§ 1132. Collection of tax from customer; proof required for
registration of motor vehicles. (a) (1) Except as otherwise permitted in
subdivision (d) of section eleven hundred thirty-three of this part,
every person required to collect the tax shall collect the tax from the
customer when collecting the price, amusement charge or rent to which it
applies. If the customer is given any sales slip, invoice, receipt or
other statement or memorandum of the price, amusement charge or rent
paid or payable, the tax shall be stated, charged and shown separately
on the first of such documents given to him. The tax shall be paid to
the person required to collect it as trustee for and on account of the
state.

(2) Notwithstanding any provision of this chapter to the contrary: (i)
If a person required to collect tax demonstrates to the satisfaction of
the commissioner by June first, of any year that, in any two quarterly
periods, as described in subdivision (b) of section eleven hundred
thirty-six of this part, within the most recent four consecutive
quarterly periods, such person was a materialman within the meaning of
section two of the lien law, primarily engaged in selling building
materials to contractors, subcontractors or repairmen for the
improvement of real property, and authorized by such law to file a
mechanics lien upon such real property and improvement, then such person
shall, with respect to such sales made through the quarterly period
ending the succeeding May thirty-first, collect tax due on such sales,
and on sales to such contractors, subcontractors or repairmen of
services described in paragraph two or three of subdivision (c) of
section eleven hundred five of this article to such building materials,
for such purpose and made during such June first through May
thirty-first period, at the time and to the extent that such person
receives the receipts from, or consideration for, such sales from such
contractors, subcontractors or repairmen; provided, however, that if
such person receives a portion of such receipts or consideration, such
person shall collect the tax due on such portion at the time such
portion is received. The taxes imposed by this article on such receipts
and consideration shall be deemed not to be imposed, solely for purposes
of determining when such person is required to collect and pay over such
taxes to the commissioner under section eleven hundred thirty-seven of
this part, until such person has received payment of such receipts or
consideration in money (or money's worth) from such contractor,
subcontractor or repairman. A contractor, subcontractor or repairman who
purchases building materials or services from such person pursuant to
this subparagraph shall, at the time such contractor, subcontractor or
repairman pays any portion of the purchase price, pay to such person the
tax due on the portion of the purchase price so paid.

(ii) In the event that a materialman described in subparagraph (i) of
this paragraph finances any portion of the receipts or consideration
from a sale described in such subparagraph (i), including any tax due
thereon, directly or indirectly, with any other person (other than a
contractor, subcontractor or repairman described in such subparagraph
(i)), whether by assignment of the receivable or debt due, factoring,
direct loan or any other means, then such materialman shall be deemed to
have received payment of such receipts or consideration in money (or
money's worth) from such contractor, subcontractor or repairman and
shall be required to pay over tax on such sale with the next return due,
with a credit against such tax for any tax already paid over with
respect to such sale. Any such amount of tax paid over in accordance
with the prior sentence shall be on account of the tax required to be
collected on the sale to which it relates and such materialman may take
a credit against any tax paid by such contractor, subcontractor or
repairman in the future on such sale, to ensure that tax paid over with
respect to such sale does not exceed the amount of tax imposed on such
sale as if the entire purchase price had been paid at the time of sale.

(iii) A materialman described in subparagraph (i) of this paragraph,
who has not collected the tax due on the full purchase price for a sale
described in such subparagraph (i) from a contractor, subcontractor or
repairman within one year of the date of such sale, shall be required to
pay over to the commissioner the tax due on any balance of such full
purchase price with such materialman's return for the period which
includes the date which is one year after the date of such sale.

(iv) The commissioner may assess additional tax due with respect to a
sale described in subparagraph (i) of this paragraph within three years
from the date the tax is required to be paid over to the commissioner
pursuant to this paragraph; provided, however, that in the case of a
willfully false or fraudulent return with intent to evade the tax, or
where no return has been filed as prescribed by law, the tax may be
assessed at any time.

(v) The other provisions of this article and any provision of law
applicable to the taxes imposed by this article shall apply to the
materialmen, contractors, subcontractors, repairmen, receipts and
consideration described in this paragraph, except to the extent that any
such provision is inconsistent with this paragraph.

