N.Y. Tax Law 480-A – Retail dealer and vending machine registration
§ 480-a. Retail dealer and vending machine registration. 1. (a) On and after January first, nineteen hundred ninety-one, every retail dealer shall publicly display a certificate of registration from the department in each place of business in this state through which it sells cigarettes or tobacco products at retail. A retail dealer who has no regular place of business shall publicly display such certificate on each of its carts, stands, trucks or other merchandising devices through which it sells cigarettes or tobacco products in this state.
Terms Used In N.Y. Tax Law 480-A
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Person: includes an individual, copartnership, limited liability company, society, association, corporation, joint stock company, and any combination of individuals and also an executor, administrator, receiver, trustee or other fiduciary. See N.Y. Tax Law 470
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Recourse: An arrangement in which a bank retains, in form or in substance, any credit risk directly or indirectly associated with an asset it has sold (in accordance with generally accepted accounting principles) that exceeds a pro rata share of the bank's claim on the asset. If a bank has no claim on an asset it has sold, then the retention of any credit risk is recourse. Source: FDIC
- Sale: means any transfer of title or possession or both, exchange or barter, conditional or otherwise, in any manner or by any means whatever or any agreement therefor. See N.Y. Tax Law 470
- Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.
(b) Every person who owns or, if the owner is not the operator, then any person who operates one or more vending machines through which cigarettes or tobacco products are sold in this state, regardless of whether located on the premises of the vending machine owner or, if the owner is not the operator, then the premises of the operator or the premises of any other person, must register each such vending machine with the department. On and after January first, nineteen hundred ninety-one, a vending machine registration certificate, in such form as may be prescribed by the commissioner of taxation and finance, shall be affixed to each vending machine through which cigarettes or tobacco products are sold in this state.
(c) Registrations of retail dealers and vending machines shall be valid for a calendar year period upon payment of the fee prescribed in subdivision two of this section and must be renewed each year upon payment of such fee. A registration shall not be assignable or transferable. In the case of retail dealers a registration certificate shall be surrendered to the department immediately upon the retail dealer's ceasing to do business as specified in the registration certificate, or in the event that such business never commenced.
(d) (i) The commissioner shall not register retail dealers or such registration may be cancelled or suspended by the commissioner upon notification that the applicant or retail dealer has been convicted in a criminal proceeding of a violation of subdivision five of § 260.20 of the penal law or as directed by an enforcement officer pursuant to Article 13-F of the public health law. The clerk of the court shall promptly report all criminal convictions under subdivision five of § 260.20 of the penal law to the commissioner, together with a direction to the commissioner to cancel such registration or to suspend it for a specified period of time. Anything to the contrary in any law notwithstanding, retail dealers shall have no right to a hearing under this chapter and shall have no right to commence a court action or proceeding or to any other legal recourse against the commissioner with respect to any action taken by the commissioner under this paragraph, provided nothing herein shall be construed to deny retail dealers a hearing under Article 13-F of the public health law or to prohibit retail dealers from commencing a court action or proceeding against an enforcement officer as defined in § 1399 of the public health law.
(ii) Anything to the contrary in any law notwithstanding, the commissioner shall provide upon request to an enforcement officer as defined in § 1399 of the public health law such registration information as is relevant and necessary for the implementation of Article 13-F of the public health law.
(e) The commissioner may refuse to register as a retail dealer or may revoke the registration of a retail dealer where the applicant's or retail dealer's place of business is at the same premises as that of a retail dealer whose retail dealer registration has been revoked and where such revocation is still in effect, unless the applicant or retail dealer provides the commissioner with adequate documentation demonstrating that such applicant or retail dealer acquired the premises or business through an arm's length transaction as defined in this paragraph and that the sale or lease was not conducted, in whole or in part, for the purpose of permitting the original registrant to avoid the effect of the previous revocation for the same premises. For purposes of this paragraph, "arm's length transaction" means a sale of a fee or all undivided interests in real property, or lease of any part thereof, or a sale of a business, in good faith and for valuable consideration, that reflects the fair market value of such real property or lease, or business, in the open market, between two informed and willing parties, where neither is under any compulsion to participate in the transaction, unaffected by any unusual conditions indicating a reasonable possibility that the sale or lease was made for the purpose of permitting the original registrant to avoid the effect of the previous revocation for the same premises. The following sales or leases shall be presumed not to be arm's length transactions unless adequate documentation is provided demonstrating that the sale or lease was not conducted, in whole or in part, for the purpose of permitting the original registrant to avoid the effect of the previous revocation for the same premises:
(i) a sale between relatives; or
(ii) a sale between related companies or partners in a business; or
(iii) a sale or lease affected by other facts or circumstances that would indicate that the sale or lease is entered into for the primary purpose of permitting the original registrant to avoid the effect of the previous revocation for the same premises.
