NY Tax L § 1132 (2021)
2021 New York Laws TAX - Tax Article 28 - Sales and Compensating Use Taxes Part 4 - Administrative Provisions 1132 - Collection of Tax From Customer; Proof Required for Registration of Motor Vehicles.

§   1132.   Collection  of  tax  from  customer;  proof  required  for registration of motor vehicles. (a) (1) Except as otherwise permitted in subdivision (d) of section eleven hundred  thirty-three  of  this  part, every  person required to collect the tax shall collect the tax from the customer when collecting the price, amusement charge or rent to which it applies. If the customer is given any sales slip,  invoice,  receipt  or other  statement  or  memorandum  of the price, amusement charge or rent paid or payable, the tax shall be stated, charged and  shown  separately on  the  first  of such documents given to him. The tax shall be paid to the person required to collect it as trustee for and on account  of  the state.  (2) Notwithstanding any provision of this chapter to the contrary: (i) If  a person required to collect tax demonstrates to the satisfaction of the commissioner by June first, of any year that, in any  two  quarterly periods,  as  described  in  subdivision  (b)  of section eleven hundred thirty-six of  this  part,  within  the  most  recent  four  consecutive quarterly  periods,  such person was a materialman within the meaning of section two of the lien  law,  primarily  engaged  in  selling  building materials   to   contractors,   subcontractors   or  repairmen  for  the improvement of real property, and authorized  by  such  law  to  file  a mechanics lien upon such real property and improvement, then such person shall,  with  respect  to  such  sales made through the quarterly period ending the succeeding May thirty-first, collect tax due on  such  sales, and  on  sales  to  such  contractors,  subcontractors  or  repairmen of services described in paragraph two  or  three  of  subdivision  (c)  of section  eleven hundred five of this article to such building materials, for  such  purpose  and  made  during  such  June  first   through   May thirty-first  period,  at  the  time  and to the extent that such person receives the receipts from, or consideration for, such sales  from  such contractors,  subcontractors  or  repairmen;  provided, however, that if such person receives a portion of such receipts or  consideration,  such person  shall  collect  the  tax  due  on  such portion at the time such portion is received. The taxes imposed by this article on such  receipts and consideration shall be deemed not to be imposed, solely for purposes of determining when such person is required to collect and pay over such taxes  to  the commissioner under section eleven hundred thirty-seven of this part, until such person has received payment of  such  receipts  or consideration   in  money  (or  money's  worth)  from  such  contractor, subcontractor or repairman. A contractor, subcontractor or repairman who purchases building materials or services from such  person  pursuant  to this  subparagraph  shall, at the time such contractor, subcontractor or repairman pays any portion of the purchase price, pay to such person the tax due on the portion of the purchase price so paid.  (ii) In the event that a materialman described in subparagraph (i)  of this  paragraph  finances  any  portion of the receipts or consideration from a sale described in such subparagraph (i), including  any  tax  due thereon,  directly  or  indirectly,  with any other person (other than a contractor, subcontractor or repairman described  in  such  subparagraph (i)),  whether  by  assignment of the receivable or debt due, factoring, direct loan or any other means, then such materialman shall be deemed to have received payment of such receipts or  consideration  in  money  (or money's  worth)  from  such  contractor,  subcontractor or repairman and shall be required to pay over tax on such sale with the next return due, with a credit against such tax  for  any  tax  already  paid  over  with respect  to  such  sale.  Any such amount of tax paid over in accordance with the prior sentence shall be on account of the tax  required  to  be collected  on the sale to which it relates and such materialman may take a credit against any tax  paid  by  such  contractor,  subcontractor  or  repairman  in the future on such sale, to ensure that tax paid over with respect to such sale does not exceed the amount of tax imposed  on  such sale as if the entire purchase price had been paid at the time of sale.  (iii)  A  materialman described in subparagraph (i) of this paragraph, who has not collected the tax due on the full purchase price for a  sale described  in  such subparagraph (i) from a contractor, subcontractor or repairman within one year of the date of such sale, shall be required to pay over to the commissioner the tax due on any  balance  of  such  full purchase  price  with  such  materialman's  return  for the period which includes the date which is one year after the date of such sale.  (iv) The commissioner may assess additional tax due with respect to  a sale  described in subparagraph (i) of this paragraph within three years from the date the tax is required to be paid over  to  the  commissioner pursuant  to  this  paragraph;  provided, however, that in the case of a willfully false or fraudulent return with intent to evade  the  tax,  or where  no  return  has  been  filed as prescribed by law, the tax may be assessed at any time.  (v) The other provisions of this article  and  any  provision  of  law applicable  to  the  taxes  imposed  by  this article shall apply to the materialmen,  contractors,  subcontractors,  repairmen,   receipts   and consideration described in this paragraph, except to the extent that any such provision is inconsistent with this paragraph.  (b) The commissioner shall by regulation prescribe a method or methods or a schedule or schedules of the amounts to be collected from customers in  respect  to  any receipt, gallon of motor fuel or diesel motor fuel, amusement charge or rent upon which a tax is imposed by this article  so as  to  eliminate  fractions  of  one  cent  and  so  that the aggregate collections of taxes by a person required to collect tax shall,  as  far as  practicable,  equal  four  percent  of the total receipts, amusement charges or rents of such person, or equal the correct rate per gallon of motor fuel or diesel motor fuel sold by such person, upon whom a tax  is imposed  by  this  article  or, where a similar tax is imposed under the authority of article twenty-nine of this chapter, equal four percent, or such rate per gallon, plus the rate of tax imposed under  the  authority of article twenty-nine of the total receipts, amusement charges or rents of,  or  gallons of motor fuel or diesel motor fuel sold by, such person upon whom a tax is imposed by this article and under  the  authority  of article twenty-nine, so that the tax rate to be applied shall be the sum of the state and local tax rates. Such schedule or schedules may provide that no tax need be collected from the customer upon receipts, amusement charges  or  rents  below  a stated sum, and may be amended from time to time so as to accomplish the purposes herein set forth. Such schedule or schedules shall provide that no tax shall be collected from the customer upon receipts from retail sales of  tangible  personal  property  which, under  the rate imposed by article twenty-eight, together with the rates imposed under the authority of article twenty-nine,  produce  a  tax  of five mills or less.  (c)  (1)  For the purpose of the proper administration of this article and to prevent evasion of the tax hereby imposed, it shall  be  presumed that  all  receipts  for  property  or services of any type mentioned in subdivisions (a), (b), (c) and (d) of section eleven hundred  five,  all rents  for  occupancy  of  the type mentioned in subdivision (e) of said section, and all amusement charges of any type mentioned in  subdivision (f)  of  said  section,  are  subject  to  tax  until  the  contrary  is established, and the burden  of  proving  that  any  receipt,  amusement charge  or  rent  is  not  taxable  hereunder  shall  be upon the person required  to  collect  tax  or  the  customer.  Except  as  provided  in subdivision  (h)  or (k) of this section, unless (i) a vendor, not later  than ninety days after delivery of the property or the rendition of  the service,  shall  have  taken  from  the  purchaser a resale or exemption certificate in such form as the commissioner may  prescribe,  signed  by the  purchaser  and  setting forth the purchaser's name and address and, except as otherwise provided by  regulation  of  the  commissioner,  the number  of  the purchaser's certificate of authority, together with such other information as the commissioner may require, to  the  effect  that the  property  or  service  was  purchased for resale or for some use by reason of which the sale is exempt from  tax  under  the  provisions  of section  eleven  hundred  fifteen,  and,  where such resale or exemption certificate requires the inclusion of  the  purchaser's  certificate  of authority  number or other identification number required by regulations of the commissioner, that the purchaser's certificate of  authority  has not been suspended or revoked and has not expired as provided in section eleven hundred thirty-four, or (ii) the purchaser, not later than ninety days  after  delivery  of  the property or the rendition of the service, furnishes  to  the  vendor:  any  affidavit,  statement  or   additional evidence,  documentary  or otherwise, which the commissioner may require demonstrating that the purchaser is an exempt organization described  in section  eleven hundred sixteen, the sale shall be deemed a taxable sale at retail. Where a resale or  exemption  certificate  or  an  affidavit, statement or additional evidence referred to in the previous sentence is received  within  the  time limit set forth therein, but is deficient in some material manner, and where such deficiency is  thereafter  removed, the  receipt  of such resale or exemption certificate or such affidavit, statement or additional evidence shall be deemed to have  satisfied  all of  the  requirements  of the preceding sentence. Where such a resale or exemption certificate or such  an  affidavit,  statement  or  additional evidence  has  been  furnished to the vendor, the burden of proving that the receipt, amusement charge or rent is not taxable hereunder shall  be solely  upon  the  customer. The vendor shall not be required to collect tax from purchasers who furnish a resale or  exemption  certificate,  or such  an  affidavit,  statement  or  additional evidence in proper form, unless, in the case of a resale or exemption  certificate  described  in clause  (i)  of  the  second  sentence  of  this  paragraph  whereon the purchaser's certificate of authority  number,  or  other  identification number  required  by  regulation  of the commissioner, is required to be included, such purchaser's certificate of authority is  