundred eighty-nine-c of
this chapter with respect to the export of such products. In addition,
all the provisions of subdivision one of section two hundred eighty-six
of this chapter shall be applicable to all of the products included in
the measure of the tax imposed by this article and the powers of the
commissioner in administering the tax imposed by this article shall
include these set forth in such subdivision. Moreover, the commission-
er, in order to preserve the revenue from the tax imposed by this arti-
cle, shall, by regulation, require that the movement of residual petro-
leum product into or in this state be accompanied by a tracking
document. [Such manifest or other tracking document shall be prescribed
only after consultation with the state motor fuels taxation advisory
council (created by section forty-one of chapter forty-four of the laws
of nineteen hundred eighty-five) as to its form and content and as to
whether an existing industry document (or a modified version thereof)
may adequately serve the tracking purpose so that such existing industry
document may be prescribed as the tracking document.] Also, the commis-
sioner may require (i) that any returns, forms, statements or other
document with respect to motor fuel or diesel motor fuel required of
transporters or terminal operators under such article twelve-A of this
chapter apply with the same force and effect to persons transporting or
storing residual petroleum product, (ii) a certification that particular
gallonage of motor fuel, diesel motor fuel or residual petroleum product
has been included in the measure of the tax imposed by this article and
such tax has been paid, and (iii) that the certification required pursu-
ant to section two hundred eighty-five-a or two hundred eighty-five-b of
this chapter be expanded to include the tax imposed by this article.
S 34. Subdivision 10 of section 501 of the tax law, as amended by
chapter 407 of the laws of 1990, is amended to read as follows:
10. "Automotive fuel" shall mean, SOLELY FOR PURPOSES OF THIS ARTICLE,
diesel motor fuel as defined in subdivision fourteen of section two
hundred eighty-two of this chapter and motor fuel as defined in subdivi-
sion two of section two hundred eighty-two of this chapter.
S 35. Subdivision (b) of section 528 of the tax law, as added by chap-
ter 170 of the laws of 1994, is amended to read as follows:
(b) Cooperative agreements. Notwithstanding any inconsistent provision
of law, the commissioner is authorized to enter into a cooperative
agreement with other states, the District of Columbia or provinces or
territories of Canada for the administration of the tax imposed by this
article and similar taxes imposed by other member jurisdictions and for
the reporting and payment of tax to a single base state and a propor-
tional sharing of revenue of taxes relating to fuel use among the juris-
dictions where a qualified motor vehicle is operated. The agreement may
provide for determining the base state for carriers, carriers records
S. 2811--B 71
requirements, audit procedures, exchange of information, persons eligi-
ble for tax licensing, defining qualified motor vehicles, determining if
bonding is required and requiring bonds to secure the tax imposed by
this article and similar taxes imposed by other member jurisdictions,
specifying reporting requirements and periods including defining uniform
penalty and interest rates for late reporting, determining methods for
collecting and forwarding of taxes, interest and penalties to another
jurisdiction, notice and timing of hearings and other provisions as will
facilitate the administration of the agreement. The commissioner may,
pursuant to the terms of the agreement, forward to the proper officers
of another member jurisdiction any information in the commissioner's
possession relating to the manufacture, receipt, sale, use, transporta-
tion or shipment of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL by
any person and may share any information relating to the administration
of taxes pursuant to the agreement with such officers. The commissioner
may disclose to the proper officers of another member jurisdiction the
location of offices, motor vehicles and other real and personal property
of carriers. The agreement may provide for each member jurisdiction to
audit the records of persons based in the member jurisdiction and deter-
mine taxes due each member jurisdiction. The commissioner may adopt
rules and regulations for the administration and enforcement of the
agreement. In connection with the administration of taxes under such a
cooperative agreement, the commissioner may enter into an agreement with
other member jurisdictions and any banks, banking houses, trust compa-
nies or other similar institutions with respect to the payment of any
tax, fees, penalty or interest to such banks, banking houses, trust
companies or similar institutions and the filing of returns and reports
with such banks, banking houses, trust companies or similar institutions
as agent of the commissioner and such other member jurisdictions. Pursu-
ant to a written agreement made with one or more of the appropriate
departments, agencies, officers or instrumentalities of other jurisdic-
tions, the commissioner may let contracts for provision of such services
to the department and to one or more of such entities of other jurisdic-
tions; provided, that provisions shall be made in all such agreements
with the participating governmental entities and in all such contracts
let by the commissioner for the assumption by each of the participating
governmental entities of sole responsibility for its proportionate share
of the costs under the terms of such contract. The commissioner may
contract for such services jointly with and pursuant to a contract let
by the appropriate department, agency, officer or instrumentality of
another jurisdiction; provided that (1) the commissioner shall approve
the proposed terms and conditions of all such joint governmental
contracts, (2) the letting of such joint governmental contract shall be
based on invitation of competitive bids or proposals, and (3) the
participation by the department in any such joint contract shall be
preceded by an evaluation and finding in writing by the commissioner
that a reasonable potential exists for the saving of costs by the state,
by means of such joint governmental contract.
S 36. The opening paragraph of subparagraph (ii) of paragraph 4 of
subdivision (b) of section 1101 of the tax law, as amended by chapter
261 of the laws of 1988, is amended to read as follows:
Notwithstanding the provisions of subparagraph (i) of this paragraph,
no motor fuel or diesel motor fuel shall be sold or used in this state
without payment, and inclusion in the sales price of such motor fuel, of
the tax on motor fuel required to be prepaid pursuant to the provisions
of section eleven hundred two of this article except where a provision
S. 2811--B 72
of this article relating to motor fuel or diesel motor fuel specifically
provides otherwise and except in the case of a sale or use subject to
tax under section eleven hundred five or eleven hundred ten, respective-
ly, of this article. Provided, however, except for such requirement of
prepayment of tax required by section eleven hundred two of this arti-
cle, the provisions of this subparagraph shall not otherwise modify the
meaning of the term "retail sale" as used in this article. For purposes
of this subparagraph and sections eleven hundred two, eleven hundred
eleven, eleven hundred twenty, eleven hundred thirty-two, eleven hundred
thirty-four, eleven hundred thirty-five, eleven hundred thirty-six,
ELEVEN HUNDRED FORTY-TWO, ELEVEN HUNDRED FORTY-FIVE and eighteen hundred
seventeen of this chapter, the following terms shall have the following
meanings:
S 37. Clause (A) of subparagraph (ii) of paragraph 4 of subdivision
(b) of section 1101 of the tax law, as amended by chapter 261 of the
laws of 1988, is amended to read as follows:
(A) "[Automotive fuel"] PETROLEUM PRODUCTS" means diesel motor fuel as
defined in subdivision fourteen of section two hundred eighty-two of
this chapter, other than kerosene or propane used for residential
purposes, or motor fuel as defined in subdivision two of section two
hundred eighty-two of this chapter. The phrase "used for residential
purposes" shall have the same meaning as it has for purposes of section
eleven hundred five-A of this article.
S 38. Clause (F) of subparagraph (ii) of paragraph 4 of subdivision
(b) of section 1101 of the tax law is REPEALED and a new clause (F) is
added to read as follows:
(F) THE TERMS "HIGHWAY DIESEL MOTOR FUEL" AND "NON-HIGHWAY DIESEL
MOTOR FUEL" SHALL HAVE THE SAME MEANING AS THEY HAVE FOR PURPOSES OF
ARTICLE TWELVE-A OF THIS CHAPTER.
S 39. Paragraph 2 of subdivision (a) of section 1102 of the tax law,
as separately amended by section 9 of part W-1 of chapter 109 and chap-
ter 302 of the laws of 2006, is amended to read as follows:
(2) Every distributor of diesel motor fuel shall pay, as a prepayment
on account of the taxes imposed by this article and pursuant to the
authority of article twenty-nine of this chapter, a tax upon the sale or
use of diesel motor fuel in this state. The tax shall be computed based
upon the number of gallons of diesel motor fuel sold or used. Provided,
however, if the tax has not been imposed prior thereto, it shall be
imposed on the delivery of diesel motor fuel to a retail service
station. The collection of such tax shall not be made applicable to the
sale or use of diesel motor fuel under circumstances which preclude the
collection of such tax by reason of the United States constitution and
of laws of the United States enacted pursuant thereto. The prepaid tax
on diesel motor fuel shall not apply to (i) the sale of previously
untaxed [diesel motor fuel which is not enhanced] NON-HIGHWAY Diesel
motor fuel to a person registered as a distributor of Diesel motor fuel
other than a sale to such person which involves a delivery at a filling
station or into a repository which is equipped with a hose or other
apparatus by which such fuel can be dispensed into the fuel tank of a
motor vehicle, OR (ii) the sale to or delivery at a filling station or
other retail vendor of water-white kerosene provided such filling
station or other retail vendor only sells such water-white kerosene
exclusively for heating purposes in containers of no more than twenty
gallons or to the sale of CNG or hydrogen [or (iii) the sale of dyed
diesel motor fuel as set forth in clause (A) or (B) of subparagraph (i)
S. 2811--B 73
of paragraph (c) of subdivision three of section two hundred
eighty-two-a of this chapter].
S 39-a. Paragraph 2 of subdivision (a) of section 1102 of the tax law,
as amended by chapter 302 of the laws of 2006, is amended to read as
follows:
(2) Every distributor of diesel motor fuel shall pay, as a prepayment
on account of the taxes imposed by this article and pursuant to the
authority of article twenty-nine of this chapter, a tax upon the sale or
use of diesel motor fuel in this state. The tax shall be computed based
upon the number of gallons of diesel motor fuel sold or used. Provided,
however, if the tax has not been imposed prior thereto, it shall be
imposed on the delivery of diesel motor fuel to a retail service
station. The collection of such tax shall not be made applicable to the
sale or use of diesel motor fuel under circumstances which preclude the
collection of such tax by reason of the United States constitution and
of laws of the United States enacted pursuant thereto. The prepaid tax
on diesel motor fuel shall not apply to (i) the sale of previously
untaxed [diesel motor fuel which is not enhanced] NON-HIGHWAY Diesel
motor fuel to a person registered as a distributor of Diesel motor fuel
other than a sale to such person which involves a delivery at a filling
station or into a repository which is equipped with a hose or other
apparatus by which such fuel can be dispensed into the fuel tank of a
motor vehicle, OR (ii) the sale to or delivery at a filling station or
other retail vendor of water-white kerosene provided such filling
station or other retail vendor only sells such water-white kerosene
exclusively for heating purposes in containers of no more than twenty
gallons [or (iii) the sale of dyed diesel motor fuel as set forth in
clause (A) or (B) of subparagraph (i) of paragraph (c) of subdivision
three of section two hundred eighty-two-a of this chapter].
S 40. Subsection (a) of section 1105-A of the tax law, as amended by
section 1 of part B of chapter 35 of the laws of 2006, is amended to
read as follows:
(a) Notwithstanding any other provisions of this article, but not for
purposes of the taxes imposed by section eleven hundred eight of this
part or authorized pursuant to the authority of article twenty-nine of
this chapter, the taxes imposed by subdivision (a) or (b) of section
eleven hundred five OF THIS PART on the receipts from the retail sale of
fuel oil and coal used for residential purposes; the receipts from the
retail sale of wood used for residential heating purposes; and the
receipts from every sale, other than for resale, of propane (except when
sold in containers of less than one hundred pounds), natural gas, elec-
tricity, steam and gas, electric and steam services used for residential
purposes shall be paid at the rate of three percent for the period
commencing January first, nineteen hundred seventy-nine and ending
December thirty-first, nineteen hundred seventy-nine; at the rate of two
and one-half percent for the period commencing January first, nineteen
hundred eighty and ending September thirtieth, nineteen hundred eighty,
and at the rate of zero percent on and after October first, nineteen
hundred eighty. The provisions of this subsection shall not apply to a
sale of [(i)] diesel motor fuel which involves a delivery at a filling
station or into a repository which is equipped with a hose or other
apparatus by which such fuel can be dispensed into the fuel tank of a
motor vehicle [and (ii) enhanced diesel motor fuel except in the case of
a sale of such enhanced diesel motor fuel used exclusively for residen-
tial purposes which is delivered into a storage tank which is not
equipped with a hose or other apparatus by which such fuel can be
S. 2811--B 74
dispensed into the fuel tank of a motor vehicle and such storage tank is
attached to the heating unit burning such fuel, provided that each
delivery of such fuel of over four thousand five hundred gallons shall
be evidenced by a certificate signed by the purchaser stating that the
product will be used exclusively for residential purposes].
S 41. Subdivision (j) of section 1115 of the tax law, as amended by
section 12 of part W-1 of chapter 109 of the laws of 2006, is amended to
read as follows:
(j) The exemptions provided in this section shall not apply to the tax
required to be prepaid pursuant to the provisions of section eleven
hundred two of this article nor to the taxes imposed by sections eleven
hundred five and eleven hundred ten of this article with respect to
receipts from sales and uses of motor fuel or diesel motor fuel, except
that the exemptions provided in paragraphs nine and forty-two of subdi-
vision (a) of this section shall apply to the tax required to be prepaid
pursuant to the provisions of section eleven hundred two of this article
and to the taxes imposed by sections eleven hundred five and eleven
hundred ten of this article with respect to sales and uses of kero-jet
fuel, CNG, hydrogen and E85, provided, however, the exemption allowed
for E85 shall be subject to the additional requirements provided in
section eleven hundred two of this article with respect to E85. The
exemption provided in subdivision (c) of this section shall apply to
sales and uses of NON-HIGHWAY diesel motor fuel [which is not enhanced
diesel motor fuel] but only if all of such fuel is consumed other than
on the PUBLIC highways of this state[, provided, however, this exemption
shall in no event apply to a sale of diesel motor fuel which involves a
delivery at a filling station or into a repository which is equipped
with a hose or other apparatus by which such fuel can be dispensed into
the fuel tank of a motor vehicle]. The exemption provided in subdivision
(c) of this section shall apply to sales and uses of [no more than four
thousand five hundred gallons of] NON-HIGHWAY diesel motor fuel [in a
thirty-day period] for use or consumption either in the production for
sale of tangible personal property by farming or in a commercial horse
boarding operation, or in both but only if all of such fuel is consumed
other than on the PUBLIC highways of this state (except for the use of
the PUBLIC highways to reach adjacent farmlands or adjacent lands used
in a commercial horse boarding operation, or both)[, provided, however,
such exemption shall be applicable to the sale or use of more than four
thousand five hundred gallons of diesel motor fuel in a thirty-day peri-
od for such use or consumption in accordance with a prior clearance
given by the commissioner].
S 41-a. Subdivision (j) of section 1115 of the tax law, as amended by
section 8 of part B of chapter 63 of the laws of 2000, is amended to
read as follows:
(j) The exemptions provided in this section shall not apply to the tax
required to be prepaid pursuant to the provisions of section eleven
hundred two of this article nor to the taxes imposed by sections eleven
hundred five and eleven hundred ten of this article with respect to
receipts from sales and uses of motor fuel or diesel motor fuel, except
that the exemption provided in paragraph nine of subdivision (a) of this
section shall apply to the tax required to be prepaid pursuant to the
provisions of section eleven hundred two of this article and to the
taxes imposed by sections eleven hundred five and eleven hundred ten of
this article with respect to sales and uses of kero-jet fuel. The
exemption provided in subdivision (c) of this section shall apply to
sales and uses of NON-HIGHWAY diesel motor fuel [which is not enhanced
S. 2811--B 75
diesel motor fuel] but only if all of such fuel is consumed other than
on the PUBLIC highways of this state[, provided, however, this exemption
shall in no event apply to a sale of diesel motor fuel which involves a
delivery at a filling station or into a repository which is equipped
with a hose or other apparatus by which such fuel can be dispensed into
the fuel tank of a motor vehicle]. The exemption provided in subdivision
(c) of this section shall apply to sales and uses of [no more than four
thousand five hundred gallons of] NON-HIGHWAY diesel motor fuel [in a
thirty-day period] for use or consumption either in the production for
sale of tangible personal property by farming or in a commercial horse
boarding operation, or in both but only if all of such fuel is consumed
other than on the PUBLIC highways of this state (except for the use of
the PUBLIC highways to reach adjacent farmlands or adjacent lands used
in a commercial horse boarding operation, or both)[, provided, however,
such exemption shall be applicable to the sale or use of more than four
thousand five hundred gallons of diesel motor fuel in a thirty-day peri-
od for such use or consumption in accordance with a prior clearance
given by the commissioner].
S 42. Subdivision (e) of section 1120 of the tax law, as amended by
chapter 2 of the laws of 1995, is amended to read as follows:
(e) Immediate export. With respect to (i) motor fuel imported, manu-
factured or sold or purchased in this state, and (ii) [enhanced] HIGHWAY
diesel motor fuel, a refund or credit shall be allowed a registered
distributor of this state or a purchaser of the tax required to be
prepaid pursuant to section eleven hundred two of this article in the
amount of such tax paid by or included in the price paid by a distribu-
tor or such purchaser if such fuel was exported from this state for sale
outside this state, such distributor or such purchaser, as the case may
be, exporting such fuel is duly registered with or licensed by the
taxing authorities of the state to which such fuel is exported as a
distributor or a dealer in the fuel being so exported, and in connection
with such exportation such fuel was immediately shipped to an identified
facility in the state to which such fuel is exported, and provided the
applicant complies with all requirements and rules and regulations of
the commissioner, including evidentiary requirements, relating thereto.
S 43. Subparagraph (i) of paragraph 3 of subdivision (h) of section
1132 of the tax law, as amended by chapter 261 of the laws of 1988, is
amended to read as follows:
(i) For the purpose of the proper administration of this article and
to prevent evasion of the tax hereby imposed, it shall be presumed that
all retail sales of motor fuel or diesel motor fuel are subject to the
tax required to be collected by subdivision (a) of section eleven
hundred five of this article or paid by the provisions of section eleven
hundred ten of this article until the contrary is established, and it
shall be presumed that all motor fuel or diesel motor fuel imported,
manufactured, [subjected to enhancement,] sold, received or possessed by
any person in this state, which such person cannot otherwise account for
as having been sold subject to the tax required to be collected by
subdivision (a) of section eleven hundred five or paid by the provisions
of section eleven hundred ten of this article, has been sold subject to
the tax required to be collected by subdivision (a) of section eleven
hundred five or paid by the provisions of section eleven hundred ten
except that no such presumption shall apply with respect to motor fuel
or diesel motor fuel in the fuel tank of a motor vehicle used to propel
such vehicle or to motor fuel in small drums or similar containers. The
S. 2811--B 76
burden of proving that any sale is not so subject shall be upon the
person required to collect such tax and the purchaser of such fuel.
S 44. Subparagraph (iii) of paragraph 1 of subdivision (a) of section
1134 of the tax law, as amended by section 160 of part A of chapter 389
of the laws of 1997, is amended to read as follows:
(iii) every person selling [automotive fuel] PETROLEUM PRODUCTS
including persons who or which are not distributors,
S 45. Subdivision (d) of section 1135 of the tax law, as amended by
chapter 44 of the laws of 1985 and as relettered by chapter 61 of the
laws of 1989, is amended to read as follows:
(d) Every person selling or holding large volumes of [automotive fuel]
PETROLEUM PRODUCTS shall keep records for such periods and in the manner
prescribed by the [tax commission] COMMISSIONER pursuant to rules and
regulations. Such records shall show (1) the number of gallons of [auto-
motive fuel] PETROLEUM PRODUCTS purchased, the price paid therefor, the
amount of tax paid pursuant to the provisions of section eleven hundred
two of this article [and the regional average retail sales price appli-
cable thereto] and (2) the number of gallons sold, and the price paid by
the purchaser to whom such person sells the [automotive fuel] PETROLEUM
PRODUCTS, and the amount of tax included in such price pursuant to the
provisions of section eleven hundred two of this article and the
[regional average retail sales price or the] amount of tax collected
pursuant to the provisions of subdivision (a) of section eleven hundred
five of this article applicable to such sale together with such addi-
tional information as the [tax commission] COMMISSIONER shall require.
The [regional average retail sales price, and the] amount of tax shall
be calculated in the manner set forth in section eleven hundred eleven
of this article.
S 46. Subdivision (a) of section 1136 of the tax law, as amended by
chapter 89 of the laws of 1976, paragraphs 1, 2, 3 and 5 as amended and
paragraph 6 as added by chapter 2 of the laws of 1995 and paragraphs 4
and 7 as amended by section 2-e of part M-1 of chapter 106 of the laws
of 2006, is amended to read as follows:
(a) (1) Every person required to register with the commissioner as
provided in section eleven hundred thirty-four OF THIS PART whose taxa-
ble receipts, amusement charges and rents total less than three hundred
thousand dollars, or in the case of any such person who is a distributor
whose sales of [automotive fuel] PETROLEUM PRODUCTS total less than one
hundred thousand gallons, in every quarter of the preceding four quar-
ters, shall only file a return quarterly with the commissioner.
(2) Every person required to register with the commissioner as
provided in section eleven hundred thirty-four OF THIS PART whose taxa-
ble receipts, amusement charges and rents total three hundred thousand
dollars or more, or in the case of any such person who is a distributor
whose sales of [automotive fuel] PETROLEUM PRODUCTS total one hundred
thousand gallons or more, in any quarter of the preceding four quarters,
shall, in addition to filing a quarterly return described in paragraph
one of this subdivision, and except as otherwise provided in section
eleven hundred two or eleven hundred three of this article, file either
a long-form or short-form part-quarterly return monthly with the commis-
sioner.
(3) However, a person required to register with the commissioner as
provided in section eleven hundred thirty-four OF THIS PART only because
such person is purchasing or selling tangible personal property for
resale, and who is not required to collect any tax or pay any tax
directly to the commissioner under this article, shall file an informa-
S. 2811--B 77
tion return annually in such form as the commissioner may prescribe.
Likewise, a person, who is required to register and who is selling
[automotive fuel] PETROLEUM PRODUCTS who is not a distributor of motor
fuel, shall file an information return quarterly or, if the commissioner
deems necessary, monthly, in such form as the commissioner shall
prescribe.
(4) The return of a vendor of tangible personal property or services
shall show such vendor's receipts from sales and the number of gallons
of any motor fuel or diesel motor fuel sold and also the aggregate value
of tangible personal property and services and number of gallons of such
fuels sold by the vendor, the use of which is subject to tax under this
article, and the amount of tax payable thereon pursuant to the
provisions of section eleven hundred thirty-seven of this part. The
return of a recipient of amusement charges shall show all such charges
and the amount of tax thereon, and the return of an operator required to
collect tax on rents shall show all rents received or charged and the
amount of tax thereon.
(5) The returns of any seller of [automotive fuel] PETROLEUM PRODUCTS
shall show the number of gallons of [automotive fuel] PETROLEUM PRODUCTS
sold, together with such additional information as the commissioner
shall require in order to certify the amount of taxes, penalties and
interest payable to local taxing jurisdictions imposed on the sale or
use of [automotive fuel] PETROLEUM PRODUCTS pursuant to the provisions
of section twelve hundred sixty-one of this chapter.
(6) The returns of any seller of cigarettes shall show the amount of
prepaid tax assumed or paid thereon and passed through, together with
such additional information as the commissioner shall require.
(7) Taxable receipts as used in this section shall include taxable
receipts from the sale of [automotive fuel] PETROLEUM PRODUCTS and ciga-
rettes and any receipts from the sale of motor fuel or diesel motor fuel
or cigarettes in this state whether or not such receipts are subject to
the taxes imposed by section eleven hundred two, eleven hundred three,
eleven hundred five or eleven hundred ten of this article and regardless
of whether the provisions of section eleven hundred twenty or eleven
hundred twenty-one of this article are applicable to the taxes imposed
in respect of such receipts or numbers of gallons of motor fuel or
diesel motor fuel sold.
[(i)] (8) For purposes of this article the term "long-form, part-quar-
terly return" shall mean a return in a form determined by the [tax
commission] COMMISSIONER providing for the calculation of the actual
sales and compensating use taxes for the preceding month in the manner
set forth in subdivisions (a) and (b) of section eleven hundred thirty-
seven OF THIS PART. A person filing a long-form, part-quarterly return
for each of the months contained in a quarter shall also be required to
file a quarterly return for such quarter.
[(ii)] (9) For purposes of this article the term "short-form, part-
quarterly return" shall mean a return which shall be available for use
in filing as a return for the first two months of any quarter and only
by a person required to file a return monthly who has had at least four
successive quarterly tax periods immediately preceding the month for
which the return is to be filed and who elects such use, and is in a
form determined by the [tax commission] COMMISSIONER and providing for
the calculation of one-third of the total state and local sales and
compensating use taxes paid by the person to the [tax commission]
COMMISSIONER in the comparable quarter of the immediately preceding year
under this article and as taxes imposed pursuant to the authority of
S. 2811--B 78
article twenty-nine with respect to all receipts, amusement charges and
rents.
S 47. Subdivision 11 of section 1142 of the tax law, as added by chap-
ter 930 of the laws of 1982, is amended to read as follows:
11. To make such provision pursuant to rules and regulations for the
joint administration, in whole or in part, of the state and local taxes
imposed by this article and authorized by article twenty-nine of this
chapter upon the sale of [automotive fuel] PETROLEUM PRODUCTS and the
taxes imposed by article twelve-A of this chapter and authorized to be
imposed by such article, including the joint reporting, assessment,
collection, determination and refund of such taxes, and for that purpose
to prescribe that any of the [commission's] COMMISSIONER'S functions
under said articles, and any returns, forms, statements, documents or
information to be submitted to the [commission] COMMISSIONER under said
articles, any books and records to be kept for purposes of the taxes
imposed or authorized by said articles, any schedules of amounts to be
collected under said articles, any registration required under said
articles, and the payment of taxes under said articles shall be on a
joint basis with respect to the taxes imposed by said articles.
S 48. Subparagraph (i) of paragraph 3 of subdivision (a) of section
1145 of the tax law, as amended by chapter 2 of the laws of 1995, is
amended to read as follows:
(i) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four OF THIS PART who, without possessing
a valid certificate of authority, (A) sells tangible personal property
or services subject to tax, receives amusement charges or operates a
hotel, (B) purchases or sells tangible personal property for resale, (C)
sells [automotive fuel] PETROLEUM PRODUCTS, or (D) sells cigarettes
shall, in addition to any other penalty imposed by this chapter, be
subject to a penalty in an amount not exceeding five hundred dollars for
the first day on which such sales or purchases are made, plus an amount
not exceeding two hundred dollars for each subsequent day on which such
sales or purchases are made, not to exceed ten thousand dollars in the
aggregate.
S 49. Subparagraph (i) of paragraph 3 of subdivision (a) of section
1210 of the tax law, as amended by section 2 of part B of chapter 35 of
the laws of 2006, is amended to read as follows:
(i) Notwithstanding any other provision of law to the contrary but not
with respect to cities subject to the provisions of section eleven
hundred eight of this [article] CHAPTER, any city or county, except a
county wholly contained within a city, may provide that the taxes
imposed, pursuant to this subdivision, by such city or county on the
retail sale or use of fuel oil and coal used for residential purposes,
the retail sale or use of wood used for residential heating purposes,
the sale, other than for resale, of propane (except when sold in
containers of less than one hundred pounds), natural gas, electricity,
steam and gas, electric and steam services used for residential purposes
and the use of gas or electricity used for residential purposes may be
imposed at a lower rate than the uniform local rate imposed pursuant to
the opening paragraph of this section, as long as such rate is one of
the rates authorized by such paragraph or such sale or use may be
exempted from such taxes. Provided, however, such lower rate must apply
to all such energy sources and services and at the same rate and no such
exemption may be enacted unless such exemption applies to all such ener-
gy sources and services. The provisions of this subparagraph shall not
apply to a sale or use of [(i)] diesel motor fuel which involves a
S. 2811--B 79
delivery at a filling station or into a repository which is equipped
with a hose or other apparatus by which such fuel can be dispensed into
the fuel tank of a motor vehicle [and (ii) enhanced diesel motor fuel
except in the case of a sale or use of such enhanced diesel motor fuel
used exclusively for residential purposes which is delivered into a
storage tank which is not equipped with a hose or other apparatus by
which such fuel can be dispensed into the fuel tank of a motor vehicle
and such storage tank is attached to the heating unit burning such fuel,
provided that each delivery of such fuel of over four thousand five
hundred gallons shall be evidenced by a certificate signed by the
purchaser stating that the product will be used exclusively for residen-
tial purposes].
S 50. Subdivision (c) of section 1812 of the tax law, as amended by
section 25 of subpart I of part V-1 of chapter 57 of the laws of 2009,
is amended to read as follows:
(c) Any owner of a filling station who shall willfully and knowingly
have in his OR HER custody, possession or under his OR HER control any
motor fuel or Diesel motor fuel [on which] (1) ON WHICH the taxes
imposed by or pursuant to the authority of such article have not been
assumed or paid by a distributor registered as such under such article
[or], (2) ON WHICH the taxes imposed by or pursuant to the authority of
such article have not been included in the cost to him OR HER of such
fuel where such taxes were required to have been passed through to him
OR HER and included in the cost to him OR HER of such fuel, OR (3)
WHICH IS DYED DIESEL MOTOR FUEL AS DEFINED BY SUBDIVISION EIGHTEEN-A OF
SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER (EXCEPT FOR WATER-WHITE
KEROSENE), shall [in either case,] be guilty of a class E felony. For
purposes of this subdivision, such owner shall willfully and knowingly
have in his OR HER custody, possession or under his OR HER control any
motor fuel or Diesel motor fuel on which such taxes have not been
assumed or paid by a distributor registered as such where such owner has
knowledge of the requirement that such taxes be paid and where, to his
OR HER knowledge, such taxes have not been assumed or paid by a regis-
tered distributor on such motor fuel or Diesel motor fuel. Such owner
shall willfully and knowingly have in his OR HER custody, possession or
under his OR HER control any motor fuel or Diesel motor fuel on which
such taxes are required to have been passed through to him OR HER and
have not been included in his OR HER cost where such owner has knowledge
of the requirement that such taxes be passed through and where to his
knowledge such taxes have not been so included. SUCH OWNER SHALL WILL-
FULLY AND KNOWINGLY HAVE IN HIS OR HER CUSTODY, POSSESSION OR UNDER HIS
OR HER CONTROL ANY DYED DIESEL MOTOR FUEL (EXCEPT WATER-WHITE KEROSENE)
WHERE SUCH OWNER HAS KNOWLEDGE OF THE REQUIREMENT THAT DYED DIESEL MOTOR
FUEL (EXCEPT WATER-WHITE KEROSENE) MAY NOT BE IN HIS OR HER CUSTODY,
POSSESSION OR UNDER HIS OR HER CONTROL.
S 51. Subdivision (e) of section 1812 of the tax law is REPEALED and
subdivision (f) is relettered subdivision (e).
S 52. Section 1812-a of the tax law, as added by chapter 261 of the
laws of 1988, is amended to read as follows:
S 1812-a. Person not registered as distributor of Diesel motor fuel.
(a) Any person who, while not registered as a distributor of Diesel
motor fuel pursuant to the provisions of article twelve-A of this chap-
ter, [engages in the enhancement,] makes a sale or use within the state
of Diesel motor fuel (other than a retail sale not in bulk or the self-
use of Diesel motor fuel which has been the subject of a retail sale),
imports or causes Diesel motor fuel to be imported into the state or
S. 2811--B 80
produces, refines, manufactures or compounds Diesel motor fuel within
the state shall be guilty of a misdemeanor. If, within any ninety day
period, two thousand nine hundred gallons or more of Diesel motor fuel
are subjected to [enhancement or] sale or use (other than a retail sale
not in bulk or the self-use of Diesel motor fuel which has been the
subject of a retail sale) within the state or are imported or caused to
be imported by any person while not so registered as a distributor of
Diesel motor fuel, such person shall be guilty of a class E felony.
(b) Any person whose registration under article twelve-A of this chap-
ter applies only to the importation, sale and distribution of Diesel
motor fuel for [the purposes] USE OTHER THAN ON A PUBLIC HIGHWAY AS
described in subparagraph (i) of paragraph (b) of subdivision three of
section two hundred eighty-two-a of this chapter who delivers NON-HIGH-
WAY Diesel motor fuel at a filling station [other than for the sole
purpose of heating such station] or into a repository equipped with a
hose or other apparatus by which NON-HIGHWAY Diesel motor fuel can be
dispensed into the fuel tank of a motor vehicle, other than such a
repository which is located on the premises of such registrant where the
Diesel motor fuel delivered therein is used exclusively for the purpose
of fueling motor vehicles operated by registrant for the purpose of
distributing Diesel motor fuel for the purposes described in such
subparagraph (i), shall be guilty of a misdemeanor. If, within any nine-
ty day period, any such person whose registration under article twelve-A
of this chapter applies only to the importation, sale and distribution
of NON-HIGHWAY Diesel motor fuel for the purposes described in subpara-
graph (i) of paragraph (b) of subdivision three of section two hundred
eighty-two-a of this chapter so unlawfully delivers a total of one thou-
sand gallons or more of Diesel motor fuel at such filling station or
stations or into such repository or repositories (or a combination of
both such filling stations and repositories), then, such person shall be
guilty of a class E felony.
(c) Any person who has twice been convicted under this section shall
be guilty of a class E felony for any subsequent violation of this
section, regardless of the amount of Diesel motor fuel involved in such
violation. For purposes of this section, the terms ["enhancement"]
"NON-HIGHWAY DIESEL MOTOR FUEL" and "retail sale not in bulk" shall have
the same meaning they have for purposes of article twelve-A of this
chapter.
S 53. Subdivisions (a) and (b) 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, is amended to read as follows:
(a) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four of this chapter who, without possess-
ing a valid certificate of authority, willfully (1) sells tangible
personal property or services subject to tax, receives amusement charges
or operates a hotel, (2) purchases or sells tangible personal property
for resale, or (3) sells [automotive fuel] PETROLEUM PRODUCTS; and any
person who fails to surrender a certificate of authority as required by
such article shall be guilty of a misdemeanor.
(b) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four of this chapter who within five years
after a determination by the [tax commission] COMMISSIONER, pursuant to
such section, to suspend, revoke or refuse to issue a certificate of
authority has become final, and without possession of a valid certif-
icate of authority (1) sells tangible personal property or services
subject to tax, receives amusement charges or operates a hotel, (2)
S. 2811--B 81
purchases or sells tangible personal property for resale, or (3) sells
[automotive fuel] PETROLEUM PRODUCTS, shall be guilty of a misdemeanor.
It shall be an affirmative defense that such person performed the acts
described in this subdivision without knowledge of such determination.
Any person who violates a provision of this subdivision, upon
conviction, shall be subject to a fine in any amount authorized by this
article, but not less than five hundred dollars, in addition to any
other penalty provided by law.
S 54. The section heading, subdivisions (a), (b) and (c), paragraph 3,
subparagraph (D) of paragraph 4 and paragraph 6 of subdivision (d) and
subdivisions (e) and (g) of section 1848 of the tax law, as added by
chapter 276 of the laws of 1986 and subparagraph (D) of paragraph 4 and
paragraph 6 of subdivision (d) as amended by chapter 190 of the laws of
1990, are amended to read as follows:
Forfeiture action with respect to motor fuel and DIESEL MOTOR FUEL AND
vehicle carrying such fuel. (a) Temporary seizure. Whenever a police
officer designated in section 1.20 of the criminal procedure law or a
peace officer designated in subdivision four of section 2.10 of such
law, acting pursuant to his special duties, shall discover any motor
fuel OR DIESEL MOTOR FUEL which is being imported for use, distribution,
storage or sale in the state where the person importing or causing such
motor fuel OR DIESEL MOTOR FUEL to be imported is not registered as a
distributor under section two hundred eighty-three OR SECTION TWO
HUNDRED EIGHTY-TWO-A, of this chapter, AS THE CASE MAY BE, such police
officer or peace officer is hereby authorized to seize and take
possession of such motor fuel OR DIESEL MOTOR FUEL, together with the
vehicle or other means of transportation used to transport such motor
fuel.
(b) Retention of property. The department [of taxation and finance]
shall hold and safely keep such motor fuel, DIESEL MOTOR FUEL, vehicle
or other means of transportation seized pursuant to subdivision (a) of
this section. Seized motor fuel OR DIESEL MOTOR FUEL may be deposited
to the credit of the department [of taxation and finance] at a terminal
or other storage facility within the state or may be sold by the depart-
ment on the open market.
(c) Confirmation of temporary seizure. Within five business days after
the temporary seizure of motor fuel, DIESEL MOTOR FUEL, vehicle or other
means of transportation pursuant to subdivision (a) of this section, the
department [of taxation and finance] shall move in supreme court in any
county, on such notice as the court shall direct to the owners of the
property, to confirm the temporary seizure. If the department [of taxa-
tion and finance] fails to make such motion within the required period,
such seized property shall be restored to the owners thereof as provided
in subdivision (e) of this section. On a motion for an order confirming
the seizure, the department [of taxation and finance] shall show, by
affidavit and such other written evidence as may be submitted, that
there is a cause of action for forfeiture under subdivision (d) of this
section and that there are grounds for confirmation of the seizure. The
department shall include, in its motion papers, an inventory of all
seized property. The court shall grant an application for an order
confirming the seizure when it determines that there is a substantial
probability that the department [of taxation and finance] will prevail
on the issue of forfeiture.
(3) Forfeiture of motor fuel OR DIESEL MOTOR FUEL together with the
vehicle or other means of transportation used to transport such motor
fuel OR DIESEL MOTOR FUEL shall be adjudged where the department [of
S. 2811--B 82
taxation and finance] proves, by clear and convincing evidence, that the
person importing or causing such motor fuel OR DIESEL MOTOR FUEL to be
imported was not registered as a distributor under section two hundred
eighty-three OR SECTION TWO HUNDRED EIGHTY-TWO-A of this chapter, AS THE
CASE MAY BE. All defendants in a forfeiture action brought pursuant to
this article shall have the right to trial by jury on any issue of fact.
(D) The court may grant the relief provided in subparagraph (A) [here-
of] OF THIS PARAGRAPH if it finds that such relief is warranted by the
existence of some compelling factor, consideration or circumstance
demonstrating that forfeiture of the property or any part thereof, would
not serve the ends of justice. Reporting and payment of the tax imposed
pursuant to article twelve-A or article twenty-eight of this chapter
with respect to such motor fuel OR DIESEL MOTOR FUEL subsequent to the
seizure of such fuel shall not constitute a compelling factor, consider-
ation or circumstance warranting the granting of the relief provided for
in subparagraph (A) [hereof] of this paragraph. In determining whether
such relief is warranted by the existence of some compelling factor,
consideration or circumstances pursuant to this paragraph, the court
may, however, take into account the fact that such taxes with respect to
the seized fuel have been reported and remitted to the state prior to
the temporary seizure of such fuel if the unregistered importation into
the state was effected in good faith and without knowledge of the
requirement of registration and without intent to evade tax. The court
must issue a written decision, stating the basis for an order issued
pursuant to this paragraph.
(6) The total that may be recovered shall not exceed the value of the
motor fuel OR DIESEL MOTOR FUEL seized and, in addition, either the
value of the vehicle or other means of transportation used to transport
such fuel or three times the amount of the tax and penalty under arti-
cles twelve-A, thirteen-A and twenty-eight and pursuant to the authority
of article twenty-nine of this chapter with respect to the motor fuel OR
DIESEL MOTOR FUEL, whichever is less.
(e) Return of property. If (1) the department [of taxation and
finance] fails to move for confirmation of the seizure pursuant to
subdivision (c) of this section or (2) a court denies an application for
an order confirming the seizure or (3) judgment is entered against the
department in the forfeiture action and that judgment is affirmed after
all appeals are exhausted, then the department shall restore such seized
motor fuel OR DIESEL MOTOR FUEL, or motor fuel OR DIESEL MOTOR FUEL of a
like quantity and type, or such seized vehicle or other means of trans-
portation to the owners thereof. Alternatively, if such seized motor
fuel OR DIESEL MOTOR FUEL has been sold as provided in subdivision (b)
of this section, the department shall pay to the owners of such motor
fuel OR DIESEL MOTOR FUEL the proceeds of such sale or, if greater, an
amount of money representing the fair market value of the motor fuel OR
DIESEL MOTOR FUEL at the time of the seizure.
(g) Disposal of property. The department [of taxation and finance],
after a judicial determination of forfeiture, shall, in its discretion,
either retain such seized property for its official use or sell such
forfeited property at public sale. The net proceeds of any such sale, or
of any sale of seized motor fuel OR DIESEL MOTOR FUEL as provided in
subdivision (b) of this section, after deduction of the lawful expenses
incurred, shall be deposited and disposed of pursuant to the provisions
of section one hundred seventy-one-a of this chapter with respect to
deposit and disposition of revenue.
S. 2811--B 83
S 55. Paragraph (q) of subdivision 34 of section 1.20 of the criminal
procedure law, as amended by chapter 318 of the laws of 2002, is amended
to read as follows:
(q) An employee of the department of taxation and finance (i) assigned
to enforcement of the taxes imposed under or pursuant to the authority
of article twelve-A of the tax law and administered by the commissioner
of taxation and finance, taxes imposed under or pursuant to the authori-
ty of article eighteen of the tax law and administered by the commis-
sioner, taxes imposed under article twenty of the tax law, or sales or
compensating use taxes relating to [automotive fuel] PETROLEUM PRODUCTS
or cigarettes imposed under article twenty-eight or pursuant to the
authority of article twenty-nine of the tax law and administered by the
commissioner or (ii) designated as a revenue crimes specialist and
assigned to the enforcement of the taxes described in paragraph (c) of
subdivision four of section 2.10 of this title, for the purpose of
applying for and executing search warrants under article six hundred
ninety of this chapter, for the purpose of acting as a claiming agent
under article thirteen-A of the civil practice law and rules in
connection with the enforcement of the taxes referred to above and for
the purpose of executing warrants of arrest relating to the respective
crimes specified in subdivision four of section 2.10 of this title.
S 56. Paragraph (a) of subdivision 4 of section 2.10 of the criminal
procedure law, as amended by chapter 2 of the laws of 1995, is amended
to read as follows:
(a) to the enforcement of any of the criminal or seizure and forfei-
ture provisions of the tax law relating to (i) taxes imposed under or
pursuant to the authority of article twelve-A of the tax law and admin-
istered by the commissioner, (ii) taxes imposed under or pursuant to the
authority of article eighteen of the tax law and administered by the
commissioner, (iii) taxes imposed under article twenty of the tax law,
or (iv) sales or compensating use taxes relating to [automotive fuel]
PETROLEUM PRODUCTS or cigarettes imposed under article twenty-eight or
pursuant to the authority of article twenty-nine of the tax law and
administered by the commissioner or
S 57. Sections 11-2033, 11-2034, 11-2035, 11-2036, 11-2037 and 11-2038
of the administrative code of the city of New York are REPEALED.