(f) In addition to the grounds for refusal of a registration specified in section eleven hundred thirty-four of this chapter, the commissioner may refuse to register any person as a retail dealer where any tax under this chapter, or a tax or fee administered by the commissioner under any other law, has been finally determined to be due from such person, or from a person required to collect tax with respect to such person or another person, and has not been paid.
2. (a) (i) Every retail dealer and every person owning or, if the owner is not the operator, then any person operating one or more vending machines through which cigarettes or tobacco products are sold in this state, who is required under section eleven hundred thirty-six of this chapter to file a return for the quarterly period ending on the last day of August, nineteen hundred ninety or for the quarterly period ending on the last day of August in any year thereafter, must file an application for registration under this section with that quarterly return, in such form as shall be prescribed by the commissioner.
(ii) Each retail dealer must pay an application fee with the quarterly return of three hundred dollars for each retail place of business in this state through which it sells cigarettes or tobacco products.
(iii) Every person who owns or, if the owner is not the operator, then any person who operates one or more vending machines through which cigarettes or tobacco products are sold in this state, regardless of whether located on the premises of the vending machine owner or, if the owner is not the operator, then the premises of the operator or the premises of any other person, must pay an application fee with the quarterly return of one hundred dollars for each vending machine. The department will issue a registration certificate, as prescribed by the commissioner, after receipt of a registration application and the appropriate registration fee, prior to the next succeeding January first.
(b) Every retail dealer and every person who owns or, if the owner is not the operator, then any person who operates one or more vending machines through which cigarettes or tobacco products are sold in this state who commences business after the last day of August, nineteen hundred ninety, or who commences selling cigarettes or tobacco products at retail through a new or different place of business in this state after such date, or who commences selling cigarettes or tobacco products through new or different vending machines after such date, must file with the commissioner an application for registration, in a form prescribed by him or her, at least thirty days prior to commencing business or commencing sales. Each application must be accompanied by an application fee of three hundred dollars for each retail place of business and one hundred dollars for each vending machine to be registered. The department, within ten days after receipt of an application for registration under this paragraph and payment of the proper fee for application for registration, will issue a registration certificate, as prescribed by the commissioner, for each retail place of business or cigarette or tobacco products vending machine registered.
(c) In addition to the powers granted to the commissioner of taxation and finance in this chapter, the commissioner is hereby authorized to make provisions for the joint administration, in whole or in part, of the state and local taxes imposed by article twenty-eight and authorized to be imposed by article twenty-nine of this chapter and the registrations and fees for application for registration required by this section, including the joint reporting, assessment, collection and determination of such taxes and the registration and fees provided for in this section, and for that purpose, to prescribe that any of the commissioner's functions under such articles or this section, and any returns, forms, statements, documents or information to be submitted to the commissioner under such articles or this section, any books and records to be kept for purposes of the taxes imposed or authorized to be imposed by such articles or for purposes of this section, any schedules of amounts to be collected under such articles or this section, any registration required under such articles or this section, and the payment of taxes under such articles, or of fees under this section shall be on a joint basis.
