2023 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.