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A07400 Summary:

BILL NOA07400A
 
SAME ASSAME AS S05989-A
 
SPONSORGunther
 
COSPNSR
 
MLTSPNSR
 
Amd Tax L, generally
 
Relates to taxes imposed on alcoholic beverages with respect to liquors.
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A07400 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7400--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                     April 25, 2017
                                       ___________
 
        Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
          tee on Ways and Means -- committee discharged, bill  amended,  ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the tax law, in relation to taxes on alcoholic beverages
          with respect to liquors

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 420 of the tax law  is  amended  by  adding  a  new
     2  subdivision 17 to read as follows:
     3    17.  "Proof  gallon" means one gallon of spirits that is fifty percent
     4  alcohol at sixty degrees Fahrenheit.
     5    § 2. Subdivision 1 of section 421 of the tax law, as amended by  chap-
     6  ter 508 of the laws of 1993, is amended to read as follows:
     7    1.  General.  The commissioner, upon the application of a distributor,
     8  shall register such distributor in suitable books  to  be  kept  by  the
     9  department for that purpose, conditioned upon the obtaining of appropri-
    10  ate  licenses  pursuant  to  the alcoholic beverage control law, and the
    11  continuance of such license shall be a continuing condition of registra-
    12  tion as a distributor under this article. The application shall be in  a
    13  form  and  contain  such  data  as  the commissioner shall prescribe. No
    14  distributor, unless so registered, shall  make  any  sale  of  alcoholic
    15  beverages  within  this  state,  except a sale, if any, as to which this
    16  state is without power to impose such condition. No  person,  unless  so
    17  registered, shall (i) import or cause any liquors to be imported in this
    18  state  for  sale  or  use  within  this state, (ii) purchase a warehouse
    19  receipt and pursuant to such purchase then cause liquors covered by such
    20  receipt to be removed from a warehouse in this state or (iii) except  in
    21  accordance  with clause (i) or (ii) of paragraph (b) of subdivision four
    22  of section four hundred twenty of this article, produce, distill,  manu-
    23  facture, compound, mix or ferment any such liquors within this state for
    24  sale.  Provided,  however, that the commissioner may exclude from regis-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07572-03-7

