Bill Text: NY S01831 | 2017-2018 | General Assembly | Introduced
Bill Title: Establishes the gallon as the standard measurement for purposes of taxation of alcoholic beverages.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS [S01831 Detail]
Download: New_York-2017-S01831-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1831 2017-2018 Regular Sessions IN SENATE January 11, 2017 ___________ Introduced by Sen. KENNEDY -- read twice and ordered printed, and when printed to be committed to the Committee on Investigations and Govern- ment Operations 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 [ninety23liters] 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01159-01-7S. 1831 2 1 respect to liquor. Provided, further, that an abbreviated registration 2 in the from of a permit, without a bond, may be instituted by the 3 commissioner for the purpose of authorizing the importation of up to 4 [three hundred sixty liters ninety-five gallons of liquors per year into5this state by an individual for such individual's personal use and6consumption in this state.7§ 2. Paragraphs (e), (f) and the opening paragraph of paragraph (g) of8subdivision 1 of section 424 of the tax law, paragraph (e) as amended by9chapter 190 of the laws of 1990, paragraph (f) and the opening paragraph10of paragraph (g) as amended by chapter 508 of the laws of 1993, are11amended to read as follows:12(e) [Sixty-seven] Two dollars and fifty-four cents per [liter] gallon 13 upon liquors containing not more than twenty-four per centum of alcohol 14 by volume except liquors containing not more than two per centum of 15 alcohol by volume, upon which the tax shall be [one cent] four cents per 16 [liter] gallon; and 17 (f) [One dollar and seventy] Six dollars and forty-four cents per 18 [liter] gallon upon all other liquors; when sold or used within this 19 state, except when sold or used under such circumstances that this state 20 is without power to impose such tax or when sold to the United States 21 and except beers when sold to or by a voluntary unincorporated organiza- 22 tion of the armed forces of the United States operating a place for the 23 sale of goods pursuant to regulations promulgated by the appropriate 24 executive agency of the United States, to the extent provided in such 25 regulations, directives and policy statements of such an agency applica- 26 ble to such sales, and except when sold to professional foreign 27 consuls-general, consuls and vice-consuls who are nationals of the state 28 appointing them and who are assigned to foreign consulates in this 29 state, provided that American consular officers of equal rank who are 30 citizens of the United States and who exercise their official functions 31 at American consulates in such foreign country are granted reciprocal 32 exemptions; provided, however, that the commissioner may permit the sale 33 of alcohol without tax to a holder of any industrial alcohol permit, 34 alcohol permit or alcohol distributor's permit, issued by the state 35 liquor authority, and by the holder of an alcohol distributor's permit, 36 class A, issued by such authority to a holder of a distiller's license, 37 class B, or a winery license, issued by such authority and may also 38 permit the use of alcohol for any purpose other than the production of 39 alcoholic beverages by such holders without tax; provided also that the 40 commissioner may permit the sale of cider without tax by a holder of a 41 cider producer's license issued by the state liquor authority to a hold- 42 er of a cider producer's license or a cider wholesaler's license issued 43 by such authority. 44 For purposes of this chapter, it is presumed that liquors are 45 possessed for the purpose of sale in this state if the quantity of 46 liquors possessed in this state, imported or caused to be imported into 47 this state or produced, distilled, manufactured, compounded, mixed or 48 fermented in this state exceeds [ninety liters] twenty-four gallons. 49 Such presumption may be rebutted by the introduction of substantial 50 evidence to the contrary. In any case where the quantity of alcoholic 51 beverages taxable pursuant to this article is a fractional part of one 52 [liter (or one] gallon [in the case of beers)] or an amount greater than 53 a whole multiple of [liters (or] gallons [in the case of beers)], the 54 amount of tax levied and imposed on such fractional part of one [liter55(or one] gallon [in the case of beers)], or fractional part of a [liter56(or] gallon[)] in excess of a whole multiple of [liters or] gallonsS. 1831 3 1 shall be such fractional part of the rate imposed by paragraphs (a) 2 through (f). 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 and42finance] 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 dateS. 