NY Tax L § 289-B (2021)
2021 New York Laws TAX - Tax Article 12-A - Tax on Gasoline and Similar Motor Fuel 289-B - Penalties and Interest.

§  289-b. Penalties and interest. 1. (a) A distributor or other person who or which fails to file a return or to pay any tax  within  the  time required  by  or pursuant to this article (determined with regard to any extension of time for filing or paying) shall be subject to a penalty of ten per centum of the amount of tax determined to be due as provided  in this  article  plus  one  per  centum  of  such amount for each month or fraction  thereof  during  which  such  failure  continues   after   the expiration of the first month after such return was required to be filed or  such  tax  became  due,  not  exceeding  thirty  per  centum  in the aggregate. Provided, however, in the case of  a  failure  to  file  such return  within  sixty  days  of  the  date prescribed for filing of such return by or pursuant to this article (determined  with  regard  to  any extension  of  time  for  filing), the penalty imposed by this paragraph shall not be less than the lesser of one hundred dollars or one  hundred per centum of the amount required to be shown as tax on such return. For the  purpose of the preceding sentence, the amount of tax required to be shown on the return shall be reduced by the amount of any  part  of  the tax  which  is  paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return.  (b) If any amount of tax is not  paid  on  or  before  the  last  date prescribed  in  this article for payment, interest on such amount at the underpayment rate set  by  the  commissioner  of  taxation  and  finance pursuant  to subdivision twenty-sixth of section one hundred seventy-one of this chapter shall be paid for the period from such last date to  the date paid, whether or not any extension of time for payment was granted. Interest under this paragraph shall not be paid if the amount thereof is less than one dollar.  (c)  If  the  tax commission determines that such failure or delay was due to reasonable cause and not due to willful neglect, it  shall  remit all  or  part of such penalty. The tax commission shall promulgate rules and regulations as to what constitutes reasonable cause.  (d) If the failure to pay any tax  within  the  time  required  by  or pursuant  to  this article is due to fraud, in lieu of the penalties and interest provided for in paragraphs (a) and  (b)  of  this  subdivision, there shall be added to the tax (i) a penalty of two times the amount of tax  due, plus (ii) interest on such unpaid tax at the underpayment rate set by the commissioner of taxation and finance pursuant to  subdivision twenty-sixth  of section one hundred seventy-one of this chapter for the period beginning on the last day prescribed  by  this  article  for  the payment  of such tax (determined without regard to any extension of time for paying) and ending on the day on which such tax is paid.  (e) Any owner of a filling station who shall willfully  and  knowingly have  in  his custody, possession or under his control any motor fuel or Diesel motor fuel on which (i) the taxes imposed by or pursuant  to  the authority of this article have not been assumed or paid by a distributor registered  as  such  under this article or (ii) the taxes imposed by or pursuant to the authority of this article, which taxes were required  to have  been passed through to him and included in the cost to him of such fuel, have not been included in the cost to him of such  fuel  shall  be liable  for a penalty equal to twice the amount of tax so not assumed or paid, or included. Such penalty shall be determined, assessed, collected and paid in the same manner as taxes imposed by this article and all the provisions of this article relating to determination of tax, proceedings to recover tax, refunds (but only of  monies  paid  in  error),  mailing rules  and  disposition  of revenue shall be deemed also to refer to the penalty imposed by this paragraph and, for this purpose, the term "owner of a filling station" shall be substituted for  the  term  "distributor"  wherever appearing in such provisions. Such penalty may be determined at any  time  within three years after such motor fuel or Diesel motor fuel shall have come into the custody, possession or control of such owner of a  filling  station.  For  purposes  of this paragraph, such owner shall willfully and knowingly have in his custody,  possession  or  under  his control any motor fuel or Diesel motor fuel (1) on which such taxes have not  been  assumed or paid by a distributor registered as such or (2) on which such taxes are required to have been passed  through  to  him  and have  not  been  included  in  his cost when such owner has known of the requirement that such taxes be so included and where  to  his  knowledge such taxes have not been so included. For purposes of this paragraph, it shall  be  presumptive  evidence  that  such  owner  shall willfully and knowingly have in his custody, possession or under his control any motor fuel or Diesel motor fuel (1) on which such taxes have not been  assumed or  paid  by a distributor registered as such or (2) on which such taxes are required to have been passed  through  to  him  and  have  not  been included in his cost where such owner has not received the certification required  by  subdivision three of section two hundred eighty-five-a or, in the case of Diesel motor fuel, by subdivision  four  of  section  two hundred  eighty-five-b  of  this article at the time of delivery of such motor fuel or Diesel motor fuel, or, in those  circumstances  where  the commissioner  has authorized the delivery of the certification at a time after delivery of the motor fuel or  Diesel  motor  fuel,  at  the  time prescribed by the commissioner.  (e-1)  In  addition to any other penalties that may be imposed by law, any of the following penalties may be imposed.  (i) Any person who fails to file an informational  return  under  this article  on or before the prescribed date, must pay a penalty of fifteen hundred dollars for the first violation and a penalty of three  thousand dollars  for each subsequent violation, unless it can be shown that such failure is due to reasonable cause and not willful neglect.  (ii) Any person who fails to file an informational return within sixty days of the date prescribed  for  filing  must  pay  a  penalty  of  two thousand  dollars for the first violation and a penalty of four thousand dollars for each subsequent violation, unless it can be shown that  such failure is due to reasonable cause and not willful neglect.  (iii)  Any  person  who  fails to file a complete informational return must pay a penalty of fifteen hundred dollars for  the  first  violation and  a  penalty of three thousand dollars for each subsequent violation, unless it can be shown that such failure is due to reasonable cause  and not willful neglect.  (iv)  If  any person makes a statement on an informational return and, as of the time of the statement, there was no reasonable basis for  that statement,  that  person  must pay a penalty of two thousand dollars for the first violation and a penalty of  four  thousand  dollars  for  each subsequent violation.  (f)  The  penalties and interest provided for in this section shall be determined, assessed, collected and paid in the same manner as the taxes imposed by this article and shall be disposed of as hereinafter provided with respect to moneys  derived  from  the  tax.  Unpaid  penalties  and interest under this subdivision may be recovered by the attorney-general by  action in the name of the people, and all penalties and interest due from the same distributor may be sued for in one action. Interest  under this subdivision shall be compounded daily.   2.  Any officer, director, shareholder or employee of a corporation or of a dissolved  corporation,  any  employee  of  a  partnership  or  any employee of an individual proprietorship, who as such officer, director, shareholder  or  employee  is  under a duty to act for such corporation,  partnership or proprietorship in complying with any requirement of  this article,  and  any member of a partnership, which fails to pay the taxes imposed by or pursuant to this article,  shall,  in  addition  to  other penalties  provided  by  law,  be liable to a penalty equal to the total amount of the  tax  not  paid,  plus  penalties  and  interest  computed pursuant  to  subdivision  one  of this section as if such person were a distributor. If the tax commission determines that such failure was  due to  reasonable  cause and not due to willful neglect, it shall remit all or part of such penalty imposed under  this  subdivision.  Such  penalty shall  be determined, assessed, collected and paid in the same manner as the  taxes  imposed  by  this  article  and  shall  be  disposed  of  as hereinafter provided with respect to moneys derived from the tax.   3. For purposes of this chapter, the failure to do any act required by or under the provisions of this article shall be deemed an act committed in  part  at  the  office  of  the department of taxation and finance in Albany. For purposes  of  this  chapter,  the  certificate  of  the  tax commission to the effect that a tax has not been paid, that a return has not  been  filed, or that information has not been supplied, as required by or under the provisions of this article, or that a claim  for  refund has been filed, shall be prima facie evidence that such tax has not been paid, that such return has not been filed, that such information has not been supplied, or that such claim has been filed.   4.  Cross-reference:  For criminal penalties, see article thirty-seven of this chapter.   5. (a) Any purchaser of Diesel motor fuel who knowingly issues a false or fraudulent exempt transaction  certificate  (or  a  similar  document which  has  been prescribed by the commissioner of taxation and finance) or interdistributor sale certificate in order to claim an exemption from the taxes imposed on Diesel motor fuel by this article by reason  of  an exemption from tax provided for in paragraph (b) of subdivision three of section  two hundred eighty-two-a of this article, shall, in addition to liability for tax or any other  penalty  imposed  by  this  chapter,  be subject  to  a penalty of one hundred percent of the tax liability which would have resulted if there had not been a misuse of such certificate.  (b) Any seller of Diesel motor  fuel  who  knowingly  accepts  from  a purchaser  a  false  or  fraudulent exempt transaction certificate (or a similar document which  has  been  prescribed  by  the  commissioner  of taxation  and finance) or interdistributor sale certificate which claims an exemption from the taxes imposed on Diesel motor fuel by this article by reason of the exemption from tax provided for in such  paragraph  (b) of subdivision three of section two hundred eighty-two-a of this article shall,  in addition to liability for tax or any other penalty imposed by this chapter, be subject to a penalty of one hundred percent of the  tax liability  which would have resulted if such certificate had not been so accepted.