2013 New York Consolidated Laws
TAX - Tax
Article 28 - SALES AND COMPENSATING USE TAXES
Part 4 - (1131 - 1148) ADMINISTRATIVE PROVISIONS
1142 - General powers of the tax commission.

 
    §  1142.  General  powers  of  the  tax commission. In addition to the
  powers granted to the tax commission  in  this  article,  it  is  hereby
  authorized and empowered:
    1.  To  make, adopt and amend rules and regulations appropriate to the
  carrying out of this article and the purposes thereof;
    2. To extend, for cause shown, the time of filing any return or report
  for a period not exceeding three months; and for cause shown,  to  remit
  penalties  but  not  interest  computed  at  the rate of six percent per
  annum;
    3. To delegate its functions hereunder to  a  deputy  commissioner  of
  taxation  and  finance or any employee or employees of the department of
  taxation and finance;
    4. To prescribe  methods  for  determining  the  amount  of  receipts,
  amusement  charges,  dues or rents and for determining which of them are
  taxable and which are nontaxable;
    5. To require any person required to  collect  tax  to  keep  detailed
  records  of  all  receipts,  amusement  charges, dues or rents received,
  charged or accrued, including those claimed to be nontaxable,  and  also
  of  the nature, type, value and amount of all purchases, sales, services
  rendered, admissions, memberships, occupancies, names and  addresses  of
  customers, and other facts relevant in determining the amount of tax due
  and to furnish such information upon request to the tax commission;
    6. To assess, determine, revise and readjust the taxes imposed by this
  article;
    7.  To  publish and maintain, as it deems necessary, lists of specific
  items of tangible personal property which are  found  to  be  foods  and
  drugs  exempt  from  tax  under paragraphs (1) and (3) of section eleven
  hundred fifteen. Assistance and cooperation in the formulation  of  such
  lists  shall be provided by the department of health upon request by the
  tax commission.
    8. To make  such  provision  as  it  deems  necessary  for  the  joint
  administration  of the state and local taxes imposed by this article and
  authorized by article twenty-nine of the tax law,  including  the  joint
  reporting,  assessment,  collection,  determination  and  refund of such
  taxes, and for that purpose to prescribe by regulation that any  of  the
  commission's  functions  under  said  articles,  and any returns, forms,
  statements, documents or information to be submitted to  the  commission
  under  said  articles,  any books and records to be kept for purposes of
  the taxes imposed or authorized  by  said  articles,  any  schedules  of
  amounts  to  be collected under said articles, any registration required
  under said articles, and the payment of taxes under said articles  shall
  be on a joint basis with respect to the taxes imposed by said articles.
    9.  To  set  the  overpayment  and  underpayment rates of interest for
  purposes of sections  eleven  hundred  thirty-nine  and  eleven  hundred
  forty-five  of  this  part.  Such  rates  shall  be  the overpayment and
  underpayment rates of interest set pursuant to subsection (e) of section
  one thousand ninety-six of this chapter, but the underpayment rate shall
  not be less than seven and one-half percent per annum.  Any  such  rates
  set  by  the  commissioner shall apply to taxes, or any portion thereof,
  which remain or become due or overpaid on or after  the  date  on  which
  such  rates  become  effective  and  shall  apply  only  with respect to
  interest computed or computable  for  periods  or  portions  of  periods
  occurring  in  the  period  during  which  such  rates are in effect. In
  computing the amount of any interest required  to  be  paid  under  this
  article  by  the  commissioner  or  by the taxpayer, or any other amount
  determined by reference to such amount of interest,  such  interest  and
  such  amount shall be compounded daily. The preceding sentence shall not
  apply for purposes of computing the amount of any interest  for  failure

  to  pay  estimated  tax  under  subparagraph  (iv)  of  paragraph one of
  subdivision (a) of section eleven hundred forty-five of this part.
