A06637 Summary:

BILL NOA06637
 
SAME ASSAME AS S00757
 
SPONSORBurke
 
COSPNSR
 
MLTSPNSR
 
Amd Tax L, generally
 
Establishes the gallon as the standard measurement for purposes of taxation of alcoholic beverages.
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A06637 Actions:

BILL NOA06637
 
03/14/2019referred to ways and means
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A06637 Committee Votes:

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A06637 Floor Votes:

There are no votes for this bill in this legislative session.
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A06637 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6637
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 14, 2019
                                       ___________
 
        Introduced  by M. of A. BURKE -- read once and referred to the Committee
          on Ways and Means
 
        AN ACT to amend the tax law, in relation to the  measurement  of  liquor
          for tax purposes
 
          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.
                                                                   LBD02603-01-9

        A. 6637                             2
 
     1  in the from 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 the opening paragraph of paragraph (g) of
     7  subdivision 1 of section 424 of the tax law, paragraph (e) as amended by
     8  chapter 190 of the laws of 1990, paragraph (f) and the opening paragraph
     9  of paragraph (g) as amended by chapter 508 of  the  laws  of  1993,  are
    10  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 and seventy] Six  dollars  and  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    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 fractional part of a  [liter
    55  (or]  gallon[)]  in  excess  of  a whole multiple of [liters or] gallons

        A. 6637                             3
 
     1  shall be such fractional part of the  rate  imposed  by  paragraphs  (a)
     2  through (f) of this subdivision.
     3    § 3. Section 425-a of the tax law, as added by chapter 508 of the laws
     4  of 1993, is amended to read as follows:
     5    §  425-a.  Presumption  of  taxability.  For the purpose of the proper
     6  administration of the taxes imposed  by  this  article  and  to  prevent
     7  evasion  thereof, it shall be presumed with respect to this chapter that
     8  all alcoholic beverages possessed or found in this state are subject  to
     9  the  taxes  imposed by this article until the contrary is established by
    10  substantial evidence. Except with respect to a  purchase  at  retail  of
    11  beers  or  wines and a purchase at retail of [ninety liters] twenty-four
    12  gallons or less of liquors, no person shall purchase alcoholic beverages
    13  in this state unless the taxes imposed by this article with  respect  to
    14  such  beverages have been assumed by a distributor registered under this
    15  article or paid by such distributor pursuant to and in  accordance  with
    16  the  manner  provided herein and evidenced in accordance with the manner
    17  provided herein. In the case of liquors, such taxes shall be assumed  by
    18  a  distributor  in accordance with the invoice required, and the certif-
    19  ication of tax payment included  therein,  under  section  four  hundred
    20  twenty-seven  of this article; in the case of other alcoholic beverages,
    21  the taxes shall be assumed  by  such  distributor  pursuant  to  and  in
    22  accordance with the rules or regulations of the department.
    23    § 4. Section 426 of the tax law, as amended by chapter 891 of the laws
    24  of 1986, is amended to read as follows:
    25    §  426.  Records  to be kept by brand owners, distributors, owners and
    26  others.  Every brand owner, distributor, owner  or  other  person  shall
    27  keep  a complete and accurate record of all purchases and sales or other
    28  dispositions of alcoholic beverages, and a complete and accurate  record
    29  of  the  number  of  gallons  of beers produced, manufactured, brewed or
    30  fermented  and  [liters]  gallons  of  all  other  alcoholic   beverages
    31  produced, distilled, manufactured, brewed, compounded, mixed or ferment-
    32  ed.  Such  records shall be in such form and contain such other informa-
    33  tion as the tax commission shall prescribe. Said commission, by rule  or
    34  regulation, also may require the delivery of statements to purchasers of
    35  alcoholic  beverages, and prescribe the matters to be contained therein.
    36  Such records and statements, unless required by the tax commission to be
    37  preserved for a longer period, shall be preserved for a  period  of  one
    38  year  and shall be offered for inspection at any time upon oral or writ-
    39  ten demand by the commissioner [of taxation and  finance]  or  his  duly
    40  authorized  agents,  and  every  such distributor, brand owner, owner or
    41  other person shall make such reports to the department [of taxation  and
    42  finance]  as  may  be  required  by  the tax commission. Nothing in this
    43  section contained shall be construed to require the keeping of a  record
    44  of  the  purchase  or  disposition  of alcoholic beverages by a consumer
    45  thereof, except by a person who uses the same for  commercial  purposes,
    46  or of the sale of alcoholic beverages at retail.
    47    §  5.  Subdivision 1 and paragraph (i) of subdivision 2 of section 427
    48  of the tax law, as added by chapter 508 of the laws of 1993, are amended
    49  to read as follows:
    50    1.  Every sale of liquors, except a sale at retail of [ninety  liters]
    51  twenty-four  gallons  or  less, shall be evidenced by and recorded on an
    52  individual, serially numbered invoice, and, with respect  to  each  such
    53  sale,  the  seller  therein  shall  make and complete such invoice which
    54  shall contain the information required by this section and give the same
    55  to the purchaser at the time of delivery. The seller shall sign and date

