2020 New York Laws
TAX - Tax
Article 28 - Sales and Compensating Use Taxes
Part 4 - Administrative Provisions
1137 - Payment of Tax.

Universal Citation: NY Tax L § 1137 (2020)
§  1137.  Payment  of  tax. (a) Every person required to file a return
under the preceding section whose total taxable  receipts  (as  "taxable
receipts"  are  described in subdivision (a) of such section), amusement
charges  and  rents  are  subject  to  the  tax  imposed   pursuant   to
subdivisions  (a),  (c), (d), (e) and (f) of section eleven hundred five
of this article shall, at the time of filing such  return,  pay  to  the
commissioner the total of the following:

(i) Four percent of the total of all receipts, amusement charges and rents subject to tax under this article, and if any of such receipts, amusement charges and rents are subject to local tax imposed pursuant to article twenty-nine of this chapter, an additional percentage of the total thereof equal to the percentage rate of such local tax;

(ii) All taxes imposed by section eleven hundred ten or pursuant to article twenty-nine of this chapter upon such person's use of property or services;

(iii) All moneys collected by such person, purportedly as tax imposed by this article or pursuant to article twenty-nine of this chapter, with respect to any receipt, gallon of motor fuel or diesel motor fuel sold, amusement charge or rent not subject to tax, and all moneys collected with respect to any receipt, gallon of such fuel, amusement charge or rent subject to tax, purportedly in accordance with a schedule prescribed by the commissioner but actually in excess of the amount stated in such schedule as the amount to be collected; and

(iv) The correct number of cents per gallon of motor fuel and diesel motor fuel sold subject to tax under this article, and, if any of such gallons sold are subject to local tax imposed pursuant to article twenty-nine of this chapter, an additional number of cents per gallon sold subject to such local taxes equal to the rates of such taxes.

(b) Every person required to file a return under the preceding section and not subject to the provisions of subdivision (a) of this section shall, at the time of filing such return, pay to the commissioner the taxes imposed by this article and pursuant to article twenty-nine of this chapter as well as all other moneys collected by such person acting or purporting to act under the provisions of this article or of any local law, ordinance or resolution adopted pursuant to such article twenty-nine; provided, however, that if the commissioner shall have fixed an effective rate of tax applicable to any or all of his or her receipts, amusement charges and rents as provided in subdivision (d) of this section, any such person may elect, with reference to such receipts, amusement charges and rents and subject to approval by the commissioner and to such regulations as the commissioner may promulgate, to pay to the commissioner at the time of filing his or her return the total of the following:

(i) The percentage of such receipts, amusement charges and rents fixed by the commissioner as the effective rate of tax applicable thereto;

(ii) All taxes imposed by section eleven hundred ten or pursuant to article twenty-nine of this chapter upon such person's use of property or services;

(iii) All moneys collected by such person, purportedly as tax imposed by this article or pursuant to article twenty-nine of this chapter, with respect to any receipt, gallon of motor fuel or diesel motor fuel sold, amusement charge or rent not subject to tax, and all moneys collected with respect to any receipt, gallon of such fuel, amusement charge or rent subject to tax, purportedly in accordance with a schedule prescribed by the commissioner but actually in excess of the amount stated in such schedule as the amount to be collected;

(iv) The amount of the taxes imposed by this article and pursuant to article twenty-nine of this chapter with respect to all receipts, amusement charges and rents as to which no effective rate of tax fixed by the commissioner is applicable; and

(v) The correct number of cents per gallon of motor fuel and diesel motor fuel sold subject to tax under this article, and, if any of such gallons sold are subject to local tax imposed pursuant to article twenty-nine of this chapter, an additional number of cents per gallon sold subject to such local taxes equal to the rates of such taxes.

