§ 1145. Penalties and interest. (a) (1) (i) Any person failing to file
a return or to pay or pay over any tax to the tax commission within the
time required by or pursuant to this article (determined with regard to
any extension of time for filing or paying) shall be subject to a
penalty of ten percent of the amount of tax due if such failure is for
not more than one month, with an additional one percent for each
additional month or fraction thereof during which such failure
continues, not exceeding thirty percent in the aggregate. Provided,
however, in the case of a failure to file such return within sixty days
of the date prescribed for filing of such return by or pursuant to this
article (determined with regard to any extension of time for filing),
the penalty imposed by this subparagraph shall not be less than the
lesser of one hundred dollars or one hundred percent of the amount
required to be shown as tax on such return. For the purpose of the
preceding sentence, the amount of tax required to be shown on the return
shall be reduced by the amount of any part of the tax which is paid on
or before the date prescribed for payment of the tax and by the amount
of any credit against the tax which may be claimed upon the return. In
the case of a failure to file a return by a person required to register
with the tax commission as provided in section eleven hundred
thirty-four, in no event shall the penalty for failure to file a return
be less than fifty dollars.

(ii) If any amount of tax is not paid on or before the last date
prescribed in this article for payment, interest on such amount at the
rate of fourteen and one-half percent per annum or at the underpayment
rate set by the commissioner pursuant to section eleven hundred
forty-two of this part, whichever is greater, shall be paid for the
period from such last date to the date paid, whether or not any
extension of time for payment was granted. Interest under this
subparagraph shall not be paid if the amount thereof is less than one
dollar.

(iii) If the commissioner of taxation and finance determines that such
failure or delay was due to reasonable cause and not due to willful
neglect, he shall remit all of such penalty and that portion of such
interest that exceeds the interest that would be payable if such
interest were computed at the underpayment rate set by the commissioner
of taxation and finance pursuant to section eleven hundred forty-two.
The commissioner shall promulgate rules and regulations as to what
constitutes reasonable cause.

(iv) Provided, however, in the case of a long-form, part-quarterly
return, no penalty or interest shall be payable with respect to a return
and payment of estimated tax required to be filed and paid under
subdivisions (a) and (b) of section eleven hundred thirty-seven-A for
March, nineteen hundred seventy-six, nineteen hundred seventy-seven,
nineteen hundred seventy-eight, nineteen hundred seventy-nine, nineteen
hundred eighty, nineteen hundred eighty-one and nineteen hundred
eighty-two, if such returns are timely filed, accompanied by a payment
of not less than ninety percent of the tax as finally determined to be
due and payable for March, nineteen hundred seventy-six, nineteen
hundred seventy-seven, nineteen hundred seventy-eight, nineteen hundred
seventy-nine, nineteen hundred eighty, nineteen hundred eighty-one and
nineteen hundred eighty-two. Provided, further, that interest, at the
rate authorized under subdivision nine of section eleven hundred
forty-two, shall be payable upon the amount of any underpayment of the
tax due with the returns due on March twentieth, nineteen hundred
seventy-six, nineteen hundred seventy-seven, nineteen hundred
seventy-eight, nineteen hundred seventy-nine, nineteen hundred eighty,
nineteen hundred eighty-one and nineteen hundred eighty-two, for the
period of such underpayment, but not beyond the due date of the next
part-quarterly return.