S 58. This act shall take effect September 1, 2011 and shall apply to
sales or uses occurring on or after such date in accordance with the
applicable transitional provisions in sections 1106 and 1217 of the tax
law; provided, however, that:
(a) the amendments to subdivisions 22 and 23 of section 282 of the tax
law, made by section one of this act shall not affect the repeal of such
subdivisions and shall be deemed repealed therewith;
(b) the amendments to paragraph 2 of subdivision (a) of section 1102
of the tax law made by section thirty-nine of this act shall be subject
to the expiration and reversion of such paragraph pursuant to section 19
of part W-1 of chapter 109 of the laws of 2006, as amended, when upon
such date the provisions of section thirty-nine-a of this act shall take
effect; and
(c) the amendments to subdivision (j) of section 1115 of the tax law
made by section forty-one of this act shall be subject to the expiration
and reversion of such subdivision pursuant to section 19 of part W-1 of
chapter 109 of the laws of 2006, as amended, when upon such date the
provisions of section forty-one-a of this act shall take effect.
PART L
S. 2811--B 84
Section 1. Subdivision 22 of section 282 of the tax law, as added by
section 1 of part W-1 of chapter 109 of the laws of 2006, is amended to
read as follows:
22. "E85" means a [mixture consisting by volume of eighty-five
percent] FUEL BLEND CONSISTING OF ethanol and [the remainder of which
is] motor fuel, WHICH MEETS THE ASTM INTERNATIONAL ACTIVE STANDARD D5798
FOR FUEL ETHANOL.
S 2. Section 19 of part W-1 of chapter 109 of the laws of 2006, amend-
ing the tax law relating to providing exemptions, reimbursements and
credits from various taxes for certain alternative fuels, is amended to
read as follows:
S 19. This act shall take effect immediately; provided, however, that
sections one through thirteen of this act shall take effect September 1,
2006 and shall be deemed repealed on September 1, [2011] 2012 and such
repeal shall apply in accordance with the applicable transitional
provisions of sections 1106 and 1217 of the tax law, and shall apply to
sales made, fuel compounded or manufactured, and uses occurring on or
after such date, and with respect to sections seven through eleven of
this act, in accordance with applicable transitional provisions of
sections 1106 and 1217 of the tax law; provided, however, that the
commissioner of taxation and finance shall be authorized on and after
the date this act shall have become a law to adopt and amend any rules
or regulations and to take any steps necessary to implement the
provisions of this act; provided further that sections fourteen through
sixteen of this act shall take effect immediately and shall apply to
taxable years beginning on or after January 1, 2006.
S 3. This act shall take effect immediately; provided, however, that
the amendments made to subdivision 22 of section 282 of the tax law made
by section one of this act shall not affect the repeal of such subdivi-
sion and shall be deemed repealed therewith.
PART M
Section 1. Section 11 of part EE of chapter 63 of the laws of 2000,
amending the tax law and other laws relating to modifying the distrib-
ution of funds from the motor vehicle fuel excise tax, as amended by
section 1-b of part A of chapter 63 of the laws of 2005, is amended to
read as follows:
S 11. Notwithstanding any other law, rule or regulation to the contra-
ry, the comptroller is hereby authorized and directed to deposit in
equal monthly installments and distribute pursuant to the provisions of
subdivision (d) of section 301-j of the tax law amounts listed below to
the credit of the dedicated highway and bridge trust fund and the dedi-
cated mass transportation trust fund from [taxes and fees] ALL MOTOR
VEHICLE RECEIPTS now deposited into the general fund pursuant to
provisions of the vehicle and traffic law: twenty-eight million four
hundred thousand dollars from April 1, 2002 through March 31, 2003,
sixty-seven million nine hundred thousand dollars from April 1, 2003
through March 31, 2004, one hundred seventy million one hundred thousand
dollars from April 1, 2004 through March 31, 2005, and one hundred
percent of all [taxes and fees] MOTOR VEHICLE RECEIPTS pursuant to
provisions of the vehicle and traffic law that are not otherwise
directed to be deposited in a fund other than the general fund from
April 1, 2005 through March 31, 2006, and the same amount each year
thereafter.
S 2. This act shall take effect April 1, 2011.
S. 2811--B 85
PART N
Section 1. Paragraph 1 of subdivision a of section 1612 of the tax
law, as amended by chapter 147 of the laws of 2010, is amended to read
as follows:
(1) sixty percent of the total amount for which tickets have been sold
for a lawful KENO OR SIMILAR STYLE lottery game [introduced on or after
the effective date of this paragraph, subject to the following
provisions:
(A) such game shall be available only on premises occupied by licensed
lottery sales agents, subject to the following provisions:
(i) if the licensee holds a license issued pursuant to the alcoholic
beverage control law to sell alcoholic beverages for consumption on the
premises, then not less than twenty-five percent of the gross sales must
result from sales of food;
(ii) if the licensee does not hold a license issued pursuant to the
alcoholic beverage control law to sell alcoholic beverages for consump-
tion on the premises, then the premises must have a minimum square
footage greater than two thousand five hundred square feet;
(iii) notwithstanding the foregoing provisions, television equipment
that automatically displays the results of such drawings may be
installed and used without regard to the percentage of food sales or the
square footage if such premises are used as:
(I) a commercial bowling establishment, or
(II) a facility authorized under the racing, pari-mutuel wagering and
breeding law to accept pari-mutuel wagers;
(B) the rules for the operation of such game shall be as prescribed by
regulations promulgated and adopted by the division, provided however,
that such rules shall provide that no person under the age of twenty-one
may participate in such games on the premises of a licensee who holds a
license issued pursuant to the alcoholic beverage control law to sell
alcoholic beverages for consumption on the premises; and, provided,
further, that such regulations may be revised on an emergency basis not
later than ninety days after the enactment of this paragraph in order to
conform such regulations to the requirements of this paragraph]; or
S 2. This act shall take effect immediately.
PART O
Section 1. Subparagraph (ii) of paragraph 1 of subdivision b of
section 1612 of the tax law is amended by adding a new clause (I) to
read as follows:
(I) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, FREE PLAY
ALLOWANCE CREDITS AUTHORIZED BY THE DIVISION PURSUANT TO SUBDIVISION F
OF SECTION SIXTEEN HUNDRED SEVENTEEN-A OF THIS ARTICLE SHALL NOT BE
INCLUDED IN THE CALCULATION OF THE TOTAL AMOUNT WAGERED ON VIDEO LOTTERY
GAMES, THE TOTAL AMOUNT WAGERED AFTER PAYOUT OF PRIZES, THE VENDOR FEES
PAYABLE TO THE OPERATORS OF VIDEO LOTTERY FACILITIES, VENDOR'S CAPITAL
AWARDS, FEES PAYABLE TO THE DIVISION'S VIDEO LOTTERY GAMING EQUIPMENT
CONTRACTORS, OR RACING SUPPORT PAYMENTS.
S 2. Section 1617-a of the tax law is amended by adding a new subdivi-
sion f to read as follows:
F. (1) THE DIVISION MAY ADMINISTER A FREE PLAY ALLOWANCE PROGRAM TO
OFFER PLAYERS OR PROSPECTIVE PLAYERS OF VIDEO LOTTERY GAMES FREE PLAY
CREDITS FOR THE PURPOSE OF INCREASING REVENUES EARNED BY THE VIDEO
LOTTERY PROGRAM FOR THE SUPPORT OF EDUCATION. FOR THE PURPOSES OF THIS
S. 2811--B 86
SUBDIVISION, "FREE PLAY ALLOWANCE CREDIT" MEANS A SPECIFIED DOLLAR
AMOUNT THAT (I) MAY BE USED BY A PLAYER TO PLAY A VIDEO LOTTERY GAME
WITHOUT PAYING ANY OTHER CONSIDERATION, AND (II) IS NOT USED IN THE
CALCULATION OF TOTAL REVENUE WAGERED AFTER PAYOUT OF PRIZES.
(2) FOR EACH VIDEO LOTTERY FACILITY, THE DIVISION SHALL AUTHORIZE THE
USE OF FREE PLAY ALLOWANCE CREDITS IF THE OPERATOR OF SUCH FACILITY
SUBMITS A WRITTEN PLAN FOR THE USE OF THE FREE PLAY ALLOWANCE THAT THE
DIVISION DETERMINES IS DESIGNED TO INCREASE THE AMOUNT OF REVENUE EARNED
BY VIDEO LOTTERY GAMING AT SUCH FACILITY FOR THE SUPPORT OF EDUCATION.
(3) FOR EACH VIDEO LOTTERY FACILITY, THE ANNUAL VALUE OF THE FREE PLAY
ALLOWANCE CREDITS AUTHORIZED FOR USE BY THE OPERATOR PURSUANT TO THIS
SUBDIVISION SHALL NOT EXCEED AN AMOUNT EQUAL TO TEN PERCENT OF THE TOTAL
AMOUNT WAGERED ON VIDEO LOTTERY GAMES AFTER PAYOUT OF PRIZES. THE DIVI-
SION SHALL ESTABLISH PROCEDURES TO ASSURE THAT FREE PLAY ALLOWANCE CRED-
ITS DO NOT EXCEED SUCH AMOUNT.
(4) THE DIVISION, IN CONJUNCTION WITH THE DIRECTOR OF THE BUDGET, MAY
SUSPEND THE USE OF FREE PLAY ALLOWANCE CREDITS AUTHORIZED PURSUANT TO
THIS SUBDIVISION WHENEVER THEY JOINTLY DETERMINE THAT THE USE OF FREE
PLAY ALLOWANCE CREDITS ARE NOT EFFECTIVE IN INCREASING THE AMOUNT OF
REVENUE EARNED FOR THE SUPPORT OF EDUCATION, AND SUCH USE MAY NOT BE
RESUMED UNLESS THE OPERATOR OF SUCH FACILITY SUBMITS A NEW OR REVISED
WRITTEN PLAN FOR THE USE OF THE FREE PLAY ALLOWANCE THAT THE DIVISION
DETERMINES IS DESIGNED MORE EFFECTIVELY TO PRODUCE AN INCREASE IN THE
AMOUNT OF REVENUE EARNED BY VIDEO LOTTERY GAMING AT SUCH FACILITY FOR
THE SUPPORT OF EDUCATION.
(5) NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO PROHIBIT THE OPERA-
TOR OF A VIDEO LOTTERY FACILITY FROM OFFERING FREE PLAY CREDITS TO PLAY-
ERS OR PROSPECTIVE PLAYERS OF VIDEO LOTTERY GAMES WHEN THE VALUE OF SUCH
FREE PLAY CREDITS IS INCLUDED IN THE CALCULATION OF THE TOTAL AMOUNT
WAGERED ON VIDEO LOTTERY GAMES AND THE TOTAL AMOUNT WAGERED AFTER PAYOUT
OF PRIZES, AND THE OPERATOR OF SUCH FACILITY PAYS THE DIVISION THE FULL
AMOUNT DUE AS THE RESULT OF SUCH CALCULATIONS.
(6) THE DIVISION MAY AMEND THE CONTRACT WITH THE PROVIDER OF THE
CENTRAL COMPUTER SYSTEM THAT CONTROLS THE VIDEO LOTTERY NETWORK DURING
THE TERM OF SUCH CONTRACT IN EFFECT ON THE EFFECTIVE DATE OF THIS SUBDI-
VISION TO PROVIDE ADDITIONAL CONSIDERATION TO SUCH PROVIDER IN AN AMOUNT
DETERMINED BY THE DIVISION TO BE NECESSARY TO COMPENSATE FOR (I) PROC-
ESSING FREE PLAY ALLOWANCE TRANSACTIONS AND (II) SYSTEM UPDATES AND
MODIFICATIONS OTHERWISE NEEDED AS OF SUCH EFFECTIVE DATE.
S 3. This act shall take effect immediately.
PART P
Section 1. Paragraph 2 of subdivision a of section 1612 of the tax
law, as amended by section 1 of part P of chapter 85 of the laws of
2002, is amended to read as follows:
(2) sixty-five percent of the total amount for which tickets have been
sold for the "Instant Cash" game in which the participant purchases a
preprinted ticket on which dollar amounts or symbols are concealed on
the face or the back of such ticket, provided however up to [three such]
FIVE NEW games may be offered during the fiscal year, seventy-five
percent of the total amount for which tickets have been sold for such
[three] FIVE games in which the participant purchases a preprinted tick-
et on which dollar amounts or symbols are concealed on the face or the
back of such ticket; or
S 2. This act shall take effect immediately.
S. 2811--B 87
PART Q
Section 1. Paragraph 3 of subdivision a of section 1612 of the tax
law, as amended by section 2 of part D of chapter 383 of the laws of
2001, is amended to read as follows:
(3) fifty percent of the total amount for which tickets have been sold
for games known as: (A) the "Daily Numbers Game" or "Win 4", discrete
games in which the participants select no more than three or four of
their own numbers to match with three or four numbers drawn by the divi-
sion for purposes of determining winners of such games, (B) "Pick 10",
offered no more than once daily, in which participants select from a
specified field of numbers a subset of ten numbers to match against a
subset of numbers to be drawn by the division from such field of numbers
for the purpose of determining winners of such game, (C) "Take 5",
offered no more than once daily, in which participants select from a
specified field of numbers a subset of five numbers to match against a
subset of five numbers to be drawn by the division from such field of
numbers for purposes of determining winners of such game, and (D) any
joint, multi-jurisdiction, and out-of-state lottery, EXCEPT SUCH PERCENT
MAY EXCEED FIFTY PERCENT OF THE TOTAL AMOUNT FOR WHICH TICKETS HAVE BEEN
SOLD FOR ANY JOINT, MULTI-JURISDICTION, AND OUT-OF-STATE LOTTERY IF AT
LEAST TWO-THIRDS OF THE LOTTERY JURISDICTIONS PARTICIPATING IN SUCH
LOTTERY AGREE TO A PERCENTAGE THAT EXCEEDS FIFTY PERCENT AND EXCEPT AS
OTHERWISE PROVIDED IN PARAGRAPH ONE OF SUBDIVISION B OF THIS SECTION FOR
ANY JOINT, MULTI-JURISDICTION, OUT-OF-STATE VIDEO LOTTERY GAMING; or
S 2. This act shall take effect immediately.
PART R
Section 1. The opening paragraph of paragraph 1 of subdivision b of
section 1612 of the tax law, as amended by section 1 of part O-1 of
chapter 57 of the laws of 2009, is amended to read as follows:
Notwithstanding section one hundred twenty-one of the state finance
law, on or before the twentieth day of each month, the division shall
pay into the state treasury, to the credit of the state lottery fund
created by section ninety-two-c of the state finance law, not less than
forty-five percent of the total amount for which tickets have been sold
for games defined in paragraph four of subdivision a of this section
during the preceding month, not less than thirty-five percent of the
total amount for which tickets have been sold for games defined in para-
graph three of subdivision a of this section during the preceding month,
not less than twenty percent of the total amount for which tickets have
been sold for games defined in paragraph two of subdivision a of this
section during the preceding month, provided however that for games with
a prize payout of seventy-five percent of the total amount for which
tickets have been sold, the division shall pay not less than ten percent
of sales into the state treasury and not less than twenty-five percent
of the total amount for which tickets have been sold for games defined
in paragraph one of subdivision a of this section during the preceding
month; and the balance of the total revenue after payout for prizes for
games known as "video lottery gaming," INCLUDING ANY JOINT, MULTI-JURIS-
DICTION, AND OUT-OF-STATE VIDEO LOTTERY GAMING,
S 2. Paragraph 1 of subdivision c of section 1612 of the tax law, as
amended by section 2 of part CC of chapter 61 of the laws of 2005, is
amended to read as follows:
S. 2811--B 88
1. The specifications for video lottery gaming, INCLUDING ANY JOINT,
MULTI-JURISDICTION, AND OUT-OF-STATE VIDEO LOTTERY GAMING, shall be
designed in such a manner as to pay prizes that average no less than
ninety percent of sales.
S 3. This act shall take effect immediately.
PART S
Section 1. Paragraph (a) of subdivision 1 of section 1003 of the
racing, pari-mutuel wagering and breeding law, as amended by section 1
of part C of chapter 134 of the laws of 2010, is amended to read as
follows:
(a) Any racing association or corporation or regional off-track
betting corporation, authorized to conduct pari-mutuel wagering under
this chapter, desiring to display the simulcast of horse races on which
pari-mutuel betting shall be permitted in the manner and subject to the
conditions provided for in this article may apply to the board for a
license so to do. Applications for licenses shall be in such form as may
be prescribed by the board and shall contain such information or other
material or evidence as the board may require. No license shall be
issued by the board authorizing the simulcast transmission of thorough-
bred races from a track located in Suffolk county. The fee for such
licenses shall be five hundred dollars per simulcast facility per year
payable by the licensee to the board for deposit into the general fund.
Except as provided herein, the board shall not approve any application
to conduct simulcasting into individual or group residences, homes or
other areas for the purposes of or in connection with pari-mutuel wager-
ing. The board may approve simulcasting into residences, homes or other
areas to be conducted jointly by one or more regional off-track betting
corporations and one or more of the following: a franchised corporation,
thoroughbred racing corporation or a harness racing corporation or asso-
ciation; provided (i) the simulcasting consists only of those races on
which pari-mutuel betting is authorized by this chapter at one or more
simulcast facilities for each of the contracting off-track betting
corporations which shall include wagers made in accordance with section
one thousand fifteen, one thousand sixteen and one thousand seventeen of
this article; provided further that the contract provisions or other
simulcast arrangements for such simulcast facility shall be no less
favorable than those in effect on January first, two thousand five; (ii)
that each off-track betting corporation having within its geographic
boundaries such residences, homes or other areas technically capable of
receiving the simulcast signal shall be a contracting party; (iii) the
distribution of revenues shall be subject to contractual agreement of
the parties except that statutory payments to non-contracting parties,
if any, may not be reduced; provided, however, that nothing herein to
the contrary shall prevent a track from televising its races on an
irregular basis primarily for promotional or marketing purposes as found
by the board. For purposes of this paragraph, the provisions of section
one thousand thirteen of this article shall not apply. Any agreement
authorizing an in-home simulcasting experiment commencing prior to May
fifteenth, nineteen hundred ninety-five, may, and all its terms, be
extended until June thirtieth, two thousand [eleven] TWELVE; provided,
however, that any party to such agreement may elect to terminate such
agreement upon conveying written notice to all other parties of such
agreement at least forty-five days prior to the effective date of the
termination, via registered mail. Any party to an agreement receiving
S. 2811--B 89
such notice of an intent to terminate, may request the board to mediate
between the parties new terms and conditions in a replacement agreement
between the parties as will permit continuation of an in-home experiment
until June thirtieth, two thousand [eleven] TWELVE; and (iv) no in-home
simulcasting in the thoroughbred special betting district shall occur
without the approval of the regional thoroughbred track.
S 2. Subparagraph (iii) of paragraph d of subdivision 3 of section
1007 of the racing, pari-mutuel wagering and breeding law, as amended by
section 2 of part C of chapter 134 of the laws of 2010, is amended to
read as follows:
(iii) Of the sums retained by a receiving track located in Westchester
county on races received from a franchised corporation, for the period
commencing January first, two thousand eight and continuing through June
thirtieth, two thousand [eleven] TWELVE, the amount used exclusively for
purses to be awarded at races conducted by such receiving track shall be
computed as follows: of the sums so retained, two and one-half percent
of the total pools. Such amount shall be increased or decreased in the
amount of fifty percent of the difference in total commissions deter-
mined by comparing the total commissions available after July twenty-
first, nineteen hundred ninety-five to the total commissions that would
have been available to such track prior to July twenty-first, nineteen
hundred ninety-five.
S 3. The opening paragraph of subdivision 1 of section 1014 of the
racing, pari-mutuel wagering and breeding law, as amended by section 3
of part C of chapter 134 of the laws of 2010, is amended to read as
follows:
The provisions of this section shall govern the simulcasting of races
conducted at thoroughbred tracks located in another state or country on
any day during which a franchised corporation is conducting a race meet-
ing in Saratoga county at Saratoga thoroughbred racetrack until June
thirtieth, two thousand [eleven] TWELVE and on any day regardless of
whether or not a franchised corporation is conducting a race meeting in
Saratoga county at Saratoga thoroughbred racetrack after June thirtieth,
two thousand [eleven] TWELVE. On any day on which a franchised corpo-
ration has not scheduled a racing program but a thoroughbred racing
corporation located within the state is conducting racing, every off-
track betting corporation branch office and every simulcasting facility
licensed in accordance with section one thousand seven (that have
entered into a written agreement with such facility's representative
horsemen's organization, as approved by the board), one thousand eight,
or one thousand nine of this article shall be authorized to accept
wagers and display the live simulcast signal from thoroughbred tracks
located in another state or foreign country subject to the following
provisions:
S 4. Subdivision 1 of section 1015 of the racing, pari-mutuel wagering
and breeding law, as amended by section 4 of part C of chapter 134 of
the laws of 2010, is amended to read as follows:
1. The provisions of this section shall govern the simulcasting of
races conducted at harness tracks located in another state or country
during the period July first, nineteen hundred ninety-four through June
thirtieth, two thousand [eleven] TWELVE. This section shall supersede
all inconsistent provisions of this chapter.
S 5. The opening paragraph of subdivision 1 of section 1016 of the
racing, pari-mutuel wagering and breeding law, as amended by section 5
of part C of chapter 134 of the laws of 2010, is amended to read as
follows:
S. 2811--B 90
The provisions of this section shall govern the simulcasting of races
conducted at thoroughbred tracks located in another state or country on
any day during which a franchised corporation is not conducting a race
meeting in Saratoga county at Saratoga thoroughbred racetrack until June
thirtieth, two thousand [eleven] TWELVE. Every off-track betting corpo-
ration branch office and every simulcasting facility licensed in accord-
ance with section one thousand seven that have entered into a written
agreement with such facility's representative horsemen's organization as
approved by the board, one thousand eight or one thousand nine of this
article shall be authorized to accept wagers and display the live full-
card simulcast signal of thoroughbred tracks (which may include quarter
horse or mixed meetings provided that all such wagering on such races
shall be construed to be thoroughbred races) located in another state or
foreign country, subject to the following provisions; provided, however,
no such written agreement shall be required of a franchised corporation
licensed in accordance with section one thousand seven of this article:
S 6. The opening paragraph of section 1018 of the racing, pari-mutuel
wagering and breeding law, as amended by section 6 of part C of chapter
134 of the laws of 2010, is amended to read as follows:
Notwithstanding any other provision of this chapter, for the period
July twenty-fifth, two thousand one through September eighth, two thou-
sand [ten] ELEVEN, when a franchised corporation is conducting a race
meeting within the state at Saratoga Race Course, every off-track
betting corporation branch office and every simulcasting facility
licensed in accordance with section one thousand seven (that has entered
into a written agreement with such facility's representative horsemen's
organization as approved by the board), one thousand eight or one thou-
sand nine of this article shall be authorized to accept wagers and
display the live simulcast signal from thoroughbred tracks located in
another state, provided that such facility shall accept wagers on races
run at all in-state thoroughbred tracks which are conducting racing
programs subject to the following provisions; provided, however, no such
written agreement shall be required of a franchised corporation licensed
in accordance with section one thousand seven of this article.
S 7. Section 32 of chapter 281 of the laws of 1994, amending the
racing, pari-mutuel wagering and breeding law and other laws relating to
simulcasting, as amended by section 7 of part C of chapter 134 of the
laws of 2010, is amended to read as follows:
S 32. This act shall take effect immediately and the pari-mutuel tax
reductions in section six of this act shall expire and be deemed
repealed on July 1, [2011] 2012; provided, however, that nothing
contained herein shall be deemed to affect the application, qualifica-
tion, expiration, or repeal of any provision of law amended by any
section of this act, and such provisions shall be applied or qualified
or shall expire or be deemed repealed in the same manner, to the same
extent and on the same date as the case may be as otherwise provided by
law; provided further, however, that sections twenty-three and twenty-
five of this act shall remain in full force and effect only until May 1,
1997 and at such time shall be deemed to be repealed.
S 8. Section 54 of chapter 346 of the laws of 1990, amending the
racing, pari-mutuel wagering and breeding law and other laws relating to
simulcasting and the imposition of certain taxes, as amended by section
8 of part C of chapter 134 of the laws of 2010, is amended to read as
follows:
S 54. This act shall take effect immediately; provided, however,
sections three through twelve of this act shall take effect on January
S. 2811--B 91
1, 1991, and section 1013 of the racing, pari-mutuel wagering and breed-
ing law, as added by section thirty-eight of this act, shall expire and
be deemed repealed on July 1, [2011] 2012; and section eighteen of this
act shall take effect on July 1, 2008 and sections fifty-one and fifty-
two of this act shall take effect as of the same date as chapter 772 of
the laws of 1989 took effect.
S 9. Paragraph (a) of subdivision 1 of section 238 of the racing,
pari-mutuel wagering and breeding law, as amended by section 10 of part
C of chapter 134 of the laws of 2010, is amended to read as follows:
(a) The franchised corporation authorized under this chapter to
conduct pari-mutuel betting at a race meeting or races run thereat shall
distribute all sums deposited in any pari-mutuel pool to the holders of
winning tickets therein, provided such tickets be presented for payment
before April first of the year following the year of their purchase,
less an amount which shall be established and retained by such fran-
chised corporation of between twelve to seventeen per centum of the
total deposits in pools resulting from on-track regular bets, and four-
teen to twenty-one per centum of the total deposits in pools resulting
from on-track multiple bets and fifteen to twenty-five per centum of the
total deposits in pools resulting from on-track exotic bets and fifteen
to thirty-six per centum of the total deposits in pools resulting from
on-track super exotic bets, plus the breaks. The retention rate to be
established is subject to the prior approval of the racing and wagering
board. Such rate may not be changed more than once per calendar quarter
to be effective on the first day of the calendar quarter. "Exotic bets"
and "multiple bets" shall have the meanings set forth in section five
hundred nineteen of this chapter. "Super exotic bets" shall have the
meaning set forth in section three hundred one of this chapter. For
purposes of this section, a "pick six bet" shall mean a single bet or
wager on the outcomes of six races. The breaks are hereby defined as the
odd cents over any multiple of five for payoffs greater than one dollar
five cents but less than five dollars, over any multiple of ten for
payoffs greater than five dollars but less than twenty-five dollars,
over any multiple of twenty-five for payoffs greater than twenty-five
dollars but less than two hundred fifty dollars, or over any multiple of
fifty for payoffs over two hundred fifty dollars. Out of the amount so
retained there shall be paid by such franchised corporation to the
commissioner of taxation and finance, as a reasonable tax by the state
for the privilege of conducting pari-mutuel betting on the races run at
the race meetings held by such franchised corporation, the following
percentages of the total pool for regular and multiple bets five per
centum of regular bets and four per centum of multiple bets plus twenty
per centum of the breaks; for exotic wagers seven and one-half per
centum plus twenty per centum of the breaks, and for super exotic bets
seven and one-half per centum plus fifty per centum of the breaks. For
the period June first, nineteen hundred ninety-five through September
ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be
three per centum and such tax on multiple wagers shall be two and one-
half per centum, plus twenty per centum of the breaks. For the period
September tenth, nineteen hundred ninety-nine through March thirty-
first, two thousand one, such tax on all wagers shall be two and six-
tenths per centum and for the period April first, two thousand one
through December thirty-first, two thousand [eleven] TWELVE, such tax on
all wagers shall be one and six-tenths per centum, plus, in each such
period, twenty per centum of the breaks. Payment to the New York state
thoroughbred breeding and development fund by such franchised corpo-
S. 2811--B 92
ration shall be one-half of one per centum of total daily on-track pari-
mutuel pools resulting from regular, multiple and exotic bets and three
per centum of super exotic bets provided, however, that for the period
September tenth, nineteen hundred ninety-nine through March thirty-
first, two thousand one, such payment shall be six-tenths of one per
centum of regular, multiple and exotic pools and for the period April
first, two thousand one through December thirty-first, two thousand
[eleven] TWELVE, such payment shall be seven-tenths of one per centum of
such pools.
S 10. Subdivision 5 of section 1012 of the racing, pari-mutuel wager-
ing and breeding law, as amended by section 11 of part C of chapter 134
of the laws of 2010, is amended to read as follows:
5. The provisions of this section shall expire and be of no further
force and effect after June thirtieth, two thousand [eleven] TWELVE.
S 11. This act shall take effect immediately.
PART T
Section 1. Paragraph (h) of subdivision 12-G of section 210 of the tax
law is REPEALED.
S 2. This act shall take effect immediately.
PART U
Section 1. Paragraphs (a) and (b) of subdivision 2 of section 480-a of
the tax law, as amended by section 125 of part C of chapter 58 of the
laws of 2009, are amended to read as follows:
(a) (i) Every retail dealer and every person owning or, if the owner
is not the operator, then any person operating one or more vending
machines through which cigarettes or tobacco products are sold in this
state, who is required under section eleven hundred thirty-six of this
chapter to file a return for the quarterly period ending on the last day
of August, nineteen hundred ninety or for the quarterly period ending on
the last day of August in any year thereafter, must file an application
for registration under this section with that quarterly return, in such
form as shall be prescribed by the commissioner.
(ii) Each retail dealer must pay an application fee with the quarterly
return [described by subparagraph (i) of this paragraph] OF TWO HUNDRED
DOLLARS for each retail place of business in this state through which it
sells cigarettes or tobacco products[, which is based on gross sales of
that place of business during the previous calendar year. The applica-
tion fee is: one thousand dollars for each retail place of business with
gross sales totaling less than one million dollars; two thousand five
hundred dollars for each retail place of business with gross sales
totaling at least one million dollars but less than ten million dollars;
and five thousand dollars for each retail place of business with gross
sales totaling at least ten million dollars].
(iii) Every person who owns or, if the owner is not the operator, then
any person who operates one or more vending machines through which ciga-
rettes or tobacco products are sold in this state, regardless of whether
located on the premises of the vending machine owner or, if the owner is
not the operator, then the premises of the operator or the premises of
any other person, must pay an application fee with the quarterly return
[described by subparagraph (i) of this paragraph] OF FIFTY DOLLARS for
each vending machine[, which is based on gross sales of that vending
machine during the previous calendar year. The application fee is: two
S. 2811--B 93
hundred fifty dollars for each vending machine with gross sales totaling
less than one hundred thousand dollars; six hundred twenty-five dollars
for each vending machine with gross sales totaling at least one hundred
thousand dollars but less than one million dollars; and one thousand two
hundred fifty dollars for each vending machine with gross sales totaling
at least one million dollars]. The department will issue a registration
certificate, as prescribed by the commissioner, after receipt of a
registration application and the appropriate registration fee, prior to
the next succeeding January first.
(b) Every retail dealer and every person who owns or, if the owner is
not the operator, then any person who operates one or more vending
machines through which cigarettes or tobacco products are sold in this
state who commences business after the last day of August, nineteen
hundred ninety, or who commences selling cigarettes or tobacco products
at retail through a new or different place of business in this state
after such date, or who commences selling cigarettes or tobacco products
through new or different vending machines after such date, must file
with the commissioner an application for registration, in a form
prescribed by him or her, at least thirty days prior to commencing busi-
ness or commencing sales. Each application must be accompanied by an
application fee OF TWO HUNDRED DOLLARS for each retail place of business
and FIFTY DOLLARS FOR each vending machine to be registered. [The amount
of the application fee is determined by subparagraphs (ii) and (iii) of
paragraph (a) of this subdivision, except that any retail place of busi-
ness or vending machine with zero dollars in gross sales during the
previous calendar year is subject to the lowest application fee required
by such subparagraphs.] The department, within ten days after receipt of
an application for registration under this paragraph and payment of the
proper fee for application for registration, will issue a registration
certificate, as prescribed by the commissioner, for each retail place of
business or cigarette or tobacco products vending machine registered.
S 2. Section 482 of the tax law, as amended by section 10 of part D of
chapter 134 of the laws of 2010, is amended to read as follows:
S 482. Deposit and disposition of revenue. (a) All taxes, fees, inter-
est and penalties collected or received by the commissioner under this
article and article twenty-A of this chapter shall be deposited and
disposed of pursuant to the provisions of section one hundred seventy-
one-a of this chapter. (b) From the taxes, interest and penalties
collected or received by the commissioner under sections four hundred
seventy-one and four hundred seventy-one-a of this article, effective on
and after March first, two thousand, forty-nine and fifty-five
hundredths, and effective on and after February first, two thousand two,
forty-three and seventy hundredths; and effective on and after May
first, two thousand two, sixty-four and fifty-five hundredths; and
effective on and after April first, two thousand three, sixty-one and
twenty-two hundredths percent; and effective on and after June third,
two thousand eight, seventy and sixty-three hundredths percent; and
effective on and after July first, two thousand ten, seventy-six percent
collected or received under those sections must be deposited to the
credit of the tobacco control and insurance initiatives pool to be
established and distributed by the commissioner of health in accordance
with section twenty-eight hundred seven-v of the public health law. [(c)
From the fees collected or received by the commissioner under subdivi-
sion two of section four hundred eighty-a of this article, effective on
or after September first, two thousand nine, any monies collected or
received under that section in excess of three million dollars must be
S. 2811--B 94
deposited to the credit of the tobacco control and insurance initiatives
pool to be distributed by the commissioner of health in accordance with
section twenty-eight hundred seven-v of the public health law.]
S 3. 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 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.
(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 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 transferred thereto
from any other fund or source pursuant to law in the HCRA resources
fund.
S 4. This act shall take effect immediately; provided, however, that
section one of this act shall be deemed to have been in full force and
effect on and after April 1, 2009 and shall apply only to fees related
to applications for registration for the 2010 calendar year and there-
after; and provided further, however, that sections two and three of
this act shall be deemed to have been in full force and effect on and
after September 1, 2009.
PART V
Section 1. Paragraph 34 of subdivision (b) of section 1101 of the tax
law, as amended by section 1 of part WW of chapter 57 of the laws of
2010, is amended to read as follows:
(34) Transportation service. The service of transporting, carrying or
conveying a person or persons by livery service WHERE PAYMENT FOR THE
SERVICE IS IN A FORM OTHER THAN CASH; whether to a single destination or
to multiple destinations; and whether the compensation paid by or on
behalf of the passenger is based on mileage, trip, time consumed or any
other basis. A service that begins and ends in this state is deemed
intra-state even if it passes outside this state during a portion of the
trip. However, transportation service does not include transportation of
persons in connection with funerals. Transportation service includes
S. 2811--B 95
transporting, carrying, or conveying property of the person being trans-
ported, whether owned by or in the care of such person. In addition to
what is included in the definition of "receipt" in paragraph three of
this subdivision, receipts from the sale of transportation service
subject to tax include any handling, carrying, baggage, booking service,
administrative, mark-up, additional, or other charge, of any nature,
made in conjunction with the transportation service. Livery service
means service provided by LIVERY, limousine, black car or other [motor]
FOR-HIRE vehicle, with a driver, but excluding (i) a taxicab[,] AND (ii)
a bus, [and (iii), in a city of one million or more in this state, an
affiliated livery vehicle,] and excluding any scheduled public service.
LIVERY MEANS A FOR-HIRE VEHICLE WITH A SEATING CAPACITY OF UP TO SIX
PERSONS, INCLUDING THE DRIVER, AND CHARGES FOR SERVICE ON THE BASIS OF
FLAT RATE, TIME, MILEAGE, OR ZONES. Limousine means a vehicle with a
seating capacity of up to fourteen persons, excluding the driver. Black
car means a for-hire vehicle dispatched from a central facility.
["Affiliated livery vehicle" means a for-hire motor vehicle with a seat-
ing capacity of up to six persons, including the driver, other than a
black car or luxury limousine, that is authorized and licensed by the
taxi and limousine commission of a city of one million or more to be
dispatched by a base station located in such a city and regulated by
such taxi and limousine commission; and the charges for service provided
by an affiliated livery vehicle are on the basis of flat rate, time,
mileage, or zones and not on a garage to garage basis.]
S 2. Subparagraph (i) of paragraph 2 of subdivision (o) of section
1111 of the tax law, as added by section 4 of part U-1 of chapter 57 of
the laws of 2009, is amended to read as follows:
(i) Any municipality or public corporation that establishes or regu-
lates LIVERY, black car, limousine or other FOR-HIRE vehicle service
fares must adjust those fares to include therein the tax imposed by
paragraph ten of subdivision (c) of section eleven hundred five of this
part and the taxes imposed by other sections of this part and pursuant
to the authority of article twenty-nine of this chapter on the services
taxed by such paragraph ten and must require that any meters or other
devices in the vehicles or otherwise that measure fares be adjusted to
include these taxes, as the same are from time to time imposed and as
the rates of those taxes may change.
S 3. This act shall take effect immediately; provided, however, that
the provisions of this act shall first be implemented on the first day
of a sales tax quarterly period, as such period is described in subdivi-
sion (b) of section 1136 of the tax law, next commencing after this act
shall have become a law.
PART W
Section 1. Subdivision 2 of section 470 of the tax law, as amended by
section 15 of part D of chapter 134 of the laws of 2010, is amended to
read as follows:
2. "Tobacco products." Any cigar, including a little cigar, BLUNT
WRAP, or tobacco, other than cigarettes, intended for consumption by
smoking, chewing, or as snuff.
S 2. Section 470 of the tax law is amended by adding a new subdivision
2-c to read as follows:
2-C. "BLUNT WRAP." ANY INDIVIDUAL TOBACCO WRAPPER, ALSO KNOWN AS A
WRAP OR ROLL-YOUR-OWN CIGAR WRAP, THAT IS MADE WHOLLY OR IN PART FROM
TOBACCO, INCLUDING RECONSTITUTED TOBACCO, WHETHER IN THE FORM OF SHEET
S. 2811--B 96
OR TUBE, IF SUCH A WRAP IS DESIGNED TO BE SOLD TO INDIVIDUALS AND NOT TO
INCLUDE TOBACCO LEAF.
S 3. Paragraph (a) of subdivision 1 of section 471-b of the tax law,
as amended by section 18 of part D of chapter 134 of the laws of 2010,
is amended to read as follows:
(a) Such tax on tobacco products other than CIGARS, snuff and little
cigars shall be at the rate of seventy-five percent of the wholesale
price, and is intended to be imposed only once upon the sale of any
tobacco products other than snuff and little cigars.
S 4. Subdivision 1 of section 471-b of the tax law is amended by
adding a new paragraph (d) to read as follows:
(D) SUCH TAX ON CIGARS SHALL BE AT THE RATE OF SEVENTY-FIVE PERCENT OF
THE WHOLESALE PRICE OR ONE DOLLAR PER CIGAR, WHICHEVER IS LESS.
S 5. Paragraph (i) of subdivision (a) of section 471-c of the tax law,
as amended by section 20 of part D of chapter 134 of the laws of 2010,
is amended to read as follows:
(i) Such tax on tobacco products other than CIGARS, snuff and little
cigars shall be at the rate of seventy-five percent of the wholesale
price.
S 6. Subdivision (a) of section 471-c of the tax law is amended by
adding a new paragraph (iv) to read as follows:
(IV) SUCH TAX ON CIGARS SHALL BE AT THE RATE OF SEVENTY-FIVE PERCENT
OF THE WHOLESALE PRICE OR ONE DOLLAR PER CIGAR, WHICHEVER IS LESS.
S 7. Section 1399-aa of the public health law is amended by adding a
new subdivision 7-a to read as follows:
7-A. "BLUNT WRAP" MEANS ANY INDIVIDUAL TOBACCO WRAPPER, ALSO KNOWN AS
A WRAP OR ROLL-YOUR-OWN CIGAR WRAP, THAT IS MADE WHOLLY OR IN PART FROM
TOBACCO, INCLUDING RECONSTITUTED TOBACCO, WHETHER IN THE FORM OF SHEET
OR TUBE, IF SUCH A WRAP IS DESIGNED TO BE SOLD TO INDIVIDUALS AND NOT TO
INCLUDE TOBACCO LEAF.
S 8. Subdivision 2 of section 1399-gg of the public health law, as
added by chapter 513 of the laws of 2004, is amended to read as follows:
2. No person engaged in the business of manufacturing, selling or
otherwise distributing tobacco products, herbal cigarettes, cigarette
wrapping papers, wrapping leaves or tubes, or any agent or employee of
such person, shall manufacture or cause to be manufactured for sale in
this state, or sell or distribute in this state: (a) any package or
other container of cigarettes containing fewer than twenty cigarettes;
(b) any package of roll-your-own tobacco containing less than six-tenths
of an ounce of tobacco; or (c) any package or other container of ciga-
rette wrapping papers, wrapping leaves or tubes OR BLUNT WRAPS AS
DEFINED IN SUBDIVISION SEVEN-A OF SECTION THIRTEEN HUNDRED NINETY-NINE-
AA OF THIS ARTICLE, that are or are held out to be suitable for use or
used as devices to wrap tobacco for smoking, containing fewer than twen-
ty sheets, leaves or tubes.
S 9. Notwithstanding any provision of law to the contrary, any inven-
tory of tobacco products as of 12:01 am on June 1, 2011 that are
affected by the provisions of this act shall be eligible for a refund of
tax for the difference between the new rate of tax and taxes previously
paid on such product pursuant to the provision of section 476 of the tax
law.
S 10. This act shall take effect June 1, 2011.
PART X
S. 2811--B 97
Section 1. Section 34 of the tax law, as added by section 2 of part Y
of chapter 57 of the laws of 2010, is amended to read as follows:
S 34. Temporary deferral payout credits. 1. The amounts of nonrefunda-
ble credits that are deferred pursuant to section thirty-three of this
article, AS ADDED BY PART Y OF CHAPTER FIFTY-SEVEN OF THE LAWS OF TWO
THOUSAND TEN, in taxable years beginning on or after January first, two
thousand ten and before January first, two thousand thirteen shall be
accumulated and constitute the taxpayer's temporary deferral nonrefunda-
ble payout credit.
2. EARNED NONREFUNDABLE TEMPORARY DEFERRAL PAYOUT CREDIT SHALL MEAN
THE AMOUNT OF CREDITS ALLOWABLE IN TAXABLE YEARS BEGINNING ON OR AFTER
JANUARY FIRST, TWO THOUSAND TEN AND BEFORE JANUARY FIRST, TWO THOUSAND
THIRTEEN, WHICH ARE NOT CARRIED OVER FROM TAX YEARS BEGINNING PRIOR TO
JANUARY FIRST, TWO THOUSAND TEN, TO WHICH SUBDIVISION THREE OF SECTION
THIRTY-THREE OF THIS ARTICLE WOULD APPLY. The taxpayer may first claim
this credit in the taxable year beginning on or after January first, two
thousand thirteen and before January first, two thousand fourteen. The
taxpayer shall be allowed to claim this credit until the accumulated
amounts are exhausted. The credit shall be allowed against the taxpay-
er's tax as provided in the provisions referenced in paragraph (a) of
subdivision [three] FOUR of this section.
