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SECTION 27-1012
Deposit and disposition of refund values; registration; reports
Environmental Conservation (ENV) CHAPTER 43-B, ARTICLE 27, TITLE 10
§ 27-1012. Deposit and disposition of refund values; registration;

reports.

1. Each deposit initiator shall deposit in a refund value account an
amount equal to the refund value initiated under section 27-1005 of this
title which is received with respect to each beverage container sold by
such deposit initiator. Such deposit initiator shall hold the amounts in
the refund value account in trust for the state. A refund value account
shall be an interest-bearing account established in a banking
institution located in this state, the deposits in which are insured by
an agency of the federal government. Deposits of such amounts into the
refund value account shall be made not less frequently than every five
business days. All interest, dividends and returns earned on the refund
value account shall be paid directly into said account. The monies in
such accounts shall be kept separate and apart from all other monies in
the possession of the deposit initiator. The commissioner of taxation
and finance may specify a system of accounts and records to be
maintained with respect to accounts established under this subdivision.

2. Payments of refund values pursuant to section 27-1007 of this title
shall be paid from each deposit initiator's refund value account. No
other payment or withdrawal from such account may be made except as
prescribed by this section.

3. Each deposit initiator shall file quarterly reports with the
commissioner of taxation and finance on a form and in the manner
prescribed by such commissioner. The commissioner of taxation and
finance may require such reports to be filed electronically. The
quarterly reports required by this subdivision shall be filed for the
quarterly periods ending on the last day of May, August, November and
February of each year, and each such report shall be filed within twenty
days after the end of the quarterly period covered thereby. Each such
report shall include all information such commissioner shall determine
appropriate including but not limited to the following information:

a. the balance in the refund value account at the beginning of the
quarter for which the report is prepared;

b. all such deposits credited to the refund value account and all
interest, dividends or returns received on such account, during such
quarter;

c. all withdrawals from the refund value account during such quarter,
including all reimbursements paid pursuant to subdivision two of this
section, all service charges on the account, and all payments made
pursuant to subdivision four of this section; and

d. the balance in the refund value account at the close of such
quarter.

4. a. Quarterly payments. An amount equal to eighty percent of the
balance outstanding in the refund value account at the close of each
quarter shall be paid to the commissioner of taxation and finance at the
time the report provided for in subdivision three of this section is
required to be filed. The commissioner of taxation and finance may
require that the payments be made electronically. The remaining twenty
percent of the balance outstanding at the close of each quarter shall be
the monies of the deposit initiator and may be withdrawn from such
account by the deposit initiator. If the provisions of this section with
respect to such account have not been fully complied with, each deposit
initiator shall pay to such commissioner at such time, in lieu of the
amount described in the preceding sentence, an amount equal to the
balance which would have been outstanding on such date had such
provisions been fully complied with. The commissioner of taxation and
finance may require that the payments be made electronically.

b. Refund value account shortfall. In the event a deposit initiator
pays out more in refund values than it collects in deposits of refund
values during the course of a quarterly period as described in
subdivision three of this section, the deposit initiator may apply to
the commissioner of taxation and finance for a refund of the amount of
such excess payment of refund values from sources other than the refund
value account, in the manner as provided by the commissioner of taxation
and finance. A deposit initiator must apply for a refund no later than
twelve months after the due date for filing the quarterly report for the
quarterly period for which the refund claim is made. No interest shall
be payable for any refund paid pursuant to this paragraph.

c. Final report. A deposit initiator who ceases to do business in this
state as a deposit initiator shall file a final report and remit payment
of eighty percent of all amounts remaining in the refund value account
as of the close of the deposit initiator's last day of business. The
commissioner of taxation and finance may require that the payments be
made electronically. The deposit initiator shall indicate on the report
that it is a "final report". The final report is due to be filed with
payment twenty days after the close of the quarterly period in which the
deposit initiator ceases to do business. In the event the deposit
initiator pays out more in refund values than it collects in such final
quarterly period, the deposit initiator may apply to the commissioner of
taxation and finance for a refund of the amount of such excess payment
of refund values from sources other than the refund value account, in
the manner as provided by the commissioner of taxation and finance.

