NY Tax L § 480-A (2021)
2021 New York Laws TAX - Tax Article 20 - Tax on Cigarettes and Tobacco Products 480-A - Retail Dealer and Vending Machine Registration.

§ 480-a. Retail dealer and vending machine registration. 1. (a) On and after  January  first,  nineteen hundred ninety-one, every retail dealer shall publicly display a certificate of registration from the department in each  place  of  business  in  this  state  through  which  it  sells cigarettes  or  tobacco  products  at retail. A retail dealer who has no regular place of business shall publicly  display  such  certificate  on each of its carts, stands, trucks or other merchandising devices through which it sells cigarettes or tobacco products in this state.  (b)  Every  person who owns or, if the owner is not the operator, then any person who operates one  or  more  vending  machines  through  which cigarettes  or  tobacco  products  are sold in this state, regardless of whether located on the premises of the vending machine owner or, if  the owner  is  not  the  operator,  then the premises of the operator or the premises of any other person, must register each  such  vending  machine with  the  department.  On  and  after  January  first, nineteen hundred ninety-one, a vending machine registration certificate, in such form  as may  be prescribed by the commissioner of taxation and finance, shall be affixed to each vending machine  through  which  cigarettes  or  tobacco products are sold in this state.  (c)  Registrations  of  retail  dealers  and vending machines shall be valid for a calendar year period upon payment of the fee  prescribed  in subdivision  two  of  this  section  and  must be renewed each year upon payment  of  such  fee.  A  registration  shall  not  be  assignable  or transferable.  In  the case of retail dealers a registration certificate shall be surrendered to  the  department  immediately  upon  the  retail dealer's  ceasing  to  do  business  as  specified  in  the registration certificate, or in the event that such business never commenced.  (d) (i) The commissioner shall not register  retail  dealers  or  such registration  may  be  cancelled  or  suspended by the commissioner upon notification that the applicant or retail dealer has been convicted in a criminal proceeding of a violation of subdivision five of section 260.20 of the penal law or as directed by an enforcement  officer  pursuant  to article  thirteen-F  of  the  public  health law. The clerk of the court shall promptly report all criminal convictions under subdivision five of section 260.20 of the penal law to the  commissioner,  together  with  a direction  to the commissioner to cancel such registration or to suspend it for a specified period of time. Anything to the contrary in  any  law notwithstanding,  retail  dealers shall have no right to a hearing under this chapter and shall have no right  to  commence  a  court  action  or proceeding  or to any other legal recourse against the commissioner with respect to any action taken by the commissioner  under  this  paragraph, provided  nothing  herein  shall  be  construed to deny retail dealers a hearing under article thirteen-F of the public health law or to prohibit retail dealers from commencing a court action or proceeding  against  an enforcement   officer   as   defined   in   section   thirteen   hundred ninety-nine-aa of the public health law.  (ii)  Anything  to  the  contrary  in  any  law  notwithstanding,  the commissioner  shall  provide  upon  request to an enforcement officer as defined in section thirteen hundred ninety-nine-aa of the public  health law  such  registration information as is relevant and necessary for the implementation of article thirteen-F of the public health law.  (e) The commissioner may refuse to register as a retail dealer or  may revoke  the  registration  of  a  retail dealer where the applicant's or retail dealer's place of business is at the same premises as that  of  a retail  dealer  whose  retail  dealer  registration has been revoked and where such revocation is still in effect, unless the applicant or retail dealer   provides   the   commissioner   with   adequate   documentation demonstrating that such applicant or retail dealer acquired the premises  or  business  through  an  arm's  length  transaction as defined in this paragraph and that the sale or lease was not conducted, in whole  or  in part, for the purpose of permitting the original registrant to avoid the effect of the previous revocation for the same premises. For purposes of this  paragraph, "arm's length transaction" means a sale of a fee or all undivided interests in real property, or lease of any part thereof, or a sale of a business, in good faith and for valuable  consideration,  that reflects  the  fair  market  value  of  such  real property or lease, or business, in the open market, between two informed and willing  parties, where neither is under any compulsion to participate in the transaction, unaffected by any unusual conditions indicating a reasonable possibility that  the  sale  or  lease  was  made  for the purpose of permitting the original registrant to avoid the effect of the previous  revocation  for the  same  premises. The following sales or leases shall be presumed not to  be  arm's  length  transactions  unless  adequate  documentation  is provided  demonstrating  that  the  sale  or lease was not conducted, in whole or in part, for the purpose of permitting the original  registrant to avoid the effect of the previous revocation for the same premises:  (i) a sale between relatives; or  (ii) a sale between related companies or partners in a business; or  (iii)  a  sale  or lease affected by other facts or circumstances that would indicate that the sale or lease is entered into  for  the  primary purpose of permitting the original registrant to avoid the effect of the previous revocation for the same premises.  (f) In addition to the grounds for refusal of a registration specified in  section eleven hundred thirty-four of this chapter, the commissioner may refuse to register any person as a retail dealer where any tax under this chapter, or a tax or fee administered by the commissioner under any other law, has been finally determined to be due from  such  person,  or from  a  person  required  to collect tax with respect to such person or another person, and has not been paid.   2. (a) (i) Every retail dealer and every  person  owning  or,  if  the owner is not the operator, then any person operating one or more vending machines  through  which cigarettes or tobacco products are sold in this state, who is required under section eleven hundred thirty-six  of  this chapter to file a return for the quarterly period ending on the last day of August, nineteen hundred ninety or for the quarterly period ending on the  last day of August in any year thereafter, must file an application for registration under this section with that quarterly return, in  such form as shall be prescribed by the commissioner.  (ii) Each retail dealer must pay an application fee with the quarterly return  of  three  hundred  dollars for each retail place of business in this state through which it sells cigarettes or tobacco products.  (iii) Every person who owns or, if the owner is not the operator, then any person who operates one  or  more  vending  machines  through  which cigarettes  or  tobacco  products  are sold in this state, regardless of whether located on the premises of the vending machine owner or, if  the owner  is  not  the  operator,  then the premises of the operator or the premises of any other person, must  pay  an  application  fee  with  the quarterly  return  of  one hundred dollars for each vending machine. The department will issue a registration certificate, as prescribed  by  the commissioner,  after  receipt  of  a  registration  application  and the appropriate registration fee,  prior  to  the  next  succeeding  January first.  (b)  Every retail dealer and every person who owns or, if the owner is not the operator, then any person  who  operates  one  or  more  vending machines  through  which cigarettes or tobacco products are sold in this state who commences business after the  last  day  of  August,  nineteen  hundred  ninety, or who commences selling cigarettes or tobacco products at retail through a new or different place of  business  in  this  state after such date, or who commences selling cigarettes or tobacco products through  new  or  different  vending machines after such date, must file with the  commissioner  an  application  for  registration,  in  a  form prescribed  by  him  or  her,  at  least thirty days prior to commencing business or commencing sales. Each application must be accompanied by an application fee of three  hundred  dollars  for  each  retail  place  of business  and  one  hundred  dollars  for  each  vending  machine  to be registered.  The  department,  within  ten  days  after  receipt  of  an application  for  registration  under  this paragraph and payment of the proper fee for application for registration, will issue  a  registration certificate, as prescribed by the commissioner, for each retail place of business or cigarette or tobacco products vending machine registered.  (c)  In addition to the powers granted to the commissioner of taxation and finance in this chapter, the commissioner is  hereby  authorized  to make  provisions  for  the joint administration, in whole or in part, of the state and local taxes imposed by article twenty-eight and authorized to  be  imposed  by  article  twenty-nine  of  this  chapter   and   the registrations and fees for application for registration required by this section,  including  the  joint  reporting,  assessment,  collection and determination of such taxes and the registration and fees  provided  for in  this  section,  and  for  that purpose, to prescribe that any of the commissioner's functions under such articles or this  section,  and  any returns,  forms, statements, documents or information to be submitted to the commissioner under such articles or  this  section,  any  books  and records to be kept for purposes of the taxes imposed or authorized to be imposed  by such articles or for purposes of this section, any schedules of amounts to be collected under such  articles  or  this  section,  any registration  required  under  such  articles  or  this section, and the payment of taxes under such articles, or  of  fees  under  this  section shall be on a joint basis.  (d)  Except  as otherwise provided in this section, all the provisions of article  twenty-eight  of  this  chapter  relating  to  the  personal liability  for  the tax, administration, collection and determination of tax, and deposit and disposition of revenue,  including  section  eleven hundred  thirty-eight  of  this chapter relating to determination of tax and  section  eleven  hundred  forty-five  of  this  chapter  (but  only paragraphs  one  and two of subdivision (a) of such section) relating to penalties and interest for failure to file a return or  pay  tax  within the  time required, shall apply to the applications for registration and the fees for filing such applications required by this section  and  the penalty  imposed  pursuant  to  subdivision three of this section, as if such applications were returns required  under  section  eleven  hundred thirty-six  of this chapter and such filing fees, penalties and interest were taxes required to be paid pursuant to such article twenty-eight, in the same manner and with the same force and effect as if the language of such provisions of such article twenty-eight had  been  incorporated  in full  into this article, except to the extent that any such provision is either inconsistent with a provision of this section or is not  relevant thereto  and  with such other modifications as may be necessary to adapt the language of such provisions  to  the  provisions  of  this  section. Provided,  however,  that the commissioner of taxation and finance shall refund  or  credit  an  application  fee  paid  with  respect   to   the registration  of a vending machine or a retail place of business in this state through which cigarettes or tobacco products were to be  sold  if, prior  to  the beginning of the calendar year with respect to which such registration relates,  the  certificate  of  registration  described  in  paragraph  (a)  of  this  subdivision  is  returned to the department of taxation and finance, or if such certificate  has  been  destroyed,  the retail dealer or vending machine operator satisfactorily accounts to the commissioner  for  the  missing certificate, but such vending machine or retail place of business may not be used to sell cigarettes  or  tobacco products  in  this  state  during  such  calendar  year,  unless  it  is re-registered. The provisions of section eleven hundred  thirty-nine  of this  chapter  shall  apply  to  the  refund or credit authorized by the preceding sentence and for such purposes, such refund or credit shall be deemed a refund of tax paid in  error  provided,  however,  no  interest shall be allowed or paid on any such refund.   3.  In  addition to any other penalty imposed by this chapter: (a) Any retail dealer who violates the provisions of  this  section,  after  due notice and an opportunity for a hearing, for a first violation is liable for  a  civil fine not less than five thousand dollars but not to exceed twenty-five thousand dollars and for a second  or  subsequent  violation within  three years following a prior finding of violation is liable for a civil fine not less than  ten  thousand  dollars  but  not  to  exceed thirty-five thousand dollars; or  (b) Any person who owns or, if the owner is not the operator, then any person   who  operates  one  or  more  vending  machines  through  which cigarettes or tobacco products are sold in this state and  who  violates the  provisions of this section, after due notice and an opportunity for a hearing, for a first violation is liable for a  civil  fine  not  less than  seven hundred fifty dollars but not to exceed two thousand dollars and for a second or subsequent violation within three years following  a prior  finding of violation be liable for a civil fine not less than two thousand dollars but not to exceed six thousand dollars.   4. (a) If a retail dealer possesses or sells unstamped  or  unlawfully stamped  packages  of cigarettes, or if a retail dealer is also licensed as an  agent  pursuant  to  section  four  hundred  seventy-two  and  it possesses  unlawfully  stamped packages of cigarettes or sells unstamped or  unlawfully  stamped  packages  of  cigarettes  at  retail,  (i)  its registration  shall  be  revoked for a period of one year, or (ii) for a second such possession or sale within a period of five years by a retail dealer or any affiliated person of such retail dealer, the  registration of  such retail dealer and the registration of any retail dealer that is an affiliated person of such retail dealer shall be revoked for a period of three years, or (iii) for a third such possession or  sale  within  a period of five years by a retail dealer or any affiliated person of such retail   dealer,   the  registration  of  such  retail  dealer  and  the registration of any retail dealer that is an affiliated person  of  such retail  dealer  shall  be  revoked  for a period of five years. A retail dealer registration  shall  be  revoked  pursuant  to  this  subdivision immediately  upon  such dealer's receipt of written notice of revocation from the commissioner. If unstamped or unlawfully stamped cigarettes are found in a retail dealer's warehouse or a warehouse  of  any  affiliated person  of  such  retail  dealer,  the revocation of the retail dealer's registration pursuant to this subdivision shall be  applicable  to  each retail  place of business in this state through which such retail dealer and any affiliated person of such retail dealer sells cigarettes.  (b)  A  retail  dealer  who  is  notified  of  a  revocation  of   its registration  pursuant  to this subdivision shall have the right to have the revocation 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 of revocation within ten days of  such  dealer's receipt  of  such  notification.  The  retail dealer may present written evidence or argument in support of its defense to the revocation, or may  appear at a scheduled conference with the commissioner  or  his  or  her designee  to  present  oral  arguments  and written and oral evidence in support of such defense. The commissioner or  his  or  her  designee  is authorized  to  delay the effective date of the revocation to enable the retail dealer to present further evidence  or  arguments  in  connection with  the  revocation.    The  commissioner or his or her designee shall cancel the revocation of registration if the commissioner or his or  her designee  is  not  satisfied by a preponderance of the evidence that the retail dealer possessed or sold unstamped or unlawfully stamped packages of cigarettes.  (c) An order of revocation of a retail dealer registration  shall  not be  reviewable  by  the  division  of  tax  appeals, but may be reviewed pursuant to article seventy-eight of the civil practice law and rules by a proceeding commenced in the supreme court within four  months  of  the revocation  of  registration petitioning that the order of revocation be enjoined or set aside. Such proceeding shall be instituted in the county where the commissioner has his or her principal office. Upon the  filing of  such  petition  the  court shall have jurisdiction to set aside such order of revocation, in whole or in part, or to  dismiss  the  petition. The  jurisdiction  of the supreme court shall be exclusive and its order dismissing the petition or enjoining or setting  aside  such  order,  in whole  or  in  part,  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 appeals from a judgment in a special proceeding. All such proceedings  shall  be heard  and  determined  by  the  court  and  by  any  appellate court as expeditiously as possible and with lawful precedence  over  other  civil matters. 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.  (d) After review of the revocation of registration by the commissioner or  his  or  her designee is complete, or the time within which a retail dealer may request such review has expired without such a request having been made, notice of the revocation  of  a  retail  dealer  registration pursuant  to  this subdivision shall be given by the commissioner to the head of the division of the lottery for the purpose  of  enforcement  of section  sixteen  hundred  seven  of  this chapter and such division may suspend or revoke any license issued with respect to a  lottery  agent's specific  location  pursuant  to  article thirty-four of this chapter if such lottery agent is a retail dealer of cigarettes  whose  registration for  such  location is suspended or revoked pursuant to this section. In addition, notice of such revocation shall also be  given  to  the  state liquor  authority  and  such  revocation  shall  constitute  cause,  for purposes of section one  hundred  eighteen  of  the  alcoholic  beverage control  law,  for revocation, cancellation or suspension of any license or permit issued pursuant to such law.   5. Except for subdivision (i) of section eighteen hundred fourteen  of this  chapter,  the criminal penalties set forth in article thirty-seven of this chapter shall not apply to a violation of this section.   6. (a) No  retail  dealer  who  has  its  retail  dealer  registration cancelled,  suspended  or  revoked  pursuant to this section or has been forbidden from  selling  cigarettes  or  tobacco  products  pursuant  to paragraph  (j) of subdivision one of section four hundred eighty of this article shall possess cigarettes or tobacco products  in  any  place  of business, cart, stand, truck or other merchandising device in this state beginning   on  the  tenth  day  after  such  cancellation,  suspension, revocation, or forbiddance and continuing for the duration of the  same; provided  however, such retail dealer shall not be prohibited before the  tenth  day  after  such   cancellation,   suspension,   revocation,   or forbiddance  from  selling  or  transferring  its  inventory of lawfully stamped cigarettes or tobacco products on which  the  taxes  imposed  by this  article  have been assumed or paid to a properly registered retail dealer whose registration is not cancelled, suspended, or revoked or who has not been forbidden from selling cigarettes or tobacco products.  (b) No retail dealer shall possess cigarettes or tobacco  products  in any  place of business, cart, stand, truck or other merchandising device in this state unless it has obtained a valid retail dealer  registration from the commissioner.  (c)  The possession of cigarettes or tobacco products by an unlicensed retail dealer in violation of paragraph (a) or (b) of  this  subdivision shall  be  subject  to  the penalties authorized by subdivision three of this section.