[2.] 3. The amounts of refundable credits that are deferred pursuant
to section thirty-three of this article, AS ADDED BY PART Y OF CHAPTER
FIFTY-SEVEN OF THE LAWS OF TWO THOUSAND TEN, in taxable years beginning
on or after January first, two thousand ten and before January first,
two thousand thirteen shall be accumulated and constitute the taxpayer's
temporary deferral refundable payout credit. In the taxable year begin-
ning on or after January first, two thousand thirteen and before January
first, two thousand fourteen, the taxpayer shall be allowed to claim a
credit equal to fifty percent of the amount accumulated. In the taxable
year beginning on or after January first, two thousand fourteen and
before January first, two thousand fifteen, the taxpayer shall be
allowed to claim a credit equal to seventy-five percent of the balance
of the amount accumulated. In the taxable year beginning on or after
January first, two thousand fifteen and before January first, two thou-
sand sixteen, the taxpayer shall be allowed to claim a credit equal to
the remaining balance of the amount accumulated. The credit shall be
allowed against the taxpayer's tax as provided in the provisions refer-
enced in paragraph (b) of subdivision [three] FOUR of this section.
[3.] 4. (a) For application of the temporary deferral nonrefundable
payout credit, see the following provisions of this chapter:
(1) Article 9: section [187-0] 187-O
(2) Article 9-A: section 210(41)
(3) Article 22: section 606(qq)
(4) Article 32: section 1456(v)
(5) Article 33: section 1511(y)
(b) For application of the temporary deferral refundable payout cred-
it, see the following provisions of this chapter:
(1) Article 9: section 187-p
(2) Article 9-A: section 210(42)
(3) Article 22: section 606(rr)
(4) Article 32: section 1456(w)
(5) Article 33: section 1511(z)
S 2. Subdivision 41 of section 210 of the tax law, as added by section
4 of part Y of chapter 57 of the laws of 2010, is amended to read as
follows:
S. 2811--B 98
41. Temporary deferral nonrefundable payout credit. (a) Allowance of
credit. A taxpayer shall be allowed a credit, to be computed as provided
in subdivision one of section thirty-four of this chapter, against the
tax imposed by this article.
(b) Application of credit. The credit allowed under this subdivision
for any taxable year shall not reduce the tax due for that year to less
than [the amount prescribed in paragraph (d) of subdivision one of this
section] ZERO. However, if the amount of credit allowed under this
subdivision for any taxable year reduces the tax to [such amount] ZERO,
any amount of credit thus not deductible in such taxable year SHALL BE:
(1) IF THE AMOUNT OF EARNED NONREFUNDABLE TEMPORARY DEFERRAL PAYOUT
CREDITS IS ZERO THEN THE CREDIT NOT DEDUCTIBLE IN SUCH TAXABLE YEAR may
be carried over to the following year or years and may be deducted from
the taxpayer's tax for such year or years; OR (2) IF THE AMOUNT OF
EARNED NONREFUNDABLE TEMPORARY DEFERRAL PAYOUT CREDITS IS GREATER THAN
ZERO THEN THE TAXPAYER MAY TREAT AN AMOUNT EQUAL TO THE LESSER OF THE
EARNED NONREFUNDABLE TEMPORARY DEFERRAL PAYOUT CREDITS AND THE AMOUNT OF
CREDIT NOT DEDUCTIBLE IN SUCH TAXABLE YEAR AS AN OVERPAYMENT OF TAX.
S 3. This act shall take effect immediately.
PART Y
Section 1. Section 4 of part A of chapter 57 of the laws of 2010
amending the tax law relating to the statutory limitation on the biofuel
production credit and the qualified emerging technology company facili-
ties, operations and training credits, is amended to read as follows:
S 4. This act shall take effect immediately and apply to taxable years
beginning on or after January 1, 2010; PROVIDED HOWEVER, THAT SECTION
ONE OF THIS ACT SHALL APPLY TO TAXABLE YEARS BEGINNING ON OR AFTER JANU-
ARY 1, 2011.
S 2. This act shall take effect immediately.
PART Z
Section 1. Subparagraph (i) of paragraph (b) of subdivision 12 of
section 210 of the tax law, as amended by chapter 637 of the laws of
2008, is amended to read as follows:
(i) A credit shall be allowed under this subdivision with respect to
tangible personal property and other tangible property, including build-
ings and structural components of buildings, which are: depreciable
pursuant to section one hundred sixty-seven of the [internal revenue
code] INTERNAL REVENUE CODE, have a useful life of four years or more,
are acquired by purchase as defined in section one hundred seventy-nine
(d) of the [internal revenue code] INTERNAL REVENUE CODE, have a situs
in this state and are (A) principally used by the taxpayer in the
production of goods by manufacturing, processing, assembling, refining,
mining, extracting, farming, agriculture, horticulture, floriculture,
viticulture or commercial fishing, (B) industrial waste treatment facil-
ities or air pollution control facilities, used in the taxpayer's trade
or business, (C) research and development property, (D) principally used
in the ordinary course of the taxpayer's trade or business as a broker
or dealer in connection with the purchase or sale (which shall include
but not be limited to the issuance, entering into, assumption, offset,
assignment, termination, or transfer) of stocks, bonds or other securi-
ties as defined in section four hundred seventy-five (c)(2) of the
Internal Revenue Code, or of commodities as defined in section four
S. 2811--B 99
hundred seventy-five (e) of the Internal Revenue Code, (E) principally
used in the ordinary course of the taxpayer's trade or business of
providing investment advisory services for a regulated investment compa-
ny as defined in section eight hundred fifty-one of the Internal Revenue
Code, or lending, loan arrangement or loan origination services to
customers in connection with the purchase or sale (which shall include
but not be limited to the issuance, entering into, assumption, offset,
assignment, termination, or transfer) of securities as defined in
section four hundred seventy-five (c)(2) of the Internal Revenue Code,
(E-1) PRINCIPALLY USED IN THE ORDINARY COURSE OF THE TAXPAYER'S TRADE OR
BUSINESS OF PROVIDING INVESTMENT ADVISORY SERVICES, OR THE SERVICE OF
MANAGING INVESTMENT PORTFOLIOS TO ACHIEVE SPECIFIC INVESTMENT OBJECTIVES
FOR ACCOUNTS OVER ONE MILLION DOLLARS OF ACCREDITED INVESTORS (AS THAT
TERM IS DEFINED IN RULE 501 OF REGULATION D OF THE SECURITIES ACT OF
1933), IF THE TAXPAYER SATISFIES THE FOLLOWING CRITERIA: (I) THE TAXPAY-
ER IS A REGULATED BROKER OR DEALER OR AN AFFILIATE OF A REGULATED BROKER
OR DEALER, (II) THE TAXPAYER IS REGISTERED AS AN INVESTMENT ADVISER
UNDER SECTION TWO HUNDRED THREE OF THE INVESTMENT ADVISER ACT OF 1940,
AS AMENDED, AND (III) AT LEAST ONE CLIENT OF THE TAXPAYER IS A REGULATED
INVESTMENT COMPANY AS DEFINED IN SECTION EIGHT HUNDRED FIFTY-ONE OF THE
INTERNAL REVENUE CODE THAT HAS ASSETS IN EXCESS OF ONE HUNDRED MILLION
DOLLARS, (F) principally used in the ordinary course of the taxpayer's
business as an exchange registered as a national securities exchange
within the meaning of sections 3(a)(1) and 6(a) of the Securities
Exchange Act of 1934 or a board of trade as defined in section
1410(a)(1) of the New York Not-for-Profit Corporation Law or as an enti-
ty that is wholly owned by one or more such national securities
exchanges or boards of trade and that provides automation or technical
services thereto, or (G) principally used as a qualified film production
facility including qualified film production facilities having a situs
in an empire zone designated as such pursuant to article eighteen-B of
the general municipal law, where the taxpayer is providing three or more
services to any qualified film production company using the facility,
including such services as a studio lighting grid, lighting and grip
equipment, multi-line phone service, broadband information technology
access, industrial scale electrical capacity, food services, security
services, and heating, ventilation and air conditioning. For purposes of
clauses (D), (E), (E-1) and (F) of this subparagraph, property purchased
by a taxpayer affiliated with a regulated broker, dealer, registered
investment adviser, national securities exchange or board of trade, is
allowed a credit under this subdivision if the property is used by its
affiliated regulated broker, dealer, registered investment adviser,
national securities exchange or board of trade in accordance with this
subdivision. For purposes of determining if the property is principally
used in qualifying uses, the uses by the taxpayer described in clauses
(D) [and], (E), AND (E-1) of this subparagraph may be aggregated. In
addition, the uses by the taxpayer, its affiliated regulated broker,
dealer, and registered investment adviser under [either or both] ANY of
those clauses may be aggregated. Provided, however, a taxpayer shall
not be allowed the credit provided by clauses (D), (E), (E-1) and (F) of
this subparagraph unless (I) eighty percent or more of the employees
performing the administrative and support functions resulting from or
related to the qualifying uses of such equipment are located in this
state or (II) the average number of employees that perform the adminis-
trative and support functions resulting from or related to the qualify-
ing uses of such equipment and are located in this state during the
S. 2811--B 100
taxable year for which the credit is claimed is equal to or greater than
ninety-five percent of the average number of employees that perform
these functions and are located in this state during the thirty-six
months immediately preceding the year for which the credit is claimed,
or (III) the number of employees located in this state during the taxa-
ble year for which the credit is claimed is equal to or greater than
ninety percent of the number of employees located in this state on
December thirty-first, nineteen hundred ninety-eight or, if the taxpayer
was not a calendar year taxpayer in nineteen hundred ninety-eight, the
last day of its first taxable year ending after December thirty-first,
nineteen hundred ninety-eight. If the taxpayer becomes subject to tax in
this state after the taxable year beginning in nineteen hundred ninety-
eight, then the taxpayer is not required to satisfy the employment test
provided in the preceding sentence of this subparagraph for its first
taxable year. For purposes of clause (III) of this subparagraph the
employment test will be based on the number of employees located in this
state on the last day of the first taxable year the taxpayer is subject
to tax in this state. If the uses of the property must be aggregated to
determine whether the property is principally used in qualifying uses,
then either each affiliate using the property must satisfy this employ-
ment test or this employment test must be satisfied through the aggre-
gation of the employees of the taxpayer, its affiliated regulated
broker, dealer, and registered investment adviser using the property.
For purposes of this subdivision, the term "goods" shall not include
electricity.
S 2. Subparagraph (A) of paragraph 2 of subsection (a) of section 606
of the tax law, as amended by chapter 637 of the laws of 2008, is
amended to read as follows:
(A) A credit shall be allowed under this subsection with respect to
tangible personal property and other tangible property, including build-
ings and structural components of buildings, which are: depreciable
pursuant to section one hundred sixty-seven of the internal revenue
code, have a useful life of four years or more, are acquired by purchase
as defined in section one hundred seventy-nine (d) of the internal
revenue code, have a situs in this state and are (i) principally used by
the taxpayer in the production of goods by manufacturing, processing,
assembling, refining, mining, extracting, farming, agriculture, horti-
culture, floriculture, viticulture or commercial fishing, (ii) indus-
trial waste treatment facilities or air pollution control facilities,
used in the taxpayer's trade or business, (iii) research and development
property, (iv) principally used in the ordinary course of the taxpayer's
trade or business as a broker or dealer in connection with the purchase
or sale (which shall include but not be limited to the issuance, enter-
ing into, assumption, offset, assignment, termination, or transfer) of
stocks, bonds or other securities as defined in section four hundred
seventy-five (c)(2) of the Internal Revenue Code, or of commodities as
defined in section 475(e) of the Internal Revenue Code, (v) principally
used in the ordinary course of the taxpayer's trade or business of
providing investment advisory services for a regulated investment compa-
ny as defined in section eight hundred fifty-one of the Internal Revenue
Code, or lending, loan arrangement or loan origination services to
customers in connection with the purchase or sale (which shall include
but not be limited to the issuance, entering into, assumption, offset,
assignment, termination, or transfer) of securities as defined in
section four hundred seventy-five (c)(2) of the Internal Revenue Code,
or (vi) PRINCIPALLY USED IN THE ORDINARY COURSE OF THE TAXPAYER'S TRADE
S. 2811--B 101
OR BUSINESS OF PROVIDING INVESTMENT ADVISORY SERVICES, OR THE SERVICE OF
MANAGING INVESTMENT PORTFOLIOS TO ACHIEVE SPECIFIC INVESTMENT OBJECTIVES
FOR ACCOUNTS OVER ONE MILLION DOLLARS OF ACCREDITED INVESTORS (AS THAT
TERM IS DEFINED IN RULE 501 OF REGULATION D OF THE SECURITIES ACT OF
1933), IF THE TAXPAYER SATISFIES THE FOLLOWING CRITERIA: (I) THE TAXPAY-
ER IS A REGULATED BROKER OR DEALER OR AN AFFILIATE OF A REGULATED BROKER
OR DEALER, (II) THE TAXPAYER IS REGISTERED AS AN INVESTMENT ADVISER
UNDER SECTION TWO HUNDRED THREE OF THE INVESTMENT ADVISER ACT OF 1940,
AS AMENDED, AND (III) AT LEAST ONE CLIENT OF THE TAXPAYER IS A REGULATED
INVESTMENT COMPANY AS DEFINED IN SECTION EIGHT HUNDRED FIFTY-ONE OF THE
INTERNAL REVENUE CODE THAT HAS ASSETS IN EXCESS OF ONE HUNDRED MILLION
DOLLARS, (VII) principally used as a qualified film production facility
including qualified film production facilities having a situs in an
empire zone designated as such pursuant to article eighteen-B of the
general municipal law, where the taxpayer is providing three or more
services to any qualified film production company using the facility,
including such services as a studio lighting grid, lighting and grip
equipment, multi-line phone service, broadband information technology
access, industrial scale electrical capacity, food services, security
services, and heating, ventilation and air conditioning. For purposes of
clauses (iv) [and], (v) AND (VI) of this subparagraph, property
purchased by a taxpayer affiliated with a regulated broker, dealer, or
registered investment adviser is allowed a credit under this subsection
if the property is used by its affiliated regulated broker, dealer or
registered investment adviser in accordance with this subsection. For
purposes of determining if the property is principally used in qualify-
ing uses, the uses by the taxpayer described in clauses (iv) and (v) of
this subparagraph may be aggregated. In addition, the uses by the
taxpayer, its affiliated regulated broker, dealer and registered invest-
ment adviser under either or both of those clauses may be aggregated.
Provided, however, a taxpayer shall not be allowed the credit provided
by clauses (iv) [and], (v) AND (VI) of this subparagraph unless (I)
eighty percent or more of the employees performing the administrative
and support functions resulting from or related to the qualifying uses
of such equipment are located in this state, or (II) the average number
of employees that perform the administrative and support functions
resulting from or related to the qualifying uses of such equipment and
are located in this state during the taxable year for which the credit
is claimed is equal to or greater than ninety-five percent of the aver-
age number of employees that perform these functions and are located in
this state during the thirty-six months immediately preceding the year
for which the credit is claimed, or (III) the number of employees
located in this state during the taxable year for which the credit is
claimed is equal to or greater than ninety percent of the number of
employees located in this state on December thirty-first, nineteen
hundred ninety-eight or, if the taxpayer was not a calendar year taxpay-
er in nineteen hundred ninety-eight, the last day of its first taxable
year ending after December thirty-first, nineteen hundred ninety-eight.
If the taxpayer becomes subject to tax in this state after the taxable
year beginning in nineteen hundred ninety-eight, then the taxpayer is
not required to satisfy the employment test provided in the preceding
sentence of this subparagraph for its first taxable year. For the
purposes of clause (III) of this subparagraph the employment test will
be based on the number of employees located in this state on the last
day of the first taxable year the taxpayer is subject to tax in this
state. If the uses of the property must be aggregated to determine
S. 2811--B 102
whether the property is principally used in qualifying uses, then either
each affiliate using the property must satisfy this employment test or
this employment test must be satisfied through the aggregation of the
employees of the taxpayer, its affiliated regulated broker, dealer, and
registered investment adviser using the property. For purposes of this
subsection, the term "goods" shall not include electricity.
S 3. Paragraph 2 of subsection (i) of section 1456 of the tax law, as
amended by chapter 637 of the laws of 2008, is amended to read as
follows:
(2) A credit shall be allowed under this subsection with respect to
tangible personal property and other tangible property, including build-
ings and structural components of buildings, which are: depreciable
pursuant to section one hundred sixty-seven of the Internal Revenue
Code, have a useful life of four years or more, are acquired by purchase
as defined in section one hundred seventy-nine (d) of the Internal
Revenue Code, have a situs in this state and are (A) principally used in
the ordinary course of the taxpayer's trade or business as a broker or
dealer in connection with the purchase or sale (which shall include but
not be limited to the issuance, entering into, assumption, offset,
assignment, termination, or transfer) of stocks, bonds or other securi-
ties as defined in section four hundred seventy-five (c) (2) of the
Internal Revenue Code, or of commodities as defined in section four
hundred seventy-five (e) of the Internal Revenue Code, or (B) principal-
ly used in the ordinary course of the taxpayer's trade or business of
providing investment advisory services for a regulated investment compa-
ny as defined in section eight hundred fifty-one of the Internal Revenue
Code, or lending, loan arrangement or loan origination services to
customers in connection with the purchase or sale (which shall include
but not be limited to the issuance, entering into, assumption, offset,
assignment, termination, or transfer) of securities as defined in
section four hundred seventy-five (c) (2) of the Internal Revenue Code
OR (C) PRINCIPALLY USED IN THE ORDINARY COURSE OF THE TAXPAYER'S TRADE
OR BUSINESS OF PROVIDING INVESTMENT ADVISORY SERVICES, OR THE SERVICE OF
MANAGING INVESTMENT PORTFOLIOS TO ACHIEVE SPECIFIC INVESTMENT OBJECTIVES
FOR ACCOUNTS OVER ONE MILLION DOLLARS OF ACCREDITED INVESTORS (AS THAT
TERM IS DEFINED IN RULE 501 OF REGULATION D OF THE SECURITIES ACT OF
1933), IF THE TAXPAYER SATISFIES THE FOLLOWING CRITERIA: (I) THE TAXPAY-
ER IS A REGULATED BROKER OR DEALER OR AN AFFILIATE OF A REGULATED BROKER
OR DEALER, (II) THE TAXPAYER IS REGISTERED AS AN INVESTMENT ADVISER
UNDER SECTION TWO HUNDRED THREE OF THE INVESTMENT ADVISER ACT OF 1940,
AS AMENDED, AND (III) AT LEAST ONE CLIENT OF THE TAXPAYER IS A REGULATED
INVESTMENT COMPANY AS DEFINED IN SECTION EIGHT HUNDRED FIFTY-ONE OF THE
INTERNAL REVENUE CODE THAT HAS ASSETS IN EXCESS OF ONE HUNDRED MILLION
DOLLARS. For purposes of subparagraphs (A) [and], (B) AND (C) of this
paragraph, property purchased by a taxpayer affiliated with a regulated
broker, dealer, or registered investment adviser is allowed a credit
under this subsection if the property is used by its affiliated regu-
lated broker, dealer, or registered investment adviser in accordance
with this subsection. For purposes of determining if the property is
principally used in qualifying uses, the uses by the taxpayer described
in subparagraphs (A) [and], (B) AND (C) of this paragraph may be aggre-
gated. In addition, the uses by the taxpayer, its affiliated regulated
broker, dealer and registered investment adviser under either or both of
such subparagraphs may be aggregated.
S 4. This act shall take effect immediately.
S. 2811--B 103
PART AA
Section 1. Paragraph (a) of subdivision 6 of section 18-a of the
public service law, as added by section 4 of part NN of chapter 59 of
the laws of 2009, is amended to read as follows:
(a) Notwithstanding any provision of law to the contrary, and subject
to the exceptions provided for in paragraph (b) of this subdivision, for
the state fiscal year beginning on April first, two thousand nine and
[four] TWO state fiscal years thereafter, a temporary annual assessment
(hereinafter "temporary state energy and utility service conservation
assessment") is hereby imposed on public utility companies (including
for the purposes of this subdivision municipalities other than munici-
palities as defined in section eighty-nine-l of this chapter), corpo-
rations (including for purposes of this subdivision the Long Island
power authority), and persons subject to the commission's regulation
(hereinafter such public utility companies, corporations, and persons
are referred to collectively as the "utility entities") to encourage the
conservation of energy and other resources provided through utility
entities, to be assessed in the manner provided in this subdivision;
provided, however, that such assessment shall not be imposed upon tele-
phone corporations as defined in subdivision seventeen of section two of
this article.
S 2. Section 6 of part NN of chapter 59 of the laws of 2009 amending
the public service law relating to financing operations of the depart-
ment of public service is amended to read as follows:
S 6. This act shall take effect immediately; provided, however, that
subdivision 6 of section 18-a of the public service law, as added by
section four of this act shall take effect April 1, 2009 and shall
expire and be deemed repealed March 31, [2014] 2012; and provided,
further, that if section four of this act shall become law after April
1, 2009, it shall take effect immediately and shall be deemed to have
been in full force and effect on and after April 1, 2009.
S 3. This act shall take effect immediately and shall be deemed to
have been in full force and effect on the same date and in the same
manner as part NN of chapter 59 of the laws of 2009 took effect;
provided that the amendment to paragraph (a) of subdivision 6 of section
18-a of the public service law made by section one of this act shall not
affect the expiration and repeal of such subdivision 6 and shall expire
and be deemed repealed therewith.
PART BB
Section 1. Section 800 of the tax law, as added by section 1 of part C
of chapter 25 of the laws of 2009, is amended to read as follows:
S 800. Definitions. For the purposes of this article:
(a) Metropolitan commuter transportation district. The metropolitan
commuter transportation district ("MCTD") means the area of the state
included in the district created and governed by section twelve hundred
sixty-two of the public authorities law.
(b) Employer. Employer means an employer required by section six
hundred seventy-one of this chapter to deduct and withhold tax from
wages, that has a payroll expense in excess of two thousand five hundred
dollars in any calendar quarter; other than
(1) any agency or instrumentality of the United States;
(2) the United Nations; [or]
S. 2811--B 104
(3) an interstate agency or public corporation created pursuant to an
agreement or compact with another state or the Dominion of Canada; OR
(4) ANY PUBLIC SCHOOL DISTRICT OR NON-PUBLIC SCHOOL, WHICH SHALL NOT
INCLUDE A SPECIAL ACT SCHOOL DISTRICT AS DEFINED IN SECTION FOUR THOU-
SAND ONE OF THE EDUCATION LAW.
(c) Payroll expense. Payroll expense means wages and compensation as
defined in sections 3121 and 3231 of the internal revenue code (without
regard to section 3121(a)(1) and section 3231(e)(2)(A)(i)), paid to all
covered employees.
(d) Covered employee. Covered employee means an employee who is
employed within the MCTD.
(e) Net earnings from self-employment. Net earnings from self-employ-
ment has the same meaning as in section 1402 of the internal revenue
code.
S 2. This act shall take effect immediately.
PART CC
Section 1. Paragraph (a) of subdivision 3 of section 33 of the tax
law, as added by section 1 of part Y of chapter 57 of the laws of 2010,
is amended to read as follows:
(a) This section shall apply to the credits allowed under the follow-
ing provisions in article nine-a of this chapter and any applicable
counterpart provisions in articles nine, twenty-two, thirty-two and
thirty-three of this chapter:
Section 210(12) investment tax credit
Section 210(12-B) empire zone investment tax credit
Section 210(12-C) empire zone employment incentive credit
Section 210(12-D) employment incentive credit
Section 210(12-E) QETC employment credit
Section 210(12-F) QETC capital tax credit
Section 210(12-G) QETC facilities, operations, and training credit
Section 210(17) special additional mortgage recording tax credit
Section 210(19) empire zone wage tax credit
Section 210(20) empire zone capital tax credit
Section 210(21-a) credit for servicing certain mortgages
Section 210(23) credit for employment of persons with disabilities
Section 210(24) alternative fuels credit
Section 210(25) credit for purchase of an automated external defibril-
lator
Section 210(27) QEZE credit for real property taxes
Section 210(28) QEZE tax reduction credit
Section 210(30) low income housing credit
Section 210(31) green building credit
Section 210(33) brownfield redevelopment tax credit
Section 210(34) remediated brownfield credit for real property taxes
for qualified sites
Section 210(35) environmental remediation insurance credit
Section 210(37) security training tax credit
Section 210(37) credit for fuel cell electric generating equipment
expenditures
Section 210(38) conservation easement tax credit
Section 210(38) empire state commercial production credit
Section 210(38) biofuel production credit
Section 210(39) clean heating fuel credit
[Section 210(40) credit for rehabilitation of historic properties]
S. 2811--B 105
Section 210(40) credit for companies who provide transportation to
individuals with disabilities
S 2. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2011.
PART DD
Section 1. Subdivisions 2, 3, 4, 5 and 6 of section 4 of chapter 912
of the laws of 1920 relating to the regulation of boxing, sparring and
wrestling, subdivisions 2 and 6 as amended by chapter 437 of the laws of
2002 and subdivisions 3, 4 and 5 as added by chapter 603 of the laws of
1981, are amended to read as follows:
2. The advisory board shall have power and it shall be the duty of the
board to prepare and submit to the commission for approval regulations
and standards for the physical examination of professional boxers AND
PROFESSIONAL COMBATIVE SPORTS PARTICIPANTS including, without limita-
tion, pre-fight and/or post-fight examinations and periodic comprehen-
sive examinations. The board shall continue to serve in an advisory
capacity to the commission and from time to time prepare and submit to
the commission for approval, such additional regulations and standards
of examination as in their judgment will safeguard the physical welfare
of professional boxers licensed by the commission. The advisory board
shall recommend to the commission from time to time such qualified
physicians, for the purpose of conducting physical examinations of
professional boxers AND PROFESSIONAL COMBATIVE SPORTS PARTICIPANTS and
other services as the rules of the commission shall provide; and shall
recommend to the commission a schedule of fees to be paid to physicians
for such examinations and other services as required by this act.
3. The advisory board shall develop appropriate medical education
programs for all commission personnel involved in the conduct of boxing
and sparring matches or exhibitions OR PROFESSIONAL COMBATIVE SPORTS
MATCHES OR EXHIBITIONS so that such personnel can recognize and act upon
evidence of potential or actual adverse medical indications in a partic-
ipant prior to or during the course of a match OR EXHIBITION.
4. The advisory board shall review the credentials and performance of
each commission physician on an annual basis as a condition of reap-
pointment of each such physician, including each such physician's
comprehension of the medical literature on boxing OR PROFESSIONAL COMBA-
TIVE SPORTS referred to in subdivision five of this section.
5. The advisory board shall recommend to the commission a compilation
of medical publications on the medical aspects of boxing OR PROFESSIONAL
COMBATIVE SPORTS which shall be maintained by the commission and be made
available for review to all commission personnel involved in the conduct
of any boxing or sparring match or exhibition OR PROFESSIONAL COMBATIVE
SPORTS MATCH OR EXHIBITION.
6. The advisory board shall also advise the commission on any study of
equipment, procedures or personnel which will, in their opinion, promote
the safety of boxing participants AND PROFESSIONAL COMBATIVE SPORTS
PARTICIPANTS.
S 2. Section 5-a of chapter 912 of the laws of 1920 relating to the
regulation of boxing, sparring and wrestling, as added by chapter 14 of
the laws of 1997, is amended to read as follows:
S 5-a. Combative sports. 1. DEFINITIONS. AS USED IN THIS SECTION:
(A) "BOARD" MEANS MEDICAL ADVISORY BOARD AS ESTABLISHED IN SECTION
FOUR OF THIS ACT.
S. 2811--B 106
(B) A "combative sport" shall mean any professional match or exhibi-
tion other than boxing, sparring, wrestling or martial arts wherein the
contestants deliver, or are not forbidden by the applicable rules there-
of from delivering kicks, punches or blows of any kind to the body of an
opponent or opponents. For the purposes of this section, the term
"martial arts" shall include any professional match or exhibition OF A
SINGLE DISCIPLINE sanctioned by AN ORGANIZATION APPROVED BY THE COMMIS-
SION, INCLUDING, BUT NOT LIMITED TO, any of the following organizations:
U.S. Judo Association, U.S. Judo, Inc., U.S. Judo Federation, U.S. Tae
Kwon Do Union, North American Sport Karate Association, U.S.A. Karate
Foundation, U.S. Karate, Inc., World Karate Association, Professional
Karate Association, Karate International, International Kenpo Associ-
ation, or World Wide Kenpo Association. The commission [is authorized
to] SHALL promulgate regulations which would establish a process to
allow for the inclusion or removal of martial arts organizations from
the above list. Such process shall include but not be limited to consid-
eration of the following factors: [(a)] (1) is the organization's
primary purpose to provide instruction in self defense techniques; [(b)]
(2) does the organization require the use of hand, feet and groin
protection during any competition or bout; and [(c)] (3) does the organ-
ization have an established set of rules that require the immediate
termination of any competition or bout when any participant has received
severe punishment or is in danger of suffering serious physical injury.
(C) "COMMISSION" MEANS THE STATE ATHLETIC COMMISSION AS PROVIDED FOR
IN SECTION ONE OF THIS CHAPTER OR AN AGENT OF THE COMMISSION ACTING ON
ITS BEHALF.
(D) "MIXED MARTIAL ARTS" MEANS ANY PROFESSIONAL COMBATIVE SPORTS
COMPETITION WHEREIN THE RULES OF SUCH COMPETITION SUBJECT TO THE APPLI-
CABLE LIMITATIONS AS SET FORTH BY THE COMMISSION AUTHORIZE PROFESSIONAL
COMBATIVE SPORTS MATCHES OR EXHIBITIONS BETWEEN VARIOUS FIGHTING DISCI-
PLINES, INCLUDING THE UTILIZATION OF PERMITTED MARTIAL ARTS TECHNIQUES,
INCLUDING STRIKING, KICKING AND GRAPPLING. NO NON-PROFESSIONAL OR
AMATEUR BOUT, EXHIBITION OR PARTICIPANT SHALL BE AUTHORIZED BY THIS
SECTION.
(E) "PROFESSIONAL COMBATIVE SPORTS PARTICIPANT" OR "PARTICIPANT" SHALL
MEAN A COMBATIVE SPORTS FIGHTER WHO COMPETES FOR A MONEY PRIZE OR TEACH-
ES OR PURSUES OR ASSISTS IN THE PRACTICE OF MIXED MARTIAL ARTS AS A
MEANS OF OBTAINING A LIVELIHOOD OR PECUNIARY GAIN, AND ANY CONTEST
CONFORMING TO THE RULES, REGULATIONS AND REQUIREMENTS OF THIS SECTION.
(F) "PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION" SHALL MEAN ANY
MATCH OR EXHIBITION THAT MUST BE APPROVED BY THE COMMISSION WHERE
PROFESSIONAL COMBATIVE SPORTS PARTICIPANTS RECEIVE CONSIDERATION OF ANY
VALUE OR AN ADMISSION IS CHARGED.
1-A. COMMISSION REVIEW. THE COMMISSION SHALL REVIEW EACH MARTIAL ARTS
SANCTIONING ORGANIZATION, INCLUDING THOSE LISTED IN SUBDIVISION ONE OF
THIS SECTION, AT LEAST BIENNIALLY, OR SOONER IF DETERMINED NECESSARY
BASED UPON THE PERIODIC COMPLIANCE CHECKS OR COMPLAINTS TO THE COMMIS-
SION, TO DETERMINE CONTINUATION OF THE COMMISSION'S APPROVAL. THE
COMMISSION SHALL CONTINUE APPROVAL OR SHALL SUSPEND OR REVOKE APPROVAL
BASED UPON COMPLIANCE OF THE ORGANIZATION WITH THE APPROVED SANCTIONING
STANDARDS AND ITS ABILITY TO SUPERVISE MATCHES IN THE STATE. THE
COMMISSION SHALL ACT UPON ANY APPLICATION FOR INCLUSION IN THE LIST IN
PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION WITHIN SIXTY DAYS OF
THE DATE SUCH APPLICATION IS MADE TO THE COMMISSION.
1-B. MIXED MARTIAL ARTS COMPETITION. THE COMMISSION SHALL PROMULGATE
RULES AND REGULATIONS TO ALLOW FOR MIXED MARTIAL ARTS COMPETITIONS TO BE
S. 2811--B 107
CONDUCTED, HELD, OR GIVEN WITHIN THE STATE OF NEW YORK AND SHALL ALLOW
FOR LICENSES TO BE APPROVED BY THE COMMISSION FOR SUCH MATCHES OR EXHI-
BITIONS. THE COMMISSION IS AUTHORIZED TO PROMULGATE RULES AND REGU-
LATIONS TO CARRY OUT THE PROVISIONS OF THIS SUBDIVISION. SUCH RULES AND
REGULATIONS SHALL INCLUDE, BUT NOT BE LIMITED TO, THE ADOPTION OF
UNIFIED RULES OF MIXED MARTIAL ARTS, A LICENSING PROCESS FOR MATCHES AND
EXHIBITIONS, A FEE SCHEDULE FOR SUCH LICENSES, PROCEDURES TO ALLOW FOR
THE PARTICIPATION, PROMOTION, AND ADVANCEMENT OF SUCH EVENTS, THE HEALTH
AND SAFETY OF PARTICIPANTS, AND THE BEST INTERESTS OF MIXED MARTIAL ARTS
AND THE ADOPTION OF RULES AND REGULATIONS FOR LICENSING AND REGULATION
OF ANY AND ALL GYMS, CLUBS, TRAINING CAMPS AND OTHER ORGANIZATIONS THAT
MAINTAIN TRAINING FACILITIES PROVIDING CONTACT SPARRING FOR PERSONS WHO
PREPARE FOR PARTICIPATION IN SUCH PROFESSIONAL COMBATIVE SPORTS OR EXHI-
BITIONS, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION.
(B) THE COMMISSION IS AUTHORIZED AND DIRECTED TO REQUIRE THAT ALL
SITES WHEREIN PROFESSIONAL COMBATIVE SPORTS ARE CONDUCTED SHALL COMPLY
WITH STATE AND APPLICABLE LOCAL SANITARY CODES APPROPRIATE TO SCHOOL
ATHLETIC FACILITIES.
2. [No combative sport shall be conducted, held or given within the
state of New York, and no licenses may be approved by the commission for
such matches or exhibitions.
3. (a) A person who knowingly advances or profits from a combative
sport activity shall be guilty of a class A misdemeanor, and shall be
guilty of a class E felony if he or she has been convicted in the previ-
ous five years of violating this subdivision.
(b) A person advances a combative sport activity when, acting other
than as a spectator, he or she engages in conduct which materially aids
any combative sport. Such conduct includes but is not limited to conduct
directed toward the creation, establishment or performance of a comba-
tive sport, toward the acquisition or maintenance of premises, parapher-
nalia, equipment or apparatus therefor, toward the solicitation or
inducement of persons to attend or participate therein, toward the actu-
al conduct of the performance thereof, toward the arrangement of any of
its financial or promotional phases, or toward any other phase of a
combative sport. One advances a combative sport activity when, having
substantial proprietary or other authoritative control over premises
being used with his or her knowledge for purposes of a combative sport
activity, he or she permits such to occur or continue or makes no effort
to prevent its occurrence or continuation.
(c) A person profits from a combative sport activity when he or she
accepts or receives money or other property with intent to participate
in the proceeds of a combative sport activity, or pursuant to an agree-
ment or understanding with any person whereby he or she participates or
is to participate in the proceeds of a combative sport activity.
(d) Any person who knowingly advances or profits from a combative
sport activity shall also be subject to a civil penalty not to exceed
for the first violation ten thousand dollars or twice the amount of gain
derived therefrom whichever is greater, or for a subsequent violation
twenty thousand dollars or twice the amount of gain derived therefrom
whichever is greater. The attorney general is hereby empowered to
commence judicial proceedings to recover such penalties and to obtain
injunctive relief to enforce the provisions of this section.] PROFES-
SIONAL COMBATIVE SPORTS MATCHES AND EXHIBITIONS AUTHORIZED. NO COMBATIVE
SPORTS MATCH OR EXHIBITION SHALL BE CONDUCTED, HELD OR GIVEN WITHIN THE
STATE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION AND THE
RULES AND REGULATIONS PROMULGATED BY THE COMMISSION PURSUANT THERETO.
S. 2811--B 108
THE COMMISSION SHALL DIRECT A REPRESENTATIVE TO BE PRESENT AT EACH PLACE
WHERE COMBATIVE SPORTS ARE TO BE HELD PURSUANT TO THE PROVISIONS OF THIS
SECTION. SUCH REPRESENTATIVE SHALL ASCERTAIN THE EXACT CONDITIONS
SURROUNDING SUCH MATCH OR EXHIBITION AND MAKE A WRITTEN REPORT OF THE
SAME IN THE MANNER AND FORM PRESCRIBED BY THE COMMISSION. SUCH COMBATIVE
SPORTS MATCHES OR EXHIBITIONS MAY BE HELD IN ANY BUILDING FOR WHICH THE
COMMISSION IN ITS DISCRETION MAY ISSUE A LICENSE. WHERE SUCH MATCH OR
EXHIBITION IS AUTHORIZED TO BE HELD IN A STATE OR CITY OWNED ARMORY, THE
PROVISION OF THE MILITARY LAW IN RESPECT THERETO MUST BE COMPLIED WITH,
BUT NO SUCH MATCH OR EXHIBITION SHALL BE HELD IN A BUILDING WHOLLY USED
FOR RELIGIOUS SERVICES.
3. JURISDICTION OF COMMISSION. (A) THE COMMISSION SHALL HAVE AND HERE-
BY IS VESTED WITH THE SOLE DIRECTION, MANAGEMENT, CONTROL AND JURISDIC-
TION OVER ALL PROFESSIONAL COMBATIVE SPORTS MATCHES OR EXHIBITIONS TO BE
CONDUCTED, HELD OR GIVEN WITHIN THE STATE OF NEW YORK AND OVER ALL
LICENSES TO ANY AND ALL PERSONS WHO PARTICIPATE IN SUCH COMBATIVE SPORTS
MATCHES OR EXHIBITIONS AND OVER ANY AND ALL GYMS, CLUBS, TRAINING CAMPS
AND OTHER ORGANIZATIONS THAT MAINTAIN TRAINING FACILITIES PROVIDING
CONTACT SPARRING FOR PERSONS WHO PREPARE FOR PARTICIPATION IN SUCH
PROFESSIONAL COMBATIVE SPORTS OR EXHIBITIONS, EXCEPT AS OTHERWISE
PROVIDED IN THIS SECTION.
(B) THE COMMISSION IS AUTHORIZED AND DIRECTED TO REQUIRE THAT ALL
SITES WHEREIN PROFESSIONAL COMBATIVE SPORTS ARE CONDUCTED SHALL COMPLY
WITH STATE AND APPLICABLE LOCAL SANITARY CODES APPROPRIATE TO SCHOOL
ATHLETIC FACILITIES.
4. ENTITIES REQUIRED TO PROCURE LICENSES; PROFESSIONAL COMBATIVE
SPORTS PARTICIPANTS DEFINED. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION
SIX OF THIS SECTION, ALL CORPORATIONS, PERSONS, LIMITED LIABILITY COMPA-
NIES, REFEREES, JUDGES, CORPORATION TREASURERS, PROFESSIONAL COMBATIVE
SPORTS PARTICIPANTS, THEIR MANAGERS, PROMOTERS, TRAINERS AND CHIEF
SECONDS SHALL BE LICENSED BY THE COMMISSION, AND NO SUCH ENTITY SHALL BE
PERMITTED TO PARTICIPATE, EITHER DIRECTLY OR INDIRECTLY, IN ANY PROFES-
SIONAL COMBATIVE SPORTS MATCH OR EXHIBITION, OR THE HOLDING THEREOF,
UNLESS SUCH ENTITY SHALL HAVE FIRST PROCURED A LICENSE FROM THE COMMIS-
SION. THE COMMISSION SHALL ESTABLISH BY RULE AND REGULATION LICENSING
STANDARDS FOR REFEREES, JUDGES, MANAGERS, PROMOTERS, TRAINERS AND CHIEF
SECONDS. ANY MATCH OR EXHIBITION CONFORMING TO THE RULES, REGULATIONS
AND REQUIREMENTS OF THIS SECTION SHALL BE DEEMED TO BE A PROFESSIONAL
COMBATIVE SPORTS MATCH OR EXHIBITION.
5. LICENSE TO ENTITIES. (A) THE COMMISSION MAY, IN ITS DISCRETION,
ISSUE A LICENSE TO CONDUCT OR HOLD PROFESSIONAL COMBATIVE SPORTS MATCHES
OR EXHIBITIONS, SUBJECT TO THE PROVISIONS HEREOF, TO ANY PERSON, CORPO-
RATION OR LIMITED LIABILITY COMPANY DULY INCORPORATED OR FORMED, HEREIN-
AFTER REFERRED TO AS "ENTITY".
(B) A PROSPECTIVE LICENSEE MUST SUBMIT TO THE COMMISSION PROOF THAT IT
CAN FURNISH SUITABLE PREMISES IN WHICH SUCH MATCH OR EXHIBITION IS TO BE
HELD.
(C) UPON WRITTEN APPLICATION AND THE PAYMENT OF A FEE OF FIVE HUNDRED
DOLLARS WHICH MUST ACCOMPANY THE APPLICATION, THE COMMISSION MAY GRANT
TO ANY ENTITY HOLDING A LICENSE ISSUED HEREUNDER, THE PRIVILEGE OF HOLD-
ING SUCH A MATCH OR EXHIBITION ON A SPECIFIED DATE IN OTHER PREMISES, OR
IN ANOTHER LOCATION, THAN THE PREMISES OF LOCATION PREVIOUSLY APPROVED
BY THE COMMISSION, SUBJECT HOWEVER TO APPROVAL OF THE COMMISSION AND THE
RULES AND REGULATIONS OF THE COMMISSION.
(D) ALL PENALTIES IMPOSED AND COLLECTED BY THE COMMISSION FROM ANY
ENTITY LICENSED UNDER THE PROVISIONS OF THIS ACT, WHICH FINES AND PENAL-
S. 2811--B 109
TIES ARE IMPOSED AND COLLECTED UNDER THE AUTHORITY HEREBY VESTED SHALL
WITHIN THIRTY DAYS AFTER THE RECEIPT THEREOF BY THE COMMISSION BE PAID
BY THEM INTO THE STATE TREASURY.