invalid  because it  has  been suspended or revoked as provided in section eleven hundred thirty-four, and the commissioner has furnished registered vendors  with information  identifying  those  persons whose certificates of authority have been suspended or revoked, or unless such  purchaser's  certificate of authority is invalid because it has expired, and the commissioner has provided  registered  vendors  with  a means of determining whether such expiration has occurred. Where the  vendor  accepts  such  a  resale  or exemption  certificate  from  a person identified by the commissioner as one whose certificate of authority has been suspended or revoked or from a person whose certificate of authority has been  identified  as  having expired,  the  receipt,  amusement  charge or rent from such transaction shall be deemed to be a taxable sale at retail.  (2) Notwithstanding paragraph one of this subdivision or any other law to the  contrary,  the  commissioner  may  authorize  a  purchaser,  who acquires  tangible  personal  property  or  services under circumstances which make it impossible at the time of  acquisition  to  determine  the manner in which the tangible personal property or services will be used, to  pay the tax directly to the commissioner and waive the collection of the tax by the vendor. Subject to  such  reasonable  conditions  as  the commissioner  may  require,  the commissioner shall authorize an omnibus  carrier described in subdivision (b) of section eleven hundred  nineteen to  pay  the  tax  on  the purchase or use of an omnibus directly to the commissioner and waive the collection of the tax by the vendor. No  such authority  shall  be granted or exercised except upon application to the commissioner,  and  the   issuance   by   the   commissioner,   in   the commissioner's  discretion,  of  a  direct  payment  permit. If a direct payment permit is granted,  its  use  shall  be  subject  to  conditions specified   by   the  commissioner,  and  the  payment  of  tax  on  all acquisitions pursuant to the  permit  shall  be  made  directly  to  the commissioner  by  the  permit  holder.  The  commissioner may suspend or revoke a direct payment permit where the permit holder fails  to  comply with  any  of  the provisions of this article or any rule promulgated by the commissioner with respect to this article. The  notice  and  hearing provisions  applicable  to the revocation and suspension of certificates of authority under section eleven hundred thirty-four shall apply to the suspension and revocation of direct payment permits. A vendor shall  not be  required  to  collect  tax  from  a purchaser who furnishes a direct payment permit in proper form, unless such  purchaser's  direct  payment permit  has  been  suspended  or  revoked  by  the  commissioner and the commissioner  has   provided   registered   vendors   with   information identifying  those  persons  whose  direct  payment  permits  have  been suspended or revoked. Where a vendor accepts  a  direct  payment  permit from a person whose direct payment permit has been suspended or revoked, and  the  commissioner  has provided registered vendors with information identifying  those  persons  whose  direct  payment  permits  have  been suspended  or  revoked,  the receipt, amusement charge or rent from such transaction shall be deemed to be subject to tax.  (d) The tax commission may provide by regulation  that  the  tax  upon receipts from sales on the installment plan may be paid on the amount of each installment and upon the date when such installment is due.  (e)  The  commissioner  may  provide, by regulation, for the exclusion from taxable receipts, gallons of motor fuel or diesel motor fuel  sold, amusement  charges  or  rents  of  amounts  representing sales where the contract of sale has  been  cancelled,  the  property  returned  or  the receipt,  charge or rent has been ascertained to be uncollectible or, in case the tax has been paid upon such receipt, gallons, charge  or  rent, for  refund  of  or  credit  for the tax so paid. Where the commissioner provides for a credit for the tax so paid, he or she  shall  require  an application  for  credit  to  be filed, but he or she may also allow the applicant to immediately take the credit on  the  return  which  is  due coincident  with  or  immediately  subsequent  to the time the applicant files his or her application for credit.  However,  the  taking  of  the credit  on  the return shall be deemed to be part of the application for credit and shall be subject to the provisions in respect to applications for credit in  section  eleven  hundred  thirty-nine  of  this  part  as provided in subdivision (e) of such section.  (f)  The commissioner of motor vehicles shall not issue a registration certificate for any motor vehicle, snowmobile,  vessel  or  all  terrain vehicle,  except  in  the  case of a renewal of registration by the same owner, except upon proof, in a form approved by the tax  commission  and the  commissioner  of  motor  vehicles,  that any tax imposed by section eleven hundred five or eleven hundred ten of this article  with  respect to  the  sale  of  the  motor vehicle, snowmobile, vessel or all terrain vehicle to the registrant or his use thereof has been paid, or  that  no such  tax  is  due.  For  purposes  of  this subdivision, the term motor vehicle shall include a motor vehicle as defined in section one  hundred twenty-five  of  the  vehicle  and  traffic law; a trailer as defined in section one hundred fifty-six of such law; a snowmobile  as  defined  in  section  twenty-two  hundred twenty-one of such law; a vessel as defined in section twenty-two hundred fifty of such  law;  and  an  all  terrain vehicle as defined in section twenty-two hundred eighty-one of such law.  (g)  (1)  The  clerk  of  each  county when performing the function of registration of a motor  vehicle,  snowmobile,  vessel  or  all  terrain vehicle  or  accepting  an  application  for a certificate of title of a motor vehicle or vessel, pursuant to the authority of  the  vehicle  and traffic   law,   or  the  commissioner  of  motor  vehicles,  when  such commissioner  performs  such  functions,  prior   to   performing   such functions, shall act as the agent of the state tax commission to collect any  retail  sales  tax  due  under  this  article and under a sales tax imposed pursuant to section twelve hundred ten or twelve hundred  eleven upon  sales  of such motor vehicles, snowmobiles, vessels or all terrain vehicles by persons other than dealers registered  under  sections  four hundred  fifteen,  twenty-two  hundred  twenty-two,  twenty-two  hundred fifty-seven and twenty-two hundred eighty-two of the vehicle and traffic law. Such county clerks and such commissioner shall  also  act  as  such agents  to  collect  any  compensating  use tax due under section eleven hundred ten and under a compensating use tax imposed pursuant to section twelve hundred ten or twelve hundred eleven  for  the  use  of  a  motor vehicle,  snowmobile,  vessel  or all terrain vehicle within this state. The commissioner of motor vehicles shall act as such agent without  fee. Each  such  county  clerk  shall, after deducting his fee as provided in paragraph two of this subdivision, and such commissioner shall remit  to the  tax commission all funds collected pursuant to this subdivision and shall  follow  such  procedures  and  keep  such  records  as  shall  be prescribed by the tax commission.  (2)  Each  such  county  clerk  shall retain, from the state and local sales and compensating use taxes which  he  collects,  the  sum  of  one dollar for each of the first five thousand motor vehicles or all terrain vehicles  in  respect to which he has issued a certificate setting forth the proof required by subdivision (f) of this  section  and  subdivision (d)  of  section  twelve  hundred  fourteen  of this chapter during each annual period commencing on the first day of September and ending on the next succeeding thirty-first day of August and the sum  of  seventy-five cents  for  each  motor vehicle or all terrain vehicle in excess of five thousand for which he has issued such a certificate during  such  annual period.    Each  such county clerk shall also retain, from the state and local sales and compensating use taxes he collects,  the  sum  of  fifty cents for each snowmobile and vessel in respect to which he has issued a certificate  setting forth the proof required by subdivision (f) of this section and subdivision (d) of section twelve hundred fourteen  of  this chapter.  Such  fees shall be payable even though the certificate issued shows that no tax is due. Such fees shall belong to the  county  and  be paid  into the county treasury monthly on or before the tenth day of the month pursuant to section two hundred one of the county law. The  county shall  pay  all  expenses  occasioned  by the duties of the county clerk under this subdivision, including any expenses for hire of extra clerks.  (h) (1) (i) No  person  shall  purchase  motor  fuel  in  this  state, excluding a purchase at retail, unless the tax required to be prepaid by subdivision  (a)  of section eleven hundred two of this article has been assumed by a distributor  registered  under  article  twelve-A  of  this chapter  in accordance with a certification under this paragraph or paid by such distributor, and, in each of such instances, is  passed  through to such purchaser. In addition to any other civil and criminal penalties which  may  apply,  any  person who purchases motor fuel in violation of this subparagraph shall be jointly and severally liable to pay  the  tax  required  to  be  prepaid  by section eleven hundred two of this article with respect to such motor fuel.  (ii)  For the purpose of the proper administration of this article and to prevent evasion of the tax on motor fuel imposed by and  pursuant  to this  article,  it  shall  be  presumed  that  all  motor fuel imported, manufactured or sold, received or possessed in the state is intended for use, distribution, storage or sale in the state and subject to  the  tax required  to  be  prepaid  by section eleven hundred two of this article until the contrary is established. It shall be further presumed that all motor fuel so imported, manufactured, sold, received or possessed in the state by any person, other than motor fuel delivered into  the  ordinary fuel tank connected with the engine of a means of conveyance in order to propel  it,  or  in small drums or similar containers, which such person cannot otherwise account for, is subject  to  the  tax  required  to  be prepaid under section eleven hundred two of this article and such person is  responsible for such prepayment. Provided, however, a distributor of motor fuel who imports, manufactures or sells and stores in the state or who purchases and stores motor fuel in the state on which he has prepaid the tax required to be prepaid pursuant to section eleven hundred two of this article shall be allowed an adjustment in arriving at  the  gallons subject  to  the taxes imposed by such section on account of the gallons the distributor establishes were lost due to shrinkage, evaporation  and handling; provided, however, such allowance shall not exceed two percent of  the  fuel stored. Provided, further, that in arriving at the gallons of motor fuel subject to the tax required  to  be  prepaid  pursuant  to section  eleven  hundred  two of this article, there shall be allowed an adjustment on account of gallons lost or destroyed due to  an  accident, such  as  fire,  and  at the time of such loss or destruction were being held or transported for sale other than at retail. The burden of proving that any motor fuel is not so  subject  shall  be  upon  the  person  so responsible for such prepayment with respect to such fuel.  (iii)  Upon  each sale of motor fuel, other than a sale at retail, the seller must give to the purchaser and the purchaser  shall  receive,  at the time of delivery of such motor fuel, a certification containing such information  as  the  tax commission shall require which shall include a statement to the effect (A) if such seller is a  distributor  registered under  article twelve-A of this chapter, that he has assumed the payment of or paid the tax required to be prepaid by section eleven hundred  two of  this  article  and, in each case, is passing through such tax or (B) that such seller is passing through such tax  which  was  so  previously assumed  or  paid  by an identified distributor registered under article twelve-A of this chapter, and passed through to him.  (iv)  If  the  certification  required  by  this  paragraph  has  been furnished  to  the  purchaser  by the seller at delivery and accepted in good faith, the burden of proving that the tax required to  be  paid  by section  eleven  hundred  two  of  this article was assumed or paid by a distributor registered as such under article twelve-A  of  this  chapter and passed through shall be solely on the seller.  (v)  Where  the  certification  required  under  this paragraph is not furnished by the seller at delivery of motor fuel, it shall be  presumed that  the  tax  required  to be prepaid by section eleven hundred two of this article has not been assumed or paid by a distributor registered as such under article twelve-A of this chapter and that  the  purchaser  in such case is jointly and severally liable for the tax.  (vi)  If,  due to the circumstances of delivery, it is not possible to issue a certification required under  this  paragraph  at  the  time  of delivery of motor fuel, the tax commission may authorize the delivery of the  certification  required  under  this  paragraph at a time after the  delivery of the motor fuel which is the subject of the  sale  under  the limited  circumstances  it  shall  prescribe  and  upon  such  terms and conditions it shall deem necessary  to  ensure  collection  of  the  tax imposed by section eleven hundred two of this article and the motor fuel taxes imposed by article twelve-A of this chapter.  (2)  (i) Except with respect to the exemptions from the prepaid tax on Diesel motor fuel set forth in  paragraph  two  of  subdivision  (a)  of section  eleven  hundred  two  of this article, no person shall purchase Diesel motor fuel in this state unless the prepaid tax has been  assumed by  a  registered  distributor of Diesel motor fuel in accordance with a certification under this paragraph or paid by such distributor  and,  in each  of such instances, except in the case of a purchase at retail, are passed through to such purchaser. In addition to  any  other  civil  and criminal  penalties  which  may  apply,  any person who purchases Diesel motor fuel without having received a certification from  the  seller  in accordance  with this paragraph shall be jointly and severally liable to pay the tax required to be prepaid by section eleven hundred two of this article with respect to such Diesel motor fuel.  (ii) For purposes of the proper administration of this article and  to prevent  evasion  of  the  taxes  imposed  on  Diesel motor fuel by this article, it shall be presumed that all Diesel motor fuel sold,  received or  possessed  in  the  state  is  subject  to the taxes imposed by this article until the contrary is established. It shall be further  presumed that  any  person  so selling, receiving or possessing such Diesel motor fuel is responsible for payment of the excise taxes on such fuel.  (iii) The exemption from the tax required to  be  prepaid  by  section eleven  hundred  two  of  this  article provided for in paragraph two of subdivision (a) of section eleven hundred two of this article  shall  be established  by  means  of an interdistributor sale certificate. If such exemption is applicable, such  certificate  shall  be  provided  by  the purchaser  to  the  seller  at  the  time of or prior to delivery of the Diesel motor fuel. Such certificate shall set forth the name and address of the purchaser, the purchaser's registration number, an affirmation by such purchaser that the purchaser is  registered  as  a  distributor  of Diesel  motor  fuel and that such registration has not been suspended or cancelled and shall be signed by such purchaser and by the seller.  