A. 5639 2
AND MAY REQUIRE ANY SUCH DISTRIBUTOR TO FILE WITH THE DEPARTMENT A BOND
ISSUED BY A SURETY COMPANY OF INSURANCE AS TO SOLVENCY AND RESPONSIBIL-
ITY AND AUTHORIZED TO TRANSACT BUSINESS IN THE STATE OR OTHER SECURITY
ACCEPTABLE TO THE COMMISSIONER, IN SUCH AMOUNT AS THE COMMISSIONER MAY
FIX, TO SECURE THE PAYMENT OF ANY SUMS DUE FROM SUCH DISTRIBUTOR PURSU-
ANT TO THIS SECTION. IF SECURITIES ARE DEPOSITED AS SECURITY UNDER THIS
SUBDIVISION, SUCH SECURITIES SHALL BE KEPT IN THE CUSTODY OF THE COMMIS-
SIONER AND MAY BE SOLD BY THE COMMISSIONER IF IT BECOMES NECESSARY TO DO
SO IN ORDER TO RECOVER ANY SUMS DUE FROM SUCH AGENT PURSUANT TO THIS
SECTION, BUT NO SUCH SALE SHALL BE HAD UNTIL AFTER SUCH AGENT SHALL HAVE
HAD AN OPPORTUNITY TO LITIGATE THE VALIDITY OF ANY PREPAYMENT OF TAX.
UPON ANY SUCH SALE, THE SURPLUS, IF ANY, ABOVE THE SUMS DUE UNDER THIS
SECTION SHALL BE RETURNED TO SUCH DISTRIBUTOR. ANY BOND OR SECURITY
REQUIRED UNDER THIS SECTION SHALL SECURE PAYMENT OF THE SUMS DUE UNDER
ANY OTHER PROVISION RELATING TO THE TAX UPON BEER AND UNDER THIS
SECTION.
(3) EVERY PERSON OTHER THAN A DISTRIBUTOR WHO BRINGS BEER INTO THIS
STATE TO BE SOLD AT RETAIL FOR OFF PREMISES CONSUMPTION SHALL PREPAY THE
TAX IMPOSED BY THIS SECTION AT THE SAME TIME AND IN THE SAME MANNER AS
THE USE TAX IMPOSED BY THIS CHAPTER. THE COMMISSIONER MAY REQUIRE ANY
COMPENSATING USE TAX IMPOSED BY THIS CHAPTER TO BE PAID AT SUCH TIME
AFTER ALLOWING FOR ANY CREDIT PROVIDED BY SUBDIVISION (B) OF SECTION
ELEVEN HUNDRED TWENTY-ONE OF THIS ARTICLE.
(4) THE AMOUNT OF THE PREPAYMENT FOR SUCH TAX ON BEER IMPOSED BY THIS
SECTION SHALL BE COMPUTED PURSUANT TO THE PROVISIONS OF SUBDIVISION (J)
OF SECTION ELEVEN HUNDRED ELEVEN OF THIS ARTICLE.
(B) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE TAXES REQUIRED
TO BE PREPAID PURSUANT TO THIS SECTION SHALL BE ADMINISTERED AND
COLLECTED IN A LIKE MANNER AS THE TAXES IMPOSED BY SECTIONS ELEVEN
HUNDRED FIVE AND ELEVEN HUNDRED TEN OF THIS ARTICLE. ALL THE PROVISIONS
OF THIS ARTICLE RELATING TO OR APPLICABLE TO THE ADMINISTRATION,
COLLECTION AND DISPOSITION OF THE TAXES IMPOSED BY SUCH SECTIONS SHALL
APPLY TO THE TAX REQUIRED TO BE PREPAID UNDER THIS SECTION SO FAR AS
SUCH PROVISIONS CAN BE MADE APPLICABLE TO SUCH PREPAYMENTS OF TAX WITH
SUCH LIMITATIONS AS SET FORTH IN THIS ARTICLE AND SUCH MODIFICATIONS AS
MAY BE NECESSARY IN ORDER TO ADAPT SUCH LANGUAGE TO THE TAX SO IMPOSED;
PROVIDED, HOWEVER, THAT THE PROVISIONS OF PARAGRAPH ONE OF SUBDIVISION
(C) OF SECTION ELEVEN HUNDRED THIRTY-SEVEN OF THIS ARTICLE SHALL NOT BE
APPLICABLE TO SUCH TAX REQUIRED TO BE PREPAID UNDER THIS SECTION. SUCH
PROVISIONS SHALL APPLY WITH THE SAME FORCE AND EFFECT AS IF THE LANGUAGE
OF THOSE PROVISIONS HAD BEEN SET FORTH IN FULL IN THIS SECTION EXCEPT TO
THE EXTENT THAT ANY PROVISION IS EITHER INCONSISTENT WITH A PROVISION OF
THIS SECTION OR IS NOT RELEVANT TO THE TAX REQUIRED TO BE PREPAID BY
THIS SECTION. FOR PURPOSES OF THIS SECTION, ANY REFERENCE IN THIS ARTI-
CLE TO THE TAX OR TAXES IMPOSED BY THIS ARTICLE SHALL BE DEEMED TO REFER
TO THE TAX REQUIRED TO BE PREPAID PURSUANT TO THIS SECTION UNLESS A
DIFFERENT MEANING IS CLEARLY REQUIRED. ALSO FOR PURPOSES OF SUCH PREPAY-
MENT REQUIREMENT DISTRIBUTOR SHALL MEAN AND INCLUDE A NON-COMMERCIAL
DISTRIBUTOR.
(C) NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO REQUIRE THE PAYMENT
OF THE TAX REQUIRED TO BE PREPAID PURSUANT TO THIS SECTION MORE THAN
ONCE UPON SUCH BEER POSSESSED FOR SALE OR USED WITHIN THE STATE. WHEN
THE PREPAID TAX IMPOSED PURSUANT TO THIS SECTION IS PAID, IT SHALL HAVE
BEEN SO PAID ON ACCOUNT OF THE TAXES IMPOSED BY THIS ARTICLE AND PURSU-
ANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER WITH RESPECT
TO THE RETAIL SALE OR THE USE OF SUCH BEER. NOTHING IN THIS SECTION
A. 5639 3
SHALL MODIFY OR AFFECT THE TAXES IMPOSED BY SECTIONS ELEVEN HUNDRED FIVE
AND ELEVEN HUNDRED TEN OF THIS ARTICLE AS APPLIED TO RECEIPTS FROM THE
SALE, OR TO THE USE, OF SUCH BEER.
(D) (1) CONSISTENT WITH SECTIONS ELEVEN HUNDRED FORTY-EIGHT OF THIS
ARTICLE AND TWELVE HUNDRED SIXTY-ONE OF THIS CHAPTER, THE TAXES REQUIRED
TO BE PREPAID PURSUANT TO THIS SECTION AND INTEREST AND PENALTIES THERE-
ON RECEIVED BY THE COMMISSIONER, AFTER DEDUCTING THE AMOUNT WHICH THE
COMMISSIONER SHALL DETERMINE TO BE NECESSARY FOR REASONABLE COSTS OF THE
COMMISSIONER IN ADMINISTERING, COLLECTING, AND DISTRIBUTING SUCH TAXES,
SHALL BE DEPOSITED DAILY WITH SUCH RESPONSIBLE BANKS, BANKING HOUSES OR
TRUST COMPANIES, AS MAY BE DESIGNATED BY THE COMPTROLLER, TO THE CREDIT
OF THE COMPTROLLER. OF THE TOTAL REVENUE COLLECTED OR RECEIVED UNDER
THIS SECTION, THE COMPTROLLER SHALL RETAIN IN THE COMPTROLLER'S HANDS
SUCH AMOUNT AS THE COMMISSIONER MAY DETERMINE TO BE NECESSARY FOR
REFUNDS UNDER THIS ARTICLE AND PURSUANT TO THE AUTHORITY OF ARTICLE
TWENTY-NINE OF THIS CHAPTER.
