N.Y. Tax Law § 1132 — Collection of tax from customer; proof required for registration of motor vehicles

§ 1132. Collection of tax from customer; proof required for\nregistration of motor vehicles. (a) (1) Except as otherwise permitted in\nsubdivision (d) of section eleven hundred thirty-three of this part,\nevery person required to collect the tax shall collect the tax from the\ncustomer when collecting the price, amusement charge or rent to which it\napplies. If the customer is given any sales slip, invoice, receipt or\nother statement or memorandum of the price, amusement charge or rent\npaid or payable, the tax shall be stated, charged and shown separately\non the first of such documents given to him. The tax shall be paid to\nthe person required to collect it as trustee for and on account of the\nstate.\n (2) Notwithstanding any provision of this chapter to the contrary: (i)\nIf a person required to collect tax demonstrates to the satisfaction of\nthe commissioner by June first, of any year that, in any two quarterly\nperiods, as described in subdivision (b) of section eleven hundred\nthirty-six of this part, within the most recent four consecutive\nquarterly periods, such person was a materialman within the meaning of\nsection two of the lien law, primarily engaged in selling building\nmaterials to contractors, subcontractors or repairmen for the\nimprovement of real property, and authorized by such law to file a\nmechanics lien upon such real property and improvement, then such person\nshall, with respect to such sales made through the quarterly period\nending the succeeding May thirty-first, collect tax due on such sales,\nand on sales to such contractors, subcontractors or repairmen of\nservices described in paragraph two or three of subdivision (c) of\nsection eleven hundred five of this article to such building materials,\nfor such purpose and made during such June first through May\nthirty-first period, at the time and to the extent that such person\nreceives the receipts from, or consideration for, such sales from such\ncontractors, subcontractors or repairmen; provided, however, that if\nsuch person receives a portion of such receipts or consideration, such\nperson shall collect the tax due on such portion at the time such\nportion is received. The taxes imposed by this article on such receipts\nand consideration shall be deemed not to be imposed, solely for purposes\nof determining when such person is required to collect and pay over such\ntaxes to the commissioner under section eleven hundred thirty-seven of\nthis part, until such person has received payment of such receipts or\nconsideration in money (or money's worth) from such contractor,\nsubcontractor or repairman. A contractor, subcontractor or repairman who\npurchases building materials or services from such person pursuant to\nthis subparagraph shall, at the time such contractor, subcontractor or\nrepairman pays any portion of the purchase price, pay to such person the\ntax due on the portion of the purchase price so paid.\n (ii) In the event that a materialman described in subparagraph (i) of\nthis paragraph finances any portion of the receipts or consideration\nfrom a sale described in such subparagraph (i), including any tax due\nthereon, directly or indirectly, with any other person (other than a\ncontractor, subcontractor or repairman described in such subparagraph\n(i)), whether by assignment of the receivable or debt due, factoring,\ndirect loan or any other means, then such materialman shall be deemed to\nhave received payment of such receipts or consideration in money (or\nmoney's worth) from such contractor, subcontractor or repairman and\nshall be required to pay over tax on such sale with the next return due,\nwith a credit against such tax for any tax already paid over with\nrespect to such sale. Any such amount of tax paid over in accordance\nwith the prior sentence shall be on account of the tax required to be\ncollected on the sale to which it relates and such materialman may take\na credit against any tax paid by such contractor, subcontractor or\nrepairman in the future on such sale, to ensure that tax paid over with\nrespect to such sale does not exceed the amount of tax imposed on such\nsale as if the entire purchase price had been paid at the time of sale.\n (iii) A materialman described in subparagraph (i) of this paragraph,\nwho has not collected the tax due on the full purchase price for a sale\ndescribed in such subparagraph (i) from a contractor, subcontractor or\nrepairman within one year of the date of such sale, shall be required to\npay over to the commissioner the tax due on any balance of such full\npurchase price with such materialman's return for the period which\nincludes the date which is one year after the date of such sale.\n (iv) The commissioner may assess additional tax due with respect to a\nsale described in subparagraph (i) of this paragraph within three years\nfrom the date the tax is required to be paid over to the commissioner\npursuant to this paragraph; provided, however, that in the case of a\nwillfully false or fraudulent return with intent to evade the tax, or\nwhere no return has been filed as prescribed by law, the tax may be\nassessed at any time.\n (v) The other provisions of this article and any provision of law\napplicable to the taxes imposed by this article shall apply to the\nmaterialmen, contractors, subcontractors, repairmen, receipts and\nconsideration described in this paragraph, except to the extent that any\nsuch provision is inconsistent with this paragraph.