5. All moneys collected or received by the department of taxation and
finance pursuant to this title shall be deposited to the credit of the
comptroller with such responsible banks, banking houses or trust
companies as may be designated by the comptroller. Such deposits shall
be kept separate and apart from all other moneys in the possession of
the comptroller. The comptroller shall require adequate security from
all such depositories. Of the total revenue collected, the comptroller
shall retain the amount determined by the commissioner of taxation and
finance to be necessary for refunds out of which the comptroller must
pay any refunds to which a deposit initiator may be entitled. After
reserving the amount to pay refunds, the comptroller must, by the tenth
day of each month, pay into the state treasury to the credit of the
general fund the revenue deposited under this subdivision during the
preceding calendar month and remaining to the comptroller's credit on
the last day of that preceding month; provided, however, that, beginning
April first, two thousand thirteen, nineteen million dollars, and all
fiscal years thereafter, twenty-three million dollars plus all funds
received from the payments due each fiscal year pursuant to subdivision
four of this section in excess of the greater of the amount received
from April first, two thousand twelve through March thirty-first, two
thousand thirteen or one hundred twenty-two million two hundred thousand
dollars, shall be deposited to the credit of the environmental
protection fund established pursuant to section ninety-two-s of the
state finance law.

6. The commissioner and the commissioner of taxation and finance shall
promulgate, and shall consult each other in promulgating, such rules and
regulations as may be necessary to effectuate the purposes of this
title. The commissioner and the commissioner of taxation and finance
shall provide all necessary aid and assistance to each other, including
the sharing of any information that is necessary to their respective
administration and enforcement responsibilities pursuant to the
provisions of this title.

7. a. Any person who is a deposit initiator under this title before
April first, two thousand nine, must apply by June first, two thousand
nine to the commissioner of taxation and finance for registration as a
deposit initiator. Any person who becomes a deposit initiator on or
after April first, two thousand nine shall apply for registration prior
to collecting any deposits as such a deposit initiator. Such application
shall be in a form prescribed by the commissioner of taxation and
finance and shall require such information deemed to be necessary for
proper administration of this title. The commissioner of taxation and
finance may require that applications for registration must be submitted
electronically. The commissioner of taxation and finance shall
electronically issue a deposit initiator registration certificate in a
form prescribed by the commissioner of taxation and finance within
fifteen days of receipt of such application or may take an additional
ten days if the commissioner of taxation and finance deems it necessary
to consult with the commissioner before issuing such registration
certificate. A registration certificate issued pursuant to this
subdivision may be issued for a specified term of not less than three
years and shall be subject to renewal in accordance with procedures
specified by the commissioner of taxation and finance. The commissioner
of taxation and finance shall furnish to the commissioner a complete
list of registered deposit initiators and shall continually update such
list as warranted. The commissioner shall share any information with the
commissioner of taxation and finance that is necessary for the
administration of this subdivision.

b. The commissioner of taxation and finance shall have the authority
to revoke or refuse to renew any registration issued pursuant to this
subdivision when he or she has determined or has been informed by the
commissioner that any of the provisions of this title or rules and
regulations promulgated thereunder have been violated. Such violations
shall include, but not be limited to, the failure to file quarterly
reports, the failure to make payments pursuant to this subdivision, the
providing of false or fraudulent information to either the department of
taxation and finance or the department, or knowingly aiding or abetting
another person in violating any of the provisions of this title. A
notice of proposed revocation or non-renewal shall be given to the
deposit initiator in the manner prescribed for a notice of deficiency of
tax and all the provisions applicable to a notice of deficiency under
article twenty-seven of the tax law shall apply to a notice issued
pursuant to this paragraph, insofar as such provisions can be made
applicable to a notice authorized by this paragraph, with such
modifications as may be necessary in order to adapt the language of such
provisions to the notice authorized by this paragraph. All such notices
issued by the commissioner of taxation and finance pursuant to this
paragraph shall contain a statement advising the deposit initiator that
the revocation or non-renewal of registration may be challenged through
a hearing process and the petition for such a challenge must be filed
with the commissioner of taxation and finance within ninety days after
such notice is issued. A deposit initiator whose registration has been
so revoked or not renewed shall cease to do business as a deposit
initiator in this state, until this title has been complied with and a
new registration has been issued. Any deposit initiator whose
registration has been so revoked may not apply for registration for two
years from the date such revocation takes effect.