(2) ON OR BEFORE THE TWELFTH DAY OF EACH MONTH, AFTER RESERVING SUCH
AMOUNT FOR SUCH REFUNDS AND SUCH COSTS, THE COMMISSIONER SHALL DETERMINE
THE AMOUNT OF ALL REVENUES SO RECEIVED DURING THE PRIOR MONTH AS A
RESULT OF THE TAXES, INTEREST AND PENALTIES SO IMPOSED AND, IN ADDITION,
ON OR BEFORE THE LAST DAY OF JUNE AND DECEMBER THE COMMISSIONER SHALL
DETERMINE IN LIKE MANNER THE AMOUNT OF SUCH MONEYS RECEIVED DURING AND
INCLUDING THE FIRST TWENTY-FIVE DAYS OF SAID MONTHS. THE COMMISSIONER
SHALL DETERMINE THE PROPORTION OF REVENUES ATTRIBUTABLE TO RECEIPTS FOR
THE PERIOD FOR WHICH THE DETERMINATION IS MADE PURSUANT TO THE PRECEDING
SENTENCE FROM TAXES ON SALES AND USES OF PROPERTY AND SERVICES AND RENT
AND AMUSEMENT CHARGES IMPOSED BY THIS ARTICLE AND PURSUANT TO THE
AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER AND ADMINISTERED BY THE
COMMISSIONER WHICH IS PAYABLE TO EACH JURISDICTION DETERMINED WITHOUT
REGARD TO THIS SECTION. THE AMOUNT OF REVENUES SO DETERMINED PURSUANT TO
THIS SECTION SHALL BE DEPOSITED AND DISTRIBUTED BY THE COMPTROLLER IN
ACCORDANCE WITH THE SAME PERCENTAGE AMOUNT TO WHICH A JURISDICTION IS
ENTITLED DETERMINED WITHOUT REGARD TO THIS SECTION. WHERE THE AMOUNT SO
DETERMINED IN ANY DISTRIBUTION FROM SUCH TAXES (OTHER THAN THE TAX
IMPOSED BY THIS SECTION) IS MORE OR LESS THAN THE AMOUNT DUE, THE AMOUNT
OF THE OVERPAYMENT OR UNDERPAYMENT SHALL BE DETERMINED AS SOON AFTER THE
DISCOVERY OF THE OVERPAYMENT OR UNDERPAYMENT AS IS REASONABLY POSSIBLE
AND SUBSEQUENT DETERMINATIONS SHALL BE ADJUSTED BY SUBTRACTING THE
AMOUNT OF ANY SUCH OVERPAYMENT FROM OR BY ADDING THE AMOUNT OF ANY SUCH
UNDERPAYMENT TO SUCH NUMBER OF SUBSEQUENT PAYMENTS AS THE COMPTROLLER
AND THE COMMISSIONER SHALL CONSIDER REASONABLE IN VIEW OF THE AMOUNT OF
THE OVERPAYMENT OR UNDERPAYMENT AND ALL OTHER PERTINENT FACTS AND
CIRCUMSTANCES. THE COMMISSIONER SHALL NOT BE LIABLE FOR ANY OVERESTIMATE
OR UNDERESTIMATE OF THE AMOUNT OF THE DISTRIBUTION. NOR SHALL THE
COMMISSIONER BE LIABLE FOR ANY INACCURACY IN ANY DETERMINATION WITH
RESPECT TO THE AMOUNT OF THE DISTRIBUTION OR ANY REQUIRED ADJUSTMENT
WITH RESPECT TO THE DISTRIBUTION, BUT THE COMMISSIONER SHALL AS SOON AS
PRACTICABLE AFTER DISCOVERY OF ANY ERROR ADJUST THE NEXT DETERMINATION
UNDER THIS SECTION TO REFLECT ANY SUCH ERROR.
S 2. Subdivision (d) of section 1111 of the tax law, as amended by
chapter 2 of the laws of 1995, is amended to read as follows:
(d) The commissioner is authorized and empowered to prescribe and,
from time to time, to amend schedules of the amount of tax to be
collected upon each gallon of motor fuel and diesel motor fuel sold at
retail and upon each gallon of such fuel subject to the tax required to
be prepaid pursuant to section eleven hundred two of this article or
A. 5639 4
upon each package of cigarettes sold at retail and upon each package of
cigarettes subject to the tax required to be prepaid under section elev-
en hundred three of this article, AND UPON EACH CONTAINER OF BEER as the
commissioner shall determine is approximately equal to the average rate
otherwise applicable, considering the regional average retail sales
prices of such fuel, the amount of the prepaid tax per package of ciga-
rettes in accordance with subdivision (j) of this section [and], THE
AMOUNT OF THE PREPAID TAX ON BEER AND, in the case of a sale at retail,
the ordinary price ranges for such fuel and cigarettes AND BEER, in lieu
of the regular schedule based on total receipts. Such rates shall be
uniform in each county but may vary as between counties, depending on
the general price ranges in effect in each county, but counties wholly
within a city shall have a uniform rate. If a political subdivision of a
county imposes a retail sales and use tax, separate rates may be
prescribed for it. Such schedules with reference to the tax required to
be prepaid on motor fuel and diesel motor fuel pursuant to section elev-
en hundred two of this article or the tax required to be prepaid on
cigarettes OR BEER under section eleven hundred three of this article
may fix the rate per gallon or per package of cigarettes OR CONTAINER OF
BEER in multiples of one-tenth of one cent, depending, in the case of
such fuel, on the regional average retail sales prices where such fuel
is, as the case may be, imported, manufactured, sold or used. Such sche-
dules with reference to such fuel [or], cigarettes OR BEER sold at
retail may fix the rate per gallon or per package, as the case may be,
in multiples of one-tenth of one cent depending on the price at which
such fuel or cigarettes OR BEER are sold. Where schedules fixing the
rate per gallon in multiples of one-tenth of one cent have been promul-
gated, the price shown on any metered pump or other dispensing device
from which such fuel is sold to a purchaser of such fuel, to be deliv-
ered directly to a vehicle propelled by any power other than muscular,
shall include the tax at the rate so fixed, and the commissioner may by
regulation prescribe the manner in which the amount of tax shall be
shown for the information of customers by signs or placards on the prem-
ises where such fuel is sold. When determining tax required to be
collected on the retail sale of motor fuel or diesel motor fuel or ciga-
rettes OR BEER, the receipts on which tax is computed shall not include
the amount of tax required to be prepaid pursuant to section eleven
hundred two of this article with respect to such fuel or pursuant to
section eleven hundred three of this article with respect to such ciga-
rettes OR BEER.
S 3. Section 1111 of the tax law is amended by adding a new subdivi-
sion (j-1) to read as follows:
(J-1) THE TAX REQUIRED TO BE PREPAID PURSUANT TO SECTION ELEVEN
HUNDRED THREE OF THIS ARTICLE ON BEER SOLD AT RETAIL FOR CONSUMPTION OFF
PREMISES SHALL BE COMPUTED BY MULTIPLYING THE BASE RETAIL PRICE AS
DETERMINED BY THE COMMISSIONER BY A TAX RATE AS DETERMINED BY THE
COMMISSIONER TO BE APPROPRIATE AND CONSISTENT WITH THE SALES TAX RATE
IMPOSED BY THE STATE AND ANY LOCALITY AS AUTHORIZED IN THIS CHAPTER.
THE CALCULATION AND PUBLICATION OF THE BASE RETAIL PRICE SO FIXED BY
PROVISIONS OF THIS SECTION SHALL BE INCLUDED WITHIN THE DEFINITION OF
"RULE" AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE
HUNDRED TWO OF THE STATE ADMINISTRATIVE PROCEDURE ACT. THE BASE RETAIL
PRICES DETERMINED PURSUANT TO THIS PARAGRAPH SHALL BE ROUNDED TO THE
NEAREST ONE CENT FOR EACH CONTAINER.