(d) Except as otherwise provided in this section, all the provisions of article twenty-eight of this chapter relating to the personal liability for the tax, administration, collection and determination of tax, and deposit and disposition of revenue, including section eleven hundred thirty-eight of this chapter relating to determination of tax and section eleven hundred forty-five of this chapter (but only paragraphs one and two of subdivision (a) of such section) relating to penalties and interest for failure to file a return or pay tax within the time required, shall apply to the applications for registration and the fees for filing such applications required by this section and the penalty imposed pursuant to subdivision three of this section, as if such applications were returns required under section eleven hundred thirty-six of this chapter and such filing fees, penalties and interest were taxes required to be paid pursuant to such article twenty-eight, in the same manner and with the same force and effect as if the language of such provisions of such article twenty-eight had been incorporated in full into this article, except to the extent that any such provision is either inconsistent with a provision of this section or is not relevant thereto and with such other modifications as may be necessary to adapt the language of such provisions to the provisions of this section. Provided, however, that the commissioner of taxation and finance shall refund or credit an application fee paid with respect to the registration of a vending machine or a retail place of business in this state through which cigarettes or tobacco products were to be sold if, prior to the beginning of the calendar year with respect to which such registration relates, the certificate of registration described in paragraph (a) of this subdivision is returned to the department of taxation and finance, or if such certificate has been destroyed, the retail dealer or vending machine operator satisfactorily accounts to the commissioner for the missing certificate, but such vending machine or retail place of business may not be used to sell cigarettes or tobacco products in this state during such calendar year, unless it is re-registered. The provisions of section eleven hundred thirty-nine of this chapter shall apply to the refund or credit authorized by the preceding sentence and for such purposes, such refund or credit shall be deemed a refund of tax paid in error provided, however, no interest shall be allowed or paid on any such refund.
3. In addition to any other penalty imposed by this chapter: (a) Any retail dealer who violates the provisions of this section, after due notice and an opportunity for a hearing, for a first violation is liable for a civil fine not less than five thousand dollars but not to exceed twenty-five thousand dollars and for a second or subsequent violation within three years following a prior finding of violation is liable for a civil fine not less than ten thousand dollars but not to exceed thirty-five thousand dollars; or
(b) Any person who owns or, if the owner is not the operator, then any person who operates one or more vending machines through which cigarettes or tobacco products are sold in this state and who violates the provisions of this section, after due notice and an opportunity for a hearing, for a first violation is liable for a civil fine not less than seven hundred fifty dollars but not to exceed two thousand dollars and for a second or subsequent violation within three years following a prior finding of violation be liable for a civil fine not less than two thousand dollars but not to exceed six thousand dollars.
(c) If a retail dealer does not possess a valid registration, either because it failed to obtain a registration or its registration is suspended or revoked and the commissioner or their designee, pursuant to their authority under this article, attempts to inspect such premises for a violation of this section and such retail dealer, including an agent thereof, is found, after notice and opportunity to be heard, to have refused such inspection, such retail dealer shall be subject to a penalty of up to four thousand dollars for a first refusal and up to eight thousand dollars for a second or subsequent refusal within three years of a prior refusal.
4. (a) If a retail dealer possesses or sells unstamped or unlawfully stamped packages of cigarettes, or if a retail dealer is also licensed as an agent pursuant to section four hundred seventy-two and it possesses unlawfully stamped packages of cigarettes or sells unstamped or unlawfully stamped packages of cigarettes at retail, (i) its registration shall be revoked for a period of one year, or (ii) for a second such possession or sale within a period of five years by a retail dealer or any affiliated person of such retail dealer, the registration of such retail dealer and the registration of any retail dealer that is an affiliated person of such retail dealer shall be revoked for a period of three years, or (iii) for a third such possession or sale within a period of five years by a retail dealer or any affiliated person of such retail dealer, the registration of such retail dealer and the registration of any retail dealer that is an affiliated person of such retail dealer shall be revoked for a period of five years. A retail dealer registration shall be revoked pursuant to this subdivision immediately upon such dealer's receipt of written notice of revocation from the commissioner. If unstamped or unlawfully stamped cigarettes are found in a retail dealer's warehouse or a warehouse of any affiliated person of such retail dealer, the revocation of the retail dealer's registration pursuant to this subdivision shall be applicable to each retail place of business in this state through which such retail dealer and any affiliated person of such retail dealer sells cigarettes.
(a-1) If a retail dealer, including an agent thereof, refuses to comply with the requirements of subdivision four of section four hundred seventy-four of this article its registration may be revoked (i) for a period of one year, or (ii) for a second such violation within a period of five years for up to three years, or (iii) for a third or subsequent violation within a period of seven years for a period up to ten years. A retail dealer registration shall be considered to be revoked pursuant to this subdivision immediately upon such dealer's receipt of written notice of revocation from the commissioner.
