2022 New York Laws
TAX - Tax
Article 28 - Sales and Compensating Use Taxes
Part 4 - 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.
(15) To publish a list on the department's website of marketplace providers whose certificates of authority have been revoked and, if necessary to protect sales tax revenue, provide by regulation or otherwise that a marketplace seller who is a vendor will be relieved of the duty to collect tax for sales of tangible personal property facilitated by a marketplace provider only if, in addition to the conditions prescribed by paragraph two of subdivision (l) of section eleven hundred thirty-two of this part being met, such marketplace provider is not on such list at the commencement of the quarterly period covered thereby.