\n (b) The commissioner shall by regulation prescribe a method or methods\nor a schedule or schedules of the amounts to be collected from customers\nin respect to any receipt, gallon of motor fuel or diesel motor fuel,\namusement charge or rent upon which a tax is imposed by this article so\nas to eliminate fractions of one cent and so that the aggregate\ncollections of taxes by a person required to collect tax shall, as far\nas practicable, equal four percent of the total receipts, amusement\ncharges or rents of such person, or equal the correct rate per gallon of\nmotor fuel or diesel motor fuel sold by such person, upon whom a tax is\nimposed by this article or, where a similar tax is imposed under the\nauthority of article twenty-nine of this chapter, equal four percent, or\nsuch rate per gallon, plus the rate of tax imposed under the authority\nof article twenty-nine of the total receipts, amusement charges or rents\nof, or gallons of motor fuel or diesel motor fuel sold by, such person\nupon whom a tax is imposed by this article and under the authority of\narticle twenty-nine, so that the tax rate to be applied shall be the sum\nof the state and local tax rates. Such schedule or schedules may provide\nthat no tax need be collected from the customer upon receipts, amusement\ncharges or rents below a stated sum, and may be amended from time to\ntime so as to accomplish the purposes herein set forth. Such schedule or\nschedules shall provide that no tax shall be collected from the customer\nupon receipts from retail sales of tangible personal property which,\nunder the rate imposed by article twenty-eight, together with the rates\nimposed under the authority of article twenty-nine, produce a tax of\nfive mills or less.\n (c) (1) For the purpose of the proper administration of this article\nand to prevent evasion of the tax hereby imposed, it shall be presumed\nthat all receipts for property or services of any type mentioned in\nsubdivisions (a), (b), (c) and (d) of section eleven hundred five, all\nrents for occupancy of the type mentioned in subdivision (e) of said\nsection, and all amusement charges of any type mentioned in subdivision\n(f) of said section, are subject to tax until the contrary is\nestablished, and the burden of proving that any receipt, amusement\ncharge or rent is not taxable hereunder shall be upon the person\nrequired to collect tax or the customer. Except as provided in\nsubdivision (h) or (k) of this section, unless (i) a vendor, not later\nthan ninety days after delivery of the property or the rendition of the\nservice, shall have taken from the purchaser a resale or exemption\ncertificate in such form as the commissioner may prescribe, signed by\nthe purchaser and setting forth the purchaser's name and address and,\nexcept as otherwise provided by regulation of the commissioner, the\nnumber of the purchaser's certificate of authority, together with such\nother information as the commissioner may require, to the effect that\nthe property or service was purchased for resale or for some use by\nreason of which the sale is exempt from tax under the provisions of\nsection eleven hundred fifteen, and, where such resale or exemption\ncertificate requires the inclusion of the purchaser's certificate of\nauthority number or other identification number required by regulations\nof the commissioner, that the purchaser's certificate of authority has\nnot been suspended or revoked and has not expired as provided in section\neleven hundred thirty-four, or (ii) the purchaser, not later than ninety\ndays after delivery of the property or the rendition of the service,\nfurnishes to the vendor: any affidavit, statement or additional\nevidence, documentary or otherwise, which the commissioner may require\ndemonstrating that the purchaser is an exempt organization described in\nsection eleven hundred sixteen, the sale shall be deemed a taxable sale\nat retail. Where a resale or exemption certificate or an affidavit,\nstatement or additional evidence referred to in the previous sentence is\nreceived within the time limit set forth therein, but is deficient in\nsome material manner, and where such deficiency is thereafter removed,\nthe receipt of such resale or exemption certificate or such affidavit,\nstatement or additional evidence shall be deemed to have satisfied all\nof the requirements of the preceding sentence. Where such a resale or\nexemption certificate or such an affidavit, statement or additional\nevidence has been furnished to the vendor, the burden of proving that\nthe receipt, amusement charge or rent is not taxable hereunder shall be\nsolely upon the customer. The vendor shall not be required to collect\ntax from purchasers who furnish a resale or exemption certificate, or\nsuch an affidavit, statement or additional evidence in proper form,\nunless, in the case of a resale or exemption certificate described in\nclause (i) of the second sentence of this paragraph whereon the\npurchaser's certificate of authority number, or other identification\nnumber required by regulation of the commissioner, is required to be\nincluded, such purchaser's certificate of authority is invalid because\nit has been suspended or revoked as provided in section eleven hundred\nthirty-four, and the commissioner has furnished registered vendors with\ninformation identifying those persons whose certificates of authority\nhave been suspended or revoked, or unless such purchaser's certificate\nof authority is invalid because it has expired, and the commissioner has\nprovided registered vendors with a means of determining whether such\nexpiration has occurred. Where the vendor accepts such a resale or\nexemption certificate from a person identified by the commissioner as\none whose certificate of authority has been suspended or revoked or from\na person whose certificate of authority has been identified as having\nexpired, the receipt, amusement charge or rent from such transaction\nshall be deemed to be a taxable sale at retail.