    10.  To  delegate  from  time to time and in whole or in part, when it
  deems it to be in the best interests of the state, to  the  commissioner
  of  finance of the city of New York and his employees and agents, and to
  the county executives of Nassau and Suffolk counties and their employees
  and agents its power to examine the books and records of any  person  in
  the  city  of  New  York  or  the  counties of Nassau and Suffolk who is
  subject to the taxes imposed by or required to file returns pursuant  to
  this  article;  provided, however, that (a) such delegation shall relate
  solely to examining books and records and  not  to  review,  assessment,
  appeal,  or any other action taken on the basis of such examination, (b)
  every examination made pursuant to such delegation shall be conducted in
  accordance with the direction, methods,  rules,  practices,  procedures,
  and  regulations  of  the  commissioner  of taxation and finance, (c) no
  power shall be delegated to re-examine books  and  records  for  periods
  previously  examined  by  the  commissioner of taxation and finance, his
  agents or employees, and (d) such  delegation  shall  limit  the  county
  executives  of  Nassau  and Suffolk counties to examine only those books
  and records of persons within their respective counties.
    11. To make such provision pursuant to rules and regulations  for  the
  joint  administration, in whole or in part, of the state and local taxes
  imposed by this article and authorized by article  twenty-nine  of  this
  chapter  upon  the  sale  of petroleum products and the taxes imposed by
  article twelve-A of this chapter and authorized to be  imposed  by  such
  article,   including   the   joint  reporting,  assessment,  collection,
  determination and  refund  of  such  taxes,  and  for  that  purpose  to
  prescribe  that any of the commissioner's functions under said articles,
  and any returns, forms,  statements,  documents  or  information  to  be
  submitted to the commissioner under said articles, any books and records
  to  be  kept  for  purposes  of  the taxes imposed or authorized by said
  articles, any schedules of amounts to be collected under said  articles,
  any  registration required under said articles, and the payment of taxes
  under said articles shall be on a joint basis with respect to the  taxes
  imposed by said articles.
    12.  To  make such provision pursuant to rules and regulations for the
  joint administration, in whole or in part, of the taxes imposed by  this
  article  and  pursuant  to  the authority of article twenty-nine of this
  chapter upon the sale or use of cigarettes  and  the  taxes  imposed  by
  article   twenty   of  this  chapter,  including  the  joint  reporting,
  assessment, collection, determination and refund of such taxes, and, for
  that purpose, to prescribe that  any  of  the  commissioner's  functions
  under  such  articles,  any  returns,  forms,  statements,  documents or
  information to be submitted to the commissioner under such articles, any
  books and records required to be kept for purposes of the taxes  imposed
  or authorized by such articles, any schedules of amounts to be collected
  under  such articles, any registration required under such articles, and
  the payment of taxes by stamp, meter impression or otherwise under  such
  articles  shall be on a joint basis with respect to the taxes imposed or
  authorized by such articles.
