STATE OF NEW YORK ________________________________________________________________________ 7400--A 2017-2018 Regular Sessions IN ASSEMBLY April 25, 2017 ___________ Introduced by M. of A. GUNTHER -- read once and referred to the Commit- tee on Ways and Means -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the tax law, in relation to taxes on alcoholic beverages with respect to liquors The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 420 of the tax law is amended by adding a new 2 subdivision 17 to read as follows: 3 17. "Proof gallon" means one gallon of spirits that is fifty percent 4 alcohol at sixty degrees Fahrenheit. 5 § 2. Subdivision 1 of section 421 of the tax law, as amended by chap- 6 ter 508 of the laws of 1993, is amended to read as follows: 7 1. General. The commissioner, upon the application of a distributor, 8 shall register such distributor in suitable books to be kept by the 9 department for that purpose, conditioned upon the obtaining of appropri- 10 ate licenses pursuant to the alcoholic beverage control law, and the 11 continuance of such license shall be a continuing condition of registra- 12 tion as a distributor under this article. The application shall be in a 13 form and contain such data as the commissioner shall prescribe. No 14 distributor, unless so registered, shall make any sale of alcoholic 15 beverages within this state, except a sale, if any, as to which this 16 state is without power to impose such condition. No person, unless so 17 registered, shall (i) import or cause any liquors to be imported in this 18 state for sale or use within this state, (ii) purchase a warehouse 19 receipt and pursuant to such purchase then cause liquors covered by such 20 receipt to be removed from a warehouse in this state or (iii) except in 21 accordance with clause (i) or (ii) of paragraph (b) of subdivision four 22 of section four hundred twenty of this article, produce, distill, manu- 23 facture, compound, mix or ferment any such liquors within this state for 24 sale. Provided, however, that the commissioner may exclude from regis- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07572-03-7
A. 7400--A 2 1 tration requirements any person who is a distributor of liquors solely 2 by reason of the importation into this state of no more than [ninety 3 liters] twenty-four proof gallons of liquors during a one-year period 4 for such person's personal use and consumption to register as a distrib- 5 utor with respect to liquor. Provided, further, that an abbreviated 6 registration in the [from] form of a permit, without a bond, may be 7 instituted by the commissioner for the purpose of authorizing the impor- 8 tation of up to [three hundred sixty liters] ninety-five proof gallons 9 of liquors per year into this state by an individual for such individ- 10 ual's personal use and consumption in this state. 11 § 3. Paragraphs (e), (f) and (g) of subdivision 1 of section 424 of 12 the tax law, paragraph (e) as amended by chapter 190 of the laws of 13 1990, paragraph (f) and the opening paragraph of paragraph (g) as 14 amended by chapter 508 of the laws of 1993 and paragraph (g) as amended 15 by chapter 433 of the laws of 1978, are amended to read as follows: 16 (e) [Sixty-seven] Two dollars and fifty-three and six-tenths cents per 17 [liter] gallon upon liquors containing not more than twenty-four per 18 centum of alcohol by volume except liquors containing not more than two 19 per centum of alcohol by volume, upon which the tax shall be [one cent] 20 three and three-quarters cents per [liter] gallon; and 21 (f) [One dollar] Six dollars and [seventy] forty-three and one-half 22 cents per [liter] proof gallon upon all other liquors; when sold or used 23 within this state, except when sold or used under such circumstances 24 that this state is without power to impose such tax or when sold to the 25 United States and except beers when sold to or by a voluntary unincorpo- 26 rated organization of the armed forces of the United States operating a 27 place for the sale of goods pursuant to regulations promulgated by the 28 appropriate executive agency of the United States, to the extent 29 provided in such regulations, directives and policy statements of such 30 an agency applicable to such sales, and except when sold to professional 31 foreign consuls-general, consuls and vice-consuls who are nationals of 32 the state appointing them and who are assigned to foreign consulates in 33 this state, provided that American consular officers of equal rank who 34 are citizens of the United States and who exercise their official func- 35 tions at American consulates in such foreign country are granted recip- 36 rocal exemptions; provided, however, that the commissioner may permit 37 the sale of alcohol without tax to a holder of any industrial alcohol 38 permit, alcohol permit or alcohol distributor's permit, issued by the 39 state liquor authority, and by the holder of an alcohol distributor's 40 permit, class A, issued by such authority to a holder of a distiller's 41 license, class B, or a winery license, issued by such authority and may 42 also permit the use of alcohol for any purpose other than the production 43 of alcoholic beverages by such holders without tax; provided also that 44 the commissioner may permit the sale of cider without tax by a holder of 45 a cider producer's license issued by the state liquor authority to a 46 holder of a cider producer's license or a cider wholesaler's license 47 issued by such authority. 