1831 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 to be delivered to each person, and, if such liquor is being 17 imported into the state in such motor vehicle or such other means of 18 transport, the name of the distributor importing or causing such liquors 19 to be imported into the state and such other information as the commis- 20 sioner may require pursuant to rule or regulation. Every operator of 21 such motor vehicle or such other means of transport shall at the request 22 of a peace officer, acting pursuant to his special duties, a police 23 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 [of48taxation 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 of51liters, 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 furtherS. 1831 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 on9each 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, when sold or used in such city. 23 2. Every local law imposing taxes pursuant to the authority of subdi- 24 vision one shall also impose upon each person, other than a distributor 25 within the meaning of such local law, who, on the date the taxes imposed 26 pursuant to the authority of such subdivision become effective, owns and 27 possesses for the purposes of sale beer, or other alcoholic beverages 28 described in subdivision one, a floor tax at the rates applicable under 29 subdivision one upon such beer or other alcoholic beverages in excess of 30 one hundred gallons [and upon such other alcoholic beverages in excess31of four hundred liters]. Such floor tax shall be due and payable on the 32 twentieth day of the month succeeding the month in which the taxes 33 become effective. 34 § 9. Subdivisions (e), (f) and (g) of section 1813 of the tax law, as 35 amended by section 27 of subpart I of part V-1 of chapter 57 of the laws 36 of 2009, are amended to read as follows: 37 (e) Person not registered as a distributor. (1) Any person required to 38 be registered as a distributor pursuant to the provisions of article 39 eighteen of this chapter who, while not so registered, knowingly imports 40 or causes to be imported into the state, for sale or use therein, any 41 liquors or, who, except in accordance with clause (i) or (ii) of para- 42 graph (b) of subdivision four of section four hundred twenty of this 43 chapter, knowingly produces, distills, manufactures, compounds, mixes or 44 ferments in this state any such liquors for sale, or who, as a purchaser 45 of a warehouse receipt, knowingly causes liquors covered by such receipt 46 to be removed from a warehouse in this state, shall be guilty of a class 47 A misdemeanor. Provided, however, that any person who has twice been 48 convicted under this section within the preceding five years, shall be 49 guilty of a class E felony for any subsequent violation of this para- 50 graph. 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 sectionS. 1831 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 [three6hundred 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 (f) Person not registered as a distributor for city purposes. (1) Any 17 person required to be registered as a distributor for city purposes 18 pursuant to the provisions of section four hundred forty-five of article 19 eighteen of this chapter who, while not so registered, knowingly imports 20 or causes to be imported into such city, for sale or use therein, any 21 liquors or, who, except in accordance with clause (i) or (ii) of para- 22 graph (b) of subdivision four of section four hundred twenty of this 23 chapter as incorporated into such section four hundred forty-five, know- 24 ingly produces, distills, manufactures, compounds, mixes or ferments in 25 such city any such liquors for sale, or who, as a purchaser of a ware- 26 house receipt, causes liquors covered by such receipt to be removed from 27 a warehouse in this state, shall be guilty of a class A misdemeanor. 28 Provided, however, that any person who has twice been convicted under 29 this section within the preceding five years shall be guilty of a class 30 E felony for any subsequent violation of this paragraph. 31 (2) Any person who, while not registered as a distributor for city 32 purposes pursuant to the provisions of section four hundred forty-five 33 of article eighteen of this chapter, knowingly and intentionally imports 34 or causes to be imported into such city, for sale or use therein, more 35 than [three hundred sixty liters] ninety-five gallons of liquors into 36 such city in a one-year period or, except in accordance with clause (i) 37 or (ii) of paragraph (b) of subdivision four of section four hundred 38 twenty of this chapter as incorporated into such section four hundred 39 forty-five, knowingly and intentionally produces, distills, manufac- 40 tures, compounds, mixes or ferments for sale more than [three hundred41sixty liters] ninety-five gallons of such liquors within such city in a 42 one-year period, or, as a purchaser of a warehouse receipt, knowingly 43 and intentionally causes more than [three hundred sixty liters] ninety- 44 five gallons of liquors in a one-year period to be removed from a ware- 45 house in this state, shall be guilty of a class E felony. 