A. 1983 2
however, if a surety bond is cancelled prior to expiration, the [tax
commission] COMMISSIONER, after considering all the relevant circum-
stances, may make such other arrangements and require the filing of such
other bond or other security as [it] THE COMMISSIONER deems appropriate.
Provided, further, a registration may be cancelled or suspended prior to
a hearing for the transfer of such registration without the prior writ-
ten approval of the [state tax commission] COMMISSIONER. A distributor
shall immediately inform the department, in [writing] THE MANNER
PRESCRIBED BY THE COMMISSIONER, of any change in its address and, if the
distributor is a corporation [or], partnership OR LIMITED LIABILITY
COMPANY, the distributor shall immediately inform the department, in
[writing] THE MANNER PRESCRIBED BY THE COMMISSIONER, of any change in
its officers, directors, MEMBERS, MANAGERS or partners or their resi-
dence addresses as shown in its application for registration AND ANY
CHANGE IN OWNERSHIP INTEREST OR PROFIT DISTRIBUTION PERCENTAGE CAUSING
ANY PERSON TO HAVE, OR NO LONGER HAVE, AN OWNERSHIP INTEREST OF TWENTY
PERCENT OR MORE IN SUCH DISTRIBUTOR (MEASURED IN THE AGGREGATE, AND
WHETHER DIRECT OR INDIRECT), OR PROFIT DISTRIBUTION PERCENTAGE IF
DIFFERENT THAN THE OWNERSHIP PERCENTAGE AND SUCH PROFIT DISTRIBUTION
PERCENTAGE IS TWENTY PERCENT OR MORE.
S 2. Subdivision 5 of section 283-a of the tax law, as amended by
chapter 560 of the laws of 1993, is amended to read as follows:
5. A license shall not be cancelled or suspended nor shall an applica-
tion for a license be refused unless the licensee or applicant for a
license has had an opportunity for a hearing, provided, however, that an
application for a license may be denied without a prior hearing.
Provided, further, a license may be cancelled or suspended without a
prior hearing, for failure to file a return or report within ten days of
the date prescribed for filing under this article or for nonpayment of
any sums due pursuant to this article or article twenty-eight or twen-
ty-nine of this chapter with respect to motor fuel if the licensee shall
have failed to file such return or report or pay such sums within ten
days after the date the demand therefor is sent by registered or certi-
fied mail to the address of the transporter given in his application for
a license, or an address substituted therefor as in this subdivision. A
license may also be cancelled or suspended prior to a hearing for the
failure to continue to maintain in full force and effect at all times
the bond or other security filed with the commissioner. Provided, howev-
er, if a surety bond is cancelled prior to expiration, the commissioner,
after considering all the relevant circumstances, may make such other
arrangements and require the filing of such other bond or other security
as the commissioner deems appropriate. Provided, further, a license may
be cancelled or suspended prior to a hearing for the transfer of such
license. A transporter shall immediately inform the department, in
[writing] THE MANNER PRESCRIBED BY THE COMMISSIONER, of any change in
its address and, if the transporter is a corporation [or], partnership
OR LIMITED LIABILITY COMPANY, the transporter shall immediately inform
the department, in [writing] THE MANNER PRESCRIBED BY THE COMMISSIONER,
of any change in its officers, directors, MANAGERS, MEMBERS or partners
or their residence addresses as shown in its application for a license
AND ANY CHANGE IN OWNERSHIP INTEREST OR PROFIT DISTRIBUTION PERCENTAGE
CAUSING ANY PERSON TO HAVE, OR NO LONGER HAVE, AN OWNERSHIP INTEREST OF
TWENTY PERCENT OR MORE IN SUCH TRANSPORTER (MEASURED IN THE AGGREGATE,
AND WHETHER DIRECT OR INDIRECT), OR PROFIT DISTRIBUTION PERCENTAGE IF
DIFFERENT THAN THE OWNERSHIP PERCENTAGE AND SUCH PROFIT DISTRIBUTION
PERCENTAGE IS TWENTY PERCENT OR MORE.
