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By June thirtieth, nineteen hundred seventy, or in the case of operators or room remarketers commencing business or opening new hotels after such date, within three days after such commencement or opening, or in the case of room remarketers doing business on the effective date of the local law that added this phrase, within three days of such effective date, every operator or room remarketer shall file with the commissioner of finance a certificate of registration in a form prescribed by the commissioner of finance. The commissioner of finance shall within five days after such registration issue without charge to each operator or room remarketer a certificate of authority empowering such operator or room remarketer to collect the tax from the occupant and duplicate thereof for each additional hotel or room remarketer of such operator. Each certificate or duplicate shall state the hotel or room remarketer to which it is applicable. Such certificates of authority shall be prominently displayed by the operator or room remarketer in such manner that it may be seen and come to the notice of all occupants and persons seeking occupancy. Such certificates shall be non-assignable and nontransferable and shall be surrendered immediately to the commissioner of finance upon the cessation of business at the hotel named, upon its sale or transfer, or upon cessation of business of the named room remarketer.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/043.
(a) Interest on underpayments. If any amount of tax is not paid or paid over on or before the last date prescribed for payment (without regard to any extension of time granted for payment), interest on such amount at the rate set by the commissioner of finance pursuant to subdivision (g) of this section, or, if no rate is set, at the rate of seven and one-half percent per annum, shall be paid for the period from such last date to the date of payment. In computing the amount of interest to be paid, such interest shall be compounded daily. Interest under this subdivision shall not be paid if the amount thereof is less than one dollar.
(b) (1) Failure to file return.
(A) In case of failure to file a return under this chapter on or before the prescribed date (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return five percent of the amount of such tax if the failure is for not more than one month, with an additional five percent for each additional month or fraction thereof during which such failure continues, not exceeding twenty-five percent in the aggregate.
(B) In the case of a failure to file a return of tax within sixty days of the date prescribed for filing of such return (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, the addition to tax under subparagraph (A) of this paragraph shall not be less than the lesser of one hundred dollars or one hundred percent of the amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return.
(2) Failure to pay tax shown on return. In case of failure to pay the amount shown as tax on a return required to be filed under this chapter on or before the prescribed date (determined with regard to any extension of time for payment), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount shown as tax on such return one-half of one percent of the amount of such tax if the failure is not for more than one month, with an additional one-half of one percent for each additional month or fraction thereof during which such failure continues, not exceeding twenty-five percent in the aggregate. For the purpose of computing the addition for any month the amount of tax shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the beginning of such month and by the amount of any credit against the tax which may be claimed upon the return. If the amount of tax required to be shown on a return is less than the amount shown as tax on such return, this paragraph shall be applied by substituting such lower amount.
(3) Failure to pay tax required to be shown on return. In case of failure to pay any amount in respect of any tax required to be shown on a return required to be filed under this chapter which is not so shown (including a determination made pursuant to section 11-2506 of this chapter) within ten days of the date of a notice and demand therefor, unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount of tax stated in such notice and demand one-half of one percent of such tax if the failure is not for more than one month, with an additional one-half of one percent for each additional month or fraction thereof during which such failure continues, not exceeding twenty-five percent in the aggregate. For the purpose of computing the addition for any month, the amount of tax stated in the notice and demand shall be reduced by the amount of any part of the tax which is paid before the beginning of such month.
(4) Limitations on additions.
(A) With respect to any return, the amount of the addition under paragraph one of this subdivision shall be reduced by the amount of the addition under paragraph two of this subdivision for any month to which an addition applies under both paragraphs one and two. In any case described in subparagraph (B) of paragraph (1) of this subdivision, the amount of the addition under such paragraph (1) shall not be reduced below the amount provided in such paragraph.
(B) With respect to any return, the maximum amount of the addition permitted under paragraph three of this subdivision shall be reduced by the amount of the addition under paragraph (1) of this subdivision (determined without regard to subparagraph (B) of such paragraph (1)) which is attributable to the tax for which the notice and demand is made and which is not paid within ten days of such notice and demand.
(c) Underpayment due to negligence.
(1) If any part of an underpayment of tax is due to negligence or intentional disregard of this chapter or any rules or regulations hereunder (but without intent to defraud), there shall be added to the tax a penalty equal to five percent of the underpayment.
(2) There shall be added to the tax (in addition to the amount determined under paragraph (1) of this subdivision) an amount equal to fifty percent of the interest payable under subdivision (a) of this section with respect to the portion of the underpayment described in such paragraph (1) which is attributable to the negligence or intentional disregard referred to in such paragraph (1), for the period beginning on the last date prescribed by law for payment of such underpayment (determined without regard to any extension) and ending on the date of the assessment of the tax (or, if earlier, the date of the payment of the tax).