(b) The commissioner shall by regulation prescribe a method or methods
or a schedule or schedules of the amounts to be collected from customers
in respect to any receipt, gallon of motor fuel or diesel motor fuel,
amusement charge or rent upon which a tax is imposed by this article so
as to eliminate fractions of one cent and so that the aggregate
collections of taxes by a person required to collect tax shall, as far
as practicable, equal four percent of the total receipts, amusement
charges or rents of such person, or equal the correct rate per gallon of
motor fuel or diesel motor fuel sold by such person, upon whom a tax is
imposed by this article or, where a similar tax is imposed under the
authority of article twenty-nine of this chapter, equal four percent, or
such rate per gallon, plus the rate of tax imposed under the authority
of article twenty-nine of the total receipts, amusement charges or rents
of, or gallons of motor fuel or diesel motor fuel sold by, such person
upon whom a tax is imposed by this article and under the authority of
article twenty-nine, so that the tax rate to be applied shall be the sum
of the state and local tax rates. Such schedule or schedules may provide
that no tax need be collected from the customer upon receipts, amusement
charges or rents below a stated sum, and may be amended from time to
time so as to accomplish the purposes herein set forth. Such schedule or
schedules shall provide that no tax shall be collected from the customer
upon receipts from retail sales of tangible personal property which,
under the rate imposed by article twenty-eight, together with the rates
imposed under the authority of article twenty-nine, produce a tax of
five mills or less.

(c) (1) For the purpose of the proper administration of this article
and to prevent evasion of the tax hereby imposed, it shall be presumed
that all receipts for property or services of any type mentioned in
subdivisions (a), (b), (c) and (d) of section eleven hundred five, all
rents for occupancy of the type mentioned in subdivision (e) of said
section, and all amusement charges of any type mentioned in subdivision
(f) of said section, are subject to tax until the contrary is
established, and the burden of proving that any receipt, amusement
charge or rent is not taxable hereunder shall be upon the person
required to collect tax or the customer. Except as provided in
subdivision (h) or (k) of this section, unless (i) a vendor, not later
than ninety days after delivery of the property or the rendition of the
service, shall have taken from the purchaser a resale or exemption
certificate in such form as the commissioner may prescribe, signed by
the purchaser and setting forth the purchaser's name and address and,
except as otherwise provided by regulation of the commissioner, the
number of the purchaser's certificate of authority, together with such
other information as the commissioner may require, to the effect that
the property or service was purchased for resale or for some use by
reason of which the sale is exempt from tax under the provisions of
section eleven hundred fifteen, and, where such resale or exemption
certificate requires the inclusion of the purchaser's certificate of
authority number or other identification number required by regulations
of the commissioner, that the purchaser's certificate of authority has
not been suspended or revoked and has not expired as provided in section
eleven hundred thirty-four, or (ii) the purchaser, not later than ninety
days after delivery of the property or the rendition of the service,
furnishes to the vendor: any affidavit, statement or additional
evidence, documentary or otherwise, which the commissioner may require
demonstrating that the purchaser is an exempt organization described in
section eleven hundred sixteen, the sale shall be deemed a taxable sale
at retail. Where a resale or exemption certificate or an affidavit,
statement or additional evidence referred to in the previous sentence is
received within the time limit set forth therein, but is deficient in
some material manner, and where such deficiency is thereafter removed,
the receipt of such resale or exemption certificate or such affidavit,
statement or additional evidence shall be deemed to have satisfied all
of the requirements of the preceding sentence. Where such a resale or
exemption certificate or such an affidavit, statement or additional
evidence has been furnished to the vendor, the burden of proving that
the receipt, amusement charge or rent is not taxable hereunder shall be
solely upon the customer. The vendor shall not be required to collect
tax from purchasers who furnish a resale or exemption certificate, or
such an affidavit, statement or additional evidence in proper form,
unless, in the case of a resale or exemption certificate described in
clause (i) of the second sentence of this paragraph whereon the
purchaser's certificate of authority number, or other identification
number required by regulation of the commissioner, is required to be
included, such purchaser's certificate of authority is invalid because
it has been suspended or revoked as provided in section eleven hundred
thirty-four, and the commissioner has furnished registered vendors with
information identifying those persons whose certificates of authority
have been suspended or revoked, or unless such purchaser's certificate
of authority is invalid because it has expired, and the commissioner has
provided registered vendors with a means of determining whether such
expiration has occurred. Where the vendor accepts such a resale or
exemption certificate from a person identified by the commissioner as
one whose certificate of authority has been suspended or revoked or from
a person whose certificate of authority has been identified as having
expired, the receipt, amusement charge or rent from such transaction
shall be deemed to be a taxable sale at retail.

