S T A T E O F N E W Y O R K
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10082
I N A S S E M B L Y
June 12, 2014
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Farrell) --
(at request of the Governor) -- read once and referred to the Commit-
tee on Ways and Means
AN ACT to amend the tax law, in relation to banning electronic and other
devices used to evade state and local taxes and imposing crimes and
penalties for their use in evading such taxes
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The tax law is amended by adding a new section 1822 to read
as follows:
S 1822. DEVICES AND SOFTWARE USED TO EVADE TAX. (A) BAN. THE DESIGN,
ENGINEERING, CREATION, SALE, LEASE, LICENSE TO USE, OFFER TO SELL OR
LEASE OR LICENSE, TRANSPORT, PURCHASE, INSTALLATION, OFFER TO PURCHASE,
POSSESSION, UPDATING, MAINTAINING, SERVICING, REPAIR, OR USE OF A DEVICE
OR SOFTWARE THAT FALSIFIES, DELETES, CONCEALS, SECRETES, SUPPRESSES,
HIDES, OR DISTORTS SALES OR OTHER TRANSACTION DATA IN, FROM, OR BY A
POINT OF SALE DEVICE, OR THAT CREATES, MANIPULATES, MAINTAINS, OR THAT
STORES AN ADDITIONAL FALSE OR INCORRECT SET OF RECORDS OR REPORTS, IN
ORDER TO EVADE ANY TAX IMPOSED BY THIS CHAPTER OR A RELATED STATUTE OR
TO EVADE THE PAYMENT OR PAYMENT OVER OF ANY MONEYS COLLECTED PURPORTEDLY
AS TAX IS HEREBY PROHIBITED.
(B) CRIMES. (1) ANY PERSON WHO VIOLATES ANY PROHIBITION IN SUBDIVISION
(A) OF THIS SECTION OR WHO CAUSES ANOTHER PERSON TO VIOLATE ANY PROHIBI-
TION IN SUBDIVISION (A) OF THIS SECTION SHALL BE GUILTY OF CRIMINAL USE
OF AN ILLEGAL TAX DEVICE OR SOFTWARE IN THE FIFTH DEGREE. CRIMINAL USE
OF AN ILLEGAL TAX DEVICE OR SOFTWARE IN THE FIFTH DEGREE IS A CLASS A
MISDEMEANOR.
(2) ANY PERSON WHO VIOLATES ANY PROHIBITION IN SUBDIVISION (A) OF THIS
SECTION OR WHO CAUSES ANOTHER PERSON TO VIOLATE ANY PROHIBITION IN
SUBDIVISION (A) OF THIS SECTION SHALL BE GUILTY OF CRIMINAL USE OF AN
ILLEGAL TAX DEVICE OR SOFTWARE IN THE FOURTH DEGREE WHERE THE AGGREGATE
TAX LIABILITY PAID THE STATE OR A POLITICAL SUBDIVISION OF THE STATE
(WHETHER BY MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) AS A
RESULT OF THE USE OF SUCH DEVICE OR SOFTWARE IS AT LEAST THREE THOUSAND
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12087-01-4
A. 10082 2
DOLLARS LESS THAN THE TAX LIABILITY THAT IS DUE. CRIMINAL USE OF AN
ILLEGAL TAX DEVICE OR SOFTWARE IN THE FOURTH DEGREE IS A CLASS E FELONY.
(3) ANY PERSON WHO VIOLATES ANY PROHIBITION IN SUBDIVISION (A) OF THIS
SECTION OR WHO CAUSES ANOTHER PERSON TO VIOLATE ANY PROHIBITION IN
SUBDIVISION (A) OF THIS SECTION SHALL BE GUILTY OF CRIMINAL USE OF AN
ILLEGAL TAX DEVICE OR SOFTWARE IN THE THIRD DEGREE WHERE THE AGGREGATE
TAX LIABILITY PAID THE STATE OR A POLITICAL SUBDIVISION OF THE STATE
(WHETHER BY MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) AS A
RESULT OF THE USE OF SUCH DEVICE OR SOFTWARE IS AT LEAST TEN THOUSAND
DOLLARS LESS THAN THE TAX LIABILITY THAT IS DUE. CRIMINAL USE OF AN
ILLEGAL TAX DEVICE OR SOFTWARE IN THE THIRD DEGREE IS A CLASS D FELONY.