        A. 6637                             4
 
     1  the invoice required by this section and certify the entire  content  of
     2  such invoice.
     3    (i)  the  size  (in [liters] gallons) and number of bottles of liquors
     4  sold, and its description, by brand name and price; and
     5    § 6. Subdivision 2 of section 428 of the tax law, as added by  chapter
     6  508 of the laws of 1993, is amended to read as follows:
     7    2.  The operator of a motor vehicle, as such term is defined in subdi-
     8  vision three of section two hundred eighty-two of this chapter,  or  any
     9  other  means  of transport of liquors in which more than [ninety liters]
    10  twenty-four gallons of liquors is being transported in this  state  must
    11  have  in  his  or  her  possession a manifest, invoice or other document
    12  which shows the name and address of the person from  whom  such  liquors
    13  were  received  and the date and place of receipt of such liquor and the
    14  name and address of every person to whom such operator is to make deliv-
    15  ery of the same and the place of delivery, together with the  number  of
    16  [liters]  gallons to be delivered to each person, and, if such liquor is
    17  being imported into the state in such motor vehicle or such other  means
    18  of  transport,  the  name  of  the distributor importing or causing such
    19  liquors to be imported into the state and such other information as  the
    20  commissioner  may require pursuant to rule or regulation. Every operator
    21  of such motor vehicle or such other means  of  transport  shall  at  the
    22  request  of  a  peace  officer, acting pursuant to his special duties, a
    23  police officer, any representative of the department or any other person
    24  authorized by law to inquire into or investigate the  transportation  of
    25  such  liquors,  produce  such  manifest,  invoice  or other document for
    26  inspection. The person causing the operation of such  motor  vehicle  or
    27  such other means of transport shall be responsible to cause the operator
    28  to  keep  in  such  operator's  possession in such motor vehicle or such
    29  other means  of  transport  the  manifest,  invoice  or  other  document
    30  required  by this section. The absence of the manifest, invoice or other
    31  document required by this section shall give rise to a presumption  that
    32  the  liquors  being  transported  are  being  imported  or  caused to be
    33  imported into this state for sale or use therein by other than a  regis-
    34  tered  distributor.   Moreover, the absence of (1) the place of delivery
    35  of liquors on the manifest, invoice or other document  with  respect  to
    36  liquors  being  imported into the state shall give rise to a presumption
    37  that such liquors are being imported into the state for sale or  use  in
    38  the  state and (2) the name of a registered distributor on the manifest,
    39  invoice or other document with respect to liquors  being  imported  into
    40  the  state  shall give rise to a presumption that such liquors are being
    41  so imported or caused to be imported into this state, for  sale  or  use
    42  therein,  by  other than a registered distributor. Such presumptions may
    43  be rebutted by the introduction of substantial evidence to the contrary.
    44    § 7. Subdivisions 1 and 2 of section 429 of the tax law, as amended by
    45  chapter 433 of the laws of 1978, are amended to read as follows:
    46    1. Every distributor, noncommercial importer or other person shall, on
    47  or before the twentieth day of each month, file with the department  [of
    48  taxation  and  finance]  a  return, on forms to be prescribed by the tax
    49  commission and furnished by  such  department,  stating  separately  the
    50  number  of  gallons,  or  lesser  quantity, of beers, [and the number of
    51  liters, or lesser quantity, of] wines and liquors sold or used  by  such
    52  distributor, noncommercial importer or other person in this state during
    53  the  preceding calendar month, except that the tax commission may, if it
    54  deems it necessary in order to insure the payment of the tax imposed  by
    55  this article, require returns to be made at such times and covering such
    56  periods as it may deem necessary. Such return shall contain such further

