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When used in these regulations the following terms shall mean or include:
City. "City" shall mean the City of New York.
Commissioner. "Commissioner" shall mean the Commissioner of Finance of the City of New York.
License. "License" shall mean a license issued pursuant to the Alcoholic Beverage Control Law.
License fees payable. "Licenses fees payable" shall mean:
(1) The annual license fees payable under the New York State Alcoholic Beverage Control Law, including the fees payable under § 122 of such law relating to the continuance of business by a receiver or representative, whether or not a lesser sum is paid thereunder.
(2) In the case of summer and winter licenses issued under the New York State Alcoholic Beverage Control Law, the license fees payable for the period of time for which a summer or winter license may be issued under such law, whether or not a lesser sum is paid thereunder.
(3) "License fees payable" do not include:
(i) Amounts paid as filing fees on an initial or renewal application under § 56-a of the New York State Alcoholic Beverage Control Law;
(ii) Amounts paid to defray administrative expenses under section 101-bbb of the New York State Alcoholic Beverage Control Law relating to the prohibition against retail sales at less than cost; and
(iii) Amounts paid to defray administrative expenses under section 101-bbb of the New York State Alcoholic Beverage Control Law relating to the enforcement of minimum consumer resale prices of wine.
Person. "Person" shall mean an individual, partnership, society, association, joint stock company, corporation, estate, receiver, lessee, 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.
Retail licensee. "Retail licensee" shall mean any person to whom a license has been issued by the State Liquor Authority under the New York State Alcoholic Beverage Control Law who sells at retail in the City, for on or off premises consumption, any liquor, wine or beer for the sale of which such license is required.
Return. "Return" shall mean any return required to be filed as herein provided.
State. "State" shall mean the state of New York.
Tax year. "Tax year" shall mean June first of any calendar year through May thirty-first of the following calendar year.
(a) The law imposes a tax for the privilege of selling liquor, wine or beer at retail, for on or off premises consumption, within the City of New York, to be paid annually for each tax year, commencing with the tax year beginning on June 1, 1980, by each retail licensee in an amount equal to 25% of the annual license fees payable under the New York State Alcoholic Beverage Control Law by such retail licensee for the license year in effect at the commencement of the tax year under the law. A retail licensee who obtains a license subsequent to the commencement of a tax year is required to pay the tax based upon the fees payable under the New York State Alcoholic Beverage Control Law by such licensee for the license year in effect at the time such license is issued. The tax imposed is in addition to any and all other taxes paid by such retail licensee.
(b) The tax is required to be paid for each tax year, commencing with the tax year beginning on June 1, 1980, even though the retail licensee may not be engaged in the sale of liquor, wine or beer for the entire tax year. Thus, a retail licensee at the beginning of the tax year who ceases to do business before the expiration of such tax year, or who becomes a retail licensee after the commencement of a tax year, whether or not he ceases to do business at expiration of such tax year, is liable for the tax. Provision for refund of any tax paid is made herein in cases where a retail licensee ceases to do business during the course of a tax year under circumstances which result in, or would entitle him to, a refund of the license fee by the New York State Liquor Authority (See: 19 RCNY § 25-08).
(c) The amount of the tax required to be paid is determined by applying the tax rate, viz: 25% of the annual license fees, or summer or winter license fees, as the case may be, payable under the New York State Alcoholic Beverage Control Law by such retail licensee for the license year in effect at the commencement of the tax year under the law. Where a retail licensee obtains a license subsequent to the commencement of a tax year, the amount of tax required to be paid to the City by such licensee shall be determined by taking that portion of 25% of the annual license fee payable under such law which the remaining number of days in the tax year bears to the total number of days in said tax year, but in no event shall the tax be less than the amount determined by applying such percentage to 25% of the annual license fee payable under the New York State Alcoholic Beverage Control Law, as the minimum license fee payable thereunder bears to the annual license fee payable thereunder for such license; and, in the case of summer or winter licenses issued under the New York State Alcoholic Beverage Control Law, by taking that portion of 25% of the summer or winter license fee payable under said law which the number of days in the remaining calendar months of the tax year for which summer or winter license is issued bears to the number of days in the total calendar months of the tax year for which summer or winter licenses may be issued, but in no event shall the tax be less than the amount determined by applying such percentage to 25% of the summer or winter license fee payable under said law as the minimum license fee payable thereunder bears to the maximum license fee payable thereunder for such license. In the case of licenses issued under the New York State Alcoholic Beverage Control Law for periods of more than one year, the tax required to be paid shall be determined by the license fee payable on a yearly basis. The following will illustrate the above:
Illustration 1: A retail licensee obtains a license on March 1, 1980, for the license year commencing March 1, 1980, and expiring February 28, 1981, and pays the annual license fee of $1,200, the amount payable under the New York State Alcoholic Beverage Control Law. He continues in business as a retail licensee to or beyond June 1, 1980. Since the license fee payable for the license year in effect on June 1, 1980 (the date of the commencement of the tax year) is $1,200, the tax payable to the City is 25% thereof, or $300.