(4) ANY PERSON WHO VIOLATES ANY PROHIBITION IN SUBDIVISION (A) OF THIS
SECTION OR WHO CAUSES ANOTHER PERSON TO VIOLATE ANY PROHIBITION IN
SUBDIVISION (A) OF THIS SECTION SHALL BE GUILTY OF CRIMINAL USE OF AN
ILLEGAL TAX DEVICE OR SOFTWARE IN THE SECOND DEGREE WHERE THE AGGREGATE
TAX LIABILITY PAID THE STATE OR A POLITICAL SUBDIVISION OF THE STATE
(WHETHER BY MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) AS A
RESULT OF THE USE OF SUCH DEVICE OR SOFTWARE IS AT LEAST FIFTY THOUSAND
DOLLARS LESS THAN THE TAX LIABILITY THAT IS DUE. CRIMINAL USE OF AN
ILLEGAL TAX DEVICE OR SOFTWARE IN THE SECOND DEGREE IS A CLASS C FELONY.
(5) ANY PERSON WHO VIOLATES ANY PROHIBITION IN SUBDIVISION (A) OF THIS
SECTION OR WHO CAUSES ANOTHER PERSON TO VIOLATE ANY PROHIBITION IN
SUBDIVISION (A) OF THIS SECTION SHALL BE GUILTY OF CRIMINAL USE OF AN
ILLEGAL TAX DEVICE OR SOFTWARE IN THE FIRST DEGREE WHERE THE AGGREGATE
TAX LIABILITY PAID THE STATE OR A POLITICAL SUBDIVISION OF THE STATE
(WHETHER BY MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) AS A
RESULT OF THE USE OF SUCH DEVICE OR SOFTWARE IS AT LEAST ONE MILLION
DOLLARS LESS THAN THE TAX LIABILITY THAT IS DUE. CRIMINAL USE OF AN
ILLEGAL TAX DEVICE OR SOFTWARE IN THE FIRST DEGREE IS A CLASS B FELONY.
(C) DISPOSITION OF FINES AND INTEREST. ALL FINES, PENALTIES, AND
INTEREST LEVIED UNDER THIS SECTION SHALL BE PAID INTO THE STATE TREASURY
TO THE CREDIT OF THE GENERAL FUND. HOWEVER, FINES OR INTEREST PAID IN
RESPECT TO THE EVASION OF SALES AND COMPENSATING USE TAXES IMPOSED
PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER SHALL
BE DISPOSED OF AS PROVIDED IN SECTION TWELVE HUNDRED SIXTY-ONE OF THIS
CHAPTER.
(D) SEPARATE OFFENSE. THE CRIMES AND PENALTIES IN THIS SECTION SHALL
BE IN ADDITION TO AND CONSIDERED A SEPARATE OFFENSE FROM ANY OFFENSE
UNDER THE OTHER SECTIONS OF THIS ARTICLE OR UNDER THE PENAL LAW.
(E) DEFINITIONS. FOR PURPOSES OF THIS SECTION:
(1) "DEVICE" INCLUDES AN ELECTRICAL, ELECTRONIC, MECHANICAL, OR OTHER
DEVICE.
(2) "SOFTWARE" INCLUDES PREWRITTEN OR CUSTOM SOFTWARE, OF ANY NATURE
WHATSOEVER, WHETHER SOLD AS PART OF A PACKAGE, AS A SEPARATE COMPONENT,
OR OTHERWISE, AND REGARDLESS OF THE MEDIUM BY MEANS OF WHICH THE SOFT-
WARE IS CONVEYED TO THE PURCHASER, LESSEE, LICENSEE, OR USER, AND
INCLUDES ANY UPDATE TO SUCH SOFTWARE.
(3) "CREATION" INCLUDES MANUFACTURING, PRODUCING, PROCESSING, ASSEMBL-
ING, FABRICATING, WRITING, PROGRAMMING, UPDATING, AND OTHER PROCESSES
THAT CULMINATE IN A DEVICE OR SOFTWARE.