        A. 6637                             5

     1  information  as the tax commission shall require. The fact that the name
     2  of the distributor, noncommercial importer or other person is signed  to
     3  a  filed  return shall be prima facie evidence for all purposes that the
     4  return  was  actually signed by such distributor, noncommercial importer
     5  or other person.
     6    2. Each such distributor, noncommercial importer or other person shall
     7  pay to such department with the filing of such return, the  tax  imposed
     8  by  this  article,  on each gallon, or lesser quantity, of [beers and on
     9  each liter, or lesser quantity of all  other]  all  alcoholic  beverages
    10  sold or used by such distributor, noncommercial importer or other person
    11  in this state, as so reported, during the period covered by such return,
    12  except that, where a distributor has purchased alcoholic beverages prior
    13  to  the  expiration  of the period covered by the return, upon which the
    14  taxes imposed by this article have been or are required to  be  paid  by
    15  another  distributor,  a  credit shall be allowed for the amount of such
    16  taxes.
    17    § 8. Paragraph (b) of subdivision 1 and subdivision 2 of  section  445
    18  of  the  tax  law,  as  amended  by chapter 433 of the laws of 1978, are
    19  amended to read as follows:
    20    (b) [Twenty-six and four-tenths] Ninety-nine and nine-tenths cents per
    21  [liter] gallon on the liquors described in paragraph (f) of  subdivision
    22  one  of  section  four hundred twenty-four of this article, when sold or
    23  used in such city.
    24    2. Every local law imposing taxes pursuant to the authority of  subdi-
    25  vision  one shall also impose upon each person, other than a distributor
    26  within the meaning of such local law, who, on the date the taxes imposed
    27  pursuant to the authority of such subdivision become effective, owns and
    28  possesses for the purposes of sale beer, or  other  alcoholic  beverages
    29  described  in  subdivision one of this section, a floor tax at the rates
    30  applicable under subdivision one  upon  such  beer  or  other  alcoholic
    31  beverages in excess of one hundred gallons [and upon such other alcohol-
    32  ic  beverages in excess of four hundred liters]. Such floor tax shall be
    33  due and payable on the twentieth day of the month succeeding  the  month
    34  in which the taxes become effective.
    35    §  9. Subdivisions (e), (f) and (g) of section 1813 of the tax law, as
    36  amended by section 27 of subpart I of part V-1 of chapter 57 of the laws
    37  of 2009, are amended to read as follows:
    38    (e) Person not registered as a distributor. (1) Any person required to
    39  be registered as a distributor pursuant to  the  provisions  of  article
    40  eighteen of this chapter who, while not so registered, knowingly imports
    41  or  causes  to  be imported into the state, for sale or use therein, any
    42  liquors or, who, except in accordance with clause (i) or (ii)  of  para-
    43  graph  (b)  of  subdivision  four of section four hundred twenty of this
    44  chapter, knowingly produces, distills, manufactures, compounds, mixes or
    45  ferments in this state any such liquors for sale, or who, as a purchaser
    46  of a warehouse receipt, knowingly causes liquors covered by such receipt
    47  to be removed from a warehouse in this state, shall be guilty of a class
    48  A misdemeanor. Provided, however, that any person  who  has  twice  been
    49  convicted  under  this section within the preceding five years, shall be
    50  guilty of a class E felony for any subsequent violation  of  this  para-
    51  graph.
    52    (2)  Any person who, while not registered as a distributor pursuant to
    53  the provisions of article eighteen of this chapter, knowingly and inten-
    54  tionally imports or causes to be imported into this state, for  sale  or
    55  use  therein, more than [three hundred sixty liters] ninety-five gallons
    56  of liquors into this state in a one-year period or, except in accordance