A. 1983 3
S 3. Subdivision 5 of section 283-b of the tax law, as added by chap-
ter 276 of the laws of 1986, is amended to read as follows:
5. A license shall not be cancelled or suspended nor shall an applica-
tion for a license be refused unless the licensee or applicant for a
license has had an opportunity for a hearing, provided, however, that an
application for a license may be denied without a prior hearing.
Provided, further, a license may be cancelled or suspended without a
prior hearing, for failure to file a return or report within ten days of
the date prescribed for filing under this article or nonpayment of any
sums due pursuant to this article or article twenty-eight or twenty-nine
of this chapter with respect to motor fuel if the licensee shall have
failed to file such return or report or pay taxes within ten days after
the date the demand therefor is sent by registered or certified mail to
the address of the terminal operator given in his application for a
license, or an address substituted therefor as in this subdivision. A
license may be cancelled or suspended prior to a hearing for the failure
to continue to maintain in full force and effect at all times the
required bond or other security filed with the [tax commission] COMMIS-
SIONER. Provided, however, if a surety bond is cancelled prior to expi-
ration, the [tax commission] COMMISSIONER, after considering all the
relevant circumstances, may make such other arrangements and require the
filing of such other bond or other security as [it] THE COMMISSIONER
deems appropriate. Provided, further, a license may be cancelled or
suspended prior to a hearing for the transfer of such license. A termi-
nal operator shall immediately inform the department, in [writing] THE
MANNER PRESCRIBED BY THE COMMISSIONER, of any change in its address and,
if the terminal operator is a corporation [or], partnership OR LIMITED
LIABILITY COMPANY, the terminal operator shall immediately inform the
department, in [writing] THE MANNER PRESCRIBED BY THE COMMISSIONER, of
any change in its officers, directors, MANAGERS, MEMBERS or partners or
their residence addresses as shown in its application for a license AND
ANY CHANGE IN OWNERSHIP INTEREST OR PROFIT DISTRIBUTION PERCENTAGE CAUS-
ING ANY PERSON TO HAVE, OR NO LONGER HAVE, AN OWNERSHIP INTEREST OF
TWENTY PERCENT OR MORE IN SUCH TERMINAL OPERATOR (MEASURED IN THE AGGRE-
GATE, AND WHETHER DIRECT OR INDIRECT), OR PROFIT DISTRIBUTION PERCENTAGE
IF DIFFERENT THAN THE OWNERSHIP PERCENTAGE AND SUCH PROFIT DISTRIBUTION
PERCENTAGE IS TWENTY PERCENT OR MORE.
S 4. Paragraph (b) of subdivision 1 of section 288 of the tax law, as
amended by chapter 44 of the laws of 1985, is amended to read as
follows:
(b) The [tax commission] COMMISSIONER shall determine the liability
for the penalty imposed by subdivision two of section two hundred eight-
y-nine-b OF THIS ARTICLE of any officer, director, shareholder or
employee of a corporation or of a dissolved corporation, member or
employee of a partnership OR A LIMITED LIABILITY COMPANY or employee of
an individual proprietorship. The [tax commission] COMMISSIONER shall
also determine the amount of such penalty. All of the provisions of this
section shall apply to any determination made pursuant to this paragraph
and for such purpose the term distributor, as used in subdivisions four,
five and six of this section, shall also mean and include such officer,
director, shareholder, employee, PARTNER, MANAGER or member as the case
may be.