48 (g) For purposes of this chapter, it is presumed that liquors are 49 possessed for the purpose of sale in this state if the quantity of 50 liquors possessed in this state, imported or caused to be imported into 51 this state or produced, distilled, manufactured, compounded, mixed or 52 fermented in this state exceeds [ninety liters] twenty-four proof 53 gallons. Such presumption may be rebutted by the introduction of 54 substantial evidence to the contrary. In any case where the quantity of 55 alcoholic beverages taxable pursuant to this article is a fractional 56 part of one [liter] proof gallon (or one gallon in the case of beers) or
A. 7400--A 3 1 an amount greater than a whole multiple of [liters] proof gallons (or 2 gallons in the case of beers), the amount of tax levied and imposed on 3 such fractional part of one [liter] proof gallon (or one gallon in the 4 case of beers), or a fractional part of a [liter] proof gallon (or 5 gallon) in excess of a whole multiple of [liters] proof gallons or 6 gallons shall be such fractional part of the rate imposed by paragraphs 7 (a) through (f). 8 Notwithstanding any other provision of this article, the tax commis- 9 sion may permit the purchase of liquors and wines without tax by a hold- 10 er of a distiller's license or a winery license, issued by the state 11 liquor authority from another holder of a distiller's license or a 12 winery license, issued by such authority, in which event the liquors and 13 wines so purchased shall be subject to the taxes imposed by this article 14 in the hands of the purchaser in the same manner and to the same extent 15 as if such purchaser had imported or caused the same to be imported into 16 this state or had produced, distilled, manufactured, brewed, compounded, 17 mixed or fermented the same within this state. 18 § 4. Subdivision 4 of section 424 of the tax law, as amended by chap- 19 ter 433 of the laws of 1978, is amended to read as follows: 20 4. [(a)] Notwithstanding any other provision of this article, there 21 shall be exempt from the taxes imposed under this article, per month, 22 one-quart of alcoholic beverages (or one gallon of such beverages in the 23 case of a person arriving directly or indirectly from American Samoa, 24 Guam or the Virgin Islands of the United States not more than one-quart 25 of which shall have been acquired elsewhere than in such insular 26 possessions): 27 [(i)] (a) purchased outside this state as an incident to a journey 28 from which the purchaser is returning and 29 [(ii)] (b) not to be offered for sale or used for any commercial 30 purpose, provided such alcoholic beverages accompany such person on his 31 return to this state and provided, further, that in the case of a person 32 arriving in this state from other than a state of the United States 33 (including the district of Columbia), the Virgin Islands of the United 34 States or a contiguous country maintaining a free zone or free port, 35 such person shall have remained beyond the territorial limits of the 36 United States for a period of not less than forty-eight hours. 37 [(b) Provided, however, where the amounts purchased outside this state 38 or brought in exceed the amounts specified in paragraph (a) of this 39 subdivision but are not in excess of one liter in the case of the refer- 40 ences to one-quart or four liters in the case of the reference to one 41 gallon, and where no duty is required by the laws of the United States 42 to be paid on such amounts, such metric standards of fill shall be 43 substituted for one-quart and one gallon, respectively, and such amounts 44 shall be exempt from tax under the conditions provided for in paragraph 45 (a) of this subdivision.] 46 § 5. Section 425-a of the tax law, as added by chapter 508 of the laws 47 of 1993, is amended to read as follows: 48 § 425-a. Presumption of taxability. For the purpose of the proper 49 administration of the taxes imposed by this article and to prevent 50 evasion thereof, it shall be presumed with respect to this chapter that 51 all alcoholic beverages possessed or found in this state are subject to 52 the taxes imposed by this article until the contrary is established by 53 substantial evidence. Except with respect to a purchase at retail of 54 beers or wines and a purchase at retail of [ninety liters] twenty-four 55 proof gallons or less of liquors, no person shall purchase alcoholic 56 beverages in this state unless the taxes imposed by this article with