S 4. Paragraph 6 of subdivision (b) of section 1116 of the tax law, as
added by chapter 2 of the laws of 1995, is amended to read as follows:
A. 5639 5
(6) purchases of cigarettes OR BEER from the tax required to be
prepaid pursuant to section eleven hundred three of this article, except
that no prepayment of tax shall be required on sales of cigarettes OR
BEER sold under such circumstances that this state is without power to
impose such tax or sold to the United States or sold to or by a volun-
tary unincorporated organization of the armed forces of the United
States operating a place for sale of goods pursuant to regulations
promulgated by the appropriate executive agency of the United States, to
the extent provided in such regulations and written policy statements of
such agency applicable to such sales.
S 5. The tax law is amended by adding a new section 1121-a to read as
follows:
S 1121-A. REFUNDS AND CREDITS WITH RESPECT TO BEER. (A) RETAIL VENDOR.
(1) A DISTRIBUTOR OF BEER WHO OR WHICH IS REQUIRED TO COLLECT THE TAXES
IMPOSED BY SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTI-
CLE AND ANY LIKE TAX IMPOSED PURSUANT TO THE AUTHORITY OF ARTICLE TWEN-
TY-NINE OF THIS CHAPTER SHALL BE ALLOWED A REFUND OR CREDIT AGAINST THE
AMOUNT OF TAX COLLECTED AND REQUIRED TO BE REMITTED TO THE COMMISSIONER
PURSUANT TO THE PROVISIONS OF SECTION ELEVEN HUNDRED THIRTY-SEVEN OF
THIS ARTICLE UPON THE RETAIL SALE OF BEER OR BE IN THE AMOUNT OF THE TAX
ON SUCH BEER PREPAID BY OR PASSED THROUGH TO AND INCLUDED IN THE PRICE
PAID BY SUCH VENDOR PURSUANT TO THE PROVISIONS OF SECTION ELEVEN HUNDRED
THREE OF THIS ARTICLE.
(2) A REFUND OR CREDIT SHALL ALSO BE ALLOWED SUCH VENDOR FOR THE TAX
PREPAID BY OR PASSED THROUGH TO AND INCLUDED IN THE PRICE PAID BY SUCH
DISTRIBUTOR UPON ANY BEER PURSUANT TO THE PROVISIONS OF SECTION ELEVEN
HUNDRED THREE OF THIS ARTICLE IF SUCH BEER IS SOLD AT RETAIL BY SUCH
DISTRIBUTOR UNDER CIRCUMSTANCES WHERE THE TAXES IMPOSED BY SECTION ELEV-
EN HUNDRED FIVE OF THIS ARTICLE AND PURSUANT TO THE AUTHORITY OF ARTICLE
TWENTY-NINE OF THIS CHAPTER ARE NOT REQUIRED BY THE PROVISIONS OF THIS
ARTICLE TO BE COLLECTED AND REMITTED UPON RECEIPTS FROM A RETAIL SALE
THEREOF.
(B) RETAIL USER. A PERSON WHO OR WHICH IS REQUIRED TO PAY THE TAX
IMPOSED BY SECTION ELEVEN HUNDRED TEN OF THIS ARTICLE AND ANY LIKE TAX
IMPOSED PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER
WITH RESPECT TO THE PURCHASE OR USE OF SUCH BEER SHALL BE ALLOWED A
CREDIT AGAINST SUCH TAX REQUIRED TO BE PAID TO THE COMMISSIONER PURSUANT
TO SUCH SECTION AND ARTICLE IN THE AMOUNT OF THE TAX PREPAID BY OR
PASSED THROUGH TO AND INCLUDED IN THE PRICE PAID BY SUCH PURCHASER OR
USER PURSUANT TO THE PROVISIONS OF SECTION ELEVEN HUNDRED THREE OF THIS
ARTICLE.
(C) SELF-USE OF BEER PURCHASED AT WHOLESALE. A REFUND OR CREDIT EQUAL
TO THE AMOUNT OF TAX PREPAID BY OR PASSED THROUGH TO AND INCLUDED IN THE
PRICE PAID BY A PURCHASER OR USER PURSUANT TO THE PROVISIONS OF SECTION
ELEVEN HUNDRED THREE OF THIS ARTICLE WITH RESPECT TO A PURCHASE OF BEER
OTHER THAN AT RETAIL SHALL BE ALLOWED SUCH PURCHASER OR USER UPON THE
USE OF SUCH BEER AT RETAIL IF THE PURCHASE OR USE OF SUCH BEER BY THE
PURCHASER OR USER IS EXEMPT PURSUANT TO SECTION ELEVEN HUNDRED FIFTEEN
OR SECTION ELEVEN HUNDRED SIXTEEN OF THIS ARTICLE.
(D) EXPORT, DESTRUCTION, TAX PAID IN ERROR. WHENEVER ANY BEER, UPON
WHICH THE PREPAID TAX IMPOSED BY SECTION ELEVEN HUNDRED THREE OF THIS
ARTICLE HAS BEEN PAID, HAS BEEN SOLD AND SHIPPED TO ANOTHER STATE FOR
SALE OR USE THERE OR HAVE BECOME UNFIT FOR USE OR UNSALABLE, OR HAVE
BEEN DESTROYED, OR WHENEVER THE COMMISSIONER SHALL HAVE DETERMINED THAT
ANY TAX REQUIRED TO BE PREPAID BY SUCH SECTION ELEVEN HUNDRED THREE
SHALL HAVE BEEN PAID IN ERROR, THE AGENT OR DEALER, AS THE CASE MAY BE,
A. 5639 6
SHALL BE ENTITLED TO A REFUND OR CREDIT OF THE ACTUAL AMOUNT OF PREPAID
TAX SO PAID WITH RESPECT TO BEER WHICH WILL NOT BE POSSESSED FOR SALE OR
USE IN THIS STATE.
(E) REFUNDS OF THE TAX REQUIRED TO BE PREPAID PURSUANT TO THE
PROVISIONS OF SECTION ELEVEN HUNDRED THREE OF THIS ARTICLE SHALL BE
ALLOWED ONLY TO THE EXTENT SUCH TAX PAID BY OR PASSED THROUGH TO THE
RETAIL VENDOR, OR THE PURCHASER OR USER, EXCEEDS THE AMOUNT OF TAX
REQUIRED TO BE COLLECTED FROM SUCH PERSON OR REQUIRED TO BE REMITTED BY
THE PROVISIONS OF THIS ARTICLE AND PURSUANT TO THE AUTHORITY OF ARTICLE
TWENTY-NINE OF THIS CHAPTER.
(F) A REFUND OR CREDIT SHALL BE ALLOWED UNDER THIS SECTION ONLY TO THE
EXTENT THAT THE TAX REQUIRED TO BE PREPAID PURSUANT TO SECTION ELEVEN
HUNDRED THREE OF THIS ARTICLE HAS BEEN PREPAID BY OR PASSED THROUGH TO
SUCH VENDOR, PURCHASER OR USER, BUT ONLY TO THE EXTENT THAT THE TAX
IMPOSED BY SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE AND ANY LIKE TAX
IMPOSED PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER
TOGETHER WITH THE TAX IMPOSED BY SECTION ELEVEN HUNDRED TEN OF THIS
ARTICLE AND ANY LIKE TAX IMPOSED PURSUANT TO THE AUTHORITY OF ARTICLE
TWENTY-NINE OF THIS CHAPTER REQUIRED TO BE PAID, COLLECTED AND REMITTED
HAS BEEN PAID, COLLECTED AND REMITTED.
