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This entry was published on 2014-09-22
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SECTION 372
Consumer bill of rights regarding tax preparers
General Business (GBS) CHAPTER 20, ARTICLE 24-C
§ 372. Consumer bill of rights regarding tax preparers. (a) A tax
preparer shall provide his or her customers with a receipt containing an
address and phone number at which the preparer can be contacted
throughout the year.

(b) The department shall, in accordance with regulations promulgated
by the commissioner of taxation and finance, produce and make available
to taxpayers and tax preparers an informational flier regarding
consumers' rights and laws concerning tax preparers to be called a
"consumer bill of rights regarding tax preparers". The department shall
consult with the department of state, to enhance distribution of fliers
to consumers. The flier shall also be made available on the department
and the department of state's internet site, and shall contain
information including, but not limited to, the following:

(1) postings required by state and federal laws, such as price posting
and posting of qualifications;

(2) explanations of some of the commonly offered services and industry
jargon, such as preparation of short and long federal forms, refund,
electronic filing, express mail, direct deposit, refund anticipation
check, refund anticipation loan, quick, instant, rapid, fast, fee, and
interest;

(3) basic information on what a tax preparer is and is not required to
do for a consumer, such as the preparer's responsibility to sign a
return, that a tax preparer may not be required to accompany a consumer
to an audit but the company may have a voluntary policy to accompany
consumers to audits; and

(4) the telephone numbers of the department for information and
complaints.

The flier shall be in a form which is easily reproducible by photocopy
machine.

(c) The department shall coordinate its response to consumer tax
preparer complaints with the department of state, as the department
deems appropriate.

(d) A copy of the consumer bill of rights regarding tax preparers
shall be provided to individuals or businesses on request to the
department, and shall be sent by the department no later than October
fifteenth of each year to each tax preparer who has been found to be in
violation of this subdivision or any other provision of this section
within the previous calendar year. Each tax preparer subject to this
section shall obtain a current consumer's bill of rights regarding tax
preparers from the department and shall reproduce it so that it is clear
and legible. As of January first of each year, each tax preparer shall
give to each customer, free of charge, a current, legible copy of the
consumer's bill of rights regarding tax preparers prior to any
discussion with the customer. Each such tax preparer shall also verbally
direct the consumer to review the consumer bill of rights regarding tax
preparers and shall answer any questions the consumer may have about its
contents.

(e) (1) Any tax preparer who advertises the availability of a refund
anticipation loan or refund anticipation check may not directly or
indirectly represent such a loan as a refund. Any advertisement which
mentions a refund anticipation loan must state conspicuously that it is
a loan and that a fee or interest will be charged by the lending
institution. The advertisement must also disclose the name of the
lending institution.

(2) (i) Before any taxpayer enters into a refund anticipation loan,
the tax preparer facilitating such loan shall provide the following
disclosure to the taxpayer in writing in at least fourteen-point type:

"YOU ARE NOT REQUIRED TO ENTER INTO THIS REFUND ANTICIPATION LOAN
AGREEMENT MERELY BECAUSE YOU HAVE RECEIVED THIS INFORMATION.

IF YOU DO SIGN A CONTRACT FOR A REFUND ANTICIPATION LOAN, YOU WILL BE
TAKING OUT A LOAN. YOU WILL BE RESPONSIBLE FOR REPAYMENT OF THE ENTIRE
LOAN AMOUNT AND ALL RELATED COSTS AND FEES, REGARDLESS OF HOW MUCH MONEY
YOU ACTUALLY RECEIVE IN YOUR TAX REFUND. IF YOUR REFUND IS DELAYED, YOU
MAY HAVE TO PAY ADDITIONAL COSTS.

IF YOU DO NOT TAKE OUT THIS REFUND ANTICIPATION LOAN, YOU ARE ELIGIBLE
TO RECEIVE A GROSS TAX REFUND OF APPROXIMATELY $(insert amount).

IF YOU DO TAKE OUT THIS REFUND ANTICIPATION LOAN, YOU WILL BE
RESPONSIBLE TO PAY $(insert amount) IN FEES FOR THE LOAN. AFTER THESE
FEES ARE PAID, YOU WILL RECEIVE APPROXIMATELY $ (insert amount) AS YOUR
LOAN.

THE ESTIMATED ANNUAL PERCENTAGE RATE OF YOUR REFUND ANTICIPATION LOAN
IS (insert amount)%. THIS IS BASED ON THE ACTUAL AMOUNT OF TIME YOU WILL
BE LENT MONEY THROUGH THIS REFUND ANTICIPATION LOAN.

IF YOU DO TAKE OUT THIS REFUND ANTICIPATION LOAN, YOU CAN EXPECT TO
RECEIVE YOUR LOAN WITHIN APPROXIMATELY TWO BUSINESS DAYS OF (insert
date).

IF YOU DO NOT TAKE OUT THIS REFUND ANTICIPATION LOAN, YOU CAN STILL
RECEIVE YOUR TAX REFUND QUICKLY. IF YOU FILE YOUR TAX RETURN
ELECTRONICALLY AND RECEIVE YOUR TAX REFUND THROUGH THE MAIL, YOU CAN
EXPECT TO RECEIVE YOUR REFUND WITHIN APPROXIMATELY TWO BUSINESS DAYS OF
(insert date). IF YOU FILE YOUR TAX RETURN ELECTRONICALLY AND HAVE YOUR
TAX REFUND DIRECTLY DEPOSITED INTO A BANK ACCOUNT, YOU CAN EXPECT TO
RECEIVE YOUR REFUND WITHIN APPROXIMATELY TWO BUSINESS DAYS OF (insert
date)."