(b) A retail dealer who is notified of a revocation of its registration pursuant to this subdivision shall have the right to have the revocation reviewed by the commissioner or his or her designee by contacting the department at a telephone number or an address to be disclosed in the notice of revocation within ten days of such dealer's receipt of such notification. The retail dealer may present written evidence or argument in support of its defense to the revocation, or may appear at a scheduled conference with the commissioner or his or her designee to present oral arguments and written and oral evidence in support of such defense. The commissioner or his or her designee is authorized to delay the effective date of the revocation to enable the retail dealer to present further evidence or arguments in connection with the revocation. The commissioner or his or her designee shall cancel the revocation of registration if the commissioner or his or her designee is not satisfied by a preponderance of the evidence that the retail dealer violated paragraph (a) or (a-1) of this subdivision, as may be applicable.
(c) An order of revocation of a retail dealer registration shall not be reviewable by the division of tax appeals, but may be reviewed pursuant to Article 78 of the civil practice law and rules by a proceeding commenced in the supreme court within four months of the revocation of registration petitioning that the order of revocation be enjoined or set aside. Such proceeding shall be instituted in the county where the commissioner has his or her principal office. Upon the filing of such petition the court shall have jurisdiction to set aside such order of revocation, in whole or in part, or to dismiss the petition. The jurisdiction of the supreme court shall be exclusive and its order dismissing the petition or enjoining or setting aside such order, in whole or in part, shall be final, subject to review by the appellate division of the supreme court and the court of appeals in the same manner and form and with the same effect as provided by law for appeals from a judgment in a special proceeding. All such proceedings shall be heard and determined by the court and by any appellate court as expeditiously as possible and with lawful precedence over other civil matters. All such proceedings for review shall be heard on the petition, transcript and other papers, and on appeal shall be heard on the record, without requirement of printing.
(d) After review of the revocation of registration by the commissioner or his or her designee is complete, or the time within which a retail dealer may request such review has expired without such a request having been made, notice of the revocation of a retail dealer registration pursuant to paragraph (a) of this subdivision shall be given by the commissioner to the head of the division of the lottery for the purpose of enforcement of section sixteen hundred seven of this chapter and such division may suspend or revoke any license issued with respect to a lottery agent's specific location pursuant to article thirty-four of this chapter if such lottery agent is a retail dealer of cigarettes whose registration for such location is suspended or revoked pursuant to this section. In addition, notice of such revocation shall also be given to the state liquor authority and such revocation shall constitute cause, for purposes of § 118 of the alcoholic beverage control law, for revocation, cancellation or suspension of any license or permit issued pursuant to such law.
5. Except for subdivision (i) of section eighteen hundred fourteen of this chapter, the criminal penalties set forth in article thirty-seven of this chapter shall not apply to a violation of this section.
6. (a) No retail dealer who has its retail dealer registration cancelled, suspended or revoked pursuant to this section or has been forbidden from selling cigarettes or tobacco products pursuant to paragraph (j) of subdivision one of section four hundred eighty of this article shall possess cigarettes or tobacco products in any place of business, cart, stand, truck or other merchandising device in this state beginning on the tenth day after such cancellation, suspension, revocation, or forbiddance and continuing for the duration of the same; provided however, such retail dealer shall not be prohibited before the tenth day after such cancellation, suspension, revocation, or forbiddance from selling or transferring its inventory of lawfully stamped cigarettes or tobacco products on which the taxes imposed by this article have been assumed or paid to a properly registered retail dealer whose registration is not cancelled, suspended, or revoked or who has not been forbidden from selling cigarettes or tobacco products.
(b) No retail dealer shall possess cigarettes or tobacco products in any place of business, cart, stand, truck or other merchandising device in this state unless it has obtained a valid retail dealer registration from the commissioner.
(c) The possession of cigarettes or tobacco products by an unlicensed retail dealer in violation of paragraph (a) or (b) of this subdivision shall be subject to the penalties authorized by subdivision three of this section.