6. TEMPORARY WORKING PERMITS FOR PROFESSIONAL COMBATIVE SPORTS PARTIC-
IPANTS, MANAGERS, TRAINERS AND CHIEF SECONDS. THE COMMISSION MAY ISSUE
TEMPORARY WORKING PERMITS TO PROFESSIONAL COMBATIVE SPORTS PARTICIPANTS,
THEIR MANAGERS, TRAINERS AND CHIEF SECONDS. A TEMPORARY WORKING PERMIT
SHALL AUTHORIZE THE EMPLOYMENT OF THE HOLDER OF SUCH PERMIT TO ENGAGE IN
A SINGLE MATCH OR EXHIBITION AT A SPECIFIED TIME AND PLACE. A TEMPORARY
WORKING PERMIT MAY BE ISSUED IF IN THE JUDGMENT OF THE COMMISSION THE
PARTICIPATION OF THE HOLDER THEREOF IN A PROFESSIONAL COMBATIVE SPORTS
MATCH OR EXHIBITION WILL BE CONSISTENT WITH THE PURPOSES AND PROVISIONS
OF THIS SECTION, THE BEST INTERESTS OF COMBATIVE SPORTS GENERALLY, AND
THE PUBLIC INTEREST, CONVENIENCE OR NECESSITY. THE COMMISSION MAY
REQUIRE THAT PROFESSIONAL COMBATIVE SPORTS PARTICIPANTS APPLYING FOR
TEMPORARY WORKING PERMITS UNDERGO A PHYSICAL EXAMINATION, NEUROLOGICAL
OR NEUROPSYCHOLOGICAL TEST OR PROCEDURE, INCLUDING COMPUTED TOMOGRAPHY
OR MEDICALLY EQUIVALENT PROCEDURE. THE FEE FOR SUCH TEMPORARY WORKING
PERMIT SHALL BE TWENTY DOLLARS.
7. LICENSE FEES; TERM OF LICENSES; RENEWALS. EACH APPLICANT FOR A
PROMOTER LICENSE SHALL, BEFORE A LICENSE IS ISSUED BY THE COMMISSION,
PAY TO THE COMMISSION, AN ANNUAL LICENSE FEE AS FOLLOWS: WHERE THE
SEATING CAPACITY IS NOT MORE THAN TWO THOUSAND FIVE HUNDRED, FIVE
HUNDRED DOLLARS; WHERE THE SEATING CAPACITY IS MORE THAN TWO THOUSAND
FIVE HUNDRED BUT NOT MORE THAN FIVE THOUSAND, ONE THOUSAND DOLLARS;
WHERE THE SEATING CAPACITY IS MORE THAN FIVE THOUSAND BUT NOT MORE THAN
FIFTEEN THOUSAND, ONE THOUSAND FIVE HUNDRED DOLLARS; WHERE THE SEATING
CAPACITY IS MORE THAN FIFTEEN THOUSAND BUT NOT MORE THAN TWENTY-FIVE
THOUSAND, TWO THOUSAND FIVE HUNDRED DOLLARS; WHERE THE SEATING CAPACITY
IS MORE THAN TWENTY-FIVE THOUSAND, THREE THOUSAND FIVE HUNDRED DOLLARS;
REFEREE, ONE HUNDRED DOLLARS; JUDGES, ONE HUNDRED DOLLARS; PROFESSIONAL
COMBATIVE SPORTS PARTICIPANTS, FIFTY DOLLARS; MANAGERS, FIFTY DOLLARS;
TRAINERS, FIFTY DOLLARS; AND CHIEF SECONDS, FORTY DOLLARS. EACH LICENSE
OR RENEWAL THEREOF ISSUED PURSUANT TO THIS SUBDIVISION ON OR AFTER OCTO-
BER FIRST SHALL BE EFFECTIVE FOR A LICENSE YEAR EXPIRING ON THE THIRTI-
ETH DAY OF SEPTEMBER FOLLOWING THE DATE OF ITS ISSUANCE. THE ANNUAL
LICENSE FEE PRESCRIBED BY THIS SUBDIVISION SHALL BE THE LICENSE FEE DUE
AND PAYABLE THEREFOR AND SHALL BE PAID IN ADVANCE AT THE TIME APPLICA-
TION IS MADE THEREFOR, AND EACH SUCH LICENSE MAY BE RENEWED FOR PERIODS
OF ONE YEAR UPON THE PAYMENT OF THE ANNUAL LICENSE FEE PRESCRIBED BY
THIS SUBDIVISION. WITHIN THREE YEARS FROM THE DATE OF PAYMENT AND UPON
THE AUDIT OF THE COMPTROLLER, THE COMMISSION MAY REFUND ANY FEE, UNFOR-
FEITED POSTED GUARANTEE OR TAX PAID PURSUANT TO THIS SECTION, FOR WHICH
NO LICENSE IS ISSUED OR NO SERVICE RENDERED OR REFUND THAT PORTION OF
THE PAYMENT THAT IS IN EXCESS OF THE AMOUNT PRESCRIBED BY STATUTE.
8. APPLICATION FOR LICENSE; FINGERPRINTS. (A) EVERY APPLICATION FOR A
LICENSE SHALL BE IN WRITING, SHALL BE ADDRESSED TO THE COMMISSION, SHALL
BE SUBSCRIBED BY THE APPLICANT, AND AFFIRMED BY HIM AS TRUE UNDER THE
PENALTIES OF PERJURY, AND SHALL SET FORTH SUCH FACTS AS THE PROVISIONS
HEREOF AND THE RULES AND REGULATIONS OF THE COMMISSION MAY REQUIRE.
(B) WHEN AN APPLICATION IS MADE FOR A LICENSE UNDER THIS SECTION, THE
COMMISSION MAY CAUSE THE FINGERPRINTS OF SUCH APPLICANT, OR IF SUCH
APPLICANT BE A CORPORATION, OF THE OFFICERS OF SUCH CORPORATION, OR IF
SUCH APPLICANT BE A LIMITED LIABILITY COMPANY, THE MANAGER OF SUCH
LIMITED LIABILITY COMPANY TO BE TAKEN IN DUPLICATE. THE APPLICANT SHALL
BE RESPONSIBLE FOR THE COST OF HAVING HIS FINGERPRINTS TAKEN. IF SUCH
S. 2811--B 110
FINGERPRINTS ARE TAKEN, ONE COPY SHALL BE TRANSMITTED TO THE DIVISION OF
CRIMINAL JUSTICE SERVICES IN ACCORDANCE WITH THE RULES AND REGULATIONS
OF THE DIVISION OF CRIMINAL JUSTICE SERVICES AND ONE SHALL REMAIN ON
FILE IN THE OFFICE OF THE COMMISSION. NO SUCH FINGERPRINT MAY BE
INSPECTED BY ANY PERSON, OTHER THAN A PEACE OFFICER, EXCEPT ON ORDER OF
A JUDGE OR JUSTICE OF A COURT OF RECORD. THE DIVISION IS HEREBY AUTHOR-
IZED TO TRANSMIT CRIMINAL HISTORY INFORMATION TO THE COMMISSION FOR THE
PURPOSES OF THIS PARAGRAPH. THE INFORMATION OBTAINED BY ANY SUCH FING-
ERPRINT EXAMINATION SHALL BE FOR THE GUIDANCE OF THE COMMISSION IN THE
EXERCISE OF ITS DISCRETION IN GRANTING OR WITHHOLDING THE LICENSE. THE
COMMISSION SHALL PROVIDE SUCH APPLICANT WITH A COPY OF HIS OR HER CRIMI-
NAL HISTORY RECORD, IF ANY, TOGETHER WITH A COPY OF ARTICLE
TWENTY-THREE-A OF THE CORRECTION LAW, AND INFORM SUCH APPLICANT OF HIS
OR HER RIGHT TO SEEK CORRECTION OF ANY INCORRECT INFORMATION CONTAINED
IN SUCH RECORD PURSUANT TO REGULATIONS AND PROCEDURES ESTABLISHED BY THE
DIVISION OF CRIMINAL JUSTICE SERVICES. ALL DETERMINATIONS TO ISSUE,
RENEW, SUSPEND OR REVOKE A LICENSE SHALL BE MADE IN ACCORDANCE WITH
SUBDIVISION SIXTEEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE
LAW AND ARTICLE TWENTY-THREE-A OF THE CORRECTION LAW.
9. STANDARDS FOR THE ISSUANCE OF LICENSES. (A) IF IN THE JUDGMENT OF
THE COMMISSION THE FINANCIAL RESPONSIBILITY, EXPERIENCE, CHARACTER AND
GENERAL FITNESS OF AN APPLICANT, INCLUDING IN THE CASE OF CORPORATIONS
ITS OFFICERS AND STOCKHOLDERS, ARE SUCH THAT THE PARTICIPATION OF SUCH
APPLICANT WILL BE CONSISTENT WITH THE BEST INTERESTS OF COMBATIVE
SPORTS, THE PURPOSES OF THIS SECTION INCLUDING THE SAFETY OF PROFES-
SIONAL COMBATIVE SPORTS PARTICIPANTS, AND IN THE PUBLIC INTEREST,
CONVENIENCE OR NECESSITY, THE COMMISSION SHALL GRANT A LICENSE IN
ACCORDANCE WITH THE PROVISIONS CONTAINED IN THIS SUBDIVISION.
(B) ANY PROFESSIONAL COMBATIVE SPORTS PARTICIPANT APPLYING FOR A
LICENSE OR RENEWAL OF A LICENSE UNDER THIS SUBDIVISION SHALL UNDERGO A
COMPREHENSIVE PHYSICAL EXAMINATION INCLUDING CLINICAL NEUROLOGICAL AND
NEUROPSYCHOLOGICAL EXAMINATIONS BY A PHYSICIAN APPROVED BY THE COMMIS-
SION. IF, AT THE TIME OF SUCH EXAMINATION, THERE IS ANY INDICATION OF
BRAIN INJURY, OR FOR ANY OTHER REASON THE PHYSICIAN DEEMS IT APPROPRI-
ATE, THE PROFESSIONAL COMBATIVE SPORTS PARTICIPANT SHALL BE REQUIRED TO
UNDERGO FURTHER NEUROLOGICAL AND NEUROPSYCHOLOGICAL EXAMINATIONS BY A
NEUROLOGIST INCLUDING, BUT NOT LIMITED TO, A COMPUTED TOMOGRAPHY OR
MEDICALLY EQUIVALENT PROCEDURE. THE COMMISSION SHALL NOT ISSUE A LICENSE
TO A PROFESSIONAL COMBATIVE SPORTS PARTICIPANT UNTIL SUCH EXAMINATIONS
ARE COMPLETED AND REVIEWED BY THE COMMISSION. THE RESULTS OF ALL SUCH
EXAMINATIONS HEREIN REQUIRED SHALL BECOME A PART OF THE PROFESSIONAL
COMBATIVE SPORTS PARTICIPANT'S PERMANENT MEDICAL RECORD AS MAINTAINED BY
THE COMMISSION. THE COST OF ALL SUCH EXAMINATIONS CALLED FOR IN THIS
SUBDIVISION SHALL BE ASSUMED BY THE STATE IF SUCH EXAMINATIONS ARE
PERFORMED BY A PHYSICIAN OR NEUROLOGIST APPROVED BY THE COMMISSION.
(C) ANY PROFESSIONAL COMBATIVE SPORTS PARTICIPANT LICENSED UNDER THIS
CHAPTER SHALL, AS A CONDITION OF LICENSURE, WAIVE RIGHT OF CONFIDENTIAL-
ITY OF MEDICAL RECORDS RELATING TO TREATMENT OF ANY PHYSICAL CONDITION
WHICH RELATES TO HIS ABILITY TO FIGHT. ALL MEDICAL REPORTS SUBMITTED TO,
AND ALL MEDICAL RECORDS OF THE MEDICAL ADVISORY BOARD OR THE COMMISSION
RELATIVE TO THE PHYSICAL EXAMINATION OR CONDITION OF COMBATIVE SPORTS
PARTICIPANTS SHALL BE CONSIDERED CONFIDENTIAL, AND SHALL BE OPEN TO
EXAMINATION ONLY TO THE COMMISSION OR ITS AUTHORIZED REPRESENTATIVE, TO
THE LICENSED PARTICIPANT, MANAGER OR CHIEF SECOND UPON WRITTEN APPLICA-
TION TO EXAMINE SAID RECORDS, OR UPON THE ORDER OF A COURT OF COMPETENT
JURISDICTION IN AN APPROPRIATE CASE.
S. 2811--B 111
10. FINANCIAL INTEREST IN PROFESSIONAL COMBATIVE SPORTS PARTICIPANTS
PROHIBITED. NO ENTITY SHALL HAVE, EITHER DIRECTLY OR INDIRECTLY, ANY
FINANCIAL INTEREST IN A PROFESSIONAL COMBATIVE SPORTS PARTICIPANT
COMPETING ON PREMISES OWNED OR LEASED BY THE ENTITY, OR IN WHICH SUCH
ENTITY IS OTHERWISE INTERESTED EXCEPT PURSUANT TO THE SPECIFIC WRITTEN
AUTHORIZATION OF THE COMMISSION.
11. PAYMENTS NOT TO BE MADE BEFORE CONTESTS. NO PROFESSIONAL COMBATIVE
SPORTS PARTICIPANT SHALL BE PAID FOR SERVICES BEFORE THE CONTEST, AND
SHOULD IT BE DETERMINED BY THE COMMISSION THAT SUCH PARTICIPANT DID NOT
GIVE AN HONEST EXHIBITION OF HIS SKILL, SUCH SERVICE SHALL NOT BE PAID
FOR.
12. SHAM OR COLLUSIVE EVENTS. (A) ANY PERSON, INCLUDING ANY CORPO-
RATION AND THE OFFICERS THEREOF, ANY PHYSICIAN, LIMITED LIABILITY COMPA-
NY, REFEREE, JUDGE, PROFESSIONAL COMBATIVE SPORTS PARTICIPANT, MANAGER,
TRAINER OR CHIEF SECOND, WHO SHALL PROMOTE, CONDUCT, GIVE OR PARTICIPATE
IN ANY SHAM OR COLLUSIVE PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBI-
TION, SHALL BE DEPRIVED OF HIS LICENSE BY THE COMMISSION.
(B) NO LICENSED ENTITY SHALL KNOWINGLY ENGAGE IN A COURSE OF CONDUCT
IN WHICH PROFESSIONAL COMBATIVE SPORTS MATCHES OR EXHIBITIONS ARE
ARRANGED WHERE ONE PROFESSIONAL COMBATIVE SPORTS PARTICIPANT HAS SKILLS
OR EXPERIENCE SIGNIFICANTLY IN EXCESS OF THE OTHER PROFESSIONAL COMBA-
TIVE SPORTS PARTICIPANT SO THAT A MISMATCH RESULTS WITH THE POTENTIAL OF
PHYSICAL HARM TO THE PROFESSIONAL COMBATIVE SPORTS PARTICIPANT. IF SUCH
ACTION OCCURS, THE COMMISSION MAY EXERCISE ITS POWERS TO DISCIPLINE
UNDER SUBDIVISIONS THIRTEEN AND FOURTEEN OF THIS SECTION, PROVIDED THAT
NOTHING IN THIS SUBDIVISION SHALL AUTHORIZE THE COMMISSION TO INTERVENE
OR PROHIBIT A PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION SOLELY
ON THE BASIS OF THE DIFFERENCE BETWEEN RESPECTIVE PARTICIPANT'S MARTIAL
ARTS DISCIPLINES.
13. IMPOSITION OF PENALTIES FOR VIOLATIONS. ANY ENTITY, LICENSED UNDER
THE PROVISIONS OF THIS SECTION, THAT SHALL KNOWINGLY VIOLATE ANY RULE OR
ORDER OF THE COMMISSION OR ANY PROVISION OF THIS SECTION, IN ADDITION TO
ANY OTHER PENALTY BY LAW PRESCRIBED, SHALL BE LIABLE TO A CIVIL PENALTY
NOT EXCEEDING FIVE THOUSAND DOLLARS TO BE IMPOSED BY THE COMMISSION, TO
BE SUED FOR BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE
STATE OF NEW YORK IF DIRECTED BY THE COMMISSION. THE AMOUNT OF THE
PENALTY COLLECTED BY THE COMMISSION OR RECOVERED IN ANY SUCH ACTION, OR
PAID TO THE COMMISSION UPON A COMPROMISE AS HEREINAFTER PROVIDED, SHALL
BE TRANSMITTED BY THE DEPARTMENT OF STATE INTO THE STATE TREASURY AND
CREDITED TO THE GENERAL FUND. THE COMMISSION, FOR CAUSE SHOWN, MAY
EXTEND THE TIME FOR THE PAYMENT OF SUCH PENALTY AND, BY COMPROMISE, MAY
ACCEPT LESS THAN THE AMOUNT OF SUCH PENALTY AS IMPOSED IN SETTLEMENT
THEREOF.
14. REVOCATION OR SUSPENSION OF LICENSES. (A) ANY LICENSE ISSUED UNDER
THE PROVISIONS OF THIS SECTION MAY BE REVOKED OR SUSPENDED BY THE
COMMISSION FOR THE REASON THEREIN STATED, THAT THE LICENSEE HAS, IN THE
JUDGMENT OF THE COMMISSION, BEEN GUILTY OF AN ACT DETRIMENTAL TO THE
INTERESTS OF COMBATIVE SPORTS GENERALLY OR TO THE PUBLIC INTEREST,
CONVENIENCE OR NECESSITY.
(B) WITHOUT OTHERWISE LIMITING THE DISCRETION OF THE COMMISSION AS
PROVIDED IN THIS SECTION, THE COMMISSION MAY SUSPEND OR REVOKE A LICENSE
OR REFUSE TO RENEW OR ISSUE A LICENSE, IF IT SHALL FIND THAT THE APPLI-
CANT OR PARTICIPANT: (1) HAS BEEN CONVICTED OF A CRIME IN ANY JURISDIC-
TION; (2) IS ASSOCIATING OR CONSORTING WITH ANY PERSON WHO HAS OR
PERSONS WHO HAVE BEEN CONVICTED OF A CRIME OR CRIMES IN ANY JURISDICTION
OR JURISDICTIONS; (3) HAS BEEN GUILTY OF OR ATTEMPTED ANY FRAUD OR
S. 2811--B 112
MISREPRESENTATION IN CONNECTION WITH COMBATIVE SPORTS; (4) HAS VIOLATED
OR ATTEMPTED TO VIOLATE ANY LAW WITH RESPECT TO COMBATIVE SPORTS IN ANY
JURISDICTION OR ANY RULE, REGULATION OR ORDER OF THE COMMISSION, OR
SHALL HAVE VIOLATED ANY RULE OF COMBATIVE SPORTS WHICH SHALL HAVE BEEN
APPROVED OR ADOPTED BY THE COMMISSION, OR HAS BEEN GUILTY OF OR ENGAGED
IN SIMILAR, RELATED OR LIKE PRACTICES; OR (5) HAS NOT ACTED IN THE BEST
INTEREST OF MIXED MARTIAL ARTS. ALL DETERMINATIONS TO ISSUE, RENEW,
SUSPEND OR REVOKE A LICENSE SHALL BE MADE IN ACCORDANCE WITH SUBDIVISION
SIXTEEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW AND ARTI-
CLE TWENTY-THREE-A OF THE CORRECTION LAW AS APPLICABLE.
(C) NO SUCH PARTICIPANT MAY, UNDER ANY CIRCUMSTANCES, COMPETE OR
APPEAR IN A PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION WITHIN
NINETY DAYS OF HAVING SUFFERED A KNOCKOUT OR TECHNICAL KNOCKOUT IN ANY
SUCH MATCH OR EXHIBITION WITHOUT CLEARANCE BY THE BOARD, OR WITHIN NINE-
TY DAYS OF BEING RENDERED UNCONSCIOUS IN ANY SUCH MATCH OR EXHIBITION
WHERE THERE IS EVIDENCE OF HEAD TRAUMA AS DETERMINED BY THE ATTENDING
COMMISSION PHYSICIAN AND SHALL UNDERGO SUCH EXAMINATIONS AS REQUIRED
UNDER PARAGRAPH (B) OF SUBDIVISION TWENTY OF THIS SECTION. THE PROFES-
SIONAL COMBATIVE SPORTS PARTICIPANT SHALL BE CONSIDERED SUSPENDED FROM
PROFESSIONAL COMBATIVE SPORTS MATCHES OR EXHIBITIONS BY THE COMMISSION
AND SHALL FORFEIT HIS LICENSE TO THE COMMISSION DURING SUCH PERIOD AND
SUCH LICENSE SHALL NOT BE RETURNED TO THE PARTICIPANT UNTIL THE PARTIC-
IPANT HAS MET ALL REQUIREMENTS, MEDICAL AND OTHERWISE, FOR REINSTATEMENT
OF SUCH LICENSE. ALL SUCH SUSPENSIONS SHALL BE RECORDED IN THE PARTIC-
IPANT'S LICENSE BY A COMMISSION OFFICIAL.
(D) THE COMMISSION MAY AT ANY TIME SUSPEND, REVOKE OR DENY A PARTIC-
IPANT'S LICENSE OR TEMPORARY WORKING PERMIT FOR MEDICAL REASONS AT THE
RECOMMENDATION OF THE BOARD.
(E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, IF ANY OTHER STATE
SHALL REVOKE A LICENSEE'S LICENSE TO COMPETE OR APPEAR IN A PROFESSIONAL
COMBATIVE SPORTS MATCH OR EXHIBITION IN THAT STATE BASED ON A KNOWING
AND INTENTIONAL ENGAGEMENT IN ANY PROHIBITED PRACTICES OF SUCH STATE,
THE COMMISSION MAY ACT TO REVOKE ANY LICENSE TO COMPETE OR APPEAR IN A
PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION ISSUED TO SUCH LICEN-
SEE PURSUANT TO THE PROVISIONS OF THIS SECTION.
(F) THE COMMISSION MAY SUSPEND ANY LICENSE IT HAS ISSUED BY A DATED
NOTICE TO THAT EFFECT TO THE SUSPENDED LICENSEE, MAILED OR DELIVERED TO
THE LICENSEE, AND SPECIFYING THE EFFECTIVE DATE AND TERM OF THE SUSPEN-
SION, PROVIDED HOWEVER THAT THE COMMISSION REPRESENTATIVE IN CHARGE OF A
CONTEST OR EXHIBITION MAY THEN AND THERE TEMPORARILY SUSPEND ANY LICENSE
ISSUED BY THE COMMISSION WITHOUT SUCH NOTICE. IN THE EVENT OF A TEMPO-
RARY SUSPENSION, THE COMMISSION SHALL MAIL OR DELIVER THE NOTICE TO THE
SUSPENDED LICENSEE WITHIN THREE BUSINESS DAYS AFTER THE TEMPORARY
SUSPENSION. IN EITHER CASE SUCH SUSPENSION MAY BE WITHOUT ANY ADVANCE
HEARING. UPON THE RECEIPT OF SUCH NOTICE OF SUSPENSION, THE SUSPENDED
LICENSEE MAY APPLY TO THE COMMISSION FOR A HEARING ON THE MATTER TO
DETERMINE WHETHER SUCH SUSPENSION SHOULD BE RESCINDED. SUCH APPLICATION
FOR A HEARING MUST BE IN WRITING AND MUST BE RECEIVED BY THE COMMISSION
WITHIN THIRTY DAYS AFTER THE DATE OF NOTICE OF SUSPENSION. THE COMMIS-
SION SHALL HAVE THE AUTHORITY TO REVOKE ANY LICENSE ISSUED BY IT. BEFORE
ANY LICENSE IS SO REVOKED, THE LICENSEE WILL BE OFFERED THE OPPORTUNITY
AT A HEARING HELD BY OR ON BEHALF OF THE COMMISSION TO SHOW CAUSE WHY
THE LICENSE SHOULD NOT BE REVOKED. THE COMMISSION SHALL OFFER THE OPPOR-
TUNITY FOR A HEARING TO AN AFFECTED PERSON BEFORE TAKING ANY FINAL
ACTION NEGATIVELY AFFECTING SUCH PERSON'S INDIVIDUAL PRIVILEGES OR PROP-
ERTY GRANTED BY A LICENSE DULY ISSUED BY THE COMMISSION OR A CONTRACT
S. 2811--B 113
APPROVED BY AND FILED WITH THE COMMISSION. IN ALL SUCH HEARINGS, LICEN-
SEES AND OTHER WITNESSES SHALL TESTIFY UNDER OATH OR AFFIRMATION, WHICH
MAY BE ADMINISTERED BY ANY COMMISSIONER OR AUTHORIZED REPRESENTATIVE OF
THE COMMISSION ACTUALLY PRESENT. THE COMMISSION SHALL BE THE SOLE JUDGE
OF THE RELEVANCY AND COMPETENCY OF TESTIMONY AND OTHER EVIDENCE, THE
CREDIBILITY OF WITNESSES, AND THE SUFFICIENCY OF EVIDENCE. HEARINGS MAY
BE CONDUCTED BY REPRESENTATIVES OF THE COMMISSION IN THE DISCRETION OF
THE COMMISSION. IN SUCH CASES, THE COMMISSION REPRESENTATIVES CONDUCTING
THE HEARING SHALL SUBMIT FINDINGS OF FACT AND RECOMMENDATIONS TO THE
COMMISSION, WHICH SHALL NOT BE BINDING ON THE COMMISSION.
15. ADVERTISING MATTER TO STATE ADMISSION PRICE. IT SHALL BE THE DUTY
OF EVERY ENTITY PROMOTING OR CONDUCTING A PROFESSIONAL COMBATIVE SPORTS
MATCH OR EXHIBITION SUBJECT TO THE PROVISIONS OF THIS SECTION TO CAUSE
TO BE INSERTED IN EACH SHOW CARD, BILL, POSTER, NEWSPAPER ADVERTISEMENT
OF ANY PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION GIVEN BY IT,
THE PRICE OF ADMISSION THERETO. VIOLATION OF THE PROVISIONS OF THIS
SUBDIVISION SHALL SUBJECT THE ENTITY TO A FINE OF ONE HUNDRED DOLLARS.
16. TICKETS TO INDICATE PURCHASE PRICE. ALL TICKETS OF ADMISSION TO
ANY SUCH COMBATIVE SPORTS MATCH OR EXHIBITION SHALL BE CONTROLLED BY THE
PROVISIONS OF ARTICLE TWENTY-FIVE OF THE ARTS AND CULTURAL AFFAIRS LAW.
IT SHALL BE UNLAWFUL FOR ANY ENTITY TO ADMIT TO SUCH MATCH OR EXHIBITION
A NUMBER OF PEOPLE GREATER THAN THE SEATING CAPACITY OF THE PLACE WHERE
SUCH MATCH OR EXHIBITION IS HELD. VIOLATION OF THIS SUBDIVISION SHALL BE
A MISDEMEANOR AND SHALL BE PUNISHABLE AS SUCH AND IN ADDITION SHALL
INCUR FORFEITURE OF LICENSE.
17. EQUIPMENT OF BUILDINGS FOR MATCHES OR EXHIBITIONS. ALL BUILDINGS
OR STRUCTURES USED OR INTENDED TO BE USED FOR HOLDING OR GIVING SUCH
PROFESSIONAL COMBATIVE SPORTS MATCHES OR EXHIBITIONS SHALL BE PROPERLY
VENTILATED AND PROVIDED WITH FIRE EXITS AND FIRE ESCAPES, AND IN ALL
MANNER CONFORM TO THE LAWS, ORDINANCES AND REGULATIONS PERTAINING TO
BUILDINGS IN THE CITY, TOWN OR VILLAGE WHERE SITUATED.
18. AGE OF PARTICIPANTS AND SPECTATORS. NO PERSON UNDER THE AGE OF
EIGHTEEN YEARS SHALL PARTICIPATE IN ANY PROFESSIONAL COMBATIVE SPORTS
MATCH OR EXHIBITION, AND NO PERSON UNDER SIXTEEN YEARS OF AGE SHALL BE
PERMITTED TO ATTEND AS A SPECTATOR; PROVIDED, HOWEVER, THAT A PERSON
UNDER THE AGE OF SIXTEEN SHALL BE PERMITTED TO ATTEND AS A SPECTATOR IF
ACCOMPANIED BY A PARENT OR GUARDIAN.
19. REGULATION OF CONDUCT OF MATCHES OR EXHIBITIONS. (A) EXCEPT FOR
CHAMPIONSHIP MATCHES, WHICH SHALL NOT BE MORE THAN FIVE ROUNDS, NO
COMBATIVE SPORTS MATCH OR EXHIBITION SHALL BE MORE THAN THREE ROUNDS IN
LENGTH. NO PARTICIPANT SHALL BE ALLOWED TO PARTICIPATE IN MORE THAN
THREE MATCHES OR EXHIBITIONS OR COMPETE FOR MORE THAN SIXTY MINUTES
WITHIN SEVENTY-TWO CONSECUTIVE HOURS. NO PARTICIPANT SHALL BE ALLOWED
TO COMPETE IN ANY SUCH MATCH OR EXHIBITION WITHOUT WEARING A MOUTHGUARD
AND A PROTECTIVE GROIN CUP. AT EACH PROFESSIONAL COMBATIVE SPORTS MATCH
OR EXHIBITION, THERE SHALL BE IN ATTENDANCE A DULY LICENSED REFEREE WHO
SHALL DIRECT AND CONTROL THE SAME. BEFORE STARTING SUCH CONTEST THE
REFEREE SHALL ASCERTAIN FROM EACH PARTICIPANT THE NAME OF HIS MANAGER OR
CHIEF SECOND, AND SHALL HOLD SUCH MANAGER OR CHIEF SECOND RESPONSIBLE
FOR THE CONDUCT OF HIS ASSISTANT SECONDS DURING THE PROGRESS OF THE
MATCH OR EXHIBITION. THE COMMISSION SHALL HAVE THE POWER IN ITS
DISCRETION TO DECLARE FORFEITED ANY PRIZE, REMUNERATION OR PURSE, OR ANY
PART THEREOF, BELONGING TO THE PARTICIPANTS OR ONE OF THEM, OR THE SHARE
THEREOF OF ANY MANAGER OR CHIEF SECOND IF IN ITS JUDGMENT, SUCH PARTIC-
IPANT OR PARTICIPANTS ARE NOT HONESTLY COMPETING OR THE PARTICIPANT OR
MANAGER OR CHIEF SECOND OF A PARTICIPANT, AS THE CASE MAY BE, HAS
S. 2811--B 114
COMMITTED AN ACT IN THE PREMISES IN VIOLATION OF ANY RULE, ORDER OR
REGULATION OF THE COMMISSION. THE AMOUNT SO FORFEITED SHALL BE PAID
WITHIN FORTY-EIGHT HOURS TO THE COMMISSION. THERE SHALL ALSO BE IN
ATTENDANCE, THREE DULY LICENSED JUDGES WHO SHALL AT THE TERMINATION OF
EACH SUCH COMBATIVE SPORTS MATCH OR EXHIBITION RENDER THEIR DECISION.
THE WINNER OF SUCH MATCH OR EXHIBITION SHALL BE DETERMINED IN ACCORDANCE
WITH A SCORING SYSTEM PRESCRIBED BY THE COMMISSION. PROVIDED, HOWEVER,
THAT A PARTICIPANT MAY TERMINATE THE CONTEST BY SIGNALLING TO THE REFER-
EE THAT SUCH PARTICIPANT SUBMITS TO THE OPPONENT.
(B) THE COMMISSION MAY BY RULE, REGULATION OR ORDER, REQUIRE THE PRES-
ENCE OF ANY MEDICAL EQUIPMENT AND PERSONNEL AT EACH PROFESSIONAL COMBA-
TIVE SPORTS MATCH OR EXHIBITION AS IS NECESSARY OR BENEFICIAL FOR THE
SAFETY AND PROTECTION OF THE CONTESTANTS; AND MAY ALSO REQUIRE THE PRES-
ENCE OF AN AMBULANCE OR OTHER APPARATUS AT THE SITE OF ANY SUCH MATCH OR
EXHIBITION OR THE PROMULGATION OF AN EMERGENCY MEDICAL PLAN IN LIEU
THEREOF.
(C) THE COMMISSION SHALL PRESCRIBE BY RULE OR REGULATION THE RESPONSI-
BILITIES OF MANAGERS, TRAINERS AND CHIEF SECONDS PRIOR TO, DURING AND
AFTER A COMBATIVE SPORTS MATCH OR EXHIBITION IN ORDER TO PROMOTE THE
SAFETY OF THE PARTICIPANTS AT ALL TIMES.
(D) THE COMMISSION SHALL REQUIRE BY RULE OR REGULATION THAT ANY
PROFESSIONAL COMBATIVE SPORTS PARTICIPANT LICENSED UNDER THIS SECTION
PRESENT TO A DESIGNATED COMMISSION OFFICIAL, BEFORE EACH MATCH OR EXHI-
BITION IN WHICH HE FIGHTS IN THIS STATE, A LICENSE WHICH SHALL INCLUDE
BUT NOT BE LIMITED TO THE FOLLOWING INFORMATION: (1) THE PARTICIPANT'S
NAME, PHOTOGRAPH, SOCIAL SECURITY NUMBER, DATE OF BIRTH, AND OTHER IDEN-
TIFYING INFORMATION; (2) THE PARTICIPANT'S PRIOR MATCH OR EXHIBITION
HISTORY INCLUDING THE DATES, LOCATION, AND DECISION OF SUCH MATCHES OR
EXHIBITIONS; AND (3) THE PARTICIPANT'S MEDICAL HISTORY, RELATING TO ANY
PHYSICAL CONDITION, MEDICAL TEST OR PROCEDURE WHICH RELATES TO HIS ABIL-
ITY TO FIGHT, AND A RECORD OF ALL MEDICAL SUSPENSIONS.
20. EXAMINATION BY PHYSICIAN; COST. (A) ALL PARTICIPANTS MUST BE EXAM-
INED BY A PHYSICIAN DESIGNATED BY THE COMMISSION BEFORE ENTERING THE
RING AND EACH SUCH PHYSICIAN SHALL IMMEDIATELY FILE WITH THE COMMISSION
A WRITTEN REPORT OF SUCH EXAMINATION. THE COST OF ANY SUCH EXAMINATION,
AS PRESCRIBED BY A SCHEDULE OF FEES ESTABLISHED BY THE COMMISSION, SHALL
BE PAID BY THE ENTITY CONDUCTING THE MATCH OR EXHIBITION TO THE COMMIS-
SION, WHICH SHALL THEN PAY THE FEE COVERING SUCH COST TO THE EXAMINING
PHYSICIAN, IN ACCORDANCE WITH THE RULES OF THE COMMISSION.
(B) ANY PROFESSIONAL COMBATIVE SPORTS PARTICIPANT LICENSED OR PERMIT-
TED UNDER THIS SECTION RENDERED UNCONSCIOUS OR SUFFERING HEAD TRAUMA AS
DETERMINED BY THE ATTENDING PHYSICIAN SHALL BE IMMEDIATELY EXAMINED BY
THE ATTENDING COMMISSION PHYSICIAN AND SHALL BE REQUIRED TO UNDERGO
NEUROLOGICAL AND NEUROPSYCHOLOGICAL EXAMINATIONS BY A NEUROLOGIST
INCLUDING BUT NOT LIMITED TO A COMPUTED TOMOGRAPHY OR MEDICALLY EQUIV-
ALENT PROCEDURE. ANY PARTICIPANT SO INJURED SHALL NOT APPEAR IN ANY
MATCH OR EXHIBITION UNTIL RESULTS OF SUCH EXAMINATIONS ARE REVIEWED BY
THE COMMISSION. THE RESULTS OF ALL SUCH EXAMINATIONS HEREIN REQUIRED
SHALL BECOME A PART OF THE PARTICIPANT'S PERMANENT MEDICAL RECORDS AS
MAINTAINED BY THE COMMISSION AND SHALL BE USED BY THE COMMISSION TO
DETERMINE WHETHER A PARTICIPANT SHALL BE PERMITTED TO APPEAR IN ANY
FUTURE PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION. THE COSTS OF
ALL SUCH EXAMINATIONS CALLED FOR IN THIS PARAGRAPH SHALL BE ASSUMED BY
THE ENTITY OR PROMOTER IF SUCH EXAMINATIONS ARE PERFORMED BY A PHYSICIAN
APPROVED BY THE COMMISSION.
S. 2811--B 115
(C) THE COMMISSION MAY AT ANY TIME REQUIRE A LICENSED OR PERMITTED
PARTICIPANT TO UNDERGO A PHYSICAL EXAMINATION, INCLUDING ANY NEUROLOGI-
CAL OR NEUROPSYCHOLOGICAL TEST OR PROCEDURE. THE COST OF SUCH EXAM SHALL
BE ASSUMED BY THE STATE.
21. PHYSICIAN TO BE IN ATTENDANCE; POWERS OF SUCH PHYSICIAN. (A) IT
SHALL BE THE DUTY OF EVERY ENTITY LICENSED TO CONDUCT A COMBATIVE SPORTS
MATCH OR EXHIBITION, TO HAVE IN ATTENDANCE AT EVERY MATCH OR EXHIBITION
AT LEAST ONE PHYSICIAN DESIGNATED BY THE COMMISSION AS THE RULES SHALL
PROVIDE. THE COMMISSION MAY ESTABLISH A SCHEDULE OF FEES TO BE PAID BY
THE LICENSEE TO COVER THE COST OF SUCH ATTENDANCE. SUCH FEES SHALL BE
PAID TO THE COMMISSION, WHICH SHALL THEN PAY SUCH FEES TO THE PHYSICIANS
ENTITLED THERETO, IN ACCORDANCE WITH THE RULES OF THE COMMISSION.
(B) THE PHYSICIAN SHALL TERMINATE ANY PROFESSIONAL COMBATIVE SPORTS
MATCH OR EXHIBITION IF IN THE OPINION OF SUCH PHYSICIAN ANY PARTICIPANT
HAS RECEIVED SEVERE PUNISHMENT OR IS IN DANGER OF SERIOUS PHYSICAL INJU-
RY. IN THE EVENT OF ANY SERIOUS PHYSICAL INJURY, SUCH PHYSICIAN SHALL
IMMEDIATELY RENDER ANY EMERGENCY TREATMENT NECESSARY, RECOMMEND FURTHER
TREATMENT OR HOSPITALIZATION IF REQUIRED, AND FULLY REPORT THE ENTIRE
MATTER TO THE COMMISSION WITHIN TWENTY-FOUR HOURS AND IF NECESSARY,
SUBSEQUENTLY THEREAFTER. SUCH PHYSICIAN MAY ALSO REQUIRE THAT THE
INJURED PARTICIPANT AND HIS MANAGER OR CHIEF SECOND REMAIN IN THE RING
OR ON THE PREMISES OR REPORT TO A HOSPITAL AFTER THE CONTEST FOR SUCH
PERIOD OF TIME AS SUCH PHYSICIAN DEEMS ADVISABLE.
(C) SUCH PHYSICIAN MAY ENTER THE RING AT ANY TIME DURING A PROFES-
SIONAL COMBATIVE SPORTS MATCH OR EXHIBITION AND MAY TERMINATE THE MATCH
OR EXHIBITION IF IN HIS OPINION THE SAME IS NECESSARY TO PREVENT SEVERE
PUNISHMENT OR SERIOUS PHYSICAL INJURY TO A PARTICIPANT.
22. BOND. BEFORE A LICENSE SHALL BE GRANTED TO AN ENTITY TO CONDUCT A
PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION, THE APPLICANT SHALL
EXECUTE AND FILE WITH THE COMPTROLLER A BOND IN AN AMOUNT TO BE DETER-
MINED BY THE COMMISSION, TO BE APPROVED AS TO FORM AND SUFFICIENCY OF
SURETIES THEREON BY THE COMPTROLLER, CONDITIONED FOR THE FAITHFUL
PERFORMANCE BY SUCH ENTITY OF THE PROVISIONS OF THIS SECTION AND THE
RULES AND REGULATIONS OF THE COMMISSION, AND UPON THE FILING AND
APPROVAL OF SUCH BOND THE COMPTROLLER SHALL ISSUE TO SUCH APPLICANT A
CERTIFICATE OF SUCH FILING AND APPROVAL, WHICH SHALL BE BY SUCH APPLI-
CANT FILED IN THE OFFICE OF THE COMMISSION WITH ITS APPLICATION FOR
LICENSE, AND NO SUCH LICENSE SHALL BE ISSUED UNTIL SUCH CERTIFICATE
SHALL BE FILED. IN CASE OF DEFAULT IN SUCH PERFORMANCE, THE COMMISSION
MAY IMPOSE UPON THE DELINQUENT A PENALTY IN THE SUM OF NOT MORE THAN ONE
THOUSAND DOLLARS FOR EACH OFFENSE, WHICH MAY BE RECOVERED BY THE ATTOR-
NEY GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK IN THE
SAME MANNER AS OTHER PENALTIES ARE RECOVERED BY LAW; ANY AMOUNT SO
RECOVERED SHALL BE PAID INTO THE TREASURY.
23. BOND FOR PURSES, SALARIES AND OTHER EXPENSES. IN ADDITION TO THE
BOND REQUIRED BY SUBDIVISION TWENTY-TWO OF THIS SECTION, EACH APPLICANT
FOR A LICENSE TO CONDUCT PROFESSIONAL COMBATIVE SPORTS MATCHES OR EXHI-
BITIONS SHALL EXECUTE AND FILE WITH THE COMPTROLLER A BOND IN AN AMOUNT
TO BE DETERMINED BY THE COMMISSION TO BE APPROVED AS TO FORM AND SUFFI-
CIENCY OF SURETIES THEREON BY THE COMPTROLLER, CONDITIONED FOR AND GUAR-
ANTEEING THE PAYMENT OF PROFESSIONAL COMBATIVE SPORTS PARTICIPANTS'
PURSES, SALARIES OF CLUB EMPLOYEES LICENSED BY THE COMMISSION, AND THE
LEGITIMATE EXPENSES OF PRINTING TICKETS AND ALL ADVERTISING MATERIAL.
24. DUTY TO PROVIDE INSURANCE FOR LICENSED PROFESSIONAL COMBATIVE
SPORTS PARTICIPANTS. (A) ALL ENTITIES HAVING LICENSES AS PROMOTERS
SHALL CONTINUOUSLY PROVIDE INSURANCE FOR THE PROTECTION OF LICENSED
S. 2811--B 116
PROFESSIONAL COMBATIVE SPORTS PARTICIPANTS, APPEARING IN PROFESSIONAL
COMBATIVE SPORTS MATCHES OR EXHIBITIONS. SUCH INSURANCE COVERAGE SHALL
PROVIDE FOR REIMBURSEMENT TO THE LICENSED ATHLETE FOR MEDICAL, SURGICAL
AND HOSPITAL CARE, WITH A MINIMUM LIMIT OF FIFTY THOUSAND DOLLARS FOR
INJURIES SUSTAINED WHILE PARTICIPATING IN ANY PROGRAM OPERATED UNDER THE
CONTROL OF SUCH LICENSED PROMOTER AND FOR A PAYMENT OF ONE HUNDRED THOU-
SAND DOLLARS TO THE ESTATE OF ANY DECEASED ATHLETE WHERE SUCH DEATH IS
OCCASIONED BY INJURIES RECEIVED DURING THE COURSE OF A MATCH OR EXHIBI-
TION IN WHICH SUCH LICENSED ATHLETE PARTICIPATED UNDER THE PROMOTION OR
CONTROL OF ANY LICENSED PROMOTER. THE COMMISSION MAY FROM TIME TO TIME,
IN ITS DISCRETION, INCREASE THE AMOUNT OF SUCH MINIMUM LIMITS.
(B) THE FAILURE TO PAY PREMIUMS ON SUCH INSURANCE AS IS REQUIRED BY
PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE CAUSE FOR THE SUSPENSION OR
THE REVOCATION OF THE LICENSE OF SUCH DEFAULTING PROMOTER.
