§ 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.

Ask a legal question, get an answer ASAP!
Click here to chat with a lawyer about your rights.

(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.