(G) SUCH REFUNDS AND CREDITS SHALL BE SUBJECT TO THE PROVISIONS OF
SECTIONS ELEVEN HUNDRED NINETEEN AND ELEVEN HUNDRED THIRTY-NINE OF THIS
ARTICLE AS IF SUCH SECTIONS WERE INCORPORATED IN FULL INTO THIS SECTION
AND HAD EXPRESSLY REFERRED TO THE REFUNDS AND CREDITS AUTHORIZED BY THIS
SECTION INCLUDING THE PERIODS OF LIMITATIONS ON PAYMENTS AND APPLICA-
TIONS TO THE COMMISSIONER; PROVIDED, HOWEVER, THAT, AS PROVIDED IN
SUBDIVISION (E) OF SECTION ELEVEN HUNDRED THIRTY-NINE OF THIS ARTICLE,
NO INTEREST SHALL BE ALLOWED OR PAID UPON ANY REFUND MADE OR CREDIT
ALLOWED PURSUANT TO SUBDIVISIONS (A), (B) AND (D) OF THIS SECTION. THE
COMMISSIONER SHALL PROCESS APPLICATIONS FOR REFUNDS AS EXPEDITIOUSLY AS
POSSIBLE.
S 6. Section 1132 of the tax law is amended by adding a new subdivi-
sion (k-1) to read as follows:
(K-1) (1) (I) NO PERSON SHALL PURCHASE BEER AT RETAIL FOR OFF PREMISES
CONSUMPTION UNLESS THE TAX REQUIRED TO BE PREPAID BY SUBDIVISION (C) OF
SECTION ELEVEN HUNDRED THREE OF THIS ARTICLE HAS BEEN PAID BY A DISTRIB-
UTOR AND PASSED THROUGH BY A WHOLESALE DEALER OR RETAIL DEALER, AUTHOR-
IZED, LICENSED OR REGISTERED UNDER THIS CHAPTER, IN ACCORDANCE WITH A
CERTIFICATION UNDER THIS PARAGRAPH OR PAID BY SUCH WHOLESALE DEALER AND,
IS PASSED THROUGH TO SUCH PURCHASER. IN ADDITION TO ANY OTHER CIVIL AND
CRIMINAL PENALTIES WHICH MAY APPLY, ANY PERSON WHO PURCHASES BEER IN
VIOLATION OF THIS SUBPARAGRAPH SHALL BE JOINTLY AND SEVERALLY LIABLE TO
PAY THE TAX REQUIRED TO BE PREPAID BY SECTION ELEVEN HUNDRED THREE OF
THIS ARTICLE WITH RESPECT TO SUCH BEER.
(II) FOR THE PURPOSE OF THE PROPER ADMINISTRATION OF THIS ARTICLE AND
TO PREVENT EVASION OF THE TAX ON SALES AND USES OF BEER IMPOSED BY THIS
ARTICLE AND PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS
CHAPTER, IT SHALL BE PRESUMED THAT ALL BEER POSSESSED BY A RETAILER
LICENSED TO SELL BEER FOR OFF PREMISES CONSUMPTION BY, OR IN THE
POSSESSION OF, ANY PERSON, IS INTENDED FOR SALE OR USE IN THE STATE AND
SUBJECT TO THE TAX REQUIRED TO BE PREPAID BY SECTION ELEVEN HUNDRED
THREE OF THIS ARTICLE UNTIL THE CONTRARY IS ESTABLISHED AND THAT SUCH
PERSON IS RESPONSIBLE FOR SUCH PREPAYMENT.
(III) UPON EACH SALE OF SUCH BEER BY THE DISTRIBUTOR, THE DISTRIBUTOR
MUST GIVE TO THE PURCHASER AND THE PURCHASER SHALL RECEIVE, AT THE TIME
OF DELIVERY OF SUCH BEER, A CERTIFICATION CONTAINING SUCH INFORMATION AS
A. 5639 7
THE COMMISSIONER SHALL REQUIRE WHICH SHALL INCLUDE A STATEMENT TO THE
EFFECT (A) IF SUCH SELLER IS A DISTRIBUTOR, THAT SUCH DISTRIBUTOR HAS
PAID THE AMOUNT OF TAX REQUIRED TO BE PREPAID BY SECTION ELEVEN HUNDRED
THREE OF THIS ARTICLE AND IS PASSING THROUGH SUCH AMOUNT OF TAX, OR (B)
THAT SUCH SELLER IS PASSING THROUGH SUCH AMOUNT OF TAX WHICH WAS SO
PREVIOUSLY ASSUMED OR PAID.
(IV) IF THE CERTIFICATION REQUIRED BY THIS PARAGRAPH HAS BEEN
FURNISHED TO THE PURCHASER BY THE DISTRIBUTOR AT DELIVERY AND ACCEPTED
IN GOOD FAITH THE BURDEN OF PROVING THAT THE TAX REQUIRED TO BE PAID BY
SECTION ELEVEN HUNDRED THREE OF THIS ARTICLE WAS ASSUMED OR PAID BY A
DISTRIBUTOR AND PASSED THROUGH SHALL BE SOLELY ON THE DISTRIBUTOR.
(V) WHERE THE CERTIFICATION REQUIRED UNDER THIS PARAGRAPH IS NOT
FURNISHED BY THE SELLER TO THE PURCHASER AT DELIVERY OF SUCH BEER, IT
SHALL BE PRESUMED THAT NO AMOUNT OF TAX REQUIRED TO BE PREPAID BY
SECTION ELEVEN HUNDRED THREE OF THIS ARTICLE HAS BEEN PAID BY A DISTRIB-
UTOR AND THAT THE PURCHASER IN SUCH CASE IS JOINTLY AND SEVERALLY LIABLE
FOR THE TAX IMPOSED BY SUCH SECTION ELEVEN HUNDRED THREE.
(2)(I) FOR THE PURPOSE OF THE PROPER ADMINISTRATION OF THIS ARTICLE
AND TO PREVENT EVASION OF THE TAX IMPOSED UNDER THIS ARTICLE, IT SHALL
BE PRESUMED THAT ALL SALES OF BEER BY A DISTRIBUTOR IS SUBJECT TO THE
TAX IMPOSED BY SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FIVE OF THIS
ARTICLE AND REQUIRED TO BE COLLECTED BY THIS SECTION OR REQUIRED TO BE
PAID BY THE PROVISIONS OF SECTION ELEVEN HUNDRED TEN OF THIS ARTICLE
UNTIL THE CONTRARY IS ESTABLISHED; AND IT SHALL BE PRESUMED THAT ALL
BEER POSSESSED IN THIS STATE, WHICH SUCH PERSON CANNOT OTHERWISE ACCOUNT
FOR AS HAVING BEEN SOLD SUBJECT TO THE TAX IMPOSED BY SUBDIVISION (A) OF
SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE AND REQUIRED TO BE COLLECTED
BY THIS SECTION OR REQUIRED TO BE PAID BY THE PROVISIONS OF SECTION
ELEVEN HUNDRED TEN OF THIS ARTICLE, HAVE BEEN SOLD SUBJECT TO THE TAX
IMPOSED BY SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FIVE AND REQUIRED
TO BE COLLECTED BY THIS SECTION OR REQUIRED TO BE PAID BY THE PROVISIONS
OF SECTION ELEVEN HUNDRED TEN OF THIS ARTICLE.
(II) UNLESS THE DISTRIBUTOR HAS RECEIVED FROM THE RETAILER A STATEMENT
OR CERTIFICATE, IN SUCH FORM AS THE COMMISSIONER MAY REQUIRE, THAT THE
RETAILER PURSUANT TO THE PROVISIONS OF PARAGRAPH SIX OF SUBDIVISION (B)
OF SECTION ELEVEN HUNDRED SIXTEEN OF THIS ARTICLE IS NOT SUBJECT TO THE
PROVISIONS OF THIS PARAGRAPH, SUCH SALE SHALL BE DEEMED A SALE SUBJECT
TO THE PROVISIONS OF SECTIONS ELEVEN HUNDRED FIVE AND ELEVEN HUNDRED TEN
OF THIS ARTICLE NOTWITHSTANDING ANY PROVISION OF SUBDIVISION (C) OF THIS
SECTION.
