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A07400 Summary:

BILL NOA07400
 
SAME ASSAME AS S05989
 
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
 
                               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
 
        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. Subdivision 1 of section 421 of the tax law, as amended by
     2  chapter 508 of the laws of 1993, is amended to read as follows:
     3    1. General. The commissioner, upon the application of  a  distributor,
     4  shall  register  such  distributor  in  suitable books to be kept by the
     5  department for that purpose, conditioned upon the obtaining of appropri-
     6  ate licenses pursuant to the alcoholic beverage  control  law,  and  the
     7  continuance of such license shall be a continuing condition of registra-
     8  tion  as a distributor under this article. The application shall be in a
     9  form and contain such data  as  the  commissioner  shall  prescribe.  No
    10  distributor,  unless  so  registered,  shall  make any sale of alcoholic
    11  beverages within this state, except a sale, if any,  as  to  which  this
    12  state  is  without  power to impose such condition. No person, unless so
    13  registered, shall (i) import or cause any liquors to be imported in this
    14  state for sale or use within  this  state,  (ii)  purchase  a  warehouse
    15  receipt and pursuant to such purchase then cause liquors covered by such
    16  receipt  to be removed from a warehouse in this state or (iii) except in
    17  accordance with clause (i) or (ii) of paragraph (b) of subdivision  four
    18  of  section four hundred twenty of this article, produce, distill, manu-
    19  facture, compound, mix or ferment any such liquors within this state for
    20  sale. Provided, however, that the commissioner may exclude  from  regis-
    21  tration  requirements  any person who is a distributor of liquors solely
    22  by reason of the importation into this state of  no  more  than  [ninety
    23  liters] twenty-four gallons of liquors during a one-year period for such
    24  person's  personal use and consumption to register as a distributor with
    25  respect to liquor. Provided, further, that an  abbreviated  registration
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07572-01-7

        A. 7400                             2
 
     1  in the [from] form of a permit, without a bond, may be instituted by the
     2  commissioner  for  the  purpose  of authorizing the importation of up to
     3  [three hundred sixty liters] ninety-five gallons  of  liquors  per  year
     4  into  this state by an individual for such individual's personal use and
     5  consumption in this state.
     6    § 2. Paragraphs (e), (f) and (g) of subdivision 1 of  section  424  of
     7  the  tax  law,  paragraph  (e)  as amended by chapter 190 of the laws of
     8  1990, paragraph (f) and  the  opening  paragraph  of  paragraph  (g)  as
     9  amended  by chapter 508 of the laws of 1993 and paragraph (g) as amended
    10  by chapter 433 of the laws of 1978, are amended to read as follows:
    11    (e) [Sixty-seven] Two dollars and fifty-four cents per [liter]  gallon
    12  upon  liquors containing not more than twenty-four per centum of alcohol
    13  by volume except liquors containing not more  than  two  per  centum  of
    14  alcohol by volume, upon which the tax shall be [one cent] four cents per
    15  [liter] gallon; and
    16    (f)  [One  dollar]  Six  dollars  and  [seventy]  forty-four cents per
    17  [liter] gallon upon all other liquors; when sold  or  used  within  this
    18  state, except when sold or used under such circumstances that this state
    19  is  without  power  to impose such tax or when sold to the United States
    20  and except beers when sold to or by a voluntary unincorporated organiza-
    21  tion of the armed forces of the United States operating a place for  the
    22  sale  of  goods  pursuant  to regulations promulgated by the appropriate
    23  executive agency of the United States, to the extent  provided  in  such
    24  regulations, directives and policy statements of such an agency applica-
    25  ble  to  such  sales,  and  except  when  sold  to  professional foreign
    26  consuls-general, consuls and vice-consuls who are nationals of the state
    27  appointing them and who are  assigned  to  foreign  consulates  in  this
    28  state,  provided  that  American consular officers of equal rank who are
    29  citizens of the United States and who exercise their official  functions
    30  at  American  consulates  in such foreign country are granted reciprocal
    31  exemptions; provided, however, that the commissioner may permit the sale
    32  of alcohol without tax to a holder of  any  industrial  alcohol  permit,
    33  alcohol  permit  or  alcohol  distributor's  permit, issued by the state
    34  liquor authority, and by the holder of an alcohol distributor's  permit,
    35  class  A, issued by such authority to a holder of a distiller's license,
    36  class B, or a winery license, issued by  such  authority  and  may  also
    37  permit  the  use of alcohol for any purpose other than the production of
    38  alcoholic beverages by such holders without tax; provided also that  the
    39  commissioner  may  permit the sale of cider without tax by a holder of a
    40  cider producer's license issued by the state liquor authority to a hold-
    41  er of a cider producer's license or a cider wholesaler's license  issued
    42  by such authority.
    43    (g)  For  purposes  of  this  chapter, it is presumed that liquors are
    44  possessed for the purpose of sale in  this  state  if  the  quantity  of
    45  liquors  possessed in this state, imported or caused to be imported into
    46  this state or produced, distilled, manufactured,  compounded,  mixed  or
    47  fermented  in  this  state  exceeds [ninety liters] twenty-four gallons.
    48  Such presumption may be rebutted  by  the  introduction  of  substantial
    49  evidence  to  the  contrary. In any case where the quantity of alcoholic
    50  beverages taxable pursuant to this article is a fractional part  of  one
    51  [liter (or one] gallon [in the case of beers)] or an amount greater than
    52  a  whole  multiple  of [liters (or] gallons [in the case of beers)], the
    53  amount of tax levied and imposed on such fractional part of  one  [liter
    54  (or  one]  gallon  [in  the  case  of beers)], or a fractional part of a
    55  [liter (or] gallon[)] in excess of  a  whole  multiple  of  [liters  or]