        A. 7400--A                          2
 
     1  tration requirements any person who is a distributor of  liquors  solely
     2  by  reason  of  the  importation into this state of no more than [ninety
     3  liters] twenty-four proof gallons of liquors during  a  one-year  period
     4  for such person's personal use and consumption to register as a distrib-
     5  utor  with  respect  to  liquor.  Provided, further, that an abbreviated
     6  registration in the [from] form of a permit,  without  a  bond,  may  be
     7  instituted by the commissioner for the purpose of authorizing the impor-
     8  tation  of  up to [three hundred sixty liters] ninety-five proof gallons
     9  of liquors per year into this state by an individual for  such  individ-
    10  ual's personal use and consumption in this state.
    11    §  3.  Paragraphs  (e), (f) and (g) of subdivision 1 of section 424 of
    12  the tax law, paragraph (e) as amended by chapter  190  of  the  laws  of
    13  1990,  paragraph  (f)  and  the  opening  paragraph  of paragraph (g) as
    14  amended by chapter 508 of the laws of 1993 and paragraph (g) as  amended
    15  by chapter 433 of the laws of 1978, are amended to read as follows:
    16    (e) [Sixty-seven] Two dollars and fifty-three and six-tenths cents per
    17  [liter]  gallon  upon  liquors  containing not more than twenty-four per
    18  centum of alcohol by volume except liquors containing not more than  two
    19  per  centum of alcohol by volume, upon which the tax shall be [one cent]
    20  three and three-quarters cents per [liter] gallon; and
    21    (f) [One dollar] Six dollars and [seventy]  forty-three  and  one-half
    22  cents per [liter] proof gallon upon all other liquors; when sold or used
    23  within  this  state,  except  when sold or used under such circumstances
    24  that this state is without power to impose such tax or when sold to  the
    25  United States and except beers when sold to or by a voluntary unincorpo-
    26  rated  organization of the armed forces of the United States operating a
    27  place for the sale of goods pursuant to regulations promulgated  by  the
    28  appropriate  executive  agency  of  the  United  States,  to  the extent
    29  provided in such regulations, directives and policy statements  of  such
    30  an agency applicable to such sales, and except when sold to professional
    31  foreign  consuls-general,  consuls and vice-consuls who are nationals of
    32  the state appointing them and who are assigned to foreign consulates  in
    33  this  state,  provided that American consular officers of equal rank who
    34  are citizens of the United States and who exercise their official  func-
    35  tions  at American consulates in such foreign country are granted recip-
    36  rocal exemptions; provided, however, that the  commissioner  may  permit
    37  the  sale  of  alcohol without tax to a holder of any industrial alcohol
    38  permit, alcohol permit or alcohol distributor's permit,  issued  by  the
    39  state  liquor  authority,  and by the holder of an alcohol distributor's
    40  permit, class A, issued by such authority to a holder of  a  distiller's
    41  license,  class B, or a winery license, issued by such authority and may
    42  also permit the use of alcohol for any purpose other than the production
    43  of alcoholic beverages by such holders without tax; provided  also  that
    44  the commissioner may permit the sale of cider without tax by a holder of
    45  a  cider  producer's  license  issued by the state liquor authority to a
    46  holder of a cider producer's license or  a  cider  wholesaler's  license
    47  issued by such authority.
    48    (g)  For  purposes  of  this  chapter, it is presumed that liquors are
    49  possessed for the purpose of sale in  this  state  if  the  quantity  of
    50  liquors  possessed in this state, imported or caused to be imported into
    51  this state or produced, distilled, manufactured,  compounded,  mixed  or
    52  fermented  in  this  state  exceeds  [ninety  liters]  twenty-four proof
    53  gallons. Such  presumption  may  be  rebutted  by  the  introduction  of
    54  substantial  evidence to the contrary. In any case where the quantity of
    55  alcoholic beverages taxable pursuant to this  article  is  a  fractional
    56  part of one [liter] proof gallon (or one gallon in the case of beers) or

        A. 7400--A                          3
 
     1  an  amount  greater  than a whole multiple of [liters] proof gallons (or
     2  gallons in the case of beers), the amount of tax levied and  imposed  on
     3  such  fractional  part of one [liter] proof gallon (or one gallon in the
     4  case  of  beers),  or  a  fractional  part of a [liter] proof gallon (or
     5  gallon) in excess of a whole  multiple  of  [liters]  proof  gallons  or
     6  gallons  shall be such fractional part of the rate imposed by paragraphs
     7  (a) through (f).
     8    Notwithstanding any other provision of this article, the  tax  commis-
     9  sion may permit the purchase of liquors and wines without tax by a hold-
    10  er  of  a  distiller's  license or a winery license, issued by the state
    11  liquor authority from another holder  of  a  distiller's  license  or  a
    12  winery license, issued by such authority, in which event the liquors and
    13  wines so purchased shall be subject to the taxes imposed by this article
    14  in  the hands of the purchaser in the same manner and to the same extent
    15  as if such purchaser had imported or caused the same to be imported into
    16  this state or had produced, distilled, manufactured, brewed, compounded,
    17  mixed or fermented the same within this state.
    18    § 4. Subdivision 4 of section 424 of the tax law, as amended by  chap-
    19  ter 433 of the laws of 1978, is amended to read as follows:
    20    4.  [(a)]  Notwithstanding  any other provision of this article, there
    21  shall be exempt from the taxes imposed under this  article,  per  month,
    22  one-quart of alcoholic beverages (or one gallon of such beverages in the
    23  case  of  a  person arriving directly or indirectly from American Samoa,
    24  Guam or the Virgin Islands of the United States not more than  one-quart
    25  of  which  shall  have  been  acquired  elsewhere  than  in such insular
    26  possessions):
    27    [(i)] (a) purchased outside this state as an  incident  to  a  journey
    28  from which the purchaser is returning and
    29    [(ii)]  (b)  not  to  be  offered  for sale or used for any commercial
    30  purpose, provided such alcoholic beverages accompany such person on  his
    31  return to this state and provided, further, that in the case of a person
    32  arriving  in  this  state  from  other than a state of the United States
    33  (including the district of Columbia), the Virgin Islands of  the  United
    34  States  or  a  contiguous  country maintaining a free zone or free port,
    35  such person shall have remained beyond the  territorial  limits  of  the
    36  United States for a period of not less than forty-eight hours.
    37    [(b) Provided, however, where the amounts purchased outside this state
    38  or  brought  in  exceed  the  amounts specified in paragraph (a) of this
    39  subdivision but are not in excess of one liter in the case of the refer-
    40  ences to one-quart or four liters in the case of the  reference  to  one
    41  gallon,  and  where no duty is required by the laws of the United States
    42  to be paid on such amounts, such  metric  standards  of  fill  shall  be
    43  substituted for one-quart and one gallon, respectively, and such amounts
    44  shall  be exempt from tax under the conditions provided for in paragraph
    45  (a) of this subdivision.]
    46    § 5. Section 425-a of the tax law, as added by chapter 508 of the laws
    47  of 1993, is amended to read as follows:
    48    § 425-a. Presumption of taxability. For  the  purpose  of  the  proper
    49  administration  of  the  taxes  imposed  by  this article and to prevent
    50  evasion thereof, it shall be presumed with respect to this chapter  that
    51  all  alcoholic beverages possessed or found in this state are subject to
    52  the taxes imposed by this article until the contrary is  established  by
    53  substantial  evidence.  Except  with  respect to a purchase at retail of
    54  beers or wines and a purchase at retail of [ninety  liters]  twenty-four
    55  proof  gallons  or  less  of liquors, no person shall purchase alcoholic
    56  beverages in this state unless the taxes imposed by  this  article  with

