N.Y. Comp. Codes R. & Regs. tit. 20 § 561.14

Current through Register Vol. 46, No. 51, December 18, 2024

Section 561.14 - Civil penalties

Tax Law, §§ 1138(a)(3)(C), 1145(a)(1)(vii), (c), (e)

(a) The penalties referred to in the following subdivisions of this section apply specifically to acts or omissions of taxpayers in connection with the reporting or payment of taxes imposed on motor fuel. They are in addition to the general penalty provisions of the Tax Law, applicable to failure to comply with any of the provisions of articles 28 and 29 of the Tax Law, which may also apply to violations of the Tax Law involving automotive fuel.

(b)Possession of untaxed motor fuel by a filling station owner.

Any owner of a filling station who willfully and knowingly has in its custody, possession or under its control any motor fuel upon which the prepaid tax described in section 561.3 of this Part has not been assumed or paid by a distributor registered as such under article 12-A of the Tax Law, or has not been passed through to the owner of the filling station as required by the Tax Law, shall be liable for a penalty in the amount of twice the tax not assumed or paid or passed through. Such penalty may be determined by the Department of Taxation and Finance within three years of the date when such motor fuel came into the custody or possession, or under the control, of the owner of the filling station. Such penalty may be assessed and collected by the Department of Taxation and Finance in the same manner as any taxes imposed by articles 28 and 29 of the Tax Law. The Department of Taxation and Finance may, of its own motion, abate any part of such penalty determined to be excessive or erroneous.

(1) A filling station owner shall willfully and knowingly have in its custody, possession or under its control motor fuel upon which the prepaid tax has not been assumed or paid by a registered distributor or has not been passed through to the filling station owner as required by the Tax Law when such owner is aware of the requirement that taxes be prepaid on such motor fuel and knows that no such prepaid taxes have been passed through to it.

(2) It shall be presumptive evidence that such owner shall willfully and knowingly have in its custody, possession or under its control motor fuel upon which the prepaid tax has not been assumed or paid by a registered distributor or has not been passed through to such owner as required by the Tax Law where the filling station owner has not received the certification of tax payment described in section 561.5 of this Part at the time of delivery of such motor fuel or at such later time as provided by section 561.6 of this Part.

(c)Failure to report or pay prepaid tax.

Any person who fails to file a return for prepaid tax or remit prepaid tax to the Department of Taxation and Finance within the time required by section 561.3 of this Part shall be liable for a penalty in the amount of the prepaid tax required to be paid. If the department determines that such failure to timely file or pay the prepaid tax was due to reasonable cause rather than willful neglect, it shall remit all or part of such penalty.

(d) 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 proprietor ship, 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 article 28 of the Tax Law, and any member of a partnership, which fails to pay the tax required to be prepaid by section 1102 of the Tax Law shall be liable for a penalty equal to the total amount of the tax not paid, plus penalties and interest computed pursuant to Part 536 of this Title as if such person were a distributor. If the Department of Taxation and Finance 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 tax required to be prepaid by section 1102 of the Tax Law; provided, however, that the penalty provided for by this subdivision will not be imposed on any person on account of the failure of a distributor to pay the tax required to be prepaid by section 1102 of the Tax Law in the circumstance where such person is otherwise liable for such tax as a person required to collect tax within the meaning of this Title and liability in such capacity has been imposed.

Cross-reference:

For definition of persons required to collect tax, see section 526.11 of this Title. For personal liability of persons required to collect tax, see section 532.3 of this Title. For definition of reasonable cause, see section 2392.1 of this Title. For criminal penalties imposed in connection with the failure to report or pay taxes imposed on automotive fuel, see article 37 of the Tax Law.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 561.14