2023 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.