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

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

        A. 7400                             5
 
     1    § 7. Subdivisions 1 and 2 of section 429 of the tax law, as amended by
     2  chapter 433 of the laws of 1978, are amended to read as follows:
     3    1. Every distributor, noncommercial importer or other person shall, on
     4  or  before  the twentieth day of each month, file with the department of
     5  taxation and finance a return, on forms to  be  prescribed  by  the  tax
     6  commission  and  furnished  by  such  department, stating separately the
     7  number of gallons, or lesser quantity, of  beers,  [and  the  number  of
     8  liters,  or  lesser quantity, of] wines and liquors sold or used by such
     9  distributor, noncommercial importer or other person in this state during
    10  the preceding calendar month, except that the tax commission may, if  it
    11  deems  it necessary in order to insure the payment of the tax imposed by
    12  this article, require returns to be made at such times and covering such
    13  periods as it may deem necessary. Such return shall contain such further
    14  information as the tax commission shall require. The fact that the  name
    15  of  the distributor, noncommercial importer or other person is signed to
    16  a filed return shall be prima facie evidence for all purposes  that  the
    17  return  was  actually signed by such distributor, noncommercial importer
    18  or other person.
    19    2. Each such distributor, noncommercial importer or other person shall
    20  pay to such department with the filing of such return, the  tax  imposed
    21  by  this  article,  on each gallon, or lesser quantity[, of beers and on
    22  each liter, or lesser quantity] of all [other] alcoholic beverages  sold
    23  or  used  by such distributor, noncommercial importer or other person in
    24  this state, as so reported, during the period covered  by  such  return,
    25  except that, where a distributor has purchased alcoholic beverages prior
    26  to  the  expiration  of the period covered by the return, upon which the
    27  taxes imposed by this article have been or are required to  be  paid  by
    28  another  distributor,  a  credit shall be allowed for the amount of such
    29  taxes.
    30    § 8. Paragraph (b) of subdivision 1 and subdivision 2 of  section  445
    31  of  the  tax  law,  as  amended  by chapter 433 of the laws of 1978, are
    32  amended to read as follows:
    33    (b) [Twenty-six] Ninety-nine and [four-tenths] nine-tenths  cents  per
    34  [liter]  gallon on the liquors described in paragraph (f) of subdivision
    35  one of section four hundred twenty-four, when sold or used in such city.
    36    2. Every local law imposing taxes pursuant to the authority of  subdi-
    37  vision  one shall also impose upon each person, other than a distributor
    38  within the meaning of such local law, who, on the date the taxes imposed
    39  pursuant to the authority of such subdivision become effective, owns and
    40  possesses for the purposes of sale beer, or  other  alcoholic  beverages
    41  described  in subdivision one, a floor tax at the rates applicable under
    42  subdivision one upon such beer in excess of one hundred gallons and upon
    43  such other alcoholic beverages in excess of [four] one hundred  [liters]
    44  and  five gallons.  Such floor tax shall be due and payable on the twen-
    45  tieth day of the month succeeding the month in which  the  taxes  become
    46  effective.
    47    §  9.  Paragraphs  2  and  3 of subdivision (e), paragraphs 2 and 3 of
    48  subdivision (f) and subdivision (g) of section 1813 of the tax  law,  as
    49  amended by section 27 of subpart I of part V-1 of chapter 57 of the laws
    50  of 2009, are amended to read as follows:
    51    (2)  Any person who, while not registered as a distributor pursuant to
    52  the provisions of article eighteen of this chapter, knowingly and inten-
    53  tionally imports or causes to be imported into this state, for  sale  or
    54  use  therein, more than [three hundred sixty liters] ninety-five gallons
    55  of liquors into this state in a one-year period or, except in accordance
    56  with clause (i) or (ii) of paragraph (b) of subdivision four of  section