(d) Underpayment due to fraud.
(1) If any part of an underpayment of tax is due to fraud, there shall be added to the tax a penalty equal to two times the underpayment.
(2) [Repealed.]
(3) The penalty under this subdivision shall be in lieu of any other addition to tax imposed by subdivision (b) or (c) of this section.
(e) Additional penalty. Any person who, with fraudulent intent, shall fail to pay any tax imposed by this chapter, or to make, render, sign or certify any return, or to supply any information within the time required by or under this chapter, shall be liable for a penalty of not more than one thousand dollars, in addition to any other amounts required under this chapter to be imposed, assessed and collected by the commissioner of finance. The commissioner of finance shall have the power, in his or her discretion, to waive, reduce or compromise any penalty under this subdivision.
(f) The interest and penalties imposed by this section shall be paid and disposed of in the same manner as other revenues from this chapter. Unpaid interest and penalties may be enforced in the same manner as the tax imposed by this chapter.
(g) (1) Authority to set interest rates. The commissioner of finance shall set the rate of interest to be paid pursuant to subdivision (a) of this section, but if no such rate of interest is set, such rate shall be deemed to be set at seven and one-half percent per annum. Such rate shall be the rate prescribed in paragraph two of this subdivision but shall not be less than seven and one-half percent per annum. Any such rate set by the commissioner of finance shall apply to taxes, or any portion thereof, which remain or become due on or after the date on which such rate becomes effective and shall apply only with respect to interest computed or computable for periods or portions of periods occurring in the period in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision shall be the sum of (i) the federal short-term rate as provided under paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal short-term rate determined by the United States secretary of the treasury during such month in accordance with subsection (d) of section twelve hundred seventy-four of the internal revenue code for use in connection with section six thousand six hundred twenty-one of the internal revenue code. Any such rate shall be rounded to the nearest full percent (or, if a multiple of one-half of one percent, such rate shall be increased to the next highest full percent).
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this subparagraph, the federal short-term rate for the first month in each calendar quarter shall apply during the first calendar quarter beginning after such month.
(ii) Special rule for the month of September, nineteen hundred eighty-nine. The federal short-term rate for the month of April, nineteen hundred eighty-nine shall apply with respect to setting the rate of interest for the month of September, nineteen hundred eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall cause to be published in the city record, and give other appropriate general notice of, the interest rate to be set under this subdivision no later than twenty days preceding the first day of the calendar quarter during which such interest rate applies. The setting and publication of such interest rate shall not be included within paragraph (a) of subdivision five of section one thousand forty-one of the city charter relating to the definition of a rule.
(h) Miscellaneous.
(1) Officers of a corporate operator or room remarketer and partners in a partnership which is an operator or room remarketer shall be personally liable for the tax collected or required to be collected by such corporation or partnership under this chapter, and subject to the penalties and interest imposed by this section.
(2) The certificate of the commissioner of finance to the effect that a tax has not been paid, that a return, bond or registration certificate has not been filed, or that information has not been supplied pursuant to the provisions of this chapter, shall be presumptive evidence thereof.
(3) Cross-reference: For criminal penalties, see chapter forty of this title.
(i) Any person required to make or maintain records under this chapter who fails to make or maintain or make available to the commissioner these records is subject to a penalty not to exceed one thousand dollars for the first quarterly period or part thereof for which the failure occurs and not to exceed five thousand dollars for each additional quarterly period or part thereof for which the failure occurs. This penalty is in addition to any other penalty provided for in this chapter but may not be imposed and collected more than once for failures for the same quarterly period or part thereof. If the commissioner determines that a failure to make or maintain or make available records in any quarterly period was entirely due to reasonable cause and not to willful neglect, the commissioner must remit the penalty imposed for that quarterly period. These penalties will be paid and disposed of in the same manner as other revenues from this chapter. These penalties will be determined, assessed, collected, paid and enforced in the same manner as the tax imposed by this chapter, and all the provisions of this chapter relating to tax will be deemed also to apply to the penalties imposed by this subdivision. For purposes of the penalty imposed by this subdivision, a person will be considered to have failed to make or maintain the required records when the commissioner of finance determines that the records made or maintained by that person for a quarterly period do not enable the commissioner to verify occupancy or the amounts received for such occupancy or the taxability of that occupancy and to conduct a complete audit.
