§ 1839. Disposition of fines.-All fines levied under this article shall be paid into the state treasury to the credit of the general fund. Section 1846. 1847. Seizure and forfeiture of cigarettes. or § 1846. Seizure and forfeiture of cigarettes.-(a) Whenever a police officer designated in section 1.20 of the criminal procedure law or peace officer designated in subdivision four of section 2.10 of such law, acting pursuant to his special duties, shall discover any cigarettes subject to tax provided by article twenty of this chapter, and upon which the tax has not been paid or the stamps not affixed as required by such article, they are hereby authorized and empowered forthwith to seize and take possession of such cigarettes, together with any vending machine or receptacle in which they are held for sale. Such cigarettes, vending machine or receptacle seized by a police officer such peace officer shall be turned over to the tax commission. Such seized cigarettes, vending machine or receptacle, not including money contained in such vending machine or receptacle, shall be forfeited to the state. The tax commission may, within a reasonable time thereafter, upon publication of a notice to such effect for at least five successive days, before the day of sale, in a newspaper published or circulated in the county where the seizure was made, sell such forfeited cigarettes and vending machines or receptacles at public sale and pay the proceeds into the state treasury to the credit of the general fund. Cigarettes so seized and sold shall be sold only to an agent under article twenty of this chapter and the notice of sale shall contain a provision to this effect. Notwithstanding any other provision of this section, the tax commission may enter into an agreement with any city of this state which is authorized to impose a tax similar to that imposed by article twenty of this chapter to provide for the disposition between the state and any such city of the proceeds from any such sale. were (b) In the alternative, the tax commission, on reasonable notice by mail or otherwise, may permit the person from whom said cigarettes seized to redeem the said cigarettes, and any vending machine or receptacle seized therewith, by the payment of the tax due, plus a penalty of fifty per centum thereof, plus interest on the amount of tax due for each month or fraction thereof after such tax became due (determined without regard to any extension of time for filing or paying) at the rate applicable under subparagraph (ii) of paragraph (a) of subdivision one of section four hundred eighty-one of this chapter and the costs incurred in such proceeding, which total payment shall not be less than five dollars; provided, however, that such seizure and sale or redemption shall not be deemed to relieve any person from fine or imprisonment provided for in this article for violation of any provision of article twenty of this chapter. (c) In the alternative, if the tax commission concludes that any cigarettes seized pursuant to this section, when offered at public sale, will bring a price less than the reasonably estimated price which the department of correctional services would have to pay for the purchase of such cigarettes for sale to or use by inmates in institutions under the jurisdiction of such department, the tax commission may dispose of such cigarettes by transferring them to the department of correctional services for sale to or use by inmates in such institutions. § 1847. Seizure and forfeiture of vehicles or other means of transportation used to transport or for deposit or concealment of cigarettes.-(a) Any peace officer designated in subdivision four of section 2.10 of the criminal procedure law, acting pursuant to his special duties, or any police officer designated in section 1.20 of the criminal procedure law may seize any vehicle or other means of transportation used to transport or for the deposit or concealment of more than one hundred unstamped or unlawfully stamped packages of cigarettes subject to tax under article twenty of this chapter, other than a vehicle or other means of transportation used by any person as a common carrier transaction of business as such common carrier, and such vehicle or EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law in other means of transportation shall be subject to hereinafter in this section provided. forfeiture as (b) The seized property shall be delivered by the officer having made the seizure to the custody of the district attorney of the county wherein the seizure was made, except that in the city of New York, Yonkers or Buffalo, the seized property shall be delivered to the custody of the police department of such city, together with a report of all the facts and circumstances of the seizure. (c) It shall be the duty of the district attorney of the county wherein the seizure was made, if elsewhere than in the city of New York, Yonkers or Buffalo, and where the seizure is made in any of such cities it shall be the duty of the corporation counsel of the city, to inquire into the facts of the seizure so reported to him and if it appears probable that a forfeiture has been incurred, for the determination of which the institution of proceedings in the supreme court is necessary, to cause the proper proceedings to be commenced and prosecuted, at any time after thirty days from the date of seizure, to declare such forfeiture, unless, upon inquiry and examination such district attorney or corporation counsel decides that such proceedings cannot probably be sustained or that the ends of public justice do not require that they should be instituted or prosecuted, in which