(v) Provided, further, in the case of a March estimated return, no
penalty or interest shall be payable with respect to a return and
payment of estimated tax required to be filed and paid under subdivision
(c) of section eleven hundred thirty-seven-A for March, nineteen hundred
eighty-three and each subsequent March through and including March,
nineteen hundred ninety, if such returns are timely filed, accompanied
by a payment of either: (A) not less than ninety percent of the tax as
finally determined to be due and payable for the month of March in which
the March estimated tax return is required to be filed; or (B) in the
event such person has had at least four successive quarterly tax periods
immediately preceding the March twentieth for which the return is to be
filed, at least one-third of the sales and compensating use taxes
payable by such person to the commissioner of taxation and finance in
the comparable quarter of the immediately preceding year. However, where
interest is payable because of a failure to meet the requirements of
either clause (A) or (B) of this subparagraph such interest shall be at
the underpayment rate authorized under subdivision nine of section
eleven hundred forty-two upon any underpayment of the amount of tax due
for the period of such underpayment, but not beyond the due date of the
next part-quarterly return. For purposes of this subparagraph, the
underpayment of the amount of tax due shall be: (A) the difference
between the amount paid and ninety percent of the amount finally
determined to be due and payable for March, nineteen hundred
eighty-three and for March of each subsequent year through and including
March, nineteen hundred ninety, or (B) if such person has had at least
four successive quarterly tax periods immediately preceding the March
for which the return was filed, the difference between the amount paid
and one-third of the sales and compensating use taxes payable by such
person to the commissioner for the comparable quarter of the immediately
preceding year under this article, whichever is less. Notwithstanding
the preceding sentence, for purposes of this subparagraph: (1) the tax
as finally determined to be due and payable for such month of March, and
(2) the sales and compensating use taxes payable for the comparable
quarter of the immediately preceding year; shall not include taxes
imposed by section eleven hundred seven or eleven hundred eight of this
article or pursuant to the authority of article twenty-nine of this
chapter. Provided, however, all other provisions of this article shall
apply in the determination of such taxes.

(vi) Any person required by this article to file a return, who omits
from the total amount of state and local sales and compensating use
taxes required to be shown on a return an amount which is in excess of
twenty-five percent of the amount of such taxes required to be shown on
the return shall be subject to a penalty equal to ten percent of the
amount of such omission. The amount of the omission under the preceding
sentence shall be reduced by that portion of the omission which is
attributable to the tax treatment of any item by such person if there is
or was substantial authority for such treatment, or any item with
respect to which the relevant facts affecting the item's tax treatment
are adequately disclosed in the return or in a statement attached to the
return. If the tax commission determines that such omission was due to
reasonable cause and not due to willful neglect, it shall remit all of
such penalty. The penalty provided for in this subparagraph shall not
apply to any return of estimated tax required to be filed under section
eleven hundred thirty-seven-A.

(vii) Any owner of a filling station who shall willfully and knowingly
have in his custody, possession or under his control any motor fuel or
diesel motor fuel on which (A) the prepaid tax imposed by section eleven
hundred two of this article has not been assumed or paid by a
distributor registered as such under article twelve-A of this chapter,
or (B) the prepaid tax imposed by section eleven hundred two of this
article was required to have been passed through to him and has not been
included in the cost of such fuel to him shall be liable for a penalty
in the amount of twice the tax so not 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 paragraph and, for this purpose, the term "person
required to collect tax" shall be deemed to include an owner of a
filling station. Such penalty may be determined at any time within three
years after such motor fuel or diesel motor fuel shall have come into
his custody, possession or control. For purposes of this subparagraph,
such owner shall willfully and knowingly have in his custody, possession
or under his control motor fuel or diesel motor fuel on which (A) such
tax has not been assumed or paid by a distributor registered as such or
(B) such tax was required to have been passed through to him and has not
been included in the cost of such fuel to him where such owner has
knowledge of the requirement that such taxes be paid and where, to his
knowledge, such taxes have not been so included. For purposes of this
subparagraph, it shall be presumptive evidence that such owner shall
willfully and knowingly have in his custody, possession or under his
control motor fuel or diesel motor fuel (A) on which such tax has not
been assumed or paid by a distributor registered as such or (B) on which
such tax was required to have been passed through to him and has not
been included in the cost of such fuel to him where such owner has not
received the certification required by subdivision (h) of section eleven
hundred thirty-two of this article at the time of delivery of such motor
fuel or diesel motor fuel or, in those circumstances where the
commissioner has authorized the delivery of such certification at a time
after delivery of the motor fuel or diesel motor fuel, at the time
prescribed by the commissioner.