25. NOTICE OF CONTEST; COLLECTION OF TAX. (A) EVERY ENTITY HOLDING ANY
PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION FOR WHICH AN ADMISSION
FEE IS CHARGED OR RECEIVED, SHALL NOTIFY THE ATHLETIC COMMISSION TEN
DAYS IN ADVANCE OF THE HOLDING OF SUCH CONTEST. ALL TICKETS OF ADMISSION
TO ANY SUCH MATCH OR EXHIBITION SHALL BE PROCURED FROM A PRINTER DULY
AUTHORIZED BY THE STATE ATHLETIC COMMISSION TO PRINT SUCH TICKETS AND
SHALL BEAR CLEARLY UPON THE FACE THEREOF THE PURCHASE PRICE AND LOCATION
OF SAME. AN ENTITY FAILING TO FULLY COMPLY WITH THIS SECTION SHALL BE
SUBJECT TO A PENALTY OF FIVE HUNDRED DOLLARS TO BE COLLECTED BY AND PAID
TO THE DEPARTMENT OF STATE. AN ENTITY IS PROHIBITED FROM OPERATING ANY
MATCHES OR EXHIBITIONS UNTIL ALL PENALTIES DUE PURSUANT TO THIS SUBDIVI-
SION AND TAXES, INTEREST AND PENALTIES DUE PURSUANT TO ARTICLE NINETEEN
OF THE TAX LAW HAVE BEEN PAID.
(B) PURSUANT TO DIRECTION BY THE COMMISSIONER OF TAXATION AND FINANCE,
EMPLOYEES OR OFFICERS OF THE ATHLETIC COMMISSION SHALL ACT AS AGENTS OF
THE COMMISSIONER OF TAXATION AND FINANCE TO COLLECT THE TAX IMPOSED BY
ARTICLE NINETEEN OF THE TAX LAW. THE ATHLETIC COMMISSION SHALL PROVIDE
THE COMMISSIONER OF TAXATION AND FINANCE WITH SUCH INFORMATION AND TECH-
NICAL ASSISTANCE AS MAY BE NECESSARY FOR THE PROPER ADMINISTRATION OF
SUCH TAX.
26. REGULATION OF JUDGES. (A) JUDGES FOR ANY PROFESSIONAL COMBATIVE
SPORTS MATCH OR EXHIBITION UNDER THE JURISDICTION OF THE COMMISSION
SHALL BE SELECTED BY THE COMMISSION FROM A LIST OF QUALIFIED LICENSED
JUDGES MAINTAINED BY THE COMMISSION.
(B) ANY PROFESSIONAL COMBATIVE SPORT PARTICIPANT, MANAGER OR CHIEF
SECOND MAY PROTEST THE ASSIGNMENT OF A JUDGE TO A PROFESSIONAL COMBATIVE
SPORTS MATCH OR EXHIBITION AND THE PROTESTING PROFESSIONAL COMBATIVE
SPORTS PARTICIPANT, MANAGER OR CHIEF SECOND MAY BE HEARD BY THE COMMIS-
SION OR ITS DESIGNEE IF SUCH PROTEST IS TIMELY. IF THE PROTEST IS
UNTIMELY IT SHALL BE SUMMARILY REJECTED.
(C) EACH PERSON SEEKING TO BE LICENSED AS A JUDGE BY THE COMMISSION
SHALL BE REQUIRED TO SUBMIT TO OR PROVIDE PROOF OF AN EYE EXAMINATION
AND ANNUALLY THEREAFTER ON THE ANNIVERSARY OF THE ISSUANCE OF THE
LICENSE. EACH PERSON SEEKING TO BE A PROFESSIONAL COMBATIVE SPORTS JUDGE
IN THE STATE SHALL BE CERTIFIED AS HAVING COMPLETED A TRAINING PROGRAM
AS APPROVED BY THE COMMISSION AND SHALL HAVE PASSED A WRITTEN EXAMINA-
TION APPROVED BY THE COMMISSION COVERING ASPECTS OF PROFESSIONAL COMBA-
TIVE SPORTS INCLUDING, BUT NOT LIMITED TO, THE RULES OF THE SPORT, THE
LAW OF THE STATE RELATING TO THE COMMISSION, AND BASIC FIRST AID. THE
COMMISSION SHALL ESTABLISH CONTINUING EDUCATION PROGRAMS TO KEEP LICEN-
SEES CURRENT ON AREAS OF REQUIRED KNOWLEDGE.
S. 2811--B 117
(D) EACH PERSON SEEKING A LICENSE TO BE A PROFESSIONAL COMBATIVE
SPORTS JUDGE IN THIS STATE SHALL BE REQUIRED TO FILL OUT A FINANCIAL
QUESTIONNAIRE CERTIFYING UNDER PENALTY OF PERJURY FULL DISCLOSURE OF THE
JUDGE'S FINANCIAL SITUATION ON A QUESTIONNAIRE TO BE PROMULGATED BY THE
COMMISSION. SUCH QUESTIONNAIRE SHALL BE IN A FORM AND MANNER APPROVED BY
THE COMMISSION AND SHALL PROVIDE INFORMATION AS TO AREAS OF ACTUAL OR
POTENTIAL CONFLICTS OF INTEREST AS WELL AS APPEARANCES OF SUCH
CONFLICTS, INCLUDING FINANCIAL RESPONSIBILITY. WITHIN FORTY-EIGHT HOURS
OF ANY PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION, EACH COMBATIVE
SPORTS JUDGE SHALL FILE WITH THE COMMISSION A FINANCIAL DISCLOSURE
STATEMENT IN SUCH FORM AND MANNER AS SHALL BE ACCEPTABLE TO THE COMMIS-
SION.
(E) ONLY A PERSON LICENSED BY THE COMMISSION MAY JUDGE A PROFESSIONAL
COMBATIVE SPORTS MATCH OR EXHIBITION.
27. TRAINING FACILITIES. (A) THE COMMISSION MAY, IN ITS DISCRETION AND
IN ACCORDANCE WITH REGULATIONS ADOPTED BY THE COMMISSION TO PROTECT THE
HEALTH AND SAFETY OF PROFESSIONAL COMBATIVE SPORT PARTICIPANTS IN TRAIN-
ING, ISSUE A LICENSE TO OPERATE A TRAINING FACILITY PROVIDING CONTACT
SPARRING MAINTAINED EITHER EXCLUSIVELY OR IN PART FOR THE USE OF PROFES-
SIONAL COMBATIVE SPORT PARTICIPANTS. THE REGULATIONS OF THE COMMISSION
SHALL INCLUDE, BUT NOT BE LIMITED TO, THE FOLLOWING SUBJECTS TO PROTECT
THE HEALTH AND SAFETY OF PROFESSIONAL COMBATIVE SPORT PARTICIPANTS:
(1) REQUIREMENTS FOR FIRST AID MATERIALS TO BE STORED IN AN ACCESSIBLE
LOCATION ON THE PREMISES AND FOR THE PRESENCE ON THE PREMISES OF A
PERSON TRAINED AND CERTIFIED IN THE USE OF SUCH MATERIALS AND PROCEDURES
FOR CARDIO-PULMONARY RESUSCITATION AT ALL TIMES DURING WHICH THE FACILI-
TY IS OPEN FOR TRAINING PURPOSES;
(2) PROMINENT POSTING ADJACENT TO AN ACCESSIBLE TELEPHONE OF THE TELE-
PHONE NUMBER FOR EMERGENCY MEDICAL SERVICES AT THE NEAREST HOSPITAL;
(3) CLEAN AND SANITARY BATHROOMS, SHOWER ROOMS, LOCKER ROOMS AND FOOD
SERVING AND STORAGE AREAS;
(4) ADEQUATE VENTILATION AND LIGHTING OF ACCESSIBLE AREAS OF THE
TRAINING FACILITY;
(5) ESTABLISHMENT OF A POLICY CONCERNING THE RESTRICTION OF SMOKING IN
TRAINING AREAS, INCLUDING PROVISIONS FOR ITS ENFORCEMENT BY THE FACILITY
OPERATOR;
(6) COMPLIANCE WITH STATE AND LOCAL FIRE ORDINANCES;
(7) INSPECTION AND APPROVAL OF RINGS AS REQUIRED BY SUBDIVISION THIRTY
OF THIS SECTION; AND
(8) ESTABLISHMENT OF A POLICY FOR POSTING ALL COMMISSION LICENSE
SUSPENSIONS AND LICENSE REVOCATIONS RECEIVED FROM THE COMMISSION INCLUD-
ING PROVISIONS FOR ENFORCEMENT OF SUCH SUSPENSIONS AND REVOCATIONS BY
THE FACILITY OPERATOR.
(B) A PROSPECTIVE LICENSEE SHALL SUBMIT TO THE COMMISSION PROOF THAT
IT CAN FURNISH SUITABLE FACILITIES IN WHICH THE TRAINING IS TO BE
CONDUCTED, INCLUDING THE MAKING OF SUCH TRAINING FACILITIES AVAILABLE
FOR INSPECTION BY THE COMMISSION AT ANY TIME DURING WHICH TRAINING IS IN
PROGRESS.
28. TEMPORARY TRAINING FACILITIES. ANY TRAINING FACILITY PROVIDING
CONTACT SPARRING ESTABLISHED AND MAINTAINED ON A TEMPORARY BASIS FOR THE
PURPOSE OF PREPARING A PROFESSIONAL COMBATIVE SPORT PARTICIPANT FOR A
SPECIFIC PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION TO BE
CONDUCTED, HELD OR GIVEN WITHIN THE STATE OF NEW YORK SHALL BE EXEMPT
FROM THIS ACT INSOFAR AS IT CONCERNS THE LICENSING OF SUCH FACILITIES
IF, IN THE JUDGMENT OF THE COMMISSION, ESTABLISHMENT AND MAINTENANCE OF
SUCH FACILITY WILL BE CONSISTENT WITH THE PURPOSES AND PROVISIONS OF
S. 2811--B 118
THIS CHAPTER, THE BEST INTERESTS OF PROFESSIONAL COMBATIVE SPORTS GENER-
ALLY, AND THE PUBLIC INTEREST, CONVENIENCE OR NECESSITY.
29. WEIGHTS; CLASSES AND RULES. THE WEIGHTS AND CLASSES OF COMBATIVE
SPORT PARTICIPANTS AND THE RULES AND REGULATIONS OF PROFESSIONAL COMBA-
TIVE SPORTS SHALL BE PRESCRIBED BY THE COMMISSION.
30. RINGS OR FIGHTING AREAS. NO PROFESSIONAL COMBATIVE SPORTS MATCH
OR EXHIBITION OR TRAINING ACTIVITY SHALL BE PERMITTED IN ANY RING OR
FIGHTING AREA UNLESS SUCH RING OR FIGHTING AREA HAS BEEN INSPECTED AND
APPROVED BY THE COMMISSION. THE COMMISSION SHALL PRESCRIBE STANDARD
ACCEPTABLE SIZE AND QUALITY REQUIREMENTS FOR RINGS OR FIGHTING AREAS AND
APPURTENANCES THERETO.
31. MISDEMEANOR. ANY ENTITY WHO INTENTIONALLY, DIRECTLY OR INDIRECTLY
CONDUCTS, HOLDS OR GIVES A PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHI-
BITION OR PARTICIPATES EITHER DIRECTLY OR INDIRECTLY IN ANY SUCH MATCH
OR EXHIBITION AS A REFEREE, JUDGE, CORPORATION TREASURER, PROFESSIONAL
COMBATIVE SPORTS PARTICIPANT, MANAGER, PROMOTER, TRAINER OR CHIEF
SECOND, WITHOUT FIRST HAVING PROCURED AN APPROPRIATE LICENSE OR PERMIT
AS PRESCRIBED IN THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR.
S 3. Section 6 of chapter 912 of the laws of 1920 relating to the
regulation of boxing, sparring and wrestling, as amended by chapter 437
of the laws of 2002 and subdivision 1 as designated and subdivision 2 as
added by chapter 673 of the laws of 2003, is amended to read as follows:
S 6. Jurisdiction of commission. 1. The commission shall have and
hereby is vested with the sole direction, management, control and juris-
diction over all such boxing and sparring matches or exhibitions OR
PROFESSIONAL COMBATIVE SPORTS MATCHES OR EXHIBITIONS to be conducted,
held or given within the state of New York and over all licenses to any
and all persons who participate in such boxing or sparring matches or
exhibitions OR PROFESSIONAL COMBATIVE SPORTS MATCHES OR EXHIBITIONS and
over any and all gyms, clubs, training camps and other organizations
that maintain training facilities providing contact sparring for persons
who prepare for participation in such boxing or sparring matches or
exhibitions OR PROFESSIONAL COMBATIVE SPORTS MATCHES OR EXHIBITIONS, and
over the promotion of professional wrestling exhibitions OR PROFESSIONAL
COMBATIVE SPORTS MATCHES OR EXHIBITIONS to the extent provided for in
sections 5, 9, 19, 20, 28-a, 28-b and 33 of this act, except as other-
wise provided in this act.
2. The commission is authorized and directed to require that all sites
wherein boxing, sparring and wrestling matches and exhibitions OR
PROFESSIONAL COMBATIVE SPORTS MATCHES OR EXHIBITIONS are conducted shall
comply with state and applicable local sanitary codes appropriate to
school athletic facilities.
S 4. Subdivision 1 of section 451 of the tax law, as amended by
section 1 of part F of chapter 407 of the laws of 1999, is amended to
read as follows:
1. "Gross receipts from ticket sales" shall mean the total gross
receipts of every person from the sale of tickets to any professional or
amateur boxing, sparring or wrestling match or exhibition OR ANY PROFES-
SIONAL COMBATIVE SPORTS MATCH OR EXHIBITION held in this state, and
without any deduction whatsoever for commissions, brokerage, distrib-
ution fees, advertising or any other expenses, charges and recoupments
in respect thereto.
S 5. Section 452 of the tax law, as amended by section 2 of part F of
chapter 407 of the laws of 1999, is amended to read as follows:
S 452. Imposition of tax. 1. On and after October first, nineteen
hundred ninety-nine, a tax is hereby imposed and shall be paid upon the
S. 2811--B 119
gross receipts of every person holding any professional or amateur
boxing, sparring or wrestling match or exhibition in this state. Such
tax shall be imposed on such gross receipts, exclusive of any federal
taxes, as follows:
(a) three percent of gross receipts from ticket sales, except that in
no event shall the tax imposed by this [subdivision] PARAGRAPH exceed
fifty thousand dollars for any match or exhibition;
(b) three percent of gross receipts from broadcasting rights, except
that in no event shall the tax imposed by this [subdivision] PARAGRAPH
exceed fifty thousand dollars for any match or exhibition.
2. ON AND AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION, A TAX IS HERE-
BY IMPOSED AND SHALL BE PAID UPON THE GROSS RECEIPTS OF EVERY PERSON
HOLDING ANY PROFESSIONAL COMBATIVE SPORTS MATCH OR EXHIBITION IN THIS
STATE. SUCH TAX SHALL BE IMPOSED ON SUCH GROSS RECEIPTS, EXCLUSIVE OF
ANY FEDERAL TAXES, AS FOLLOWS:
(A) EIGHT AND ONE-HALF PERCENT OF GROSS RECEIPTS FROM TICKET SALES;
AND
(B) THREE PERCENT OF GROSS RECEIPTS FROM BROADCASTING RIGHTS, EXCEPT
THAT IN NO EVENT SHALL THE TAX IMPOSED BY THIS PARAGRAPH EXCEED FIFTY
THOUSAND DOLLARS FOR ANY MATCH OR EXHIBITION.
S 6. This act shall take effect on the ninetieth day after it shall
have become a law, and shall expire and be deemed repealed 3 years after
it shall take effect; provided, however, that effective immediately, the
addition, amendment and/or repeal of any rule or regulation necessary
for the implementation of this act on its effective date is authorized
and directed to be made and completed on or before such effective date.
PART EE
Section 1. Legislative findings. The legislature finds, with regard to
non-admitted insurance policies with risk exposures located in multiple
states, the 111th United States Congress has stipulated in title V,
subtitle B, the Non-Admitted and Reinsurance Reform Act of 2010 of the
Dodd-Frank Wall Street Reform and Consumer Protection Act (hereinafter
the NRRA) that:
1. The placement of non-admitted insurance shall be subject to the
statutory and regulatory requirements solely of the insured's home
state, and
2. Any law, regulation, provision or action of any state that applies
or purports to apply to non-admitted insurance sold to, solicited by or
negotiated with an insured whose home state is another state shall be
preempted with respect to such application; except that any state law,
rule or regulation that restricts the placement of workers' compensation
insurance or excess insurance for self-funded workers' compensation
plans with a non-admitted insurer shall not be preempted.
The legislature finds further that in compliance with NRRA, no state
other than the home state of an insured may require any premium tax
payment for non-admitted insurance; and no state other than an insured's
home state may require a surplus lines broker to be licensed in order to
sell, solicit or negotiate non-admitted insurance with respect to such
insured.
The legislature finds further that the NRRA intends that the states
may enter into a compact or otherwise establish procedures to allocate
among the states the premium taxes paid to an insured's home state; and
that each state adopt nationwide uniform requirements, form, and proce-
dures, such as an interstate compact, that provide for the reporting,
S. 2811--B 120
payment, collection and allocation of premium taxes for non-admitted
insurance.
The legislature finds further that after the expiration of the two-
year period beginning on the effective date of the NRRA, a state may not
collect any fees relating to licensing of an individual or entity as a
surplus lines licensee in the state unless the state has in effect at
such time laws or regulations that provide for participation by the
state in the national insurance producer database of the National Asso-
ciation of Insurance Commissioners (hereinafter the NAIC) or any other
equivalent uniform national database for the licensure of surplus lines
licensees and the renewal of such licenses.
The legislature recognizes that a need exists for a system of regu-
lation that will provide for surplus lines insurance to be placed with
reputable and financially sound non-admitted insurers and that will
permit orderly access to surplus lines insurance in this state and
encourage insurers to make new and innovative types of insurance avail-
able to consumers in this state.
The legislature finds that protecting the revenue of this state and
other compacting states may be accomplished by facilitating the payment
and collection of premium tax on non-admitted insurance and providing
for allocation of premium tax for non-admitted insurance of multi-state
risks among the states in accordance with uniform allocation formulas.
The legislature finds that the efficiency of the surplus lines market
may be improved by eliminating duplicative and inconsistent tax and
regulatory requirements among the states and by promoting and protecting
the interests of surplus lines licensees who assist such insureds and
non-admitted insurers, thereby ensuring the continued availability of
non-admitted insurance to consumers.
Regulatory compliance with respect to non-admitted insurance place-
ments may be streamlined by providing for exclusive single-state regula-
tory compliance for non-admitted insurance of multi-state risks, thereby
providing certainty regarding such compliance to all persons who have an
interest in such transactions, including but not limited to insureds,
regulators, surplus lines licensees, other insurance producers and
surplus lines insurers.
The legislature finds that coordination of regulatory resources and
expertise between state insurance departments and other state agencies,
as well as state surplus lines stamping offices, with respect to non-ad-
mitted insurance will be improved.
S 2. The insurance law is amended by adding a new article 29 to read
as follows:
ARTICLE 29
SURPLUS LINES INSURANCE MULTI-STATE COMPLIANCE COMPACT
SECTION 2901. SHORT TITLE.
2902. PURPOSES.
2903. DEFINITIONS.
2904. ESTABLISHMENT OF THE COMMISSION AND VENUE.
2905. AUTHORITY TO ESTABLISH MANDATORY RULES.
2906. POWERS OF THE COMMISSION.
2907. ORGANIZATION OF THE COMMISSION.
2908. MEETINGS AND ACTS OF THE COMMISSION.
2909. RULEMAKING FUNCTIONS OF THE COMMISSION.
2910. COMMISSION RECORDS AND ENFORCEMENT.
2911. DISPUTE RESOLUTION.
2912. REVIEW OF COMMISSION DECISIONS.
2913. FINANCE.
S. 2811--B 121
2914. COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT.
2915. WITHDRAWAL, DEFAULT AND TERMINATION.
2916. SEVERABILITY AND CONSTRUCTION.
2917. BINDING EFFECT OF COMPACT AND OTHER LAWS.
S 2901. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
THE "SURPLUS LINES INSURANCE MULTI-STATE COMPLIANCE COMPACT".
S 2902. PURPOSES. THE PURPOSES OF THIS COMPACT ARE:
(A) TO IMPLEMENT THE EXPRESS PROVISIONS OF THE NON-ADMITTED AND REIN-
SURANCE REFORM ACT OF 2010 (HEREINAFTER THE NRRA).
(B) TO PROTECT THE PREMIUM TAX REVENUES OF THE COMPACTING STATES
THROUGH FACILITATING THE PAYMENT AND COLLECTION OF PREMIUM TAX ON
NON-ADMITTED INSURANCE; AND TO PROTECT THE INTERESTS OF THE COMPACTING
STATES BY SUPPORTING THE CONTINUED AVAILABILITY OF SUCH INSURANCE TO
CONSUMERS; AND TO PROVIDE FOR ALLOCATION OF PREMIUM TAX FOR NON-ADMITTED
INSURANCE OF MULTI-STATE RISKS AMONG THE STATES IN ACCORDANCE WITH
UNIFORM ALLOCATION FORMULAS TO BE DEVELOPED, ADOPTED, AND IMPLEMENTED BY
THE COMMISSION.
(C) TO STREAMLINE AND IMPROVE THE EFFICIENCY OF THE SURPLUS LINES
MARKET BY ELIMINATING DUPLICATIVE AND INCONSISTENT TAX AND REGULATORY
REQUIREMENTS AMONG THE STATES; AND PROMOTE AND PROTECT THE INTEREST OF
SURPLUS LINES LICENSEES WHO ASSIST SUCH INSUREDS AND SURPLUS LINES
INSURERS, THEREBY ENSURING THE CONTINUED AVAILABILITY OF SURPLUS LINES
INSURANCE TO CONSUMERS.
(D) TO STREAMLINE REGULATORY COMPLIANCE WITH RESPECT TO NON-ADMITTED
INSURANCE PLACEMENTS BY PROVIDING FOR EXCLUSIVE SINGLE-STATE REGULATORY
COMPLIANCE FOR NON-ADMITTED INSURANCE OF MULTI-STATE RISKS, IN ACCORD-
ANCE WITH RULES TO BE ADOPTED BY THE COMMISSION, THEREBY PROVIDING
CERTAINTY REGARDING SUCH COMPLIANCE TO ALL PERSONS WHO HAVE AN INTEREST
IN SUCH TRANSACTIONS, INCLUDING BUT NOT LIMITED TO INSUREDS, REGULATORS,
SURPLUS LINES LICENSEES, OTHER INSURANCE PRODUCERS AND SURPLUS LINES
INSURERS.
(E) TO ESTABLISH A CLEARINGHOUSE FOR RECEIPT AND DISSEMINATION OF
PREMIUM TAX AND CLEARINGHOUSE TRANSACTION DATA RELATED TO NON-ADMITTED
INSURANCE OF MULTI-STATE RISKS, IN ACCORDANCE WITH RULES TO BE ADOPTED
BY THE COMMISSION.
(F) TO IMPROVE COORDINATION OF REGULATORY RESOURCES AND EXPERTISE
BETWEEN STATE INSURANCE DEPARTMENTS AND OTHER STATE AGENCIES, AS WELL AS
STATE SURPLUS LINES STAMPING OFFICES, WITH RESPECT TO NON-ADMITTED
INSURANCE.
(G) TO ADOPT UNIFORM RULES TO PROVIDE FOR PREMIUM TAX PAYMENT, REPORT-
ING, ALLOCATION, DATA COLLECTION AND DISSEMINATION FOR NON-ADMITTED
INSURANCE OF MULTI-STATE RISKS AND SINGLE-STATE RISKS, IN ACCORDANCE
WITH RULES TO BE ADOPTED BY THE COMMISSION, THEREBY PROMOTING THE OVER-
ALL EFFICIENCY OF THE NON-ADMITTED INSURANCE MARKET.
(H) TO ADOPT UNIFORM MANDATORY RULES WITH RESPECT TO REGULATORY
COMPLIANCE REQUIREMENTS FOR:
(1) FOREIGN INSURER ELIGIBILITY REQUIREMENTS; AND
(2) SURPLUS LINES POLICYHOLDER NOTICES.
(I) TO ESTABLISH THE SURPLUS LINES INSURANCE MULTI-STATE COMPLIANCE
COMPACT COMMISSION.
(J) TO COORDINATE REPORTING OF CLEARINGHOUSE TRANSACTION DATA ON NON-
ADMITTED INSURANCE OF MULTI-STATE RISKS AMONG COMPACTING STATES AND
CONTRACTING STATES.
(K) TO PERFORM THESE AND SUCH OTHER RELATED FUNCTIONS AS MAY BE
CONSISTENT WITH THE PURPOSES OF THE SURPLUS LINES INSURANCE MULTI-STATE
COMPLIANCE COMPACT.
S. 2811--B 122
S 2903. DEFINITIONS. FOR THE PURPOSES OF THIS COMPACT THE FOLLOWING
DEFINITIONS SHALL APPLY:
(A) "ADMITTED INSURER" MEANS AN INSURER THAT IS LICENSED OR AUTHORIZED
TO TRANSACT THE BUSINESS OF INSURANCE UNDER THE LAW OF THE HOME STATE;
FOR PURPOSES OF THIS COMPACT "ADMITTED INSURER" SHALL NOT INCLUDE A
DOMESTIC SURPLUS LINES INSURER AS MAY BE DEFINED BY APPLICABLE STATE
LAW.
(B) "AFFILIATE" MEANS, WITH RESPECT TO AN INSURED, ANY ENTITY THAT
CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH THE INSURED.
(C) "ALLOCATION FORMULA" MEANS THE UNIFORM METHODS PROMULGATED BY THE
COMMISSION BY WHICH INSURED RISK EXPOSURES WILL BE APPORTIONED TO EACH
STATE FOR THE PURPOSE OF CALCULATING PREMIUM TAXES DUE.
(D) "BYLAWS" MEANS THOSE BYLAWS ESTABLISHED BY THE COMMISSION FOR ITS
GOVERNANCE OR FOR DIRECTING OR CONTROLLING THE COMMISSION'S ACTIONS OR
CONDUCT.
(E) "CLEARINGHOUSE" MEANS THE COMMISSION'S OPERATIONS INVOLVING THE
ACCEPTANCE, PROCESSING AND DISSEMINATION AMONG THE COMPACTING STATES,
CONTRACTING STATES, SURPLUS LINES LICENSEES, INSUREDS AND OTHER PERSONS
OF PREMIUM TAX AND CLEARINGHOUSE TRANSACTION DATA FOR NON-ADMITTED
INSURANCE OF MULTI-STATE RISKS IN ACCORDANCE WITH THIS COMPACT AND RULES
TO BE ADOPTED BY THE COMMISSION.
(F) "CLEARINGHOUSE TRANSACTION DATA" MEANS THE INFORMATION REGARDING
NON-ADMITTED INSURANCE OF MULTI-STATE RISKS REQUIRED TO BE REPORTED,
ACCEPTED, COLLECTED, PROCESSED AND DISSEMINATED BY SURPLUS LINES LICEN-
SEES FOR SURPLUS LINES INSURANCE AND INSUREDS FOR INDEPENDENTLY PROCURED
INSURANCE UNDER THIS COMPACT AND RULES TO BE ADOPTED BY THE COMMISSION.
CLEARINGHOUSE TRANSACTION DATA INCLUDES INFORMATION RELATED TO
SINGLE-STATE RISKS IF A STATE ELECTS TO HAVE THE CLEARINGHOUSE COLLECT
TAXES ON SINGLE-STATE RISKS FOR SUCH STATE.
(G) "COMPACTING STATE" MEANS ANY STATE WHICH HAS ENACTED THIS COMPACT
LEGISLATION AND WHICH HAS NOT WITHDRAWN PURSUANT TO SUBSECTION (A) OF
SECTION TWENTY-NINE HUNDRED FIFTEEN OF THIS ARTICLE OR BEEN TERMINATED
PURSUANT TO SUBSECTION (B) OF SECTION TWENTY-NINE HUNDRED FIFTEEN OF
THIS ARTICLE.
(H) "COMMISSION" MEANS THE SURPLUS LINES INSURANCE MULTI-STATE COMPLI-
ANCE COMPACT COMMISSION ESTABLISHED BY THIS COMPACT.
(I) "COMMISSIONER" MEANS THE CHIEF INSURANCE REGULATORY OFFICIAL OF A
STATE INCLUDING, BUT NOT LIMITED TO, COMMISSIONER, SUPERINTENDENT,
DIRECTOR OR ADMINISTRATOR OR THEIR DESIGNEES.
(J) "CONTRACTING STATE" MEANS ANY STATE WHICH HAS NOT ENACTED THIS
COMPACT LEGISLATION BUT HAS ENTERED INTO A WRITTEN CONTRACT WITH THE
COMMISSION TO UTILIZE THE SERVICES OF AND FULLY PARTICIPATE IN THE
CLEARINGHOUSE.
(K) "CONTROL" MEANS ONE ENTITY HAS POWER OVER ANOTHER. FOR THE
PURPOSES OF THIS ARTICLE, AN ENTITY HAS CONTROL OVER ANOTHER ENTITY IF:
(1) THE ENTITY DIRECTLY OR INDIRECTLY OR ACTING THROUGH ONE OR MORE
OTHER PERSONS OWN, CONTROLS OR HAS THE POWER TO VOTE TWENTY-FIVE PERCENT
OR MORE OF ANY CLASS OF VOTING SECURITIES OF THE OTHER ENTITY; OR
(2) SUCH ENTITY CONTROLS IN ANY MANNER THE ELECTION OF A MAJORITY OF
THE DIRECTORS OR TRUSTEES OF THE OTHER ENTITY.
(L) "HOME STATE" SHALL HAVE TWO MEANINGS DEPENDING ON CONTEXT:
(1) EXCEPT AS PROVIDED IN PARAGRAPH TWO OF THIS SUBSECTION, THE TERM
"HOME STATE" MEANS, WITH RESPECT TO AN INSURED:
(A) THE STATE IN WHICH AN INSURED MAINTAINS ITS PRINCIPAL PLACE OF
BUSINESS OR, IN THE CASE OF AN INDIVIDUAL, THE INDIVIDUAL'S PRINCIPAL
RESIDENCE; OR
S. 2811--B 123
(B) IF ONE HUNDRED PERCENT OF THE INSURED RISK IS LOCATED OUT OF THE
STATE REFERRED TO IN SUBPARAGRAPH (A) OF THIS PARAGRAPH, THE STATE TO
WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT
INSURANCE CONTRACT IS ALLOCATED.
(2) IF MORE THAN ONE INSURED FROM AN AFFILIATED GROUP ARE NAMED
INSUREDS ON A SINGLE NON-ADMITTED INSURANCE CONTRACT, THE TERM "HOME
STATE" MEANS THE HOME STATE, AS DETERMINED PURSUANT TO PARAGRAPH ONE OF
THIS SUBSECTION, OF THE MEMBER OF THE AFFILIATED GROUP THAT HAS THE
LARGEST PERCENTAGE OF PREMIUM ATTRIBUTED TO IT UNDER SUCH INSURANCE
CONTRACT.
(M) "INDEPENDENTLY PROCURED INSURANCE" MEANS INSURANCE PROCURED BY AN
INSURED DIRECTLY FROM A SURPLUS LINES INSURER OR OTHER NON-ADMITTED
INSURER AS PERMITTED BY THE LAWS OF THE HOME STATE.
(N) "INSURER ELIGIBILITY REQUIREMENTS" MEANS THE CRITERIA, FORMS AND
PROCEDURES ESTABLISHED TO QUALIFY AS A SURPLUS LINES INSURER UNDER THE
LAW OF THE HOME STATE PROVIDED THAT SUCH CRITERIA, FORMS AND PROCEDURES
ARE CONSISTENT WITH THE EXPRESS PROVISIONS OF THE NRRA ON AND AFTER JULY
TWENTY-FIRST, TWO THOUSAND ELEVEN.
(O) "MEMBER" MEANS THE PERSON OR PERSONS CHOSEN BY A COMPACTING STATE
AS ITS REPRESENTATIVE OR REPRESENTATIVES TO THE COMMISSION PROVIDED THAT
EACH COMPACTING STATE SHALL BE LIMITED TO ONE VOTE.
(P) "MULTI-STATE RISK" MEANS A RISK WITH INSURED EXPOSURES IN MORE
THAN ONE STATE.
(Q) "NON-COMPACTING STATE" MEANS ANY STATE WHICH HAS NOT ADOPTED THIS
COMPACT.
(R) "NON-ADMITTED INSURANCE" MEANS SURPLUS LINES INSURANCE AND INDE-
PENDENTLY PROCURED INSURANCE.
(S) "NON-ADMITTED INSURER" MEANS AN INSURER THAT IS NOT AUTHORIZED OR
ADMITTED TO TRANSACT THE BUSINESS OF INSURANCE UNDER THE LAW OF THE HOME
STATE.
(T) "NRRA" MEANS THE NON-ADMITTED AND REINSURANCE REFORM ACT OF 2010,
FOUND IN TITLE V, SUBTITLE B OF THE FEDERAL DODD-FRANK WALL STREET
REFORM AND CONSUMER PROTECTION ACT.
(U) "POLICYHOLDER NOTICE" MEANS THE DISCLOSURE NOTICE OR STAMP THAT IS
REQUIRED TO BE FURNISHED TO THE APPLICANT OR POLICYHOLDER IN CONNECTION
WITH A SURPLUS LINES INSURANCE PLACEMENT.
(V) "PREMIUM TAX" MEANS WITH RESPECT TO NON-ADMITTED INSURANCE, ANY
TAX, FEE, ASSESSMENT OR OTHER CHARGE IMPOSED BY A GOVERNMENT ENTITY
DIRECTLY OR INDIRECTLY BASED ON ANY PAYMENT MADE AS CONSIDERATION FOR
SUCH INSURANCE, INCLUDING PREMIUM DEPOSITS, ASSESSMENTS, REGISTRATION
FEES AND ANY OTHER COMPENSATION GIVEN IN CONSIDERATION FOR A CONTRACT OF
INSURANCE.
(W) "PRINCIPAL PLACE OF BUSINESS" MEANS WITH RESPECT TO DETERMINING
THE HOME STATE OF THE INSURED, THE STATE WHERE THE INSURED MAINTAINS ITS
HEADQUARTERS AND WHERE THE INSURED'S HIGH-LEVEL OFFICERS DIRECT, CONTROL
AND COORDINATE THE BUSINESS ACTIVITIES OF THE INSURED.
(X) "PURCHASING GROUP" MEANS ANY GROUP FORMED PURSUANT TO THE LIABIL-
ITY RISK RETENTION ACT WHICH HAS AS ONE OF ITS PURPOSES THE PURCHASE OF
LIABILITY INSURANCE ON A GROUP BASIS, PURCHASES SUCH INSURANCE ONLY FOR
ITS GROUP MEMBERS AND ONLY TO COVER THEIR SIMILAR OR RELATED LIABILITY
EXPOSURE AND IS COMPOSED OF MEMBERS WHOSE BUSINESSES OR ACTIVITIES ARE
SIMILAR OR RELATED WITH RESPECT TO THE LIABILITY TO WHICH MEMBERS ARE
EXPOSED BY VIRTUE OF ANY RELATED, SIMILAR OR COMMON BUSINESS, TRADE,
PRODUCT, SERVICES, PREMISES OR OPERATIONS AND IS DOMICILED IN ANY STATE.
(Y) "RULE" MEANS A STATEMENT OF GENERAL OR PARTICULAR APPLICABILITY
AND FUTURE EFFECT PROMULGATED BY THE COMMISSION DESIGNED TO IMPLEMENT,
S. 2811--B 124
INTERPRET OR PRESCRIBE LAW OR POLICY OR DESCRIBING THE ORGANIZATION,
PROCEDURE OR PRACTICE REQUIREMENTS OF THE COMMISSION WHICH SHALL HAVE
THE FORCE AND EFFECT OF LAW IN THE COMPACTING STATES.
(Z) "SINGLE-STATE RISK" MEANS A RISK WITH INSURED EXPOSURES IN ONLY
ONE STATE.
(AA) "STATE" MEANS ANY STATE, DISTRICT OR TERRITORY OF THE UNITED
STATES OF AMERICA.
(BB) "STATE TRANSACTION DOCUMENTATION" MEANS THE INFORMATION REQUIRED
UNDER THE LAWS OF THE HOME STATE TO BE FILED BY SURPLUS LINES LICENSEES
IN ORDER TO REPORT SURPLUS LINES INSURANCE AND VERIFY COMPLIANCE WITH
SURPLUS LINES LAWS AND BY INSUREDS IN ORDER TO REPORT INDEPENDENTLY
PROCURED INSURANCE.
(CC) "SURPLUS LINES INSURANCE" MEANS INSURANCE PROCURED BY A SURPLUS
LINES LICENSEE FROM A SURPLUS LINES INSURER OR OTHER NON-ADMITTED INSUR-
ER AS PERMITTED UNDER THE LAW OF THE HOME STATE. FOR THE PURPOSES OF
THIS COMPACT "SURPLUS LINES INSURANCE" SHALL ALSO MEAN EXCESS LINE
INSURANCE AS THAT TERM IS USED PURSUANT TO SECTION TWO THOUSAND ONE
HUNDRED FIVE OF THIS CHAPTER.
(DD) "SURPLUS LINES INSURER" MEANS A NON-ADMITTED INSURER ELIGIBLE
UNDER THE LAW OF THE HOME STATE TO ACCEPT BUSINESS FROM A SURPLUS LINES
LICENSEE. FOR THE PURPOSES OF THIS COMPACT "SURPLUS LINES INSURER"
SHALL ALSO MEAN AN INSURER WHICH IS PERMITTED TO WRITE SURPLUS LINES
INSURANCE UNDER THE LAWS OF THE STATE WHERE SUCH INSURER IS DOMICILED.
(EE) "SURPLUS LINES LICENSEE" MEANS AN INDIVIDUAL, FIRM OR CORPORATION
LICENSED UNDER THE LAW OF THE HOME STATE TO PLACE SURPLUS LINES INSUR-
ANCE.
S 2904. ESTABLISHMENT OF THE COMMISSION AND VENUE. (A) THE COMPACTING
STATES HEREBY CREATE AND ESTABLISH A JOINT PUBLIC AGENCY KNOWN AS THE
"SURPLUS LINES INSURANCE MULTI-STATE COMPLIANCE COMPACT COMMISSION."
(B) PURSUANT TO SECTION TWO THOUSAND NINE HUNDRED FIVE OF THIS ARTI-
CLE, THE COMMISSION WILL HAVE THE POWER TO ADOPT MANDATORY RULES WHICH
ESTABLISH EXCLUSIVE HOME STATE AUTHORITY REGARDING NON-ADMITTED INSUR-
ANCE OF MULTI-STATE RISKS, ALLOCATION FORMULAS, CLEARINGHOUSE TRANS-
ACTION DATA, A CLEARINGHOUSE FOR RECEIPT AND DISTRIBUTION OF ALLOCATED
PREMIUM TAX AND CLEARINGHOUSE TRANSACTION DATA AND UNIFORM RULEMAKING
PROCEDURES AND RULES FOR THE PURPOSE OF FINANCING, ADMINISTERING, OPER-
ATING AND ENFORCING COMPLIANCE WITH THE PROVISIONS OF THIS COMPACT, ITS
BYLAWS AND RULES.
(C) PURSUANT TO SECTION TWO THOUSAND NINE HUNDRED FIVE OF THIS ARTI-
CLE, THE COMMISSION WILL HAVE THE POWER TO ADOPT MANDATORY RULES ESTAB-
LISHING FOREIGN INSURER ELIGIBILITY REQUIREMENTS AND A CONCISE AND
OBJECTIVE POLICYHOLDER NOTICE REGARDING THE NATURE OF A SURPLUS LINES
PLACEMENT.
(D) THE COMMISSION IS A BODY CORPORATE AND POLITIC AND AN INSTRUMEN-
TALITY OF THE COMPACTING STATES.
(E) THE COMMISSION IS SOLELY RESPONSIBLE FOR ITS LIABILITIES, EXCEPT
AS OTHERWISE SPECIFICALLY PROVIDED IN THIS COMPACT.
(F) VENUE IS PROPER AND JUDICIAL PROCEEDINGS BY OR AGAINST THE COMMIS-
SION SHALL BE BROUGHT SOLELY AND EXCLUSIVELY IN A COURT OF COMPETENT
JURISDICTION WHERE THE PRINCIPAL OFFICE OF THE COMMISSION IS LOCATED.
THE COMMISSION MAY WAIVE VENUE AND JURISDICTIONAL DEFENSES TO THE EXTENT
IT ADOPTS OR CONSENTS TO PARTICIPATE IN ALTERNATIVE DISPUTE RESOLUTION
PROCEEDINGS.
S 2905. AUTHORITY TO ESTABLISH MANDATORY RULES. THE COMMISSION SHALL
ADOPT MANDATORY RULES WHICH ESTABLISH:
S. 2811--B 125
(A) ALLOCATION FORMULAS FOR EACH TYPE OF NON-ADMITTED INSURANCE COVER-
AGE, WHICH ALLOCATION FORMULAS MUST BE USED BY EACH COMPACTING STATE AND
CONTRACTING STATE IN ACQUIRING PREMIUM TAX AND CLEARINGHOUSE TRANSACTION
DATA FROM SURPLUS LINES LICENSEES AND INSUREDS FOR REPORTING TO THE
CLEARINGHOUSE CREATED BY THE COMPACT COMMISSION. SUCH ALLOCATION FORMU-
LAS WILL BE ESTABLISHED WITH INPUT FROM SURPLUS LINES LICENSEES AND BE
BASED UPON READILY AVAILABLE DATA WITH SIMPLICITY AND UNIFORMITY FOR THE
SURPLUS LINES LICENSEE AS A MATERIAL CONSIDERATION.
(B) UNIFORM CLEARINGHOUSE TRANSACTION DATA REPORTING REQUIREMENTS FOR
ALL INFORMATION REPORTED TO THE CLEARINGHOUSE.
(C) METHODS BY WHICH COMPACTING STATES AND CONTRACTING STATES REQUIRE
SURPLUS LINES LICENSEES AND INSUREDS TO PAY PREMIUM TAX AND TO REPORT
CLEARINGHOUSE TRANSACTION DATA TO THE CLEARINGHOUSE, INCLUDING BUT NOT
LIMITED TO PROCESSING CLEARINGHOUSE TRANSACTION DATA THROUGH STATE
STAMPING AND SERVICE OFFICES, STATE INSURANCE DEPARTMENTS, OR OTHER
STATE-DESIGNATED AGENCIES OR ENTITIES.