(c) (1) The provisions of subdivisions (a) and (b) of this section shall not be applicable to: (i) a person filing a short-form, part-quarterly return as defined in paragraph (ii) of subdivision (a) of section eleven hundred thirty-six hereof who, at the time of such filing shall pay to the tax commission one-third of the total state and local sales and compensating use taxes payable by the person to the tax commission in the comparable quarter of the immediately preceding year under this article and as taxes imposed pursuant to the authority of article twenty-nine with respect to all receipts, amusement charges and rents, or (ii) a person filing a March estimated return as described in paragraph (ii) of subdivision (c) of section eleven hundred thirty-seven-A hereof who, at the time of such filing shall pay to the tax commission one-third of the sales and compensating use taxes payable by such person to the tax commission in the comparable quarter of the immediately preceding year under this article. Notwithstanding the preceding sentence, for the purposes of subparagraph (ii) of this paragraph, the sales and compensating use taxes payable in 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.

(2) The provisions of subdivisions (a) and (b) of this section, however, shall apply to a person filing a March estimated return as described in paragraph (i) of subdivision (c) of section eleven hundred thirty-seven-A hereof who, at the time of such filing shall pay to the tax commission the sales and compensating use taxes, that are estimated to be payable by such person for such month of March. Notwithstanding the preceding sentence, for the purposes of this paragraph, the sales and compensating use taxes that are estimated to be payable by such person for such month of March 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.

(d) The tax commission is hereby authorized to fix the effective rate of tax applicable to any or all of the taxable receipts, amusement charges and rents of any person required to collect tax, or of any group or classification of such persons. Any effective rate so fixed shall be fixed at such a percentage rate as to require, so far as practicable, payment of an amount equal to the total taxes imposed by this article and pursuant to article twenty-nine.

(e) (1) The amount so payable to the tax commission for the period for which a return is required to be filed shall be due and payable to the tax commission on the date limited for the filing of the return for such period, without regard to whether a return is filed or whether the return which is filed correctly shows the amount of receipts, amusement charges or rents or the value of property or services sold or purchased or the taxes due thereon.

(2) Where the tax commission, in its discretion, deems it necessary to protect the revenues to be obtained under this article, it may require any person required to collect any tax imposed by this article to file with it a bond, issued by a surety company authorized to transact business in this state and approved by the superintendent of financial services of this state as to solvency and responsibility or other security acceptable to the tax commission, in such amount as the tax commission 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. In the event that the tax commission determines that such person is to file such bond or other security, it shall give notice to him to that effect specifying the amount of the bond or other security required. Such person shall file such bond or other security within thirty days after the giving of such notice unless within five days after the giving of such notice he shall request, in writing, a hearing before the tax commission at which the necessity, propriety and amount of the bond or other security shall be determined by the tax commission. Such determination shall be final and shall be complied with within thirty days after the giving of notice thereof. If securities are deposited as security under this paragraph, such securities shall be kept in the custody of the commissioner of taxation and finance and may be sold by the tax commission if it becomes necessary so to do in order to recover any sums due from such person pursuant to this article, but no such sale shall be had until after such person shall have had opportunity to litigate the validity of any tax if he elects so to do. Upon any such sale, the surplus, if any, above the sums due under this article shall be returned to such person. * (3) As an additional or alternate requirement, whenever any person fails to collect, truthfully account for, pay over the tax, or file returns of the tax as required in this article, the commissioner, in his or her discretion where he or she deems necessary to protect the revenues to be obtained under this article, may give notice requiring such person to collect the taxes which become collectible after the giving of such notice, to deposit such taxes at least one time per week in a separate account in any banking institution approved by the commissioner and located in this state the deposits in which are insured by any agency of the federal government. Such notice may require either (i) that such account be held in trust for and payable to the commissioner, and that the amount of such tax shall be kept in such account until payment over to the commissioner; or (ii) that such person authorize the commissioner to debit such account. Any notice given by the commissioner under this paragraph shall remain in effect until a notice of cancellation is given by the commissioner. Any such person who fails to comply with a notice issued under this paragraph shall be required to file a bond pursuant to paragraph two of this subdivision. * NB Effective until December 31, 2024 * (3) As an additional or alternate requirement, whenever any person fails to collect, truthfully account for, pay over the tax, or file returns of the tax as required in this article, the tax commission, in its discretion where it deems necessary to protect the revenues to be obtained under this article, may give notice requiring such person to collect the taxes which become collectible after the giving of such notice, to deposit such taxes in any banking institution approved by the tax commission and located in this state the deposits in which are insured by any agency of the federal government, in a separate account, in trust for and payable to the tax commission, and to keep the amount of such tax in such account until payment over to the tax commission. Such notice shall remain in effect until a notice of cancellation is given by the tax commission. * NB Effective December 31, 2024