(viii) Any person required to collect tax who sells cigarettes at
retail and who shall willfully and knowingly have in such person's
custody or possession or under such person's control any cigarettes 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
cigarettes 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 cigarettes shall have come into such person's custody
or possession or under such person's control. For purposes of this
subparagraph, such person shall willfully and knowingly have in such
person's custody or possession or under such person's control cigarettes
on which (A) such tax has not been assumed or paid by an agent licensed
as such under 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 cigarettes 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 cigarettes on which (A) such tax has not
been assumed or paid by an agent authorized as such under such article
twenty or (B) such tax was required to have been passed through to such
person and has not been included in the cost of such cigarettes 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 cigarettes or, in those circumstances where
the commissioner has authorized the delivery of such certification at a
time after delivery of the cigarettes, at the time prescribed by the
commissioner.

(ix) In addition to any other penalty or interest under this article
or other law, any credit card issuer or fuel distributor, as defined in
subdivision (h) of section eleven hundred thirty-nine of this part, who
receives a refund or credit pursuant to such subdivision knowing, at the
time the refund application is filed or the credit is taken, that the
motor fuel or diesel motor fuel purchased was not for the government
entity's own use or consumption, shall be liable for a penalty in the
amount of the tax refunded or credited, plus applicable interest due
under this article.

(2) If the failure to pay or pay over any tax to the commissioner
within the time required by this article is due to fraud, in lieu of the
penalties and interest provided for in subparagraphs (i) and (ii) of
paragraph one of this subdivision, there shall be added to the tax (i) a
penalty of two times the amount of the tax due, plus (ii) interest on
such unpaid tax at the rate of fourteen and one-half percent per annum
or the underpayment rate of interest set by the commissioner pursuant to
section eleven hundred forty-two of this part, whichever is greater, for
the period beginning on the last day prescribed by this article for the
payment of such tax (determined without regard to any extension of time
for paying) and ending on the day on which such tax is paid.

(3) (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 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.

(ii) Any person who fails to surrender a certificate of authority when
a notice of revocation or suspension has become final 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 of such
failure, together with a penalty in an amount not exceeding two hundred
dollars for each subsequent day of such failure, not to exceed ten
thousand dollars in the aggregate.

(iii) Any person described in paragraph one or two of subdivision (a)
of section eleven hundred thirty-four who takes possession of or pays
for business assets under circumstances requiring notification by such
person to the tax commission pursuant to subdivision (c) of section
eleven hundred forty-one without having filed a certificate of
registration pursuant to section eleven hundred thirty-four shall, in
addition to any other penalty imposed by this chapter, be subject to a
penalty in an amount not exceeding two hundred dollars.

(iv) If the tax commission determines that any failure or act
described in this paragraph was due to reasonable cause and not due to
willful neglect, it may remit all or part of such penalty.

(4) Any person required by this article to display a certificate of
authority, who fails to display such certificate in the manner required
by this article or any rule or regulation adopted by the tax commission
in connection with such requirement shall, in addition to any other
penalty imposed by this chapter, be subject to a penalty of fifty
dollars. If the tax commission determines that such failure was due to
reasonable cause and not due to willful neglect, it may remit all or
part of such penalty.

(5) Any person who issues a false or fraudulent resale or other
exemption certificate or document with intent to evade tax shall, in
addition to any other penalty imposed by this chapter, be subject to a
penalty of one hundred percent of the tax that would have been due had
there not been a misuse of such certificate or document and a penalty of
fifty dollars for each such certificate or document.

(6) The tax commission shall promulgate rules and regulations as to
what constitutes reasonable cause for purposes of this subdivision.

(7) The penalties and interest provided for in this subdivision shall
be paid and disposed of in the same manner as other revenues from this
article. Such penalties and interest may be determined, assessed,
collected and enforced in the same manner as the tax imposed by this
article. Interest under this subdivision shall be compounded daily.

(b) Cross-reference: For criminal penalties, see article thirty-seven
of this chapter.

(c) Any person failing to file a return or to pay any tax required to
be prepaid to the commissioner with respect to motor fuel or diesel
motor fuel pursuant to the provisions of section eleven hundred two of
this article within the time required by this article shall, in addition
to any other penalty provided in this article or otherwise imposed by
law, be subject to a penalty equal to the amount of tax required to be
so prepaid pursuant to the provisions of such section eleven hundred
two. If the commissioner determines that such failure to file a return
or to pay any such tax was due to reasonable cause and not due to
willful neglect, he shall remit all or any part of such penalty.

