and interest under this subdivision may be recovered by the attorneygeneral in an action brought pursuant to section four hundred thirty-one of this article [in lieu of interest as therein provided]. Interest under this subdivision shall be compounded daily.

2. [Any distributor or owner who or which files or causes to be filed any return or statement, required or permitted by this article, which is wilfully false shall be guilty of a felony,

3. Except in the case specified in subdivision two of this section, any distributor, owner, or any other person who violates any provision of this article, or any reasonable rule or regulation adopted pursuant to this article by the tax commission, or who wilfully attempts in any manner to evade or defeat any tax imposed by this article or the payment thereof, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than five thousand dollars or imprisoned for not more than one year, or both.

4. The] For purposes of this chapter, the failure to do any act required by or under the provisions of this article shall be deemed an act committed in part at the office of the department of taxation and finance, in Albany. [The] For the purposes of this chapter, the certificate of the tax commission to the effect that a tax has not been paid, that a return has not been filed, or that information has not been supplied, as required by or under the provisions of this article, shall be prima facie evidence that such tax has not been paid, that such return has not been filed, or that such information has not been supplied. [The terms "distributor", "owner" and "person", as used in this section, shall include an officer, director, stockholder, or employee of a corporation, or a member of a partnership, who as such officer, director, stockholder, employee or member is under the duty to perform the act in respect of which the violation occurs]

3. Cross-reference: For criminal penalties, see article thirty-seven of this chapter.

§ 45. Subdivision one of section four hundred thirty-four of such law, as amended by chapter two hundred seventy-one of the laws of nineteen hundred fifty-one, is amended to read as follows:

1. Whenever the tax commission shall determine that any moneys received under the provisions of this article were paid in error, it may cause the same to be refunded, [without] with interest, in accordance with such rules and regulations as it may prescribe, except that no interest shall be allowed or paid if the amount thereof would be less than one dollar. Such interest shall be at the rate set by the tax commission pursuant to subdivision twenty-sixth of section one hundred seventy-one of this chapter, or if no rate is set, at the rate of six percent per annum, from the date when the tax, penalty or interest to be refunded was paid to a date preceding the date of the refund check by not more than thirty days. Provided, however, that for the purposes of this subdivision, any tax paid before the last day prescribed for its payment shall be deemed to have been paid on such last day. Such moneys received under the provisions of this article which the tax commission shall determine were paid in error, may be refunded out of funds in the custody of the comptroller to the credit of such taxes provided an application there for is filed with the tax commission within two years from the time the erroneous payment was made.

§ 46. Subdivision four of section four hundred thirty-seven of such law, as added by chapter eight hundred ninety-five of the laws of nineteen hundred sixty-eight, is amended to read as follows:

4. Notwithstanding the provisions of subdivision one of this section, the tax commission, in its discretion, may require or permit any or all persons, distributors or owners liable for any tax imposed by this article to make payment of any tax [or], penalty or interest to banks, banking houses or trust companies designated by the tax commission and to file returns and reports with such banks, banking houses or trust companies as agents of the tax commission, in lieu of making any such payment directly to the tax commission. However, the tax commission shall designate only such banks, banking houses or trust companies as are or shall be designated by the Comptroller as depositories pursuant to section four hundred thirty-five.

§ 47. Section four hundred seventy-eight of such law, as amended by chapter five hundred seven of the laws of nineteen hundred seventyseven is amended to read as follows:

§ 478. Determination of tax. If any person files any 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 such person, except that if such person 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 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. After such hearing, the tax commission shall give notice of its decision to the person liable for the tax. The decision of the tax commission may be reviewed under article seventy-eight of the civil practice law and rules if application is made therefor by such 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 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 the 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 the commencement of 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.