(2) Notwithstanding paragraph one of this subdivision or any other law
to the contrary, the commissioner may authorize a purchaser, who
acquires tangible personal property or services under circumstances
which make it impossible at the time of acquisition to determine the
manner in which the tangible personal property or services will be used,
to pay the tax directly to the commissioner and waive the collection of
the tax by the vendor. Subject to such reasonable conditions as the
commissioner may require, the commissioner shall authorize an omnibus
carrier described in subdivision (b) of section eleven hundred nineteen
to pay the tax on the purchase or use of an omnibus directly to the
commissioner and waive the collection of the tax by the vendor. No such
authority shall be granted or exercised except upon application to the
commissioner, and the issuance by the commissioner, in the
commissioner's discretion, of a direct payment permit. If a direct
payment permit is granted, its use shall be subject to conditions
specified by the commissioner, and the payment of tax on all
acquisitions pursuant to the permit shall be made directly to the
commissioner by the permit holder. The commissioner may suspend or
revoke a direct payment permit where the permit holder fails to comply
with any of the provisions of this article or any rule promulgated by
the commissioner with respect to this article. The notice and hearing
provisions applicable to the revocation and suspension of certificates
of authority under section eleven hundred thirty-four shall apply to the
suspension and revocation of direct payment permits. A vendor shall not
be required to collect tax from a purchaser who furnishes a direct
payment permit in proper form, unless such purchaser's direct payment
permit has been suspended or revoked by the commissioner and the
commissioner has provided registered vendors with information
identifying those persons whose direct payment permits have been
suspended or revoked. Where a vendor accepts a direct payment permit
from a person whose direct payment permit has been suspended or revoked,
and the commissioner has provided registered vendors with information
identifying those persons whose direct payment permits have been
suspended or revoked, the receipt, amusement charge or rent from such
transaction shall be deemed to be subject to tax.

(d) The tax commission may provide by regulation that the tax upon
receipts from sales on the installment plan may be paid on the amount of
each installment and upon the date when such installment is due.

(e) The commissioner may provide, by regulation, for the exclusion
from taxable receipts, gallons of motor fuel or diesel motor fuel sold,
amusement charges or rents of amounts representing sales where the
contract of sale has been cancelled, the property returned or the
receipt, charge or rent has been ascertained to be uncollectible or, in
case the tax has been paid upon such receipt, gallons, charge or rent,
for refund of or credit for the tax so paid. Where the commissioner
provides for a credit for the tax so paid, he or she shall require an
application for credit to be filed, but he or she may also allow the
applicant to immediately take the credit on the return which is due
coincident with or immediately subsequent to the time the applicant
files his or her application for credit. However, the taking of the
credit on the return shall be deemed to be part of the application for
credit and shall be subject to the provisions in respect to applications
for credit in section eleven hundred thirty-nine of this part as
provided in subdivision (e) of such section.

(f) The commissioner of motor vehicles shall not issue a registration
certificate for any motor vehicle, snowmobile, vessel or all terrain
vehicle, except in the case of a renewal of registration by the same
owner, except upon proof, in a form approved by the tax commission and
the commissioner of motor vehicles, that any tax imposed by section
eleven hundred five or eleven hundred ten of this article with respect
to the sale of the motor vehicle, snowmobile, vessel or all terrain
vehicle to the registrant or his use thereof has been paid, or that no
such tax is due. For purposes of this subdivision, the term motor
vehicle shall include a motor vehicle as defined in section one hundred
twenty-five of the vehicle and traffic law; a trailer as defined in
section one hundred fifty-six of such law; a snowmobile as defined in
section twenty-two hundred twenty-one of such law; a vessel as defined
in section twenty-two hundred fifty of such law; and an all terrain
vehicle as defined in section twenty-two hundred eighty-one of such law.