(III) WHERE ANY CERTIFICATE OR STATEMENT REQUIRED UNDER THIS PARAGRAPH
HAS BEEN FURNISHED TO THE VENDOR AND ACCEPTED IN GOOD FAITH, THE BURDEN
OF PROVING THAT THE RECEIPT IS NOT TAXABLE HEREUNDER SHALL BE SOLELY
UPON THE PURCHASER. THE VENDOR SHALL NOT BE REQUIRED TO COLLECT SUCH
TAXES FROM PURCHASERS WHO FURNISH SUCH CERTIFICATES OR STATEMENTS IN
PROPER FORM.
S 7. 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,
subparagraph (iii) as amended by section 44 of part K of chapter 61 of
the laws of 2011, is amended to read as follows:
(1) (i) Every person required to collect any tax imposed by this arti-
cle, other than a person who is a vendor solely by reason of clause (D),
(E) or (F) of subparagraph (i) of paragraph eight of subdivision (b) of
section eleven hundred one of this article, commencing business or open-
ing a new place of business, (ii) every person purchasing or selling
tangible personal property for resale commencing business or opening a
A. 5639 8
new place of business, (iii) every person selling petroleum products
including persons who or which are not distributors, (iv) every person
described in this subdivision who takes possession of or pays for busi-
ness assets under circumstances requiring notification by such person to
the commissioner pursuant to subdivision (c) of section eleven hundred
forty-one of this chapter, (v) every person selling cigarettes including
persons who or which are not agents, (VI) ANY DISTRIBUTOR WHO SELLS BEER
TO RETAILERS FOR OFF PREMISES CONSUMPTION, and [(vi)] (VII) every person
described in subparagraph (i), (ii), (iii), (iv) [or], (v) OR (VI) of
this paragraph or every person who is a vendor solely by reason of
clause (D), (E) or (F) of subparagraph (i) of paragraph eight of subdi-
vision (b) of section eleven hundred one of this article who or which
has had its certificate of authority revoked under paragraph four of
this subdivision, shall file with the commissioner a certificate of
registration, in a form prescribed by the commissioner, at least twenty
days prior to commencing business or opening a new place of business or
such purchasing, selling or taking of possession or payment, whichever
comes first. Every person who is a vendor solely by reason of clause (D)
of subparagraph (i) of paragraph eight of subdivision (b) of section
eleven hundred one of this article shall file with the commissioner a
certificate of registration, in a form prescribed by such commissioner,
within thirty days after the day on which the cumulative total number of
occasions that such person came into the state to deliver property or
services, for the immediately preceding four quarterly periods ending on
the last day of February, May, August and November, exceeds twelve.
Every person who is a vendor solely by reason of clause (E) of subpara-
graph (i) of paragraph eight of subdivision (b) of section eleven
hundred one of this article shall file with the commissioner a certif-
icate of registration, in a form prescribed by such commissioner, within
thirty days after the day on which the cumulative total, for the imme-
diately preceding four quarterly periods ending on the last day of
February, May, August and November, of such person's gross receipts from
sales of property delivered in this state exceeds three hundred thousand
dollars and number of such sales exceeds one hundred. Every person who
is a vendor solely by reason of clause (F) of subparagraph (i) of para-
graph eight of subdivision (b) of section eleven hundred one of this
article shall file with the commissioner a certificate of registration,
in a form prescribed by such commissioner, within thirty days after the
day on which tangible personal property in which such person retains an
ownership interest is brought into this state by the person to whom such
property is sold, where the person to whom such property is sold becomes
or is a resident or uses such property in any manner in carrying on in
this state any employment, trade, business or profession. Information
with respect to the notice requirements of a purchaser, transferee or
assignee and such person's liability pursuant to the provisions of
subdivision (c) of section eleven hundred forty-one of this chapter
shall be included in or accompany the certificate of registration form
furnished the applicant. The commissioner shall also include with such
information furnished to each applicant general information about the
tax imposed under this article including information on records to be
kept, returns and payments, notification requirements and forms. Such
certificate of registration may be amended in accordance with rules
promulgated by the commissioner.
S 8. Section 1135 of the tax law is amended by adding a new subdivi-
sion (e-1) to read as follows:
A. 5639 9
(E-1) EVERY DISTRIBUTOR OF BEER SOLD FOR OFF PREMISES CONSUMPTION
SHALL KEEP RECORDS FOR SUCH PERIODS AND IN THE MANNER PRESCRIBED BY THE
COMMISSIONER PURSUANT TO RULES AND REGULATIONS. SUCH RECORDS SHALL SHOW
(1) THE AMOUNT OF BEER PURCHASED, THE PRICE PAID THEREFOR, THE PERSON
FROM WHOM SUCH IT WAS PURCHASED, AND THE AMOUNT OF TAX PAID BY THE
DISTRIBUTOR AS FOUND ON HIS RECEIPT PURSUANT TO THE PROVISIONS OF
SECTION ELEVEN HUNDRED THREE OF THIS ARTICLE AND (2) THE AMOUNT OF BEER
SOLD, THE RETAILER TO WHOM SUCH BEER IS SOLD AND THE PRICE PAID BY THE
RETAILER TO WHOM SUCH PERSON SELLS THE BEER, AND THE AMOUNT OF TAX
INCLUDED IN SUCH PRICE PURSUANT TO THE PROVISIONS OF SECTION ELEVEN
HUNDRED THREE OF THIS ARTICLE 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 ADDITIONAL INFORMA-
TION AS THE COMMISSIONER SHALL REQUIRE.
S 9. Subdivision (a) of section 1136 of the tax law is amended by
adding a new paragraph 6-a to read as follows:
(6-A) THE RETURNS OF ANY DISTRIBUTOR OF BEER SHALL SHOW THE AMOUNT OF
PREPAID TAX ASSUMED OR PAID THEREON AND PASSED THROUGH, TOGETHER WITH
SUCH ADDITIONAL INFORMATION AS THE COMMISSIONER SHALL REQUIRE. TAXABLE
RECEIPTS AS USED IN THIS SECTION WITH RESPECT TO BEER SHALL INCLUDE
TAXABLE RECEIPTS FROM THE SALE OF ANY BEER 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 TWEN-
TY OR ELEVEN HUNDRED TWENTY-ONE OF THIS ARTICLE ARE APPLICABLE TO THE
TAXES IMPOSED IN RESPECT OF SUCH RECEIPTS.
S 10. Paragraph 3 of subdivision (a) of section 1138 of the tax law is
amended by adding a new subparagraph (D-1) to read as follows:
(D-1) THE LIABILITY OF ANY PERSON, AS DISTRIBUTOR WHO SELLS BEER TO AN
OWNER OF A PLACE OF BUSINESS SELLING BEER FOR OFF PREMISES CONSUMPTION
FOR THE PENALTY IMPOSED BY SUBPARAGRAPH (VIII) OF PARAGRAPH ONE OF
SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FORTY-FIVE OF THIS PART AND
THE AMOUNT OF SUCH PENALTY SHALL BE DETERMINED BY THE COMMISSIONER.