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§ 48. Section four hundred seventy-nine of such law, as amended by chapter three hundred eighty-five of the laws of nineteen hundred fortysix, is amended to read as follows:

§ 479. Warrant for the collection of taxes. In addition to all other remedies for the collection of any taxes due under the provisions of this article, the tax commission may issue a warrant directed to the sheriff of any county commanding said sheriff to levy upon and sell the [goods and chattels] real and personal property of a specified delinquent dealer or other person found within his jurisdiction, for the payment of the amount of such delinquency with the added penalties and interest and the cost of executing the warrant, and to return such warrant to the tax commission and to pay it the money collected by virtue thereof within sixty days after receipt of such warrant. The sheriff shall, within five days after receipt of the warrant, file with the clerk of his county a copy thereof and thereupon such clerk shall enter in the judgment docket the name of the person mentioned in the warrant and the amount of the tax [and], penalties and interest for which the warrant is issued and the date when such copy is filed. Thereupon the amount of such warrant so docketed shall become a lien upon the title to and [the] interest in real and personal property of the person against whom the warrant is issued. Such lien shall not apply to personal property unless such warrant is also filed in the department of state. The sheriff to whom any such warrant shall be directed shall proceed upon the same in all respects and with like effect and in the same manner as prescribed by law in respect to executions issued against [goods and chattels] property upon judgments by 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 power conferred by law upon sheriffs, but he shall be enEXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

titled to no fee or compensation in excess of the actual expenses paid in the performance of such duty. Upon such filing of a warrant, the tax commission shall have the same remedies to enforce the amount due thereunder as if the state had recovered judgment therefor.

§ 49. The section heading and paragraph (a) of subdivision one of section four hundred eighty-one of such law, the section heading as amended by chapter fifty of the laws of nineteen hundred forty-five and paragraph (a) of subdivision one as amended by chapter five hundred seven of the laws of nineteen hundred seventy-seven, are amended to read as follows:

Penalties and interest.

(a)(i)(A) An agent who or which fails to file a return or to pay any tax within the time required by or 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.

(B) If a tax on cigarettes under this article is not paid when due by any other person, the person liable for the payment of such tax shall [forfeit to the state] be subject to a penalty of fifty per centum of the amount of such 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 to pay continues after the expiration of the first month after such tax became due[; but the tax commission, if satisfied that the delay was excusable, may remit all or any part of such penalty. Such].

(C) In the case of a failure to file such return within sixty days of the date prescribed for filing of such return by or pursuant to this article (determined with regard to any extension of time for filing), the penalty imposed by this paragraph 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.

(ii) 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 the period from such last date to the date paid, whether or not any extension of time for payment was granted. Interest under this subparagraph shall not be paid if the amount thereof is less than one dollar. (iii) If the tax commission determines that such failure or delay was due to reasonable cause and not due to willful neglect, it shall remit all or part of such penalty. The tax commission shall promulgate rules and regulations as to what constitutes reasonable cause.

(iv) 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 subparagraphs (i) and (ii) of this paragraph, there shall be added to the tax (A) a penalty of fifty per centum of the amount of tax due, plus (B) 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 (C) 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 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 clause (B) of this subparagraph on that portion of the unpaid tax which is attributable to fraud.

(v) The penalties and interest provided for in this paragraph 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. Interest under this paragraph shall be compounded daily.

$ 50. Section five hundred ten of such law, as amended by chapter four hundred fifty-five of the laws of nineteen hundred seventy-five, is amended to read as follows:

§ 510. Determination of tax. In case any return filed pursuant to this article shall be insufficient or unsatisfactory to the tax commission, or if no return is made for any period, the tax commission shall determine the amount of tax due from such information as is available to the commission. Such determination shall be made within four years from the time the return was filed or, if no return was filed or in the case of 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. The tax commission shall give notice of such determination to the person liable for such tax. Such determination shall finally and conclusively fix such tax, unless the person against whom it is assessed shall, within [thirty] ninety days after the giving of notice of such determination, apply in writing 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 person liable for the tax. The decision of the tax commission may be reviewed by a proceeding under article seventy-eight of the civil practice law and rules if the proceeding is commenced within thirty days after the giving of notice of such decision. The proceeding may not be commenced unless the amount of any tax sought to be reviewed, with penalties and interest thereon, if any, shall be first deposited with the 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 of the tax commission confirmed, the petitioner will pay all costs and charges which may accrue 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 the commencement of the proceeding.

