Section 11-1601
§ 11-1601 Definitions. When used in this chapter, the following terms
shall mean and include:
1. "Person." An individual, partnership, society, association,
joint-stock company, corporation, estate, receiver, trustee, assignee,
referee, or any other person acting in a fiduciary or representative
capacity, whether appointed by a court or otherwise and any combination
of individuals or of the foregoing.
2. "Container." Any article, thing or contrivance made in whole or in
part of rigid or semi-rigid plastic, including, but not limited to,
barrels, baskets, bottles, boxes, cartons, carrying cases, crates, cups,
cylinders, drums, jars, jugs, pails, pots, trays, tubs, tubes, tumblers,
and vessels, intended for use in packing or packaging any product
intended for sale:
(a) Metal containers and paperboard or fiber containers which have
been impregnated, lined or coated with plastic or other materials shall
be considered to be classified as metal containers and paperboard
containers, respectively;
(b) Paperboard or fiber containers with fastenings, tops and/or
bottoms made of plastic shall be classified as paperboard or fiber
containers;
(c) Plastic caps that are easily, readily, usually, and customarily
separated from the container before disposal shall not be considered
part of the container.
3. "Recycled material." Component materials which have been derived
from previously used material or from new or old scrap material.
4. "Taxable period." Such calendar period prescribed for filing
returns by this chapter or by the commissioner of finance.
5. "Retail sale" or "sale at retail." A sale to any person for any
purpose other than for resale as such or as a physical component part of
tangible personal property.
6. "Sale." The sale or furnishing of a container by a seller or
supplier to a retailer.
7. "Seller or supplier." Any person who sells containers to a
retailer.
8. "Retailer." Any person who purchases containers (whether filled or
unfilled) for the purpose of using them in connection with and as part
of sales at retail or who receives them as containers of products
intended for sale at retail.
9. "City." The city of New York.
10. "Commissioner of finance." The commissioner of finance of the
city.
11. "Comptroller." The comptroller of the city.
Section 11-1602
§ 11-1602 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter,
the commissioner is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying chapter and the purposes thereof;
2. To extend, for cause shown, the time of filing any return for a
period not exceeding thirty days; and for cause shown, to remit
penalties but not interest computed at the rate of six per cent per
annum; and to compromise disputed claims in connection with the taxes
hereby imposed;
3. To request information from the tax commission of the state of New
York or the treasury department of the United States relative to any
person; and to afford information to such tax commission or such
treasury department relative to any person, any other provision of this
chapter to the contrary notwithstanding;
4. To delegate the commissioner's functions hereunder to an assistant
commissioner or deputy commissioner in the department of finance or to
any employee or employees of the commissioner of finance;
5. To prescribe methods for determining the containers sold or
supplied or purchased and to determine which are taxable and nontaxable;
6. To require sellers and suppliers and retailers within the city to
keep detailed records with respect to containers bought, sold, used,
manufactured or produced, and stock and production records with respect
to such containers whether or not subject to the tax imposed by this
chapter, and to furnish any information with respect thereto upon
request to the commissioner of finance;
7. To assess, determine, revise and readjust the taxes imposed under
this chapter.
Section 11-1603
§ 11-1603 Administration of oaths and compelling testimony. a. The
commissioner of finance or the commissioner's employees or agents duly
designated and authorized by the commissioner shall have power to
administer oaths and take affidavits in relation to any matter or
proceeding in the exercise of their powers and duties under this
chapter. The commissioner of finance shall have power to subpoena and
require the attendance of witnesses and the production of books, papers
and documents to secure information pertinent to the performance of the
commissioner's duties hereunder and of the enforcement of this chapter
and to examine them in relation thereto, and to issue commissions for
the examination of witnesses who are out of the state or unable to
attend before the commissioner or excused from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance under this chapter.
c. Any person who shall refuse to testify or to produce books or
records or who shall testify falsely in any material matter pending
before the commissioner of finance under this chapter shall be guilty of
a misdemeanor, punishment for which shall be a fine of not more than one
thousand dollars or imprisonment for not more than one year, or both
such fine and imprisonment.
d. The officers who serve the summons or subpoena of the commissioner
of finance and witnesses attending in response thereto shall be entitled
to the same fees as are allowed to officers and witnesses in civil cases
in courts of record, except as herein otherwise provided. Such officers
shall be the city sheriff and the city sheriff's duly appointed deputies
or any officers or employees of the commissioner of finance, designated
to serve such process.
Section 11-1604
§ 11-1604 Imposition of tax. 1. On and after July first, nineteen
hundred seventy-one, there is hereby imposed within the city and there
shall be paid a tax upon every sale of a plastic container at the rate
of two cents for each container sold.