Illustration 2: Assume that the amount of the annual license fee payable under the New York State Alcoholic Beverage Control Law by the retail licensee for the license year in effect at the time such license is issued is $1,200, and the retail licensee obtains the license on April 1, 1981.
(i) $1,200 × 25% = $300.
Where: $1,200 = annual license fee payable under the New York State Alcoholic Beverage Control Law.
(ii) 61 × $300 = $50.14
365
365
Where: 61 = remaining number of days in tax year-April 1st to May 31st, 1981.
365 = total number of days in tax year.
(iii) 1/2* of $300 = $150.
Since the tax of $50.14 in item (ii) is less than one-half of $300, the tax required to be paid to the City is $150.
Illustration 3: Assume the same facts as in illustration (2) above except that the retail license was obtained August 1, 1981.
(i) $1,200 × 25% = $300.
Where: $1,200 = annual license fee payable under the New York State Beverage Control Law.
(ii) 304 × $300 = $249.86
365
365
Where: 304 = remaining number of days in tax year-August 1, 1981 to May 31, 1982.
365 = total number of days in tax year
(iii) 1/2* of $300 = $150.
Since the tax in item (ii) $249.86 is more than $150, the tax required to be paid to the City is $249.86.
Illustration 4: X obtains a summer liquor license under the New York State Alcoholic Beverage Control Law on April 1, 1980 covering the period April 1, 1980 to October 31, 1980 for which he is required to pay $700, although the annual license fee for a yearly liquor license is $1,200. Since the license fee payable for a summer liquor licensee for the license year in effect on June, 1, 1980 (the date of the commencement of the tax year) is $700, the tax payable to the City for such tax year is 25% thereof, or $175. In this illustration it is assumed that the retail licensee intends to and actually obtains another license in 1981 for the period from April 1, 1981 to October 31, 1981. If such retail licensee does not obtain a license for the months of April and May, 1981, he will be deemed to have ceased doing business as a retail licensee not later than October 31, 1980. In such event, he may avail himself of the provisions for refund of the tax paid as prescribed in 19 RCNY § 25-08.
Illustration 5: A obtains a summer liquor license under the New York State Alcoholic Beverage Control Law on April 1, 1981 covering the period April 1, 1981 to October 31, 1981 for which he is required to pay $700, although the annual license fee for a yearly liquor license is $1,200.
(i) $700 × 25% = $175.
Where: $700 = the summer liquor license fee payable under the New York State Alcoholic Beverage Control Law.
(ii) 61 × $175 = $49.88
214
214
Where: 61 = remaining number of days in remaining calendar months of tax year – April 1, 1981 to May 31, 1981.
214 = number of days in total calendar months of tax year for which summer license may be issued – June 1, 1980 to October 31, 1980 and April 1, 1981 to May 31, 1981.
(iii) $600 or half of $175 = $87.50
$1,200
$1,200
Where: $600 = minimum license fee payable under the New York State Alcoholic Beverage Control Law.
$1,200 = the maximum license fee payable under the New York State Alcoholic Beverage Control Law.