        A. 7400--A                          4
 
     1  respect  to such beverages have been assumed by a distributor registered
     2  under this article or paid  by  such  distributor  pursuant  to  and  in
     3  accordance  with  the manner provided herein and evidenced in accordance
     4  with  the  manner  provided  herein.  In the case of liquors, such taxes
     5  shall be assumed  by  a  distributor  in  accordance  with  the  invoice
     6  required,  and  the certification of tax payment included therein, under
     7  section four hundred twenty-seven of this article; in the case of  other
     8  alcoholic  beverages,  the  taxes  shall  be assumed by such distributor
     9  pursuant to and in accordance with  the  rules  or  regulations  of  the
    10  department.
    11    §  6.  Subdivision 1 and paragraph (i) of subdivision 2 of section 427
    12  of the tax law, as added by chapter 508 of the laws of 1993, are amended
    13  to read as follows:
    14    1. Every sale of liquors, except a sale at retail of  [ninety  liters]
    15  twenty-four proof gallons or less, shall be evidenced by and recorded on
    16  an individual, serially numbered invoice, and, with respect to each such
    17  sale,  the  seller  therein  shall  make and complete such invoice which
    18  shall contain the information required by this section and give the same
    19  to the purchaser at the time of delivery. The seller shall sign and date
    20  the invoice required by this section and certify the entire  content  of
    21  such invoice.
    22    (i)  the [size (in liters)] volume per bottle and number of bottles of
    23  liquors sold, and its description, by brand name and price; and
    24    § 7. Subdivision 2 of section 428 of the tax law, as added by  chapter
    25  508 of the laws of 1993, is amended to read as follows:
    26    2.  The operator of a motor vehicle, as such term is defined in subdi-
    27  vision three of section two hundred eighty-two of this chapter,  or  any
    28  other  means  of transport of liquors in which more than [ninety liters]
    29  twenty-four proof gallons of liquors is being transported in this  state
    30  must have in his or her possession a manifest, invoice or other document
    31  which  shows  the  name and address of the person from whom such liquors
    32  were received and the date and place of receipt of such liquor  and  the
    33  name and address of every person to whom such operator is to make deliv-
    34  ery  of  the same and the place of delivery, together with the number of
    35  [liters] bottles and volume per bottle to be delivered to  each  person,
    36  and, if such liquor is being imported into the state in such motor vehi-
    37  cle  or  such  other  means  of  transport,  the name of the distributor
    38  importing or causing such liquors to be imported into the state and such
    39  other information as the commissioner may require pursuant  to  rule  or
    40  regulation.  Every operator of such motor vehicle or such other means of
    41  transport shall at the request of a peace officer,  acting  pursuant  to
    42  his  special duties, a police officer, any representative of the depart-
    43  ment or any other person authorized by law to inquire into  or  investi-
    44  gate  the transportation of such liquors, produce such manifest, invoice
    45  or other document for inspection. The person causing  the  operation  of
    46  such motor vehicle or such other means of transport shall be responsible
    47  to  cause  the  operator  to  keep in such operator's possession in such
    48  motor vehicle or such other means of transport the manifest, invoice  or
    49  other  document  required  by this section. The absence of the manifest,
    50  invoice or other document required by this section shall give rise to  a
    51  presumption  that  the  liquors  being transported are being imported or
    52  caused to be imported into this state for sale or use therein  by  other
    53  than  a  registered distributor.  Moreover, the absence of (1) the place
    54  of delivery of liquors on the manifest, invoice or other  document  with
    55  respect  to  liquors  being imported into the state shall give rise to a
    56  presumption that such liquors are being imported into the state for sale

