NY Tax L § 283-B (2021)
2021 New York Laws TAX - Tax Article 12-A - Tax on Gasoline and Similar Motor Fuel 283-B - Licensing of Terminal Operators.

§  283-b.  Licensing  of  terminal  operators.  1.  The  department of taxation and finance, upon the application of a person  who  operates  a facility  where  motor fuel is deposited, shall license such person as a terminal operator under this article except  as  otherwise  provided  in this  section.  The  application  shall  be  in  a form and contain such information as the department of taxation and finance  shall  prescribe. No  person,  unless so licensed, shall operate a terminal, except that a person may operate a terminal without a license if all of the motor fuel stored in such  facility  is  solely  for  such  person's  own  use  and consumption.   2.  Where  a  person  files  an  application  for a license under this section and in considering such application the commissioner  ascertains that  (a)  any  tax imposed under this chapter or any related statute as defined in section eighteen hundred of this  chapter  has  been  finally determined  to  be due from such applicant or from any officer, director or partner of such applicant, shareholder directly or indirectly  owning more than ten percent of the number of shares of stock of such applicant (where  such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or  any  shareholder  or employee  of  such  applicant  under a duty to act for such applicant in complying with any requirement of this article, and has not been paid in full, (b) a liability for the penalty provided for under subdivision two of section two hundred eighty-nine-b of this article  has  been  finally determined  to be due from an officer, director, shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling  the holder  thereof  to  vote  for  the  election  of directors or trustees, employee or partner of such applicant or a shareholder of such applicant under a duty to act for such applicant in complying with any requirement of this article, and has not been paid in full, (c) such  applicant  has been  convicted  of  a  crime  provided  for in this chapter or has been convicted under the tax laws or penal laws of  any  other  state,  or  a political  subdivision  of  this  state  or  such other state, or of the United States of a criminal offense which, if committed  and  prosecuted in  this  state,  would  constitute  a similar crime under this chapter, within the preceding five years, (d) an officer, director or partner  of such  applicant,  a  shareholder directly or indirectly owning more than ten percent of the number of shares of stock of  such  applicant  (where such  applicant  is  a corporation) entitling the holder thereof to vote for the election of directors or trustees, or an employee or shareholder of such applicant who, as such employee or shareholder, is under a  duty to  act  for  such  applicant  in complying with any requirement of this article, has been convicted of a crime provided for in this  chapter  or has  been convicted under the tax laws or penal laws of any other state, or a political subdivision of this state or such other state, or of  the United  States  of a criminal offense which, if committed and prosecuted in this state, would constitute a  similar  crime  under  this  chapter, within  the  preceding  five  years,  (e) such applicant, or an officer, director  or  partner  of  such  applicant,  shareholder   directly   or indirectly owning more than ten percent of the number of shares of stock of  such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of  directors  or  trustees,  or employee  or  shareholder of such applicant under a duty to act for such applicant in complying with any requirement of this article, who was  an officer,  director  or  partner  of  another  person, or who directly or indirectly owned more than ten percent of the number of shares of  stock of  another  person (where such other person is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or  who was an employee or shareholder of another person under a duty to act for such other person in complying with any requirement of this  article at the time any tax imposed under this chapter or any related statute as defined  in  section  eighteen  hundred  of  this  chapter  was  finally determined to be due with respect from such other person and where  such tax  has  not  been  paid  in full, or at the time such other person was convicted of a crime provided for in this chapter or has been  convicted under  the  tax  laws  or  penal laws of any other state, or a political subdivision of this state or such other state, or of the  United  States of  a criminal offense which, if committed and prosecuted in this state, would  constitute  a  similar  crime  under  this  chapter,  within  the preceding  five  years,  or  at  the time the registration of such other person was cancelled or suspended pursuant to subdivision four  of  this section  within  the  preceding  five  years,  or at the time such other person committed any  of  the  acts  or  omissions  which  are,  or  was convicted  as,  specified in subdivision four of this section within the preceding five years, provided, however,  where  an  applicant  or  such officer,  director,  partner,  shareholder or employee of such applicant was only an employee of another person, the  applicable  examination  of tax  payment  history of such other person shall be limited to the taxes imposed by this article or by or pursuant  to  article  twenty-eight  or twenty-nine  of  this  chapter  with  respect  to  motor  fuel  and  the applicable examination of prior criminal convictions shall be limited to those which relate to motor fuel, (f) the license of such  applicant  or of  an  officer,  director  or  partner  of  such applicant, shareholder directly or indirectly owning more than ten percent  of  the  number  of shares   of   stock  of  such  applicant  (where  such  applicant  is  a corporation) entitling the holder thereof to vote for  the  election  of directors  or  trustees,  or  employee  or shareholder of such applicant under a duty to act for such applicant in complying with any requirement of this article has been cancelled or suspended pursuant to  subdivision four  of  this  section  within  the  preceding  five  years, or (g) the applicant,  an  officer,  director  or  partner  of  the  applicant,   a shareholder  directly  or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant  is  a corporation)  entitling  the  holder thereof to vote for the election of directors or trustees, or an employee or shareholder of  such  applicant under a duty to act for such applicant in complying with any requirement of  this  article, has committed any of the acts or omissions which are, or was convicted as, specified  in  subdivision  four  of  this  section within  the  preceding  five years, the commissioner may refuse to grant such applicant a license.   3. The tax commission may require a terminal operator to file with the department of taxation and finance a bond issued  by  a  surety  company approved  by the superintendent of financial services as to solvency and responsibility and authorized to transact  business  in  this  state  or other  security  acceptable to the tax commission, in such amount as the tax commission may fix, in an amount determined in accordance with rules and regulations prescribed by it, to  secure  the  performance  by  such terminal  operator  of  the  duties  and  responsibilities  required (i) pursuant to this article and (ii) pursuant to articles twenty-eight  and twenty-nine  of  this  chapter  with  respect  to  motor  fuel.  