    13. To authorize a qualified person who is not the vendor with respect
  to a motor vehicle to collect any tax due under this article or pursuant
  to the authority of article twenty-nine of this chapter upon the sale or
  for the use of such motor vehicle, at the time such person performs  the
  function  of  registering such vehicle or accepting an application for a
  certificate of title of such vehicle. A qualified person is a person (i)
  who is registered with the commissioner as provided  in  section  eleven
  hundred  thirty-four  of this article (other than a person who elects to

  file a certificate of registration under paragraph three of  subdivision
  (a)  of  section  eleven hundred thirty-four of this article unless such
  person agrees to subject itself to the jurisdiction of this state  as  a
  condition  for  issuance  of  such  certificate  of registration and for
  authorization under this subdivision) and (ii) who the  commissioner  of
  motor  vehicles has certified to the commissioner is a person authorized
  by the commissioner  of  motor  vehicles  to  perform  the  function  of
  registering   a   motor  vehicle  or  accepting  an  application  for  a
  certificate of title of a motor vehicle, pursuant to  the  authority  of
  the  vehicle  and traffic law. Where such a qualified person has been so
  authorized by the commissioner and performs  such  function  or  accepts
  such  an  application,  (A)  such  person shall be deemed to be a person
  required to collect tax with respect to the sale or use  of  such  motor
  vehicle;  (B)  such  person  shall collect the tax as trustee for and on
  account of the state, in accordance with the provisions  of  subdivision
  (a)  of  section  eleven  hundred  thirty-two  of this article; (C) such
  person shall be personally liable for  the  tax  imposed,  collected  or
  required  to  be  collected  under  this article and pursuant to article
  twenty-nine of this chapter, as well as  any  penalty  and  interest  in
  connection  therewith,  and for any moneys collected purportedly as tax;
  (D) such person shall be subject  to  and  comply  with  all  the  other
  provisions  of  this article and article twenty-nine of this chapter and
  of any regulations adopted pursuant thereto, and to all the requirements
  and obligations thereof, and have all the benefits and entitlements,  of
  a  person required to collect tax under this article and pursuant to the
  authority of such article twenty-nine with respect to such sale  or  use
  and  such tax required to be collected, as if the person were the vendor
  with respect to such motor vehicle, provided, however,  that  no  person
  qualified  under  this  article  shall  receive  the  credit  allowed by
  subdivision (f) of section eleven hundred thirty-seven of this part; (E)
  such person shall keep such additional records, provide such  additional
  information  and  cooperate  with  the  commissioner, as provided by the
  commissioner, to ensure the proper  collection  and  remittance  of  tax
  imposed,  collected  or  required to be collected under this article and
  such article twenty-nine; and (F) notwithstanding any provision  of  law
  to  the  contrary,  such  person  and  any  officer,  director, manager,
  employee or agent of such person shall be deemed to be a person  who  in
  any  manner has acquired knowledge of the contents of a return or report
  filed with the commissioner pursuant to this article  and  such  article
  twenty-nine,  with  respect  to  any  information  such  person  or such
  officer, director, manager, employee or agent  acquired  in  conjunction
  with  performing  such  function  of  registering  a  motor  vehicle  or
  accepting such an application for a certificate of title; and  any  such
  information  so  acquired  shall  be deemed to be the contents of such a
  return or report, for purposes of section eleven  hundred  forty-six  of
  this  article.  The  term "such person" as used in the previous sentence
  shall include any officer, director, manager or employee of such person,
  who as such officer, director, manager or employee is under  a  duty  to
  act for such person in complying with any requirement of this article or
  such  article  twenty-nine or who is otherwise subject to complying with
  any such requirement of this article  or  article  twenty-nine  of  this
  chapter  and  any  member of a partnership or limited liability company.
  For purposes of this subdivision, the term "motor  vehicle"  shall  have
  the  same  meaning that such term has for purposes of subdivision (f) of
  section  eleven  hundred  thirty-two  of  this  article.  In  order   to
  effectuate  the  authority  granted by this paragraph and to enforce and
  administer the taxes  imposed  by  this  article  and  pursuant  to  the
  authority of article twenty-nine of this chapter:

    (a)  The  commissioner may modify the requirements to file returns and
  to pay or pay over tax or other moneys in section ten of  this  chapter,
  sections  eleven  hundred  thirty-six and eleven hundred thirty-seven of
  this article and in such article twenty-nine, with  respect  to  returns
  required  to  be  filed  under  this  article  or  pursuant  to  article
  twenty-nine of this chapter and taxes and moneys required to be paid  or
  paid  over  under  such sections ten and eleven hundred thirty-seven and
  article twenty-nine, by qualified  persons  authorized  to  collect  tax
  under  this  subdivision, where the commissioner provides that any class
  of such persons shall pay or pay  over  such  taxes  or  moneys  to  the
  commissioner of motor vehicles as agent of the commissioner.