\n (2) Notwithstanding paragraph one of this subdivision or any other law\nto the contrary, the commissioner may authorize a purchaser, who\nacquires tangible personal property or services under circumstances\nwhich make it impossible at the time of acquisition to determine the\nmanner in which the tangible personal property or services will be used,\nto pay the tax directly to the commissioner and waive the collection of\nthe tax by the vendor. Subject to such reasonable conditions as the\ncommissioner may require, the commissioner shall authorize an omnibus\ncarrier described in subdivision (b) of section eleven hundred nineteen\nto pay the tax on the purchase or use of an omnibus directly to the\ncommissioner and waive the collection of the tax by the vendor. No such\nauthority shall be granted or exercised except upon application to the\ncommissioner, and the issuance by the commissioner, in the\ncommissioner's discretion, of a direct payment permit. If a direct\npayment permit is granted, its use shall be subject to conditions\nspecified by the commissioner, and the payment of tax on all\nacquisitions pursuant to the permit shall be made directly to the\ncommissioner by the permit holder. The commissioner may suspend or\nrevoke a direct payment permit where the permit holder fails to comply\nwith any of the provisions of this article or any rule promulgated by\nthe commissioner with respect to this article. The notice and hearing\nprovisions applicable to the revocation and suspension of certificates\nof authority under section eleven hundred thirty-four shall apply to the\nsuspension and revocation of direct payment permits. A vendor shall not\nbe required to collect tax from a purchaser who furnishes a direct\npayment permit in proper form, unless such purchaser's direct payment\npermit has been suspended or revoked by the commissioner and the\ncommissioner has provided registered vendors with information\nidentifying those persons whose direct payment permits have been\nsuspended or revoked. Where a vendor accepts a direct payment permit\nfrom a person whose direct payment permit has been suspended or revoked,\nand the commissioner has provided registered vendors with information\nidentifying those persons whose direct payment permits have been\nsuspended or revoked, the receipt, amusement charge or rent from such\ntransaction shall be deemed to be subject to tax.\n (d) The tax commission may provide by regulation that the tax upon\nreceipts from sales on the installment plan may be paid on the amount of\neach installment and upon the date when such installment is due.\n (e) The commissioner may provide, by regulation, for the exclusion\nfrom taxable receipts, gallons of motor fuel or diesel motor fuel sold,\namusement charges or rents of amounts representing sales where the\ncontract of sale has been cancelled, the property returned or the\nreceipt, charge or rent has been ascertained to be uncollectible or, in\ncase the tax has been paid upon such receipt, gallons, charge or rent,\nfor refund of or credit for the tax so paid. Where the commissioner\nprovides for a credit for the tax so paid, he or she shall require an\napplication for credit to be filed, but he or she may also allow the\napplicant to immediately take the credit on the return which is due\ncoincident with or immediately subsequent to the time the applicant\nfiles his or her application for credit. However, the taking of the\ncredit on the return shall be deemed to be part of the application for\ncredit and shall be subject to the provisions in respect to applications\nfor credit in section eleven hundred thirty-nine of this part as\nprovided in subdivision (e) of such section.\n (f) The commissioner of motor vehicles shall not issue a registration\ncertificate for any motor vehicle, snowmobile, vessel or all terrain\nvehicle, except in the case of a renewal of registration by the same\nowner, except upon proof, in a form approved by the tax commission and\nthe commissioner of motor vehicles, that any tax imposed by section\neleven hundred five or eleven hundred ten of this article with respect\nto the sale of the motor vehicle, snowmobile, vessel or all terrain\nvehicle to the registrant or his use thereof has been paid, or that no\nsuch tax is due. For purposes of this subdivision, the term motor\nvehicle shall include a motor vehicle as defined in section one hundred\ntwenty-five of the vehicle and traffic law; a trailer as defined in\nsection one hundred fifty-six of such law; a snowmobile as defined in\nsection twenty-two hundred twenty-one of such law; a vessel as defined\nin section twenty-two hundred fifty of such law; and an all terrain\nvehicle as defined in section twenty-two hundred eighty-one of such law.\n (g) (1) The clerk of each county when performing the function of\nregistration of a motor vehicle, snowmobile, vessel or all terrain\nvehicle or accepting an application for a certificate of title of a\nmotor vehicle or vessel, pursuant to the authority of the vehicle and\ntraffic law, or the commissioner of motor vehicles, when such\ncommissioner performs such functions, prior to performing such\nfunctions, shall act as the agent of the state tax commission to collect\nany retail sales tax due under this article and under a sales tax\nimposed pursuant to section twelve hundred ten or twelve hundred eleven\nupon sales of such motor vehicles, snowmobiles, vessels or all terrain\nvehicles by persons other than dealers registered under sections four\nhundred fifteen, twenty-two hundred twenty-two, twenty-two hundred\nfifty-seven and twenty-two hundred eighty-two of the vehicle and traffic\nlaw. Such county clerks and such commissioner shall also act as such\nagents to collect any compensating use tax due under section eleven\nhundred ten and under a compensating use tax imposed pursuant to section\ntwelve hundred ten or twelve hundred eleven for the use of a motor\nvehicle, snowmobile, vessel or all terrain vehicle within this state.\nThe commissioner of motor vehicles shall act as such agent without fee.