(f) (1) Except as otherwise provided in this subdivision, a person required to collect tax who files a return required to be filed under section eleven hundred thirty-six of this part for a quarterly or longer period shall be allowed a credit against the taxes and fees required to be reported on, and paid with, such return, in an amount as determined in paragraph two of this subdivision, but only where such person files the return on or before the filing due date and pays or pays over with such return the total amount shown on such return (determined with regard to this subdivision); provided, however, that no credit pursuant to this subdivision shall be allowed for any person who files or is required to file a return pursuant to paragraph two of subdivision (a) of section eleven hundred thirty-six of this part or any person who pays or is required to pay tax pursuant to section ten of this chapter.

(2) The amount of the credit authorized by paragraph one of this subdivision shall be five percent of the amount of taxes and fees (but not including any penalty or interest thereon) required to be reported on, and paid or paid over with, the return but only if the return is filed on or before the filing due date, but not more than two hundred dollars, for each quarterly or longer period, except that, with respect to returns required to be filed for quarterly or longer periods ending on or before the last day of February, two thousand seven, the amount of the credit shall be not more than one hundred seventy-five dollars for each such quarterly or longer period.

(3) Notwithstanding any other provision of law: The credit afforded by this subdivision shall be taken only on the return for the quarterly or longer period to which the credit applies. No refund, carryforward or carryback of any credit, or any interest thereon, and no application for credit or refund of any tax, penalty or interest shall be allowed or paid under this subdivision. No claim for credit may be filed or allowed under this subdivision other than with the original return for such period and any later claim, whether sought to be taken on an amended return or otherwise, shall be void and any allowance erroneous. The commissioner may, on the commissioner's own motion, correct any erroneous disallowance of the credit provided by this subdivision.

(4) Notwithstanding any other provision of law: The credit authorized by this subdivision shall be computed with reference to state and local taxes and fees described in paragraph two of this subdivision, but shall be charged and allowed only against revenues from taxes imposed by sections eleven hundred five and eleven hundred ten of this article. The commissioner shall account for the aggregate amounts of such credits monthly in accordance with the schedule for certifications to the state comptroller in section twelve hundred sixty-one of this chapter. Such aggregate monthly amounts of credits shall be netted against revenues from the taxes under such sections eleven hundred five and eleven hundred ten, to ensure that revenues from the taxes and fees imposed by other sections of law or by counties, cities and school districts pursuant to the authority of article twenty-nine of this chapter are not reduced and are deposited as provided with respect to the taxes and fees imposed by such other sections or as provided in such article twenty-nine of this chapter with respect to taxes of counties, cities and school districts. Any overpayment or underpayment of revenues of a county, city or school district or of revenues from another tax or fee, on account of the allowance of credits under this subdivision, shall be adjusted in the manner described in subdivision (c) of such section twelve hundred sixty-one of this chapter. The credit authorized by this subdivision shall not be incorporated into article twenty-nine of this chapter or into local laws, ordinances or resolutions enacted pursuant to the authority of such article twenty-nine of this chapter.

(5) (i) Where a person takes a credit pursuant to this subdivision in an amount greater than allowed or under circumstances where the credit is not authorized, or (ii) where a person takes a credit pursuant to this subdivision at the time of filing a return for a quarterly or longer period and such person later becomes subject to a penalty imposed under subparagraph (vi) of paragraph one of subdivision (a) or under paragraph two of subdivision (a) of section eleven hundred forty-five of this part or is later found guilty of a crime or offense under section eighteen hundred three, eighteen hundred four, eighteen hundred five, eighteen hundred six, or eighteen hundred seventeen of this chapter, relating to the period for which the return was filed, the amount of such credit taken in such greater amount, under such circumstances or for such period shall be disallowed and the person shall be required to pay, as tax, an amount equal to the credit so taken, at such time and in such manner as prescribed by the commissioner; provided, however, that such amount shall be paid and disposed of in the same manner as other revenues from this article, and may be determined, assessed, collected and enforced in the same manner as the tax imposed by this article.

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