2023 New York Laws › TAX - Tax › Article 37 - Crimes and Other Offenses, Seizures and Forfeitures › Part 3 - Other Taxes › 1817 - Sales and Compensating Use Taxes.

§ 1817. Sales and compensating use taxes.-- (a) Any person required to
obtain   a   certificate  of  authority  under  section  eleven  hundred
thirty-four of this chapter who, without possessing a valid  certificate
of authority, willfully (1) sells tangible personal property or services
subject  to  tax,  receives  amusement  charges or operates a hotel, (2)
purchases or sells tangible personal property for resale, or  (3)  sells
petroleum  products; and any person who fails to surrender a certificate
of  authority  as  required  by  such  article  shall  be  guilty  of  a
misdemeanor.
(b)  Any  person  required  to obtain a certificate of authority under
section eleven hundred thirty-four of this chapter who within five years
after a determination by the commissioner, pursuant to such section,  to
suspend, revoke or refuse to issue a certificate of authority has become
final,  and  without  possession of a valid certificate of authority (1)
sells tangible personal property or services subject  to  tax,  receives
amusement  charges  or operates a hotel, (2) purchases or sells tangible
personal property for resale, or (3) sells petroleum products, shall  be
guilty  of  a  misdemeanor. It shall be an affirmative defense that such
person  performed  the  acts  described  in  this  subdivision   without
knowledge  of such determination. Any person who violates a provision of
this subdivision, upon conviction, shall be subject to  a  fine  in  any
amount  authorized  by  this  article,  but  not  less than five hundred
dollars, in addition to any other penalty provided by law.
(c) Any person who willfully fails to file  a  notice  of  a  show  as
required by article twenty-eight of this chapter or who willfully rents,
leases  or  grants  a license to use space for a show or operates a show
without obtaining a permit pursuant to paragraph two of subdivision  (b)
of section eleven hundred thirty-four of this chapter shall be guilty of
a misdemeanor.
(d)  Any  person  (1) who willfully fails to charge separately the tax
imposed under article twenty-eight of this chapter or to state such  tax
separately   on  any  bill,  statement,  memorandum,  receipt  or  other
statement issued or employed by  him  or  her  upon  which  the  tax  is
required  to  be  stated  separately  as  provided in subdivision (a) of
section eleven hundred thirty-two of this  chapter;  or  (2)  who  shall
refer  or  cause  reference  to  be made to such tax in a form or manner
other than that required by such article twenty-eight, shall  be  guilty
of  a  misdemeanor. Provided however, that a person who has paid the tax
on behalf of a retail  purchaser  as  provided  in  subdivision  (d)  of
section  eleven hundred thirty-three of this chapter shall not be guilty
of a misdemeanor for failure to separately charge  the  tax  imposed  by
such article twenty-eight.
(e)  Any  person willfully failing to file a bond or other security or
deposit taxes in any banking institution where such filing or deposit is
required pursuant to  the  provisions  of  paragraph  two  or  three  of
subdivision  (e)  of section eleven hundred thirty-seven of this chapter
shall be guilty of a misdemeanor.
(f) 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 (1) the prepaid tax imposed by section eleven
hundred two  of  this  chapter  has  not  been  assumed  or  paid  by  a
distributor registered as such under article twelve-A of this chapter or
(2)  the  prepaid  tax  imposed  by  section  eleven hundred two of this
chapter was required to have been passed through to him and has not been
included in the cost of such fuel to  him,  shall  in  either  case,  be
guilty of a class E felony. For purposes of this subdivision, such owner
shall  willfully  and knowingly have in his custody, possession or under
his control any motor fuel or diesel motor fuel on which  such  tax  has