A. 7400--A 4 1 respect to such beverages have been assumed by a distributor registered 2 under this article or paid by such distributor pursuant to and in 3 accordance with the manner provided herein and evidenced in accordance 4 with the manner provided herein. In the case of liquors, such taxes 5 shall be assumed by a distributor in accordance with the invoice 6 required, and the certification of tax payment included therein, under 7 section four hundred twenty-seven of this article; in the case of other 8 alcoholic beverages, the taxes shall be assumed by such distributor 9 pursuant to and in accordance with the rules or regulations of the 10 department. 11 § 6. Subdivision 1 and paragraph (i) of subdivision 2 of section 427 12 of the tax law, as added by chapter 508 of the laws of 1993, are amended 13 to read as follows: 14 1. Every sale of liquors, except a sale at retail of [ninety liters] 15 twenty-four proof gallons or less, shall be evidenced by and recorded on 16 an individual, serially numbered invoice, and, with respect to each such 17 sale, the seller therein shall make and complete such invoice which 18 shall contain the information required by this section and give the same 19 to the purchaser at the time of delivery. The seller shall sign and date 20 the invoice required by this section and certify the entire content of 21 such invoice. 22 (i) the [size (in liters)] volume per bottle and number of bottles of 23 liquors sold, and its description, by brand name and price; and 24 § 7. Subdivision 2 of section 428 of the tax law, as added by chapter 25 508 of the laws of 1993, is amended to read as follows: 26 2. The operator of a motor vehicle, as such term is defined in subdi- 27 vision three of section two hundred eighty-two of this chapter, or any 28 other means of transport of liquors in which more than [ninety liters] 29 twenty-four proof gallons of liquors is being transported in this state 30 must have in his or her possession a manifest, invoice or other document 31 which shows the name and address of the person from whom such liquors 32 were received and the date and place of receipt of such liquor and the 33 name and address of every person to whom such operator is to make deliv- 34 ery of the same and the place of delivery, together with the number of 35 [liters] bottles and volume per bottle to be delivered to each person, 36 and, if such liquor is being imported into the state in such motor vehi- 37 cle or such other means of transport, the name of the distributor 38 importing or causing such liquors to be imported into the state and such 39 other information as the commissioner may require pursuant to rule or 40 regulation. Every operator of such motor vehicle or such other means of 41 transport shall at the request of a peace officer, acting pursuant to 42 his special duties, a police officer, any representative of the depart- 43 ment or any other person authorized by law to inquire into or investi- 44 gate the transportation of such liquors, produce such manifest, invoice 45 or other document for inspection. The person causing the operation of 46 such motor vehicle or such other means of transport shall be responsible 47 to cause the operator to keep in such operator's possession in such 48 motor vehicle or such other means of transport the manifest, invoice or 49 other document required by this section. The absence of the manifest, 50 invoice or other document required by this section shall give rise to a 51 presumption that the liquors being transported are being imported or 52 caused to be imported into this state for sale or use therein by other 53 than a registered distributor. Moreover, the absence of (1) the place 54 of delivery of liquors on the manifest, invoice or other document with 55 respect to liquors being imported into the state shall give rise to a 56 presumption that such liquors are being imported into the state for sale
A. 7400--A 5 1 or use in the state and (2) the name of a registered distributor on the 2 manifest, invoice or other document with respect to liquors being 3 imported into the state shall give rise to a presumption that such 4 liquors are being so imported or caused to be imported into this state, 5 for sale or use therein, by other than a registered distributor. Such 6 presumptions may be rebutted by the introduction of substantial evidence 7 to the contrary. 8 § 8. Subdivisions 1 and 2 of section 429 of the tax law, as amended by 9 chapter 433 of the laws of 1978, are amended to read as follows: 10 1. Every distributor, noncommercial importer or other person shall, on 11 or before the twentieth day of each month, file with the department of 12 taxation and finance a return, on forms to be prescribed by the tax 13 commission and furnished by such department, stating separately the 14 number of gallons or proof gallons, or lesser quantity, of beers, [and 15 the number of liters, or lesser quantity, of] wines and liquors sold or 16 used by such distributor, noncommercial importer or other person in this 17 state during the preceding calendar month, except that the tax commis- 18 sion may, if it deems it necessary in order to insure the payment of the 19 tax imposed by this article, require returns to be made at such times 20 and covering such periods as it may deem necessary. Such return shall 21 contain such further information as the tax commission shall require. 