State Codes and Statutes

Statutes > New-york > Tax > Article-20 > 481

§ 481. Penalties and interest. 1. (a)(i)(A) An agent or distributor or  other  person  treated as a distributor pursuant to section four hundred  seventy-one-d 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.    (B)  If  a tax on cigarettes or on tobacco products under this article  is not paid when due by any other person,  the  person  liable  for  the  payment of such tax shall be subject to a penalty of fifty per centum of  the  amount of such 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 to pay continues after the expiration of the  first month after such tax became due.    (C) 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.    (ii)  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 subparagraph shall not be paid if the amount thereof  is less than one dollar.    (iii) 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.    (iv)  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 subparagraphs (i) and (ii) of this paragraph,  there shall be added to the tax (A) a penalty of two times the amount of  tax due, plus (B) 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.    (v) The penalties and interest provided for in this paragraph 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.  Interest under this  paragraph shall be compounded daily.    (b)(i) In addition to any other penalty imposed by this  article,  the  commissioner may (A) impose a penalty of not more than one hundred fifty  dollars  for each two hundred cigarettes, or fraction thereof, in excessof one thousand cigarettes in unstamped or unlawfully  stamped  packages  in  the  possession  or  under the control of any person or (B) impose a  penalty of not more than two hundred  dollars  for  each  ten  unaffixed  false,   altered  or  counterfeit  cigarette  tax  stamps,  imprints  or  impressions, or fraction thereof, in the possession or under the control  of any person. In addition, the commissioner may impose a penalty of not  more than seventy-five dollars for each fifty cigars  or  one  pound  of  tobacco,  or  fraction thereof, in excess of two hundred fifty cigars or  five pounds of tobacco in the possession or under  the  control  of  any  person and a penalty of not more than one hundred fifty dollars for each  fifty cigars or pound of tobacco, or fraction thereof, in excess of five  hundred  cigars  or ten pounds of tobacco in the possession or under the  control of any person, with respect to which the  tobacco  products  tax  has  not  been  paid  or  assumed  by  a distributor or tobacco products  dealer; provided, however, that  any  such  penalty  imposed  shall  not  exceed  seven  thousand  five  hundred  dollars  in  the  aggregate. The  commissioner may impose a penalty of not more than seventy-five  dollars  for  each  fifty cigars or one pound of tobacco, or fraction thereof, in  excess of fifty cigars or one pound of  tobacco  in  the  possession  or  under  the  control  of  any  tobacco  products  dealer  or  distributor  appointed by the commissioner, and  a  penalty  of  not  more  than  one  hundred  fifty  dollars  for  each  fifty cigars or pound of tobacco, or  fraction thereof, in excess of two hundred fifty cigars or  five  pounds  of  tobacco in the possession or under the control of any such dealer or  distributor, with respect to which the tobacco products tax has not been  paid or assumed by a distributor or a tobacco products dealer; provided,  however, that any such penalty imposed shall not exceed fifteen thousand  dollars in the aggregate.    (ii) The penalties imposed by this subparagraph may be imposed by  the  commissioner  in  addition to any other penalty imposed by this article,  but in lieu of  the  penalties  imposed  by  subparagraph  (i)  of  this  paragraph:    (A)(I)(1)  not  less than thirty dollars but not more than two hundred  dollars for each two hundred cigarettes, or fraction thereof, in  excess  of  one  thousand  cigarettes  but  less  than or equal to five thousand  cigarettes in unstamped or unlawfully stamped packages knowingly in  the  possession  or knowingly under the control of any person or (2) not less  than thirty dollars but not more than two hundred dollars for  each  ten  unaffixed  false,  altered or counterfeit cigarette tax stamps, imprints  or impressions, or fraction thereof, less than or equal to  two  hundred  fifty  unaffixed  false,  altered  or  counterfeit cigarette tax stamps,  imprints or impressions, knowingly in the possession  or  knowing  under  the control of any person;    (II)(1)  not  