case, the district attorney or corporation counsel shall cause such seized property to be returned to the Owner thereof. or (d) Notice of the institution of the forfeiture proceeding shall be served either (i) personally on the owners of the seized property (ii) by registered mail to the owners' last known address and by publication of the notice once a week for two successive weeks in a newspaper published or circulated in the county where in the seizure was made. (e) Forfeiture shall not be adjudged where the owners establish by preponderance of the evidence that (i) the use of such seized property was not intentional on the part of any owner, or (ii) said seized property was used by any person other than an owner thereof, while such seized property was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States, or of any state. (f) The district attorney or the police department having custody of the seized property, after such judicial determination of forfeiture, shall, at its discretion, either retain such seized property for the official use of its office or department, transfer such property to the department of taxation and finance of the state of New York for its official use, or, upon publication of a notice to such effect for at least five successive days, before the day of sale, in a newspaper published or circulated in the county where the seizure was made, sell such forfeited property at public sale. The net proceeds of any such sale, after deduction of the lawful expenses incurred, shall be paid into the general fund of the county where in the seizure was made except that the net proceeds of the sale of property seized in the city of New York, Yonkers or Buffalo shall be paid into the general fund of such city. (g) Whenever any property is seized and declared forfeited, any person interested in any such property may apply to a justice of the supreme court, on serving a notice of petition and petition on the appropriate district attorney, police department or corporation counsel, for the recovery of such forfeited property. The justice of the supreme court to whom such application is made may restore said forfeited property upon such terms as he deems reasonable and just, if the petitioner establishes either of the affirmative defenses set forth in subdivision (e) of this section and that the petitioner was without personal or actual knowledge of the forfeiture proceeding. If the petition is filed after the sale of the forfeited property, any judgment in favor of the petitioner shall be limited to the net proceeds of such sale, after deduction of the lawful expenses and costs incurred by the district attorney, police department or corporation counsel. (h) No suit or action under this section for wrongful seizure shall be instituted unless such suit or action is commenced within two years after the time when the property was seized. § 40. Section one hundred seventy-one of such law is amended by adding a new subdivision twenty-sixth to read as follows: Twenty-sixth. By regulation, set the rate of interest for purposes of articles twelve-A, eighteen, twenty and twenty-one of this chapter. Such rate shall be the same for each such article and shall be the rate of interest prescribed in paragraph two of subsection (j) of section six hundred ninety-seven of this chapter, but not less than six percent per annum. Any rate set by the tax commission shall apply to taxes, or any portion thereof, which remain or become due or overpaid (other than overpayments under such article twenty and not including reimbursements, if any, under any of such articles) on or after the date on which such rate becomes effective and shall apply only with respect to interest computed or computable for periods or portions of periods occurring in the period during which such rate is in effect. In computing the amount of any interest required to be paid under such articles by the tax commission or by the taxpayer, or any other amount determined by reference to such amount of interest, such interest and such amount shall be compounded daily. § 41. Section one hundred seventy-four of such law, as amended by chapter three hundred ten of the laws of nineteen hundred sixty-two, is amended to read as follows: § 174. Oaths, acknowledgments, subpoenas and commissions to take testimony. 1. The members of the tax commission, their deputies, secretary and any other officer or employee of the department of taxation and finance duly designated and authorized by resolution of the commission, duly entered upon its minutes, shall have power to administer oaths, take affidavits and certify acknowledgments in relation to any matter or proceeding in the exercise of the powers or duties of the commission under this chapter and in relation to any written instrument required or permitted to be filed with the commission. The commission shall have power to subpoena and require the attendance of witnesses and the production of books, [papers and] accounts, records, memoranda, documents or other papers pertinent to the investigations and inquiries which it is authorized to conduct, and to examine them in relation to any matter which it has power to investigate and to issue commissions for the examination of witnesses who are out of the state or unable to attend before the tax commission or excused from attendance. A subpoena issued under this section shall be regulated by the civil practice law and rules. 2. Any person who shall testify falsely in any material matter pending before the commission shall be guilty of and punishable for perjury. 