        A. 7400--A                          5
 
     1  or use in the state and (2) the name of a registered distributor on  the
     2  manifest,  invoice  or  other  document  with  respect  to liquors being
     3  imported into the state shall give  rise  to  a  presumption  that  such
     4  liquors  are being so imported or caused to be imported into this state,
     5  for sale or use therein, by other than a  registered  distributor.  Such
     6  presumptions may be rebutted by the introduction of substantial evidence
     7  to the contrary.
     8    § 8. Subdivisions 1 and 2 of section 429 of the tax law, as amended by
     9  chapter 433 of the laws of 1978, are amended to read as follows:
    10    1. Every distributor, noncommercial importer or other person shall, on
    11  or  before  the twentieth day of each month, file with the department of
    12  taxation and finance a return, on forms to  be  prescribed  by  the  tax
    13  commission  and  furnished  by  such  department, stating separately the
    14  number of gallons or proof gallons, or lesser quantity, of  beers,  [and
    15  the  number of liters, or lesser quantity, of] wines and liquors sold or
    16  used by such distributor, noncommercial importer or other person in this
    17  state during the preceding calendar month, except that the  tax  commis-
    18  sion may, if it deems it necessary in order to insure the payment of the
    19  tax  imposed  by  this article, require returns to be made at such times
    20  and covering such periods as it may deem necessary.  Such  return  shall
    21  contain  such  further  information as the tax commission shall require.
    22  The fact that the name of the  distributor,  noncommercial  importer  or
    23  other  person  is signed to a filed return shall be prima facie evidence
    24  for all purposes that the return was actually signed by  such  distribu-
    25  tor, noncommercial importer or other person.
    26    2. Each such distributor, noncommercial importer or other person shall
    27  pay  to  such department with the filing of such return, the tax imposed
    28  by this article, on each gallon or proof gallon, or lesser quantity[, of
    29  beers and on each liter, or lesser quantity] of  all  [other]  alcoholic
    30  beverages  sold  or  used by such distributor, noncommercial importer or
    31  other person in this state, as so reported, during the period covered by
    32  such return, except that, where a distributor  has  purchased  alcoholic
    33  beverages  prior  to the expiration of the period covered by the return,
    34  upon which the taxes imposed by this article have been or  are  required
    35  to  be  paid  by  another distributor, a credit shall be allowed for the
    36  amount of such taxes.
    37    § 9. Paragraph (b) of subdivision 1 and subdivision 2 of  section  445
    38  of  the  tax  law,  as  amended  by chapter 433 of the laws of 1978, are
    39  amended to read as follows:
    40    (b) [Twenty-six] Ninety-nine and [four-tenths] nine-tenths  cents  per
    41  [liter] proof gallon on the liquors described in paragraph (f) of subdi-
    42  vision  one  of  section  four hundred twenty-four, when sold or used in
    43  such city.
    44    2. Every local law imposing taxes pursuant to the authority of  subdi-
    45  vision  one shall also impose upon each person, other than a distributor
    46  within the meaning of such local law, who, on the date the taxes imposed
    47  pursuant to the authority of such subdivision become effective, owns and
    48  possesses for the purposes of sale beer, or  other  alcoholic  beverages
    49  described  in subdivision one, a floor tax at the rates applicable under
    50  subdivision one upon such beer in excess of one hundred gallons and upon
    51  such other alcoholic beverages in excess of [four] one hundred  [liters]
    52  five  proof  gallons.    Such  floor tax shall be due and payable on the
    53  twentieth day of the month succeeding  the  month  in  which  the  taxes
    54  become effective.
    55    §  10.  Paragraphs  2  and 3 of subdivision (e), paragraphs 2 and 3 of
    56  subdivision (f) and subdivision (g) of section 1813 of the tax  law,  as

