NY Tax L § 1133 (2021)
2021 New York Laws TAX - Tax Article 28 - Sales and Compensating Use Taxes Part 4 - Administrative Provisions 1133 - Liability for the Tax.

§ 1133. Liability for the tax. (a) (1) Except as otherwise provided in paragraph  two  of  this  subdivision  and  in  section  eleven  hundred thirty-seven of this part, every person  required  to  collect  any  tax imposed  by this article shall be personally liable for the tax imposed, collected or required to be  collected  under  this  article.  Any  such person  shall  have the same right in respect to collecting the tax from his customer or in respect to nonpayment of the tax by the  customer  as if the tax were a part of the purchase price of the property or service, amusement  charge  or  rent, as the case may be, and payable at the same time; provided, however, that the tax commission shall be  joined  as  a party in any action or proceeding brought to collect the tax.  (2)  Notwithstanding  any  other  provision  of  this article: (i) The commissioner shall grant the relief described in subparagraph  (iii)  of this  paragraph to a limited partner of a limited partnership (but not a partner of a limited liability partnership) or a  member  of  a  limited liability  company if such limited partner or member demonstrates to the satisfaction of the commissioner that such limited partner's or member's ownership interest and the percentage of the distributive share  of  the profits  and  losses  of  such  limited partnership or limited liability company are each less than fifty percent, and such  limited  partner  or member  was  not  under  a  duty  to act for such limited partnership or limited liability company in complying  with  any  requirement  of  this article. Provided, however, the commissioner may deny an application for relief  to any such limited partner or member who the commissioner finds has acted on behalf of such limited  partnership  or  limited  liability company  in  complying  with any requirement of this article or has been convicted of a crime provided in this chapter  or  who  has  a  past-due liability,  as such term is defined in section one hundred seventy-one-v of this chapter.  (ii) Such limited partner or member must  submit  an  application  for relief,  on  a  form prescribed by the commissioner, and the information provided in such application must be true and complete in  all  material respects.  Providing  materially false or fraudulent information on such application shall disqualify such limited  partner  or  member  for  the relief described in subparagraph (iii) of this paragraph, shall void any agreement  with  the commissioner with respect to such relief, and shall result in such limited partner or member bearing  strict  liability  for the  total  amount of tax, interest and penalty owed by their respective limited partnership  or  limited  liability  company  pursuant  to  this subdivision.  (iii)  A  limited  partner  of  a  limited  partnership or member of a limited liability company, who meets the requirements set forth in  this paragraph   and   whose  application  for  relief  is  approved  by  the commissioner, shall be liable for the percentage of the  original  sales and use tax liability of their respective limited partnership or limited liability  company  that  reflects  such  limited  partner's or member's ownership interest of distributive share of the profits  and  losses  of such  limited  partnership  or  limited  liability company, whichever is higher. Such original  liability  shall  include  any  interest  accrued thereon  up to and including the date of payment by such limited partner or member at the underpayment rate set by the commissioner  pursuant  to section  eleven  hundred forty-two of this part, and shall be reduced by the sum of any payments made by (A) the limited partnership  or  limited liability  company;  (B) any person required to collect tax not eligible for relief; and (C) any person required to collect tax who was  eligible for  relief  but had not been approved for relief by the commissioner at the time such payment was made. Provided, however, such limited  partner or  member  shall  not  be  liable  for any penalty owed by such limited  partnership or limited liability company or any other partner or  member of  such  limited  partnership or limited liability company. Any payment made by a limited partner or member pursuant to the provisions  of  this paragraph  shall  not be credited against the liability of other limited partners or members of their respective limited partnership  or  limited liability  company  who  are  eligible  for  the  same relief; provided, however that the sum of the amounts owed by all of the persons  required to  collect  tax  of  a limited partnership or limited liability company shall not exceed the total liability  of  such  limited  partnership  or limited liability company.  (b) Where any customer has failed to pay a tax imposed by this article to  the  person  required  to  collect the same, then in addition to all other rights, obligations and  remedies  provided,  such  tax  shall  be payable  by  the customer directly to the tax commission and it shall be the duty of the customer to file a return with the tax commission and to pay the tax to it within twenty days of the date the tax was required to be paid.  (c) The tax commission may, whenever it deems  it  necessary  for  the proper enforcement of this article, provide by regulation that customers shall file returns and pay directly to the tax commission any tax herein imposed,  at  such times as returns are required to be filed and payment made by persons required to collect the tax.  (d) (1) no person required to collect any tax imposed by this  article shall  advertise  or  hold  out to the public in any manner, directly or indirectly, that the tax imposed by this article is not considered as an element in the price, amusement charge or  rent  payable  by  customers. However, such person required to collect tax may advertise, hold out, or state  to a retail purchaser or to the public, that such person will pay the tax imposed by section eleven hundred five of this article on behalf of a retail purchaser, subject to the following conditions:  (i) In so advertising, holding out, or stating to a  retail  purchaser or  to  the  public, such person required to collect tax shall expressly state on every bill, memorandum,  receipt  or  other  statement  of  the price, amusement charge or rent paid or payable given to such purchaser, that such person will pay the tax imposed by section eleven hundred five of  this  article on behalf of such purchaser, and such person shall not indicate or imply that the transaction is exempt or  excluded  from  any tax imposed by this article; and  (ii)  Every bill, memorandum, receipt or other statement of the price, amusement charge or rent paid or payable given to such  purchaser  shall separately  state  the amount of tax due pursuant to such section eleven hundred five and that the tax was not  collected  from  such  purchaser. Such  person  required to collect tax shall hold such tax as trustee for and on account of the state; and  (iii) A retail purchaser, who in good  faith  accepts  from  a  person required to collect any tax imposed by this article, a bill, memorandum, receipt  or  other statement of the price, amusement charge or rent that indicates the amount of tax due pursuant to such section eleven  hundred five  and  that  such person required to collect tax will be paying such tax on behalf of such purchaser, shall not be liable for the tax imposed by such section eleven  hundred  five,  or  any  interest  or  penalties thereon; provided, however that nothing in this subdivision shall exempt such  purchaser  from  any additional tax due pursuant to section eleven hundred ten of this article.  (e) Applicability  of  Mobile  Telecommunications  Sourcing  Act.  The provisions of sections 119(c), 120, 121 and 122 of title 4 of the United States  Code  as  enacted  and  in  effect  on  July  twenty-eighth, two thousand,  to  the  extent  relevant  and  to  the  extent  required  by  preemption,  shall  apply  to the provisions of this article in the same manner and with the same force and effect as if  the  language  of  such sections of such title 4 of the United States Code had been incorporated in  full into this article and had expressly referred to the taxes under this article, with such modifications as may be necessary  in  order  to adapt  the  language  of  such  provisions  to the taxes imposed by this article.  (f) A marketplace provider is relieved of liability under this section for failure to collect the correct amount of tax to the extent that  the marketplace  provider  can  show  that the error was due to incorrect or insufficient information  given  to  the  marketplace  provider  by  the marketplace  seller. Provided, however, this subdivision shall not apply if the marketplace seller and marketplace provider are affiliated within the meaning of paragraph  one  of  subdivision  (e)  of  section  eleven hundred one of this article.