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This entry was published on 2019-04-19
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SECTION 1817
Sales and compensating use taxes
Tax (TAX) CHAPTER 60, ARTICLE 37, PART 3
§ 1817. Sales and compensating use taxes.-- (a) Any person required to
obtain a certificate of authority under section eleven hundred
thirty-four of this chapter who, without possessing a valid certificate
of authority, willfully (1) sells tangible personal property or services
subject to tax, receives amusement charges or operates a hotel, (2)
purchases or sells tangible personal property for resale, or (3) sells
petroleum products; and any person who fails to surrender a certificate
of authority as required by such article shall be guilty of a
misdemeanor.

(b) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four of this chapter who within five years
after a determination by the commissioner, pursuant to such section, to
suspend, revoke or refuse to issue a certificate of authority has become
final, and without possession of a valid certificate of authority (1)
sells tangible personal property or services subject to tax, receives
amusement charges or operates a hotel, (2) purchases or sells tangible
personal property for resale, or (3) sells petroleum products, shall be
guilty of a misdemeanor. It shall be an affirmative defense that such
person performed the acts described in this subdivision without
knowledge of such determination. Any person who violates a provision of
this subdivision, upon conviction, shall be subject to a fine in any
amount authorized by this article, but not less than five hundred
dollars, in addition to any other penalty provided by law.

(c) Any person who willfully fails to file a notice of a show as
required by article twenty-eight of this chapter or who willfully rents,
leases or grants a license to use space for a show or operates a show
without obtaining a permit pursuant to paragraph two of subdivision (b)
of section eleven hundred thirty-four of this chapter shall be guilty of
a misdemeanor.

(d) Any person (1) who willfully fails to charge separately the tax
imposed under article twenty-eight of this chapter or to state such tax
separately on any bill, statement, memorandum, receipt or other
statement issued or employed by him or her upon which the tax is
required to be stated separately as provided in subdivision (a) of
section eleven hundred thirty-two of this chapter; or (2) who shall
refer or cause reference to be made to such tax in a form or manner
other than that required by such article twenty-eight, shall be guilty
of a misdemeanor. Provided however, that a person who has paid the tax
on behalf of a retail purchaser as provided in subdivision (d) of
section eleven hundred thirty-three of this chapter shall not be guilty
of a misdemeanor for failure to separately charge the tax imposed by
such article twenty-eight.

(e) Any person willfully failing to file a bond or other security or
deposit taxes in any banking institution where such filing or deposit is
required pursuant to the provisions of paragraph two or three of
subdivision (e) of section eleven hundred thirty-seven of this chapter
shall be guilty of a misdemeanor.

(f) 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 (1) the prepaid tax imposed by section eleven
hundred two of this chapter has not been assumed or paid by a
distributor registered as such under article twelve-A of this chapter or
(2) the prepaid tax imposed by section eleven hundred two of this
chapter was required to have been passed through to him and has not been
included in the cost of such fuel to him, shall in either case, be
guilty of a class E felony. For purposes of this subdivision, such owner
shall willfully and knowingly have in his custody, possession or under
his control any motor fuel or diesel motor fuel on which such tax has
not been assumed or paid by a distributor registered as such where such
owner has knowledge of the requirement that such tax be paid and where,
to his knowledge, such tax has not been assumed or paid by such
registered distributor on such motor fuel or diesel motor fuel. Such
owner shall willfully and knowingly have in his custody, possession or
under his control motor fuel or diesel motor fuel on which such tax is
required to have been passed through to him and has not been included in
the cost to him where such owner has knowledge of the requirement that
such tax be passed through and where to his knowledge such tax has not
been so included.

(g) Any person who willfully fails to keep any records required by
article twenty-eight of this chapter shall be guilty of a misdemeanor.

(h) The penalties provided for in this section shall not preclude
prosecution pursuant to the penal law with respect to the willful
failure of any person to pay over to the state any sales tax imposed by
section eleven hundred four, eleven hundred five, eleven hundred seven,
eleven hundred eight or eleven hundred nine of this chapter or by any
local law adopted by any city or county pursuant to article twenty-nine
of this chapter, whenever such person has been required to collect and
has collected any such sales tax. In any such prosecution under the
penal law, a person who has been required to collect and has collected
any such tax shall be deemed to have acted in a fiduciary character with
respect to the state or a political subdivision thereof, and the tax
collected shall be deemed to have been entrusted to such person by the
state or a political subdivision thereof.