2. A credit shall be allowed against the taxes imposed by this chapter
of one cent for each taxable container if manufactured with a minimum of
thirty per-cent of recycled material.
Section 11-1605
§ 11-1605 Presumptions and burden of proof. For the purpose of proper
administration of this chapter and to prevent evasion of the tax hereby
imposed, it shall be presumed that all sales of plastic containers are
taxable, and not entitled to any credit allowed against the taxes
imposed hereby. Such presumptions shall prevail until the contrary is
established and the burden of proving the contrary shall be upon the
taxpayer.
Section 11-1606
§ 11-1606 Payment of the tax. The tax imposed hereunder shall be paid
by the seller or supplier. However, where the tax has not been paid on a
sale by such seller or supplier, the retailer shall be liable for tax
thereon upon purchasing the container. Should sellers and suppliers
having no business situs in the city, who sell containers to retailers
within the city, pay the tax, the retailer purchasing the containers
shall not be liable for the tax.
Section 11-1607
§ 11-1607 Records to be kept. Every seller or supplier and every
retailer shall keep records of all plastic containers taxed hereunder
and of all purchases and sales thereof and of the taxes due and payable
on the sale or on the purchase thereof, in such form as the commissioner
of finance may by regulation require. Such records shall be available
for inspection and examination at any time upon demand by the
commissioner of finance or the commissioner's duly authorized agent or
employee and shall be preserved for a period of three years, except that
the commissioner of finance may consent to their destruction within that
period or may require that they be kept longer.
Section 11-1608
§ 11-1608 Exemptions. 1. The following shall be exempt from the
payment of the tax imposed by this chapter:
(a) The state of New York, or any of its agencies, instrumentalities,
public corporations (including a public corporation created pursuant to
agreement or compact with another state or Canada) or political
subdivisions where it is the purchaser, user or consumer;
(b) The United States of America, and any of its agencies and
instrumentalities insofar as it is immune from taxation where it is the
purchaser, user or consumer;
(c) The United Nations or other international organizations of which
the United States of America is a member; and
(d) Any corporation, or association, or trust, or community chest,
fund or foundation, organized and operated exclusively for religious,
charitable, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to
the benefit of any private shareholder or individual, and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this paragraph shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this paragraph.
2. The following containers shall be exempt from the tax imposed by
this chapter:
a. Containers sold or furnished containing products intended for use
in manufacturing processes and not for final retail sale.
b. Containers used as receptacles for food, food products, beverages,
dietary foods and health supplements, sold for human consumption but not
including: (i) candy and confectionery, (ii) fruit drinks which contain
less than seventy percent of natural fruit juice, (iii) soft drinks,
sodas and beverages such as are ordinarily dispensed at soda fountains
or in connection therewith (other than coffee, tea and cocoa) and (iv)
beer, wine or other alcoholic beverages.
Section 11-1609
§ 11-1609 Returns. 1. Every seller or supplier shall file with the
commissioner of finance a return of containers sold and of the taxes due
and payable thereon for the period from July first, nineteen hundred
seventy-one until the last day of September, nineteen hundred
seventy-one and thereafter for each of the four-monthly periods ending
on the last day of January, May and September of each year.
2. Every retailer shall file with the commissioner of finance a return
of containers purchased by such retailer from sellers or suppliers
having no situs within the city and of the taxes due thereon for the
same periods provided in subdivision one of this section.
3. The returns shall be filed within twenty days after the end of the
periods covered thereby. The commissioner of finance may permit or
require returns to be made for other periods and upon such dates as the
commissioner may specify. If the commissioner of finance deems it
necessary in order to insure the payment of the tax imposed by this
chapter, the commissioner may require returns to be made for shorter
periods than those prescribed pursuant to the foregoing provisions of
this subdivision and upon such dates as he or she may specify.
4. The forms of returns shall be prescribed by the commissioner of
finance and shall contain such information as the commissioner may deem
necessary for the proper administration of this chapter. The
commissioner of finance may require amended returns to be filed within
twenty days after notice and to contain the information specified in the
notice.
5. If a return required by this chapter is not filed or if a return
when filed is incorrect or insufficient on its face the commissioner of
finance shall take the necessary steps to enforce the filing of such a
return or a corrected return.
