N.Y. Tax Law 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.
Attorney's Note
Under the New York Laws, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Class E felony | between 1 and 4 years | up to $5,000 |
Terms Used In N.Y. Tax Law 1817
- Conviction: A judgement of guilt against a criminal defendant.
- Fiduciary: A trustee, executor, or administrator.
- person: shall include , but shall not be limited to, an individual, corporation (including a dissolved corporation), partnership, limited liability company, association, trust or estate. See N.Y. Tax Law 1800
- Personal property: All property that is not real property.
- this chapter: includes any "related statute" or any "related income or earnings tax statute" as defined in section eighteen hundred of this article. See N.Y. Tax Law 1801
(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 § 392-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 § 392-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 § 392-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.