S 5. Subdivisions 2 and 3 of section 288 of the tax law, subdivision 2
as amended and subdivision 3 as added by chapter 44 of the laws of 1985,
are amended to read as follows:
A. 1983 4
2. The [state tax commission] COMMISSIONER may determine the amount of
tax due at any time if such distributor (i) has not registered as
required by this article, (ii) fails to file a return, (iii) files a
willfully false or fraudulent return with intent to evade the tax, or
(iv) fails to comply with section two hundred eighty-three of this arti-
cle in not informing the department[, in writing,] IN THE MANNER
PRESCRIBED BY THE COMMISSIONER of any change in its address and, if a
corporation, LIMITED LIABILITY COMPANY or partnership, in not informing
the department[, in writing], IN THE MANNER PRESCRIBED BY THE COMMIS-
SIONER, of any change in its officers, directors, MANAGERS, MEMBERS or
partners or their residence addresses as shown in its application for
registration AND ANY CHANGE IN OWNERSHIP INTEREST OR PROFIT DISTRIBUTION
PERCENTAGE CAUSING ANY PERSON TO HAVE, OR NO LONGER HAVE, AN OWNERSHIP
INTEREST OF TWENTY PERCENT OR MORE IN SUCH DISTRIBUTOR (MEASURED IN THE
AGGREGATE, AND WHETHER DIRECT OR INDIRECT), OR PROFIT DISTRIBUTION
PERCENTAGE IF DIFFERENT THAN THE OWNERSHIP PERCENTAGE AND SUCH PROFIT
DISTRIBUTION PERCENTAGE IS TWENTY PERCENT OR MORE AND WHETHER SUCH
PERSON WAS UNDER A DUTY TO ACT FOR SUCH REGISTRANT.
3. If a distributor shall inform the department, in [writing] THE
MANNER PRESCRIBED BY THE COMMISSIONER, of any change in its address and,
if a corporation, LIMITED LIABILITY COMPANY or partnership shall inform
the department, in [writing] THE MANNER PRESCRIBED BY THE COMMISSIONER,
of any change in its officers, directors, MANAGERS, MEMBERS or partners
or their residence addresses as shown in its application for registra-
tion, AND ANY CHANGE IN OWNERSHIP INTEREST OR PROFIT DISTRIBUTION
PERCENTAGE CAUSING ANY PERSON TO HAVE, OR NO LONGER HAVE, AN OWNERSHIP
INTEREST OF TWENTY PERCENT OR MORE IN SUCH DISTRIBUTOR (MEASURED IN THE
AGGREGATE, AND WHETHER DIRECT OR INDIRECT), OR PROFIT DISTRIBUTION
PERCENTAGE IF DIFFERENT THAN THE OWNERSHIP PERCENTAGE AND SUCH PROFIT
DISTRIBUTION PERCENTAGE IS TWENTY PERCENT OR MORE, AND WHETHER SUCH
PERSON WAS UNDER A DUTY TO ACT FOR SUCH REGISTRANT, the determination of
the amount of tax due may be made at any time within three years after
such information is [received] FILED WITH THE DEPARTMENT IN THE MANNER
PRESCRIBED BY THE COMMISSIONER.
S 6. Subdivision 2 of section 289-b of the tax law, as amended by
chapter 276 of the laws of 1986, is amended to read as follows:
2. Any officer, director, shareholder or employee of a corporation or
of a dissolved corporation, [any] employee of a partnership, MANAGER,
MEMBER OR EMPLOYEE OF A LIMITED LIABILITY COMPANY, or [any] employee of
an individual proprietorship, who as such officer, director,
shareholder, MANAGER, MEMBER or employee is under a duty to act for such
corporation, partnership, LIMITED LIABILITY COMPANY or proprietorship in
complying with any requirement of this article, and any member of a
partnership (BUT NOT INCLUDING A LIMITED PARTNER UNLESS THE LIMITED
PARTNER IS ACTIVE IN THE OPERATION OF THE 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] COMMISSIONER determines that such
failure was due to reasonable cause and not due to willful neglect, [it]
THE COMMISSIONER 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.