Section 11-1610
§ 11-1610 Determination of tax. If a return required by this chapter
is not filed, or if a return when filed is incorrect or insufficient,
the amount of tax due shall be determined by the commissioner of finance
from such information as may be obtainable and, if necessary, the tax
may be estimated on the basis of external indices, such as volume of
sales, inventories, purchases of containers, or of raw materials,
production figures, and/or other factors. Notice of such determination
shall be given to the person liable for the collection and/or payment of
the tax. Such determination shall finally and irrevocably fix the tax
unless the person against whom it is assessed, within thirty days after
giving notice of such determination, shall apply to the commissioner of
finance for a hearing, or unless the commissioner of finance of his or
her own motion shall redetermine the same. After such hearing the
commissioner of finance shall give notice of his or her determination to
the person against whom the tax is assessed. The determination of the
commissioner of finance shall be reviewable for error, illegality or
unconstitutionality or any other reason whatsoever by a proceeding under
article seventy-eight of the civil practice law and rules if application
therefor is made to the supreme court within four months after the
giving of the notice of such determination. A proceeding under article
seventy-eight of the civil practice law and rules shall not be
instituted unless: (a) the amount of any tax sought to be reviewed, with
penalties and interest thereon, if any, shall be first deposited with
the commissioner of finance and there shall be filed with the
commissioner of finance an undertaking, issued by a surety company
authorized to transact business in this state and approved by the
superintendent of insurance of this state as to solvency and
responsibility, in such amount as a justice of the supreme court shall
approve to the effect that if such proceeding be dismissed or the tax
confirmed, the petitioner will pay all costs and charges which may
accrue in the prosecution of the proceeding; or (b) at the option of the
applicant such undertaking filed with the commissioner of finance may be
in a sum sufficient to cover the taxes, penalties and interest thereon
stated in such determination plus the costs and charges which may accrue
against it in the prosecution of the proceeding, in which event the
applicant shall not be required to deposit such taxes, penalties and
interest as a condition precedent to the application.
Section 11-1611
§ 11-1611 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally or unconstitionally
collected or paid if application to the commissioner of finance for such
refund shall be made within one year from the payment thereof. Whenever
a refund is made by the commissioner of finance, the commissioner shall
state his or her reasons therefor in writing. Such application may be
made by the seller or supplier or the retailer or other person who has
actually paid the tax. The commissioner of finance may, in lieu of any
refund required to be made, allow credit therefor on payments due from
the applicant.
b. An application for a refund or credit made as herein provided shall
be deemed an application for revision of any tax, penalty or interest
complained of. If the commissioner of finance, prior to any hearing
held, initially denies the application for refund, the commissioner
shall give notice of such determination of denial to the applicant. Such
determination shall be final and irrevocable unless the applicant,
within thirty days after the giving of notice of such determination,
shall apply to the commissioner of finance for a hearing, or unless the
commissioner of finance of his or her own motion shall redetermine the
same. After such hearing the commissioner of finance shall give notice
of his or her determination to the applicant, who shall be entitled to
review such determination by a proceeding pursuant to article
seventy-eight of the civil practice law and rules, provided such
proceeding is instituted within four months after the giving of the
notice of such determination, and provided that a final determination of
tax was not previously made. Such a proceeding shall not be instituted
unless an undertaking is filed with the commissioner of finance 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 tax
confirmed, the petitioner shall pay all costs and charges which may
accrue in the prosecution of such proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which had been
determined to be due pursuant to the provisions of section 11-1610 of
this chapter where such person has had a hearing or an opportunity for a
hearing, as provided in said section, or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of a tax, interest or penalty paid after a determination by the
commissioner of finance made pursuant to section 11-1609 of this chapter
unless it be found that such determination was erroneous, illegal or
unconstitutional or otherwise improper, by the commissioner of finance
after a hearing or of the commissioner's own motion, or in a proceeding
under article seventy-eight of the civil practice law and rules,
pursuant to the provisions of said section, in which event refund or
credit without interest shall be made of the tax, interest or penalty
found to have been overpaid.
Section 11-1612
§ 11-1612 Reserves. In cases where the seller or supplier or the
retailer has applied for a fund and has instituted a proceeding under
article seventy-eight of the civil practice law and rules to review a
determination adverse to him or her on his or her application for
refund, the comptroller shall set up appropriate reserves to meet any
decision adverse to the city.
Section 11-1613
§ 11-1613 Remedies exclusive. The remedies provided by sections
11-1610 and 11-1611 of this chapter shall be the exclusive remedies
available to any person for the review of tax liability imposed by this
chapter; and no determination or proposed determination of tax or
determination on any application for refund shall be enjoined or
reviewed by an action for declaratory judgment, an action for money had
and received or by any action or proceeding other than a proceeding in
the nature of a certiorari proceeding under article seventy-eight of the
civil practice law and rules; provided, however, that a taxpayer may
proceed by declaratory judgment if such taxpayer institutes suit within
thirty days after a deficiency assessment is made and pays the amount of
the deficiency assessment to the commissioner of finance prior to the
institution of such suit and posts a bond for costs as provided in
section 11-1610 of this chapter.