\nEach such county clerk shall, after deducting his fee as provided in\nparagraph two of this subdivision, and such commissioner shall remit to\nthe tax commission all funds collected pursuant to this subdivision and\nshall follow such procedures and keep such records as shall be\nprescribed by the tax commission.\n (2) Each such county clerk shall retain, from the state and local\nsales and compensating use taxes which he collects, the sum of one\ndollar for each of the first five thousand motor vehicles or all terrain\nvehicles in respect to which he has issued a certificate setting forth\nthe proof required by subdivision (f) of this section and subdivision\n(d) of section twelve hundred fourteen of this chapter during each\nannual period commencing on the first day of September and ending on the\nnext succeeding thirty-first day of August and the sum of seventy-five\ncents for each motor vehicle or all terrain vehicle in excess of five\nthousand for which he has issued such a certificate during such annual\nperiod. Each such county clerk shall also retain, from the state and\nlocal sales and compensating use taxes he collects, the sum of fifty\ncents for each snowmobile and vessel in respect to which he has issued a\ncertificate setting forth the proof required by subdivision (f) of this\nsection and subdivision (d) of section twelve hundred fourteen of this\nchapter. Such fees shall be payable even though the certificate issued\nshows that no tax is due. Such fees shall belong to the county and be\npaid into the county treasury monthly on or before the tenth day of the\nmonth pursuant to section two hundred one of the county law. The county\nshall pay all expenses occasioned by the duties of the county clerk\nunder this subdivision, including any expenses for hire of extra clerks.\n (h) (1) (i) No person shall purchase motor fuel in this state,\nexcluding a purchase at retail, unless the tax required to be prepaid by\nsubdivision (a) of section eleven hundred two of this article has been\nassumed by a distributor registered under article twelve-A of this\nchapter in accordance with a certification under this paragraph or paid\nby such distributor, and, in each of such instances, is passed through\nto such purchaser. In addition to any other civil and criminal penalties\nwhich may apply, any person who purchases motor fuel in violation of\nthis subparagraph shall be jointly and severally liable to pay the tax\nrequired to be prepaid by section eleven hundred two of this article\nwith respect to such motor fuel.\n (ii) For the purpose of the proper administration of this article and\nto prevent evasion of the tax on motor fuel imposed by and pursuant to\nthis article, it shall be presumed that all motor fuel imported,\nmanufactured or sold, received or possessed in the state is intended for\nuse, distribution, storage or sale in the state and subject to the tax\nrequired to be prepaid by section eleven hundred two of this article\nuntil the contrary is established. It shall be further presumed that all\nmotor fuel so imported, manufactured, sold, received or possessed in the\nstate by any person, other than motor fuel delivered into the ordinary\nfuel tank connected with the engine of a means of conveyance in order to\npropel it, or in small drums or similar containers, which such person\ncannot otherwise account for, is subject to the tax required to be\nprepaid under section eleven hundred two of this article and such person\nis responsible for such prepayment. Provided, however, a distributor of\nmotor fuel who imports, manufactures or sells and stores in the state or\nwho purchases and stores motor fuel in the state on which he has prepaid\nthe tax required to be prepaid pursuant to section eleven hundred two of\nthis article shall be allowed an adjustment in arriving at the gallons\nsubject to the taxes imposed by such section on account of the gallons\nthe distributor establishes were lost due to shrinkage, evaporation and\nhandling; provided, however, such allowance shall not exceed two percent\nof the fuel stored. Provided, further, that in arriving at the gallons\nof motor fuel subject to the tax required to be prepaid pursuant to\nsection eleven hundred two of this article, there shall be allowed an\nadjustment on account of gallons lost or destroyed due to an accident,\nsuch as fire, and at the time of such loss or destruction were being\nheld or transported for sale other than at retail. The burden of proving\nthat any motor fuel is not so subject shall be upon the person so\nresponsible for such prepayment with respect to such fuel.\n (iii) Upon each sale of motor fuel, other than a sale at retail, the\nseller must give to the purchaser and the purchaser shall receive, at\nthe time of delivery of such motor fuel, a certification containing such\ninformation as the tax commission shall require which shall include a\nstatement to the effect (A) if such seller is a distributor registered\nunder article twelve-A of this chapter, that he has assumed the payment\nof or paid the tax required to be prepaid by section eleven hundred two\nof this article and, in each case, is passing through such tax or (B)\nthat such seller is passing through such tax which was so previously\nassumed or paid by an identified distributor registered under article\ntwelve-A of this chapter, and passed through to him.\n (iv) If the certification required by this paragraph has been\nfurnished to the purchaser by the seller at delivery and accepted in\ngood faith, the burden of proving that the tax required to be paid by\nsection eleven hundred two of this article was assumed or paid by a\ndistributor registered as such under article twelve-A of this chapter\nand passed through shall be solely on the seller.