A. 1983 5
S 7. Subdivision 1 of section 1131 of the tax law, as amended by chap-
ter 576 of the laws of 1994, is amended to read as follows:
(1) "Persons required to collect tax" or "person required to collect
any tax imposed by this article" shall include: every vendor of tangible
personal property or services; every recipient of amusement charges; and
every operator of a hotel. Said terms shall also include any officer,
director or employee of a corporation or of a dissolved corporation, any
employee of a partnership, any employee [or], MEMBER OR manager of a
limited liability company, or any employee of an individual proprietor-
ship who as such officer, director, employee, MEMBER or manager is under
a duty to act for such corporation, partnership, limited liability
company or individual proprietorship in complying with any requirement
of this article; and any member of a partnership [or limited liability
company] (BUT NOT INCLUDING A LIMITED PARTNER UNLESS THE LIMITED PARTNER
IS ACTIVE IN THE OPERATION OF THE PARTNERSHIP). Provided, however, that
any person who is a vendor solely by reason of clause (D) or (E) of
subparagraph (i) of paragraph [(8)] EIGHT of subdivision (b) of section
eleven hundred one OF THIS ARTICLE shall not be a "person required to
collect any tax imposed by this article" until twenty days after the
date by which such person is required to file a certificate of registra-
tion pursuant to section eleven hundred thirty-four OF THIS PART.
S 8. Section 1136 of the tax law is amended by adding a new subdivi-
sion (j) to read as follows:
(J) THE COMMISSIONER MAY REQUIRE ANY PERSON REGISTERED OR REQUIRED TO
BE REGISTERED WITH THE COMMISSIONER UNDER SECTION ELEVEN HUNDRED THIR-
TY-FOUR OF THIS PART TO DISCLOSE, ON A REPORT, RETURN, APPLICATION OR
FORM (OR ANY COMBINATION OF THESE), INFORMATION INCLUDING, BUT NOT
LIMITED TO, THE FOLLOWING: (1) FOR ANY LEGAL ENTITY OTHER THAN A PUBLIC-
LY TRADED CORPORATION, THE NAME OF, AND IDENTIFYING INFORMATION FOR,
EVERY PERSON WITH AN OWNERSHIP INTEREST OF TWENTY PERCENT OR MORE (MEAS-
URED IN THE AGGREGATE, AND WHETHER DIRECT OR INDIRECT) IN SUCH PERSON
REGISTERED OR REQUIRED TO BE REGISTERED, OR PROFIT DISTRIBUTION PERCENT-
AGE IF DIFFERENT THAN THE OWNERSHIP PERCENTAGE AND SUCH PROFIT DISTRIB-
UTION PERCENTAGE IS TWENTY PERCENT OR MORE; (2) FOR ANY LEGAL ENTITY
OTHER THAN A PUBLICLY TRADED CORPORATION, ANY CHANGE IN OWNERSHIP INTER-
EST CAUSING ANY PERSON TO HAVE, OR NO LONGER HAVE, AN OWNERSHIP INTEREST
OR PROFIT DISTRIBUTION PERCENTAGE OF TWENTY PERCENT OR MORE IN SUCH
PERSON REGISTERED OR REQUIRED TO BE REGISTERED, AND THE NAME OF, AND
IDENTIFYING INFORMATION FOR, ANY SUCH PERSON HAVING, OR NO LONGER
HAVING, SUCH AN OWNERSHIP INTEREST OR PROFIT DISTRIBUTION PERCENTAGE;
(3) FOR A CORPORATION, THE NAME OF, AND IDENTIFYING INFORMATION FOR, ANY
PRESIDENT, VICE PRESIDENT, CHIEF FINANCIAL OFFICER, CHIEF EXECUTIVE
OFFICER AND SECRETARY OR TREASURER OF SUCH CORPORATION; (4) FOR A CORPO-
RATION, ANY CHANGE IN ANY OF THE OFFICERS LISTED IN PARAGRAPH THREE OF
THIS SUBDIVISION AND THE NAME OF, AND IDENTIFYING INFORMATION FOR, ANY
NEW OFFICER WITH ANY SUCH TITLE; (5) FOR A LIMITED LIABILITY COMPANY OR
PARTNERSHIP, THE NAME OF, AND IDENTIFYING INFORMATION FOR, ANY PERSON
DESIGNATED AS THE TAX MATTERS PARTNER OR PARTNERS OR TREATED AS SUCH
UNDER THE UNITED STATES INTERNAL REVENUE CODE OR OTHERWISE DESIGNATED BY
THE LIMITED LIABILITY COMPANY OR PARTNERSHIP AS THE INDIVIDUAL OR INDI-
VIDUALS RESPONSIBLE FOR TAX ISSUES; (6) FOR A LIMITED LIABILITY COMPANY,
THE NAME OF, AND IDENTIFYING INFORMATION FOR, EVERY PERSON DESIGNATED AS
A MANAGER OF THE LIMITED LIABILITY COMPANY BY OPERATION OF LAW OR UNDER
THE LIMITED LIABILITY COMPANY'S OPERATING AGREEMENT; AND (7) FOR A PART-
NERSHIP OR LIMITED LIABILITY COMPANY, ANY CHANGE IN ANY PERSONS REQUIRED
TO BE DISCLOSED FOR SUCH PARTNERSHIP OR LIMITED LIABILITY COMPANY PURSU-