(g) (1) The clerk of each county when performing the function of
registration of a motor vehicle, snowmobile, vessel or all terrain
vehicle or accepting an application for a certificate of title of a
motor vehicle or vessel, pursuant to the authority of the vehicle and
traffic law, or the commissioner of motor vehicles, when such
commissioner performs such functions, prior to performing such
functions, shall act as the agent of the state tax commission to collect
any retail sales tax due under this article and under a sales tax
imposed pursuant to section twelve hundred ten or twelve hundred eleven
upon sales of such motor vehicles, snowmobiles, vessels or all terrain
vehicles by persons other than dealers registered under sections four
hundred fifteen, twenty-two hundred twenty-two, twenty-two hundred
fifty-seven and twenty-two hundred eighty-two of the vehicle and traffic
law. Such county clerks and such commissioner shall also act as such
agents to collect any compensating use tax due under section eleven
hundred ten and under a compensating use tax imposed pursuant to section
twelve hundred ten or twelve hundred eleven for the use of a motor
vehicle, snowmobile, vessel or all terrain vehicle within this state.
The commissioner of motor vehicles shall act as such agent without fee.
Each such county clerk shall, after deducting his fee as provided in
paragraph two of this subdivision, and such commissioner shall remit to
the tax commission all funds collected pursuant to this subdivision and
shall follow such procedures and keep such records as shall be
prescribed by the tax commission.

(2) Each such county clerk shall retain, from the state and local
sales and compensating use taxes which he collects, the sum of one
dollar for each of the first five thousand motor vehicles or all terrain
vehicles in respect to which he has issued a certificate setting forth
the proof required by subdivision (f) of this section and subdivision
(d) of section twelve hundred fourteen of this chapter during each
annual period commencing on the first day of September and ending on the
next succeeding thirty-first day of August and the sum of seventy-five
cents for each motor vehicle or all terrain vehicle in excess of five
thousand for which he has issued such a certificate during such annual
period. Each such county clerk shall also retain, from the state and
local sales and compensating use taxes he collects, the sum of fifty
cents for each snowmobile and vessel in respect to which he has issued a
certificate setting forth the proof required by subdivision (f) of this
section and subdivision (d) of section twelve hundred fourteen of this
chapter. Such fees shall be payable even though the certificate issued
shows that no tax is due. Such fees shall belong to the county and be
paid into the county treasury monthly on or before the tenth day of the
month pursuant to section two hundred one of the county law. The county
shall pay all expenses occasioned by the duties of the county clerk
under this subdivision, including any expenses for hire of extra clerks.

(h) (1) (i) No person shall purchase motor fuel in this state,
excluding a purchase at retail, unless the tax required to be prepaid by
subdivision (a) of section eleven hundred two of this article has been
assumed by a distributor registered under article twelve-A of this
chapter in accordance with a certification under this paragraph or paid
by such distributor, and, in each of such instances, is passed through
to such purchaser. In addition to any other civil and criminal penalties
which may apply, any person who purchases motor fuel in violation of
this subparagraph shall be jointly and severally liable to pay the tax
required to be prepaid by section eleven hundred two of this article
with respect to such motor fuel.

(ii) For the purpose of the proper administration of this article and
to prevent evasion of the tax on motor fuel imposed by and pursuant to
this article, it shall be presumed that all motor fuel imported,
manufactured or sold, received or possessed in the state is intended for
use, distribution, storage or sale in the state and subject to the tax
required to be prepaid by section eleven hundred two of this article
until the contrary is established. It shall be further presumed that all
motor fuel so imported, manufactured, sold, received or possessed in the
state by any person, other than motor fuel delivered into the ordinary
fuel tank connected with the engine of a means of conveyance in order to
propel it, or in small drums or similar containers, which such person
cannot otherwise account for, is subject to the tax required to be
prepaid under section eleven hundred two of this article and such person
is responsible for such prepayment. Provided, however, a distributor of
motor fuel who imports, manufactures or sells and stores in the state or
who purchases and stores motor fuel in the state on which he has prepaid
the tax required to be prepaid pursuant to section eleven hundred two of
this article shall be allowed an adjustment in arriving at the gallons
subject to the taxes imposed by such section on account of the gallons
the distributor establishes were lost due to shrinkage, evaporation and
handling; provided, however, such allowance shall not exceed two percent
of the fuel stored. Provided, further, that in arriving at the gallons
of motor fuel subject to the tax required to be prepaid pursuant to
section eleven hundred two of this article, there shall be allowed an
adjustment on account of gallons lost or destroyed due to an accident,
such as fire, and at the time of such loss or destruction were being
held or transported for sale other than at retail. The burden of proving
that any motor fuel is not so subject shall be upon the person so
responsible for such prepayment with respect to such fuel.