Section 11-1614
§ 11-1614 Proceedings to recover tax. a. Whenever any seller or
supplier or retailer or other person shall fail to pay any tax, penalty
or interest imposed by this chapter as therein provided, the corporation
counsel shall, upon the request of the commissioner of finance bring or
cause to be brought an action to enforce the payment of the same on
behalf of the city of New York in any court of the state of New York or
of any other state or of the United States. If, however, the
commissioner of finance in his or her discretion believes that any such
seller or supplier or retailer or other person is about to cease
business, leave the state or remove or dissipate the assets out of which
the tax, penalties or interest might be satisfied, and that any such
tax, penalty or interest will not be paid when due, the commissioner of
finance may declare such tax, penalty or interest to be immediately due
and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commissioner of finance
may issue a warrant, directed to the city sheriff commanding the city
sheriff to levy upon and sell the real and personal property of the
seller or supplier or retailer or other person liable for the tax, which
may be found within the city, for the payment of the amount thereof,
with any penalties and interest, and the cost of executing the warrant,
and to return such warrant to the commissioner of finance and to pay to
the commissioner of finance the money collected by virtue thereof within
sixty days after the receipt of such warrant. The city sheriff shall
within five days after the receipt of the warrant file with the county
clerk 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, 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
interest in real and personal property of the person against whom the
warrant is issued. The city sheriff shall then proceed upon the warrant,
in the same manner, and with like effect, as that provided by law in
respect to executions issued against property upon judgments of a court
of record, and for services in executing the warrant the city sheriff
shall be entitled to the same fees, which he or she may collect in the
same manner. In the discretion of the commissioner of finance a warrant
of like terms, force and effect may be issued and directed to any
officer or employee of the department of 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 the actual expenses paid in the performance of such duty. If a
warrant is returned not satisfied in full, the commissioner of finance
may from time to time issue new warrants and shall also have the same
remedies to enforce the amount due thereunder as if the city had
recovered judgment therefor and execution thereon had been returned
unsatisfied.
c. Whenever a seller or supplier or the retailer shall make a sale,
transfer, or assignment in bulk of any part of the whole of his or her
fixtures, or of his or her stock of merchandise, or of stock or
merchandise and of fixtures pertaining to the conduct or operation of
business of the seller or supplier or the retailer, otherwise than in
the ordinary course of trade and regular prosecution of business, the
purchaser, transferee or assignee shall at least ten days before taking
possession of the subject of said sale, transfer or assignment, or
paying therefor, notify the commissioner of finance by registered mail
of the proposed sale and of the price, terms and conditions thereof
whether or not the seller, transferor or assignor, has represented to,
or informed the purchaser, transferee or assignee that it owes any tax
pursuant to this chapter, and whether or not the purchaser, transferee
or assignee has knowledge that such taxes are owing, and whether any
such taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the commissioner of finance as required by the proceeding
paragraph, or whenever the commissioner of finance shall inform the
purchaser, transferee or assignee that a possible claim for such tax or
taxes exists, any sums of money, property or choses in action, or other
consideration, which the purchaser, transferee or assignee is required
to transfer over to the seller, transferor or assignor shall be subject
to a first priority right and lien for any such taxes theretofore or
thereafter determined to be due from the seller, transferor or assignor
to the city, and the purchaser, transferee or assignee is forbidden to
transfer to the seller, transferor or assignor any such sums of money,
property or choses in action to the extent of the amount of the city's
claim. For failure to comply with the provisions of this subdivision,
the purchaser, transferee or assignee, in addition to being subject to
the liabilities and remedies imposed under the provisions of article six
of the uniform commercial code, shall be personally liable for the
payment to the city of any such taxes theretofore or thereafter
determined to be due to the city from the seller, transferor or
assignor, and such liability may be assessed and enforced in the same
manner as the liability for tax under this chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes,
additions to tax, penalties and interest filed pursuant to subdivision b
of this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
Section 11-1615
§ 11-1615 Penalties and interest. a. Any person failing to file a
return or to pay any tax to the commissioner of finance within the time
required by this chapter shall be subject to a penalty of five percent
of the amount of tax due; plus interest at the rate of one percent of
such tax for each month of delay excepting the first month after such
return was required to be filed or such tax became due; but the
commissioner of finance if satisfied that the delay was excusable, may
remit all or any part of such penalty, but not interest at the rate of
six percent per year. Such penalties and interest shall be paid and
disposed of in the same manner as other revenues from this chapter.