SUCH DETERMINATION SHALL FINALLY AND IRREVOCABLY FIX THE AMOUNT OF AND
LIABILITY FOR SUCH PENALTY WITH RESPECT TO SUCH PERSON, UNLESS SUCH
PERSON, WITHIN NINETY DAYS AFTER THE GIVING OF NOTICE OF SUCH DETERMI-
NATION, SHALL APPLY TO THE DIVISION OF TAX APPEALS FOR A HEARING. THE
COMMISSIONER MAY, NEVERTHELESS, ON THE COMMISSIONER'S OWN MOTION,
RE-DETERMINE SUCH DETERMINATION. FURTHERMORE, THE COMMISSIONER MAY, ON
THE COMMISSIONER'S OWN MOTION, ABATE ANY PART OF THE PENALTY DETERMINED
TO BE ERRONEOUS OR EXCESSIVE WHETHER OR NOT SUCH PENALTY HAS BECOME
FINALLY AND IRREVOCABLY FIXED WITH RESPECT TO SUCH PERSON; BUT NO CLAIM
FOR ABATEMENT MAY BE FILED BY ANY SUCH PERSON. THE PROVISIONS OF THIS
PARAGRAPH SHALL NOT BE CONSTRUED TO LIMIT IN ANY MANNER THE POWERS OF
THE ATTORNEY GENERAL UNDER SUBDIVISION (A) OF SECTION ELEVEN HUNDRED
FORTY-ONE OF THIS PART OR THE POWERS OF THE COMMISSIONER TO ISSUE A
WARRANT UNDER SUBDIVISION (B) OF SUCH SECTION AGAINST ANY PERSON WHOSE
LIABILITY HAS BECOME FINALLY AND IRREVOCABLY FIXED.
S 11. Section 1142 of the tax law is amended by adding a new subdivi-
sion 12-a to read as follows:
12-A. TO MAKE SUCH PROVISION PURSUANT TO RULES AND REGULATIONS FOR THE
JOINT ADMINISTRATION, IN WHOLE OR IN PART, OF THE TAXES IMPOSED BY THIS
ARTICLE AND PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS
CHAPTER UPON THE SALE OR USE OF BEER FOR OFF PREMISES CONSUMPTION
INCLUDING THE REPORTING, ASSESSMENT, COLLECTION, DETERMINATION AND
REFUND OF SUCH TAXES, AND, FOR THAT PURPOSE, TO PRESCRIBE THAT ANY OF
A. 5639 10
THE COMMISSIONER'S FUNCTIONS UNDER SUCH ARTICLES, ANY RETURNS, FORMS,
STATEMENTS, DOCUMENTS OR INFORMATION TO BE SUBMITTED TO THE COMMISSIONER
UNDER SUCH ARTICLES, ANY BOOKS AND TAXES IMPOSED OR AUTHORIZED BY SUCH
ARTICLES, ANY SCHEDULES OF AMOUNTS TO BE COLLECTED UNDER SUCH ARTICLES,
ANY REGISTRATION REQUIRED UNDER SUCH ARTICLES.
S 12. Paragraph 1 of subdivision (a) of section 1145 of the tax law is
amended by adding a new subparagraph (x) to read as follows:
(X) ANY PERSON REQUIRED TO COLLECT TAX WHO SELLS BEER FOR OFF PREMISES
CONSUMPTION WHO SHALL WILLFULLY AND KNOWINGLY HAVE IN SUCH PERSON'S
CUSTODY OR POSSESSION OR UNDER SUCH PERSON'S CONTROL ANY SUCH BEER ON
WHICH (A) THE PREPAID TAX IMPOSED BY SECTION ELEVEN HUNDRED THREE OF
THIS ARTICLE HAS NOT BEEN ASSUMED OR PAID BY AN AGENT LICENSED AS SUCH
UNDER ARTICLE TWENTY OF THIS CHAPTER, OR (B) THE PREPAID TAX IMPOSED BY
SUCH SECTION ELEVEN HUNDRED THREE WAS REQUIRED TO HAVE BEEN PASSED
THROUGH TO SUCH PERSON AND HAS NOT BEEN INCLUDED IN THE COST OF SUCH
BEER TO SUCH PERSON, SHALL BE LIABLE FOR A PENALTY IN THE AMOUNT OF
TWICE THE TAX NOT SO ASSUMED OR PAID, OR INCLUDED. SUCH PENALTY SHALL BE
DETERMINED, ASSESSED, COLLECTED AND PAID IN THE SAME MANNER AS TAXES
IMPOSED BY THIS ARTICLE AND ALL THE PROVISIONS OF THIS ARTICLE RELATING
THERETO SHALL BE DEEMED ALSO TO REFER TO THE PENALTY IMPOSED BY THIS
SUBPARAGRAPH. SUCH PENALTY MAY BE DETERMINED AT ANY TIME WITHIN THREE
YEARS AFTER SUCH BEER SHALL HAVE COME INTO SUCH PERSON'S CUSTODY OR
POSSESSION OR UNDER SUCH PERSON'S CONTROL. FOR PURPOSES OF THIS SUBPARA-
GRAPH, SUCH PERSON SHALL WILLFULLY AND KNOWINGLY HAVE IN SUCH PERSON'S
CUSTODY OR POSSESSION OR UNDER SUCH PERSON'S CONTROL BEER ON WHICH (A)
SUCH PREPAID TAX HAS NOT BEEN ASSUMED OR PAID BY A WHOLESALER PURSUANT
TO THIS CHAPTER, OR (B) SUCH TAX WAS REQUIRED TO HAVE BEEN PASSED
THROUGH TO SUCH PERSON AND HAS NOT BEEN INCLUDED IN THE COST OF SUCH
BEER TO SUCH PERSON, WHERE SUCH PERSON HAS KNOWLEDGE OF THE REQUIREMENT
THAT SUCH TAXES BE PAID OR ASSUMED OR SO INCLUDED AND WHERE, TO SUCH
PERSON'S KNOWLEDGE, SUCH TAXES HAVE NOT BEEN SO PAID OR ASSUMED OR SO
INCLUDED. FOR PURPOSES OF THIS SUBPARAGRAPH, IT SHALL BE PRESUMPTIVE
EVIDENCE THAT SUCH PERSON SHALL WILLFULLY AND KNOWINGLY HAVE IN SUCH
PERSON'S CUSTODY OR POSSESSION OR UNDER SUCH PERSON'S CONTROL, BEER ON
WHICH (A) SUCH TAX HAS NOT BEEN ASSUMED OR PAID BY A WHOLESALER AUTHOR-
IZED AS SUCH UNDER SUCH ARTICLE TWENTY OF THIS CHAPTER OR (B) SUCH TAX
WAS REQUIRED TO HAVE BEEN PASSED THROUGH TO SUCH PERSON AND HAS NOT BEEN
INCLUDED IN THE COST OF SUCH BEER TO SUCH PERSON WHERE SUCH PERSON HAS
NOT RECEIVED THE CERTIFICATION REQUIRED BY SUBDIVISION (K) OF SECTION
ELEVEN HUNDRED THIRTY-TWO OF THIS ARTICLE AT THE TIME OF DELIVERY OF
SUCH BEER OR, IN THOSE CIRCUMSTANCES WHERE THE COMMISSIONER HAS AUTHOR-
IZED THE DELIVERY OF SUCH CERTIFICATION AT A TIME AFTER DELIVERY OF THE
BEER, AT THE TIME PRESCRIBED BY THE COMMISSIONER.
S 13. Subparagraph (i) of paragraph 3 of subdivision (a) of section
1145 of the tax law, as amended by section 48 of part K of chapter 61 of
the laws of 2011, 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 petroleum products, or (D) sells cigarettes OR BEER 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
A. 5639 11
sales or purchases are made, not to exceed ten thousand dollars in the
aggregate.