46 (3) For purposes of this subdivision, it shall be presumed that the 47 importation or the causing to be imported into such city or the 48 production, distillation, manufacture, compounding, mixing or fermenting 49 in such city of more than [ninety liters] twenty-four gallons of liquors 50 by any person in a one-year period is for purposes of sale. Such 51 presumption may be rebutted by the introduction of substantial evidence 52 to the contrary. 53 (g) Any person, other than the distributor registered under article 54 eighteen of this chapter which imported or caused the liquors to be 55 imported into this state, who shall willfully and knowingly have in his 56 custody, possession or under his control liquors with respect to whichS. 1831 7 1 the taxes imposed by or pursuant to the authority of article eighteen of 2 this chapter have not been assumed or paid by a distributor registered 3 as such under such article, shall be guilty of a class B misdemeanor; if 4 such person shall willfully and knowingly have more than [ninety liters] 5 twenty-four gallons of such liquors in his custody or possession or 6 under his control, such person shall be guilty of a class A misdemeanor; 7 or if such person shall knowingly and intentionally have more than 8 [three hundred sixty liters] ninety-five gallons of such liquors in his 9 custody or possession or under his control, such person shall be guilty 10 of a class E felony. For purposes of this subdivision, such person shall 11 willfully and knowingly have in his custody, possession or under his 12 control any liquors with respect to which such taxes have not been 13 assumed or paid by a distributor registered as such where such person 14 has knowledge of the requirement of such taxes and where, to his know- 15 ledge, such taxes have not been assumed or paid by a registered distrib- 16 utor with respect to such liquors. 17 § 10. Subdivisions (a), (k) and (l) of section 1845 of the tax law, as 18 added by chapter 508 of the laws of 1993, are amended to read as 19 follows: 20 (a) Temporary seizure. Whenever a police officer designated in section 21 1.20 of the criminal procedure law or a peace officer designated in 22 subdivision four of section 2.10 of such law, acting pursuant to his 23 special duties, shall discover more than [ninety liters] twenty-four 24 gallons of liquors which are being imported for sale or use in the 25 state, where the person importing or causing such liquors to be imported 26 is not registered as a distributor under section four hundred twenty-one 27 of this chapter, such police officer or peace officer is hereby author- 28 ized to seize and take possession of such liquors, and to seize and take 29 possession of the vehicle or other means of transportation used to 30 transport such liquors. 31 (k) An additional ground for seizure and forfeiture under this section 32 shall be where such police officer or peace officer shall discover more 33 than [ninety liters] twenty-four gallons of liquors in this state, with 34 respect to which the taxes imposed by or pursuant to article eighteen of 35 this chapter have not been paid or assumed by a person registered as a 36 distributor pursuant to such article, which are in the course of 37 distribution in this state or which are being sold in this state. All 38 the foregoing subdivisions of this section shall apply to the seizure 39 and forfeiture of liquors referred to in this subdivision and the vehi- 40 cle transporting the same as if such foregoing subdivisions specifically 41 referred to such grounds and as if such grounds set forth in this subdi- 42 vision were set forth as grounds for seizure in subdivision (a) hereof. 43 Provided that in the forfeiture action with respect to the liquors or 44 vehicle referred to in this subdivision, the department shall be 45 required to show that such liquors were found within the state and that 46 they were in the course of distribution in this state or were being sold 47 in this state. 48 (l) This section shall also apply to a forfeiture action with respect 49 to the importation of more than [ninety liters] twenty-four gallons of 50 liquors into a city imposing a tax pursuant to the authority of section 51 four hundred forty-five of this chapter by a person not registered as a 52 distributor for purposes of such tax or, in addition, with respect to 53 the distribution or sale of untaxed liquors in such city. 54 § 11. This act shall take effect on the one hundred eightieth day 55 after it shall have become a law.