NY Tax L § 1142 (2021)
2021 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.