S 14. Section 1817 of the tax law, is amended by adding a new subdivi-
sion (o) to read as follows:
(O) ANY OWNER OF A PLACE OF BUSINESS SELLING BEER AT RETAIL FOR OFF
PREMISES CONSUMPTION WHO SHALL WILLFULLY AND KNOWINGLY HAVE IN SUCH
OWNER'S CUSTODY OR POSSESSION OR UNDER SUCH OWNER'S CONTROL ANY BEER ON
WHICH (1) THE PREPAID TAX IMPOSED BY SECTION ELEVEN HUNDRED THREE OF
THIS CHAPTER HAS NOT BEE ASSUMED OR (2) THE PREPAID TAX IMPOSED BY
SECTION ELEVEN HUNDRED THREE OF THIS CHAPTER WAS REQUIRED TO HAVE BEEN
PASSED THROUGH TO SUCH OWNER AND HAS NOT BEEN INCLUDED IN THE COST OF
SUCH BEER TO SUCH OWNER SHALL, IN EITHER CASE, BE GUILTY OF A MISDEMEA-
NOR. FOR PURPOSES OF THIS SUBDIVISION, SUCH OWNER SHALL WILLFULLY AND
KNOWINGLY HAVE IN SUCH OWNER'S CUSTODY OR POSSESSION OR UNDER SUCH
OWNER'S CONTROL ANY BEER ON WHICH SUCH TAX HAS NOT BEEN ASSUMED OR PAID
WHERE SUCH OWNER HAS KNOWLEDGE OF THE REQUIREMENT THAT SUCH TAX BE
ASSUMED OR PAID AND WHERE, TO SUCH OWNER'S KNOWLEDGE, SUCH TAX HAS NOT
BEEN ASSUMED OR PAID. SUCH OWNER SHALL WILLFULLY AND KNOWINGLY HAVE IN
SUCH OWNER'S CUSTODY OR POSSESSION OR UNDER SUCH OWNER'S CONTROL BEER ON
WHICH SUCH TAX IS REQUIRED TO HAVE BEEN PASSED THROUGH TO SUCH OWNER AND
HAS NOT BEEN INCLUDED IN THE COST TO SUCH OWNER WHERE SUCH OWNER HAS
KNOWLEDGE OF THE REQUIREMENT THAT SUCH TAX BE PASSED THROUGH AND HAS NOT
BEEN SO INCLUDED.
S 15. Paragraph (q) of subdivision 34 of section 1.20 of the criminal
procedure law, as amended by section 55 of part K of chapter 61 of the
laws of 2011, 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 petroleum products or cigarettes OR
BEER 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 chap-
ter, for the purpose of acting as a claiming agent under article thir-
teen-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 16. Paragraph (a) of subdivision 4 of section 2.10 of the criminal
procedure law, as amended by section 56 of part K of chapter 61 of the
laws of 2011, 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 petroleum products
or cigarettes OR BEER imposed under article twenty-eight or pursuant to
A. 5639 12
the authority of article twenty-nine of the tax law and administered by
the commissioner or
S 17. The alcoholic beverage control law is amended by adding a new
section 53-b to read as follows:
S 53-B. MANNER OF POSTING AND CHANGING BEER PRICES TO WHOLESALERS AND
RETAIL LICENSEES IN CITIES OF ONE MILLION OR MORE.
1. IT IS HEREBY DECLARED AS THE POLICY OF THE STATE THAT THE SALE AND
DISTRIBUTION OF BEER SHALL BE SUBJECT TO CERTAIN RESTRICTIONS, PROHIBI-
TIONS AND REGULATIONS WHICH TEND TO MAINTAIN AN ORDERLY MARKET AND
PREVENT DESTRUCTIVE COMPETITION. THE NECESSITY OF THE PROVISIONS OF THIS
SECTION IS THEREFORE DECLARED AS A MATTER OF LEGISLATIVE NECESSITY.
2. AS USED IN THIS SECTION, THE FOLLOWING WORDS SHALL HAVE THE FOLLOW-
ING MEANINGS:
A. "BEER WHOLESALER" OR "WHOLESALER" MEANS THE HOLDER OF A WHOLE-
SALER'S LICENSE, PURSUANT TO SECTION FIFTY-THREE OF THIS ARTICLE, WHO
PURCHASES, OFFERS TO SELL, MARKETS, PROMOTES, WAREHOUSES OR PHYSICALLY
DISTRIBUTES BEER SOLD BY A BREWER.
B. "BREWER/WHOLESALER" MEANS THE HOLDER OF A WHOLESALER'S LICENSE,
PURSUANT TO SECTION FIFTY-THREE OF THIS ARTICLE, WHO PURCHASES, OFFERS
TO SELL, MARKETS, PROMOTES, WAREHOUSES, OR PHYSICALLY DISTRIBUTES BEER
PREDOMINANTLY BREWED BY THE LICENSEE.
C. "CASE", "DRAFT PACKAGE" OR "SPECIAL PACKAGE" MEANS A PACKAGE
PRODUCED BY A BREWER AND SOLD TO A BEER WHOLESALER.
D. "COD" MEANS CASH, CHECK OR ELECTRONIC PAYMENT AT THE TIME OF DELIV-
ERY.
E. "FORKLIFT" MEANS ANY MECHANICAL SYSTEM ABLE TO UNLOAD PALLETS OFF A
DELIVERY VEHICLE.
F. "LOADING DOCK" MEANS A PLATFORM WHERE TRUCKS, SEMI-TRUCKS, AND SEA
OR RAIL CONTAINERS ARE UNLOADED BY FORKLIFTS.
G. "NON-CONTRACTED WHOLESALER" MEANS THE HOLDER OF A WHOLESALER'S
LICENSE ISSUED OR RENEWED PRIOR TO JULY FIRST, NINETEEN HUNDRED SIXTY,
AND THEREAFTER RENEWED OR TRANSFERRED WHO (1) PURCHASES PRODUCTS FROM A
BEER WHOLESALER AND (2) IS NOT SUBJECT TO ANY AGREEMENT WITH A BREWER OR
BEER WHOLESALER PURSUANT TO SECTION FIFTY-FIVE-C OF THIS ARTICLE AND (3)
IS LOCATED IN A CITY OF ONE MILLION OR MORE.
H. "PALLET" MEANS A QUANTITY OF CASES, DRAFT PACKAGES OR SPECIAL PACK-
AGES PRODUCED BY A BREWER AND STACKED ON A DEVICE MOVABLE BY A FORKLIFT
OR OTHER MECHANICAL METHOD.
I. "TRUCKLOAD" MEANS A QUANTITY OF PALLETS CONTAINING CASES, DRAFT
PACKAGES OR SPECIAL PACKAGES OF NOT LESS THAN THE MAXIMUM QUANTITY
FITTING TYPE OF VEHICLE OR LEGAL WEIGHT LIMIT.