(d) The certificate of the tax commission to the effect that a tax has
not been paid, that a return, bond or registration certificate has not
been filed, or that information has not been supplied pursuant to the
provisions of this article shall be presumptive evidence thereof.

(e) Any officer, director, shareholder or employee of a corporation or
of a dissolved corporation, any employee of a partnership, any employee
or manager of a limited liability company, or any employee of an
individual proprietorship, who as such officer, director, shareholder,
employee or manager is under a duty to act for such corporation,
partnership, limited liability company or proprietorship in complying
with any requirement of this article, and any member of a partnership or
limited liability company, which fails to pay the tax required to be
prepaid by section eleven hundred two or eleven hundred three of this
article, shall, in addition to other penalties provided by law, be
liable for a penalty equal to the total amount of the tax not paid, plus
penalties and interest computed pursuant to subdivision (a) of this
section as if such person were a distributor under article twelve-a of
this chapter or an agent under article twenty of this chapter,
respectively. If the commissioner determines that such failure was due
to reasonable cause and not due to willful neglect, the commissioner
shall remit all or part of such penalty imposed under this subdivision.
Such penalty shall be determined, assessed, collected and paid in the
same manner as the tax required to be prepaid by section eleven hundred
two or eleven hundred three, as the case may be, of this article and
shall be disposed of as provided with respect to moneys derived from
either such tax, respectively. Provided, however, that the penalty
provided for by this subdivision shall not be imposed on any person on
account of the failure of such a distributor or agent to pay the tax
required to be prepaid by section eleven hundred two or eleven hundred
three, respectively, of this article if such person is liable for such
tax pursuant to subdivision (b) of such section eleven hundred two or
subdivision (b) of such section eleven hundred three, respectively.

(f) Any entertainment promoter who authorizes an entertainment vendor
to make taxable sales of tangible personal property at an entertainment
event with respect to which he is a promoter, where such vendor is not
registered under subdivision (a) of section eleven hundred thirty-four
shall, in addition to any other penalty provided in this article or
otherwise imposed by law, be subject to a penalty of not more than ten
thousand dollars with respect to each such entertainment event.

(g) (1) Any person failing to keep any of the additional records
required to be kept pursuant to section eleven hundred forty-two-A of
this article, shall, in addition to any other penalty provided in this
article or otherwise imposed by law, be subject to a penalty in an
amount not to exceed five hundred dollars where such records have not
been kept for a month or part thereof. Such penalty for failure to keep
such records shall not be imposed and collected more than once for any
such failure to keep records for such month or part thereof.

(2) Any person described in subdivision (a) of section eleven hundred
forty-two-A of this chapter who fails to consent to the entering and
walking about for the purposes described in such section, or who
interferes with the commissioner or any authorized employee of the
department, or the agent of either of them, with respect to entering and
walking about for the purposes described in such section, or whose
employee fails to consent or interferes with such entering and walking
about for the purposes described in such section, shall, in addition to
any other penalty provided in this article or otherwise imposed by law,
be subject to a penalty in an amount not to exceed five hundred dollars
for the first day of such failure to consent or the first day of such
interference. Each subsequent day any such failure to consent to or
interference with such entering and walking about shall occur shall be
subject to an additional penalty not to exceed one thousand dollars. In
no event, shall such penalties exceed ten thousand dollars in the
aggregate.

(3) If the commissioner determines that such failure to keep such
records described in paragraph one of this subdivision or that such
failure to consent to or such interference with the entering and walking
about described in paragraph two of this subdivision was due to
reasonable cause and not due to willful neglect, the commissioner shall
remit all or any part of such penalty. Such penalties shall be paid and
disposed of in the same manner as other revenues from this article. Such
penalties shall be determined, assessed, collected, paid and enforced in
the same manner as the tax imposed by this article and all the
provisions of this article relating to tax shall be deemed also to apply
to the penalties imposed by this subdivision.

(h) (1) Any person required to file a report pursuant to subdivision
(h) of section eleven hundred thirty-six of this article, who fails to
include the name or certificate of authority number of any itinerant
vendor or the sales for resale made to such vendor and the amounts paid,
charged or due thereon, required to be included in such report, or who
fails to include such information which is true and correct, shall, in
addition to any other penalty provided in this article or otherwise
imposed by law, be subject to a penalty computed by multiplying an
amount not to exceed fifty dollars by the number of itinerant vendors
required to be included in such report that are not so included (whether
or not such a report is filed) or for which incomplete or incorrect
information has been reported.