22 The fact that the name of the distributor, noncommercial importer or 23 other person is signed to a filed return shall be prima facie evidence 24 for all purposes that the return was actually signed by such distribu- 25 tor, noncommercial importer or other person. 26 2. Each such distributor, noncommercial importer or other person shall 27 pay to such department with the filing of such return, the tax imposed 28 by this article, on each gallon or proof gallon, or lesser quantity[, of 29 beers and on each liter, or lesser quantity] of all [other] alcoholic 30 beverages sold or used by such distributor, noncommercial importer or 31 other person in this state, as so reported, during the period covered by 32 such return, except that, where a distributor has purchased alcoholic 33 beverages prior to the expiration of the period covered by the return, 34 upon which the taxes imposed by this article have been or are required 35 to be paid by another distributor, a credit shall be allowed for the 36 amount of such taxes. 37 § 9. Paragraph (b) of subdivision 1 and subdivision 2 of section 445 38 of the tax law, as amended by chapter 433 of the laws of 1978, are 39 amended to read as follows: 40 (b) [Twenty-six] Ninety-nine and [four-tenths] nine-tenths cents per 41 [liter] proof gallon on the liquors described in paragraph (f) of subdi- 42 vision one of section four hundred twenty-four, when sold or used in 43 such city. 44 2. Every local law imposing taxes pursuant to the authority of subdi- 45 vision one shall also impose upon each person, other than a distributor 46 within the meaning of such local law, who, on the date the taxes imposed 47 pursuant to the authority of such subdivision become effective, owns and 48 possesses for the purposes of sale beer, or other alcoholic beverages 49 described in subdivision one, a floor tax at the rates applicable under 50 subdivision one upon such beer in excess of one hundred gallons and upon 51 such other alcoholic beverages in excess of [four] one hundred [liters] 52 five proof gallons. Such floor tax shall be due and payable on the 53 twentieth day of the month succeeding the month in which the taxes 54 become effective. 55 § 10. Paragraphs 2 and 3 of subdivision (e), paragraphs 2 and 3 of 56 subdivision (f) and subdivision (g) of section 1813 of the tax law, as
A. 7400--A 6 1 amended by section 27 of subpart I of part V-1 of chapter 57 of the laws 2 of 2009, are amended to read as follows: 3 (2) Any person who, while not registered as a distributor pursuant to 4 the provisions of article eighteen of this chapter, knowingly and inten- 5 tionally imports or causes to be imported into this state, for sale or 6 use therein, more than [three hundred sixty liters] ninety-five proof 7 gallons of liquors into this state in a one-year period or, except in 8 accordance with clause (i) or (ii) of paragraph (b) of subdivision four 9 of section four hundred twenty of this chapter, knowingly and inten- 10 tionally produces, distills, manufactures, compounds, mixes or ferments 11 for sale more than [three hundred sixty liters] ninety-five proof 12 gallons of such liquors within this state in a one-year period, or, as a 13 purchaser of a warehouse receipt, knowingly and intentionally causes 14 more than [three hundred sixty liters] ninety-five proof gallons of 15 liquors in a one-year period to be removed from a warehouse in this 16 state, shall be guilty of a class E felony. 17 (3) For purposes of this subdivision, it shall be presumed that the 18 importation or the causing to be imported into this state or the 19 production, distillation, manufacture, compounding, mixing or fermenting 20 in this state of more than [ninety liters] twenty-four proof gallons of 21 such liquors by any person in a one-year period is for purposes of sale. 22 Such presumption may be rebutted by the introduction of substantial 23 evidence to the contrary. 24 (2) Any person who, while not registered as a distributor for city 25 purposes pursuant to the provisions of section four hundred forty-five 26 of article eighteen of this chapter, knowingly and intentionally imports 27 or causes to be imported into such city, for sale or use therein, more 28 than [three hundred sixty liters] ninety-five proof gallons of liquors 29 into such city in a one-year period or, except in accordance with clause 30 (i) or (ii) of paragraph (b) of subdivision four of section four hundred 31 twenty of this chapter as incorporated into such section four hundred 32 forty-five, knowingly and intentionally produces, distills, manufac- 33 tures, compounds, mixes or ferments for sale more than [three hundred 34 sixty liters] ninety-five proof gallons of such liquors within such city 35 in a one-year period, or, as a purchaser of a warehouse receipt, know- 36 ingly and intentionally causes more than [three hundred sixty liters] 37 ninety-five proof gallons of liquors in a one-year period to be removed 38 from a warehouse in this state, shall be guilty of a class E felony. 