\n (v) Where the certification required under this paragraph is not\nfurnished by the seller at delivery of motor fuel, it shall be presumed\nthat the tax required to be prepaid by section eleven hundred two of\nthis article has not been assumed or paid by a distributor registered as\nsuch under article twelve-A of this chapter and that the purchaser in\nsuch case is jointly and severally liable for the tax.\n (vi) If, due to the circumstances of delivery, it is not possible to\nissue a certification required under this paragraph at the time of\ndelivery of motor fuel, the tax commission may authorize the delivery of\nthe certification required under this paragraph at a time after the\ndelivery of the motor fuel which is the subject of the sale under the\nlimited circumstances it shall prescribe and upon such terms and\nconditions it shall deem necessary to ensure collection of the tax\nimposed by section eleven hundred two of this article and the motor fuel\ntaxes imposed by article twelve-A of this chapter.\n (2) (i) Except with respect to the exemptions from the prepaid tax on\nDiesel motor fuel set forth in paragraph two of subdivision (a) of\nsection eleven hundred two of this article, no person shall purchase\nDiesel motor fuel in this state unless the prepaid tax has been assumed\nby a registered distributor of Diesel motor fuel in accordance with a\ncertification under this paragraph or paid by such distributor and, in\neach of such instances, except in the case of a purchase at retail, are\npassed through to such purchaser. In addition to any other civil and\ncriminal penalties which may apply, any person who purchases Diesel\nmotor fuel without having received a certification from the seller in\naccordance with this paragraph shall be jointly and severally liable to\npay the tax required to be prepaid by section eleven hundred two of this\narticle with respect to such Diesel motor fuel.\n (ii) For purposes of the proper administration of this article and to\nprevent evasion of the taxes imposed on Diesel motor fuel by this\narticle, it shall be presumed that all Diesel motor fuel sold, received\nor possessed in the state is subject to the taxes imposed by this\narticle until the contrary is established. It shall be further presumed\nthat any person so selling, receiving or possessing such Diesel motor\nfuel is responsible for payment of the excise taxes on such fuel.\n (iii) The exemption from the tax required to be prepaid by section\neleven hundred two of this article provided for in paragraph two of\nsubdivision (a) of section eleven hundred two of this article shall be\nestablished by means of an interdistributor sale certificate. If such\nexemption is applicable, such certificate shall be provided by the\npurchaser to the seller at the time of or prior to delivery of the\nDiesel motor fuel. Such certificate shall set forth the name and address\nof the purchaser, the purchaser's registration number, an affirmation by\nsuch purchaser that the purchaser is registered as a distributor of\nDiesel motor fuel and that such registration has not been suspended or\ncancelled and shall be signed by such purchaser and by the seller. Such\ncertificate shall be in such form and contain such other information as\nthe commissioner of taxation and finance shall require. Where a proper\nand complete interdistributor sale certificate has been furnished and\naccepted by the seller in good faith, such certificate under such\ncircumstance shall relieve the seller of the burden of proving that the\nDiesel motor fuel covered by such certificate is exempt from the tax\nrequired to be prepaid by section eleven hundred two of this article by\nreason of paragraph two of subdivision (a) of section eleven hundred two\nof this article. For purposes of this subparagraph, a seller shall not\nhave accepted such certificate in good faith if the purchaser's\nregistration is invalid because it has been suspended or cancelled, or\nif the purchaser is not registered, and the commissioner of taxation and\nfinance has furnished registered distributors with information\nidentifying all those persons then validly registered as distributors of\nDiesel motor fuel and those persons whose registrations have been\nsuspended or cancelled. Any purchaser who furnishes to his seller a\nfalse or fraudulent interdistributor sale certificate for the purpose of\nestablishing an exemption from the tax required to be prepaid by section\neleven hundred two of this article shall be jointly and severally liable\nfor the tax imposed by such section.\n (iv) (A) Upon each sale, other than a retail sale at a filling\nstation, the seller must give to the purchaser and the purchaser shall\nreceive at the time of delivery of such Diesel motor fuel, a\ncertification containing such information as the commissioner of\ntaxation and finance shall require which, unless otherwise provided in\nthis paragraph, shall include a statement to the effect: (i) if such\nseller is a distributor registered under article twelve-A of this\nchapter, that he has assumed the payment of or paid the taxes imposed by\nthis article and, in each case, is passing through such taxes; (ii) that\nsuch seller is passing through such taxes which were so previously\nassumed or paid by an identified distributor registered under article\ntwelve-A of this chapter, and passed through to him; or (iii) if such\nseller is making a retail sale to a purchaser, that such taxes are not\nbeing passed through on the retail sale of Diesel motor fuel, in\naccordance with subparagraph (i) of this paragraph. In the case of a\nsale of Diesel motor fuel described in paragraph two of subdivision (a)\nof section eleven hundred two of this article which is exempt from the\ntax required to be prepaid by section eleven hundred two, the\ncertificate, in lieu of the foregoing statements, shall state that,\nbased upon good faith reliance on the interdistributor sales\ncertificate, such Diesel motor fuel is being sold under the\ncircumstances described in such paragraph two of subdivision (a) of\nsection eleven hundred two and that the tax imposed by section eleven\nhundred two of this article is not applicable.