(2) Any person failing to file a report required pursuant to
subdivision (h) of section eleven hundred thirty-six of this article
within the time required by regulations promulgated pursuant to such
subdivision, shall, in addition to any other penalty provided in this
article or otherwise imposed by law, be subject to a penalty in an
amount not to exceed five hundred dollars for each such failure.

(3) In no event shall the penalty imposed by paragraph one of this
subdivision, or the aggregate of the penalties imposed by paragraphs one
and two of this subdivision, exceed five thousand dollars for any twelve
month period commencing June first and ending May thirty-first of the
following year.

(4) If the commissioner determines that any failure to include
information, or to include true and correct information, in a report
required to be filed, or failure to timely file a report, as described
in this subdivision, was due to reasonable cause and not due to willful
neglect, the commissioner shall remit all or part of any of the
penalties imposed under this subdivision. Such penalties shall be
determined, assessed, collected, paid, disposed of and enforced 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 such
penalties.

* (i) Any person required to make or maintain records under this
article (but not including the records required under section eleven
hundred forty-two-A of this part) who fails to make or maintain or make
available to the commissioner these records is subject to a penalty not
to exceed one thousand dollars for the first quarter or part thereof for
which the failure occurs and not to exceed five thousand dollars for
each additional quarterly period or part thereof for which the failure
occurs. This penalty is in addition to any other penalty provided for in
this article but may not be imposed and collected more than once for
failures for the same quarterly period or part thereof. If the
commissioner determines that a failure to make or maintain or make
available records in any quarter was entirely due to reasonable cause
and not to willful neglect, the commissioner must remit the penalty
imposed for that quarter. These penalties will be paid and disposed of
in the same manner as other revenues from this article. These penalties
will be determined, assessed, collected, paid and enforced in the same
manner as the tax imposed by this article, and all the provisions of
this article relating to tax will be deemed also to apply to the
penalties imposed by this subdivision. For purposes of the penalty
imposed by this subdivision, a person will be considered to have failed
to make or maintain the required records when the records made or
maintained by that person for a quarterly period make it virtually
impossible to verify sales receipts or the taxability of those receipts
and to conduct a complete audit.

* NB There are 3 sb (i)'s

* (i)(1) Every person required to file an information return by
subdivision (i) of section eleven hundred thirty-six of this part who
(A) fails to provide any of the information required by paragraph one or
two of subdivision (i) of section eleven hundred thirty-six of this part
for a vendor, operator, or recipient, or who fails to include any such
information that is true and correct (whether or not such a report is
filed) for a vendor, operator, or recipient, or (B) fails to provide the
information required by paragraph four of subdivision (i) of section
eleven hundred thirty-six of this part to a vendor, operator, or
recipient specified in paragraph four of subdivision (i) of section
eleven hundred thirty-six of this part, will, in addition to any other
penalty provided in this article or otherwise imposed by law, be subject
to a penalty of five hundred dollars for ten or fewer failures, and up
to fifty dollars for each additional failure.

(2) Every person failing to file an information return required by
subdivision (i) of section eleven hundred thirty-six of this part within
the time required by subdivision (i) of section eleven hundred
thirty-six of this part will, in addition to any other penalty provided
for in this article or otherwise imposed by law, be subject to a penalty
in an amount not to exceed two thousand dollars for each such failure,
provided that the minimum penalty under this paragraph is five hundred
dollars.

(3) In no event will the penalty imposed by paragraph one, or the
aggregate of the penalties imposed under paragraphs one and two of this
subdivision, exceed ten thousand dollars for any annual filing period as
described by paragraph three of subdivision (i) of section eleven
hundred thirty-six of this part.

(4) If the commissioner determines that any of the failures that are
subject to penalty under this subdivision was entirely due to reasonable
cause and not due to willful neglect, the commissioner must remit the
penalty imposed under this subdivision. These penalties will be
determined, assessed, collected, paid, disposed of and enforced in the
same manner as taxes imposed by this article and all the provisions of
this article relating thereto will be deemed also to refer to these
penalties.