(j) Any person required to make or maintain records under this chapter who fails to present and make available these records in an auditable form is subject to a penalty not to exceed one thousand dollars for each quarterly period or part thereof for which records maintained by that person are not presented and made available by that person in auditable form, even if these records are adequate to verify credits, receipts, and the taxability thereof and to perform a complete audit. This penalty is in addition to any other penalty provided for in this chapter, but will not be imposed and collected more than once for these failures for the same quarterly period or part thereof. If the commissioner determines that any failure described in this subdivision for a quarterly period was entirely due to reasonable cause and not to willful neglect, the commissioner must remit the penalty imposed for that quarter. The penalties imposed by this subdivision will be paid and disposed of in the same manner as other revenues from this chapter. These penalties will be determined, assessed, collected, paid and enforced in the same manner as the tax imposed by this chapter, and all the provisions of this chapter relating to tax will be deemed also to apply to the penalties imposed by this subdivision. For purposes of the penalty imposed by this subdivision, a person will be considered to have failed to present and make records available in auditable form when the records presented by that person for that quarter lack sufficient organization, such as by date, invoice number, sales receipts, or sequential numbering, or are otherwise inadequate (without reorganizing, reordering or otherwise rearranging the records into an auditable form) to permit direct reconciliation of the receipts, invoices or other source documents with the entries for the quarterly period in the books and records and on the returns of that person.
(k) Any person who, having elected to maintain in an electronic format any portion or all of the records he or she is required to make and maintain by this chapter, fails to present and make these records available and accessible to the commissioner in electronic format, is subject to a penalty not to exceed five thousand dollars for each quarterly period or part thereof for which these electronic records are not presented and made available and accessible upon request, notwithstanding that the records may also be maintained and available in hard copy format. This penalty is in addition to any other penalty provided for in this chapter, but may not be imposed and collected more than once for a failure for the same quarterly period or part thereof. Provided, however, nothing in this subdivision will prevent the separate imposition, if applicable, of any penalty imposed by subdivision (i) or (j) of this section for the same quarterly period or part thereof. If the commissioner determines that the failure to present and make electronically maintained records available and accessible for a quarterly period was entirely due to reasonable cause and not to willful neglect, the commissioner must remit the penalty imposed for that quarter. These penalties will be paid and disposed of in the same manner as other revenues from this chapter. These penalties will be determined, assessed, collected, paid and enforced in the same manner as the tax imposed by this chapter, and all the provisions of this chapter relating to tax will be deemed also to apply to the penalty imposed by this subdivision. For purposes of the penalty imposed by this subdivision, a failure to present and make available and accessible a record maintained in electronic format includes not only the denial of access to the requested records that were maintained electronically, but also the failure to make available to the commissioner the information, knowledge, or means necessary to access and otherwise use the electronically maintained records in the inspection and examination of these records.
(l) Aiding or assisting in the giving of fraudulent returns, reports, statements or other documents. Any person who, with the intent that tax be evaded, for a fee or other compensation or as an incident to the performance of other services for which that person receives compensation, aids or assists in, or procures, counsels, or advises the preparation or presentation under this chapter, or in connection with any matter arising under this chapter, of any return, report, declaration, statement or other document that is fraudulent or false as to any material matter, or supplies any false or fraudulent information, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present that return, report, declaration, statement or other document, will pay a penalty not exceeding five thousand dollars. The definitions in subsection (l) of section one thousand eighty-five of the tax law apply for the purposes of this penalty.
(m) False or fraudulent document penalty. Any taxpayer that submits a false or fraudulent document to the department will be subject to a penalty of one hundred dollars per document submitted, or five hundred dollars per tax return submitted. This penalty will be in addition to any other penalty provided by law.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/043.
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, the tax appeals tribunal, any commissioner or employee of such tribunal, 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 the rents or other information relating to the business of a taxpayer contained in 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 his or her duly authorized representative of a certified copy of any return filed in connection with his or her tax; nor to prohibit the delivery of such a certified copy of such return or of any information contained in or relating thereto, to 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. (1) Any officer or employee of the city who willfully violates the provisions of subdivision a of this section shall be dismissed from office and be incapable of holding any public office for a period of five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this title.
c. This section shall be deemed a state statute for purposes of paragraph (a) of subdivision two of section eighty-seven of the public officers law.
d. Notwithstanding anything in subdivision a of this section to the contrary, if a taxpayer has petitioned the tax appeals tribunal for administrative review as provided in section one hundred seventy of the charter, the commissioner of finance shall be authorized to present to the tribunal any report or return of such taxpayer, or any information contained therein or relating thereto, which may be material or relevant to the proceeding before the tribunal. The tax appeals tribunal shall be authorized to publish a copy or a summary of any decision rendered pursuant to section one hundred seventy-one of the charter.
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1988/062.
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