The remedy provided by this section for review of a decision of the tax commission shall be the exclusive remedy available to judicially determine the liability of any person for taxes under this article.

Any notice authorized or required under this article may be given by mailing the same to the person for whom it is intended, in a postpaid envelope, addressed to such person at the address given by him in the application for a permit or in the last return filed by him under this article, or, if no application or return has been filed then to such address as may be obtainable. The mailing of such notice shall be presumptive evidence of the receipt of same by the person to whom addressed. Any period of time, which is determined according to the provisions of this article, for the giving of notice shall commence to run from the date of mailing of such notice.

§ 51. Subdivision two of section five hundred eleven of such law, as added by chapter seventy-four of the laws of nineteen hundred fifty-one, is amended to read as follows:

2. Whenever any 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 person, found within his county, for the payment of the amount thereof, with the added penalties, interest and the cost of executing the 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. The sheriff shall within five days after the EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

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 person mentioned in the warrant, and the 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 a lien upon the title to and interest in real and personal property [or chattels real] of the 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 any person as if the people of the state had recovered judgment against such person for the amount of the

tax.

§ 52. Section five hundred twelve of such law, as added by chapter seventy-four of the laws of nineteen hundred fifty-one, subdivision one as amended by chapter five hundred eighty-five of the laws of nineteen hundred fifty-five, paragraph (a) of subdivision one as amended by chapter one hundred thirty-eight of the laws of nineteen hundred fifty-six. paragraph (b) of subdivision one as amended by chapter five hundred sixty-five of the laws of nineteen hundred sixty, subdivision three as amended by chapter four hundred twenty-eight of the laws of nineteen hundred seventy-five and subdivision six as amended by chapter four hundred fifty-nine of the laws of nineteen hundred fifty-three, is amended to read as follows:

§ 512. Penalties and interest. 1. [It shall be unlawful for any person to do any of the following:

(a) Use, or cause or permit to be used, any public highway in this state for the operation of a motor vehicle subject to the provisions of this article without first obtaining the permit and tag, plate or sticker required under this article or to carry or cause or permit to be carried upon any motor vehicle a permit or a tag, plate or sticker which has been suspended or revoked or which was issued for a motor vehicle other than the one on which carried. The operation of any motor vehicle on any public highway of this state without carrying thereon the permit or the tag, plate or sticker required under this article shall be presumptive evidence that a permit or a tag, plate or sticker has not been obtained for such motor vehicle;

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(b) Operate, or cause or permit to be operated, on any public highway any such motor vehicle having an actual gross or unloaded weight in cess of the gross or unloaded weight set forth on the permit issued for such motor vehicle;

Fail to make any return required under this article;

(d) Make any false return;

(e) Fail to keep records of operations as the commission shall prescribe;

(f) Fail to deliver or surrender, pursuant to the provisions of this article or any reasonable rule or regulation promulgated by the tax commission, a permit or a tag, plate or sticker to such commission, or any person directed by such commission to take possession thereof; other provision of this article or any reasonable

(g) Violate any

rule or regulation promulgated by the commission.

Any person who violates any provision of this section, upon a first conviction shall be punishable by a fine of not less than one hundred dollars or more than two hundred fifty dollars; and upon a second or subsequent conviction by a fine of not less than two hundred fifty dollars or more than five hundred dollars or by imprisonment for not more than ten days. Except as otherwise provided by law such a violation shall not be a crime and the penalty or punishment imposed therefor shall not be deemed for any purpose a penal or criminal penalty or pun