\n (B) In the case of a sale of Diesel motor fuel subject to the tax\nrequired to be prepaid by section eleven hundred two of this article and\nin all cases where such tax is required to be passed through, if the\ncertification required by this subparagraph has been furnished to the\npurchaser at the time of delivery of such fuel and accepted in good\nfaith, the burden of proving that the tax required to be prepaid by\nsection eleven hundred two of this article was assumed or paid by a\ndistributor registered as such under article twelve-A of this chapter\nand passed through shall be solely on the seller.\n (C) Where the certification required under this subdivision is not\nfurnished by the seller at the time of delivery of the Diesel motor\nfuel, it shall be presumed that the tax required to be prepaid by\nsection eleven hundred two of this article is due and owing and has not\nbeen assumed or paid by a distributor registered as such under article\ntwelve-A of this chapter and that the purchaser in such case is jointly\nand severally liable for the tax.\n (D) If, due to the circumstances of delivery, it is not possible to\nissue a certification required under this subdivision at the time of\ndelivery of Diesel motor fuel, the commissioner of taxation and finance\nmay authorize the delivery of the certification required under this\nsubdivision at a time after the delivery of the Diesel motor fuel which\nis the subject of the sale under the limited circumstances he shall\nprescribe and upon such terms and conditions he shall deem necessary to\nensure collection of the tax imposed by section eleven hundred two of\nthis article and the Diesel motor fuel taxes imposed by article twelve-A\nof this chapter.\n (3) (i) For the purpose of the proper administration of this article\nand to prevent evasion of the tax hereby imposed, it shall be presumed\nthat all retail sales of motor fuel or diesel motor fuel are subject to\nthe tax required to be collected by subdivision (a) of section eleven\nhundred five of this article or paid by the provisions of section eleven\nhundred ten of this article until the contrary is established, and it\nshall be presumed that all motor fuel or diesel motor fuel imported,\nmanufactured, sold, received or possessed by any person in this state,\nwhich such person cannot otherwise account for as having been sold\nsubject to the tax required to be collected by subdivision (a) of\nsection eleven hundred five or paid by the provisions of section eleven\nhundred ten of this article, has been sold subject to the tax required\nto be collected by subdivision (a) of section eleven hundred five or\npaid by the provisions of section eleven hundred ten except that no such\npresumption shall apply with respect to motor fuel or diesel motor fuel\nin the fuel tank of a motor vehicle used to propel such vehicle or to\nmotor fuel in small drums or similar containers. The burden of proving\nthat any sale is not so subject shall be upon the person required to\ncollect such tax and the purchaser of such fuel.\n (ii) Unless the vendor has received from the purchaser a statement or\ncertificate in such form as the commissioner may require, that the\npurchaser pursuant to the provisions of subdivision (a) of section\neleven hundred five-A, subdivision (j) of section eleven hundred fifteen\nor subdivision (b) of section eleven hundred sixteen of this article is\nnot subject to the provisions of this paragraph, such sale shall be\ndeemed a sale subject to the provisions of sections eleven hundred five\nand eleven hundred ten of this article notwithstanding any provision of\nsubdivision (c) of this section.\n (iii) Where any certificate or statement required under this paragraph\nhas been furnished to the vendor and accepted in good faith, the burden\nof proving that the receipt is not taxable hereunder shall be solely\nupon the purchaser. The vendor shall not be required to collect such\ntaxes from purchasers who furnish such certificates or statements in\nproper form.\n (i) The commissioner shall, by regulation, provide for a certificate\nwhich must be furnished by a purchaser of a large volume of motor fuel\nor diesel motor fuel who or which is commonly referred to as a\ncommercial account where such purchase is for consumption by such\npurchaser and is not resold in order for the sales tax on such sale to\nbe based on the actual receipts therefor.\n (k) (1) (i) No person shall purchase cigarettes in this state, other\nthan in a purchase at retail, unless the tax required to be prepaid by\nsubdivision (a) of section eleven hundred three of this article has been\npaid by an agent and passed through by such agent and by a wholesale\ndealer or retail dealer, authorized, licensed or registered under\narticle twenty of this chapter, in accordance with a certification under\nthis paragraph or paid by such agent, wholesale dealer or retail dealer,\nand, in each of such instances, is passed through to such purchaser. In\naddition to any other civil and criminal penalties which may apply, any\nperson who purchases cigarettes in violation of this subparagraph shall\nbe jointly and severally liable to pay the tax required to be prepaid by\nsection eleven hundred three of this article with respect to such\ncigarettes.\n (ii) For the purpose of the proper administration of this article and\nto prevent evasion of the tax on sales and uses of cigarettes imposed by\nthis article and pursuant to the authority of article twenty-nine of\nthis chapter, it shall be presumed that all cigarettes possessed in this\nstate, other than four hundred or fewer cigarettes brought into the\nstate by, or in the possession of, any person, are intended for sale or\nuse in the state and subject to the tax required to be prepaid by\nsection eleven hundred three of this article until the contrary is\nestablished and that such person is responsible for such prepayment.