        A. 7400--A                          6
 
     1  amended by section 27 of subpart I of part V-1 of chapter 57 of the laws
     2  of 2009, are amended to read as follows:
     3    (2)  Any person who, while not registered as a distributor pursuant to
     4  the provisions of article eighteen of this chapter, knowingly and inten-
     5  tionally imports or causes to be imported into this state, for  sale  or
     6  use  therein,  more  than [three hundred sixty liters] ninety-five proof
     7  gallons of liquors into this state in a one-year period  or,  except  in
     8  accordance  with clause (i) or (ii) of paragraph (b) of subdivision four
     9  of section four hundred twenty of this  chapter,  knowingly  and  inten-
    10  tionally  produces, distills, manufactures, compounds, mixes or ferments
    11  for sale more  than  [three  hundred  sixty  liters]  ninety-five  proof
    12  gallons of such liquors within this state in a one-year period, or, as a
    13  purchaser  of  a  warehouse  receipt, knowingly and intentionally causes
    14  more than [three hundred sixty  liters]  ninety-five  proof  gallons  of
    15  liquors  in  a  one-year  period  to be removed from a warehouse in this
    16  state, shall be guilty of a class E felony.
    17    (3) For purposes of this subdivision, it shall be  presumed  that  the
    18  importation  or  the  causing  to  be  imported  into  this state or the
    19  production, distillation, manufacture, compounding, mixing or fermenting
    20  in this state of more than [ninety liters] twenty-four proof gallons  of
    21  such liquors by any person in a one-year period is for purposes of sale.
    22  Such  presumption  may  be  rebutted  by the introduction of substantial
    23  evidence to the contrary.
    24    (2) Any person who, while not registered as  a  distributor  for  city
    25  purposes  pursuant  to the provisions of section four hundred forty-five
    26  of article eighteen of this chapter, knowingly and intentionally imports
    27  or causes to be imported into such city, for sale or use  therein,  more
    28  than  [three  hundred sixty liters] ninety-five proof gallons of liquors
    29  into such city in a one-year period or, except in accordance with clause
    30  (i) or (ii) of paragraph (b) of subdivision four of section four hundred
    31  twenty of this chapter as incorporated into such  section  four  hundred
    32  forty-five,  knowingly  and  intentionally  produces, distills, manufac-
    33  tures, compounds, mixes or ferments for sale more  than  [three  hundred
    34  sixty liters] ninety-five proof gallons of such liquors within such city
    35  in  a  one-year period, or, as a purchaser of a warehouse receipt, know-
    36  ingly and intentionally causes more than [three  hundred  sixty  liters]
    37  ninety-five  proof gallons of liquors in a one-year period to be removed
    38  from a warehouse in this state, shall be guilty of a class E felony.
    39    (3) For purposes of this subdivision, it shall be  presumed  that  the
    40  importation  or  the  causing  to  be  imported  into  such  city or the
    41  production, distillation, manufacture, compounding, mixing or fermenting
    42  in such city of more than [ninety liters] twenty-four proof  gallons  of
    43  liquors by any person in a one-year period is for purposes of sale. Such
    44  presumption  may be rebutted by the introduction of substantial evidence
    45  to the contrary.
    46    (g) Any person, other than the distributor  registered  under  article
    47  eighteen  of  this  chapter  which  imported or caused the liquors to be
    48  imported into this state, who shall willfully and knowingly have in  his
    49  custody,  possession  or under his control liquors with respect to which
    50  the taxes imposed by or pursuant to the authority of article eighteen of
    51  this chapter have not been assumed or paid by a  distributor  registered
    52  as such under such article, shall be guilty of a class B misdemeanor; if
    53  such person shall willfully and knowingly have more than [ninety liters]
    54  twenty-four  proof  gallons of such liquors in his custody or possession
    55  or under his control, such person shall be guilty of a class A misdemea-
    56  nor; or if such person shall knowingly and intentionally have more  than