(D) THAT NON-ADMITTED INSURANCE OF MULTI-STATE RISKS SHALL BE SUBJECT
TO ALL OF THE REGULATORY COMPLIANCE REQUIREMENTS OF THE HOME STATE
EXCLUSIVELY. HOME STATE REGULATORY COMPLIANCE REQUIREMENTS APPLICABLE TO
SURPLUS LINES INSURANCE SHALL INCLUDE, BUT NOT BE LIMITED TO:
(1) PERSONS REQUIRED TO BE LICENSED TO SELL, SOLICIT OR NEGOTIATE
SURPLUS LINES INSURANCE;
(2) INSURER ELIGIBILITY REQUIREMENTS OR OTHER APPROVED NON-ADMITTED
INSURER REQUIREMENTS;
(3) DILIGENT SEARCH; AND
(4) STATE TRANSACTION DOCUMENTATION AND CLEARINGHOUSE TRANSACTION DATA
REGARDING THE PAYMENT OF PREMIUM TAX AS SET FORTH IN THIS COMPACT AND
RULES TO BE ADOPTED BY THE COMMISSION. HOME STATE REGULATORY COMPLIANCE
REQUIREMENTS APPLICABLE TO INDEPENDENTLY PROCURED INSURANCE PLACEMENTS
SHALL INCLUDE, BUT NOT BE LIMITED TO, PROVIDING STATE TRANSACTION
DOCUMENTATION AND CLEARINGHOUSE TRANSACTION DATA REGARDING THE PAYMENT
OF PREMIUM TAX AS SET FORTH IN THIS COMPACT AND RULES TO BE ADOPTED BY
THE COMMISSION.
(E) THAT EACH COMPACTING STATE AND CONTRACTING STATE MAY CHARGE ITS
OWN RATE OF TAXATION ON THE PREMIUM ALLOCATED TO SUCH STATE BASED ON THE
APPLICABLE ALLOCATION FORMULA PROVIDED THAT THE STATE ESTABLISHES ONE
SINGLE RATE OF TAXATION APPLICABLE TO ALL NON-ADMITTED INSURANCE TRANS-
ACTIONS AND NO OTHER TAX, FEE ASSESSMENT OR OTHER CHARGE BY ANY GOVERN-
MENTAL OR QUASI-GOVERNMENTAL AGENCY BE PERMITTED. NOTWITHSTANDING THE
FOREGOING, STAMPING OFFICE FEES MAY BE CHARGED AS A SEPARATE, ADDITIONAL
COST UNLESS SUCH FEES ARE INCORPORATED INTO A STATE'S SINGLE RATE OF
TAXATION.
(F) THAT ANY CHANGE IN THE RATE OF TAXATION BY ANY COMPACTING STATE OR
CONTRACTING STATE BE RESTRICTED TO CHANGES MADE PROSPECTIVELY ON NOT
LESS THAN NINETY DAYS ADVANCE NOTICE TO THE COMPACT COMMISSION.
(G) THAT EACH COMPACTING STATE AND CONTRACTING STATE SHALL REQUIRE
PREMIUM TAX PAYMENTS EITHER ANNUALLY, SEMI-ANNUALLY OR QUARTERLY UTILIZ-
ING ONE OR MORE OF THE FOLLOWING DATES ONLY: MARCH FIRST, JUNE FIRST,
SEPTEMBER FIRST AND DECEMBER FIRST.
(H) THAT EACH COMPACTING STATE AND CONTRACTING STATE PROHIBIT ANY
OTHER STATE AGENCY OR POLITICAL SUBDIVISION FROM REQUIRING SURPLUS LINES
LICENSEES TO PROVIDE CLEARINGHOUSE TRANSACTION DATA AND STATE TRANS-
ACTION DOCUMENTATION OTHER THAN TO THE INSURANCE DEPARTMENT OR TAX OFFI-
CIALS OF THE HOME STATE OR ONE SINGLE DESIGNATED AGENT THEREOF.
(I) THE OBLIGATION OF THE HOME STATE BY ITSELF, THROUGH A DESIGNATED
AGENT, SURPLUS LINES STAMPING OR SERVICE OFFICE, TO COLLECT CLEARING-
S. 2811--B 126
HOUSE TRANSACTION DATA FROM SURPLUS LINES LICENSEES AND FROM INSUREDS
FOR INDEPENDENTLY PROCURED INSURANCE, WHERE APPLICABLE, FOR REPORTING TO
THE CLEARINGHOUSE.
(J) A METHOD FOR THE CLEARINGHOUSE TO PERIODICALLY REPORT TO COMPACT-
ING STATES, CONTRACTING STATES, SURPLUS LINES LICENSEES AND INSUREDS WHO
INDEPENDENTLY PROCURE INSURANCE ALL PREMIUM TAXES OWED TO EACH OF THE
COMPACTING STATES AND CONTRACTING STATES, THE DATES UPON WHICH PAYMENT
OF SUCH PREMIUM TAXES ARE DUE AND A METHOD TO PAY THEM THROUGH THE
CLEARINGHOUSE.
(K) THAT EACH SURPLUS LINES LICENSEE IS REQUIRED TO BE LICENSED ONLY
IN THE HOME STATE OF EACH INSURED FOR WHOM SURPLUS LINES INSURANCE HAS
BEEN PROCURED.
(L) THAT A POLICY CONSIDERED TO BE SURPLUS LINES INSURANCE IN THE
INSURED'S HOME STATE SHALL BE CONSIDERED SURPLUS LINES INSURANCE IN ALL
COMPACTING STATES AND CONTRACTING STATES AND TAXED AS A SURPLUS LINES
TRANSACTION IN ALL STATES TO WHICH A PORTION OF THE RISK IS ALLOCATED.
EACH COMPACTING STATE AND CONTRACTING STATE SHALL REQUIRE EACH SURPLUS
LINES LICENSEE TO PAY TO EVERY OTHER COMPACTING STATE AND CONTRACTING
STATE PREMIUM TAXES ON EACH MULTI-STATE RISK THROUGH THE CLEARINGHOUSE
AT SUCH TAX RATE CHARGED ON SURPLUS LINES TRANSACTIONS IN SUCH OTHER
COMPACTING STATES AND CONTRACTING STATES ON THE PORTION OF THE RISK IN
EACH SUCH COMPACTING STATE AND CONTRACTING STATE AS DETERMINED BY THE
APPLICABLE UNIFORM ALLOCATION FORMULA ADOPTED BY THE COMMISSION. A POLI-
CY CONSIDERED TO BE INDEPENDENTLY PROCURED INSURANCE IN THE INSURED'S
HOME STATE SHALL BE CONSIDERED INDEPENDENTLY PROCURED INSURANCE IN ALL
COMPACTING STATES AND CONTRACTING STATES. EACH COMPACTING STATE AND
CONTRACTING STATE SHALL REQUIRE THE INSURED TO PAY EVERY OTHER COMPACT-
ING STATE AND CONTRACTING STATE THE INDEPENDENTLY PROCURED INSURANCE
PREMIUM TAX ON EACH MULTI-STATE RISK THROUGH THE CLEARINGHOUSE PURSUANT
TO THE UNIFORM ALLOCATION FORMULA ADOPTED BY THE COMMISSION.
(M) UNIFORM FOREIGN INSURER ELIGIBILITY REQUIREMENTS AS AUTHORIZED BY
THE NRRA.
(N) A UNIFORM POLICYHOLDER NOTICE.
(O) UNIFORM TREATMENT OF PURCHASING GROUP SURPLUS LINES INSURANCE
PLACEMENTS.
S 2906. POWERS OF THE COMMISSION. THE COMMISSION SHALL HAVE THE
FOLLOWING POWERS:
(A) TO PROMULGATE RULES AND OPERATING PROCEDURES, PURSUANT TO SECTION
TWO THOUSAND NINE HUNDRED NINE OF THIS ARTICLE, WHICH SHALL HAVE THE
FORCE AND EFFECT OF LAW AND SHALL BE BINDING IN THE COMPACTING STATES TO
THE EXTENT AND IN THE MANNER PROVIDED IN THIS ARTICLE;
(B) TO BRING AND PROSECUTE LEGAL PROCEEDINGS OR ACTIONS IN THE NAME OF
THE COMMISSION, PROVIDED THAT THE STANDING OF ANY STATE INSURANCE
DEPARTMENT TO SUE OR BE SUED UNDER APPLICABLE LAW SHALL NOT BE AFFECTED;
(C) TO ISSUE SUBPOENAS REQUIRING THE ATTENDANCE AND TESTIMONY OF
WITNESSES AND THE PRODUCTION OF EVIDENCE, PROVIDED HOWEVER, THE COMMIS-
SION IS NOT EMPOWERED TO DEMAND OR SUBPOENA RECORDS OR DATA FROM NON-AD-
MITTED INSURERS;
(D) TO ESTABLISH AND MAINTAIN OFFICES, INCLUDING THE CREATION OF A
CLEARINGHOUSE FOR THE RECEIPT OF PREMIUM TAX AND CLEARINGHOUSE TRANS-
ACTION DATA REGARDING NON-ADMITTED INSURANCE OF MULTI-STATE RISKS,
SINGLE-STATE RISKS FOR STATES WHICH ELECT TO REQUIRE SURPLUS LINES
LICENSEES TO PAY PREMIUM TAX ON SINGLE-STATE RISKS THROUGH THE CLEARING-
HOUSE AND TAX REPORTING FORMS;
(E) TO PURCHASE AND MAINTAIN INSURANCE AND BONDS;
S. 2811--B 127
(F) TO BORROW, ACCEPT OR CONTRACT FOR SERVICES OF PERSONNEL, INCLUD-
ING, BUT NOT LIMITED TO, EMPLOYEES OF A COMPACTING STATE OR STAMPING
OFFICE, PURSUANT TO AN OPEN, TRANSPARENT, OBJECTIVE COMPETITIVE PROCESS
AND PROCEDURE ADOPTED BY THE COMMISSION;
(G) TO HIRE EMPLOYEES, PROFESSIONALS OR SPECIALISTS AND ELECT OR
APPOINT OFFICERS AND TO FIX THEIR COMPENSATION, DEFINE THEIR DUTIES AND
GIVE THEM APPROPRIATE AUTHORITY TO CARRY OUT THE PURPOSES OF THE COMPACT
AND DETERMINE THEIR QUALIFICATIONS, PURSUANT TO AN OPEN, TRANSPARENT,
OBJECTIVE COMPETITIVE PROCESS AND PROCEDURE ADOPTED BY THE COMMISSION;
AND TO ESTABLISH THE COMMISSION'S PERSONNEL POLICIES AND PROGRAMS RELAT-
ING TO CONFLICTS OF INTEREST, RATES OF COMPENSATION AND QUALIFICATIONS
OF PERSONNEL AND OTHER RELATED PERSONNEL MATTERS;
(H) TO ACCEPT ANY AND ALL APPROPRIATE DONATIONS AND GRANTS OF MONEY,
EQUIPMENT, SUPPLIES, MATERIALS AND SERVICES AND TO RECEIVE, UTILIZE AND
DISPOSE OF THE SAME; PROVIDED THAT AT ALL TIMES THE COMMISSION SHALL
AVOID ANY APPEARANCE OF IMPROPRIETY AND/OR CONFLICT OF INTEREST;
(I) TO LEASE, PURCHASE, ACCEPT APPROPRIATE GIFTS OR DONATIONS OF, OR
OTHERWISE TO OWN, HOLD, IMPROVE OR USE ANY PROPERTY, REAL, PERSONAL OR
MIXED; PROVIDED THAT AT ALL TIMES THE COMMISSION SHALL AVOID ANY APPEAR-
ANCE OF IMPROPRIETY AND/OR CONFLICT OF INTEREST;
(J) TO SELL, CONVEY, MORTGAGE, PLEDGE, LEASE, EXCHANGE, ABANDON OR
OTHERWISE DISPOSE OF ANY PROPERTY, REAL, PERSONAL OR MIXED;
(K) TO PROVIDE FOR TAX AUDIT RULES AND PROCEDURES FOR THE COMPACTING
STATES WITH RESPECT TO THE ALLOCATION OF PREMIUM TAXES, INCLUDING:
(1) MINIMUM AUDIT STANDARDS, INCLUDING SAMPLING METHODS;
(2) REVIEW OF INTERNAL CONTROLS;
(3) COOPERATION AND SHARING OF AUDIT RESPONSIBILITIES BETWEEN COMPACT-
ING STATES;
(4) HANDLING OF REFUNDS OR CREDITS DUE TO OVERPAYMENTS OR IMPROPER
ALLOCATION OF PREMIUM TAXES;
(5) TAXPAYER RECORDS TO BE REVIEWED INCLUDING A MINIMUM RETENTION
PERIOD; AND
(6) AUTHORITY OF COMPACTING STATES TO REVIEW, CHALLENGE OR RE-AUDIT
TAXPAYER RECORDS.
(L) TO ENFORCE COMPLIANCE BY COMPACTING STATES AND CONTRACTING STATES
WITH RULES AND BYLAWS PURSUANT TO THE AUTHORITY SET FORTH IN SECTION TWO
THOUSAND NINE HUNDRED SEVENTEEN OF THIS ARTICLE;
(M) TO PROVIDE FOR DISPUTE RESOLUTION AMONG COMPACTING STATES AND
CONTRACTING STATES;
(N) TO ADVISE COMPACTING STATES AND CONTRACTING STATES ON TAX-RELATED
ISSUES RELATING TO INSURERS, INSUREDS, SURPLUS LINES LICENSEES, AGENTS
OR BROKERS DOMICILED OR DOING BUSINESS IN NON-COMPACTING STATES,
CONSISTENT WITH THE PURPOSES OF THIS COMPACT;
(O) TO MAKE AVAILABLE ADVICE AND TRAINING TO THOSE PERSONNEL IN STATE
STAMPING OFFICES, STATE INSURANCE DEPARTMENTS OR OTHER STATE DEPARTMENTS
FOR RECORD KEEPING, TAX COMPLIANCE AND TAX ALLOCATIONS; AND TO BE A
RESOURCE FOR STATE INSURANCE DEPARTMENTS AND OTHER STATE DEPARTMENTS;
(P) TO ESTABLISH A BUDGET AND MAKE EXPENDITURES;
(Q) TO BORROW MONEY;
(R) TO APPOINT AND OVERSEE COMMITTEES, INCLUDING ADVISORY COMMITTEES
COMPRISED OF MEMBERS, STATE INSURANCE REGULATORS, STATE LEGISLATORS OR
THEIR REPRESENTATIVES, INSURANCE INDUSTRY AND CONSUMER REPRESENTATIVES
AND SUCH OTHER INTERESTED PERSONS AS MAY BE DESIGNATED IN THIS COMPACT
AND THE BYLAWS;
(S) TO ESTABLISH AN EXECUTIVE COMMITTEE OF NOT LESS THAN SEVEN NOR
MORE THAN FIFTEEN REPRESENTATIVES, WHICH SHALL INCLUDE OFFICERS ELECTED
S. 2811--B 128
BY THE COMMISSION AND SUCH OTHER REPRESENTATIVES AS PROVIDED FOR HEREIN
AND DETERMINED BY THE BYLAWS. REPRESENTATIVES OF THE EXECUTIVE COMMIT-
TEE SHALL SERVE A ONE YEAR TERM. REPRESENTATIVES OF THE EXECUTIVE
COMMITTEE SHALL BE ENTITLED TO ONE VOTE EACH. THE EXECUTIVE COMMITTEE
SHALL HAVE THE POWER TO ACT ON BEHALF OF THE COMMISSION, WITH THE EXCEP-
TION OF RULEMAKING, DURING PERIODS WHEN THE COMMISSION IS NOT IN
SESSION. THE EXECUTIVE COMMITTEE SHALL OVERSEE THE DAY TO DAY ACTIVITIES
OF THE ADMINISTRATION OF THE COMPACT, INCLUDING THE ACTIVITIES OF THE
OPERATIONS COMMITTEE CREATED UNDER THIS ARTICLE AND COMPLIANCE AND
ENFORCEMENT OF THE PROVISIONS OF THE COMPACT, ITS BYLAWS AND RULES AND
SUCH OTHER DUTIES AS PROVIDED HEREIN AND AS DEEMED NECESSARY;
(T) TO ESTABLISH AN OPERATIONS COMMITTEE OF NOT LESS THAN SEVEN AND
NOT MORE THAN FIFTEEN REPRESENTATIVES TO PROVIDE ANALYSIS, ADVICE,
DETERMINATIONS AND RECOMMENDATIONS REGARDING TECHNOLOGY, SOFTWARE AND
SYSTEMS INTEGRATION TO BE ACQUIRED BY THE COMMISSION AND TO PROVIDE
ANALYSIS, ADVICE, DETERMINATIONS AND RECOMMENDATIONS REGARDING THE
ESTABLISHMENT OF MANDATORY RULES TO BE ADOPTED BY THE COMMISSION;
(U) TO ENTER INTO CONTRACTS WITH CONTRACTING STATES SO THAT CONTRACT-
ING STATES CAN UTILIZE THE SERVICES OF AND FULLY PARTICIPATE IN THE
CLEARINGHOUSE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN SUCH
CONTRACTS;
(V) TO ADOPT AND USE A CORPORATE SEAL; AND
(W) TO PERFORM SUCH OTHER FUNCTIONS AS MAY BE NECESSARY OR APPROPRIATE
TO ACHIEVE THE PURPOSES OF THIS COMPACT CONSISTENT WITH THE STATE REGU-
LATION OF THE BUSINESS OF INSURANCE.
S 2907. ORGANIZATION OF THE COMMISSION. (A) (1) EACH COMPACTING STATE
SHALL HAVE AND BE LIMITED TO ONE MEMBER. EACH STATE SHALL DETERMINE THE
QUALIFICATIONS AND THE METHOD BY WHICH IT SELECTS A MEMBER AND SET FORTH
THE SELECTION PROCESS IN THE ENABLING PROVISION OF THE LEGISLATION WHICH
ENACTS THIS COMPACT. IN THE ABSENCE OF SUCH A PROVISION THE MEMBER SHALL
BE APPOINTED BY THE GOVERNOR OF SUCH COMPACTING STATE. ANY MEMBER MAY BE
REMOVED OR SUSPENDED FROM OFFICE AS PROVIDED BY THE LAW OF THE STATE
FROM WHICH HE OR SHE SHALL BE APPOINTED. ANY VACANCY OCCURRING IN THE
COMMISSION SHALL BE FILLED IN ACCORDANCE WITH THE LAWS OF THE COMPACTING
STATE WHEREIN THE VACANCY EXISTS.
(2) EACH MEMBER SHALL BE ENTITLED TO ONE VOTE AND SHALL OTHERWISE HAVE
AN OPPORTUNITY TO PARTICIPATE IN THE GOVERNANCE OF THE COMMISSION IN
ACCORDANCE WITH THE BYLAWS.
(3) THE COMMISSION SHALL, BY A MAJORITY VOTE OF THE MEMBERS, PRESCRIBE
BYLAWS TO GOVERN ITS CONDUCT AS MAY BE NECESSARY OR APPROPRIATE TO CARRY
OUT THE PURPOSES AND EXERCISE THE POWERS OF THE COMPACT INCLUDING, BUT
NOT LIMITED TO:
(A) ESTABLISHING THE FISCAL YEAR OF THE COMMISSION;
(B) PROVIDING REASONABLE PROCEDURES FOR HOLDING MEETINGS OF THE
COMMISSION, THE EXECUTIVE COMMITTEE, AND THE OPERATIONS COMMITTEE;
(C) PROVIDING REASONABLE STANDARDS AND PROCEDURES:
(I) FOR THE ESTABLISHMENT AND MEETINGS OF COMMITTEES, AND
(II) GOVERNING ANY GENERAL OR SPECIFIC DELEGATION OF ANY AUTHORITY OR
FUNCTION OF THE COMMISSION;
(D) PROVIDING REASONABLE PROCEDURES FOR CALLING AND CONDUCTING MEET-
INGS OF THE COMMISSION THAT CONSIST OF A MAJORITY OF COMMISSION MEMBERS,
ENSURING REASONABLE ADVANCE NOTICE OF EACH SUCH MEETING AND PROVIDING
FOR THE RIGHT OF CITIZENS TO ATTEND EACH SUCH MEETING WITH ENUMERATED
EXCEPTIONS DESIGNED TO PROTECT THE PUBLIC'S INTEREST, THE PRIVACY OF
INDIVIDUALS AND INSURERS' AND SURPLUS LINES LICENSEES' PROPRIETARY
INFORMATION, INCLUDING TRADE SECRETS. THE COMMISSION MAY MEET IN CAMERA
S. 2811--B 129
ONLY AFTER A MAJORITY OF THE ENTIRE MEMBERSHIP VOTES TO CLOSE A MEETING
IN TOTO OR IN PART. AS SOON AS PRACTICABLE, THE COMMISSION MUST MAKE
PUBLIC:
(I) A COPY OF THE VOTE TO CLOSE THE MEETING REVEALING THE VOTE OF EACH
MEMBER WITH NO PROXY VOTES ALLOWED, AND
(II) VOTES TAKEN DURING SUCH MEETING;
(E) ESTABLISHING THE TITLES, DUTIES AND AUTHORITY AND REASONABLE
PROCEDURES FOR THE ELECTION OF THE OFFICERS OF THE COMMISSION;
(F) PROVIDING REASONABLE STANDARDS AND PROCEDURES FOR THE ESTABLISH-
MENT OF THE PERSONNEL POLICIES AND PROGRAMS OF THE COMMISSION. NOTWITH-
STANDING ANY CIVIL SERVICE OR OTHER SIMILAR LAWS OF ANY COMPACTING
STATE, THE BYLAWS SHALL EXCLUSIVELY GOVERN THE PERSONNEL POLICIES AND
PROGRAMS OF THE COMMISSION;
(G) PROMULGATING A CODE OF ETHICS TO ADDRESS PERMISSIBLE AND PROHIBIT-
ED ACTIVITIES OF COMMISSION MEMBERS AND EMPLOYEES; AND
(H) PROVIDING A MECHANISM FOR WINDING UP THE OPERATIONS OF THE COMMIS-
SION AND THE EQUITABLE DISPOSITION OF ANY EXCESS FUNDS THAT MAY EXIST
AFTER THE TERMINATION OF THE COMPACT AFTER THE PAYMENT AND/OR RESERVING
OF ALL OF ITS DEBTS AND OBLIGATIONS;
(4) THE COMMISSION SHALL PUBLISH ITS BYLAWS IN A CONVENIENT FORM AND
FILE A COPY THEREOF AND A COPY OF ANY AMENDMENT THERETO WITH THE APPRO-
PRIATE AGENCY OR OFFICER IN EACH OF THE COMPACTING STATES.
(B) (1) AN EXECUTIVE COMMITTEE OF THE COMMISSION ("EXECUTIVE COMMIT-
TEE") SHALL BE ESTABLISHED. ALL ACTIONS OF THE EXECUTIVE COMMITTEE,
INCLUDING COMPLIANCE AND ENFORCEMENT ARE SUBJECT TO THE REVIEW AND
RATIFICATION OF THE COMMISSION AS PROVIDED IN THE BYLAWS. THE EXECUTIVE
COMMITTEE SHALL HAVE NO MORE THAN FIFTEEN REPRESENTATIVES OR ONE FOR
EACH STATE IF THERE ARE LESS THAN FIFTEEN COMPACTING STATES, WHO SHALL
SERVE FOR A TERM AND BE ESTABLISHED IN ACCORDANCE WITH THE BYLAWS.
(2) THE EXECUTIVE COMMITTEE SHALL HAVE SUCH AUTHORITY AND DUTIES AS
MAY BE SET FORTH IN THE BYLAWS, INCLUDING BUT NOT LIMITED TO:
(A) MANAGING THE AFFAIRS OF THE COMMISSION IN A MANNER CONSISTENT WITH
THE BYLAWS AND PURPOSES OF THE COMMISSION;
(B) ESTABLISHING AND OVERSEEING AN ORGANIZATIONAL STRUCTURE WITHIN AND
APPROPRIATE PROCEDURES FOR THE COMMISSION TO PROVIDE FOR THE CREATION OF
RULES AND OPERATING PROCEDURES;
(C) OVERSEEING THE OFFICES OF THE COMMISSION; AND
(D) PLANNING, IMPLEMENTING AND COORDINATING COMMUNICATIONS AND ACTIV-
ITIES WITH OTHER STATE, FEDERAL AND LOCAL GOVERNMENT ORGANIZATIONS IN
ORDER TO ADVANCE THE GOALS OF THE COMMISSION.
(3) THE COMMISSION SHALL ANNUALLY ELECT OFFICERS FROM THE EXECUTIVE
COMMITTEE, WITH EACH HAVING SUCH AUTHORITY AND DUTIES AS MAY BE SPECI-
FIED IN THE BYLAWS.
(4) THE EXECUTIVE COMMITTEE MAY, SUBJECT TO THE APPROVAL OF THE
COMMISSION, APPOINT OR RETAIN AN EXECUTIVE DIRECTOR FOR SUCH PERIOD,
UPON SUCH TERMS AND CONDITIONS AND FOR SUCH COMPENSATION AS THE COMMIS-
SION MAY DEEM APPROPRIATE. THE EXECUTIVE DIRECTOR SHALL SERVE AS SECRE-
TARY TO THE COMMISSION BUT SHALL NOT BE A MEMBER OF THE COMMISSION. THE
EXECUTIVE DIRECTOR SHALL HIRE AND SUPERVISE SUCH OTHER PERSONS AS MAY BE
AUTHORIZED BY THE COMMISSION.
(C) (1) AN OPERATIONS COMMITTEE SHALL BE ESTABLISHED. ALL ACTIONS OF
THE OPERATIONS COMMITTEE ARE SUBJECT TO THE REVIEW AND OVERSIGHT OF THE
COMMISSION AND THE EXECUTIVE COMMITTEE AND MUST BE APPROVED BY THE
COMMISSION. THE EXECUTIVE COMMITTEE WILL ACCEPT THE DETERMINATIONS AND
RECOMMENDATIONS OF THE OPERATIONS COMMITTEE UNLESS GOOD CAUSE IS SHOWN
WHY SUCH DETERMINATIONS AND RECOMMENDATIONS SHOULD NOT BE APPROVED. ANY
S. 2811--B 130
DISPUTES AS TO WHETHER GOOD CAUSE EXISTS TO REJECT ANY DETERMINATION OR
RECOMMENDATION OF THE OPERATIONS COMMITTEE SHALL BE RESOLVED BY THE
MAJORITY VOTE OF THE COMMISSION. THE OPERATIONS COMMITTEE SHALL HAVE NO
MORE THAN FIFTEEN REPRESENTATIVES OR ONE FOR EACH STATE IF THERE ARE
LESS THAN FIFTEEN COMPACTING STATES, WHO SHALL SERVE FOR A TERM AND
SHALL BE ESTABLISHED AS SET FORTH IN THE BYLAWS. THE OPERATIONS COMMIT-
TEE SHALL HAVE RESPONSIBILITY FOR:
(A) EVALUATING TECHNOLOGY REQUIREMENTS FOR THE CLEARINGHOUSE, ASSESS-
ING EXISTING SYSTEMS USED BY STATE REGULATORY AGENCIES AND STATE STAMP-
ING OFFICES TO MAXIMIZE THE EFFICIENCY AND SUCCESSFUL INTEGRATION OF THE
CLEARINGHOUSE TECHNOLOGY SYSTEMS WITH STATE AND STATE STAMPING OFFICE
TECHNOLOGY PLATFORMS AND TO MINIMIZE COSTS TO THE STATES, STATE STAMPING
OFFICES AND THE CLEARINGHOUSE;
(B) MAKING RECOMMENDATIONS TO THE EXECUTIVE COMMITTEE BASED ON ITS
ANALYSIS AND DETERMINATION OF THE CLEARINGHOUSE TECHNOLOGY REQUIREMENTS
AND COMPATIBILITY WITH EXISTING STATE AND STATE STAMPING OFFICE SYSTEMS;
(C) EVALUATING THE MOST SUITABLE PROPOSALS FOR ADOPTION AS MANDATORY
RULES, ASSESSING SUCH PROPOSALS FOR EASE OF INTEGRATION BY STATES AND
LIKELIHOOD OF SUCCESSFUL IMPLEMENTATION AND TO REPORT TO THE EXECUTIVE
COMMITTEE ITS DETERMINATIONS AND RECOMMENDATIONS; AND
(D) SUCH OTHER DUTIES AND RESPONSIBILITIES AS ARE DELEGATED TO IT BY
THE BYLAWS, THE EXECUTIVE COMMITTEE OR THE COMMISSION.
(2) ALL REPRESENTATIVES OF THE OPERATIONS COMMITTEE SHALL BE INDIVID-
UALS WHO HAVE EXTENSIVE EXPERIENCE AND/OR EMPLOYMENT IN THE SURPLUS
LINES INSURANCE BUSINESS, INCLUDING, BUT NOT LIMITED TO, EXECUTIVES AND
ATTORNEYS EMPLOYED BY SURPLUS LINES INSURERS, SURPLUS LINES LICENSEES,
LAW FIRMS, STATE INSURANCE DEPARTMENTS AND/OR STATE STAMPING OFFICES.
OPERATIONS COMMITTEE REPRESENTATIVES FROM COMPACTING STATES WHICH
UTILIZE THE SERVICES OF A STATE STAMPING OFFICE MUST APPOINT THE CHIEF
OPERATING OFFICER OR A SENIOR MANAGER OF THE STATE STAMPING OFFICE TO
THE OPERATIONS COMMITTEE.
(D) (1) A LEGISLATIVE COMMITTEE COMPRISED OF STATE LEGISLATORS OR
THEIR DESIGNEES SHALL BE ESTABLISHED TO MONITOR THE OPERATIONS OF AND
MAKE RECOMMENDATIONS TO THE COMMISSION, INCLUDING THE EXECUTIVE COMMIT-
TEE; PROVIDED THAT THE MANNER OF SELECTION AND TERM OF ANY LEGISLATIVE
COMMITTEE MEMBER SHALL BE AS SET FORTH IN THE BYLAWS. PRIOR TO THE
ADOPTION BY THE COMMISSION OF ANY UNIFORM STANDARD, REVISION TO THE
BYLAWS, ANNUAL BUDGET OR OTHER SIGNIFICANT MATTER AS MAY BE PROVIDED IN
THE BYLAWS, THE EXECUTIVE COMMITTEE SHALL CONSULT WITH AND REPORT TO THE
LEGISLATIVE COMMITTEE.
(2) THE COMMISSION MAY ESTABLISH ADDITIONAL ADVISORY COMMITTEES AS ITS
BYLAWS MAY PROVIDE FOR THE CARRYING OUT OF ITS FUNCTIONS.
(E) THE COMMISSION SHALL MAINTAIN ITS CORPORATE BOOKS AND RECORDS IN
ACCORDANCE WITH THE BYLAWS.
(F) (1) THE MEMBERS, OFFICERS, EXECUTIVE DIRECTOR, EMPLOYEES AND
REPRESENTATIVES OF THE COMMISSION, THE EXECUTIVE COMMITTEE AND ANY OTHER
COMMITTEE OF THE COMMISSION SHALL BE IMMUNE FROM SUIT AND LIABILITY,
EITHER PERSONALLY OR IN THEIR OFFICIAL CAPACITY, FOR ANY CLAIM FOR
DAMAGE TO OR LOSS OF PROPERTY OR PERSONAL INJURY OR OTHER CIVIL LIABIL-
ITY CAUSED BY OR ARISING OUT OF ANY ACTUAL OR ALLEGED ACT, ERROR OR
OMISSION THAT OCCURRED, OR THAT THE PERSON AGAINST WHOM THE CLAIM IS
MADE HAD A REASONABLE BASIS FOR BELIEVING OCCURRED, WITHIN THE SCOPE OF
COMMISSION EMPLOYMENT, DUTIES OR RESPONSIBILITIES; PROVIDED THAT NOTHING
IN THIS PARAGRAPH SHALL BE CONSTRUED TO PROTECT ANY SUCH PERSON FROM
SUIT AND/OR LIABILITY FOR ANY DAMAGE, LOSS, INJURY OR LIABILITY CAUSED
BY THE INTENTIONAL OR WILLFUL OR WANTON MISCONDUCT OF THAT PERSON.
S. 2811--B 131
(2) THE COMMISSION SHALL DEFEND ANY MEMBER, OFFICER, EXECUTIVE DIREC-
TOR, EMPLOYEE OR REPRESENTATIVE OF THE COMMISSION, THE EXECUTIVE COMMIT-
TEE OR ANY OTHER COMMITTEE OF THE COMMISSION IN ANY CIVIL ACTION SEEKING
TO IMPOSE LIABILITY ARISING OUT OF ANY ACTUAL OR ALLEGED ACT, ERROR OR
OMISSION THAT OCCURRED WITHIN THE SCOPE OF COMMISSION EMPLOYMENT, DUTIES
OR RESPONSIBILITIES OR THAT THE PERSON AGAINST WHOM THE CLAIM IS MADE
HAD A REASONABLE BASIS FOR BELIEVING OCCURRED WITHIN THE SCOPE OF
COMMISSION EMPLOYMENT, DUTIES OR RESPONSIBILITIES; PROVIDED THAT NOTHING
HEREIN SHALL BE CONSTRUED TO PROHIBIT THAT PERSON FROM RETAINING HIS OR
HER OWN COUNSEL; AND PROVIDED FURTHER, THAT THE ACTUAL OR ALLEGED ACT,
ERROR OR OMISSION DID NOT RESULT FROM THAT PERSON'S INTENTIONAL OR WILL-
FUL OR WANTON MISCONDUCT.
(3) THE COMMISSION SHALL INDEMNIFY AND HOLD HARMLESS ANY MEMBER, OFFI-
CER, EXECUTIVE DIRECTOR, EMPLOYEE OR REPRESENTATIVE OF THE COMMISSION,
EXECUTIVE COMMITTEE OR ANY OTHER COMMITTEE OF THE COMMISSION FOR THE
AMOUNT OF ANY SETTLEMENT OR JUDGMENT OBTAINED AGAINST THAT PERSON ARIS-
ING OUT OF ANY ACTUAL OR ALLEGED ACT, ERROR OR OMISSION THAT OCCURRED
WITHIN THE SCOPE OF COMMISSION EMPLOYMENT, DUTIES OR RESPONSIBILITIES OR
THAT SUCH PERSON HAD A REASONABLE BASIS FOR BELIEVING OCCURRED WITHIN
THE SCOPE OF COMMISSION EMPLOYMENT, DUTIES OR RESPONSIBILITIES, PROVIDED
THAT THE ACTUAL OR ALLEGED ACT, ERROR OR OMISSION DID NOT RESULT FROM
THE INTENTIONAL OR WILLFUL OR WANTON MISCONDUCT OF THAT PERSON.
S 2908. MEETINGS AND ACTS OF THE COMMISSION. (A) THE COMMISSION SHALL
MEET AND TAKE SUCH ACTIONS AS ARE CONSISTENT WITH THE PROVISIONS OF THIS
COMPACT AND THE BYLAWS.
(B) EACH MEMBER OF THE COMMISSION SHALL HAVE THE RIGHT AND POWER TO
CAST A VOTE TO WHICH THAT COMPACTING STATE IS ENTITLED AND TO PARTIC-
IPATE IN THE BUSINESS AND AFFAIRS OF THE COMMISSION. A MEMBER SHALL VOTE
IN PERSON OR BY SUCH OTHER MEANS AS PROVIDED IN THE BYLAWS. THE BYLAWS
MAY PROVIDE FOR MEMBERS' PARTICIPATION IN MEETINGS BY TELEPHONE OR OTHER
MEANS OF COMMUNICATION.
(C) THE COMMISSION SHALL MEET AT LEAST ONCE DURING EACH CALENDAR YEAR.
ADDITIONAL MEETINGS SHALL BE HELD AS SET FORTH IN THE BYLAWS.
(D) PUBLIC NOTICE SHALL BE GIVEN OF ALL MEETINGS AND ALL MEETINGS
SHALL BE OPEN TO THE PUBLIC, EXCEPT AS SET FORTH IN THE RULES OR OTHER-
WISE PROVIDED IN THE COMPACT.
(E) THE COMMISSION SHALL PROMULGATE RULES CONCERNING ITS MEETINGS
CONSISTENT WITH THE PRINCIPLES CONTAINED IN THE GOVERNMENT IN THE
SUNSHINE ACT, 5 U.S.C. S 552B, AS MAY BE AMENDED.
(F) THE COMMISSION AND ITS COMMITTEES MAY CLOSE A MEETING, OR PORTION
THEREOF, WHERE IT DETERMINES BY MAJORITY VOTE THAT AN OPEN MEETING WOULD
BE LIKELY TO:
(1) RELATE SOLELY TO THE COMMISSION'S INTERNAL PERSONNEL PRACTICES AND
PROCEDURES;
(2) DISCLOSE MATTERS SPECIFICALLY EXEMPTED FROM DISCLOSURE BY FEDERAL
AND STATE STATUTE;
(3) DISCLOSE TRADE SECRETS OR COMMERCIAL OR FINANCIAL INFORMATION
WHICH IS PRIVILEGED OR CONFIDENTIAL;
(4) INVOLVE ACCUSING A PERSON OF A CRIME, OR FORMALLY CENSURING A
PERSON;
(5) DISCLOSE INFORMATION OF A PERSONAL NATURE WHERE DISCLOSURE WOULD
CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY;
(6) DISCLOSE INVESTIGATIVE RECORDS COMPILED FOR LAW ENFORCEMENT
PURPOSES; OR
(7) SPECIFICALLY RELATE TO THE COMMISSION'S ISSUANCE OF A SUBPOENA OR
ITS PARTICIPATION IN A CIVIL ACTION OR OTHER LEGAL PROCEEDING.
S. 2811--B 132
(G) FOR A MEETING, OR PORTION OF A MEETING, CLOSED PURSUANT TO
SUBSECTION (F) OF THIS SECTION, THE COMMISSION'S LEGAL COUNSEL OR DESIG-
NEE SHALL CERTIFY THAT THE MEETING MAY BE CLOSED AND SHALL REFERENCE
EACH RELEVANT EXEMPTIVE PROVISION. THE COMMISSION SHALL KEEP MINUTES
WHICH SHALL FULLY AND CLEARLY DESCRIBE ALL MATTERS DISCUSSED IN A MEET-
ING AND SHALL PROVIDE A FULL AND ACCURATE SUMMARY OF ACTIONS TAKEN AND
THE REASONS THEREFORE, INCLUDING A DESCRIPTION OF THE VIEWS EXPRESSED
AND THE RECORD OF A ROLL CALL VOTE. ALL DOCUMENTS CONSIDERED IN
CONNECTION WITH AN ACTION SHALL BE IDENTIFIED IN SUCH MINUTES. ALL
MINUTES AND DOCUMENTS OF A CLOSED MEETING SHALL REMAIN UNDER SEAL,
SUBJECT TO RELEASE BY A MAJORITY VOTE OF THE COMMISSION.
S 2909. RULEMAKING FUNCTIONS OF THE COMMISSION. (A) THE COMMISSION
SHALL PROMULGATE REASONABLE RULES IN ORDER TO EFFECTIVELY AND EFFICIENT-
LY ACHIEVE THE PURPOSES OF THIS COMPACT. NOTWITHSTANDING THE FOREGOING,
IN THE EVENT THE COMMISSION EXERCISES ITS RULEMAKING AUTHORITY IN A
MANNER THAT IS BEYOND THE SCOPE OF THE PURPOSES OF THIS ARTICLE OR THE
POWERS GRANTED HEREUNDER, THEN SUCH AN ACTION BY THE COMMISSION SHALL BE
INVALID AND HAVE NO FORCE OR EFFECT.
(B) RULES SHALL BE MADE PURSUANT TO A RULEMAKING PROCESS THAT SUBSTAN-
TIALLY CONFORMS TO THE MODEL STATE ADMINISTRATIVE PROCEDURE ACT OF 1981,
FOUND IN VOLUME FIFTEEN OF THE UNIFORM LAWS ANNOTATED, AS AMENDED, AS
MAY BE APPROPRIATE TO THE OPERATIONS OF THE COMMISSION.
(C) ALL RULES AND AMENDMENTS THERETO SHALL BECOME EFFECTIVE AS OF THE
DATE SPECIFIED IN EACH RULE, OPERATING PROCEDURE OR AMENDMENT.
(D) NOT LATER THAN THIRTY DAYS AFTER A RULE IS PROMULGATED, ANY PERSON
MAY FILE A PETITION FOR JUDICIAL REVIEW OF THE RULE; PROVIDED THAT THE
FILING OF SUCH A PETITION SHALL NOT STAY OR OTHERWISE PREVENT THE RULE
FROM BECOMING EFFECTIVE UNLESS THE COURT FINDS THAT THE PETITIONER HAS A
SUBSTANTIAL LIKELIHOOD OF SUCCESS. THE COURT SHALL GIVE DEFERENCE TO THE
ACTIONS OF THE COMMISSION CONSISTENT WITH APPLICABLE LAW AND SHALL NOT
FIND THE RULE TO BE UNLAWFUL IF THE RULE REPRESENTS A REASONABLE EXER-
CISE OF THE COMMISSION'S AUTHORITY.
S 2910. COMMISSION RECORDS AND ENFORCEMENT. (A) THE COMMISSION SHALL
PROMULGATE RULES ESTABLISHING CONDITIONS AND PROCEDURES FOR PUBLIC
INSPECTION AND COPYING OF ITS INFORMATION AND OFFICIAL RECORDS, EXCEPT
SUCH INFORMATION AND RECORDS INVOLVING THE PRIVACY OF INDIVIDUALS,
INSURERS, INSUREDS OR SURPLUS LINES LICENSEE TRADE SECRETS. STATE TRANS-
ACTION DOCUMENTATION AND CLEARINGHOUSE TRANSACTION DATA COLLECTED BY THE
CLEARINGHOUSE SHALL BE USED FOR ONLY THOSE PURPOSES EXPRESSED IN OR
REASONABLY IMPLIED UNDER THE PROVISIONS OF THIS COMPACT AND THE COMMIS-
SION SHALL AFFORD THIS DATA THE BROADEST PROTECTIONS AS PERMITTED BY ANY
APPLICABLE LAW FOR PROPRIETARY INFORMATION, TRADE SECRETS OR PERSONAL
DATA. THE COMMISSION MAY PROMULGATE ADDITIONAL RULES UNDER WHICH IT MAY
MAKE AVAILABLE TO FEDERAL AND STATE AGENCIES, INCLUDING LAW ENFORCEMENT
AGENCIES, RECORDS AND INFORMATION OTHERWISE EXEMPT FROM DISCLOSURE AND
MAY ENTER INTO AGREEMENTS WITH SUCH AGENCIES TO RECEIVE OR EXCHANGE
INFORMATION OR RECORDS SUBJECT TO NONDISCLOSURE AND CONFIDENTIALITY
PROVISIONS.