3. Cross-reference: For criminal penalties, see article thirty-seven of this chapter. § 42. Section four hundred thirty of such law, as amended by chapter five hundred seven of the laws of nineteen hundred seventy-seven, is amended to read as follows: § 430. Determination of tax. If a distributor, noncommercial importer or other person files a return under this article, but such return is incorrect or insufficient, the state tax commission shall determine the amount of tax due at any time within three years after the return was filed (whether or not such return was filed on or after the due date), and give written notice of such determination to the distributor, noncommercial importer or other person, except that if such distributor has not registered as required by this article, or fails to file a return or files a [wilfully] willfully false or fraudulent return with intent to evade the tax, such determination may be made at any time. Notwithstanding any of the foregoing provisions of this section, where, before the expiration of the time prescribed in this section for the determination of tax, both the tax commission and the taxpayer have consented in writing to its determination after such time, the tax may be determined at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. Any determination made pursuant to this section shall finally and irrevocably fix the tax unless the distributor, noncommercial importer or other person against whom it is assessed shall, within ninety days after the giving of notice of such determination, apply to the tax commission for a hearing, or unless the tax commission of its own motion, shall redetermine the same. After such hearing, the tax commission shall give notice of its decision to the distributor, noncommercial importer or other person liable for the tax. The decision of the tax commission may be reviewed in the manner provided by article seventy-eight of the civil practice law and rules if the proceeding is commenced by the distributor, noncommercial importer or other person within four months after the giving of notice thereof, but the proceeding may not be commenced unless the amount of tax stated or referred to EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law in the decision, with penalties and interest thereon, if any, shall have been first deposited with the state tax commission, and an undertaking filed with it, in such amount and with such sureties as a justice of the supreme court shall approve, to the effect that if such proceeding be dismissed or the decision confirmed, the petitioner will pay all costs and charges which may accrue against him in the prosecution of the proceeding, or at the option of the petitioner such undertaking may be in a sum sufficient to cover the tax, penalties, interest, costs and charges aforesaid, in which event the petitioner shall not be required to pay such tax [and], penalties and interest as a condition precedent to commencing the proceeding. The remedy provided by this section for review of a decision of the tax commission shall be the exclusive remedy available to any taxpayer judicially determine the liability of such taxpayer for taxes under this article. to § 43. Subdivisions two and three of section four hundred thirty-one of such law, subdivision two as amended by chapter two hundred forty-two of the laws of nineteen hundred seventy and subdivision three as separately amended by chapters one hundred thirty-two and one hundred sixty-two of the laws of nineteen hundred thirty-five, are amended to read as follows: upon or The the 2. Whenever any distributor, noncommercial importer or other person shall fail to pay, within the time limited herein, any tax which he is required to pay under the provisions of this article, the tax commission may issue a warrant under its official seal, directed to the sheriff of any county of the state, commanding him to levy upon and sell the real and personal property of such distributor, noncommercial importer other person, found within his county, for the payment of the amount thereof, with the added penalties, interest and the cost of executing the [warant] warrant, and to return such warrant to the department of taxation and finance and to pay to it the money collected by virtue thereof within sixty days after the receipt of such warrant. sheriff shall within five days after the receipt of the warrant, file with the clerk of his county a copy thereof, and thereupon the clerk shall enter in the judgment docket the name of the distributor, noncommercial importer or other person mentioned in the warrant, and the [amout] amount of the tax [and], penalties and interest for which the warrant is issued and the date when such copy is filed, and thereupon the amount of such warrant so docketed shall become lien a title to and interest in real and personal property [or chattels real] of the distributor, noncommercial importer or other person against whom the warrant is issued [in the same manner as a judgment duly docketed in the office of such clerk]. Such lien shall not apply to personal property unless such warrant is also filed in the department of state. The said sheriff shall thereupon proceed upon the warrant in all respects, with like effect, and in the same manner prescribed by law in respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for his services in executing the warrant, to be collected in the same manner. In the discretion of the tax commission a warrant of like terms, force and effect may be issued and directed to any officer or employee of the department of taxation and finance, and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs, but shall be entitled to no fee or compensation in excess of actual expenses paid in the performance of