(4) "POINT OF SALE DEVICE" MEANS A DEVICE THAT ACCEPTS, RECORDS,
COMPILES, PROCESSES, OR STORES DETAILS OF A TRANSACTION AT THE TIME OF
OR IN CONJUNCTION WITH A SALE, SUCH AS A COMPUTER, CASH REGISTER AND THE
LIKE, AND SHALL INCLUDE, AMONG OTHER THINGS, A TAXIMETER UNDER ARTICLE
TWENTY-NINE-A OF THIS CHAPTER AND SIMILAR DEVICES.
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(5) "SALES OR OTHER TRANSACTION DATA" INCLUDES DATA ASSOCIATED WITH
PROPERTY OR SERVICES PURCHASED BY A CUSTOMER, THE PRICES FOR EACH ITEM,
A TAXABILITY DETERMINATION FOR EACH ITEM, A SEGREGATED TAX AMOUNT FOR
EACH OF THE TAXED ITEMS, THE AMOUNT OF CASH OR OTHER CONSIDERATION
TENDERED, ANY AMOUNT RETURNED TO THE CUSTOMER IN CHANGE, THE DATE AND
TIME OF THE PURCHASE, THE NAME, ADDRESS, AND IDENTIFICATION NUMBER OF
THE SELLER, AND THE RECEIPT, SEQUENCE OR INVOICE NUMBER OF THE TRANS-
ACTION.
(6) "PERSON" SHALL ALSO INCLUDE THE ENTITIES INCLUDED IN SUBDIVISION
(A) OF SECTION ELEVEN HUNDRED ONE OF THIS CHAPTER.
(7) "WILLFULLY," "THIS CHAPTER," "RELATED STATUTE," AND "RELATED
INCOME OR EARNINGS TAX STATUTE" SHALL HAVE THE SAME MEANING AS THOSE
TERMS HAVE IN SECTION EIGHTEEN HUNDRED ONE OF THIS ARTICLE.
S 2. The tax law is amended by adding a new section 177-a to read as
follows:
S 177-A. DEVICES AND SOFTWARE USED TO EVADE TAX BANNED, CIVIL PENAL-
TIES. (1) CIVIL PENALTIES. (A) ANY PERSON WHO USES A DEVICE OR SOFTWARE
BANNED PURSUANT TO SECTION EIGHTEEN HUNDRED TWENTY-TWO OF THIS CHAPTER
TO EVADE ANY TAX DUE UNDER THIS CHAPTER OR A RELATED STATUTE OR TO EVADE
THE PAYMENT OR PAYMENT OVER OF ANY MONEYS COLLECTED PURPORTEDLY AS TAX
SHALL BE LIABLE FOR A PENALTY EQUAL TO THREE HUNDRED PERCENT OF THE
AMOUNT EVADED OR ESTIMATED TO BE EVADED TOGETHER WITH INTEREST AT THE
UNDERPAYMENT RATE SET BY THE COMMISSIONER AS DESCRIBED IN SUBDIVISION
(E) OF SECTION ONE THOUSAND NINETY-SIX OF THIS CHAPTER IN ADDITION TO
ANY CRIME OR PENALTY UNDER THIS CHAPTER OR OTHER LAW THAT SUCH PERSON
MAY BE SUBJECT.