not  been assumed or paid by a distributor registered as such where such
owner has knowledge of the requirement that such tax be paid and  where,
to  his  knowledge,  such  tax  has  not  been  assumed  or paid by such
registered  distributor  on  such  motor fuel or diesel motor fuel. Such
owner shall willfully and knowingly have in his custody,  possession  or
under  his  control motor fuel or diesel motor fuel on which such tax is
required to have been passed through to him and has not been included in
the cost to him where such owner has knowledge of the  requirement  that
such  tax  be passed through and where to his knowledge such tax has not
been so included.
(g) Any person who willfully fails to keep  any  records  required  by
article twenty-eight of this chapter shall be guilty of a misdemeanor.
(h)  The  penalties  provided  for  in this section shall not preclude
prosecution pursuant to the  penal  law  with  respect  to  the  willful
failure  of any person to pay over to the state any sales tax imposed by
section eleven hundred four, eleven hundred five, eleven hundred  seven,
eleven  hundred  eight  or eleven hundred nine of this chapter or by any
local law adopted by any city or county pursuant to article  twenty-nine
of  this  chapter, whenever such person has been required to collect and
has collected any such sales tax. In  any  such  prosecution  under  the
penal  law,  a person who has been required to collect and has collected
any such tax shall be deemed to have acted in a fiduciary character with
respect to the state or a political subdivision  thereof,  and  the  tax
collected  shall  be deemed to have been entrusted to such person by the
state or a political subdivision thereof.
(i)  Any  entertainment   promoter   who   willfully   authorizes   an
entertainment  vendor,  to  whom  such  promoter  has either directly or
indirectly rented, leased, granted a license to use or under  any  other
arrangement  made  space  available  in  order  for  such vendor to make
taxable sales of tangible personal property at an  entertainment  event,
without first requiring such vendor to obtain a certificate of authority
or  who  willfully fails to obtain an entertainment promoter certificate
as required under article twenty-eight of this chapter shall  be  guilty
of a misdemeanor.
(j)  Any person described in subdivision (a) of section eleven hundred
forty-two-A  of  this  chapter  who  willfully  fails  to  include   all
information  required under such section on a ticket or other memorandum
as described in such section shall be guilty of a misdemeanor.
(k) Any owner of a place of business selling cigarettes at retail  who
shall willfully and knowingly have in such owner's custody or possession
or  under  such  owner's control any cigarettes on which (1) the prepaid
tax imposed by section eleven hundred three of this chapter has not been
assumed or paid by an agent licensed as such  under  article  twenty  of
this  chapter  or  (2) the prepaid tax imposed by section eleven hundred
three of this chapter was required to have been passed through  to  such
owner  and  has not been included in the cost of such cigarettes to such
owner shall, in either case,  be  guilty  of  a  misdemeanor.  Provided,
however,  if  the  amount of cigarettes is twenty thousand or more, such
owner shall be guilty  of  a  class  E  felony.  For  purposes  of  this
subdivision,  such  owner  shall  willfully  and  knowingly have in such
owner's  custody  or  possession  or  under  such  owner's  control  any
cigarettes  on  which  such tax has not been assumed or paid by an agent
licensed as  such  under  such  article  twenty  where  such  owner  has
knowledge of the requirement that such tax be assumed or paid and where,
to such owner's knowledge, such tax has not been assumed or paid by such
an  agent  on  such cigarettes. Such owner shall willfully and knowingly
have in such owner's custody or possession or under such owner's control
cigarettes on which such tax is required to have been passed through  to

such  owner  and  has  not been included in the cost to such owner where
such owner has knowledge of the requirement  that  such  tax  be  passed
through  and  where  to  such owner's knowledge such tax has not been so
included.
(l)   Any   person  who  falsely  or  fraudulently  makes,  alters  or
counterfeits  any  stamp  prescribed  by  the  commissioner  under   the
provisions  of  article  twenty-eight  or  pursuant  to the authority of
article twenty-nine of this chapter, or causes or procures to be falsely
or fraudulently made,  altered  or  counterfeited  any  such  stamp,  or
knowingly and willfully utters, purchases, passes or tenders as true any
such  false,  altered or counterfeited stamp, or knowingly and willfully
possesses any cigarettes in packages bearing any such false, altered  or
counterfeited  stamp,  and any person who knowingly and willfully makes,
causes to be made, purchases or  receives  any  device  for  forging  or
counterfeiting  any  stamp  prescribed  by  the  commissioner  under the
provisions of article twenty-eight  or  pursuant  to  the  authority  of
article  twenty-nine  of  this  chapter,  or who knowingly and willfully
possesses any such device, shall be guilty of a class E felony. For  the
purposes  of  this  subdivision,  the  words  "stamp  prescribed  by the
commissioner" shall include a stamp, impression or  imprint  made  by  a
metering  machine,  the  design  of  which  has  been  approved  by  the
commissioner.
(m) All of the provisions of this section shall apply for purposes  of
any  taxes  administered by the commissioner and imposed pursuant to the
authority of article twenty-nine of this chapter and for the purposes of
any taxes imposed by article twenty-eight-A of this chapter.  References
in subdivisions (f), (k), and (l) of this section to taxes imposed by or
pursuant to the authority of article twenty-eight or twenty-nine of this
chapter  include  the  taxes  required to be prepaid pursuant to section
eleven hundred two or eleven hundred three of this chapter.
(n) (1) Every person engaged in the retail sale of motor  fuel  and/or
diesel  motor fuel or a distributor of such fuels, as defined in article
twelve-A of this chapter, shall comply with the  provisions  of  section
three  hundred  ninety-two-i of the general business law by reducing the
prices charged for motor fuel and diesel motor fuel in an  amount  equal
to  any  reduction  in  taxes  prepaid  by the distributor or imposed on
retail customers resulting from computing  sales  and  compensating  use
taxes at a cents per gallon rate pursuant to the provisions of paragraph
two  of  subdivision (e) and subdivision (m) of section one thousand one
hundred eleven of this chapter.
(2) The commissioner shall  monitor  the  prices  charged  by  persons
engaged  in  the  retail  sale  or distribution of motor fuel and diesel
motor fuel.
(3) Upon a finding by the commissioner that a person  engaged  in  the
retail   sale  of  motor  fuel  and/or  diesel  motor  fuel  or  in  the
distribution of such fuels has violated the provisions of section  three
hundred ninety-two-i of the general business law, the commissioner shall
provide  notice  of  such violation to such person and hold a hearing on
such violation, with an opportunity for the accused  to  be  heard,  not
less  than  ten  days  after  notice is provided. A violation of section
three hundred ninety-two-i of the general business law shall subject the
person violating such section to a civil penalty of up to five  thousand
dollars for each day such violation occurs.