    (b)  Any  authorization  granted  pursuant to the opening paragraph of
  this subdivision shall be evidenced  by  a  certificate  issued  by  the
  commissioner and may be for a specified term; and, if such authorization
  is  for  a  specified term, it shall be subject to renewal in accordance
  with rules promulgated by the commissioner. A qualified person  to  whom
  the  commissioner  has  issued  such  a  certificate  shall  display the
  certificate prominently at the place where  such  person  performs  such
  function or accepts such an application.
    (c)  In  addition  to  the  commissioner's authority in section eleven
  hundred thirty-four of this article,  the  commissioner  may  revoke  or
  suspend  the  authority  granted  to a qualified person pursuant to this
  subdivision if such person fails to comply with any requirement of  this
  article or article twenty-nine of this chapter or if the commissioner of
  motor  vehicles  advises  the commissioner that such person is no longer
  certified to perform the functions described in the opening paragraph of
  this subdivision.
    (d) In addition to any other general or specific authority under  this
  article  to  make,  adopt  and  amend rules, regulations, procedures and
  forms, the commissioner may make, adopt and  amend  rules,  regulations,
  procedures  and  forms  necessary  for the proper administration of this
  subdivision, to ensure the integrity and qualifications  of  any  person
  seeking  authorization  under the opening paragraph of this subdivision,
  and to ensure the proper collection,  payment  over  and  protection  of
  taxes  imposed  and  revenues  to  be  obtained  under  this article and
  pursuant to the  authority  of  article  twenty-nine  of  this  chapter,
  together  with  any  related penalties and interest and moneys collected
  purportedly as tax.
    (e) The commissioner  of  motor  vehicles  shall  cooperate  with  the
  commissioner   and  provide  such  information  and  assistance  as  the
  commissioner requires, to enable  the  commissioner  to  carry  out  the
  commissioner's  responsibilities under this article, article twenty-nine
  of this chapter and the purposes thereof; and the commissioner of  motor
  vehicles  shall  require  a  qualified person authorized pursuant to the
  opening  paragraph  of  this  subdivision  to  file  with   either   the
  commissioner  of  motor  vehicles or the commissioner a bond issued by a
  surety company  authorized  to  transact  business  in  this  state  and
  approved  by the superintendent of financial services as to solvency and
  responsibility, or other security acceptable  to  the  commissioner,  in
  such  amounts  as  the  commissioner  may  fix, to secure the payment or
  payment over of any tax, penalties or interest due or which  may  become
  due  from such person under this article or pursuant to the authority of
  article twenty-nine of this chapter, as well as any moneys collected  by
  such  person  purportedly  as tax imposed by this article or pursuant to
  article twenty-nine.
    (f) Nothing in this subdivision shall be construed to mean or  provide
  that  a  person required to collect tax shall not be required to collect
  tax when such person sells a motor vehicle to a purchaser who  seeks  or

  may seek to register or submit an application for a certificate of title
  for  such vehicle with another person authorized to collect tax pursuant
  to the opening paragraph of this subdivision. Where a person required to
  collect  tax  is the vendor of a motor vehicle, such person must collect
  any tax due from the purchaser without regard to the other provisions of
  this subdivision.