The tax commission may require that such a  bond  or  other  security  be  filed before  a  terminal  operator is licensed, and the amount thereof may be increased at any time when in its judgment the  same  is  necessary.  If securities  are  deposited  as  security  under  this  subdivision, such securities shall be kept in the joint custody of the comptroller and 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 against such terminal operator but no such sale shall be had  until  after  such terminal operator shall have had opportunity to litigate the validity of the  liability if it elects so to do. Upon any such sale the surplus, if any, above the sums due shall be returned to such terminal operator. The department, when authorized by  the  terminal  operator,  shall  furnish information  regarding  the  terminal  operator's  license and any other information which the terminal operator authorizes it to disclose.   4. The license of any terminal operator may be cancelled or  suspended by   the  commissioner  where  a  licensee,  or  an  officer,  director, shareholder, employee or partner of the registrant who as such  officer, director,  shareholder,  employee  or partner is under a duty to act for such licensee or any shareholder directly or indirectly owning more than ten percent of the number of shares of stock of the licensee (where such licensee is a corporation) entitling the holder thereof to vote for  the election of directors or trustees of such licensee, fails to file a bond or other security when required or when the amount thereof is increased, or fails to comply with any of the provisions of this article or article twenty-eight  of  this chapter with respect to motor fuel or any rule or regulation with respect to motor fuel adopted pursuant to such  articles by  the  department  of  taxation and finance or by the commissioner or, knowingly aids  and  abets  another  person  in  violating  any  of  the provisions  of  such  articles  or  of  any such rule or regulation with respect to motor fuel, or transfers its license as a terminal  operator. A  license  may  also  be  cancelled  or  suspended  if the commissioner determines  that  a  licensee  or  an  officer,  director,  shareholder, employee  or  partner  of  the  licensee  who as such officer, director, shareholder, employee or partner  is  under  a  duty  to  act  for  such licensee  or any shareholder directly or indirectly owning more than ten percent of the number of shares of stock of  the  licensee  (where  such licensee  is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such licensee:  (i) commits fraud or deceit in his operations as a  terminal  operator or has committed fraud or deceit in procuring his license;  (ii)  has  been convicted in a court of competent jurisdiction, either within or without  the  state,  of  a  felony,  within  the  meaning  of subdivision  eight  of section two hundred eighty-three of this article, bearing on such terminal operator's duties and  obligations  under  this chapter;  (iii)  has  knowingly aided and abetted a person who is not registered as a distributor in the importation, production,  refining,  manufacture or compounding of motor fuel; or  (iv)  has  knowingly  aided and abetted the distribution of motor fuel which he has knowledge of as being  imported,  caused  to  be  imported, produced,  refined,  manufactured  or compounded by a distributor who is not registered by the department of taxation and finance.   A license may also be  cancelled  or  suspended  if  the  commissioner determines  that  a  licensee  or  an  officer,  director,  shareholder, employee or partner of the  licensee  who  as  such  officer,  director, shareholder,  employee  or  partner  is  under  a  duty  to act for such licensee or any shareholder directly or indirectly owning more than  ten percent  of  the  number  of shares of stock of the licensee (where such licensee is a corporation) entitling the holder thereof to vote for  the election  of  directors  or  trustees  of such licensee, was an officer, director, shareholder, employee or partner of another person who as such officer, director, shareholder, employee or partner was under a duty  to act  for  such  other person or was a shareholder directly or indirectly owning more than ten percent of the number of shares of  stock  of  such  other  person  (where  such other person is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such other person at the time such other person committed any of the acts  or omissions  which are, or was convicted as, specified in this subdivision within the preceding five years.   5. A license  shall  not  be  cancelled  or  suspended  nor  shall  an application  for  a  license be refused unless the licensee or applicant for a license has had an opportunity for a hearing,  provided,  however, that an application for a license may be denied without a prior hearing. Provided,  further,  a  license  may be cancelled or suspended without a prior hearing, for failure to file a return or report within ten days of the date prescribed for filing under this article or nonpayment  of  any sums due pursuant to this article or article twenty-eight or twenty-nine of  this  chapter  with respect to motor fuel if the licensee shall have failed to file such return or report or pay taxes within ten days  after the  date the demand therefor is sent by registered or certified mail to the address of the terminal operator given  in  his  application  for  a license,  or  an  address substituted therefor as in this subdivision. A license may be cancelled or suspended prior to a hearing for the failure to continue to maintain in full  force  and  effect  at  all  times  the required bond or other security filed with the tax commission. Provided, however,  if  a  surety  bond  is cancelled prior to expiration, the tax commission, after considering all the relevant circumstances,  may  make such  other  arrangements  and  require the filing of such other bond or other security as it deems appropriate. Provided, further, a license may be cancelled or suspended prior to a hearing for the  transfer  of  such license. A terminal operator shall immediately inform the department, in writing, of any change in its address and, if the terminal operator is a corporation  or  partnership,  the  terminal  operator shall immediately inform the department, in  writing,  of  any  change  in  its  officers, directors  or  partners  or  their  residence  addresses as shown in its application for a license.   6. The provisions of subdivisions six, eight, nine and ten of  section two  hundred  eighty-three of this article shall apply to the provisions of this section in the same manner and with the same force and effect as if the language of these subdivisions had been incorporated in full into this section and had  expressly  referred  to  the  terminal  operator's license under this section, except to the extent that any such provision is  either  inconsistent  with  a  provision  of  this section or is not relevant to this section.