Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Time of collection.
(1) Every
person required to collect the tax shall collect the tax from the customer when
collecting the price, amusement charge or rent to which it applies.
(2) Where a vendor makes a sale for which
payment is not received at the time of delivery, such sale must be reported on
the return covering the period in which the sale is made. Thus, if the sale is
a taxable sale, the full amount of tax must be remitted with the return whether
or not any money was collected at the time of sale.
Cross-reference:
For credit for bad debts, see Part 534 of this Title. For
reporting and payment of tax by vendor, see Part 533 of this
Title.
(3) Any person
willfully failing to collect the tax from a customer may be subject to the
criminal penalties prescribed by section 1817 of the Tax Law and the Penal Law.
See Part 536 of this Title.
(b)
Statement of and reference to
tax.
(1) Whenever the customer is given
any sales slip, invoice, receipt, or other statement or memorandum of the
price, amusement charge, or rent paid or payable, the tax shall be stated,
charged and shown separately on the first of such documents given to
him.
(2) Whenever the sales and use
tax is separately stated on such document, it may be referred to as
tax.
(3) The words
tax included or words of similar import, on a sales slip or
other document, do not constitute a separate statement of the tax, and the
entire amount charged is deemed the sales price of the property sold or
services rendered.
(4) No written
receipt. For sales other than sales of gasoline and diesel fuel a unit price
method of accounting for sales may be used where no written receipt is given to
the customer. The
unit price is the price, including sales
tax, at which the sale is recorded. Since the customer must be made aware of
the inclusion of sales tax in the total sales price, every business
establishment employing the unit price method must visibly display, to all
customers a placard stating that the prices of all taxable items include sales
tax. If the sale is recorded on a cash register it may be rung up on a single
ring, a quantity of individual items may be rung up in total, or a quantity of
items can be rung up individually with a total. In addition, the vendor shall,
for the benefit of his customers, distinguish between taxable and nontaxable
items offered for sale. This may be done by such methods as:
(i) attaching labels to merchandise to
indicate taxable or nontaxable status;
(ii) displaying taxable and nontaxable
merchandise separately; or
(iii)
having available detailed listings of taxable and/or nontaxable items. It is
the responsibility of every vendor who sells both taxable and nontaxable items
to maintain accurate records indicating such sales.
Cross-reference:
For posting of signs at retail service stations, see
section 530.2 of this
Title.
(5) Any
person willfully failing to charge or state separately the tax, or referring to
the tax in a manner other than prescribed, may be subject to the criminal
penalties prescribed by section 1817 of the Tax Law and the Penal Law. See Part
536 of this Title.
(c)
Absorption of tax and forms of advertising prohibited.
No person required to collect any tax imposed by article 28
and pursuant to the authority of article 29 of the Tax Law, shall advertise or
hold out to any purchaser, to any other person, or to the public in general, in
any manner, that the tax is not considered as an element in the price,
amusement charge, or rent payable by the customer. Among the acts prohibited
are statements that the customer is not being charged the tax, or that the tax
will be refunded to the customer, or applied as a credit against the customer's
bill, account or future purchases. The following examples illustrate violations
of section 1133(d) of the Tax Law:
| Example 1: |
A vendor gives a sales slip which reads: |
| Merchandise |
$100 |
| Tax Credit or Allowance |
(7) |
| Sales Tax |
7 |
| Total |
$100 |
| Example 2: |
A vendor gives a sales slip which reads: |
| Merchandise |
$100 |
| Sales Tax |
7 |
| $107 |
| Less Tax Allowance |
(7) |
| Total |
$100 |
| Example 3: |
A vendor gives a sales slip which reads: |
| Merchandise |
$100 |
| Tax |
7 |
| Total |
$107 |
| Tax credit on subsequent purchase $7. |
(d)
Vendor's remedy for customer's failure to pay tax.
(1) Every person required to collect any tax
imposed by article 28 and pursuant to the authority of article 29 of the Tax
Law shall have the same right in respect to collecting the tax from his
customer or in respect to nonpayment of the tax by the customer as if the tax
were a part of the purchase price of the property or service, amusement charge
or rent, as the case may be, and payable at the same time; provided, however,
that the Commissioner of Taxation and Finance shall be joined as a party in any
action or proceeding brought to collect the tax.
(2) The joining of the Commissioner of
Taxation and Finance as a party in any action or proceeding brought to collect
the tax shall be effected by service upon the Commissioner of Taxation and
Finance of a summons and complaint naming the Commissioner of Taxation and
Finance as a plaintiff or defendant thereon.
(e)
Payment and report by
customer.
Where any customer has failed to pay sales tax imposed by
article 28 and pursuant to the authority of article 29 of the Tax Law to the
person required to collect the tax, such tax shall be payable by the customer
directly to the Department of Taxation and Finance, and it shall be the duty of
the customer to file a report of sales and use tax with the Department of
Taxation and Finance and to pay the tax as provided in section
531.6 or
533.3 of this Title. For special
rules concerning direct payment permit holders, see section
532.5 of this
Part.