    14. To issue a notice to a credit card issuer and,  where  applicable,
  the  fuel  distributor,  and  any  government  entity, as such terms are
  defined in subdivision (h) of section eleven hundred thirty-nine of this
  part, that, as of the date specified by the commissioner in such notice,
  the credit card issuer or fuel distributor shall no longer  be  eligible
  to  apply  for refunds or credit with respect to purchases of motor fuel
  or diesel motor fuel by such government entity,  the  government  entity
  shall  no  longer  be eligible to employ any other credit card issuer or
  fuel distributor pursuant to such subdivision (h) and no such claim  for
  credit  or  refund  will  be  allowed  or  paid  in accordance with such
  subdivision (h), where the commissioner  has  determined  that  (a)  the
  motor  fuel or diesel motor fuel purchased through the use of the credit
  card issuer's credit card was not for the government entity's own use or
  consumption or (b) it is necessary for the proper  enforcement  of  this
  article   to  issue  such  notice.  The  commissioner,  in  his  or  her
  discretion, may cancel or suspend the operation of such notice where the
  credit  card  issuer,  fuel  distributor,  where  applicable,  and   the
  government  entity  establish,  to the commissioner's satisfaction, that
  appropriate steps have been  undertaken  to  rectify  the  circumstances
  leading  to  the issuance of such notice. In such case, the commissioner
  will  notify  the  credit  card  issuer  or  fuel   distributor,   where
  applicable,  that  the  designated  person will be eligible to apply for
  refunds or credits pursuant to subdivision (h) of section eleven hundred
  thirty-nine of this part in accordance with such terms as set  forth  by
  the  commissioner. Nothing in this subdivision shall be deemed to affect
  the eligibility of the government entity to claim a refund or credit for
  tax paid on motor fuel or diesel motor  fuel  it  purchased  where  such
  purchase   qualifies   for  exemption  pursuant  to  paragraph  five  of
  subdivision (b) of section  eleven  hundred  sixteen  of  this  article.
  Notwithstanding  any  other provision of law, if the credit card issuer,
  fuel distributor, where applicable, or government  entity  disputes  any
  aspect of the notice issued pursuant to this subdivision:
    (i)  the  credit  card issuer, fuel distributor, where applicable, and
  the government entity who receive such a notice shall have the right  to
  have  the issuance of such notice reviewed by the commissioner or his or
  her designee by contacting the department at a telephone  number  or  an
  address to be disclosed in the notice within ten days of the recipient's
  receipt  of  the  notice.  The recipient may present written evidence or
  arguments in support of its claim, or the  recipient  may  appear  at  a
  scheduled  conference  with the commissioner or such designee to present
  oral arguments  and  written  and  oral  evidence  in  support  of  such
  position.  The  commissioner or such designee is authorized to delay the
  effective date of the notice to enable the recipient to present  further
  evidence or arguments in connection with the issuance of the notice. The
  commissioner   or   such   designee  shall  cancel  the  notice  if  the
  commissioner or such designee is not satisfied by a preponderance of the
  evidence that the facts  underlying  such  notice  do  not  support  the
  issuance of such notice.
    (ii)  except as provided for in paragraph (i) of this subdivision, the
  credit card issuer, fuel distributor or the government entity shall  not
  have any right to a hearing under any other provision of this chapter to
  challenge  the issuance of such notice. Rather, such determination shall

  be reviewable only by a proceeding under article  seventy-eight  of  the
  civil   practice  law  and  rules,  provided,  however,  that  (A)  such
  proceeding is commenced within four months of the date the  commissioner
  issued such notice or, if such notice is disputed, within four months of
  the  date the commissioner or such designee upholds such notice in whole
  or in  part,  (B)  the  credit  card  issuer,  fuel  distributor,  where
  applicable,  and  any affected government entity are named as parties to
  the action, and (C) the only issue  which  may  be  considered  by  such
  review  is  whether  such  notice  was  within  the  discretion  of  the
  commissioner under this article. Such proceeding shall be instituted  in
  Albany  county.  Upon  the filing of such petition, the court shall have
  jurisdiction to set aside such notice or to dismiss  the  petition.  The
  jurisdiction of the supreme court shall be exclusive and its order shall
  be  final,  subject  to  review by the appellate division of the supreme
  court and the court of appeals in the same manner and form and with  the
  same  effect  as provided by law for appeal from a judgment in a special
  proceeding. All such proceedings  for  review  shall  be  heard  on  the
  petition,  transcript  and other papers, and on appeal shall be heard on
  the record, without requirement of printing.