NY Tax L § 1137 (2021)
2021 New York Laws TAX - Tax Article 28 - Sales and Compensating Use Taxes Part 4 - Administrative Provisions 1137 - Payment of Tax.

§  1137.  Payment  of  tax. (a) Every person required to file a return under the preceding section whose total taxable  receipts  (as  "taxable receipts"  are  described in subdivision (a) of such section), amusement charges  and  rents  are  subject  to  the  tax  imposed   pursuant   to subdivisions  (a),  (c), (d), (e) and (f) of section eleven hundred five of this article shall, at the time of filing such  return,  pay  to  the commissioner the total of the following:  (i)  Four  percent of the total of all receipts, amusement charges and rents subject to tax under this article, and if any  of  such  receipts, amusement charges and rents are subject to local tax imposed pursuant to article  twenty-nine  of  this  chapter, an additional percentage of the total thereof equal to the percentage rate of such local tax;  (ii) All taxes imposed by section eleven hundred ten  or  pursuant  to article  twenty-nine  of this chapter upon such person's use of property or services;  (iii) All moneys collected by such person, purportedly as tax  imposed by this article or pursuant to article twenty-nine of this chapter, with respect  to any receipt, gallon of motor fuel or diesel motor fuel sold, amusement charge or rent not subject to tax, and  all  moneys  collected with  respect  to  any receipt, gallon of such fuel, amusement charge or rent  subject  to  tax,  purportedly  in  accordance  with  a   schedule prescribed  by  the  commissioner  but  actually in excess of the amount stated in such schedule as the amount to be collected; and  (iv) The correct number of cents per gallon of motor fuel  and  diesel motor  fuel  sold subject to tax under this article, and, if any of such gallons sold are subject  to  local  tax  imposed  pursuant  to  article twenty-nine  of  this  chapter, an additional number of cents per gallon sold subject to such local taxes equal to the rates of such taxes.  (b) Every person required to file a return under the preceding section and not subject to the provisions of subdivision  (a)  of  this  section shall,  at  the  time of filing such return, pay to the commissioner the taxes imposed by this article and pursuant  to  article  twenty-nine  of this chapter as well as all other moneys collected by such person acting or  purporting  to  act  under  the provisions of this article or of any local law, ordinance or resolution  adopted  pursuant  to  such  article twenty-nine;  provided,  however,  that  if  the commissioner shall have fixed an effective rate of tax applicable to any or all of  his  or  her receipts,  amusement charges and rents as provided in subdivision (d) of this section,  any  such  person  may  elect,  with  reference  to  such receipts,  amusement  charges  and  rents and subject to approval by the commissioner and to such regulations as the commissioner may promulgate, to pay to the commissioner at the time of filing his or her  return  the total of the following:  (i) The percentage of such receipts, amusement charges and rents fixed by the commissioner as the effective rate of tax applicable thereto;  (ii)  All  taxes  imposed by section eleven hundred ten or pursuant to article twenty-nine of this chapter upon such person's use  of  property or services;  (iii)  All moneys collected by such person, purportedly as tax imposed by this article or pursuant to article twenty-nine of this chapter, with respect to any receipt, gallon of motor fuel or diesel motor fuel  sold, amusement  charge  or  rent not subject to tax, and all moneys collected with respect to any receipt, gallon of such fuel,  amusement  charge  or rent   subject  to  tax,  purportedly  in  accordance  with  a  schedule prescribed by the commissioner but actually  in  excess  of  the  amount stated in such schedule as the amount to be collected;  (iv)  The  amount of the taxes imposed by this article and pursuant to article twenty-nine of  this  chapter  with  respect  to  all  receipts,  amusement  charges  and rents as to which no effective rate of tax fixed by the commissioner is applicable; and  (v)  The  correct  number of cents per gallon of motor fuel and diesel motor fuel sold subject to tax under this article, and, if any  of  such gallons  sold  are  subject  to  local  tax  imposed pursuant to article twenty-nine of this chapter, an additional number of  cents  per  gallon sold subject to such local taxes equal to the rates of such taxes.  (c)  (1)  The  provisions  of subdivisions (a) and (b) of this section shall  not  be  applicable  to:  (i)  a  person  filing  a   short-form, part-quarterly return as defined in paragraph (ii) of subdivision (a) of section eleven hundred thirty-six hereof who, at the time of such filing shall  pay  to the tax commission one-third of the total state and local sales and compensating use taxes  payable  by  the  person  to  the  tax commission  in  the comparable quarter of the immediately preceding year under this article and as taxes imposed pursuant  to  the  authority  of article  twenty-nine with respect to all receipts, amusement charges and rents, or (ii) a person filing a March estimated return as described  in paragraph   (ii)   of   subdivision   (c)   of  section  eleven  hundred thirty-seven-A hereof who, at the time of such filing shall pay  to  the tax commission one-third of the sales and compensating use taxes payable by  such  person  to the tax commission in the comparable quarter of the immediately preceding  year  under  this  article.  