Tax Law, § 1134
(a)
(1) To
obtain a certificate of authority to collect tax, a certificate registration
must be filed with the Commissioner of Taxation and Finance, in accordance with
the procedures provided for in Part 539 of this Title. A certificate of
registration is required to be filed by any person who intends to:
(i) commence business or to open a new place
of business and who will be required to collect any tax imposed by article 28
of the Tax Law or pursuant to the authority of article 29 of the Tax Law;
or
(ii) commence business or to
open a new place of business and who will be purchasing or selling tangible
personal property for resale; or
(iii) sell automotive fuel; or
(iv) take possession of or pay for the
business assets of another in a bulk sale under circumstances requiring
notification to the Department of Taxation and Finance, pursuant to section
1141 (c) of the Tax Law
(see Notice of Bulk Sale, Part 537 of this Title) and commences business or
opens a new place of business who will either be required to collect sales tax
or be purchasing or selling tangible personal property for resale.
Example:
An individual who only purchases tangible personal property
for resale to registered vendors is required to file a certificate of
registration.
(2)
(i) Any person required to file a certificate
of registration for a certificate of authority who fails to file such
certificate of registration, may be subject to a penalty in an amount not
exceeding $200.
(ii) In addition,
any person who fails to obtain a certificate of authority and sells tangible
personal property or services subject to tax, receives amusement charges or
operates a hotel, purchases or sells tangible personal property for resale, or
sells automotive fuel, is subject to a penalty in an amount not exceeding $500
for the first day sales or purchases are made plus an amount not exceeding $200
for each subsequent day sales or purchases are made, but not to exceed $10,000
in the aggregate. Such person may also be subject to the criminal penalties
prescribed by section
1817 of the Tax Law.
Cross-references:
For registration procedures see Part 539 of this Title. For
expiration of certificates of authority and registration renewals see Part 540
of this Title. For persons required to collect tax, see section
526.11
of this Title. For bulk sales, see Part 537 of this Title. For tax on hotel
occupancy, see section
527.9
of this Title. For tax on amusement charges, see sections
527.10 through
527.12
of this Title.
(b)
Registration of show
vendors.
Every person who has no permanent place of business in the
State who intends to display for sale or sell tangible personal property or
services subject to tax at a flea market, craft show, antique show, coin show,
stamp show, comic book show, fair, or any similar show in the State must file a
certificate of registration for a certificate of authority in accordance with
Part 539 of this Title.
(c)
Registering and applying for a permit to operate a show.
(1) Every person who intends to be a promoter
of a show must file a notice of show and application for show permit with the
Department of Taxation and Finance to obtain a show permit.
(2) A
show is a flea market,
craft show, antique show, coin show, stamp show, comic book show, fair, and any
similar show held on a regular or temporary basis at which more than one vendor
displays for sale or sells tangible personal property or services subject to
tax.
(i) For purposes of determining the
existence of a show, the permanent nature of the premises or structure in which
the activity is held is not relevant. Instead, it is the transient nature of
the vendors which is relevant. Accordingly, when there are two or more vendors
operating on the same premises, and two or more vendors have leases or licenses
to use such premises for a period of less than one year or where the leases or
licenses to use may be cancelled on notice of less than 30 days, then a show is
presumed to exist for all purposes of this Part. Another fact which indicates
the existence of a show is where the vendors regularly remove their merchandise
from the premises at the close of each business day.
(ii) If no taxable tangible personal property
or services are displayed for sale or sold, then the activity is not a show for
purposes of this subdivision.
(iii)
Sales of food and drink for consumption on the premises, although taxable, will
not be considered for purposes of determining the existence of a show. Further,
admission charges for games of chance or skill, like those typically operated
on a carnival midway will not be considered for purposes of determining the
existence of a show.
Example 1:
A market, where the only items for sale are nontaxable
fruits and vegetables, is not a show for purposes of this subdivision.
Example 2:
A market which consists of many stands selling nontaxable
fruits and vegetables and, as well, two stands selling taxable beverages and
prepared food for consumption on the premises is not a show for purposes of
this subdivision.
Example 3:
A market which consists of many stands selling nontaxable
fruits and vegetables and, as well, two booths selling cut flowers and
vegetable plants, which are subject to sales tax, is a show.