* NB There are 3 sb (i)'s

* (i) Aiding or assisting in the giving of fraudulent returns,
reports, statements or other documents. Any person who, with the intent
that tax be evaded, for a fee or other compensation or as an incident to
the performance of other services for which that person receives
compensation, aids or assists in, or procures, counsels, or advises the
preparation or presentation under this article, or in connection with
any matter arising under this article, of any return, report,
declaration, statement or other document that is fraudulent or false as
to any material matter, or supplies any false or fraudulent information,
whether or not such falsity or fraud is with the knowledge or consent of
the person authorized or required to present that return, report,
declaration, statement or other document, will pay a penalty not
exceeding five thousand dollars. The definitions in subsection (l) of
section ten hundred eighty-five of this chapter apply for the purposes
of this penalty.

* NB There are 3 sb (i)'s

* (j) Any person required to make or maintain records under this
article who fails to present and make available these records in an
auditable form is subject to a penalty not to exceed one thousand
dollars for each quarterly period or part thereof for which records
maintained by that person are not presented and made available by that
person in auditable form, even if these records are adequate to verify
credits, receipts, and the taxability thereof and to perform a complete
audit. This penalty is in addition to any other penalty provided for in
this article, but will not be imposed and collected more than once for
these failures for the same quarterly period or part thereof. If the
commissioner determines that any failure described in this subdivision
for a quarterly period was entirely due to reasonable cause and not to
willful neglect, the commissioner must remit the penalty imposed for
that quarter. The penalties imposed by this subdivision will be paid and
disposed of in the same manner as other revenues from this article.
These penalties will be determined, assessed, collected, paid and
enforced in the same manner as the tax imposed by this article, and all
the provisions of this article relating to tax will be deemed also to
apply to the penalties imposed by this subdivision. For purposes of the
penalty imposed by this subdivision, a person will be considered to have
failed to present and make records available in auditable form when the
records presented by that person for that quarter lack sufficient
organization, such as by date, invoice number, sales receipts, or
sequential numbering, or are otherwise inadequate (without reorganizing,
reordering or otherwise rearranging the records into an auditable form)
to permit direct reconciliation of the receipts, invoices or other
source documents with the entries for the quarterly period in the books
and records and on the returns of that person.

* NB There are 2 sb (j)'s

* (j) False or fraudulent document penalty. Any taxpayer that submits
a false or fraudulent document to the department will be subject to a
penalty of one hundred dollars per document submitted, or five hundred
dollars per tax return submitted. This penalty will be in addition to
any other penalty provided by law.

* NB There are 2 sb (j)'s

(k) Any person who, having elected to maintain in an electronic format
any portion or all of the records he or she is required to make and
maintain by this article, fails to present and make these records
available and accessible to the commissioner in electronic format, is
subject to a penalty not to exceed five thousand dollars for each
quarterly period or part thereof for which these electronic records are
not presented and made available and accessible upon request,
notwithstanding that the records may also be maintained and available in
hard copy format. This penalty is in addition to any other penalty
provided for in this article, but may not be imposed and collected more
than once for a failure for the same quarterly period or part thereof.
Provided, however, nothing in this subdivision will prevent the separate
imposition, if applicable, of any penalty imposed by subdivision (i) or
(j) of this section for the same quarterly period or part thereof. If
the commissioner determines that the failure to present and make
electronically maintained records available and accessible for a
quarterly period was entirely due to reasonable cause and not to willful
neglect, the commissioner must remit the penalty imposed for that
quarter. These penalties will be paid and disposed of in the same manner
as other revenues from this article. These penalties will be determined,
assessed, collected, paid and enforced in the same manner as the tax
imposed by this article, and all the provisions of this article relating
to tax will be deemed also to apply to the penalty imposed by this
subdivision. For purposes of the penalty imposed by this subdivision, a
failure to present and make available and accessible a record maintained
in electronic format includes not only the denial of access to the
requested records that were maintained electronically, but also the
failure to make available to the commissioner the information,
knowledge, or means necessary to access and otherwise use the
electronically maintained records in the inspection and examination of
these records.