A. 1983 6
ANT TO PARAGRAPH FIVE OR SIX OF THIS SUBDIVISION AND THE NAME OF, AND
IDENTIFYING INFORMATION FOR, SUCH PERSONS. THE COMMISSIONER SHALL
PRESCRIBE THE FORM OF SUCH REPORT, RETURN, APPLICATION OR FORM AND SHALL
INDICATE WHEN AND HOW IT IS TO BE FILED. PROVIDED, HOWEVER, THAT SUCH
DISCLOSURE SHALL NOT BE REQUIRED TO BE UPDATED MORE FREQUENTLY THAN
QUARTERLY AND THE COMMISSIONER SHALL ALLOW ANY PERSON WITH RESPECT TO
WHOM SUCH DISCLOSURE IS REQUIRED TO BE MADE TO MAKE THE REQUIRED DISCLO-
SURE AT THEIR OWN INITIATIVE.
S 9. Subparagraph (B) of paragraph 3 of subdivision (a) of section
1138 of the tax law, as amended by chapter 456 of the laws of 1998, is
amended to read as follows:
(B) The liability, pursuant to subdivision (a) of section eleven
hundred thirty-three of this [article] PART, of any officer, director or
employee of a corporation or of a dissolved corporation, member or
employee of a partnership, MEMBER, MANAGER OR EMPLOYEE OF A LIMITED
LIABILITY COMPANY or employee of an individual proprietorship who as
such officer, director, employee, MANAGER, or member is under a duty to
act for such corporation, partnership, LIMITED LIABILITY COMPANY or
individual proprietorship in complying with any requirement of this
article for the tax imposed, collected or required to be collected, or
for the tax required to be paid or paid over to the [tax commission]
COMMISSIONER under this article, and the amount of such tax liability
(whether or not a return is filed under this article, whether or not
such return when filed is incorrect or insufficient, or where the tax
shown to be due on the return filed under this article has not been paid
or has not been paid in full) shall be determined by the [tax commis-
sion] COMMISSIONER in the manner provided for in paragraphs one and two
of this subdivision. Such determination shall be an assessment of the
tax and liability for the tax with respect to such person unless such
person, within ninety days after the giving of notice of such determi-
nation, shall apply to the division of tax appeals for a hearing. If
such determination is identical to or arises out of a previously issued
determination of tax of the corporation, dissolved corporation, partner-
ship, LIMITED LIABILITY COMPANY or individual proprietorship for which
such person is under a duty to act, an application filed with the divi-
sion of tax appeals on behalf of the corporation, dissolved corporation,
partnership, LIMITED LIABILITY COMPANY or individual proprietorship
shall be deemed to include any and all subsequently issued personal
determinations and a separate application to the division of tax appeals
for a hearing shall not be required. The [tax commission] COMMISSIONER
may, nevertheless, of [its] THE COMMISSIONER'S own motion, redetermine
such determination of tax or liability for tax. Where the [tax commis-
sion] COMMISSIONER determines or redetermines that the amount of tax
claimed to be due from a vendor of tangible personal property or
services, a recipient of amusement charges, or an operator of a hotel is
erroneous or excessive in whole or in part, [it] THE COMMISSIONER shall
redetermine the amount of tax properly due from any such person as a
person required to collect tax with respect to such vendor, recipient,
or operator, and if such amount is less than the amount of tax for which
such person would have been liable in the absence of such determination
or redetermination, [it] THE COMMISSIONER shall reduce such liability
accordingly. Furthermore, the [tax commission] COMMISSIONER may, of
[its] THE COMMISSIONER'S own motion, abate on behalf of any such person,
any part of the tax determined to be erroneous or excessive whether or
not such tax had become finally and irrevocably fixed with respect to
such person but no claim for abatement may be filed by any such person.