(i) Any entertainment promoter who willfully authorizes an
entertainment vendor, to whom such promoter has either directly or
indirectly rented, leased, granted a license to use or under any other
arrangement made space available in order for such vendor to make
taxable sales of tangible personal property at an entertainment event,
without first requiring such vendor to obtain a certificate of authority
or who willfully fails to obtain an entertainment promoter certificate
as required under article twenty-eight of this chapter shall be guilty
of a misdemeanor.

(j) Any person described in subdivision (a) of section eleven hundred
forty-two-A of this chapter who willfully fails to include all
information required under such section on a ticket or other memorandum
as described in such section shall be guilty of a misdemeanor.

(k) Any owner of a place of business selling cigarettes at retail who
shall willfully and knowingly have in such owner's custody or possession
or under such owner's control any cigarettes on which (1) the prepaid
tax imposed by section eleven hundred three of this chapter has not been
assumed or paid by an agent licensed as such under article twenty of
this chapter 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 cigarettes to such
owner shall, in either case, be guilty of a misdemeanor. Provided,
however, if the amount of cigarettes is twenty thousand or more, such
owner shall be guilty of a class E felony. 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
cigarettes on which such tax has not been assumed or paid by an agent
licensed as such under such article twenty 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 by such
an agent on such cigarettes. Such owner shall willfully and knowingly
have in such owner's custody or possession or under such owner's control
cigarettes 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 where to such owner's knowledge such tax has not been so
included.

(l) Any person who falsely or fraudulently makes, alters or
counterfeits any stamp prescribed by the commissioner under the
provisions of article twenty-eight or pursuant to the authority of
article twenty-nine of this chapter, or causes or procures to be falsely
or fraudulently made, altered or counterfeited any such stamp, or
knowingly and willfully utters, purchases, passes or tenders as true any
such false, altered or counterfeited stamp, or knowingly and willfully
possesses any cigarettes in packages bearing any such false, altered or
counterfeited stamp, and any person who knowingly and willfully makes,
causes to be made, purchases or receives any device for forging or
counterfeiting any stamp prescribed by the commissioner under the
provisions of article twenty-eight or pursuant to the authority of
article twenty-nine of this chapter, or who knowingly and willfully
possesses any such device, shall be guilty of a class E felony. For the
purposes of this subdivision, the words "stamp prescribed by the
commissioner" shall include a stamp, impression or imprint made by a
metering machine, the design of which has been approved by the
commissioner.

(m) All of the provisions of this section shall apply for purposes of
any taxes administered by the commissioner and imposed pursuant to the
authority of article twenty-nine of this chapter and for the purposes of
any taxes imposed by article twenty-eight-A of this chapter. References
in subdivisions (f), (k), and (l) of this section to taxes imposed by or
pursuant to the authority of article twenty-eight or twenty-nine of this
chapter include the taxes required to be prepaid pursuant to section
eleven hundred two or eleven hundred three of this chapter.

(n) (1) Every person engaged in the retail sale of motor fuel and/or
diesel motor fuel or a distributor of such fuels, as defined in article
twelve-A of this chapter, shall comply with the provisions of section
three hundred ninety-two-i of the general business law by reducing the
prices charged for motor fuel and diesel motor fuel in an amount equal
to any reduction in taxes prepaid by the distributor or imposed on
retail customers resulting from computing sales and compensating use
taxes at a cents per gallon rate pursuant to the provisions of paragraph
two of subdivision (e) and subdivision (m) of section one thousand one
hundred eleven of this chapter.

(2) The commissioner shall monitor the prices charged by persons
engaged in the retail sale or distribution of motor fuel and diesel
motor fuel.

(3) Upon a finding by the commissioner that a person engaged in the
retail sale of motor fuel and/or diesel motor fuel or in the
distribution of such fuels has violated the provisions of section three
hundred ninety-two-i of the general business law, the commissioner shall
provide notice of such violation to such person and hold a hearing on
such violation, with an opportunity for the accused to be heard, not
less than ten days after notice is provided. A violation of section
three hundred ninety-two-i of the general business law shall subject the
person violating such section to a civil penalty of up to five thousand
dollars for each day such violation occurs.