Unpaid penalties and interest may be enforced in the same manner as the
tax imposed by this chapter.
b. Any seller or supplier or any retailer or any officer of a
corporate seller or supplier or retailer, failing to file a return as
required by this chapter, or filing or causing to be filed or making or
causing to be made or given or causing to be given any return,
certificate, affidavit, representation, information, testimony or
statement required or authorized by this chapter which is willfully
false, and any seller or supplier or any retailer or any officer of a
corporate seller or supplier or retailer failing to keep the records
required by subdivision six of section 11-1602 of this chapter, shall,
in addition to the penalties herein or elsewhere prescribed, be guilty
of a misdemeanor, punishment for which shall be a fine of not more than
one thousand dollars or imprisonment for not more than one year, or both
such fine and imprisonment. It shall not be any defense to a prosecution
under this subdivision that the failure to file a return or that the
actions or failures to act mentioned in this subdivision was
unintentional or not willful.
c. The certificate of the commissioner of finance to the effect that a
tax has not been paid, that a return has not been filed, or that
information has not been supplied pursuant to the provisions of this
chapter, shall be presumptive evidence thereof.
Section 11-1616
§ 11-1616 Return to be secret. a. Except in accordance with proper
judicial order, or as otherwise provided by law, it shall be unlawful
for the commissioner of finance, any officer or employee of the
department of finance, any person engaged or retained on an independent
contract basis or any person who, pursuant to this section is permitted
to inspect any return or to whom a copy, an abstract or a portion of any
return is furnished, or to whom any information contained in any return
is furnished, to divulge or make known in any manner any information
contained in or relating to any return required under this chapter. The
officers charged with the custody of such returns shall not be required
to produce any of them or evidence of anything contained in them in any
action or proceeding in any court, except on behalf of the commissioner
of finance in an action or proceeding under the provisions of this
chapter, or on behalf of any party to any action or proceeding under the
provisions of this chapter, when the returns or facts shown thereby are
directly involved in such action or proceeding, in either of which
events the court may require the production of, and may admit in
evidence, so much of said returns or of the facts shown thereby, as are
pertinent to the action or proceeding and no more. Nothing herein shall
be construed to prohibit the delivery to a taxpayer or such taxpayer's
duly authorized representative of a certified copy of any return filed
in connection with such taxpayer's tax; nor to prohibit the delivery of
such a certified copy of such return or of any information contained in
or relating thereto, the United States of America or any department
thereof, to the state of New York or any department thereof, or to any
agency or department of the city of New York, provided the same is
requested for official business; nor to prohibit the inspection for
official business of such returns by the corporation counsel or other
legal representatives of the city or by the district attorney of any
county within the city; nor to prohibit the publication of statistics so
classified as to prevent the identification of particular returns and
the items thereof. Returns shall be preserved for three years and
thereafter until the commissioner of finance permits them to be
destroyed.
b. Any violation of subdivision a of this section shall be punishable
by a fine not exceeding one thousand dollars, or by imprisonment not
exceeding one year, or both, in the discretion of the court, and if the
offender be an officer or employee of the city he or she shall be
dismissed from office and be incapable of holding any public office for
a period of five years thereafter.
Section 11-1617
§ 11-1617 Notices and limitations of time. a. Any notice authorized or
required under the provisions of this chapter 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 in the last return filed
by such person pursuant to the provisions of this chapter or in any
application made by such person or, if no return has been filed or
application made, then to such address as may be obtainable. The mailing
of such notice shall be presumptive evidence of the receipt of the same
by the person to whom addressed. Any period of time which is determined
according to the provisions of this chapter by the giving of notice
shall commence to run from the date of mailing of such notice.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this chapter. However, except in the case of a
willfully false or fraudulent return with intent to evade the tax, no
assessment of additional tax shall be made after the expiration of more
than three years from the date of the filing of a return; provided,
however, that where no return has been filed as provided by law the tax
may be assessed at any time.
c. Where, before the expiration of the period prescribed herein for
assessment of an additional tax, a taxpayer has consented in writing
that such period be extended, the amount of such additional tax due may
be determined at any time within such extended period. The period so
extended may be further extended by subsequent consents in writing made
before the expiration of the extended period.
Section 11-1618
§ 11-1618 Construction and enforcement. This chapter shall be
construed and enforced in conformity with chapter three hundred
ninety-nine of the laws of nineteen hundred seventy-one, pursuant to
which it is enacted.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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