8. The commissioner of taxation and finance may require the
maintenance of such accounts, records or documents relating to the sale
of beverage containers, by any deposit initiator, bottler, distributor,
dealer or redemption center as such commissioner may deem appropriate
for the administration of this section. Such commissioner may make
examinations, including the conduct of facility inspections during
regular business hours, with respect to the accounts, records or
documents required to be maintained under this subdivision. Such
accounts, records and documents shall be preserved for a period of three
years, except that such commissioner may consent to their destruction
within that period or may require that they be kept longer. Such
accounts, records and documents may be kept within the meaning of this
subdivision when reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other process which actually
reproduces the original accounts, records or documents.

9. a. Any person required to be registered under this section who,
without being so registered, sells or offers for sale beverage
containers in this state, in addition to any other penalty imposed by
this title, shall be subject to a penalty to be assessed by the
commissioner of taxation and finance in an amount not to exceed five
hundred dollars for the first day on which such sales or offers for sale
are made, plus an amount not to exceed five hundred dollars for each
subsequent day on which such sales or offers for sale are made, not to
exceed twenty-five thousand dollars in the aggregate.

b. Any deposit initiator who fails to file reports, make quarterly
payments or maintain accounts or records pursuant to this section,
unless it is shown that such failure was due to reasonable cause and not
due to negligence or willful neglect, in addition to any other penalty
imposed by this title, shall be subject to a penalty to be assessed by
the commissioner of taxation and finance of not more than one thousand
dollars for each quarter during which such failure occurred, and an
additional penalty of not more than one thousand dollars for each
quarter such failure continues.

10. The provisions of article twenty-seven of the tax law shall apply
to the provisions of this title for which the commissioner of taxation
and finance is responsible, including collection of refund value
amounts, in the same manner and with the same force and effect as if the
language of such article had been incorporated in full into this section
except to the extent that any provision of such article is either
inconsistent with a provision of this section or is not relevant to this
section as determined by the commissioner of taxation and finance.
Furthermore, for purposes of applying the provisions of article
twenty-seven of the tax law, where the terms "tax" and "taxes" appear in
such article, such terms shall be construed to mean "refund value" or
"balance in the refund value account".

11. If any deposit initiator fails or refuses to file a report or
furnish any information requested in writing by the department of
taxation and finance or the department, the department of taxation and
finance with the assistance of the department may, from any information
in its possession, make an estimate of the deficiency and collect such
deficiency from such deposit initiator.

12. a. Each deposit initiator shall provide a report to the department
describing all the types of beverage containers on which it initiates
deposits. The report shall include the product name, type of beverage,
size and composition of the beverage container, universal product code,
and any other information the department may require. Upon request, a
deposit initiator shall also provide to the department a copy of the
container label or a picture of any beverage container sold or offered
for sale in this state on which it initiates a deposit. Such information
shall be provided in a form as prescribed by the department. The
department may require that such forms be filed electronically.

b. A bottler may place on a beverage container a universal product
code or other distinctive marking that is specific to the state or used
only in the state and any other states with laws substantially similar
to this title as a means of preventing the sale or redemption of
beverage containers on which no deposit was initiated.

c. A bottler or deposit initiator shall notify the department, in a
form prescribed by the department, whenever a beverage container or
beverage container label is revised by altering the universal product
code, or whenever the container on which a universal product code
appears is changed in size, composition or glass color, or whenever the
container or container label on which a universal product code appears
is changed to include a universal product code that is unique to the
state or used only in the state and any other states with laws
substantially similar to this title.