(B) TWO OR MORE PERSONS WHO CONSPIRE TO USE A DEVICE OR SOFTWARE
BANNED PURSUANT TO SECTION EIGHTEEN HUNDRED TWENTY-TWO OF THIS CHAPTER
IN A SCHEME TO EVADE ANY TAX DUE UNDER THIS CHAPTER OR A RELATED STATUTE
OR TO EVADE THE PAYMENT OR PAYMENT OVER OF ANY MONEYS COLLECTED PURPORT-
EDLY AS TAX SHALL BE LIABLE FOR A PENALTY EQUAL TO THREE HUNDRED PERCENT
OF THE AMOUNT EVADED OR ESTIMATED TO BE EVADED TOGETHER WITH INTEREST AT
THE UNDERPAYMENT RATE SET BY THE COMMISSIONER AS DESCRIBED IN SUBDIVI-
SION (E) OF SECTION ONE THOUSAND NINETY-SIX OF THIS CHAPTER IN ADDITION
TO ANY CRIME OR PENALTY UNDER THIS CHAPTER OR OTHER LAW THAT SUCH
PERSONS MAY BE SUBJECT. SUCH PERSONS SHALL BE JOINTLY AND SEVERALLY
LIABLE FOR THE TOTAL AMOUNT OF THE PENALTY AND INTEREST. A PERSON WHO
SELLS, LEASES, OR LICENSES THE USE OF SUCH A BANNED DEVICE OR SOFTWARE
TO ANOTHER PERSON WHO USES THE BANNED DEVICE OR SOFTWARE TO EVADE THE
PAYMENT OF ANY SUCH TAX OR MONEYS COLLECTED PURPORTEDLY AS TAX SHALL BE
PRESUMED TO HAVE CONSPIRED TO USE A BANNED DEVICE OR SOFTWARE IN A
SCHEME TO EVADE ANY TAX DUE WITH SUCH OTHER PERSON.
(C) ANY PERSON WHO DESIGNS, ENGINEERS, CREATES, OFFERS TO SELL OR
LEASE OR LICENSE TO USE, TRANSPORTS, POSSESSES, MAINTAINS, SERVICES, OR
REPAIRS A DEVICE OR SOFTWARE BANNED PURSUANT TO SECTION EIGHTEEN HUNDRED
TWENTY-TWO OF THIS CHAPTER, AND KNOWS, OR REASONABLY SHOULD HAVE KNOWN,
THAT THE DEVICE OR SOFTWARE WILL BE USED TO EVADE TAX OR PAYMENT OR
PAYMENT OVER OF ANY MONEYS COLLECTED AS A TAX SHALL BE LIABLE FOR A
PENALTY EQUAL TO THREE HUNDRED PERCENT OF THE AMOUNT EVADED OR ESTIMATED
TO BE EVADED TOGETHER WITH INTEREST AT THE UNDERPAYMENT RATE SET BY THE
COMMISSIONER AS DESCRIBED IN SUBDIVISION (E) OF SECTION ONE THOUSAND
NINETY-SIX OF THIS CHAPTER IN ADDITION TO ANY CRIME OR PENALTY UNDER
THIS CHAPTER OR OTHER LAW THAT SUCH PERSONS MAY BE SUBJECT.
(D) THE COMMISSIONER SHALL ASSESS PENALTY AND INTEREST UNDER THIS
SUBDIVISION IN ACCORD WITH PROCEDURES APPLICABLE TO THE TYPE OF TAX
FOUND TO HAVE BEEN EVADED.
A. 10082 4
(2) ESTIMATION OF TAX EVADED. IF A RETURN OR REPORT REQUIRED TO BE
FILED BY THIS CHAPTER OR A RELATED STATUTE IS INCORRECT OR INSUFFICIENT
BECAUSE THE PERSON REQUIRED TO FILE IT IS FOUND TO HAVE USED A DEVICE OR
SOFTWARE BANNED PURSUANT TO SECTION EIGHTEEN HUNDRED TWENTY-TWO OF THIS
CHAPTER WITH INTENT TO EVADE TAX, THE COMMISSIONER SHALL DETERMINE THE
AMOUNT OF TAX DUE FROM SUCH INFORMATION AS MAY BE AVAILABLE. IF NECES-
SARY, THE COMMISSIONER MAY ESTIMATE TAX ON THE BASIS OF EXTERNAL
INDICES, SUCH AS STOCK ON HAND, PURCHASES, RENTAL PAID, NUMBER OF ROOMS,
LOCATION, SCALE OF RENTS OR CHARGES, COMPARABLE RENTS OR CHARGES, TYPE
OF ACCOMMODATIONS AND SERVICE, NUMBER OF EMPLOYEES OR OTHER FACTORS. IN