        A. 7400--A                          7
 
     1  [three  hundred  sixty liters] ninety-five proof gallons of such liquors
     2  in his custody or possession or under his control, such person shall  be
     3  guilty  of  a  class  E  felony.  For purposes of this subdivision, such
     4  person  shall willfully and knowingly have in his custody, possession or
     5  under his control any liquors with respect to which such taxes have  not
     6  been  assumed  or  paid  by  a distributor registered as such where such
     7  person has knowledge of the requirement of such taxes and where, to  his
     8  knowledge,  such  taxes  have  not  been assumed or paid by a registered
     9  distributor with respect to such liquors.
    10    § 11. Subdivisions (a), (k) and (l) of section 1845 of the tax law, as
    11  added by chapter 508 of the  laws  of  1993,  are  amended  to  read  as
    12  follows:
    13    (a) Temporary seizure. Whenever a police officer designated in section
    14  1.20  of  the  criminal  procedure  law or a peace officer designated in
    15  subdivision four of section 2.10 of such law,  acting  pursuant  to  his
    16  special  duties,  shall  discover  more than [ninety liters] twenty-four
    17  proof gallons of liquors which are being imported for sale or use in the
    18  state, where the person importing or causing such liquors to be imported
    19  is not registered as a distributor under section four hundred twenty-one
    20  of this chapter, such police officer or peace officer is hereby  author-
    21  ized to seize and take possession of such liquors, and to seize and take
    22  possession  of  the  vehicle  or  other  means of transportation used to
    23  transport such liquors.
    24    (k) An additional ground for seizure and forfeiture under this section
    25  shall be where such police officer or peace officer shall discover  more
    26  than [ninety liters] twenty-four proof gallons of liquors in this state,
    27  with  respect to which the taxes imposed by or pursuant to article eigh-
    28  teen of this chapter have not been paid or assumed by  a  person  regis-
    29  tered as a distributor pursuant to such article, which are in the course
    30  of distribution in this state or which are being sold in this state. All
    31  the  foregoing  subdivisions  of this section shall apply to the seizure
    32  and forfeiture of liquors referred to in this subdivision and the  vehi-
    33  cle transporting the same as if such foregoing subdivisions specifically
    34  referred to such grounds and as if such grounds set forth in this subdi-
    35  vision  were set forth as grounds for seizure in subdivision (a) hereof.
    36  Provided that in the forfeiture action with respect to  the  liquors  or
    37  vehicle  referred  to  in  this  subdivision,  the  department  shall be
    38  required to show that such liquors were found within the state and  that
    39  they were in the course of distribution in this state or were being sold
    40  in this state.
    41    (l)  This section shall also apply to a forfeiture action with respect
    42  to the importation  of  more  than  [ninety  liters]  twenty-four  proof
    43  gallons  of liquors into a city imposing a tax pursuant to the authority
    44  of section four hundred forty-five of  this  chapter  by  a  person  not
    45  registered  as  a  distributor for purposes of such tax or, in addition,
    46  with respect to the distribution or sale  of  untaxed  liquors  in  such
    47  city.
    48    §  12.  This act shall take effect on the ninetieth day after it shall
    49  have become a law; provided, however, that  effective  immediately,  the
    50  addition,  amendment  and/or  repeal of any rule or regulation necessary
    51  for the implementation of this act on its effective date are  authorized
    52  and directed to be made and completed on or before such date.
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