less  than  seventy-five  dollars  but not more than two  hundred dollars for each two hundred cigarettes, or fraction thereof, in  excess of five thousand cigarettes but less  than  or  equal  to  twenty  thousand   cigarettes   in  unstamped  or  unlawfully  stamped  packages  knowingly in the possession or knowingly under the control of any person  or (2) not less than seventy-five dollars but not more than two  hundred  dollars  for  each ten unaffixed false, altered or counterfeit cigarette  tax stamps, imprints or impressions, or fraction thereof, in  excess  of  two  hundred fifty unaffixed false, altered or counterfeit cigarette tax  stamps, imprints or impressions but less than or equal to  one  thousand  unaffixed  false,  altered or counterfeit cigarette tax stamps, imprints  or impressions, knowingly in  the  possession  or  knowingly  under  the  control of any person; and    (III)(1)  not  less  than  one  hundred  dollars but not more than two  hundred dollars for each two hundred cigarettes, or fraction thereof, inexcess of twenty thousand cigarettes in unstamped or unlawfully  stamped  packages,  knowingly in the possession or knowingly under the control of  any person or (2) not less than one hundred dollars but  not  more  than  two hundred dollars for each ten unaffixed false, altered or counterfeit  cigarette  tax  stamps, imprints or impressions, or fraction thereof, in  excess of one thousand unaffixed false, altered or counterfeit cigarette  tax stamps, imprints or impressions,  knowingly  in  the  possession  or  knowingly under the control of any person.    (B)(I) not less than twenty-five dollars but not more than one hundred  dollars  for  each  fifty  cigars  or  one pound of tobacco, or fraction  thereof, in excess of two hundred fifty cigars or five pounds of tobacco  knowingly in the possession  or  knowingly  under  the  control  of  any  person, with respect to which the tobacco products tax has not been paid  or assumed by a distributor or tobacco products dealer; and    (II) not less than fifty dollars but not more than two hundred dollars  for  each  fifty  cigars  or  pound  of tobacco, or fraction thereof, in  excess of five hundred cigars or ten pounds of tobacco knowingly in  the  possession or knowingly under the control of any person, with respect to  which  the  tobacco  products  tax  has  not  been  paid or assumed by a  distributor or tobacco products dealer; provided, however, that any such  penalty imposed under this clause shall not exceed ten thousand  dollars  in the aggregate.    (C)(I) not less than twenty-five dollars but not more than one hundred  dollars  for  each  fifty  cigars  or  one pound of tobacco, or fraction  thereof, in excess of fifty cigars or one pound of tobacco knowingly  in  the  possession  or  knowingly  under  the  control  of any person, with  respect to which the tobacco products tax has not been paid  or  assumed  by a distributor or tobacco products dealer; and    (II) not less than fifty dollars but not more than two hundred dollars  for  each  fifty  cigars  or  pound  of tobacco, or fraction thereof, in  excess of two hundred fifty cigars or five pounds of  tobacco  knowingly  in  the  possession  or  knowingly under the control of any person, with  respect to which the tobacco products tax has not been paid  or  assumed  by  a  distributor or a tobacco products dealer; provided, however, that  any such penalty imposed under  this  clause  shall  not  exceed  twenty  thousand dollars in the aggregate.    (iii)  Any  penalty provided for in this paragraph shall be determined  as provided in section four hundred seventy-eight of this  chapter,  and  may  be  reviewed  only  pursuant to such section. Such penalty shall be  collected in the same manner as the taxes imposed by this  article.  The  commissioner  in the commissioner's discretion, may remit all or part of  such penalty. Such penalty shall be paid to the department and  disposed  of as hereinafter provided with respect to moneys derived from the tax.    (c) In addition to any other penalties that may be imposed by law, the  commissioner  may  impose  a  civil  penalty not to exceed five thousand  dollars against any tobacco product manufacturer or cigarette tax  agent  who  violates  the  provisions  of section four hundred eighty-b of this  article,  including  but  not  limited  to  the  filing   of   a   false  certification,   and   may  seek  to  suspend  or  cancel  any  license,  registration or  appointment  which  has  been  issued  to  such  person  pursuant to this chapter.    (d) In addition to any other penalties that may be imposed by law, the  commissioner  may  impose  a  civil  penalty not to exceed five thousand  dollars against any tobacco  product  manufacturer  or  distributor  who  violates  the  provisions  of  section  four  hundred  eighty-c  of this  article,  including  but  not  limited  to  the  filing   of   a   false  certification,   and   may  seek  to  suspend  or  cancel  any  license,registration or appointment that has been issued to the tobacco  product  manufacturer or distributor under this chapter.    2.  (a)  The  possession  within  this state of more than four hundred  cigarettes in unstamped or unlawfully stamped packages or more than  two  hundred  fifty  cigars,  or  more than five pounds of tobacco other than  roll-your-own tobacco, or more than thirty-six ounces  of  roll-your-own  tobacco  by  any  person other than an agent or distributor, as the case  may be, at  any  one  time  shall  be  presumptive  evidence  that  such  cigarettes  or  tobacco  products are subject to tax as provided by this  article.    (b) Nothing in this section shall apply to common or contract carriers  or warehousemen  while  engaged  in  lawfully  transporting  or  storing  tobacco products or unstamped packages of cigarettes as merchandise, nor  to  any employee of such carrier or warehouseman acting within the scope  of  his  employment,  nor  to  public  officers  or  employees  in   the  performance  of their official duties requiring possession or control of  tobacco  products  or  unstamped  or  unlawfully  stamped  packages   of  cigarettes,  nor  to  temporary  incidental  possession  by employees or  agents of persons lawfully entitled to possession, nor to persons  whose  possession  is  for  the purpose of aiding police officers in performing  their duties.    3. For purposes of this chapter, the certificate of  the  commissioner  of  taxation and finance to the effect that a tax or fee imposed by this  article has not been paid, that  a  return  required  by  or  under  the  provisions  of  this article has not been filed, or that information has  not been supplied, as required  by  or  under  the  provisions  of  this  article, or that a bond or other security required by or pursuant to the  provisions  of this article has not been filed, or that books, accounts,  records, memoranda, documents  or  papers  have  not  been  supplied  as  required  by  or  pursuant  to  the authority of this article, or that a  retail dealer or vending machine owner or operator is not  currently  or  validly  registered  as  required  by  this article shall be prima facie  evidence that such tax or fee has not been paid, such return not  filed,  such  information  not  supplied, such bond or other security not filed,  that such books, accounts, records, memoranda, documents or papers  have  not  been  supplied, or that such retail dealer or vending machine owner  or operator is not currently or validly registered.    4. Cross-reference: For criminal penalties, see  article  thirty-seven  of this chapter.

State Codes and Statutes

Statutes > New-york > Tax > Article-20 > 481

§ 481. Penalties and interest. 1. (a)(i)(A) An agent or distributor or  other  person  treated as a distributor pursuant to section four hundred  seventy-one-d 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.    (B)  If  a tax on cigarettes or on tobacco products under this article  is not paid when due by any other person,  the  person  liable  for  the  payment of such tax shall be subject to a penalty of fifty per centum of  the  amount of such 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 to pay continues after the expiration of the  first month after such tax became due.    (C) 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.    (ii)  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 subparagraph shall not be paid if the amount thereof  is less than one dollar.    (iii) 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.    (iv)  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 subparagraphs (i) and (ii) of this paragraph,  there shall be added to the tax (A) a penalty of two times the amount of  tax due, plus (B) 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.    (v) The penalties and interest provided for in this paragraph 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.  Interest under this  paragraph shall be compounded daily.    (b)(i) In addition to any other penalty imposed by this  article,  the  commissioner may (A) impose a penalty of not more than one hundred fifty  dollars  for each two hundred cigarettes, or fraction thereof, in excessof one thousand cigarettes in unstamped or unlawfully  stamped  packages  in  the  possession  or  under the control of any person or (B) impose a  penalty of not more than two hundred  dollars  for  each  ten  unaffixed  false,   altered  or  counterfeit  cigarette  tax  stamps,  imprints  or  impressions, or fraction thereof, in the possession or under the control  of any person. In addition, the commissioner may impose a penalty of not  more than seventy-five dollars for each fifty cigars  or  one  pound  of  tobacco,  or  fraction thereof, in excess of two hundred fifty cigars or  five pounds of tobacco in the possession or under  the  control  of  any  person and a penalty of not more than one hundred fifty dollars for each  fifty cigars or pound of tobacco, or fraction thereof, in excess of five  hundred  cigars  or ten pounds of tobacco in the possession or under the  control of any person, with respect to which the  tobacco  products  tax  has  not  been  paid  or  assumed  by  a distributor or tobacco products  dealer; provided, however, that  any  such  penalty  imposed  shall  not  exceed  seven  thousand  five  hundred  dollars  in  the  aggregate. The  commissioner may impose a penalty of not more than seventy-five  dollars  for  each  fifty cigars or one pound of tobacco, or fraction thereof, in  excess of fifty cigars or one pound of  tobacco  in  the  possession  or  under  the  control  of  any  tobacco  products  dealer  or  distributor  appointed by the commissioner, and  a  penalty  of  not  more  than  one  hundred  fifty  dollars  for  each  fifty cigars or pound of tobacco, or  fraction thereof, in excess of two hundred fifty cigars or  five  pounds  of  tobacco in the possession or under the control of any such dealer or  distributor, with respect to which the tobacco products tax has not been  paid or assumed by a distributor or a tobacco products dealer; provided,  however, that any such penalty imposed shall not exceed fifteen thousand  dollars in the aggregate.    (ii) The penalties imposed by this subparagraph may be imposed by  the  commissioner  in  addition to any other penalty imposed by this article,  but in lieu of  the  penalties  imposed  by  subparagraph  (i)  of  this  paragraph:    (A)(I)(1)  not  less than thirty dollars but not more than two hundred  dollars for each two hundred cigarettes, or fraction thereof, in  excess  of  one  thousand  cigarettes  but  less  than or equal to five thousand  cigarettes in unstamped or unlawfully stamped packages knowingly in  the  possession  or knowingly under the control of any person or (2) not less  than thirty dollars but not more than two hundred dollars for  each  ten  unaffixed  false,  altered or counterfeit cigarette tax stamps, imprints  or impressions, or fraction thereof, less than or equal to  two  hundred  fifty  unaffixed  false,  altered  or  counterfeit cigarette tax stamps,  imprints or impressions, knowingly in the possession  or  knowing  under  the control of any person;    (II)(1)  not  less  than  seventy-five  dollars  but not more than two  hundred dollars for each two hundred cigarettes, or fraction thereof, in  excess of five thousand cigarettes but less  than  or  equal  to  twenty  thousand   cigarettes   in  unstamped  or  unlawfully  stamped  packages  knowingly in the possession or knowingly under the control of any person  or (2) not less than seventy-five dollars but not more than two  hundred  dollars  for  each ten unaffixed false, altered or counterfeit cigarette  tax stamps, imprints or impressions, or fraction thereof, in  excess  of  two  hundred fifty unaffixed false, altered or counterfeit cigarette tax  stamps, imprints or impressions but less than or equal to  one  thousand  unaffixed  false,  altered or counterfeit cigarette tax stamps, imprints  or impressions, knowingly in  the  possession  or  knowingly  under  the  control of any person; and    (III)(1)  not  less  than  one  hundred  dollars but not more than two  hundred dollars for each two hundred cigarettes, or fraction thereof, inexcess of twenty thousand cigarettes in unstamped or unlawfully  stamped  packages,  knowingly in the possession or knowingly under the control of  any person or (2) not less than one hundred dollars but  not  more  than  two hundred dollars for each ten unaffixed false, altered or counterfeit  cigarette  tax  stamps, imprints or impressions, or fraction thereof, in  excess of one thousand unaffixed false, altered or counterfeit cigarette  tax stamps, imprints or impressions,  knowingly  in  the  possession  or  knowingly under the control of any person.    (B)(I) not less than twenty-five dollars but not more than one hundred  dollars  for  each  fifty  cigars  or  one pound of tobacco, or fraction  thereof, in excess of two hundred fifty cigars or five pounds of tobacco  knowingly in the possession  or  knowingly  under  the  control  of  any  person, with respect to which the tobacco products tax has not been paid  or assumed by a distributor or tobacco products dealer; and    (II) not less than fifty dollars but not more than two hundred dollars  for  each  fifty  cigars  or  pound  of tobacco, or fraction thereof, in  excess of five hundred cigars or ten pounds of tobacco knowingly in  the  possession or knowingly under the control of any person, with respect to  which  the  tobacco  products  tax  has  not  been  paid or assumed by a  distributor or tobacco products dealer; provided, however, that any such  penalty imposed under this clause shall not exceed ten thousand  dollars  in the aggregate.    (C)(I) not less than twenty-five dollars but not more than one hundred  dollars  for  each  fifty  cigars  or  one pound of tobacco, or fraction  thereof, in excess of fifty cigars or one pound of tobacco knowingly  in  the  possession  or  knowingly  under  the  control  of any person, with  respect to which the tobacco products tax has not been paid  or  assumed  by a distributor or tobacco products dealer; and    (II) not less than fifty dollars but not more than two hundred dollars  for  each  fifty  cigars  or  pound  of tobacco, or fraction thereof, in  excess of two hundred fifty cigars or five pounds of  tobacco  knowingly  in  the  possession  or  knowingly under the control of any person, with  respect to which the tobacco products tax has not been paid  or  assumed  by  a  distributor or a tobacco products dealer; provided, however, that  any such penalty imposed under  this  clause  shall  not  exceed  twenty  thousand dollars in the aggregate.    (iii)  Any  penalty provided for in this paragraph shall be determined  as provided in section four hundred seventy-eight of this  chapter,  and  may  be  reviewed  only  pursuant to such section. Such penalty shall be  collected in the same manner as the taxes imposed by this  article.  The  commissioner  in the commissioner's discretion, may remit all or part of  such penalty. Such penalty shall be paid to the department and  disposed  of as hereinafter provided with respect to moneys derived from the tax.    (c) In addition to any other penalties that may be imposed by law, the  commissioner  may  impose  a  civil  penalty not to exceed five thousand  dollars against any tobacco product manufacturer or cigarette tax  agent  who  violates  the  provisions  of section four hundred eighty-b of this  article,  including  but  not  limited  to  the  filing   of   a   false  certification,   and   may  seek  to  suspend  or  cancel  any  license,  registration or  appointment  which  has  been  issued  to  such  person  pursuant to this chapter.    (d) In addition to any other penalties that may be imposed by law, the  commissioner  may  impose  a  civil  penalty not to exceed five thousand  dollars against any tobacco  product  manufacturer  or  distributor  who  violates  the  provisions  of  section  four  hundred  eighty-c  of this  article,  including  but  not  limited  to  the  filing   of   a   false  certification,   and   may  seek  to  suspend  or  cancel  any  license,registration or appointment that has been issued to the tobacco  product  manufacturer or distributor under this chapter.    2.  (a)  The  possession  within  this state of more than four hundred  cigarettes in unstamped or unlawfully stamped packages or more than  two  hundred  fifty  cigars,  or  more than five pounds of tobacco other than  roll-your-own tobacco, or more than thirty-six ounces  of  roll-your-own  tobacco  by  any  person other than an agent or distributor, as the case  may be, at  any  one  time  shall  be  presumptive  evidence  that  such  cigarettes  or  tobacco  products are subject to tax as provided by this  article.    (b) Nothing in this section shall apply to common or contract carriers  or warehousemen  while  engaged  in  lawfully  transporting  or  storing  tobacco products or unstamped packages of cigarettes as merchandise, nor  to  any employee of such carrier or warehouseman acting within the scope  of  his  employment,  nor  to  public  officers  or  employees  in   the  performance  of their official duties requiring possession or control of  tobacco  products  or  unstamped  or  unlawfully  stamped  packages   of  cigarettes,  nor  to  temporary  incidental  possession  by employees or  agents of persons lawfully entitled to possession, nor to persons  whose  possession  is  for  the purpose of aiding police officers in performing  their duties.    