THE CASE OF RETAIL FOOD STORES AND OTHER PARTICIPANTS APPROVED FOR
PARTICIPATION IN THE FEDERAL FOOD STAMP PROGRAM UNDER OR PURSUANT TO THE
FEDERAL FOOD STAMP ACT OF NINETEEN HUNDRED SEVENTY-SEVEN (7 U.S.C. S
2011 ET SEQ.), AS AMENDED, WHOSE RECORDS ARE INCOMPLETE OR INADEQUATE TO
DETERMINE TAX, THE EXTERNAL INDICES UPON WHICH TAX MAY BE ESTIMATED AND
DETERMINED MAY ALSO INCLUDE INFORMATION CONTAINED IN APPLICATIONS,
UPDATES OF APPLICATIONS, REDEMPTION CERTIFICATES, RETURNS AND REPORTS
WHICH SUCH RETAIL FOOD STORES AND OTHER PARTICIPANTS FURNISH TO OR ARE
FURNISHED BY THE UNITED STATES GOVERNMENT OR THIS STATE OR THEIR AGEN-
CIES IN ORDER FOR SUCH RETAIL FOOD STORES AND OTHER PARTICIPANTS TO
PARTICIPATE IN THE FOOD STAMP PROGRAM OR TO REDEEM COUPONS ISSUED UNDER
OR PURSUANT TO SUCH FOOD STAMP ACT AND ANY OTHER AVAILABLE INFORMATION
CONSIDERED RELEVANT. WHENEVER SUCH TAX IS ESTIMATED AS PROVIDED FOR IN
THIS SUBDIVISION, THE COMMISSIONER'S NOTICE TO SUCH PERSON SHALL CONTAIN
A STATEMENT IN BOLD FACE TYPE CONSPICUOUSLY PLACED ON SUCH NOTICE ADVIS-
ING THE TAXPAYER: THAT THE AMOUNT OF THE TAX WAS ESTIMATED; THAT THE TAX
MAY BE CHALLENGED THROUGH A HEARING PROCESS; AND THAT THE PETITION FOR
SUCH CHALLENGE MUST BE FILED WITH THE DIVISION OF TAX APPEALS WITHIN
NINETY DAYS. THE COMMISSIONER SHALL OTHERWISE ASSESS TAX ESTIMATED
PURSUANT TO THIS SUBDIVISION IN ACCORDANCE WITH PROCEDURES APPLICABLE TO
THE TYPE OF TAX FOUND TO HAVE BEEN EVADED.
(3) REIMBURSEMENT OF COMMISSIONER'S EXPENSES. IF THE COMMISSIONER
EMPLOYS OR HIRES A COMPUTER OR SOFTWARE FORENSIC EXPERT OR OTHER PERSON
TO INVESTIGATE AND DETECT OR FIND THE USE OF A DEVICE OR SOFTWARE BANNED
PURSUANT TO SECTION EIGHTEEN HUNDRED TWENTY-TWO OF THIS CHAPTER BY A
PERSON REQUIRED TO FILE A RETURN OR REPORT REQUIRED UNDER OR PURSUANT TO
THE AUTHORITY OF THIS CHAPTER OR RELATED STATUTE, AND SUCH EXPERT OR
OTHER PERSON DETECTS OR FINDS THAT SUCH PERSON REQUIRED TO FILE A RETURN
OR REPORT HAS USED SUCH A BANNED DEVICE OR SOFTWARE, OR COMBINATION OF
THEM, AND THE COMMISSIONER FINDS THAT SUCH PERSON HAS EVADED THE REPORT-
ING OR PAYMENT OR PAYMENT OVER OF ANY TAX OR MONEYS COLLECTED PURPORTED-
LY AS TAX, THEN THE COMMISSIONER SHALL BE AUTHORIZED TO CHARGE TO SUCH
PERSON THAT SO EVADED TAX OR THE PAYMENT OR PAYMENT OVER OF SUCH MONEYS
THE COMMISSIONER'S COSTS AND EXPENSES TO EMPLOY OR HIRE SUCH EXPERT OR
OTHER PERSON FOR SUCH INVESTIGATION, INCLUDING ALL REASONABLE COSTS AND
EXPENSES OF THE COMMISSIONER OR OF SUCH EXPERT OR OTHER PERSON. ANY SUCH
COSTS AND EXPENSES CHARGED UNDER THIS SUBDIVISION SHALL BE IN ADDITION
TO ANY CIVIL OR CRIMINAL FINES, PENALTIES, AND INTEREST THAT MAY BE
IMPOSED BY ANY OTHER PROVISION OF LAW.