Such certificate  shall be in such form and contain such other information as the commissioner of taxation and finance shall require. Where  a  proper and  complete  interdistributor  sale certificate has been furnished and accepted by the seller  in  good  faith,  such  certificate  under  such circumstance  shall relieve the seller of the burden of proving that the Diesel motor fuel covered by such certificate is  exempt  from  the  tax required  to be prepaid by section eleven hundred two of this article by reason of paragraph two of subdivision (a) of section eleven hundred two of this article. For purposes of this subparagraph, a seller  shall  not have  accepted  such  certificate  in  good  faith  if  the  purchaser's registration is invalid because it has been suspended or  cancelled,  or if the purchaser is not registered, and the commissioner of taxation and finance   has   furnished   registered   distributors  with  information identifying all those persons then validly registered as distributors of Diesel motor fuel  and  those  persons  whose  registrations  have  been suspended  or  cancelled.  Any  purchaser  who furnishes to his seller a false or fraudulent interdistributor sale certificate for the purpose of establishing an exemption from the tax required to be prepaid by section eleven hundred two of this article shall be jointly and severally liable for the tax imposed by such section.  (iv) (A) Upon each sale,  other  than  a  retail  sale  at  a  filling station,  the  seller must give to the purchaser and the purchaser shall  receive  at  the  time  of  delivery  of  such  Diesel  motor  fuel,   a certification   containing  such  information  as  the  commissioner  of taxation and finance shall require which, unless otherwise  provided  in this  paragraph,  shall  include  a statement to the effect: (i) if such seller is a  distributor  registered  under  article  twelve-A  of  this chapter, that he has assumed the payment of or paid the taxes imposed by this article and, in each case, is passing through such taxes; (ii) that such  seller  is  passing  through  such  taxes which were so previously assumed or paid by an identified distributor  registered  under  article twelve-A  of  this  chapter, and passed through to him; or (iii) if such seller is making a retail sale to a purchaser, that such taxes  are  not being  passed  through  on  the  retail  sale  of  Diesel motor fuel, in accordance with subparagraph (i) of this paragraph. In  the  case  of  a sale  of Diesel motor fuel described in paragraph two of subdivision (a) of section eleven hundred two of this article which is exempt  from  the tax   required  to  be  prepaid  by  section  eleven  hundred  two,  the certificate, in lieu of the  foregoing  statements,  shall  state  that, based   upon   good   faith   reliance  on  the  interdistributor  sales certificate,  such  Diesel  motor  fuel  is   being   sold   under   the circumstances  described  in  such  paragraph  two of subdivision (a) of section eleven hundred two and that the tax imposed  by  section  eleven hundred two of this article is not applicable.  (B)  In  the  case  of  a sale of Diesel motor fuel subject to the tax required to be prepaid by section eleven hundred two of this article and in all cases where such tax is required to be  passed  through,  if  the certification  required  by  this subparagraph has been furnished to the purchaser at the time of delivery of such  fuel  and  accepted  in  good faith,  the  burden  of  proving  that the tax required to be prepaid by section eleven hundred two of this article was  assumed  or  paid  by  a distributor  registered  as  such under article twelve-A of this chapter and passed through shall be solely on the seller.  (C) Where the certification required under  this  subdivision  is  not furnished  by  the  seller  at  the time of delivery of the Diesel motor fuel, it shall be presumed that  the  tax  required  to  be  prepaid  by section  eleven hundred two of this article is due and owing and has not been assumed or paid by a distributor registered as such  under  article twelve-A  of this chapter and that the purchaser in such case is jointly and severally liable for the tax.  (D) If, due to the circumstances of delivery, it is  not  possible  to issue  a  certification  required  under this subdivision at the time of delivery of Diesel motor fuel, the commissioner of taxation and  finance may  authorize  the  delivery  of  the certification required under this subdivision at a time after the delivery of the Diesel motor fuel  which is  the  subject  of  the  sale under the limited circumstances he shall prescribe and upon such terms and conditions he shall deem necessary  to ensure  collection  of  the tax imposed by section eleven hundred two of this article and the Diesel motor fuel taxes imposed by article twelve-A of this chapter.  (3) (i) For the purpose of the proper administration of  this  article and  to  prevent evasion of the tax hereby imposed, it shall be presumed that all retail sales of motor fuel or diesel motor fuel are subject  to the  tax  required  to be collected by subdivision (a) of section eleven hundred five of this article or paid by the provisions of section eleven hundred ten of this article until the contrary is  established,  and  it shall  be  presumed  that  all motor fuel or diesel motor fuel imported, manufactured, sold, received or possessed by any person in  this  state, which  such  person  cannot  otherwise  account  for as having been sold subject to the tax required  to  be  collected  by  subdivision  (a)  of  section  eleven hundred five or paid by the provisions of section eleven hundred ten of this article, has been sold subject to the  tax  required to  be  collected  by  subdivision (a) of section eleven hundred five or paid by the provisions of section eleven hundred ten except that no such presumption  shall apply with respect to motor fuel or diesel motor fuel in the fuel tank of a motor vehicle used to propel such  vehicle  or  to motor  fuel  in small drums or similar containers. The burden of proving that any sale is not so subject shall be upon  the  person  required  to collect such tax and the purchaser of such fuel.  (ii)  Unless the vendor has received from the purchaser a statement or certificate in such form as  the  commissioner  may  require,  that  the purchaser  pursuant  to  the  provisions  of  subdivision (a) of section eleven hundred five-A, subdivision (j) of section eleven hundred fifteen or subdivision (b) of section eleven hundred sixteen of this article  is not  subject  to  the  provisions  of this paragraph, such sale shall be deemed a sale subject to the provisions of sections eleven hundred  five and  eleven hundred ten of this article notwithstanding any provision of subdivision (c) of this section.  (iii) Where any certificate or statement required under this paragraph has been furnished to the vendor and accepted in good faith, the  burden of  proving  that  the  receipt is not taxable hereunder shall be solely upon the purchaser. The vendor shall not be  required  to  collect  such taxes  from  purchasers  who  furnish such certificates or statements in proper form.  (i) The commissioner shall, by regulation, provide for  a  certificate which  must  be furnished by a purchaser of a large volume of motor fuel or diesel motor  fuel  who  or  which  is  commonly  referred  to  as  a commercial  account  where  such  purchase  is  for  consumption by such purchaser and is not resold in order for the sales tax on such  sale  to be based on the actual receipts therefor.  (k)  (1)  (i) No person shall purchase cigarettes in this state, other than in a purchase at retail, unless the tax required to be  prepaid  by subdivision (a) of section eleven hundred three of this article has been paid  by  an  agent  and passed through by such agent and by a wholesale dealer or  retail  dealer,  authorized,  licensed  or  registered  under article twenty of this chapter, in accordance with a certification under this paragraph or paid by such agent, wholesale dealer or retail dealer, and,  in each of such instances, is passed through to such purchaser. In addition to any other civil and criminal penalties which may apply,  any person  who purchases cigarettes in violation of this subparagraph shall be jointly and severally liable to pay the tax required to be prepaid by section eleven hundred three  of  this  article  with  respect  to  such cigarettes.  (ii)  For the purpose of the proper administration of this article and to prevent evasion of the tax on sales and uses of cigarettes imposed by this article and pursuant to the authority  of  article  twenty-nine  of this chapter, it shall be presumed that all cigarettes possessed in this state,  other  than  four  hundred  or fewer cigarettes brought into the state by, or in the possession of, any person, are intended for sale  or use  in  the  state  and  subject  to  the tax required to be prepaid by section eleven hundred three of  this  article  until  the  contrary  is established and that such person is responsible for such prepayment.  (iii)  Upon  each sale of cigarettes, other than a sale at retail, the seller must give to the purchaser and the purchaser  shall  receive,  at the time of delivery of such cigarettes, a certification containing such information  as  the  commissioner  shall  require which shall include a statement to the effect (A) if such seller is  an  agent  under  article twenty  of  this  chapter,  that  such  agent has paid the amount of tax  required to be prepaid by section eleven hundred three of  this  article and  is  passing  through such amount of tax, or (B) that such seller is passing through such amount of tax which was so  previously  assumed  or paid by an agent under article twenty of this chapter identified on such certification, and passed through to such seller.  (iv)  If  the  certification  required  by  this  paragraph  has  been furnished to the purchaser by the seller at  delivery  and  accepted  in good  faith  on  cigarettes  bearing a cigarette tax stamp under article twenty of this chapter and this article of an issue currently in effect, the burden of proving that the tax required to be paid by section eleven hundred three of this article was assumed or paid by an  agent  licensed as such under article twenty of this chapter and passed through shall be solely on the seller.  (v)  Where  the  certification  required  under  this paragraph is not furnished by the seller to the purchaser at delivery of  cigarettes,  it shall  be  presumed  that  no  amount  of  tax required to be prepaid by section eleven hundred three of this article has been paid by  an  agent authorized  as  such  under  article twenty of this chapter and that the purchaser in such case is jointly  and  severally  liable  for  the  tax imposed by such section eleven hundred three.  (2)  (i)  For the purpose of the proper administration of this article and to prevent evasion of the tax imposed under this article,  it  shall be  presumed  that all retail sales of cigarettes are subject to the tax imposed by subdivision (a) of section eleven hundred five  and  required to  be collected by section eleven hundred thirty-two of this article or required to be paid by the provisions of section eleven hundred  ten  of this article until the contrary is established; and it shall be presumed that  all  cigarettes  possessed in this state, which such person cannot otherwise account for as having been sold subject to the tax imposed  by subdivision  (a)  of  section  eleven  hundred  five  and required to be collected by section eleven hundred thirty-two or required to be paid by the provisions of section eleven hundred ten of this article, have  been sold  subject  to  the  tax imposed by subdivision (a) of section eleven hundred five and required to be  collected  by  section  eleven  hundred thirty-two  or  required  to be paid by the provisions of section eleven hundred ten, except that no such presumption shall apply with respect to four hundred or fewer cigarettes brought into the state by,  or  in  the possession of, any person. The burden of proving that any sale is not so subject to tax shall be upon the person required to collect such tax and the purchaser or user of such cigarettes.  (ii)  Unless the vendor has received from the purchaser a statement or certificate, in such form as the  commissioner  may  require,  that  the purchaser pursuant to the provisions of paragraph six of subdivision (b) of  section eleven hundred sixteen of this article is not subject to the provisions of this paragraph, such sale shall be deemed a  sale  subject to the provisions of sections eleven hundred five and eleven hundred ten of this article notwithstanding any provision of subdivision (c) of this section.  (iii) Where any certificate or statement required under this paragraph has  been furnished to the vendor and accepted in good faith, the burden of proving that the receipt is not taxable  hereunder  shall  be  solely upon  the  purchaser.  The  vendor shall not be required to collect such taxes from purchasers who furnish such  certificates  or  statements  in proper form.  (l)(1)  A  marketplace  provider  with  respect  to a sale of tangible personal property it facilitates: (A) shall have all the obligations and rights of a vendor under this article and article  twenty-nine  of  this chapter  and  under any regulations adopted pursuant thereto, including,  but not limited to, the duty to obtain a certificate  of  authority,  to collect  tax,  file  returns,  remit  tax,  and  the  right  to accept a certificate or other documentation from  a  customer  substantiating  an exemption  or  exclusion  from  tax,  the  right  to  receive the refund authorized by subdivision (e) of this section and the credit allowed  by subdivision  (f)  of  section  eleven  hundred thirty-seven of this part subject to the provisions of such subdivisions; and (B) shall keep  such records  and  information  and cooperate with the commissioner to ensure the proper collection  and  remittance  of  tax  imposed,  collected  or required  to  be collected under this article and article twenty-nine of this chapter.  (2) A marketplace seller who is a vendor is relieved from the duty  to collect tax in regard to a particular sale of tangible personal property subject  to  tax under subdivision (a) of section eleven hundred five of this article and shall not include the receipts from such  sale  in  its taxable  receipts  for  purposes of section eleven hundred thirty-six of this part if, in regard to such sale: (A)  the  marketplace  seller  can show  that such sale was facilitated by a marketplace provider from whom such seller has received in good faith a properly completed  certificate of  collection in a form prescribed by the commissioner, certifying that the marketplace provider is registered to collect  sales  tax  and  will collect  sales tax on all taxable sales of tangible personal property by the marketplace seller facilitated by the marketplace provider, and with such other information as the commissioner may prescribe;  and  (B)  any failure  of the marketplace provider to collect the proper amount of tax in regard to such sale was not the result  of  such  marketplace  seller providing  the  marketplace  provider  with  incorrect information. This provision shall be administered in a manner consistent with subparagraph (i) of paragraph one  of  subdivision  (c)  of  this  section  as  if  a certificate  of  collection  were  a resale or exemption certificate for purposes of such subparagraph, including with regard to the completeness of such certificate of collection and the timing of  its  acceptance  by the  marketplace  seller.  Provided  that,  with  regard to any sales of tangible personal property by a marketplace seller that are  facilitated by a marketplace provider who is affiliated with such marketplace seller within the meaning of paragraph one of subdivision (e) of section eleven hundred  one  of  this  article,  the marketplace seller shall be deemed liable as a person under a duty to act for such marketplace provider for purposes of subdivision one of section eleven hundred thirty-one of this part.  (3) The commissioner may, in his or  her  discretion:  (A)  develop  a standard  provision,  or  approve a provision developed by a marketplace provider, in which the marketplace provider obligates itself to  collect the  tax  on  behalf  of  all  the  marketplace  sellers  for  whom  the marketplace provider facilitates sales of  tangible  personal  property, with  respect  to  all  sales that it facilitates for such sellers where delivery occurs in the state; and (B) provide by regulation or otherwise that the inclusion of such provision in the publicly-available agreement between the marketplace provider and marketplace seller  will  have  the same  effect  as  a  marketplace seller's acceptance of a certificate of collection from such marketplace provider under paragraph  two  of  this subdivision.