        A. 6637                             6
 
     1  with clause (i) or (ii) of paragraph (b) of subdivision four of  section
     2  four hundred twenty of this chapter, knowingly and intentionally produc-
     3  es,  distills,  manufactures, compounds, mixes or ferments for sale more
     4  than  [three  hundred  sixty liters] ninety-five gallons of such liquors
     5  within this state in a one-year period, or, as a purchaser  of  a  ware-
     6  house  receipt,  knowingly  and  intentionally  causes  more than [three
     7  hundred sixty liters] ninety-five gallons of liquors in a one-year peri-
     8  od to be removed from a warehouse in this state, shall be  guilty  of  a
     9  class E felony.
    10    (3)  For  purposes  of this subdivision, it shall be presumed that the
    11  importation or the causing  to  be  imported  into  this  state  or  the
    12  production, distillation, manufacture, compounding, mixing or fermenting
    13  in  this  state of more than [ninety liters] twenty-four gallons of such
    14  liquors by any person in a one-year period is for purposes of sale. Such
    15  presumption may be rebutted by the introduction of substantial  evidence
    16  to the contrary.
    17    (f)  Person not registered as a distributor for city purposes. (1) Any
    18  person required to be registered as  a  distributor  for  city  purposes
    19  pursuant to the provisions of section four hundred forty-five of article
    20  eighteen of this chapter who, while not so registered, knowingly imports
    21  or  causes  to  be imported into such city, for sale or use therein, any
    22  liquors or, who, except in accordance with clause (i) or (ii)  of  para-
    23  graph  (b)  of  subdivision  four of section four hundred twenty of this
    24  chapter as incorporated into such section four hundred forty-five, know-
    25  ingly produces, distills, manufactures, compounds, mixes or ferments  in
    26  such  city  any such liquors for sale, or who, as a purchaser of a ware-
    27  house receipt, causes liquors covered by such receipt to be removed from
    28  a warehouse in this state, shall be guilty of  a  class  A  misdemeanor.
    29  Provided,  however,  that  any person who has twice been convicted under
    30  this section within the preceding five years shall be guilty of a  class
    31  E felony for any subsequent violation of this paragraph.
    32    (2)  Any  person  who,  while not registered as a distributor for city
    33  purposes pursuant to the provisions of section four  hundred  forty-five
    34  of article eighteen of this chapter, knowingly and intentionally imports
    35  or  causes  to be imported into such city, for sale or use therein, more
    36  than [three hundred sixty liters] ninety-five gallons  of  liquors  into
    37  such  city in a one-year period or, except in accordance with clause (i)
    38  or (ii) of paragraph (b) of subdivision four  of  section  four  hundred
    39  twenty  of  this  chapter as incorporated into such section four hundred
    40  forty-five, knowingly and  intentionally  produces,  distills,  manufac-
    41  tures,  compounds,  mixes  or ferments for sale more than [three hundred
    42  sixty liters] ninety-five gallons of such liquors within such city in  a
    43  one-year  period,  or,  as a purchaser of a warehouse receipt, knowingly
    44  and intentionally causes more than [three hundred sixty liters]  ninety-
    45  five  gallons of liquors in a one-year period to be removed from a ware-
    46  house in this state, shall be guilty of a class E felony.
    47    (3) For purposes of this subdivision, it shall be  presumed  that  the
    48  importation  or  the  causing  to  be  imported  into  such  city or the
    49  production, distillation, manufacture, compounding, mixing or fermenting
    50  in such city of more than [ninety liters] twenty-four gallons of liquors
    51  by any person in a  one-year  period  is  for  purposes  of  sale.  Such
    52  presumption  may be rebutted by the introduction of substantial evidence
    53  to the contrary.
    54    (g) Any person, other than the distributor  registered  under  article
    55  eighteen  of  this  chapter  which  imported or caused the liquors to be
    56  imported into this state, who shall willfully and knowingly have in  his