such duty. Upon such filing of a copy of a warrant, the tax commission shall have the same remedies to enforce the claim for taxes, penalties and interest against the distributor, noncommercial importer or other person as if the people of the state had recovered judgment against such distributor, noncommercial importer or other person for the amount of the tax. 3. In addition to the foregoing proceedings, in case of default of any distributor to pay, within the time limited herein, any tax [or], penalty or interest which he is required to pay under the provisions of this article or to file a bond or a return as required by this article or by the tax commission, the tax commission may forward a written statement of the facts showing such default in payment of [taxes and/or penalties] any any tax, penalty or interest to the state liquor authority and may request the revocation or suspension of the license or licenses of such distributor on account of such default. § 44. Section four hundred thirty-three of such law, as added by chapter one hundred forty-two of the laws of nineteen hundred thirtythree, subdivision one as amended by chapter five hundred seven of the laws of nineteen hundred seventy-seven, subdivision two as amended by chapter fifty-two of the laws of nineteen hundred fifty-one and subdivisions three and four as amended by chapter ninety-four of the laws of nineteen hundred thirty-four, is amended to read as follows: or § 433. Penalties and interest. 1. (a)(i) A distributor who or which fails to file a return or to pay any tax within the time required by pursuant to this article (determined with regard to any extension of time for filing or paying) shall [thereby forfeit to the state] be subject to a penalty of [five] ten per centum of the amount of tax determined to be due as provided in this article plus one per centum of such amount for each month [of delay] or fraction thereof during which such failure continues after the expiration of the first month after such return was required to be filed or such tax became due[; but the tax commission, if satisfied that the delay was excusable, may remit all or any part of such penalty], not exceeding thirty per centum in the aggregate. (ii) Any other person who fails to file a return or to pay any tax within the time required by or pursuant to this article, if such person does not offer alcoholic beverages for sale or use alcoholic beverages for any commercial purpose, shall [thereby forfeit to the state] be subject to a penalty of fifty per centum of the amount of tax determined to be due as provided in this article plus one per centum of such amount for each month [of delay] or fraction thereof during which such failure continues after the expiration of the first month after such return required to be filed or such tax become due[; but the tax commission, if satisfied that the delay was excusable, may remit all or any part of such penalty. Such]. was of (iii) In the case of a failure by a distributor or other person to file such return within sixty days of the date prescribed for filing such return by or pursuant to this article (determined with regard to any extension of time for filing), the penalties imposed by this subdivision shall not be less than the lesser of one hundred dollars or one hundred per centum of the amount required to be shown as tax on such return. For the purpose of the preceding sentence, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return. (b) If any amount of tax is not paid on or before the last date prescribed in this article for payment, interest on such amount at the rate set by the tax commission pursuant to subdivision twenty-sixth of section one hundred seventy-one of this chapter shall be paid for period from such last date to the date paid, whether or not any extension of time for payment was granted. Interest under this paragraph shall not be paid if the amount thereof is less than one dollar. the or (c) If the tax commission determines that such failure was due to reasonable cause and not due to willful neglect, it shall remit all part of such penalties. The tax commission shall promulgate rules and regulations as to what constitutes reasonable cause. (d) If the failure to pay any tax within the time required by or pursuant to this article is due to fraud, in lieu of the penalties and interest provided for in paragraphs (a) and (b) of this subdivision, there shall be added to the tax (1) a penalty of fifty per centum of the amount of tax due, plus (ii) interest on such unpaid tax at the rate set by the tax commission pursuant to subdivision twenty-sixth of section one hundred seventy-one of this chapter for the period beginning on the last day prescribed by this article for the payment of such tax (determined without regard to any extension of time for paying) and ending on the day on which such tax is paid, plus (iii) for the period beginning on the last day prescribed by this article for the payment of such tax (determined without regard to any extension of time for paying) and ending on the day the amount of tax due is finally determined or, if earlier, on the day on which such tax is paid, an amount equal to fifty per centum of the interest payable under subparagraph (ii) of this paragraph on that portion of the unpaid tax which is attributable to fraud. (e) The penalties and interest provided for in this subdivision shall be determined, assessed, collected and paid in the same manner as the taxes imposed by this article and shall be disposed of as hereinafter provided with respect to moneys derived from the tax. Unpaid penalties EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law |