3. For purposes of this chapter, the certificate of  the  commissioner  of  taxation and finance to the effect that a tax or fee imposed by this  article has not been paid, that  a  return  required  by  or  under  the  provisions  of  this article has not been filed, or that information has  not been supplied, as required  by  or  under  the  provisions  of  this  article, or that a bond or other security required by or pursuant to the  provisions  of this article has not been filed, or that books, accounts,  records, memoranda, documents  or  papers  have  not  been  supplied  as  required  by  or  pursuant  to  the authority of this article, or that a  retail dealer or vending machine owner or operator is not  currently  or  validly  registered  as  required  by  this article shall be prima facie  evidence that such tax or fee has not been paid, such return not  filed,  such  information  not  supplied, such bond or other security not filed,  that such books, accounts, records, memoranda, documents or papers  have  not  been  supplied, or that such retail dealer or vending machine owner  or operator is not currently or validly registered.    4. Cross-reference: For criminal penalties, see  article  thirty-seven  of this chapter.

State Codes and Statutes

State Codes and Statutes

Statutes > New-york > Tax > Article-20 > 481

§ 481. Penalties and interest. 1. (a)(i)(A) An agent or distributor or  other  person  treated as a distributor pursuant to section four hundred  seventy-one-d 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.    (B)  If  a tax on cigarettes or on tobacco products under this article  is not paid when due by any other person,  the  person  liable  for  the  payment of such tax shall be subject to a penalty of fifty per centum of  the  amount of such 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 to pay continues after the expiration of the  first month after such tax became due.    (C) 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.    (ii)  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 subparagraph shall not be paid if the amount thereof  is less than one dollar.    (iii) 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.    (iv)  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 subparagraphs (i) and (ii) of this paragraph,  there shall be added to the tax (A) a penalty of two times the amount of  tax due, plus (B) 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.    (v) The penalties and interest provided for in this paragraph 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.  Interest under this  paragraph shall be compounded daily.    (b)(i) In addition to any other penalty imposed by this  article,  the  commissioner may (A) impose a penalty of not more than one hundred fifty  dollars  for each two hundred cigarettes, or fraction thereof, in excessof one thousand cigarettes in unstamped or unlawfully  stamped  packages  in  the  possession  or  under the control of any person or (B) impose a  penalty of not more than two hundred  dollars  for  each  ten  unaffixed  false,   altered  or  counterfeit  cigarette  tax  stamps,  imprints  or  impressions, or fraction thereof, in the possession or under the control  of any person. In addition, the commissioner may impose a penalty of not  more than seventy-five dollars for each fifty cigars  or  one  pound  of  tobacco,  or  fraction thereof, in excess of two hundred fifty cigars or  five pounds of tobacco in the possession or under  the  control  of  any  person and a penalty of not more than one hundred fifty dollars for each  fifty cigars or pound of tobacco, or fraction thereof, in excess of five  hundred  cigars  or ten pounds of tobacco in the possession or under the  control of any person, with respect to which the  tobacco  products  tax  has  not  been  paid  or  assumed  by  a distributor or tobacco products  dealer; provided, however, that  any  such  penalty  imposed  shall  not  exceed  seven  thousand  five  hundred  dollars  in  the  aggregate. The  commissioner may impose a penalty of not more than seventy-five  dollars  for  each  fifty cigars or one pound of tobacco, or fraction thereof, in  excess of fifty cigars or one pound of  tobacco  in  the  possession  or  under  the  control  of  any  tobacco  products  dealer  or  distributor  appointed by the commissioner, and  a  penalty  of  not  more  than  one  hundred  fifty  dollars  for  each  fifty cigars or pound of tobacco, or  fraction thereof, in excess of two hundred fifty cigars or  five  pounds  of  tobacco in the possession or under the control of any such dealer or  distributor, with respect to which the tobacco products tax has not been  paid or assumed by a distributor or a tobacco products dealer; provided,  however, that any such penalty imposed shall not exceed fifteen thousand  dollars in the aggregate.    (ii) The penalties imposed by this subparagraph may be imposed by  the  commissioner  in  addition to any other penalty imposed by this article,  but in lieu of  the  penalties  imposed  by  subparagraph  (i)  of  this  paragraph:    (A)(I)(1)  not  less than thirty dollars but not more than two hundred  dollars for each two hundred cigarettes, or fraction thereof, in  excess  of  one  thousand  cigarettes  but  less  than or equal to five thousand  cigarettes in unstamped or unlawfully stamped packages knowingly in  the  possession  or knowingly under the control of any person or (2) not less  than thirty dollars but not more than two hundred dollars for  each  ten  unaffixed  false,  altered or counterfeit cigarette tax stamps, imprints  or impressions, or fraction thereof, less than or equal to  two  hundred  fifty  unaffixed  false,  altered  or  counterfeit cigarette tax stamps,  imprints or impressions, knowingly in the possession  or  knowing  under  the control of any person;    (II)(1)  not  less  than  seventy-five  dollars  but not more than two  hundred dollars for each two hundred cigarettes, or fraction thereof, in  excess of five thousand cigarettes but less  than  or  equal  to  twenty  thousand   cigarettes   in  unstamped  or  unlawfully  stamped  packages  knowingly in the possession or knowingly under the control of any person  or (2) not less than seventy-five dollars but not more than two  hundred  dollars  for  each ten unaffixed false, altered or counterfeit cigarette  tax stamps, imprints or impressions, or fraction thereof, in  excess  of  two  hundred fifty unaffixed false, altered or counterfeit cigarette tax  stamps, imprints or impressions but less than or equal to  one  thousand  unaffixed  false,  altered or counterfeit cigarette tax stamps, imprints  or impressions, knowingly in  the  possession  or  knowingly  under  the  control of any person; and    (III)(1)  not  less  than  one  hundred  dollars but not more than two  hundred dollars for each two hundred cigarettes, or fraction thereof, inexcess of twenty thousand cigarettes in unstamped or unlawfully  stamped  packages,  knowingly in the possession or knowingly under the control of  any person or (2) not less than one hundred dollars but  not  more  than  two hundred dollars for each ten unaffixed false, altered or counterfeit  cigarette  tax  stamps, imprints or impressions, or fraction thereof, in  excess of one thousand unaffixed false, altered or counterfeit cigarette  tax stamps, imprints or impressions,  knowingly  in  the  possession  or  knowingly under the control of any person.    (B)(I) not less than twenty-five dollars but not more than one hundred  dollars  for  each  fifty  cigars  or  one pound of tobacco, or fraction  thereof, in excess of two hundred fifty cigars or five pounds of tobacco  knowingly in the possession  or  knowingly  under  the  control  of  any  person, with respect to which the tobacco products tax has not been paid  or assumed by a distributor or tobacco products dealer; and    (II) not less than fifty dollars but not more than two hundred dollars  for  each  fifty  cigars  or  pound  of tobacco, or fraction thereof, in  excess of five hundred cigars or ten pounds of tobacco knowingly in  the  possession or knowingly under the control of any person, with respect to  which  the  tobacco  products  tax  has  not  been  paid or assumed by a  distributor or tobacco products dealer; provided, however, that any such  penalty imposed under this clause shall not exceed ten thousand  dollars  in the aggregate.    (C)(I) not less than twenty-five dollars but not more than one hundred  dollars  for  each  fifty  cigars  or  one pound of tobacco, or fraction  thereof, in excess of fifty cigars or one pound of tobacco knowingly  in  the  possession  or  knowingly  under  the  control  of any person, with  respect to which the tobacco products tax has not been paid  or  assumed  by a distributor or tobacco products dealer; and    (II) not less than fifty dollars but not more than two hundred dollars  for  each  fifty  cigars  or  pound  of tobacco, or fraction thereof, in  excess of two hundred fifty cigars or five pounds of  tobacco  knowingly  in  the  possession  or  knowingly under the control of any person, with  respect to which the tobacco products tax has not been paid  or  assumed  by  a  distributor or a tobacco products dealer; provided, however, that  any such penalty imposed under  this  clause  shall  not  exceed  twenty  thousand dollars in the aggregate.    (iii)  Any  penalty provided for in this paragraph shall be determined  as provided in section four hundred seventy-eight of this  chapter,  and  may  be  reviewed  only  pursuant to such section. Such penalty shall be  collected in the same manner as the taxes imposed by this  article.  The  commissioner  in the commissioner's discretion, may remit all or part of  such penalty. Such penalty shall be paid to the department and  disposed  of as hereinafter provided with respect to moneys derived from the tax.    (c) In addition to any other penalties that may be imposed by law, the  commissioner  may  impose  a  civil  penalty not to exceed five thousand  dollars against any tobacco product manufacturer or cigarette tax  agent  who  violates  the  provisions  of section four hundred eighty-b of this  article,  including  but  not  limited  to  the  filing   of   a   false  certification,   and   may  seek  to  suspend  or  cancel  any  license,  registration or  appointment  which  has  been  issued  to  such  person  pursuant to this chapter.    (d) In addition to any other penalties that may be imposed by law, the  commissioner  may  impose  a  civil  penalty not to exceed five thousand  dollars against any tobacco  product  manufacturer  or  distributor  who  violates  the  provisions  of  section  four  hundred  eighty-c  of this  article,  including  but  not  limited  to  the  filing   of   a   false  certification,   and   may  seek  to  suspend  or  cancel  any  license,registration or appointment that has been issued to the tobacco  product  manufacturer or distributor under this chapter.    2.  (a)  The  possession  within  this state of more than four hundred  cigarettes in unstamped or unlawfully stamped packages or more than  two  hundred  fifty  cigars,  or  more than five pounds of tobacco other than  roll-your-own tobacco, or more than thirty-six ounces  of  roll-your-own  tobacco  by  any  person other than an agent or distributor, as the case  may be, at  any  one  time  shall  be  presumptive  evidence  that  such  cigarettes  or  tobacco  products are subject to tax as provided by this  article.    (b) Nothing in this section shall apply to common or contract carriers  or warehousemen  while  engaged  in  lawfully  transporting  or  storing  tobacco products or unstamped packages of cigarettes as merchandise, nor  to  any employee of such carrier or warehouseman acting within the scope  of  his  employment,  nor  to  public  officers  or  employees  in   the  performance  of their official duties requiring possession or control of  tobacco  products  or  unstamped  or  unlawfully  stamped  packages   of  cigarettes,  nor  to  temporary  incidental  possession  by employees or  agents of persons lawfully entitled to possession, nor to persons  whose  possession  is  for  the purpose of aiding police officers in performing  their duties.    3. For purposes of this chapter, the certificate of  the  commissioner  of  taxation and finance to the effect that a tax or fee imposed by this  article has not been paid, that  a  return  required  by  or  under  the  provisions  of  this article has not been filed, or that information has  not been supplied, as required  by  or  under  the  provisions  of  this  article, or that a bond or other security required by or pursuant to the  provisions  of this article has not been filed, or that books, accounts,  records, memoranda, documents  or  papers  have  not  been  supplied  as  required  by  or  pursuant  to  the authority of this article, or that a  retail dealer or vending machine owner or operator is not  currently  or  validly  registered  as  required  by  this article shall be prima facie  evidence that such tax or fee has not been paid, such return not  filed,  such  information  not  supplied, such bond or other security not filed,  that such books, accounts, records, memoranda, documents or papers  have  not  been  supplied, or that such retail dealer or vending machine owner  or operator is not currently or validly registered.    4. Cross-reference: For criminal penalties, see  article  thirty-seven  of this chapter.