39 (3) For purposes of this subdivision, it shall be presumed that the 40 importation or the causing to be imported into such city or the 41 production, distillation, manufacture, compounding, mixing or fermenting 42 in such city of more than [ninety liters] twenty-four proof gallons of 43 liquors by any person in a one-year period is for purposes of sale. Such 44 presumption may be rebutted by the introduction of substantial evidence 45 to the contrary. 46 (g) Any person, other than the distributor registered under article 47 eighteen of this chapter which imported or caused the liquors to be 48 imported into this state, who shall willfully and knowingly have in his 49 custody, possession or under his control liquors with respect to which 50 the taxes imposed by or pursuant to the authority of article eighteen of 51 this chapter have not been assumed or paid by a distributor registered 52 as such under such article, shall be guilty of a class B misdemeanor; if 53 such person shall willfully and knowingly have more than [ninety liters] 54 twenty-four proof gallons of such liquors in his custody or possession 55 or under his control, such person shall be guilty of a class A misdemea- 56 nor; or if such person shall knowingly and intentionally have more than
A. 7400--A 7 1 [three hundred sixty liters] ninety-five proof gallons of such liquors 2 in his custody or possession or under his control, such person shall be 3 guilty of a class E felony. For purposes of this subdivision, such 4 person shall willfully and knowingly have in his custody, possession or 5 under his control any liquors with respect to which such taxes have not 6 been assumed or paid by a distributor registered as such where such 7 person has knowledge of the requirement of such taxes and where, to his 8 knowledge, such taxes have not been assumed or paid by a registered 9 distributor with respect to such liquors. 10 § 11. Subdivisions (a), (k) and (l) of section 1845 of the tax law, as 11 added by chapter 508 of the laws of 1993, are amended to read as 12 follows: 13 (a) Temporary seizure. Whenever a police officer designated in section 14 1.20 of the criminal procedure law or a peace officer designated in 15 subdivision four of section 2.10 of such law, acting pursuant to his 16 special duties, shall discover more than [ninety liters] twenty-four 17 proof gallons of liquors which are being imported for sale or use in the 18 state, where the person importing or causing such liquors to be imported 19 is not registered as a distributor under section four hundred twenty-one 20 of this chapter, such police officer or peace officer is hereby author- 21 ized to seize and take possession of such liquors, and to seize and take 22 possession of the vehicle or other means of transportation used to 23 transport such liquors. 24 (k) An additional ground for seizure and forfeiture under this section 25 shall be where such police officer or peace officer shall discover more 26 than [ninety liters] twenty-four proof gallons of liquors in this state, 27 with respect to which the taxes imposed by or pursuant to article eigh- 28 teen of this chapter have not been paid or assumed by a person regis- 29 tered as a distributor pursuant to such article, which are in the course 30 of distribution in this state or which are being sold in this state. All 31 the foregoing subdivisions of this section shall apply to the seizure 32 and forfeiture of liquors referred to in this subdivision and the vehi- 33 cle transporting the same as if such foregoing subdivisions specifically 34 referred to such grounds and as if such grounds set forth in this subdi- 35 vision were set forth as grounds for seizure in subdivision (a) hereof. 36 Provided that in the forfeiture action with respect to the liquors or 37 vehicle referred to in this subdivision, the department shall be 38 required to show that such liquors were found within the state and that 39 they were in the course of distribution in this state or were being sold 40 in this state. 41 (l) This section shall also apply to a forfeiture action with respect 42 to the importation of more than [ninety liters] twenty-four proof 43 gallons of liquors into a city imposing a tax pursuant to the authority 44 of section four hundred forty-five of this chapter by a person not 45 registered as a distributor for purposes of such tax or, in addition, 46 with respect to the distribution or sale of untaxed liquors in such 47 city. 48 § 12. This act shall take effect on the ninetieth day after it shall 49 have become a law; provided, however, that effective immediately, the 50 addition, amendment and/or repeal of any rule or regulation necessary 51 for the implementation of this act on its effective date are authorized 52 and directed to be made and completed on or before such date.