        A. 7400                             6
 
     1  four hundred twenty of this chapter, knowingly and intentionally produc-
     2  es,  distills,  manufactures, compounds, mixes or ferments for sale more
     3  than [three hundred sixty liters] ninety-five gallons  of  such  liquors
     4  within  this  state  in a one-year period, or, as a purchaser of a ware-
     5  house receipt, knowingly  and  intentionally  causes  more  than  [three
     6  hundred sixty liters] ninety-five gallons of liquors in a one-year peri-
     7  od  to  be  removed from a warehouse in this state, shall be guilty of a
     8  class E felony.
     9    (3) For purposes of this subdivision, it shall be  presumed  that  the
    10  importation  or  the  causing  to  be  imported  into  this state or the
    11  production, distillation, manufacture, compounding, mixing or fermenting
    12  in this state of more than [ninety liters] twenty-four gallons  of  such
    13  liquors by any person in a one-year period is for purposes of sale. Such
    14  presumption  may be rebutted by the introduction of substantial evidence
    15  to the contrary.
    16    (2) Any person who, while not registered as  a  distributor  for  city
    17  purposes  pursuant  to the provisions of section four hundred forty-five
    18  of article eighteen of this chapter, knowingly and intentionally imports
    19  or causes to be imported into such city, for sale or use  therein,  more
    20  than  [three  hundred  sixty liters] ninety-five gallons of liquors into
    21  such city in a one-year period or, except in accordance with clause  (i)
    22  or  (ii)  of  paragraph  (b) of subdivision four of section four hundred
    23  twenty of this chapter as incorporated into such  section  four  hundred
    24  forty-five,  knowingly  and  intentionally  produces, distills, manufac-
    25  tures, compounds, mixes or ferments for sale more  than  [three  hundred
    26  sixty  liters] ninety-five gallons of such liquors within such city in a
    27  one-year period, or, as a purchaser of a  warehouse  receipt,  knowingly
    28  and  intentionally causes more than [three hundred sixty liters] ninety-
    29  five gallons of liquors in a one-year period to be removed from a  ware-
    30  house in this state, shall be guilty of a class E felony.
    31    (3)  For  purposes  of this subdivision, it shall be presumed that the
    32  importation or the  causing  to  be  imported  into  such  city  or  the
    33  production, distillation, manufacture, compounding, mixing or fermenting
    34  in such city of more than [ninety liters] twenty-four gallons of liquors
    35  by  any  person  in  a  one-year  period  is  for purposes of sale. Such
    36  presumption may be rebutted by the introduction of substantial  evidence
    37  to the contrary.
    38    (g)  Any  person,  other than the distributor registered under article
    39  eighteen of this chapter which imported or  caused  the  liquors  to  be
    40  imported  into this state, who shall willfully and knowingly have in his
    41  custody, possession or under his control liquors with respect  to  which
    42  the taxes imposed by or pursuant to the authority of article eighteen of
    43  this  chapter  have not been assumed or paid by a distributor registered
    44  as such under such article, shall be guilty of a class B misdemeanor; if
    45  such person shall willfully and knowingly have more than [ninety liters]
    46  twenty-four gallons of such liquors in  his  custody  or  possession  or
    47  under his control, such person shall be guilty of a class A misdemeanor;
    48  or  if  such  person  shall  knowingly  and intentionally have more than
    49  [three hundred sixty liters] ninety-five gallons of such liquors in  his
    50  custody  or possession or under his control, such person shall be guilty
    51  of a class E felony. For purposes of this subdivision, such person shall
    52  willfully and knowingly have in his custody,  possession  or  under  his
    53  control  any  liquors  with  respect  to  which such taxes have not been
    54  assumed or paid by a distributor registered as such  where  such  person
    55  has  knowledge  of the requirement of such taxes and where, to his know-

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