Since the tax of $49.88 in item (ii) is less than one-half of $175, the minimum tax required to be paid for the tax year ending May 31, 1981 is $87.50 (item (iii)). For the tax year commencing June 1, 1981, A is required to pay a tax of $175 (25% of $700, i.e., the license fee payable for a summer liquor license for the license year in effect on June 1, 1981); provided, however, if A does not obtain another summer liquor license for the months of April and May, 1982 he will be deemed to have ceased doing business as a retail licensee not later than October 31, 1981, in which event he may avail himself of the provisions for refund of the tax so paid as prescribed in 19 RCNY § 25-08 as amended.
(a) The tax does not apply to:
(1) 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;
(2) The United States of America, and any of its agencies and instrumentalities insofar as it is immune from taxation;
(3) The United Nations or other international organizations of which the United States of America is a member;
(4) Any corporation, 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, 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.
(b) Any person claiming exemption under paragraph (4) of subdivision (a) hereof must make application for such exemption to the Commissioner of Finance and is required to submit to the Commissioner of Finance such information as will enable the Commissioner to rule upon the applicant's status. The Commissioner, if satisfied that the applicant is entitled to the exemption, will issue a letter of exemption to the applicant. A corporation or unincorporated entity organized and operated for nonprofit purposes claiming exemption is required to submit an affidavit which shall set forth the following.
(1) The type of organization,
(2) The purpose for which it is organized,
(3) Its actual activities,
(4) The source and disposition of its income,
(5) Whether or not any of its income is credited to surplus or may inure to any private stockholder or individual, and
(6) Such other facts which may affect its right to exemption. The affidavit must be supplemented by a copy of the articles of incorporation, or articles of association, as the case may be, a copy of the by-laws of the organization, a financial statement showing its assets and liabilities for the most recent year, a statement of its receipts and disbursements for the most recent year, and a photostatic copy of the letter, if any, from the United States Treasury Department granting the organization exemption from Federal income taxation.
(a) Every person subject to the tax for the tax year beginning June 1, 1980 must file a return on or before August 25th, 1980 and annually thereafter on or before the 25th day of June of each year for each tax year during which such person is a retail licensee. Thus, a retail licensee who is in business on or before June 1, 1980 is required to file a return on or before August 25, 1980, and on or before June 25th of each tax year thereafter during which such person is a retail licensee.
(b) A retail licensee who obtains a license subsequent to the commencement of a tax year must file a return for such tax year on or before the 25th day of the month following the month in which such license was obtained, and annually thereafter on or before the 25th day of June, if such person is a retail licensee during the tax years then in effect. Thus, a retail licensee who obtains a license from the New York State Liquor Authority on September 1, 1980, must file a return on or before October 25, 1980, and if he shall be a retail licensee on June 1, 1981, he must also file a return on or before June 25, 1981 and annually thereafter on or before the 25th day of June of each year, if he shall be a retail licensee during each such tax year.
(c) The return required to be filed hereunder shall be filed with the Commissioner of Finance on a form prescribed by the Commissioner. The return shall state the amount of license fees paid to the State under the New York State Alcoholic Beverage Control Law and the date when a license under such law was issued to the retail licensee, and shall contain any other information which the Commissioner of Finance may deem necessary. The Commissioner of Finance may require amended returns to be filed within twenty days after notice and to contain the information specified in such notice. If a return required by law is not filed or if a return when filed is incorrect or insufficient on its face, the Commissioner of Finance will take the necessary steps to enforce the filing of such a return or of a corrected return. A return filed by a partnership must be signed by a partner or duly authorized agent having knowledge of the facts; a return of a corporation or other organization must be signed by an officer, agent or member thereof duly authorized to sign the same and having knowledge of the facts contained therein. A change of business organization from individual proprietorship to partnership or corporation, or otherwise, constitutes a change of taxable entity and a separate return must be filed and tax paid by each such separate entity. A termination of business, or removal from the premises, or change of name, should be reported promptly to the Commissioner of Finance. All returns must be filed with the Bureau of Tax Operations of the Department of Finance at the address designated on the return form.
(d) For cause shown, the Commissioner may grant an extension of time not exceeding thirty days within which to file any return under the law. An application for such extension must be made in writing prior to the due date of a return. A return must be filed on or before the date of expiration of the period of time granted. The balance of the tax due, plus interest thereon at the rate prescribed by law, computed from the original due date of the return, must be paid at the time of filing the return.