(3) A
promoter is
any person who:
(i) directly or indirectly
rents, leases or grants a license to use space to any person for the conduct of
more than three shows in a calendar year; or
(ii) operates more than three shows in a
calendar year.
A promoter may also be a person required
to collect sales tax within the meaning of section 1131 (1) of the Tax Law and
the related provisions of section
526.11
of this Title. A person may be a promoter with respect to show vendors
operating on his premises, and at the same time not a promoter with respect to
vendors who have permanent places of business on the same premises. For the
purposes of determining whether three shows have been held, the conduct of a
show on one day alone or up to seven consecutive days shall constitute a single
show. If there is more than one person involved in the organization or
operation of a show who is within the definition of promoter,
then all such persons must file a single notice of show and application for
show permit as copromoters.
Example 1:
A, the owner of the X shopping mall, leases an area in the
mall to B for the purpose of holding a flea market on each of five weekends
during the year. B intends to sublease space to individual show vendors. If
neither A nor B is involved in organizing or operating any show other than at
the X shopping mall, then, after the third weekend the flea market is held,
both A and B are promoters subject to this subdivision. While A, the owner of
the X mall, is a promoter with respect to the show vendors participating in the
flea market, A is not a promoter with respect to the permanent vendors of the X
mall.
Example 2:
A, the owner of the X shopping mall, leases area in the
mall to B for the purpose of holding a flea market on the first weekend of
July. B intends to sublease portions of the mall area to individual show
vendors. A is not involved in organizing or operating any other show during the
calendar year. B, however, will operate similar shows on three weekends during
June at a location other than the X shopping mall. With regard to the flea
market at the X shopping mall, A is not a promoter, but B is a promoter subject
to this subdivision.
(4) Promoters must file a notice of show and
an application for show permit 10 days prior to the opening of the fourth
show.
(5) The application for show
permit should be filed with the New York State Department of Taxation and
Finance, Sales Tax Registration Unit, W.A. Harriman Campus, Albany, NY
12227.
(6) Promoters must file
separate applications for show permits for each location at which a show or
shows are to be held. However, promoters may file a single application for
multiple shows held at a single location. A separate application must be
submitted for any show not listed on a show application previously filed. A
permit to operate a show may not be amended.
(7) The applicant must submit the following
information:
(i) name and address of the
applicant;
(ii) date(s) of
show(s);
(iii) location of
show(s);
(iv) name, address and
social security number of each officer of a corporation;
(v) name and address of each co-promoter;
and
(vi) any additional information
which may be requested.
(8) The Department of Taxation and Finance
will, within five days after the receipt of an application for show permit,
issue to the promoter, without charge, a permit to operate such show.
(9) Failure to comply with any of the
requirements for promoters may, after an opportunity for a hearing has been
afforded, result in the revocation of all existing show permits and the denial
of any show permits for up to six months. In addition, any person failing to
file a notice of show, or operating a show without a permit, or allowing a show
on his property without a permit, may be subject to the criminal penalties
prescribed by section 1817 of the Tax Law.
(10) Any promoter, who is also a person
required to register with the Department of Taxation and Finance to obtain a
certificate of authority, must comply with all requirements relating to such
status, as well as with the requirements governing promoters.
(d)
Display of certificates
and permits.
(1) Each certificate of
authority must be prominently displayed at each place of business of the
registrant. A registrant who has no fixed place of doing business must attach
such certificate to the registrant's cart, stand, truck, or other merchandising
device.
Example 1:
A certificate of authority that is attached to a vendor's
cash register, placed in his store window or at his customer relations counter,
is considered properly displayed.
Example 2:
A certificate of authority which is located in a vendor's
private office or some other place that is not accessible and visible to the
vendor's customers is not properly displayed.
Example 3:
A vendor who owns a craft shop and who holds a valid
certificate of authority also appears with his merchandise at a craft show in
an armory. The vendor is required to obtain a duplicate certificate of
authority (see section
539.2[b]
of this Title), and to display it at the stand at which he is displaying or
selling merchandise at the armory.