(ii) Before any taxpayer enters into an agreement to receive a refund
anticipation check, the tax preparer facilitating the agreement shall
provide the following disclosure to the taxpayer in writing in at least
fourteen-point type:

"YOU ARE NOT REQUIRED TO ENTER INTO THIS REFUND ANTICIPATION CHECK
AGREEMENT MERELY BECAUSE YOU HAVE RECEIVED THIS INFORMATION. IF YOU DO
TAKE OUT THIS REFUND ANTICIPATION CHECK, YOU WILL BE RESPONSIBLE TO PAY
$(insert amount) IN FEES FOR THE CHECK TO BE ISSUED BY (insert name of
issuer of refund anticipation check). YOU CAN AVOID THIS FEE AND STILL
RECEIVE YOUR REFUND IN THE SAME AMOUNT OF TIME BY HAVING YOUR REFUND
DIRECTLY DEPOSITED INTO YOUR OWN BANK ACCOUNT. YOU CAN ALSO WAIT FOR THE
FEDERAL OR STATE REFUND TO BE MAILED TO YOU.

IF YOU DO ENTER INTO THIS REFUND ANTICIPATION CHECK AGREEMENT, YOU CAN
EXPECT TO RECEIVE YOUR CHECK BY APPROXIMATELY TWO BUSINESS DAYS OF
(insert date).

IF YOU DO NOT ENTER INTO THIS REFUND ANTICIPATION CHECK AGREEMENT, YOU
CAN STILL RECEIVE YOUR TAX REFUND QUICKLY. IF YOU FILE YOUR TAX RETURN
ELECTRONICALLY AND RECEIVE YOUR TAX REFUND THROUGH THE MAIL, YOU CAN
EXPECT TO RECEIVE YOUR REFUND WITHIN APPROXIMATELY TWO BUSINESS DAYS OF
(insert date). IF YOU FILE YOUR TAX RETURN ELECTRONICALLY AND HAVE YOUR
TAX REFUND DIRECTLY DEPOSITED INTO A BANK ACCOUNT, YOU CAN EXPECT TO
RECEIVE YOUR REFUND WITHIN APPROXIMATELY TWO BUSINESS DAYS OF (insert
date)."

(iii) It shall be the obligation of the tax preparer to complete the
required disclosures accurately with all relevant information for each
taxpayer and to ensure that the completed disclosure form is signed by
the taxpayer before he or she enters into a refund anticipation loan or
a refund anticipation check, with a copy of the same provided to the
taxpayer. The name and the unique identification number of the tax
return preparer (and facilitator, if different) assigned pursuant to
section thirty-two of the tax law must be included on the disclosure
form provided to the taxpayer.

(f)(1) If a taxpayer applies for a refund anticipation loan, the
facilitator must also orally inform the taxpayer in the language
primarily used for oral communications between the facilitator and
taxpayer:

(i) that the product is a loan that only lasts one to two weeks;

(ii) if the tax refund is less than expected, the taxpayer is liable
for the full amount of the loan and must repay any difference;

(iii) if the refund is delayed for any reason, there may be additional
costs, such as additional interest, that the taxpayer will have to pay;

(iv) the amount of the refund anticipation loan fee; and

(v) the refund anticipation loan interest rate.

(2) If a taxpayer applies for a refund anticipation check, the
facilitator must also orally inform the taxpayer in the language
primarily used for oral communications between the facilitator and
taxpayer:

(i) the amount of the refund anticipation check fee; and

(ii) that the taxpayer can receive a refund in the same amount of time
without a fee if the tax return is filed electronically, and the
consumer chooses direct deposit to their own personal bank account.

(g) Any person, partnership, corporation or other business entity who
violates any provision of this section or any of the regulations
promulgated pursuant to this section shall be liable for a civil penalty
of not less than two hundred fifty dollars nor more than five hundred
dollars for the first violation and for each succeeding violation a
civil penalty of not less than five hundred dollars nor more than seven
hundred fifty dollars. The penalties provided for by this subdivision
must be paid upon notice and demand and will be assessed, collected and
paid in the same manner as taxes under article twenty-seven of the tax
law.

(h) Apart from subdivision (e) of this section and the accompanying
penalties as listed in subdivision (f) of this section, the provisions
of this section shall not apply to:

(1) an officer or employee of a corporation or business enterprise
who, in his or her capacity as such, advises or assists in the
preparation of income tax returns relating to such corporation or
business enterprise;

(2) an attorney at law who advises or assists in the preparation of
income tax returns in the practice of law and the employees thereof;

(3) a fiduciary and the employees thereof who advise or assist in the
preparation of income tax returns on behalf of the fiduciary estate, the
testator, trustee, grantor or beneficiaries thereof;

(4) a certified public accountant licensed pursuant to the education
law or licensed by one or more of the states or jurisdictions of the
United States, and the employees thereof;

(5) a public accountant licensed pursuant to the education law and the
employees thereof;

(6) an employee of a governmental unit, agency or instrumentality who
advises or assists in the preparation of income tax returns in the
performance of his or her official duties; or

(7) an agent enrolled to practice before the internal revenue service
pursuant to section 10.4 of subpart A of part ten of title thirty-one of
the code of federal regulations.