(4) LOSS OF CERTIFICATE OF AUTHORITY. IF THE COMMISSIONER HAS ISSUED A
CERTIFICATE OF AUTHORITY UNDER SECTION ELEVEN HUNDRED THIRTY-FOUR OF
THIS CHAPTER TO A PERSON, AND THE COMMISSIONER FINDS THAT THE PERSON HAS
USED SUCH A BANNED DEVICE OR SOFTWARE, OR COMBINATION OF THEM, TO EVADE
THE REPORTING OR PAYMENT OR PAYMENT OVER OF ANY TAX OR ANY MONEYS
COLLECTED PURPORTEDLY AS TAX UNDER THIS CHAPTER OR A RELATED STATUTE,
THE COMMISSIONER SHALL REVOKE SUCH CERTIFICATE OF AUTHORITY PURSUANT TO
A. 10082 5
THE PROCEDURES SET FORTH IN SECTION ELEVEN HUNDRED THIRTY-FOUR OF THIS
CHAPTER; PROVIDED HOWEVER, THAT A PERSON WHOSE CERTIFICATE OF AUTHORITY
HAS BEEN SO REVOKED SHALL NOT BE ALLOWED TO APPLY FOR OR HOLD ANY
CERTIFICATE OF AUTHORITY ISSUED UNDER SUCH SECTION ELEVEN HUNDRED THIR-
TY-FOUR FOR A PERIOD OF FIVE YEARS FROM THE EFFECTIVE DATE OF SUCH REVO-
CATION. IN ADDITION, SUCH PERSON SHALL NOT BE ALLOWED TO BE A "PERSON
REQUIRED TO COLLECT TAX" WITH REGARD TO ANY OTHER PERSON THAT HOLDS OR
SEEKS TO APPLY FOR SUCH A CERTIFICATE OF AUTHORITY DURING SUCH FIVE YEAR
PERIOD, AND THE COMMISSIONER SHALL NOT ISSUE A CERTIFICATE OF AUTHORITY
DURING SUCH FIVE YEAR PERIOD TO ANY PERSON WHO EMPLOYS SUCH PERSON WHOSE
CERTIFICATE WAS SO REVOKED OR TO ANY PERSON IN WHICH SUCH PERSON WHOSE
CERTIFICATE WAS SO REVOKED IS A PERSON REQUIRED TO COLLECT TAX OR HAS A
TEN PERCENT OR MORE OWNERSHIP INTEREST OF ANY NATURE. "PERSON REQUIRED
TO COLLECT TAX" SHALL HAVE THE SAME MEANING AS SUCH TERM HAS IN SECTION
ELEVEN HUNDRED THIRTY-ONE OF THIS CHAPTER.
(5) DISPOSITION OF FINES AND INTEREST. ALL FINES, PENALTIES, AND
INTEREST LEVIED UNDER THIS SECTION SHALL BE PAID INTO THE STATE TREASURY
TO THE CREDIT OF THE GENERAL FUND. HOWEVER, FINES OR INTEREST PAID IN
RESPECT TO THE EVASION OF SALES AND COMPENSATING USE TAXES IMPOSED
PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER SHALL
BE DISPOSED OF AS PROVIDED IN SECTION TWELVE HUNDRED SIXTY-ONE OF THIS
CHAPTER.
(6) ADDITIONAL FINES, PENALTIES AND INTEREST. THE FINES, PENALTIES,
AND INTEREST IN THIS SECTION SHALL BE IN ADDITION TO ANY PENALTIES AND
INTEREST IMPOSED BY ANY OTHER SECTION OF THIS CHAPTER OR OTHER LAW.
(7) DEFINITIONS. FOR PURPOSES OF THIS SECTION, THE DEFINITIONS IN
SECTION EIGHTEEN HUNDRED TWENTY-TWO OF THIS CHAPTER SHALL BE APPLICABLE.
S 3. This act shall take effect January 1, 2015.