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This entry was published on 2014-09-22
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SECTION 289-B
Penalties and interest
Tax (TAX) CHAPTER 60, ARTICLE 12-A
§ 289-b. Penalties and interest. 1. (a) A distributor or other person
who or which fails to file a return or to pay any tax 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 per centum of the amount of tax determined to be due as provided in
this article plus one per centum of such amount for each month or
fraction thereof during which such failure continues after the
expiration of the first month after such return was required to be filed
or such tax became due, not exceeding thirty per centum 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 paragraph
shall not be less than the lesser of one hundred dollars or one hundred
per centum 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.

(b) 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
underpayment rate set by the commissioner of taxation and finance
pursuant to subdivision twenty-sixth of section one hundred seventy-one
of this chapter 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 paragraph shall not be paid if the amount thereof is
less than one dollar.

(c) If the tax commission determines that such failure or delay was
due to reasonable cause and not due to willful neglect, it shall remit
all or part of such penalty. The tax commission shall promulgate rules
and regulations as to what constitutes reasonable cause.

(d) If the failure to pay any tax within the time required by or
pursuant to this article is due to fraud, in lieu of the penalties and
interest provided for in paragraphs (a) and (b) of this subdivision,
there shall be added to the tax (i) a penalty of two times the amount of
tax due, plus (ii) interest on such unpaid tax at the underpayment rate
set by the commissioner of taxation and finance pursuant to subdivision
twenty-sixth of section one hundred seventy-one of this chapter 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.

(e) 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 (i) the taxes imposed by or pursuant to the
authority of this article have not been assumed or paid by a distributor
registered as such under this article or (ii) the taxes imposed by or
pursuant to the authority of this article, which taxes were required to
have been passed through to him and included in the cost to him of such
fuel, have not been included in the cost to him of such fuel shall be
liable for a penalty equal to twice the amount of 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 to determination of tax, proceedings
to recover tax, refunds (but only of monies paid in error), mailing
rules and disposition of revenue shall be deemed also to refer to the
penalty imposed by this paragraph and, for this purpose, the term "owner
of a filling station" shall be substituted for the term "distributor"
wherever appearing in such provisions. Such penalty may be determined at
any time within three years after such motor fuel or Diesel motor fuel
shall have come into the custody, possession or control of such owner of
a filling station. For purposes of this paragraph, such owner shall
willfully and knowingly have in his custody, possession or under his
control any motor fuel or Diesel motor fuel (1) on which such taxes have
not been assumed or paid by a distributor registered as such or (2) on
which such taxes are required to have been passed through to him and
have not been included in his cost when such owner has known of the
requirement that such taxes be so included and where to his knowledge
such taxes have not been so included. For purposes of this paragraph, it
shall be presumptive evidence that such owner shall willfully and
knowingly have in his custody, possession or under his control any motor
fuel or Diesel motor fuel (1) on which such taxes have not been assumed
or paid by a distributor registered as such or (2) on which such taxes
are required to have been passed through to him and have not been
included in his cost where such owner has not received the certification
required by subdivision three of section two hundred eighty-five-a or,
in the case of Diesel motor fuel, by subdivision four of section two
hundred eighty-five-b 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 the certification at a time
after delivery of the motor fuel or Diesel motor fuel, at the time
prescribed by the commissioner.

(e-1) In addition to any other penalties that may be imposed by law,
any of the following penalties may be imposed.

(i) Any person who fails to file an informational return under this
article on or before the prescribed date, must pay a penalty of fifteen
hundred dollars for the first violation and a penalty of three thousand
dollars for each subsequent violation, unless it can be shown that such
failure is due to reasonable cause and not willful neglect.

(ii) Any person who fails to file an informational return within sixty
days of the date prescribed for filing must pay a penalty of two
thousand dollars for the first violation and a penalty of four thousand
dollars for each subsequent violation, unless it can be shown that such
failure is due to reasonable cause and not willful neglect.

(iii) Any person who fails to file a complete informational return
must pay a penalty of fifteen hundred dollars for the first violation
and a penalty of three thousand dollars for each subsequent violation,
unless it can be shown that such failure is due to reasonable cause and
not willful neglect.

(iv) If any person makes a statement on an informational return and,
as of the time of the statement, there was no reasonable basis for that
statement, that person must pay a penalty of two thousand dollars for
the first violation and a penalty of four thousand dollars for each
subsequent violation.

(f) The penalties and interest provided for in this section shall be
determined, assessed, collected and paid in the same manner as the taxes
imposed by this article and shall be disposed of as hereinafter provided
with respect to moneys derived from the tax. Unpaid penalties and
interest under this subdivision may be recovered by the attorney-general
by action in the name of the people, and all penalties and interest due
from the same distributor may be sued for in one action. Interest under
this subdivision shall be compounded daily.

2. Any officer, director, shareholder or employee of a corporation or
of a dissolved corporation, any employee of a partnership or any
employee of an individual proprietorship, who as such officer, director,
shareholder or employee is under a duty to act for such corporation,
partnership or proprietorship in complying with any requirement of this
article, and any member of a partnership, which fails to pay the taxes
imposed by or pursuant to this article, shall, in addition to other
penalties provided by law, be liable to a penalty equal to the total
amount of the tax not paid, plus penalties and interest computed
pursuant to subdivision one of this section as if such person were a
distributor. If the tax commission determines that such failure was due
to reasonable cause and not due to willful neglect, it 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 taxes imposed by this article and shall be disposed of as
hereinafter provided with respect to moneys derived from the tax.

3. For purposes of this chapter, the failure to do any act required by
or under the provisions of this article shall be deemed an act committed
in part at the office of the department of taxation and finance in
Albany. For purposes of this chapter, the certificate of the tax
commission to the effect that a tax has not been paid, that a return has
not been filed, or that information has not been supplied, as required
by or under the provisions of this article, or that a claim for refund
has been filed, shall be prima facie evidence that such tax has not been
paid, that such return has not been filed, that such information has not
been supplied, or that such claim has been filed.

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

5. (a) Any purchaser of Diesel motor fuel who knowingly issues a false
or fraudulent exempt transaction certificate (or a similar document
which has been prescribed by the commissioner of taxation and finance)
or interdistributor sale certificate in order to claim an exemption from
the taxes imposed on Diesel motor fuel by this article by reason of an
exemption from tax provided for in paragraph (b) of subdivision three of
section two hundred eighty-two-a of this article, shall, in addition to
liability for tax or any other penalty imposed by this chapter, be
subject to a penalty of one hundred percent of the tax liability which
would have resulted if there had not been a misuse of such certificate.

(b) Any seller of Diesel motor fuel who knowingly accepts from a
purchaser a false or fraudulent exempt transaction certificate (or a
similar document which has been prescribed by the commissioner of
taxation and finance) or interdistributor sale certificate which claims
an exemption from the taxes imposed on Diesel motor fuel by this article
by reason of the exemption from tax provided for in such paragraph (b)
of subdivision three of section two hundred eighty-two-a of this article
shall, in addition to liability for tax or any other penalty imposed by
this chapter, be subject to a penalty of one hundred percent of the tax
liability which would have resulted if such certificate had not been so
accepted.