\n (iii) Upon each sale of cigarettes, other than a sale at retail, the\nseller must give to the purchaser and the purchaser shall receive, at\nthe time of delivery of such cigarettes, a certification containing such\ninformation as the commissioner shall require which shall include a\nstatement to the effect (A) if such seller is an agent under article\ntwenty of this chapter, that such agent has paid the amount of tax\nrequired to be prepaid by section eleven hundred three of this article\nand is passing through such amount of tax, or (B) that such seller is\npassing through such amount of tax which was so previously assumed or\npaid by an agent under article twenty of this chapter identified on such\ncertification, and passed through to such seller.\n (iv) If the certification required by this paragraph has been\nfurnished to the purchaser by the seller at delivery and accepted in\ngood faith on cigarettes bearing a cigarette tax stamp under article\ntwenty of this chapter and this article of an issue currently in effect,\nthe burden of proving that the tax required to be paid by section eleven\nhundred three of this article was assumed or paid by an agent licensed\nas such under article twenty of this chapter and passed through shall be\nsolely on the seller.\n (v) Where the certification required under this paragraph is not\nfurnished by the seller to the purchaser at delivery of cigarettes, it\nshall be presumed that no amount of tax required to be prepaid by\nsection eleven hundred three of this article has been paid by an agent\nauthorized as such under article twenty of this chapter and that the\npurchaser in such case is jointly and severally liable for the tax\nimposed by such section eleven hundred three.\n (2) (i) For the purpose of the proper administration of this article\nand to prevent evasion of the tax imposed under this article, it shall\nbe presumed that all retail sales of cigarettes are subject to the tax\nimposed by subdivision (a) of section eleven hundred five and required\nto be collected by section eleven hundred thirty-two of this article or\nrequired to be paid by the provisions of section eleven hundred ten of\nthis article until the contrary is established; and it shall be presumed\nthat all cigarettes possessed in this state, which such person cannot\notherwise account for as having been sold subject to the tax imposed by\nsubdivision (a) of section eleven hundred five and required to be\ncollected by section eleven hundred thirty-two or required to be paid by\nthe provisions of section eleven hundred ten of this article, have been\nsold subject to the tax imposed by subdivision (a) of section eleven\nhundred five and required to be collected by section eleven hundred\nthirty-two or required to be paid by the provisions of section eleven\nhundred ten, except that no such presumption shall apply with respect to\nfour hundred or fewer cigarettes brought into the state by, or in the\npossession of, any person. The burden of proving that any sale is not so\nsubject to tax shall be upon the person required to collect such tax and\nthe purchaser or user of such cigarettes.\n (ii) Unless the vendor has received from the purchaser a statement or\ncertificate, in such form as the commissioner may require, that the\npurchaser pursuant to the provisions of paragraph six of subdivision (b)\nof section eleven hundred sixteen of this article is not subject to the\nprovisions of this paragraph, such sale shall be deemed a sale subject\nto the provisions of sections eleven hundred five and eleven hundred ten\nof this article notwithstanding any provision of subdivision (c) of this\nsection.\n (iii) Where any certificate or statement required under this paragraph\nhas been furnished to the vendor and accepted in good faith, the burden\nof proving that the receipt is not taxable hereunder shall be solely\nupon the purchaser. The vendor shall not be required to collect such\ntaxes from purchasers who furnish such certificates or statements in\nproper form.\n (l)(1) A marketplace provider with respect to a sale of tangible\npersonal property it facilitates: (A) shall have all the obligations and\nrights of a vendor under this article and article twenty-nine of this\nchapter and under any regulations adopted pursuant thereto, including,\nbut not limited to, the duty to obtain a certificate of authority, to\ncollect tax, file returns, remit tax, and the right to accept a\ncertificate or other documentation from a customer substantiating an\nexemption or exclusion from tax, the right to receive the refund\nauthorized by subdivision (e) of this section and the credit allowed by\nsubdivision (f) of section eleven hundred thirty-seven of this part\nsubject to the provisions of such subdivisions; and (B) shall keep such\nrecords and information and cooperate with the commissioner to ensure\nthe proper collection and remittance of tax imposed, collected or\nrequired to be collected under this article and article twenty-nine of\nthis chapter.