        A. 6637                             7
 
     1  custody,  possession  or under his control liquors with respect to which
     2  the taxes imposed by or pursuant to the authority of article eighteen of
     3  this chapter have not been assumed or paid by a  distributor  registered
     4  as such under such article, shall be guilty of a class B misdemeanor; if
     5  such person shall willfully and knowingly have more than [ninety liters]
     6  twenty-four  gallons  of  such  liquors  in his custody or possession or
     7  under his control, such person shall be guilty of a class A misdemeanor;
     8  or if such person shall  knowingly  and  intentionally  have  more  than
     9  [three  hundred sixty liters] ninety-five gallons of such liquors in his
    10  custody or possession or under his control, such person shall be  guilty
    11  of a class E felony. For purposes of this subdivision, such person shall
    12  willfully  and  knowingly  have  in his custody, possession or under his
    13  control any liquors with respect to  which  such  taxes  have  not  been
    14  assumed  or  paid  by a distributor registered as such where such person
    15  has knowledge of the requirement of such taxes and where, to  his  know-
    16  ledge, such taxes have not been assumed or paid by a registered distrib-
    17  utor with respect to such liquors.
    18    § 10. Subdivisions (a), (k) and (l) of section 1845 of the tax law, as
    19  added  by  chapter  508  of  the  laws  of  1993, are amended to read as
    20  follows:
    21    (a) Temporary seizure. Whenever a police officer designated in section
    22  1.20 of the criminal procedure law or  a  peace  officer  designated  in
    23  subdivision  four  of  section  2.10 of such law, acting pursuant to his
    24  special duties, shall discover more  than  [ninety  liters]  twenty-four
    25  gallons  of  liquors  which  are  being  imported for sale or use in the
    26  state, where the person importing or causing such liquors to be imported
    27  is not registered as a distributor under section four hundred twenty-one
    28  of this chapter, such police officer or peace officer is hereby  author-
    29  ized to seize and take possession of such liquors, and to seize and take
    30  possession  of  the  vehicle  or  other  means of transportation used to
    31  transport such liquors.
    32    (k) An additional ground for seizure and forfeiture under this section
    33  shall be where such police officer or peace officer shall discover  more
    34  than  [ninety liters] twenty-four gallons of liquors in this state, with
    35  respect to which the taxes imposed by or pursuant to article eighteen of
    36  this chapter have not been paid or assumed by a person registered  as  a
    37  distributor  pursuant  to  such  article,  which  are  in  the course of
    38  distribution in this state or which are being sold in  this  state.  All
    39  the  foregoing  subdivisions  of this section shall apply to the seizure
    40  and forfeiture of liquors referred to in this subdivision and the  vehi-
    41  cle transporting the same as if such foregoing subdivisions specifically
    42  referred to such grounds and as if such grounds set forth in this subdi-
    43  vision  were set forth as grounds for seizure in subdivision (a) hereof.
    44  Provided that in the forfeiture action with respect to  the  liquors  or
    45  vehicle  referred  to  in  this  subdivision,  the  department  shall be
    46  required to show that such liquors were found within the state and  that
    47  they were in the course of distribution in this state or were being sold
    48  in this state.
    49    (l)  This section shall also apply to a forfeiture action with respect
    50  to the importation of more than [ninety liters] twenty-four  gallons  of
    51  liquors  into a city imposing a tax pursuant to the authority of section
    52  four hundred forty-five of this chapter by a person not registered as  a
    53  distributor  for  purposes  of such tax or, in addition, with respect to
    54  the distribution or sale of untaxed liquors in such city.
    55    § 11. This act shall take effect on  the  one  hundred  eightieth  day
    56  after it shall have become a law.
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