(B) EXCEPT AS TO PRIVILEGED RECORDS, DATA AND INFORMATION, THE LAWS OF
ANY COMPACTING STATE PERTAINING TO CONFIDENTIALITY OR NONDISCLOSURE
SHALL NOT RELIEVE ANY COMPACTING STATE MEMBER OF THE DUTY TO DISCLOSE
ANY RELEVANT RECORDS, DATA OR INFORMATION TO THE COMMISSION; PROVIDED
THAT DISCLOSURE TO THE COMMISSION SHALL NOT BE DEEMED TO WAIVE OR OTHER-
WISE AFFECT ANY CONFIDENTIALITY REQUIREMENT AND FURTHER PROVIDED THAT,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS ARTICLE, THE COMMISSION
SHALL NOT BE SUBJECT TO THE COMPACTING STATE'S LAWS PERTAINING TO CONFI-
S. 2811--B 133
DENTIALITY AND NONDISCLOSURE WITH RESPECT TO RECORDS, DATA AND INFORMA-
TION IN ITS POSSESSION. CONFIDENTIAL INFORMATION OF THE COMMISSION
SHALL REMAIN CONFIDENTIAL AFTER SUCH INFORMATION IS PROVIDED TO ANY
MEMBER, AND THE COMMISSION SHALL MAINTAIN THE CONFIDENTIALITY OF ANY
INFORMATION PROVIDED BY A MEMBER THAT IS CONFIDENTIAL UNDER THAT
MEMBER'S STATE LAW.
(C) THE COMMISSION SHALL MONITOR COMPACTING STATES FOR COMPLIANCE WITH
DULY ADOPTED BYLAWS AND RULES. THE COMMISSION SHALL NOTIFY ANY NON-COM-
PLYING COMPACTING STATE IN WRITING OF ITS NONCOMPLIANCE WITH COMMISSION
BYLAWS OR RULES. IF A NON-COMPLYING COMPACTING STATE FAILS TO REMEDY
ITS NONCOMPLIANCE WITHIN THE TIME SPECIFIED IN THE NOTICE OF NONCOMPLI-
ANCE, THE COMPACTING STATE SHALL BE DEEMED TO BE IN DEFAULT AS SET FORTH
IN SECTION TWO THOUSAND NINE HUNDRED FIFTEEN OF THIS ARTICLE.
S 2911. DISPUTE RESOLUTION. (A) BEFORE A MEMBER MAY BRING AN ACTION IN
A COURT OF COMPETENT JURISDICTION FOR VIOLATION OF ANY PROVISION, STAND-
ARD OR REQUIREMENT OF THE COMPACT, THE COMMISSION SHALL ATTEMPT, UPON
THE REQUEST OF A MEMBER, TO RESOLVE ANY DISPUTES OR OTHER ISSUES THAT
ARE SUBJECT TO THIS COMPACT AND WHICH MAY ARISE BETWEEN TWO OR MORE
COMPACTING STATES, CONTRACTING STATES OR NON-COMPACTING STATES AND THE
COMMISSION SHALL PROMULGATE A RULE PROVIDING ALTERNATIVE DISPUTE RESOL-
UTION PROCEDURES FOR SUCH DISPUTES.
(B) THE COMMISSION SHALL ALSO PROVIDE ALTERNATIVE DISPUTE RESOLUTION
PROCEDURES TO RESOLVE ANY DISPUTES BETWEEN INSUREDS OR SURPLUS LINES
LICENSEES CONCERNING A TAX CALCULATION OR ALLOCATION OR RELATED ISSUES
WHICH ARE THE SUBJECT OF THIS COMPACT.
(C) ANY ALTERNATIVE DISPUTE RESOLUTION PROCEDURES SHALL BE UTILIZED IN
CIRCUMSTANCES WHERE A DISPUTE ARISES AS TO WHICH STATE CONSTITUTES THE
HOME STATE.
S 2912. REVIEW OF COMMISSION DECISIONS. REGARDING COMMISSION DECI-
SIONS:
(A) EXCEPT AS NECESSARY FOR PROMULGATING RULES TO FULFILL THE PURPOSES
OF THIS COMPACT, THE COMMISSION SHALL NOT HAVE AUTHORITY TO OTHERWISE
REGULATE INSURANCE IN THE COMPACTING STATES.
(B) NOT LATER THAN THIRTY DAYS AFTER THE COMMISSION HAS GIVEN NOTICE
OF ANY RULE OR ALLOCATION FORMULA, ANY THIRD PARTY FILER OR COMPACTING
STATE MAY APPEAL THE DETERMINATION TO A REVIEW PANEL APPOINTED BY THE
COMMISSION. THE COMMISSION SHALL PROMULGATE RULES TO ESTABLISH PROCE-
DURES FOR APPOINTING SUCH REVIEW PANELS AND PROVIDE FOR NOTICE AND HEAR-
ING. AN ALLEGATION THAT THE COMMISSION, IN MAKING COMPLIANCE OR TAX
DETERMINATIONS ACTED ARBITRARILY, CAPRICIOUSLY OR IN A MANNER THAT IS AN
ABUSE OF DISCRETION OR OTHERWISE NOT IN ACCORDANCE WITH THE LAW, IS
SUBJECT TO JUDICIAL REVIEW IN ACCORDANCE WITH SUBSECTION (F) OF SECTION
TWO THOUSAND NINE HUNDRED FOUR OF THIS ARTICLE.
(C) THE COMMISSION SHALL HAVE AUTHORITY TO MONITOR, REVIEW AND RECON-
SIDER COMMISSION DECISIONS UPON A FINDING THAT THE DETERMINATIONS OR
ALLOCATIONS DO NOT MEET THE RELEVANT RULE. WHERE APPROPRIATE, THE
COMMISSION MAY WITHDRAW OR MODIFY ITS DETERMINATION OR ALLOCATION AFTER
PROPER NOTICE AND HEARING, SUBJECT TO THE APPEAL PROCESS SET FORTH IN
SUBSECTION (B) OF THIS SECTION.
S 2913. FINANCE. (A) THE COMMISSION SHALL PAY OR PROVIDE FOR THE
PAYMENT OF THE REASONABLE EXPENSES OF ITS ESTABLISHMENT AND ORGANIZA-
TION. TO FUND THE COST OF ITS INITIAL OPERATIONS THE COMMISSION MAY
ACCEPT CONTRIBUTIONS, GRANTS AND OTHER FORMS OF FUNDING FROM THE STATE
STAMPING OFFICES, COMPACTING STATES AND OTHER SOURCES.
(B) THE COMMISSION SHALL COLLECT A FEE PAYABLE BY THE INSURED DIRECTLY
OR THROUGH A SURPLUS LINES LICENSEE ON EACH TRANSACTION PROCESSED
S. 2811--B 134
THROUGH THE COMPACT CLEARINGHOUSE TO COVER THE COST OF THE OPERATIONS
AND ACTIVITIES OF THE COMMISSION AND ITS STAFF IN A TOTAL AMOUNT SUFFI-
CIENT TO COVER THE COMMISSION'S ANNUAL BUDGET.
(C) THE COMMISSION'S BUDGET FOR A FISCAL YEAR SHALL NOT BE APPROVED
UNTIL IT HAS BEEN SUBJECT TO NOTICE AND COMMENT AS SET FORTH IN SECTION
TWO THOUSAND NINE HUNDRED NINE OF THIS ARTICLE.
(D) THE COMMISSION SHALL BE REGARDED AS PERFORMING ESSENTIAL GOVERN-
MENTAL FUNCTIONS IN EXERCISING SUCH POWERS AND FUNCTIONS AND IN CARRYING
OUT THE PROVISIONS OF THIS COMPACT AND OF ANY LAW RELATING THERETO AND
SHALL NOT BE REQUIRED TO PAY ANY TAXES OR ASSESSMENTS OF ANY CHARACTER
LEVIED BY ANY STATE OR POLITICAL SUBDIVISION THEREOF UPON ANY OF THE
PROPERTY USED BY IT FOR SUCH PURPOSES OR ANY INCOME OR REVENUE THERE-
FROM, INCLUDING ANY PROFIT FROM A SALE OR EXCHANGE.
(E) THE COMMISSION SHALL KEEP COMPLETE AND ACCURATE ACCOUNTS OF ALL
ITS INTERNAL RECEIPTS, INCLUDING GRANTS AND DONATIONS AND DISBURSEMENTS
FOR ALL FUNDS UNDER ITS CONTROL. THE INTERNAL FINANCIAL ACCOUNTS OF THE
COMMISSION SHALL BE SUBJECT TO THE ACCOUNTING PROCEDURES ESTABLISHED
UNDER ITS BYLAWS. THE FINANCIAL ACCOUNTS AND REPORTS INCLUDING THE
SYSTEM OF INTERNAL CONTROLS AND PROCEDURES OF THE COMMISSION SHALL BE
AUDITED ANNUALLY BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT. UPON THE
DETERMINATION OF THE COMMISSION, BUT NOT LESS FREQUENTLY THAN EVERY
THREE YEARS, THE REVIEW OF THE INDEPENDENT AUDITOR SHALL INCLUDE A
MANAGEMENT AND PERFORMANCE AUDIT OF THE COMMISSION. THE COMMISSION SHALL
MAKE AN ANNUAL REPORT TO THE GOVERNOR AND LEGISLATURE OF THE COMPACTING
STATES, WHICH SHALL INCLUDE A REPORT OF THE INDEPENDENT AUDIT. THE
COMMISSION'S INTERNAL ACCOUNTS SHALL NOT BE CONFIDENTIAL AND SUCH MATE-
RIALS MAY BE SHARED WITH THE COMMISSIONER, THE CONTROLLER OR THE STAMP-
ING OFFICE OF ANY COMPACTING STATE UPON REQUEST; PROVIDED, HOWEVER, THAT
ANY WORK PAPERS RELATED TO ANY INTERNAL OR INDEPENDENT AUDIT AND ANY
INFORMATION REGARDING THE PRIVACY OF INDIVIDUALS AND LICENSEES' AND
INSURERS' PROPRIETARY INFORMATION, INCLUDING TRADE SECRETS, SHALL REMAIN
CONFIDENTIAL.
(F) NO COMPACTING STATE SHALL HAVE ANY CLAIM TO OR OWNERSHIP OF ANY
PROPERTY HELD BY OR VESTED IN THE COMMISSION OR TO ANY COMMISSION FUNDS
HELD PURSUANT TO THE PROVISIONS OF THIS COMPACT.
(G) THE COMMISSION SHALL NOT MAKE ANY POLITICAL CONTRIBUTIONS TO
CANDIDATES FOR ELECTED OFFICE, ELECTED OFFICIALS, POLITICAL PARTIES OR
POLITICAL ACTION COMMITTEES. THE COMMISSION SHALL NOT ENGAGE IN LOBBYING
EXCEPT WITH RESPECT TO CHANGES TO THIS COMPACT.
S 2914. COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT. (A) ANY STATE
IS ELIGIBLE TO BECOME A COMPACTING STATE.
(B) THE COMPACT SHALL BECOME EFFECTIVE AND BINDING UPON LEGISLATIVE
ENACTMENT OF THE COMPACT INTO LAW BY TWO COMPACTING STATES; PROVIDED,
THE COMMISSION SHALL BECOME EFFECTIVE FOR PURPOSES OF ADOPTING RULES AND
CREATING THE CLEARINGHOUSE WHEN THERE ARE A TOTAL OF TEN COMPACTING
STATES AND CONTRACTING STATES OR, ALTERNATIVELY, WHEN THERE ARE COMPACT-
ING STATES AND CONTRACTING STATES REPRESENTING GREATER THAN FORTY
PERCENT OF THE SURPLUS LINES INSURANCE PREMIUM VOLUME BASED ON RECORDS
OF THE PERCENTAGE OF SURPLUS LINES INSURANCE PREMIUM SET FORTH IN APPEN-
DIX A OF SECTION TWO THOUSAND ONE HUNDRED SEVENTEEN. THEREAFTER, IT
SHALL BECOME EFFECTIVE AND BINDING AS TO ANY OTHER COMPACTING STATE UPON
ENACTMENT OF THE COMPACT INTO LAW BY THAT STATE. NOTWITHSTANDING THE
FOREGOING, THE CLEARINGHOUSE OPERATIONS AND THE DUTY TO REPORT CLEARING-
HOUSE TRANSACTION DATA SHALL BEGIN ON THE FIRST OF JANUARY OR THE FIRST
OF JULY NEXT FOLLOWING THE FIRST ANNIVERSARY OF THE COMMISSION'S EFFEC-
TIVE DATE. FOR STATES WHICH JOIN THE COMPACT SUBSEQUENT TO THE EFFECTIVE
S. 2811--B 135
DATE, A START DATE FOR REPORTING CLEARINGHOUSE TRANSACTION DATA SHALL BE
SET BY THE COMMISSION PROVIDED SURPLUS LINES LICENSEES AND ALL OTHER
INTERESTED PARTIES RECEIVE NOT LESS THAN NINETY DAYS ADVANCE NOTICE.
(C) AMENDMENTS TO THE COMPACT MAY BE PROPOSED BY THE COMMISSION FOR
ENACTMENT BY THE COMPACTING STATES. NO AMENDMENT SHALL BECOME EFFECTIVE
AND BINDING UPON THE COMMISSION AND THE COMPACTING STATES UNLESS AND
UNTIL ALL COMPACTING STATES ENACT THE AMENDMENT INTO LAW.
S 2915. WITHDRAWAL, DEFAULT AND TERMINATION. (A) (1) ONCE EFFECTIVE,
THE COMPACT SHALL CONTINUE IN FORCE AND REMAIN BINDING UPON EACH AND
EVERY COMPACTING STATE, PROVIDED THAT A COMPACTING STATE MAY WITHDRAW
FROM THE COMPACT ("WITHDRAWING STATE") BY ENACTING A STATUTE SPECIF-
ICALLY REPEALING THE STATUTE WHICH ENACTED THE COMPACT INTO LAW.
(2) THE EFFECTIVE DATE OF WITHDRAWAL IS THE EFFECTIVE DATE OF THE
REPEALING STATUTE. HOWEVER, THE WITHDRAWAL SHALL NOT APPLY TO ANY TAX
OR COMPLIANCE DETERMINATIONS APPROVED ON THE DATE THE REPEALING STATUTE
BECOMES EFFECTIVE, EXCEPT BY MUTUAL AGREEMENT OF THE COMMISSION AND THE
WITHDRAWING STATE UNLESS THE APPROVAL IS RESCINDED BY THE COMMISSION.
(3) THE MEMBER OF THE WITHDRAWING STATE SHALL IMMEDIATELY NOTIFY THE
EXECUTIVE COMMITTEE OF THE COMMISSION IN WRITING UPON THE INTRODUCTION
OF LEGISLATION REPEALING THIS COMPACT IN THE WITHDRAWING STATE.
(4) THE COMMISSION SHALL NOTIFY THE OTHER COMPACTING STATES OF THE
INTRODUCTION OF SUCH LEGISLATION WITHIN TEN DAYS AFTER ITS RECEIPT OF
NOTICE THEREOF.
(5) THE WITHDRAWING STATE IS RESPONSIBLE FOR ALL OBLIGATIONS, DUTIES
AND LIABILITIES INCURRED THROUGH THE EFFECTIVE DATE OF WITHDRAWAL,
INCLUDING ANY OBLIGATIONS, THE PERFORMANCE OF WHICH EXTEND BEYOND THE
EFFECTIVE DATE OF WITHDRAWAL. TO THE EXTENT THOSE OBLIGATIONS MAY HAVE
BEEN RELEASED OR RELINQUISHED BY MUTUAL AGREEMENT OF THE COMMISSION AND
THE WITHDRAWING STATE, THE COMMISSION'S DETERMINATIONS PRIOR TO THE
EFFECTIVE DATE OF WITHDRAWAL SHALL CONTINUE TO BE EFFECTIVE AND BE GIVEN
FULL FORCE AND EFFECT IN THE WITHDRAWING STATE, UNLESS FORMALLY RESCIND-
ED BY THE COMMISSION.
(6) REINSTATEMENT FOLLOWING WITHDRAWAL OF ANY COMPACTING STATE SHALL
OCCUR UPON THE EFFECTIVE DATE OF THE WITHDRAWING STATE REENACTING THE
COMPACT.
(B) (1) IF THE COMMISSION DETERMINES THAT ANY COMPACTING STATE HAS AT
ANY TIME DEFAULTED ("DEFAULTING STATE") IN THE PERFORMANCE OF ANY OF ITS
OBLIGATIONS OR RESPONSIBILITIES UNDER THIS COMPACT, THE BYLAWS OR DULY
PROMULGATED RULES, THEN AFTER NOTICE AND HEARING AS SET FORTH IN THE
BYLAWS, ALL RIGHTS, PRIVILEGES AND BENEFITS CONFERRED BY THIS COMPACT ON
THE DEFAULTING STATE SHALL BE SUSPENDED FROM THE EFFECTIVE DATE OF
DEFAULT AS FIXED BY THE COMMISSION. THE GROUNDS FOR DEFAULT INCLUDE, BUT
ARE NOT LIMITED TO, FAILURE OF A COMPACTING STATE TO PERFORM ITS OBLI-
GATIONS OR RESPONSIBILITIES AND ANY OTHER GROUNDS DESIGNATED IN COMMIS-
SION RULES. THE COMMISSION SHALL IMMEDIATELY NOTIFY THE DEFAULTING STATE
IN WRITING OF THE DEFAULTING STATE'S SUSPENSION PENDING A CURE OF THE
DEFAULT. THE COMMISSION SHALL STIPULATE THE CONDITIONS AND THE TIME
PERIOD WITHIN WHICH THE DEFAULTING STATE MUST CURE ITS DEFAULT. IF THE
DEFAULTING STATE FAILS TO CURE THE DEFAULT WITHIN THE TIME PERIOD SPECI-
FIED BY THE COMMISSION, THE DEFAULTING STATE SHALL BE TERMINATED FROM
THE COMPACT AND ALL RIGHTS, PRIVILEGES AND BENEFITS CONFERRED BY THIS
COMPACT SHALL BE TERMINATED FROM THE EFFECTIVE DATE OF TERMINATION.
(2) DECISIONS OF THE COMMISSION THAT ARE ISSUED ON THE EFFECTIVE DATE
OF TERMINATION SHALL REMAIN IN FORCE IN THE DEFAULTING STATE IN THE SAME
MANNER AS IF THE DEFAULTING STATE HAD WITHDRAWN VOLUNTARILY PURSUANT TO
SUBSECTION (A) OF THIS SECTION.
S. 2811--B 136
(3) REINSTATEMENT FOLLOWING TERMINATION OF ANY COMPACTING STATE
REQUIRES A REENACTMENT OF THE COMPACT.
(C) (1) THE COMPACT DISSOLVES EFFECTIVE UPON THE DATE OF THE WITH-
DRAWAL OR DEFAULT OF THE COMPACTING STATE WHICH REDUCES MEMBERSHIP IN
THE COMPACT TO ONE COMPACTING STATE.
(2) UPON THE DISSOLUTION OF THIS COMPACT, THE COMPACT BECOMES NULL AND
VOID AND SHALL HAVE NO FURTHER FORCE OR EFFECT AND THE BUSINESS AND
AFFAIRS OF THE COMMISSION SHALL BE WOUND UP AND ANY EXCESS FUNDS SHALL
BE DISTRIBUTED IN ACCORDANCE WITH THE RULES AND BYLAWS.
S 2916. SEVERABILITY AND CONSTRUCTION. (A) THE PROVISIONS OF THIS
COMPACT SHALL BE SEVERABLE AND IF ANY PHRASE, CLAUSE, SENTENCE OR
PROVISION IS DEEMED UNENFORCEABLE, THE REMAINING PROVISIONS OF THE
COMPACT SHALL BE ENFORCEABLE.
(B) THE PROVISIONS OF THIS COMPACT SHALL BE LIBERALLY CONSTRUED TO
EFFECTUATE ITS PURPOSES.
(C) THROUGHOUT THIS COMPACT THE USE OF THE SINGULAR SHALL INCLUDE THE
PLURAL AND VICE-VERSA.
(D) THE HEADINGS AND CAPTIONS OF ARTICLES, SECTIONS AND SUBSECTIONS
USED IN THIS COMPACT ARE FOR CONVENIENCE ONLY AND SHALL BE IGNORED IN
CONSTRUING THE SUBSTANTIVE PROVISIONS OF THIS COMPACT.
S 2917. BINDING EFFECT OF COMPACT AND OTHER LAWS. (A) (1) NOTHING
HEREIN PREVENTS THE ENFORCEMENT OF ANY OTHER LAW OF A COMPACTING STATE,
EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION.
(2) DECISIONS OF THE COMMISSION AND ANY RULES AND ANY OTHER REQUIRE-
MENTS OF THE COMMISSION SHALL CONSTITUTE THE EXCLUSIVE RULE OR DETERMI-
NATION APPLICABLE TO THE COMPACTING STATES. ANY LAW OR REGULATION
REGARDING NON-ADMITTED INSURANCE OF MULTI-STATE RISKS THAT IS CONTRARY
TO RULES OF THE COMMISSION IS PREEMPTED WITH RESPECT TO THE FOLLOWING:
(A) CLEARINGHOUSE TRANSACTION DATA REPORTING REQUIREMENTS;
(B) ALLOCATION FORMULA;
(C) CLEARINGHOUSE TRANSACTION DATA COLLECTION REQUIREMENTS;
(D) PREMIUM TAX PAYMENT TIME FRAMES AND RULES CONCERNING DISSEMINATION
OF DATA AMONG THE COMPACTING STATES FOR NON-ADMITTED INSURANCE OF
MULTI-STATE RISKS AND SINGLE-STATE RISKS;
(E) EXCLUSIVE COMPLIANCE WITH SURPLUS LINES LAW OF THE HOME STATE OF
THE INSURED;
(F) RULES FOR REPORTING TO A CLEARINGHOUSE FOR RECEIPT AND DISTRIB-
UTION OF CLEARINGHOUSE TRANSACTION DATA RELATED TO NON-ADMITTED INSUR-
ANCE OF MULTI-STATE RISKS;
(G) UNIFORM FOREIGN INSURERS ELIGIBILITY REQUIREMENTS;
(H) UNIFORM POLICYHOLDER NOTICE; AND
(I) UNIFORM TREATMENT OF PURCHASING GROUPS PROCURING NON-ADMITTED
INSURANCE.
(3) EXCEPT AS SET FORTH IN SUBSECTION (B) OF THIS SECTION, ANY RULE,
UNIFORM STANDARD OR OTHER REQUIREMENT OF THE COMMISSION SHALL CONSTITUTE
THE EXCLUSIVE PROVISION THAT A COMMISSIONER MAY APPLY TO COMPLIANCE OR
TAX DETERMINATIONS. NOTWITHSTANDING THE FOREGOING, NO ACTION TAKEN BY
THE COMMISSION SHALL ABROGATE OR RESTRICT:
(A) THE ACCESS OF ANY PERSON TO STATE COURTS;
(B) THE AVAILABILITY OF ALTERNATIVE DISPUTE RESOLUTION UNDER SECTION
TWO THOUSAND NINE HUNDRED ELEVEN OF THIS ARTICLE;
(C) REMEDIES AVAILABLE UNDER STATE LAW RELATED TO BREACH OF CONTRACT,
TORT OR OTHER LAWS NOT SPECIFICALLY DIRECTED TO COMPLIANCE OR TAX DETER-
MINATIONS;
(D) STATE LAW RELATING TO THE CONSTRUCTION OF INSURANCE CONTRACTS; OR
S. 2811--B 137
(E) THE AUTHORITY OF THE ATTORNEY GENERAL OF THE STATE, INCLUDING BUT
NOT LIMITED TO MAINTAINING ANY ACTIONS OR PROCEEDINGS, AS AUTHORIZED BY
LAW.
(B) (1) ALL LAWFUL ACTIONS OF THE COMMISSION, INCLUDING ALL RULES
PROMULGATED BY THE COMMISSION, ARE BINDING UPON THE COMPACTING STATES,
EXCEPT AS PROVIDED HEREIN.
(2) ALL AGREEMENTS BETWEEN THE COMMISSION AND THE COMPACTING STATES
ARE BINDING IN ACCORDANCE WITH THEIR TERMS.
(3) UPON THE REQUEST OF A PARTY TO A CONFLICT OVER THE MEANING OR
INTERPRETATION OF COMMISSION ACTIONS AND UPON A MAJORITY VOTE OF THE
COMPACTING STATES, THE COMMISSION MAY ISSUE ADVISORY OPINIONS REGARDING
THE MEANING OR INTERPRETATION IN DISPUTE. THIS PROVISION MAY BE IMPLE-
MENTED BY RULE AT THE DISCRETION OF THE COMMISSION.
(4) IN THE EVENT ANY PROVISION OF THIS COMPACT EXCEEDS THE CONSTITU-
TIONAL LIMITS IMPOSED ON THE LEGISLATURE OF ANY COMPACTING STATE, THE
OBLIGATIONS, DUTIES, POWERS OR JURISDICTION SOUGHT TO BE CONFERRED BY
THAT PROVISION UPON THE COMMISSION SHALL BE INEFFECTIVE AS TO THAT STATE
AND THOSE OBLIGATIONS, DUTIES, POWERS OR JURISDICTION SHALL REMAIN IN
THE COMPACTING STATE AND SHALL BE EXERCISED BY THE AGENCY THEREOF TO
WHICH THOSE OBLIGATIONS, DUTIES, POWERS OR JURISDICTION ARE DELEGATED BY
LAW IN EFFECT AT THE TIME THIS COMPACT BECOMES EFFECTIVE.
APPENDIX A
SURPLUS LINE INSURANCE PREMIUMS BY STATE
PREMIUMS BASED ON SHARE OF TOTAL
STATE TAXES PAID PREMIUMS
ALABAMA 445,746,000 1.47%
ALASKA 89,453,519 0.29%
ARIZONA 663,703,267 2.18%
ARKANSAS 201,859,750 0.66%
CALIFORNIA 5,622,450,467 18.49%
COLORADO 543,781,333 1.79%
CONNECTICUT 329,358,800 1.08%
DELAWARE 92,835,950 0.31%
FLORIDA 2,660,908,760 8.75%
GEORGIA 895,643,150 2.95%
HAWAII 232,951,489 0.77%
IDAHO 74,202,255 0.24%
ILLINOIS 1,016,504,629 3.34%
INDIANA 412,265,320 1.36%
IOWA 135,130,933 0.44%
KANSAS 160,279,300 0.53%
KENTUCKY 167,996,133 0.55%
LOUISIANA 853,173,280 2.81%
MAINE 60,111,200 0.20%
MARYLAND 434,887,600 1.43%
MASSACHUSETTS 708,640,225 2.33%
MICHIGAN 703,357,040 2.31%
MINNESOTA 393,128,400 1.29%
MISSISSIPPI 263,313,175 0.87%
MISSOURI 404,489,860 1.33%
MONTANA 64,692,873 0.21%
NEBRASKA 92,141,167 0.30%
NEVADA 354,271,514 1.17%
NEW HAMPSHIRE 102,946,250 0.34%
NEW JERSEY 1,087,994,033 3.58%
NEW MEXICO 67,608,458 0.22%
S. 2811--B 138
NEW YORK 2,768,618,083 9.11%
NORTH CAROLINA 514,965,060 1.69%
NORTH DAKOTA 36,223,943 0.12%
OHIO 342,000,000 1.12%
OKLAHOMA 319,526,400 1.05%
OREGON 312,702,150 1.03%
PENNSYLVANIA 780,666,667 2.57%
RHODE ISLAND 71,794,067 0.24%
SOUTH CAROLINA 412,489,825 1.36%
SOUTH DAKOTA 38,702,120 0.13%
TENNESSEE 451,775,240 1.49%
TEXAS 3,059,170,454 10.06%
UTAH 142,593,412 0.47%
VERMONT 41,919,433 0.14%
VIRGINIA 611,530,667 2.01%
WASHINGTON 739,932,050 2.43%
WEST VIRGINIA 130,476,250 0.43%
WISCONSIN 248,758,333 0.82%
WYOMING 40,526,967 0.13%
TOTAL 30,400,197,251 100.00%
S 3. Subsection (d) of section 2118 of the insurance law is amended by
adding a new paragraph 4 to read as follows:
(4) IN THE EVENT THAT THE SURPLUS LINES INSURANCE MULTISTATE COMPLI-
ANCE COMPACT ("SLIMPACT") IS ENACTED BY THIS STATE AND THE COMMISSION
CREATED THEREUNDER BECOMES ACTIVE PURSUANT TO THE PROVISION OF SLIMPACT,
THEN THIS STATE, WHEN IT IS THE HOME STATE OF THE INSURED, WILL REQUIRE
THE PAYMENT OF TAXES BE ALLOCATED BASED UPON SLIMPACT'S PROVISIONS TO
ALL OTHER STATES WHICH HAVE ADOPTED SLIMPACT; PROVIDED, HOWEVER, THAT
THIS STATE WILL APPLY ITS STATE TAX TO THE PREMIUM FOR ALL RISK EXPO-
SURES ALLOCATED TO THIS STATE AND TO RISK EXPOSURES LOCATED IN ANY
STATES WHICH HAVE NOT ENACTED SLIMPACT.
S 4. Paragraph 1 of subsection (b) of section 9102 of the insurance
law, as amended by chapter 190 of the laws of 1990, is amended to read
as follows:
(1) In determining the amount of gross premiums taxable in this state
pursuant to paragraph one of subsection (d) of section two thousand one
hundred eighteen of this chapter, where a placement of excess line
insurance covers property or risks located or resident both in and out
of this state, the sum paid to the superintendent shall be computed on
that portion of the policy premium that is attributable to property or
risks located or resident in this state, as determined by reference to
an allocation schedule prescribed by the superintendent in a regulation.
IN THE EVENT THAT THE SURPLUS LINES INSURANCE MULTISTATE COMPLIANCE
COMPACT ("SLIMPACT") IS ENACTED BY THIS STATE AND THE COMMISSION CREATED
THEREUNDER BECOMES ACTIVE PURSUANT TO THE PROVISIONS OF SLIMPACT, THEN
THIS STATE, WHEN IT IS THE HOME STATE OF THE INSURED, WILL REQUIRE THE
PAYMENT OF TAXES BE ALLOCATED BASED UPON SLIMPACT'S PROVISIONS TO ALL
OTHER STATES WHICH HAVE ADOPTED SLIMPACT; PROVIDED, HOWEVER, THAT THIS
STATE WILL APPLY ITS STATE TAX TO THE PREMIUM FOR ALL RISK EXPOSURES
ALLOCATED TO THIS STATE AND TO RISK EXPOSURES LOCATED IN ANY STATES
WHICH HAVE NOT ENACTED SLIMPACT.
S 5. Section 1552 of the tax law, as added by chapter 190 of the laws
of 1990, is amended to read as follows:
S 1552. Allocation. Where the taxable insurance contract covers risks
located or resident both within and without this state, the amount of
S. 2811--B 139
premiums allocable to risks resident or located within this state shall
be determined pursuant to rules and regulations of the commissioner of
taxation and finance. In promulgating such rules and regulations, the
commissioner of taxation and finance shall give due consideration to the
rules and regulations promulgated by the superintendent of insurance
pursuant to subsection (b) of section nine thousand one hundred two of
the insurance law. IN THE EVENT THAT THE SURPLUS LINES INSURANCE MULTI-
STATE COMPLIANCE COMPACT ("SLIMPACT") IS ENACTED BY THIS STATE AND THE
COMMISSION CREATED THEREUNDER BECOMES ACTIVE PURSUANT TO THE PROVISIONS
OF SLIMPACT, THEN THIS STATE, WHEN IT IS THE HOME STATE OF THE INSURED,
WILL REQUIRE THE PAYMENT OF TAXES BE ALLOCATED BASED UPON SLIMPACT'S
PROVISIONS TO ALL OTHER STATES WHICH HAVE ADOPTED SLIMPACT; PROVIDED,
HOWEVER, THAT THIS STATE WILL APPLY ITS STATE TAX TO THE PREMIUM FOR ALL
RISK EXPOSURES ALLOCATED TO THIS STATE AND TO RISK EXPOSURES LOCATED IN
ANY STATES WHICH HAVE NOT ENACTED SLIMPACT.
S 6. This act shall take effect ninety days after July 21, 2011.
PART FF
Section 1. The tax law is amended by adding a new section 35 to read
as follows:
S 35. COMMUNITY TRANSFORMATION PROGRAM CREDIT. (A) DEFINITIONS. AS
USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEAN-
INGS:
(1) "TRANSFORMATION COMMUNITY" MEANS A TOWN OR A CITY LOCATED WITHIN
THREE MILES OF A CORRECTIONAL FACILITY, AS DEFINED IN PARAGRAPH (A) OF
SUBDIVISION FOUR OF SECTION TWO OF THE CORRECTION LAW SUBJECT TO CLOSURE
PURSUANT TO A RECOMMENDATION OF THE PRISON EFFICIENCY TASK FORCE OR A
SECURE FACILITY AS DEFINED IN SECTION FIVE HUNDRED FOUR-A OF THE EXECU-
TIVE LAW SUBJECT TO CLOSURE PURSUANT TO A CHAPTER OF THE LAWS OF TWO
THOUSAND ELEVEN.
(2) "BASE EMPLOYMENT" MEANS THE AVERAGE NUMBER OF FULL TIME EMPLOYEES
OR FULL TIME EQUIVALENT EMPLOYEES IN THE STATE DURING THE BASE YEAR,
WHERE THE BASE YEAR IS TWO THOUSAND ELEVEN. FOR A NEW BUSINESS, BASE
EMPLOYMENT SHALL BE ZERO.
(3) "NET NEW JOB" MEANS ANY FULL TIME EMPLOYEE OR FULL TIME EQUIVALENT
EMPLOYEE THAT CAUSES THE TOTAL NUMBER OF EMPLOYEES TO INCREASE ABOVE
BASE EMPLOYMENT.
(4) "QUALIFIED BUSINESS ENTITY" MEANS A BUSINESS ENTITY THAT SHALL
OPERATE WITHIN A TRANSFORMATION COMMUNITY, PROVIDED, HOWEVER, A QUALI-
FIED BUSINESS ENTITY SHALL NOT INCLUDE RETAIL ESTABLISHMENTS OR OFFICES
OF PROFESSIONS REQUIRED TO BE LICENSED BY THE STATE UNLESS SUCH RETAIL
ESTABLISHMENTS OR OFFICES OF PROFESSIONS ARE TO BE LOCATED ON THE PROP-
ERTY OF THE CORRECTIONAL FACILITY OR SECURE FACILITY DESCRIBED IN PARA-
GRAPH ONE OF THIS SECTION.
(5) "QUALIFIED INVESTMENT" MEANS AN INVESTMENT IN TANGIBLE PROPERTY
(INCLUDING A BUILDING OR A STRUCTURAL COMPONENT OF A BUILDING) OWNED BY
A QUALIFIED BUSINESS ENTITY WHICH:
(I) IS DEPRECIABLE PURSUANT TO SECTION ONE HUNDRED SIXTY-SEVEN OF THE
INTERNAL REVENUE CODE;
(II) HAS A USEFUL LIFE OF FOUR YEARS OR MORE;
(III) IS ACQUIRED BY PURCHASE AS DEFINED IN SECTION ONE HUNDRED SEVEN-
TY-NINE (D) OF THE INTERNAL REVENUE CODE;
(IV) HAS A SITUS IN THE TRANSFORMATION COMMUNITY; AND
S. 2811--B 140
(V) IS PLACED IN SERVICE IN THE TRANSFORMATION COMMUNITY ON OR AFTER
THE DATE OF THE CLOSURE OF THE CORRECTIONAL FACILITY OR SECURED FACILI-
TY.
(6) "TAX BENEFIT PERIOD" MEANS (I) FOR THE TAX CREDIT ESTABLISHED
PURSUANT TO PARAGRAPH ONE OF SUBDIVISION (B) OF THIS SECTION, FIVE TAXA-
BLE YEARS STARTING WITH THE YEAR IN WHICH NET NEW JOB CREATION OCCURS OR
IN WHICH THE PROPERTY CONSTITUTING A QUALIFIED INVESTMENT PROJECT IS
FIRST PLACED IN SERVICE OR (II) FOR THE CREDIT ESTABLISHED PURSUANT TO
PARAGRAPH TWO OF SUBDIVISION (B) OF THIS SECTION, SIXTY CONSECUTIVE
MONTHS.
(7) "WITHHOLDING" MEANS THE WITHHOLDING REQUIRED UNDER SECTION SIX
HUNDRED SEVENTY-ONE OF THIS CHAPTER CALCULATED USING THE EMPLOYEE'S
APPLICABLE WAGE AND FILING STATUS WITH ONE EXEMPTION.
(B) GENERAL. (1) A QUALIFIED BUSINESS ENTITY THAT IS SUBJECT TO TAX
UNDER ARTICLE NINE-A, TWENTY-TWO, THIRTY-TWO OR THIRTY-THREE OF THIS
CHAPTER SHALL BE ALLOWED A CREDIT AGAINST SUCH TAX, PURSUANT TO THE
PROVISIONS REFERENCED IN THIS SECTION. THE AMOUNT OF THE CREDIT, ALLOW-
ABLE FOR THE TAX BENEFIT PERIOD, IS THE SUM OF THE FOLLOWING THREE CRED-
IT COMPONENTS:
(I) COMMUNITY TRANSFORMATION JOBS CREDIT;
(II) COMMUNITY TRANSFORMATION INVESTMENT TAX CREDIT; AND
(III) COMMUNITY TRANSFORMATION REAL PROPERTY TAX CREDIT.
(2) A QUALIFIED BUSINESS ENTITY THAT MAKES PURCHASES THAT ARE SUBJECT
TO TAX UNDER ARTICLE TWENTY-EIGHT OR TWENTY-NINE OF THIS CHAPTER SHALL
BE ELIGIBLE TO CLAIM THE CREDIT OR REFUND DESCRIBED IN SUBDIVISIONS (A)
AND (D) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS CHAPTER OR ANY LIKE
CREDIT OR REFUND IMPOSED PURSUANT TO THE AUTHORITY OF ARTICLE
TWENTY-NINE OF THIS CHAPTER.
(C) NOTIFICATION. THE DEPARTMENT OF CORRECTIONAL SERVICES AND THE
OFFICE OF CHILDREN AND FAMILY SERVICES SHALL NOTIFY THE DEPARTMENT WITH-
IN TEN DAYS SUBSEQUENT TO THE RECOMMENDATION OF THE PRISON EFFICIENCY
TASK FORCE OR THE DETERMINATION BY THE OFFICE OF CHILDREN AND FAMILY
SERVICES. SUCH NOTIFICATION SHALL INCLUDE THE NAME OF THE FACILITY TO BE
CLOSED, THE LOCATION OF SUCH FACILITY, AND THE NAME OF ANY TOWN OR CITY
LOCATED WITHIN THREE MILES OF SUCH FACILITY. THE DEPARTMENT SHALL MAKE
THE INFORMATION PROVIDED IN SUCH NOTIFICATION AVAILABLE TO TAXPAYERS.
(D) COMMUNITY TRANSFORMATION JOBS CREDIT COMPONENT. A QUALIFIED BUSI-
NESS ENTITY SHALL BE ELIGIBLE TO CLAIM A CREDIT FOR EACH NET NEW JOB IT
CREATES IN A TRANSFORMATION COMMUNITY. THE AMOUNT OF THE CREDIT ALLOWED
UNDER THIS SECTION SHALL BE EQUAL TO THE AMOUNT OF WITHHOLDING REMITTED
TO THE STATE FOR EACH NEW EMPLOYEE. THE CREDIT SHALL NOT BE MORE THAN
FIVE THOUSAND DOLLARS FOR ANY NEW EMPLOYEE FOR ONE FULL YEAR OF EMPLOY-
MENT; IF A NEW EMPLOYEE HAS BEEN HIRED FOR LESS THAN A FULL TAX YEAR
THIS AMOUNT SHALL BE PRORATED AND APPORTIONED TO EACH TAX YEAR BUT SHALL
IN NO WAY DECREASE THE FULL FIVE YEARS OF CREDIT ELIGIBILITY. THE
TAXPAYER MAY CLAIM THIS CREDIT FOR EACH NEW EMPLOYEE FOR A PERIOD OF
FIVE YEARS OF EMPLOYMENT. THE TAXPAYER MAY OFFSET QUARTERLY ESTIMATED
RETURNS WITH THE AMOUNT OF THIS CREDIT EARNED IN ANY PREVIOUS QUARTER.
(E) COMMUNITY TRANSFORMATION INVESTMENT TAX CREDIT COMPONENT. A QUALI-
FIED BUSINESS ENTITY SHALL BE ELIGIBLE TO CLAIM A CREDIT ON QUALIFIED
INVESTMENTS WITHIN THE TRANSFORMATION COMMUNITY. THE CREDIT SHALL BE
EQUAL TO FIVE PERCENT OF THE COST OR OTHER BASIS FOR FEDERAL INCOME TAX
PURPOSES OF THE QUALIFIED INVESTMENT. PROVIDED, HOWEVER, IF THE QUALI-
FIED INVESTMENT IS MADE WITH RESPECT TO THE REDEVELOPMENT OF THE CORREC-
TIONAL FACILITY OR SECURE FACILITY, THE CREDIT SHALL BE EQUAL TO TEN
S. 2811--B 141
PERCENT OF THE COST OR OTHER BASIS FOR FEDERAL INCOME TAX PURPOSES OF
THE QUALIFIED INVESTMENT.
A QUALIFIED BUSINESS ENTITY MAY CLAIM BOTH THE COMMUNITY TRANSFORMA-
TION INVESTMENT TAX CREDIT COMPONENT AND THE INVESTMENT TAX CREDIT SET
FORTH IN SUBDIVISION TWELVE OF SECTION TWO HUNDRED TEN, SUBSECTION (A)
OF SECTION SIX HUNDRED SIX, OR SUBSECTION (I) OF SECTION FOURTEEN
HUNDRED FIFTY-SIX OF THIS CHAPTER FOR THE SAME PROPERTY IN ANY TAXABLE
YEAR. EXPENSES INCURRED PRIOR TO THE EFFECTIVE DATE OF THIS SECTION ARE
NOT ELIGIBLE TO BE INCLUDED IN THE CALCULATION OF THE CREDIT.