\n (2) A marketplace seller who is a vendor is relieved from the duty to\ncollect tax in regard to a particular sale of tangible personal property\nsubject to tax under subdivision (a) of section eleven hundred five of\nthis article and shall not include the receipts from such sale in its\ntaxable receipts for purposes of section eleven hundred thirty-six of\nthis part if, in regard to such sale: (A) the marketplace seller can\nshow that such sale was facilitated by a marketplace provider from whom\nsuch seller has received in good faith a properly completed certificate\nof collection in a form prescribed by the commissioner, certifying that\nthe marketplace provider is registered to collect sales tax and will\ncollect sales tax on all taxable sales of tangible personal property by\nthe marketplace seller facilitated by the marketplace provider, and with\nsuch other information as the commissioner may prescribe; and (B) any\nfailure of the marketplace provider to collect the proper amount of tax\nin regard to such sale was not the result of such marketplace seller\nproviding the marketplace provider with incorrect information. This\nprovision shall be administered in a manner consistent with subparagraph\n(i) of paragraph one of subdivision (c) of this section as if a\ncertificate of collection were a resale or exemption certificate for\npurposes of such subparagraph, including with regard to the completeness\nof such certificate of collection and the timing of its acceptance by\nthe marketplace seller. Provided that, with regard to any sales of\ntangible personal property by a marketplace seller that are facilitated\nby a marketplace provider who is affiliated with such marketplace seller\nwithin the meaning of paragraph one of subdivision (e) of section eleven\nhundred one of this article, the marketplace seller shall be deemed\nliable as a person under a duty to act for such marketplace provider for\npurposes of subdivision one of section eleven hundred thirty-one of this\npart.\n (3) The commissioner may, in his or her discretion: (A) develop a\nstandard provision, or approve a provision developed by a marketplace\nprovider, in which the marketplace provider obligates itself to collect\nthe tax on behalf of all the marketplace sellers for whom the\nmarketplace provider facilitates sales of tangible personal property,\nwith respect to all sales that it facilitates for such sellers where\ndelivery occurs in the state; and (B) provide by regulation or otherwise\nthat the inclusion of such provision in the publicly-available agreement\nbetween the marketplace provider and marketplace seller will have the\nsame effect as a marketplace seller's acceptance of a certificate of\ncollection from such marketplace provider under paragraph two of this\nsubdivision.\n (m) (1) A booking service with respect to a sale for every occupancy\nof a short term rental unit it facilitates: (A) shall have all the\nobligations and rights of a vendor under this article and article\ntwenty-nine of this chapter and under any regulations adopted pursuant\nthereto, including, but not limited to, the duty to obtain a certificate\nof authority, to collect tax, file returns, remit tax, and the right to\naccept a certificate or other documentation from a customer\nsubstantiating an exemption or exclusion from tax, the right to receive\nthe refund authorized by subdivision (e) of this section and the credit\nallowed by subdivision (f) of section eleven hundred thirty-seven of\nthis part subject to the provisions of such subdivisions; and (B) shall\nkeep such records and information and cooperate with the commissioner to\nensure the proper collection and remittance of tax imposed, collected,\nor required to be collected under this article and article twenty-nine\nof this chapter.\n (2) An operator is relieved from the duty to collect tax in regard to\na particular rent for the occupancy of a short term rental unit subject\nto tax under subdivision (e) of section eleven hundred five of this\narticle and shall not include the rent from such occupancy in its\ntaxable sales for purposes of section eleven hundred thirty-six of this\npart if in regard to such occupancy:\n (A) the operator of the short term rental can show that such occupancy\nwas facilitated by a booking service from whom such operator has\nreceived in good faith a properly completed certificate of collection in\na form prescribed by the commissioner certifying that the booking\nservice is registered to collect sales tax and will collect sales tax on\nall taxable sales of occupancy of a short term rental unit by the\noperator facilitated by the booking service, and with such other\ninformation as the commissioner may prescribe; and\n (B) any failure of the booking service to collect the proper amount of\ntax in regard to such sale was not the result of such operator providing\nthe booking service with incorrect information.\n This provision shall be administered in a manner consistent with\nsubparagraph (i) of paragraph one of subdivision (c) of this section as\nif a certificate of collection were a resale or exemption certificate\nfor purposes of such subparagraph, including with regard to the\ncompleteness of such certificate of collection and the timing of its\nacceptance by the operator. Provided that with regard to any sales of\noccupancy of a short term rental unit by an operator that are\nfacilitated by a booking service who is affiliated with such operator\nwithin the meaning of paragraph ten of subdivision (c) of section eleven\nhundred one of this article, the operator shall be deemed liable as a\nperson under a duty to act for such booking service for purposes of\nsubdivision one of section eleven hundred thirty-one of this part.\n (3) The commissioner may, at their discretion: (A) develop a standard\nprovision, or approve a provision developed by a booking service, in\nwhich the booking service obligates itself to collect the tax on behalf\nof all operators for whom the booking service facilitates sales of\noccupancy of a short term rental unit, with respect to all sales that it\nfacilitates for such operators where the rental occurs in the state; and\n(B) provide by regulation or otherwise that the inclusion of such\nprovision in the publicly-available agreement between the booking\nservice and operator will have the same effect as an operator's\nacceptance of a certificate of collection from such booking service\nunder paragraph two of this subdivision.\n