(e) Electronic filing. Pursuant to 19 RCNY § 17-03, the Commissioner may authorize the electronic filing of returns and reports required by this section.
Every person required to file a tax return, information return, certificate or other document pursuant to the law or these regulations shall include thereon identifying numbers in the form of his federal employer identification number or, if no such number has been assigned, his social security account number, and his New York State Liquor Authority license serial number, for purposes of proper identification.
(a) Each person subject to the tax imposed by the law is required to pay the tax to the Commissioner of Finance at the time of the filing of a return. The tax is due and payable on the last day on which such return is required to be filed, regardless of whether a return is filed or whether the return which is filed correctly indicates the amount of tax due. The tax may be paid by check, post office money order, express company money order, bank draft, or cash. Postage stamps will not be accepted in payment of the tax. If payment is made by check, money order or draft and a receipt is requested, a duplicate copy of the return must also be submitted, accompanied by return postage. The duplicate copy will be receipted, indicating that payment has been made, and returned to the taxpayer. Cash payments will be accepted only at the Bureau of Tax Operations, 151 West Broadway, New York, N.Y. 10013, by a cashier, before 3 p.m., Monday through Friday. Under no circumstances should cash be sent by mail. Where a cash payment is made at the Bureau of Tax Operations, a duplicate copy of the return in addition to the original thereof must be submitted and the duplicate copy will be receipted by the cashier indicating that payment has been made.
(b) Electronic payment. Pursuant to 19 RCNY § 17-03, the Commissioner may authorize the electronic payment of any tax required to be paid by this section.
If a return required by the law is not filed, or if a return when filed is incorrect or insufficient, the Commissioner of Finance will determine the amount of tax due from such information as may be obtainable and, if necessary, may estimate the tax on the basis of external indices. Notice of such determination will be given to the person liable for the payment of the tax. Such determination will finally and irrevocably fix the tax unless the person against whom it is assessed, within thirty days after the giving of notice of such determination, shall apply in writing to the Commissioner of Finance for a hearing or unless the Commissioner of Finance of his own motion shall redetermine the tax. After such hearing the Commissioner will give notice of his 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 78 of the Civil Practice Law and Rules if application therefor is made to the Supreme Court within thirty days after the giving of the notice of such final determination. A proceeding under Article 78 of the Civil Practice Law and Rules shall not be instituted unless (a) the amount of any tax sought to be reviewed, with interest and penalties thereon, if any, shall be first deposited and there is filed an undertaking with the Commissioner of Finance 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 petitioner such undertaking must be filed with the Commissioner of Finance in a sum sufficient to cover the taxes, penalties and interest stated in such determination plus the costs and charges which may accrue against it in the prosecution of the proceeding, in which event the petitioner shall not be required to pay such taxes, interest or penalties as a condition precedent to the application.
(a) The Commissioner of Finance shall refund or credit, without interest, any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid, provided:
(1) A written application for refund or credit was made to the Commissioner of Finance within one year from the payment of the tax, penalty or interest, and
(2) The application is made by the retail licensee or other person who actually paid the tax.
(b) No specific form has been prescribed for refund applications. An application for refund, however, shall be in writing and shall comply with the following requirements: (1) It must contain a verified statement setting forth the applicant's reasons for such requested refund.
(2) It must be signed by the applicant or his duly authorized agent. If signed by an agent, the application must be accompanied by a power of attorney acceptable to the Commissioner of Finance.
(3) It must demonstrate that the refund provisions of the law have been complied with.
(4) It must be accompanied by the cancelled check or a photostatic copy thereof, showing both the front and back of the check; or, if paid by cash or money order, by evidence of such payment.