(F) COMMUNITY TRANSFORMATION REAL PROPERTY TAX CREDIT. A QUALIFIED
BUSINESS ENTITY SHALL BE ELIGIBLE TO CLAIM A CREDIT FOR A PERIOD OF FIVE
YEARS. THE CREDIT SHALL BE EQUAL TO FIFTY PERCENT OF THE ELIGIBLE REAL
PROPERTY TAXES ON THE REAL PROPERTY LOCATED IN THE TRANSFORMATION COMMU-
NITY THAT WERE ASSESSED AND PAID. IN THE REMAINING YEARS THE CREDIT
SHALL BE COMPUTED ACCORDING TO THE FOLLOWING SCHEDULE: YEAR TWO: FORTY
PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL PROPERTY LOCATED IN
THE TRANSFORMATION COMMUNITY THAT WERE ASSESSED AND PAID; YEAR THREE:
THIRTY PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL PROPERTY
LOCATED IN THE TRANSFORMATION COMMUNITY THAT WERE ASSESSED AND PAID;
YEAR FOUR: TWENTY PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON REAL PROP-
ERTY LOCATED IN THE TRANSFORMATION COMMUNITY THAT WERE ASSESSED AND
PAID; AND YEAR FIVE: TEN PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE
REAL PROPERTY LOCATED IN THE TRANSFORMATION COMMUNITY THAT WERE ASSESSED
AND PAID. PROVIDED, HOWEVER, IF THE REAL PROPERTY CONSISTS OF THE
CORRECTIONAL FACILITY OR THE SECURE FACILITY, THE CREDIT SHALL BE EQUAL
TO ONE HUNDRED PERCENT OF THE ELIGIBLE REAL PROPERTY TAXES ON THE REAL
PROPERTY THAT WERE ASSESSED AND PAID. IN THE REMAINING YEARS THE CREDIT
SHALL BE COMPUTED ACCORDING TO THE FOLLOWING SCHEDULE: YEAR TWO: EIGHTY
PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL PROPERTY THAT WERE
ASSESSED AND PAID; YEAR THREE: SIXTY PERCENT OF ELIGIBLE REAL PROPERTY
TAXES ON THE REAL PROPERTY THAT WERE ASSESSED AND PAID; YEAR FOUR: FORTY
PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON REAL PROPERTY THAT WERE
ASSESSED AND PAID; AND YEAR FIVE: TWENTY PERCENT OF ELIGIBLE REAL PROP-
ERTY TAXES ON THE REAL PROPERTY LOCATED IN THE TRANSFORMATION COMMUNITY
THAT WERE ASSESSED AND PAID.
FOR PURPOSES OF THIS CREDIT, THE TERM "ELIGIBLE REAL PROPERTY TAXES"
SHALL HAVE THE SAME MEANING AS IN SUBDIVISION (E) OF SECTION FIFTEEN OF
THIS CHAPTER, PROVIDED THAT SUCH SUBDIVISION SHALL BE READ AS IF IT
SPECIFICALLY REFERENCED THE COMMUNITY TRANSFORMATION PROGRAM AND PARTIC-
IPANTS IN THAT PROGRAM.
(G) CROSS-REFERENCES. FOR APPLICATION OF THE CREDIT PROVIDED FOR IN
THIS SECTION, SEE THE FOLLOWING PROVISIONS OF THIS CHAPTER:
(1) ARTICLE 9-A: SECTION 210: SUBDIVISION 43.
(2) ARTICLE 22: SECTION 606: SUBSECTION (SS).
(3) ARTICLE 32: SECTION 1456: SUBSECTION (X).
(4) ARTICLE 33: SECTION 1511: SUBDIVISION (AA).
S 2. Section 210 of the tax law is amended by adding a new subdivision
43 to read as follows:
43. COMMUNITY TRANSFORMATION PROGRAM CREDIT. (A) ALLOWANCE OF CREDIT.
A TAXPAYER WILL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN
SECTION THIRTY-FIVE OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS
ARTICLE.
(B) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
FOR ANY TAXABLE YEAR MAY NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE HIGHER OF THE AMOUNTS PRESCRIBED IN PARAGRAPHS (C) AND (D) OF
SUBDIVISION ONE OF THIS SECTION. HOWEVER, IF THE AMOUNT OF CREDIT
S. 2811--B 142
ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE TAX TO
SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH TAXABLE
YEAR WILL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR REFUNDED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND EIGHTY-SIX OF
THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF SUBSECTION (C) OF
SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER NOTWITHSTANDING, NO
INTEREST WILL BE PAID THEREON.
S 3. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
of the tax law is amended by adding a new clause (xxxii) to read as
follows:
(XXXII) COMMUNITY TRANSFORMATION AMOUNT OF CREDIT UNDER
PROGRAM CREDIT UNDER SUBSECTION SUBDIVISION FORTY-THREE
(SS) OF SECTION TWO HUNDRED TEN
OR UNDER SUBSECTION (X)
OF SECTION FOURTEEN HUNDRED
FIFTY-SIX
S 4. Section 606 of the tax law is amended by adding a new subsection
(ss) to read as follows:
(SS) COMMUNITY TRANSFORMATION PROGRAM CREDIT. (1) A TAXPAYER WILL BE
ALLOWED A CREDIT, TO THE EXTENT ALLOWED UNDER SECTION THIRTY-ONE OF THIS
CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE.
(2) APPLICATION OF CREDIT. IF THE AMOUNT OF THE CREDIT ALLOWED UNDER
THIS SUBSECTION FOR ANY TAXABLE YEAR EXCEEDS THE TAXPAYER'S TAX FOR SUCH
YEAR, THE EXCESS WILL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED
OR REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION SIX HUNDRED
EIGHTY-SIX OF THIS ARTICLE, PROVIDED, HOWEVER, THAT NO INTEREST WILL BE
PAID THEREON.
S 5. Subdivision (a) of section 1119 of the tax law, as amended by
chapter 686 of the laws of 1986, and as further amended by section 15 of
part GG of chapter 63 of the laws of 2000, is amended to read as
follows:
(a) Subject to the conditions and limitations provided for herein, a
refund or credit shall be allowed for a tax paid pursuant to subdivision
(a) of section eleven hundred five or section eleven hundred ten (1) on
the sale or use of tangible personal property if the purchaser or user,
in the performance of a contract, later incorporates that tangible
personal property into real property located outside this state, (2) on
the sale or use of tangible personal property purchased in bulk, or any
portion thereof, which is stored and not used by the purchaser or user
within this state if that property is subsequently reshipped by such
purchaser or user to a point outside this state for use outside this
state, (3) on the sale to or use by a contractor or subcontractor of
tangible personal property if that property is used by him solely in the
performance of a pre-existing lump sum or unit price construction
contract, (4) on the sale or use within this state of tangible personal
property, not purchased for resale, if the use of such property in this
state is restricted to fabricating such property (including incorporat-
ing it into or assembling it with other tangible personal property),
processing, printing or imprinting such property and such property is
then shipped to a point outside this state for use outside this state,
(5) on the sale to or use by a veterinarian of drugs or medicine if such
drugs or medicine are used by such veterinarian in rendering services,
which are exempt pursuant to subdivision (f) of section eleven hundred
fifteen of this chapter, to livestock or poultry used in the production
for sale of tangible personal property by farming or if such drugs or
medicine are sold to a person qualifying for the exemption provided for
S. 2811--B 143
in paragraph (6) of subdivision (a) of section eleven hundred fifteen of
this chapter for use by such person on such livestock or poultry, [or]
(6) on the sale of tangible personal property purchased for use in
constructing, expanding or rehabilitating industrial or commercial real
property (other than property used or to be used exclusively by one or
more registered vendors primarily engaged in the retail sale of tangible
personal property) located in an area designated as an empire zone
pursuant to article eighteen-B of the general municipal law, but only to
the extent that such property becomes an integral component part of the
real property, OR (7) ON THE SALE OF TANGIBLE PERSONAL PROPERTY
PURCHASED FOR USE IN CONSTRUCTING, EXPANDING OR REHABILITATING INDUS-
TRIAL OR COMMERCIAL REAL PROPERTY (OTHER THAN PROPERTY USED OR TO BE
USED EXCLUSIVELY BY ONE OR MORE REGISTERED VENDORS PRIMARILY ENGAGED IN
THE RETAIL SALE OF TANGIBLE PERSONAL PROPERTY) LOCATED IN AN AREA DESIG-
NATED AS TRANSFORMATION COMMUNITY PURSUANT TO SECTION THIRTY-FIVE OF
THIS CHAPTER, BUT ONLY TO THE EXTENT THAT SUCH PROPERTY BECOMES AN INTE-
GRAL COMPONENT PART OF THE REAL PROPERTY. (For the purpose of clause
(3) of the preceding sentence, the term "pre-existing lump sum or unit
price construction contract" shall mean a contract for the construction
of improvements to real property under which the amount payable to the
contractor or subcontractor is fixed without regard to the costs
incurred by him in the performance thereof, and which (i) was irrevoca-
bly entered into prior to the date of the enactment of this article or
the enactment of a law increasing the rate of tax imposed under this
article, or (ii) resulted from the acceptance by a governmental agency
of a bid accompanied by a bond or other performance guaranty which was
irrevocably submitted prior to such date.) Where the tax on the sale or
use of such tangible personal property has been paid to the vendor, to
qualify for such refund or credit, such tangible personal property must
be incorporated into real property as required in clause (1) above,
reshipped as required in clause (2) above, used in the manner described
in clauses (3), (4), (5) [and], (6) AND (7) above within three years
after the date such tax was payable to the tax commission by the vendor
pursuant to section eleven hundred thirty-seven. Where the tax on the
sale or use of such tangible personal property was paid by the applicant
for the credit or refund directly to the tax commission, to qualify for
such refund or credit, such tangible personal property must be incorpo-
rated into real property as required in clause (1) above, reshipped as
required in clause (2) above, used in the manner described in clauses
(3), (4), (5) [and], (6) AND (7) above within three years after the date
such tax was payable to the tax commission by such applicant pursuant to
this article. An application for a refund or credit pursuant to this
section must be filed with such commission within the time provided by
subdivision (a) of section eleven hundred thirty-nine. Such application
shall be in such form as the tax commission may prescribe. Where an
application for credit has been filed, the applicant may immediately
take such credit on the return which is due coincident with or imme-
diately subsequent to the time that he files his application for credit.
However, the taking of the credit on the return shall be deemed to be
part of the application for credit and shall be subject to the
provisions in respect to applications for credit in section eleven
hundred thirty-nine as provided in subdivision (e) of such section. With
respect to a sale or use described in clause (3) above where a pre-ex-
isting lump sum or unit price construction contract was irrevocably
entered into prior to the date of the enactment of this article or the
bid accompanied by the performance guaranty was irrevocably submitted to
S. 2811--B 144
the governmental agency prior to such date, the purchaser or user shall
be entitled to a refund or credit only of the amount by which the tax on
such sale or use imposed under this article plus any tax imposed under
the authority of article twenty-nine exceeds the amount computed by
applying against such sale or use the local rate of tax, if any, in
effect at the time such contract was entered into or such bid was
submitted.
In the case of the enactment of a law increasing the rate of tax
imposed by this article, the purchaser or user shall be entitled only to
a refund or credit of the amount by which the increased tax on such sale
or use imposed under this article plus any tax imposed under the author-
ity of article twenty-nine exceeds the amount computed by applying
against such sale or use the state and local rates of tax in effect at
the time such contract was entered into or such bid was submitted.
S 6. Paragraphs 1 and 2 of subdivision (d) of section 1119 of the tax
law, as added by section 31 of part S-1 of chapter 57 of the laws of
2009, are amended to read as follows:
(1) Subject to the conditions and limitations provided for in this
section, a refund or credit will be allowed for taxes imposed on the
retail sale of tangible personal property described in subdivision (a)
of section eleven hundred five of this article, and on every sale of
services described in subdivisions (b) and (c) of such section, and
consideration given or contracted to be given for, or for the use of,
such tangible personal property or services, where such tangible
personal property or services are sold to a qualified empire zone enter-
prise OR QUALIFIED BUSINESS ENTITY, AS DEFINED IN PARAGRAPH FOUR OF
SUBDIVISION (A) OF SECTION THIRTY-FIVE OF THIS CHAPTER, provided that
(A) such tangible personal property or tangible personal property upon
which such a service has been performed or such service (other than a
service described in subdivision (b) of section eleven hundred five of
this article) is directly and predominantly, or such a service described
in clause (A) or (D) of paragraph one of such subdivision (b) of section
eleven hundred five of this article is directly and exclusively, used or
consumed by such enterprise OR BUSINESS ENTITY in an area designated as
an empire zone pursuant to article eighteen-B of the general municipal
law with respect to which such enterprise is certified pursuant to such
article eighteen-B OR IN A TRANSFORMATION COMMUNITY AS DEFINED IN PARA-
GRAPH ONE OF SUBDIVISION (A) OF SECTION THIRTY-FIVE OF THIS CHAPTER, or
(B) such a service described in clause (B) or (C) of paragraph one of
subdivision (b) of section eleven hundred five of this article is deliv-
ered and billed to such enterprise OR BUSINESS ENTITY at an address in
such empire zone OR TRANSFORMATION COMMUNITY, or (C) the enterprise's OR
ENTITY'S place of primary use of the service described in paragraph two
of such subdivision (b) of section eleven hundred five is at an address
in such empire zone OR TRANSFORMATION COMMUNITY; provided, further,
that, in order for a motor vehicle, as defined in subdivision (c) of
section eleven hundred seventeen of this article, or tangible personal
property related to such a motor vehicle to be found to be used predomi-
nantly in such a zone OR COMMUNITY, at least fifty percent of such motor
vehicle's use shall be exclusively within such zone OR COMMUNITY or at
least fifty percent of such motor vehicle's use shall be in activities
originating or terminating in such zone OR COMMUNITY, or both; and
either or both such usages shall be computed either on the basis of
mileage or hours of use, at the discretion of such enterprise OR ENTITY.
For purposes of this subdivision, tangible personal property related to
such a motor vehicle shall include a battery, diesel motor fuel, an
S. 2811--B 145
engine, engine components, motor fuel, a muffler, tires and similar
tangible personal property used in or on such a motor vehicle.
(2) Subject to the conditions and limitations provided for in this
section, a refund or credit will be allowed for taxes imposed on the
retail sale of, and consideration given or contracted to be given for,
or for the use of, tangible personal property sold to a contractor,
subcontractor or repairman for use in (A) erecting a structure or build-
ing of a qualified empire zone enterprise OR QUALIFIED BUSINESS ENTITY,
(B) adding to, altering or improving real property, property or land of
such an enterprise OR ENTITY or (C) maintaining, servicing or repairing
real property, property or land of such an enterprise OR ENTITY, as the
terms real property, property or land are defined in the real property
tax law; provided, however, no credit or refund will be allowed under
this paragraph unless such tangible personal property is to become an
integral component part of such structure, building, real property,
property or land located in an area designated as an empire zone pursu-
ant to article eighteen-B of the general municipal law in, and with
respect to which such enterprise is certified pursuant to such article
eighteen-B OR IN A TRANSFORMATION COMMUNITY AS DEFINED IN PARAGRAPH ONE
OF SUBDIVISION (A) OF SECTION THIRTY-FIVE OF THIS CHAPTER.
S 7. Section 1456 of the tax law is amended by adding a new subsection
(x) to read as follows:
(X) COMMUNITY TRANSFORMATION PROGRAM CREDIT. (1) ALLOWANCE OF CREDIT.
A TAXPAYER WILL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN
SECTION THIRTY-FIVE OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS
ARTICLE.
(2) THE CREDIT ALLOWED UNDER THIS SUBSECTION FOR ANY TAXABLE YEAR WILL
NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS THAN THE MINIMUM TAX FIXED
BY PARAGRAPH THREE OF SUBSECTION (B) OF SECTION FOURTEEN HUNDRED FIFTY-
FIVE OF THIS ARTICLE. HOWEVER, IF THE AMOUNT OF CREDIT ALLOWED UNDER
THIS SUBSECTION FOR ANY TAXABLE YEAR REDUCES THE TAX TO SUCH AMOUNT, ANY
AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH TAXABLE YEAR WILL BE TREAT-
ED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR REFUNDED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION ONE THOUSAND EIGHTY-SIX OF THIS CHAPTER.
PROVIDED, HOWEVER, THE PROVISIONS OF SUBSECTION (C) OF SECTION ONE THOU-
SAND EIGHTY-EIGHT OF THIS CHAPTER NOTWITHSTANDING, NO INTEREST WILL BE
PAID THEREON.
S 8. Section 1511 of the tax law is amended by adding a new subdivi-
sion (aa) to read as follows:
(AA) COMMUNITY TRANSFORMATION PROGRAM CREDIT. (1) ALLOWANCE OF CREDIT.
A TAXPAYER WILL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN
SECTION THIRTY-FIVE OF THIS CHAPTER, AGAINST THE TAXES IMPOSED BY THIS
ARTICLE.
(2) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
FOR ANY TAXABLE YEAR WILL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE MINIMUM TAX FIXED BY THIS ARTICLE. HOWEVER, IF THE AMOUNT OF
CREDIT ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE
TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH
TAXABLE YEAR WILL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR
REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND
EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF
SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
NOTWITHSTANDING, NO INTEREST WILL BE PAID THEREON.
S 9. This act shall take effect immediately.
PART GG
S. 2811--B 146
Section 1. Subdivision 9 of section 602 of the racing, pari-mutuel
wagering and breeding law, as amended by chapter 115 of the laws of
2008, is amended and a new subdivision 15 is added to read as follows:
9. "Cost of corporation's functions." All costs and expenses incurred
by the corporation in connection with the performance of the functions
of the corporation, including, but not limited to, operating expenses of
the corporation, the cost of acquiring, constructing or equipping branch
offices and other facilities and premises of the corporation, [and
interest and principal on bonds,] notes or other obligations of the
corporation issued to finance the acquisition, construction or equipment
of such offices, facilities or premises.
15. "VENDOR OPERATOR." THE VENDOR OPERATOR SHALL BE SELECTED PURSUANT
TO THE PROVISIONS SET FORTH IN SECTION SIX HUNDRED TWENTY-FIVE OF THIS
ARTICLE AND SHALL BE RESPONSIBLE FOR THE ADMINISTRATION AND OPERATION OF
THE CORPORATION.
S 2. Section 603 of the racing, pari-mutuel wagering and breeding law,
as amended by chapter 115 of the laws of 2008, is amended to read as
follows:
S 603. New York city off-track betting corporation. 1. A corporation
to be known as the "New York city off-track betting corporation" is
hereby created. Such corporation shall be a body corporate and politic
constituting a public benefit corporation. It shall be [administered]
OVERSEEN by a board of directors consisting of five members, who may be
public officers, appointed by the governor for fixed terms as hereinaft-
er provided, one of whom shall be appointed on the recommendation of the
temporary president of the senate, and one of whom shall be appointed on
the recommendation of the speaker of the assembly.
2. THE TERMS OF ALL DIRECTORS SERVING A TERM THAT ENCOMPASSED JANUARY
TWENTY-FIFTH, TWO THOUSAND ELEVEN, SHALL BE DEEMED TO HAVE EXPIRED AND
NEW DIRECTORS SHALL BE APPOINTED. Of the directors, one shall be
appointed for a term ending on December thirty-first, two thousand
[nine] ELEVEN, one for a term ending on December thirty-first, two thou-
sand [ten] TWELVE, one for a term ending on December thirty-first, two
thousand [twelve] THIRTEEN, and the two directors appointed on the
recommendation of the temporary president of the senate and the speaker
of the assembly, for a term ending December thirty-first, two thousand
fourteen. Upon the expiration of such terms, the terms of office of
their successors shall be six years. Vacancies occurring otherwise than
by expiration of term shall be filled for the unexpired term.
3. The governor shall designate one of the directors to be chairman of
the board of directors and may at his pleasure, change his designation
of any such director to be chairman.
4. Each director shall continue to serve until the appointment and
qualification of his successor.
5. The directors shall be removable for cause by the governor, upon
charges and after a hearing.
6. The [powers] OVERSIGHT of the corporation shall be vested in and
exercised by the board at a meeting duly held at a time fixed by any
by-law adopted by the board, or at any duly adjourned meeting of such
meeting or at any meeting held upon reasonable notice to all of the
directors, or upon written waiver thereof, and a majority of the whole
number of directors shall constitute a quorum[; provided that neither
the business nor the powers of the corporation shall be transacted or
exercised except pursuant to the favorable vote of at least a majority
of the directors present at a meeting at which a quorum is in attend-
ance].
S. 2811--B 147
7. The board may delegate to one or more of the directors, officers,
agents or employees of the corporation such powers and duties as it may
deem proper.
8. The directors shall be reimbursed for their actual and necessary
expenses incurred in the performance of their official duties.
9. The directors may engage in outside employment or in a profession
or business EXCEPT AS AN EXECUTIVE OR LEGISLATIVE EMPLOYEE OR unless
otherwise prohibited from doing so by virtue of holding another public
office subject to the provisions of section seventy-three of the public
officers law.
10. The board shall hold an annual meeting.
11. The fiscal year of the corporation shall be the same as [that of
the city, provided, however, that the corporation shall have a nine
month fiscal year from July first, two thousand eight through March
thirty-first, two thousand nine, and then the fiscal year of the corpo-
ration shall be the same as] the state.
12. THE CORPORATION WILL BE ADMINISTERED BY THE VENDOR OPERATOR AND
THE POWERS OF THE CORPORATION SHALL BE VESTED IN THE VENDOR OPERATOR.
S 3. Section 617 of the racing, pari-mutuel wagering and breeding law
is amended to read as follows:
S 617. Exemption from taxation. [1.] The moneys and property of the
corporation and any property under its jurisdiction, control or super-
vision, and all of its activities and operations shall be exempt from
taxation.
[2. The state covenants with the purchasers of and with all subsequent
holders and transferees of bonds and notes issued by the corporation
pursuant to this article, in consideration of the acceptance of and
payment for the said bonds and notes, that the said bonds and notes and
the income therefrom, and all moneys, funds and revenue pledged to pay
or secure the payment of such bonds and notes shall at all time be free
from taxation, except for estate and gift taxes and taxes on transfers.]
S 4. The opening paragraph of section 621 of the racing, pari-mutuel
wagering and breeding law, as amended by chapter 115 of the laws of
2008, is amended to read as follows:
Within one hundred twenty days after the end of the fiscal year of the
corporation, the [directors thereof] VENDOR OPERATOR shall submit to the
governor, the legislature, the racing and wagering board and the state
comptroller a complete and detailed report setting forth:
S 5. The racing, pari-mutuel wagering and breeding law is amended by
adding a new section 625 to read as follows:
S 625. SELECTION OF VENDOR OPERATOR. 1. THE NEW YORK STATE RACING AND
WAGERING BOARD SHALL SUBMIT, WITHIN THIRTY DAYS AFTER THESE PROVISIONS
BECOME LAW, A REQUEST FOR PROPOSALS FROM QUALIFYING ENTITIES AS
DESCRIBED HEREIN FOR THE PURPOSE OF THE ADMINISTRATING OF THE CORPO-
RATION. THE ENTITY CHOSEN TO ADMINISTER THE CORPORATION SHALL ENTER INTO
A CONTRACT WITH THE STATE FOR A TERM OF TEN YEARS, WHICH MAY BE RENEWED
SUBJECT TO THE APPROVAL OF THE STATE RACING AND WAGERING BOARD AND THE
APPROVAL OF THE NEW YORK CITY OFF-TRACK BETTING BOARD OF DIRECTORS.
2. ELIGIBLE ENTITIES SHALL CONSIST OF INDIVIDUALS, PARTNERSHIPS OR
CORPORATIONS, PUBLIC OR PRIVATE, WHICH ARE REQUIRED AS PART OF THEIR
PROPOSAL TO SUBMIT AT LEAST ONE BUSINESS PLAN FOR THE RE-ESTABLISHMENT
AND CONTINUATION OF A PROFITABLE CORPORATION. IN AWARDING THE CONTRACT,
THE STATE RACING AND WAGERING BOARD MUST CONSIDER THE FOLLOWING CRITERIA
WITH RESPECT TO EACH APPLICANT: ITS EXPERIENCE IN MANAGING SUCCESSFUL
BUSINESS ENTERPRISES, ITS EXPERIENCE IN THE RACING INDUSTRY, ITS EXPERI-
ENCE IN THE PARI-MUTUEL AND/OR OFF-TRACK BETTING INDUSTRIES, ITS EXPERI-
S. 2811--B 148
ENCE IN THE ENTERTAINMENT INDUSTRY, THE FEASIBILITY OF ITS PROPOSED
BUSINESS PLAN OR PLANS, AND ITS COMMITMENT TO USE ITS BEST EFFORTS TO
SUPPORT THE VIABILITY OF OFF-TRACK BETTING IN THE CITY OF NEW YORK AS
WELL AS THE RACING INDUSTRY THROUGHOUT THE STATE.
3. ALL BUSINESS PLANS SUBMITTED BY AN ENTITY MUST INCLUDE PROVISIONS
FOR PRIORITY FOR CONSIDERATION FOR EMPLOYMENT BY ANY FORMER EMPLOYEE OF
THE CORPORATION WHOSE EMPLOYMENT TERMINATED OTHER THAN FOR CAUSE, BY
RETIREMENT, OR WITH A SEVERANCE AWARD. SUCH PLANS MUST ALSO PROVIDE FOR
REPRESENTATION OF OFF-TRACK BETTING BRANCH OFFICES, OR AN EQUIVALENT, IN
ALL OF THE BOROUGHS OF THE CITY OF NEW YORK, WITH PREFERENCE GIVEN FOR
BUSINESS PLANS THAT HAVE AT LEAST THREE FACILITIES IN EACH BOROUGH AND
THAT MAINTAIN THE SAME RATIO OF ACCESS TO OFF-TRACK BETTING FACILITIES
AS WAS PREVIOUSLY PROVIDED BY THE CORPORATION PRIOR TO DECEMBER FIRST,
TWO THOUSAND TEN.
4. THE STATE RACING AND WAGERING BOARD SHALL MAKE PUBLIC ITS PRELIMI-
NARY SELECTION OF THE VENDOR OPERATOR NO LATER THAN THREE MONTHS AFTER
THE SUBMISSION OF THE REQUEST FOR PROPOSALS, AND ALLOW FOR TWO WEEKS FOR
PUBLIC COMMENT. THE FINAL SELECTION AND THE CONTRACT BETWEEN THE VENDOR
AND THE STATE MUST BE FINALIZED WITHIN THIRTY DAYS OF THE PRELIMINARY
SELECTION, BUT NO SOONER THAN THE END OF THE TWO WEEK PUBLIC COMMENT
PERIOD.
5. THE SELECTION OF VENDOR MAY BE REVOKED AND CANCELLED BY THE STATE
RACING AND WAGERING BOARD FOR A MATERIAL BREACH OF CONTRACT OR FOR A
VIOLATION OF THE RULES OF THE STATE RACING AND WAGERING BOARD OR IF SUCH
VENDOR OR ITS OFFICERS OR DIRECTORS SHALL KNOWINGLY VIOLATE THE
PROVISIONS OF THIS CHAPTER OR OF THE PENAL LAW. THE ACTION OF THE STATE
RACING AND WAGERING BOARD IN REVOKING THE SELECTION SHALL BE REVIEWABLE
IN THE SUPREME COURT IN THE MANNER PROVIDED BY AND SUBJECT TO THE
PROVISIONS OF ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
6. FOR CONTRACTS IN EXCESS OF ONE HUNDRED THOUSAND DOLLARS, ENTERED
INTO BY THE VENDOR FOR THE PROCUREMENT OF GOODS OR SERVICES, THE BOARD
MAY REVIEW THE CHARACTER AND FITNESS OF THE ENTITY OR ITS PRINCIPALS
ENTERING INTO CONTRACTS WITH THE VENDOR.
S 6. Clause (E) of subparagraph 5 and clause (F) of subparagraph 6 of
paragraph b of subdivision 1 of section 1016 of the racing, pari-mutuel
wagering and breeding law, as amended by chapter 18 of the laws of 2008,
are amended to read as follows:
(E) On days when a franchised corporation is not conducting a race
meeting and when a licensed harness track is neither accepting wagers
nor displaying the signal from an in-state thoroughbred corporation or
association or an out-of-state thoroughbred track:
(i) Such licensed regional harness track shall receive in lieu of any
other payments on wagers placed at off-track betting facilities outside
the special betting district on races conducted by an in-state thorough-
bred racing corporation, [two and eight-tenths] ONE AND FOUR-TENTHS
percent on regular and multiple bets during a regional meeting and [one
and nine-tenths] NINETY-FIVE HUNDREDTHS percent of such bets if there is
no regional meeting and [four and eight-tenths] TWO AND FOUR-TENTHS
percent on exotic bets on days on which there is a regional meeting and
[three and four-tenths] ONE AND SEVEN-TENTHS percent of such bets if
there is no regional meeting.
(ii) Such licensed regional harness track shall receive [one and one-
half] SEVENTY-FIVE HUNDREDTHS per centum on total regional handle on
races conducted at out-of-state or out-of-country thoroughbred tracks.
(iii) In those regions in which there is more than one licensed
regional harness track, if no track is accepting wagers or displaying
S. 2811--B 149
the live simulcast signal from the out-of-state track, the total sum
shall be divided among the tracks in proportion to the ratio the wagers
placed on races conducted by each track bears to the corporation's total
in-region harness handle. If one or more tracks are accepting wagers or
displaying the live simulcast signal, the total amount shall be divided
among those tracks not accepting wagers or displaying the simulcast
signal for an out-of-state track or in-state thoroughbred corporation or
association.
(F) Of the sums retained by a licensed harness facility, [fifty] ONE
HUNDRED percent shall be used exclusively for purses awarded in races
conducted by such licensed facility [and the remaining fifty percent
shall be retained by such licensed facility for its general purposes,
provided, however, that in a harness special betting district the
portion of the sums retained by a licensed harness facility to be used
for purses or the methodology for calculating the amount to be used for
purses may be specified in a written contract between a harness racing
association or corporation and its representative horsemen's associ-
ation].
S 7. Section 1017 of the racing, pari-mutuel wagering and breeding
law, as amended by chapter 18 of the laws of 2008, is amended to read as
follows:
S 1017. Out-of-state or out-of-country races. 1. Licensed simulcast
facilities may accept wagers and display the signal of out-of-state or
out-of-country thoroughbred tracks after 7Labor P.M. in accordance with
the provisions of this section. Such simulcasting may include mixed
meetings if such meetings are integral to such racing programs and all
such wagering on such races shall be construed to be thoroughbred races.
For facilities located within the special betting district, such
approval shall also be required from a thoroughbred racing corporation
during the period a racing program is being conducted at such track.
Such approval shall not be required on any day such thoroughbred racing
corporation is also accepting an out-of-state or out-of-country signal
and wager, as authorized by this section. The provisions of section one
thousand sixteen of this article shall be applicable to the conduct of
such simulcasting and the provisions of clauses (A) and (B) of subpara-
graph four of paragraph b of subdivision one of section one thousand
sixteen of this article shall apply to those facilities licensed in
accordance with sections one thousand eight and one thousand nine of
this article and the provisions of clauses (A) and (B) of subparagraph
six of paragraph b of subdivision one of section one thousand sixteen of
this article shall apply to those facilities licensed in accordance with
section one thousand seven of this article, when such provisions are in
full force and effect pursuant to such section. Provided, however, the
provisions of section one thousand fourteen of this article shall be
applicable to the conduct of such simulcasting, when such provisions are
in full force and effect pursuant to such section.
2. a. Maintenance of effort. Any off-track betting corporation which
engages in accepting wagers on the simulcasts of thoroughbred races from
out-of-state or out-of-country as permitted under subdivision one of
this section shall submit to the board, for its approval, a schedule of
payments to be made in any year or portion thereof, that such off-track
corporation engages in nighttime thoroughbred simulcasting. In order to
be approved by the board, the payment schedule shall be identical to the
actual payments and distributions of such payments to [tracks and] purs-
es made by such off-track corporation pursuant to the provisions of
section one thousand fifteen of this article during the year two thou-
S. 2811--B 150
sand two, as derived from out-of-state harness races displayed after
6:00 P.M. If approved by the board, such scheduled payments shall be
made from revenues derived from any simulcasting conducted pursuant to
this section and section one thousand fifteen of this article.
b. Additional payments. During each calendar year, to the extent, and
at such time in the event, that aggregate statewide wagering handle
after 7Labor P.M. on out-of-state and out-of-country thoroughbred races
exceeds one hundred million dollars, each off-track betting corporation
conducting such simulcasting shall pay to its regional harness track or
tracks, an amount equal to [two] ONE percent of its proportionate share
of such excess handle. In any region where there are two or more
regional harness tracks, such two percent shall be divided between or
among the tracks in a proportion equal to the proportion of handle on
live harness races conducted at such tracks during the preceding calen-
dar year. [Fifty percent of the] THE sum received by each track pursuant
to this paragraph shall be used exclusively for increasing purses,
stakes and prizes at that regional harness track.
S 8. Subdivision 2 of section 529 of the racing, pari-mutuel wagering
and breeding law is amended to read as follows:
2. [Ninety-five percent of the balance of such account remaining
unclaimed as of the last day of February of such year shall be paid to
the state tax commission by March fifteenth. On or before April tenth of
each year the balance of such account and any other unclaimed amounts
received in the course of conducting off-track betting shall be paid by
such corporation to the state tax commission. A penalty of five percent
and interest at the rate of one percent per month from the due date to
the date of payment of the unclaimed balance due March fifteenth or
April tenth, as the case may be, shall be payable in case such balance
is not paid when due. Such amounts, interest and penalties when
collected by the state tax commission shall be deposited into the gener-
al fund of the state treasury] ON APRIL FIRST OF EACH YEAR, THE AMOUNT
OF TICKETS REMAINING UNCLAIMED FROM THE PRIOR YEAR MAY BE USED FOR
CORPORATE PURPOSES.
S 9. Section 509-a of the racing, pari-mutuel wagering and breeding
law, as added by chapter 681 of the laws of 1989 and the opening para-
graph as amended by chapter 346 of the laws of 1990, is amended to read
as follows
S 509-a. Capital acquisition fund. The corporation may create and
establish a capital acquisition fund for the purpose of financing the
acquisition, construction or equipping of offices, facilities or prem-
ises of the corporation. SUCH FUNDS MAY ALSO BE EXPENDED FOR THE RENO-
VATION OF ANY PROPERTIES, OR COSTS ASSOCIATED WITH THE CLOSURE OF ANY
FACILITIES, AND ANY INVESTMENT OR FUNDING NECESSARY TO EFFECTUATE A
SHARED SERVICES OR JOINT VENTURE PLAN WITH ANY OTHER PRIVATE OR PUBLIC
CORPORATION. Such capital acquisition fund shall consist of (i) the
amounts specified pursuant to subdivision three-a of section five
hundred thirty-two of this chapter; and (ii) contributions from the
corporation's pari-mutuel wagering pools, subject to the following limi-
tations:
(1) no contribution shall exceed the amount of one percent of the
total pari-mutuel wagering pools for the quarter in which the contrib-
ution is made;
(2) no contribution shall reduce the amount of quarterly net revenues,
exclusive of surcharge revenues, to an amount less than fifty percent of
such net revenues; and
S. 2811--B 151
(3) the balance of the fund shall not exceed the lesser of one percent
of total pari-mutuel wagering pools for the previous twelve months or
the undepreciated value of the corporation's offices, facilities and
premises.
S 10. Notwithstanding the foregoing, all funds accumulated in the
Suffolk regional off-track betting corporation capital acquisition fund,
established pursuant to section 509-a of the racing, pari-mutuel wager-
ing and breeding law, prior to January 1, 2011 or deposited into such
fund thereafter shall be made available to the Suffolk regional off-
track betting corporation for any corporate purpose under this act.
S 11. Subdivision 7 of section 532 of the racing, pari-mutuel wagering
and breeding law, as added by chapter 115 of the laws of 2008, is
amended to read as follows:
7. Notwithstanding any other provision of this section, any payments
otherwise payable to a city with a population of one million or more,
pursuant to this section, [other than payments pursuant to subparagraphs
(i) and (iii) of paragraph b of subdivision three of this section, shall
be payable to the corporation and shall be available for its corporate
purposes] SHALL PAY REMAINING AMOUNTS TO THE COMPTROLLER OF THE STATE OF
NEW YORK FOR DEPOSIT IN THE NEW YORK CITY OFF-TRACK BETTING CORPORATION
FUND.
S 12. Subdivision 2 of section 610 of the racing, pari-mutuel wagering
and breeding law, as amended by chapter 115 of the laws of 2008, is
amended to read as follows:
2. All moneys due the city pursuant to article five-A of this chapter
shall be paid to the New York city [comptroller] OFF-TRACK BETTING
CORPORATION FUND.
S 13. Subdivision 6 of section 527 of the racing, pari-mutuel wagering
and breeding law, as amended by chapter 115 of the laws of 2008, is
amended to read as follows:
6. The net amount remaining to each regional corporation after payment
of taxes and distributions pursuant to this section and after payment of
operating expenses and principal and interest on any obligations shall,
in the case of the New York city off-track betting corporation, be
retained by the corporation, and in the case of other regional corpo-
rations shall accrue and be payable to participating counties pursuant
to section five hundred sixteen of this chapter; provided, however, that
the [New York city off-track betting corporation] VENDOR OPERATOR, after
payment of all current taxes and distributions shall use such net amount
to pay all [liabilities] OPERATING EXPENSES of such corporation [as of
the effective date of the chapter of the laws of two thousand eight
which amended this subdivision], and at such time as all [liabilities]
OPERATING EXPENSES have been paid, such [corporation] VENDOR OPERATOR
shall pay ANY remaining amounts to the comptroller of the state of New
York for deposit in the [general fund of the state] NEW YORK CITY
OFF-TRACK BETTING CORPORATION FUND.
S 14. The racing, pari-mutuel wagering and breeding law is amended by
adding a new section 626 to read as follows:
S 626. VENDOR OPERATOR FEE. AS CONSIDERATION FOR THE OPERATION OF THE
CORPORATION, THE COMPTROLLER SHALL PAY A VENDOR FEE IN EXCHANGE FOR THE
DAILY OPERATIONS AND CAPITALIZATION OF A NEW YORK CITY OFF-TRACK BETTING
OPERATION TO BE PAID AS FOLLOWS: IF THE ANNUAL DEPOSIT INTO THE NEW
YORK CITY OFF-TRACK BETTING CORPORATION FUND IS LESS THAN TWO AND
ONE-HALF MILLION DOLLARS, THE VENDOR OPERATOR SHALL RECEIVE ONE HUNDRED
PERCENT OF THE ANNUAL DEPOSITS; IF THE ANNUAL DEPOSIT INTO THE NEW YORK
CITY OFF-TRACK BETTING CORPORATION FUND IS LESS THAN OR EQUAL TO TEN
S. 2811--B 152
MILLION DOLLARS, THE VENDOR OPERATOR SHALL BE PAID TWO AND ONE-HALF
MILLION DOLLARS AND THE REMAINING FUNDS SHALL BE DEPOSITED TO THE STATE
GENERAL FUND; IF THE ANNUAL DEPOSIT IS MORE THAN TEN MILLION DOLLARS,
THE VENDOR OPERATOR SHALL BE PAID TWENTY-FIVE PERCENT OF THE TOTAL ANNU-
AL DEPOSITS AND THE REMAINING FUNDS SHALL BE DEPOSITED TO THE STATE
GENERAL FUND.
S 15. The state finance law is amended by adding a new section 97-kkkk
to read as follows:
S 97-KKKK. NEW YORK CITY OFF-TRACK BETTING CORPORATION FUND. 1. THERE
IS HEREBY ESTABLISHED IN THE CUSTODY OF THE COMPTROLLER, A SPECIAL FUND
TO BE KNOWN AS THE "NEW YORK CITY OFF-TRACK BETTING CORPORATION FUND".
2. SUCH FUND SHALL CONSIST OF ALL MONIES RECEIVED BY THE STATE PURSU-
ANT TO SUBDIVISIONS ONE AND SIX OF SECTION FIVE HUNDRED TWENTY-SEVEN AND
SUBDIVISION SEVEN OF SECTION FIVE HUNDRED THIRTY-TWO OF THE RACING,
PARI-MUTUEL WAGERING AND BREEDING LAW. ANY INTEREST EARNED BY THE
INVESTMENT OF MONEYS IN SUCH FUND SHALL BE ADDED TO SUCH FUND, BECOME A
PART OF SUCH FUND, AND BE USED FOR THE PURPOSE OF SUCH FUND.
3. MONEYS OF THE NEW YORK CITY OFF-TRACK BETTING CORPORATION FUND
SHALL BE MADE AVAILABLE TO THE COMPTROLLER FOR THE PURPOSE OF PAYING THE
NEW YORK CITY OFF-TRACK BETTING VENDOR OPERATOR FEE DISTRIBUTED ACCORD-
ING TO SECTION SIX HUNDRED TWENTY-SIX OF THE RACING, PARI-MUTUEL WAGER-
ING AND BREEDING LAW; ALL REMAINING MONEY SHALL BE DISBURSED INTO THE
STATE GENERAL FUND.
S 16. The racing, pari-mutuel wagering and breeding law is amended by
adding a new section 113 to read as follows:
S 113. TELEPHONE AND INTERNET WAGERING. THE STATE RACING AND WAGERING
BOARD SHALL DETERMINE WHETHER ELIMINATING OR REGULATING THE AUTHORITY OF
OUT-OF-STATE ENTITIES TO ACCEPT TELEPHONE AND/OR INTERNET WAGERING FROM
NEW YORK STATE RESIDENTS PLACED WHILE IN NEW YORK STATE, WOULD BE
CONSISTENT WITH THE OBJECTIVES OF OFF-TRACK PARI-MUTUEL BETTING AS
DEFINED IN SECTION FIVE HUNDRED EIGHTEEN OF THIS CHAPTER, AND IF SO
DETERMINED, THE STATE RACING AND WAGERING BOARD SHALL ESTABLISH SUCH
GENERAL REGULATIONS TO ELIMINATE OR REGULATE THE PRACTICE OF
OUT-OF-STATE ENTITIES OF ACCEPTING SUCH WAGERS.
S 17. Subdivision 4 of section 606 of the racing, pari-mutuel wagering
and breeding law, as amended by chapter 115 of the laws of 2008, is
amended to read as follows:
4. All [employees and officers] PRESENT AND FUTURE RETIREES of the
corporation in classes or positions whose incumbents, in equivalent
classes or positions of the city, are eligible, as of the effective date
hereof, to participate in, and receive benefits from any city authorized
health insurance or welfare benefit program, shall be eligible to
participate in, and receive benefits from any such health insurance or
welfare benefit program; provided, however, that the [corporation] STATE
shall reimburse the city or its designee for the actual cost of benefits
under this subdivision.
S 18. Subdivisions 4 and 5 of section 610 of the racing, pari-mutuel
wagering and breeding law are REPEALED.
S 19. Section 611 of the racing, pari-mutuel wagering and breeding law
is REPEALED.
S 20. Section 612 of the racing, pari-mutuel wagering and breeding law
is REPEALED.
S 21. Section 613 of the racing, pari-mutuel wagering and breeding law
is REPEALED.
S 22. Section 614 of the racing, pari-mutuel wagering and breeding law
is REPEALED.
S. 2811--B 153
S 23. Section 616 of the racing, pari-mutuel wagering and breeding law
is REPEALED.
S 24. Section 620 of the racing, pari-mutuel wagering and breeding law
is REPEALED.
S 25. This act shall take effect immediately; provided however that
section ten of this act shall expire and be deemed repealed June 30,
2014.
S 2. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provisions had not been included herein.
S 3. This act shall take effect immediately provided, however, that
the applicable effective date of Parts A through GG of this act shall be
as specifically set forth in the last section of such Parts.