(2) Promoters are required to prominently
display the permit to operate a show at the main entrance to the show. If the
notice of show has been filed by the promoter and the permit has not been
received prior to the opening of the show, the requirement with respect to
obtaining and displaying such permit is deemed to have been complied with
unless and until the promoter receives a notice sent by registered or certified
mail from the Department of Taxation and Finance denying the application for a
permit.
(3) A vending machine
operator may, in lieu of placing a certificate of authority on each vending
machine, place a card on each vending machine, in a location visible to the
customer, which contains the name, address and number that appear on the
vendor's certificate of authority.
(4) A show promoter must not permit any
person to display for sale or sell tangible personal property or services
subject to tax at a show unless such person has obtained a certificate of
authority and properly displays such certificate.
(5) Any person failing to display a
certificate of authority may be subject to the civil and criminal penalties
prescribed, respectively, by sections 1145 (a)(4) and 1817 of the Tax
Law.
(e)
Amending
the certificate of authority or the certificate of registration.
(1) A registered vendor is required to notify
the New York State Department of Taxation and Finance, Sales Tax Registration
Unit, W.A. Harriman Campus, Albany, NY 12227, within 20 days if any of the
following changes are made:
(i) there is a
change in the form of the business;
(ii) there is a change in the name of the
business;
(iii) there is a change
in the address of the business, including an additional place of business at a
new location;
(iv) there is a
change in the name or address of an owner;
(v) there is a change in the responsible
persons of the business, including those responsible for collecting or paying
tax (as such persons are described in section
539.2[h][2]
of this Title);
(vi) there is a
change in trade name; or
(vii)
there is a change in business activity.
(2) Any person failing to furnish data with
respect to changes in any of the information listed on a registration
certificate may be subject to the penalty provisions of section 1817 of article
37 of the Tax Law.
(f)
Surrender of certificates and permits.
(1) Certificates of authority must be
surrendered to the New York State Department of Taxation and Finance, Sales Tax
Registration Unit, W.A. Harriman Campus, Albany, NY 12227 within 20 days of the
registrant's ceasing to do business, and must accompany the final return.
Ceasing to do business means that the registrant is no longer
operating the business even though the business may continue.
Cross-reference:
For final returns, see section
533.3(e)
of this Part.
(2) Upon
surrendering the certificate of authority, the vendor must complete the reverse
side of the certificate and indicate the details of the sale or other
disposition of the business. Where a certificate of authority has been lost,
stolen, destroyed or is otherwise unreturnable to the department, the owner,
partner or responsible officer of a vendor which was issued such certificate is
required to notify the Sales Tax Registration Unit that such certificate cannot
be returned, setting forth the specific reasons for such failure. The
notification must be in written form, signed by the owner, partner or
responsible officer and received within 20 days of the registrant's ceasing to
do business.
(3) A show vendor must
surrender the vendor's certificate of authority to the New York State
Department of Taxation and Finance, together with a final return of the vendor,
within 20 days after the termination of the vendor's business. A show vendor's
business is terminated when the vendor no longer participates in shows in New
York State.
(4) Any person who
assigns or transfers a certificate of authority or who fails to surrender a
certificate of authority may be subject to the criminal penalties prescribed by
section
1817 of the Tax Law.
Example 1:
Mr. Brown has operated a flower shop for 25 years as a sole
proprietorship. He decides to retire and give the shop to his daughter. His
daughter will continue to operate the shop as a sole proprietorship. Mr. Brown
must surrender his certificate of authority, and his daughter is required to
obtain a new certificate in her name.
Example 2:
A vendor sells his business to another who will operate the
business under the same name. Even though the business will be operated under
the same name, the seller must surrender his certificate of authority to the
Department of Taxation and Finance, Sales Tax Registration Unit. The purchaser
is required to obtain his own certificate of authority. The purchaser is also
required to file a notice of bulk sale.
Cross-reference:
For bulk sales, see Part 537 of this Title.
(5) A permit to operate a show
must be surrendered with the report of show for the last show for which the
permit was issued (see section
533.3[h]
of this Part for reports of show).
(6) The criminal penalties prescribed by
section 1817 of the Tax Law do not apply to a
failure to surrender a certificate of authority which is required to be
surrendered where business never commenced.