Notwithstanding  the preceding  sentence,  for  the  purposes  of  subparagraph  (ii) of this paragraph,  the  sales  and  compensating  use  taxes  payable  in   the comparable  quarter  of the immediately preceding year shall not include taxes imposed by section eleven hundred seven or eleven hundred eight of this article or pursuant to the authority of article twenty-nine of this chapter.  (2) The provisions of  subdivisions  (a)  and  (b)  of  this  section, however,  shall  apply  to  a  person filing a March estimated return as described in paragraph (i) of subdivision (c) of section eleven  hundred thirty-seven-A  hereof  who, at the time of such filing shall pay to the tax commission the sales and compensating use taxes, that are  estimated to  be  payable  by such person for such month of March. Notwithstanding the preceding sentence, for the purposes of this  paragraph,  the  sales and  compensating  use  taxes  that  are estimated to be payable by such person for such month of  March  shall  not  include  taxes  imposed  by section  eleven hundred seven or eleven hundred eight of this article or pursuant to the authority of article twenty-nine of this chapter.  (d) The tax commission is hereby authorized to fix the effective  rate of  tax  applicable  to  any  or  all of the taxable receipts, amusement charges and rents of any person required to collect tax, or of any group or classification of such persons. Any effective rate so fixed shall  be fixed  at  such  a percentage rate as to require, so far as practicable, payment of an amount equal to the total taxes imposed  by  this  article and pursuant to article twenty-nine.  (e) (1) The amount so payable to the tax commission for the period for which  a  return is required to be filed shall be due and payable to the tax commission on the date limited for the filing of the return for such period, without regard to whether a  return  is  filed  or  whether  the return  which is filed correctly shows the amount of receipts, amusement charges or rents or the value of property or services sold or  purchased or the taxes due thereon.  (2) Where the tax commission, in its discretion, deems it necessary to protect  the  revenues to be obtained under this article, it may require any person required to collect any tax imposed by this article  to  file with  it  a  bond,  issued  by  a  surety company authorized to transact business in this state and approved by the superintendent  of  financial  services  of  this  state  as  to  solvency  and responsibility or other security acceptable to the tax commission, in such  amount  as  the  tax commission  may  fix,  to secure the payment or payment over of any tax, penalties or interest due or which may become due from such person under this  article. In the event that the tax commission determines that such person is to file such bond or other security, it shall give  notice  to him  to  that effect specifying the amount of the bond or other security required. Such person shall file such  bond  or  other  security  within thirty  days  after  the  giving  of such notice unless within five days after the giving of such notice he shall request, in writing, a  hearing before  the  tax commission at which the necessity, propriety and amount of the bond or other security shall be determined by the tax commission. Such determination shall be final and  shall  be  complied  with  within thirty  days  after  the  giving  of  notice  thereof. If securities are deposited as security under this paragraph,  such  securities  shall  be kept  in the custody of 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  any sums due from such person pursuant to this article, but no such sale shall be  had  until  after  such  person  shall  have  had opportunity  to  litigate the validity of any tax if he elects so to do. Upon any such sale, the surplus, if any, above the sums due  under  this article shall be returned to such person.   * (3)  As  an additional or alternate requirement, whenever any person fails to collect, truthfully account for, pay  over  the  tax,  or  file returns of the tax as required in this article, the commissioner, in his or  her  discretion  where  he  or  she  deems  necessary to protect the revenues to be obtained under this article, may  give  notice  requiring such  person  to  collect  the  taxes which become collectible after the giving of such notice, to deposit such taxes at least one time per  week in  a  separate  account  in  any  banking  institution  approved by the commissioner and located in this state the deposits in which are insured by any agency of the federal government. Such notice may require  either (i)  that  such  account  be  held  in  trust  for  and  payable  to the commissioner, and that the amount of such tax  shall  be  kept  in  such account until payment over to the commissioner; or (ii) that such person authorize  the  commissioner  to debit such account. Any notice given by the commissioner under this paragraph shall remain  in  effect  until  a notice of cancellation is given by the commissioner. Any such person who fails  to  comply  with  a  notice  issued under this paragraph shall be required to file a bond pursuant to paragraph two of this subdivision.   * NB Effective until December 31, 2024   * (3) As an additional or alternate requirement, whenever  any  person fails  to  collect,  truthfully  account  for, pay over the tax, or file returns of the tax as required in this article, the tax  commission,  in its  discretion  where  it deems necessary to protect the revenues to be obtained under this article, may give notice requiring  such  person  to collect  the  taxes  which  become  collectible after the giving of such notice, to deposit such taxes in any banking institution approved by the tax commission and located in this  state  the  deposits  in  which  are insured  by any agency of the federal government, in a separate account, in trust for and payable to the tax commission, and to keep  the  amount of  such  tax  in such account until payment over to the tax commission. Such notice shall remain in effect until a  notice  of  cancellation  is given by the tax commission.   * NB Effective December 31, 2024  (f)  (1)  Except  as  otherwise provided in this subdivision, a person required to collect tax who files a return required to  be  filed  under section eleven hundred thirty-six of this part for a quarterly or longer  period  shall be allowed a credit against the taxes and fees required to be reported on, and paid with, such return, in an amount  as  determined in  paragraph  two of this subdivision, but only where such person files the  return  on or before the filing due date and pays or pays over with such return the total amount  shown  on  such  return  (determined  with regard  to this subdivision); provided, however, that no credit pursuant to this subdivision shall be allowed for any  person  who  files  or  is required  to  file a return pursuant to paragraph two of subdivision (a) of section eleven hundred thirty-six of this part or any person who pays or is required to pay tax pursuant to section ten of this chapter.  (2) The amount of the credit  authorized  by  paragraph  one  of  this subdivision  shall  be five percent of the amount of taxes and fees (but not including any penalty or interest thereon) required to  be  reported on,  and  paid  or  paid over with, the return but only if the return is filed on or before the filing due date, but not more  than  two  hundred dollars,  for each quarterly or longer period, except that, with respect to returns required to be filed for quarterly or longer  periods  ending on or before the last day of February, two thousand seven, the amount of the  credit  shall be not more than one hundred seventy-five dollars for each such quarterly or longer period.  (3) Notwithstanding any other provision of law: The credit afforded by this subdivision shall be taken only on the return for the quarterly  or longer  period  to  which the credit applies. No refund, carryforward or carryback of any credit, or any interest thereon, and no application for credit or refund of any tax, penalty or interest  shall  be  allowed  or paid under this subdivision. No claim for credit may be filed or allowed under  this  subdivision  other  than  with the original return for such period and any later claim, whether sought to be  taken  on  an  amended return  or  otherwise,  shall  be  void and any allowance erroneous. The commissioner  may,  on  the  commissioner's  own  motion,  correct   any erroneous disallowance of the credit provided by this subdivision.  (4)  Notwithstanding any other provision of law: The credit authorized by this subdivision shall be computed with reference to state and  local taxes and fees described in paragraph two of this subdivision, but shall be  charged  and  allowed  only  against  revenues from taxes imposed by sections eleven hundred five and eleven hundred ten of this article. The commissioner shall account for the aggregate  amounts  of  such  credits monthly  in accordance with the schedule for certifications to the state comptroller in section twelve hundred sixty-one of  this  chapter.  Such aggregate  monthly  amounts  of credits shall be netted against revenues from the taxes under  such  sections  eleven  hundred  five  and  eleven hundred  ten, to ensure that revenues from the taxes and fees imposed by other sections of law  or  by  counties,  cities  and  school  districts pursuant to the authority of article twenty-nine of this chapter are not reduced and are deposited as provided with respect to the taxes and fees imposed   by  such  other  sections  or  as  provided  in  such  article twenty-nine of this chapter with respect to taxes  of  counties,  cities and  school  districts. Any overpayment or underpayment of revenues of a county, city or school district or of revenues from another tax or  fee, on  account of the allowance of credits under this subdivision, shall be adjusted in the manner described in  subdivision  (c)  of  such  section twelve  hundred sixty-one of this chapter. The credit authorized by this subdivision shall not be incorporated into article twenty-nine  of  this chapter  or  into local laws, ordinances or resolutions enacted pursuant to the authority of such article twenty-nine of this chapter.  (5) (i) Where a person takes a credit pursuant to this subdivision  in an  amount  greater than allowed or under circumstances where the credit is not authorized, or (ii) where a person takes  a  credit  pursuant  to  this  subdivision  at  the  time  of  filing a return for a quarterly or longer period and such person later becomes subject to a penalty imposed under subparagraph (vi) of paragraph one of  subdivision  (a)  or  under paragraph two of subdivision (a) of section eleven hundred forty-five of this  part  or is later found guilty of a crime or offense under section eighteen hundred three, eighteen hundred four,  eighteen  hundred  five, eighteen  hundred  six,  or  eighteen hundred seventeen of this chapter, relating to the period for which the return was  filed,  the  amount  of such  credit  taken  in such greater amount, under such circumstances or for such period shall be disallowed and the person shall be required  to pay, as tax, an amount equal to the credit so taken, at such time and in such  manner  as prescribed by the commissioner; provided, however, that such amount shall be paid and disposed of in the same  manner  as  other revenues  from  this article, and may be determined, assessed, collected and enforced in the same manner as the tax imposed by this article.