3. BEER WHOLESALERS AND BREWER/WHOLESALERS SHALL POST WITH THE AUTHOR-
ITY THE PRICE PER CASE, DRAFT PACKAGE OR SPECIAL PACKAGE OF BEER SOLD TO
RETAIL LICENSEES EVERY ONE HUNDRED EIGHTY DAYS. THE POSTED PRICE ON SUCH
CASE, DRAFT PACKAGE OR SPECIAL PACKAGE TO RETAIL LICENSEES MUST BE A
MINIMUM OF:
A. TWO AND ONE-HALF PERCENT ABOVE THE POSTED PRICE TO NON-CONTRACTED
WHOLESALERS IF PURCHASED BY THE CASE, DRAFT PACKAGE OR SPECIAL PACKAGE;
B. FIVE PERCENT ABOVE THE POSTED CASE, DRAFT PACKAGE OR SPECIAL PACK-
AGE PRICE TO NON-CONTRACTED WHOLESALERS IF PURCHASED BY THE PALLET;
C. SEVEN AND ONE-HALF PERCENT ABOVE THE POSTED CASE, DRAFT PACKAGE OR
SPECIAL PACKAGE PRICE TO NON-CONTRACTED WHOLESALERS IF PURCHASED BY THE
TRUCKLOAD;
D. TEN PERCENT ABOVE THE POSTED CASE, DRAFT PACKAGE OR SPECIAL PACKAGE
PRICE TO NON-CONTRACTED WHOLESALERS IF PURCHASED BY THE TRAILERLOAD; AND
A. 5639 13
E. IF A FORKLIFT AND/OR A LOADING DOCK IS USED TO UNLOAD THE PALLETS
FROM THE DELIVERY VEHICLE, A MINIMUM OF AN ADDITIONAL TWO AND ONE-HALF
PERCENT SHALL BE DEDUCTED FROM THE CASE, DRAFT PACKAGE OR SPECIAL PACK-
AGE PRICE. IF THE NON-CONTRACTED WHOLESALER PAYS COD FOR THE PURCHASE A
MINIMUM OF TWO AND ONE-HALF PERCENT SHALL BE DEDUCTED FROM THE PRICE PER
CASE, DRAFT PACKAGE OR SPECIAL PACKAGE. FURTHERMORE, NOTHING IN THIS
SECTION SHALL REQUIRE A NON-CONTRACTED WHOLESALER TO POST PRICING. THE
PRICE PER CASE, DRAFT PACKAGE OR SPECIAL PACKAGE OF BEER SOLD TO
NON-CONTRACTED WHOLESALERS OR RETAIL LICENSEES ON THE FIRST DAY OF THE
MONTH FOLLOWING THE EFFECTIVE DATE OF THIS SUBDIVISION SHALL BE DEEMED
THE BASE PRICE, TO OR FROM WHICH PRICE INCREASES OR DECREASES MAY BE
MADE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
4. THE AUTHORITY IS AUTHORIZED AND EMPOWERED TO DO SUCH ACTS,
PRESCRIBE SUCH FORMS AND ADOPT RULES AND REGULATIONS AS IT MAY DEEM
NECESSARY OR PROPER TO CARRY INTO EFFECT THE PURPOSE AND PROVISIONS OF
THIS SECTION AND TO PREVENT CIRCUMVENTION OR EVASION THEREOF.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND IN ADDITION TO
ITS OTHER POWERS, THE AUTHORITY MAY, IN ITS DISCRETION, ADOPT RULES OR
REGULATIONS:
A. PARTICULARIZING THE STANDARDS OF PACKAGING WHICH CONSTITUTE A CASE,
SPECIAL PACKAGE AND DRAFT PACKAGE OF BEER.
B. DEFINING THE GUIDELINES RELATING TO "PRICE" WITHIN THE PURVIEW OF
THIS SECTION WHICH GUIDELINES MAY PROVIDE, WITHOUT LIMITATION THERETO,
POSTING OF PRICE ON THE AUTHORITY'S WEBSITE.
C. REQUIRING LICENSEES TO FILE WITH THE AUTHORITY REPORTS CERTIFYING
THEIR PRICES OF BEER, THE DATES OF ANY CHANGES IN THE PRICE OF ANY ITEM
OF BEER, AND SUCH OTHER MATTERS AS THE AUTHORITY MAY DETERMINE FROM TIME
TO TIME TO BE NECESSARY TO DISCLOSE ACCURATELY THE PRICE OF BEER DURING
THE PREVIOUS TWELVE MONTHS AND REQUIRING LICENSEES TO KEEP FORMS,
RECORDS AND MEMORANDA PRESCRIBED BY THE AUTHORITY.
D. REQUIRING BEER WHOLESALERS AND BREWER/WHOLESALERS TO REGISTER WITH
THE AUTHORITY EACH CONTRACT AND AGREEMENT, INCLUDING THE NAMES OF BREW-
ERS AND IMPORTERS WITH WHICH SUCH WHOLESALER HAS CONTRACTS OR AGREE-
MENTS, AND REQUIRING WHOLESALERS TO MAINTAIN FORMS, RECORDS AND MEMORAN-
DA PRESCRIBED BY THE AUTHORITY.
5. FOR THE PURPOSE OF DEFRAYING THE EXPENSES INCURRED IN THE ADMINIS-
TRATION OF THIS SECTION, THERE SHALL BE PAID TO THE AUTHORITY BY EACH
PERSON HEREAFTER APPLYING FOR A LICENSE AS A BEER WHOLESALER THE FOLLOW-
ING SUMS: BEER WHOLESALER, FIVE THOUSAND DOLLARS; FOR EACH CONTRACT OR
AGREEMENT ENTERED INTO BY A BEER WHOLESALER, FIVE THOUSAND DOLLARS; A
NON-CONTRACTED WHOLESALER, FIVE THOUSAND DOLLARS; A LIKE SUM SHALL BE
PAID BY EACH PERSON HEREAFTER APPLYING FOR THE ISSUANCE OR RENEWAL OF
ANY SUCH LICENSE AND/OR FOR EACH CONTRACT OR AGREEMENT, AND SUCH SUM
SHALL ACCOMPANY THE APPLICATION AND THE LICENSE FEE PRESCRIBED BY THIS
CHAPTER FOR SUCH LICENSE OR RENEWAL THEREOF, AS THE CASE MAY BE. THE
SUMS PRESCRIBED BY THIS SUBDIVISION SHALL NOT BE PRORATED FOR ANY
PORTION OF THE LICENSE FEE AND SHALL HAVE NO REFUND VALUE.
6. FOR ANY VIOLATION OF ANY PROVISION OF THIS SECTION OR OF ANY RULE
OR REGULATION DULY PROMULGATED UNDER THIS SECTION THE AUTHORITY MAY
REVOKE, CANCEL OR SUSPEND A LICENSE OR RECOVER, AS PROVIDED IN SECTION
ONE HUNDRED TWELVE OF THIS CHAPTER, THE PENAL SUM OF THE BOND FILED BY
THE LICENSEE.
S 18. (a) In order to ensure collection of the prepaid sales tax on
beer for off premises consumption imposed under section 1103 of the tax
law, as of the date such prepayment becomes applicable, there is hereby
imposed and shall be paid, as a prepayment on account of the sales and
A. 5639 14
compensating use taxes administered by the commissioner of taxation and
finance and imposed by article 28 and pursuant to the authority of arti-
cle 29 of the tax law, a special floor tax on all such beer possessed
for sale in the state on September 1, 2015, by any person. The amount of
such prepayment shall be computed as provided in subdivision (b) of this
section.
(b)(1) All persons possessing beer subject to the tax imposed by this
section on such date shall compute the floor tax amount required to be
prepaid by multiplying the base retail price of such beer in effect on
such date by a tax rate of eight percent.
(2) For purposes of this section, the "base retail price of such beer"
shall be in an amount as determined by the commissioner.
(c) The tax imposed by this section shall be due and payable to the
commissioner of taxation and finance on or before September 20, 2015.
(d) All the provisions of section 1103 of the tax law and all of the
provisions of article 28 appertaining thereto, including, but not limit-
ed to, provisions relating to administration, collection, review,
payment, definitions, personal liability for the tax, exemptions, cred-
iting, enforcement, deposit and disposition, and the provisions of arti-
cle 37 of such law applicable to such section 1103 shall be applicable
to the tax imposed by this section with such modifications as may be
necessary in order to adapt such language to the tax so imposed. Such
provisions shall apply with the same force and effect as if the language
of such provisions had been set forth in full in this section except to
the extent that any provision is either inconsistent with a provision of
this section or is not relevant to the tax imposed by this section.
(e) The commissioner of taxation and finance is hereby authorized to
promulgate such regulations and require such reports as the commissioner
deems necessary to effectuate the provisions of this section.
(f) The provisions of this section notwithstanding, the commissioner
of taxation and finance shall have the authority, in the commissioner's
sole discretion, to require that the inventory necessary to account for
the tax imposed by this section be taken on a date determined by the
commissioner of taxation and finance no more than seven days prior to
the date required pursuant to subdivision (a) of this section.
S 19. Severability. If any clause, sentence, paragraph, section or
part of this act shall for any reason be finally adjudged by a court of
competent jurisdiction to be invalid or unconstitutional, such judgment
shall not affect, impair or invalidate the remainder thereof, but shall
be confined in its operation to the clause, sentence, paragraph, section
or part of this act directly involved in the controversy in which such
judgment shall have been rendered, and the applicability of such
provision to other persons or circumstances shall not be affected there-
by.
S 20. This act shall take effect on the first day of the sales tax
quarter which commences not less than ninety days after this act shall
have become a law.