A. 1983 7
The provisions of this paragraph shall not be construed to limit in any
manner the powers of the attorney general under subdivision (a) of
section eleven hundred forty-one OF THIS PART or the powers of the [tax
commission] COMMISSIONER to issue a warrant under subdivision (b) of
such section ELEVEN HUNDRED FORTY-ONE against any person whose liability
has become finally and irrevocably fixed.
S 10. Subdivision (b) of section 1147 of the tax law, as amended by
chapter 412 of the laws of 1986, is amended to read as follows:
(b) The provisions of the civil practice law and rules or any other
law relative to limitations of time for the enforcement of a civil reme-
dy shall not apply to any proceeding or action taken by the state or the
[tax commission] COMMISSIONER to levy, appraise, assess, determine or
enforce the collection of any tax or penalty provided by this article.
However, except in the case of a willfully false or fraudulent return
with intent to evade the tax no assessment of additional tax shall be
made after the expiration of more than three years from the date of the
filing of a return; provided, however, that where no return has been
filed as provided by law, the tax may be assessed at any time.
PROVIDED, FURTHER, THAT AN ASSESSMENT AGAINST ANY PERSON WITH RESPECT TO
WHOM A DISCLOSURE WAS REQUIRED TO BE FILED OR MADE PURSUANT TO SUBDIVI-
SION (J) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART WHO WAS UNDER
A DUTY TO ACT FOR A VENDOR, RECIPIENT OF AMUSEMENT CHARGES, OR OPERATOR
OF A HOTEL AS DESCRIBED IN SUBPARAGRAPH (B) OF PARAGRAPH THREE OF SUBDI-
VISION (A) OF SECTION ELEVEN HUNDRED THIRTY-EIGHT OF THIS PART MAY BE
MADE WITHIN SIX YEARS FROM THE LATER OF THE DUE DATE OR THE FILING DATE
OF THE QUARTERLY RETURN PERTAINING TO THE TAX LIABILITIES AT ISSUE IF
THE REQUIRED DISCLOSURE WAS NOT TIMELY FILED OR MADE. Where a purchaser
furnishes a vendor with a false or fraudulent certificate of resale or
other exemption certificate or other document with intent to evade the
tax, the tax may be assessed against such purchaser at any time. For
purposes of this subdivision, a return filed before the last day
prescribed by law or regulation for the filing thereof or before the
last day of any extension of time for the filing thereof shall be deemed
to be filed on such last day. [Notwithstanding any other provision of
this article, if the time to assess additional tax would otherwise have
expired on or before December nineteenth, nineteen hundred sixty-nine,
the time to assess such additional tax is hereby extended to and includ-
ing December twentieth, nineteen hundred sixty-nine, except that it may
be further extended by a taxpayer's consent in writing as provided in
subdivision (c) hereof.]
S 11. This act shall take effect on the first day of the quarterly
period, as described in subdivision (b) of section 1136 of the tax law,
next commencing at least ninety days after the date this act shall have
become a law and shall apply to quarterly periods beginning on or after
such date.