(c) Where a retail licensee ceases to do business during the course of the tax year under circumstances which result in, or would entitle him to, a refund of a license fee by the New York State Liquor Authority, a refund, without interest, of an appropriate portion of the tax paid under the law will be granted, if, at the time the retail licensee ceases to do business as a retail licensee, at least one month of the tax year remains to run. Such refund shall be computed for the unexpired term of the tax year, for full months commencing with the first day of the month succeeding the one in which such retail licensee ceases to do business as a retail licensee, except that where such cessation of business occurs on the first day of the month that month shall be included in the computation; provided, however, where a refund of the tax or any portion thereof paid under the law is granted to the holder of a summer or winter license, such refund shall be computed for the unexpired months of the tax year for which summer or winter licenses may be issued under the New York State Alcoholic Beverage Control Law, for full months commencing with the first day of the month succeeding the one in which such summer or winter retail licensee ceases to do business as a retail licensee, except that where such cessation of business occurs on the first day of the month that month shall be included in the computation.
For example: A summer (liquor) retail licensee who obtained a license for the period from April 1, 1981 to October 31,1981 and paid the tax to the City as provided by the law and regulations, and who did not obtain a new license for the period from April 1, 1982 to October 31, 1982, and who meets the requirements of the refund provisions of the law and regulations, would be entitled to a refund on the basis of two-sevenths of the tax paid to the City, said fraction being the ratio that the unexpired term of the tax year (the two months of April and May 1982) bears to the seven months of the tax year (June 1, 1981 to October 31, 1981 and April 1, 1982 to May 31, 1982) for which summer licenses may be issued.
(d) In the case of an application for refund by a retail licensee who ceases to do business during the course of the tax year, under circumstances which result in, or would entitle him to, a refund of the license fee by the New York State Liquor Authority, the applicant shall submit a photostatic copy of the surrender receipt or refund check, executed and delivered to him by such liquor authority, with the application, or at any time thereafter but before the Commissioner of Finance makes any determination with respect to such application, together with such other information as the Commissioner may require. In the event that action on an applicant's right to a refund by the New York State Liquor Authority is pending before such authority but not concluded at the time the application for refund is filed with the Commissioner of Finance as herein provided, the applicant shall further state the status of his claim or right to refund before such authority, and thereupon, the Commissioner may hold in abeyance any action on such application until the said authority has finally acted thereon, provided, however, that in no event will a refund be granted where the applicant has failed to make written application therefor to the Commissioner within one year from the payment of the tax, penalty or interest. However, where a retail licensee is not entitled to a refund by the New York State Liquor Authority, merely because his license has expired or because he has ceased to do business less than one month before the expiration date of the license issued to him by the New York State Liquor Authority, the provisions of this subdivision (d) and of subdivision (c) shall not apply.
(e) Whenever a taxpayer files a claim for refund, such application shall constitute an application for revision of the tax, penalty or interest complained of. The Commissioner of Finance may audit the taxpayer's books and records or may grant the refund subject to future audit. The Commissioner of Finance may determine without resorting to an audit that, based upon the evidence presented, the claim is without merit and, therefore, deny it. The Commissioner of Finance will notify the taxpayer in writing of his determination. Such determination shall become final and irrevocable unless the person to whom it is addressed shall, within 30 days after the date thereof, apply to the Commissioner of Finance for a hearing.
(f) If the Commissioner of Finance approves the application for refund, he will make such refund or, in lieu thereof, allow credit therefor on payments due from the applicant.
(g) A taxpayer shall not be entitled to a refund or credit if he has had a hearing or an opportunity for a hearing in connection with a deficiency assessment as provided by law and by 19 RCNY § 25-07, or has failed to avail himself of the remedies provided thereby, if such refund or credit application is for taxes included in the same period covered by such deficiency assessment.
(a) Whenever any person shall fail to pay any tax or penalty or interest imposed by the law as therein provided, the Corporation Counsel shall, upon request of the Commissioner of Finance, bring or cause to be brought an action to enforce payment of the same against the person liable for 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 discretion believes that a taxpayer subject to the law is about to cease business, leave the state, or remove or dissipate the assets out of which tax or penalties might be satisfied, and that any such tax or penalty will not be paid when due, he may declare such tax or penalty 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 him to levy upon and sell the real and personal property of such person which may be found within the City, for 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 him 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 he shall be entitled to the same fees which he 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 he 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 has recovered judgment therefor and execution thereon has been returned unsatisfied.
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