(iii) Upon each sale of motor fuel, other than a sale at retail, the
seller must give to the purchaser and the purchaser shall receive, at
the time of delivery of such motor fuel, a certification containing such
information as the tax commission shall require which shall include a
statement to the effect (A) if such seller is a distributor registered
under article twelve-A of this chapter, that he has assumed the payment
of or paid the tax required to be prepaid by section eleven hundred two
of this article and, in each case, is passing through such tax or (B)
that such seller is passing through such tax which was so previously
assumed or paid by an identified distributor registered under article
twelve-A of this chapter, and passed through to him.

(iv) If the certification required by this paragraph has been
furnished to the purchaser by the seller at delivery and accepted in
good faith, the burden of proving that the tax required to be paid by
section eleven hundred two of this article was assumed or paid by a
distributor registered as such under article twelve-A of this chapter
and passed through shall be solely on the seller.

(v) Where the certification required under this paragraph is not
furnished by the seller at delivery of motor fuel, it shall be presumed
that the tax required to be prepaid by section eleven hundred two of
this article has not been assumed or paid by a distributor registered as
such under article twelve-A of this chapter and that the purchaser in
such case is jointly and severally liable for the tax.

(vi) If, due to the circumstances of delivery, it is not possible to
issue a certification required under this paragraph at the time of
delivery of motor fuel, the tax commission may authorize the delivery of
the certification required under this paragraph at a time after the
delivery of the motor fuel which is the subject of the sale under the
limited circumstances it shall prescribe and upon such terms and
conditions it shall deem necessary to ensure collection of the tax
imposed by section eleven hundred two of this article and the motor fuel
taxes imposed by article twelve-A of this chapter.

(2) (i) Except with respect to the exemptions from the prepaid tax on
Diesel motor fuel set forth in paragraph two of subdivision (a) of
section eleven hundred two of this article, no person shall purchase
Diesel motor fuel in this state unless the prepaid tax has been assumed
by a registered distributor of Diesel motor fuel in accordance with a
certification under this paragraph or paid by such distributor and, in
each of such instances, except in the case of a purchase at retail, are
passed through to such purchaser. In addition to any other civil and
criminal penalties which may apply, any person who purchases Diesel
motor fuel without having received a certification from the seller in
accordance with this paragraph shall be jointly and severally liable to
pay the tax required to be prepaid by section eleven hundred two of this
article with respect to such Diesel motor fuel.

(ii) For purposes of the proper administration of this article and to
prevent evasion of the taxes imposed on Diesel motor fuel by this
article, it shall be presumed that all Diesel motor fuel sold, received
or possessed in the state is subject to the taxes imposed by this
article until the contrary is established. It shall be further presumed
that any person so selling, receiving or possessing such Diesel motor
fuel is responsible for payment of the excise taxes on such fuel.

(iii) The exemption from the tax required to be prepaid by section
eleven hundred two of this article provided for in paragraph two of
subdivision (a) of section eleven hundred two of this article shall be
established by means of an interdistributor sale certificate. If such
exemption is applicable, such certificate shall be provided by the
purchaser to the seller at the time of or prior to delivery of the
Diesel motor fuel. Such certificate shall set forth the name and address
of the purchaser, the purchaser's registration number, an affirmation by
such purchaser that the purchaser is registered as a distributor of
Diesel motor fuel and that such registration has not been suspended or
cancelled and shall be signed by such purchaser and by the seller. Such
certificate shall be in such form and contain such other information as
the commissioner of taxation and finance shall require. Where a proper
and complete interdistributor sale certificate has been furnished and
accepted by the seller in good faith, such certificate under such
circumstance shall relieve the seller of the burden of proving that the
Diesel motor fuel covered by such certificate is exempt from the tax
required to be prepaid by section eleven hundred two of this article by
reason of paragraph two of subdivision (a) of section eleven hundred two
of this article. For purposes of this subparagraph, a seller shall not
have accepted such certificate in good faith if the purchaser's
registration is invalid because it has been suspended or cancelled, or
if the purchaser is not registered, and the commissioner of taxation and
finance has furnished registered distributors with information
identifying all those persons then validly registered as distributors of
Diesel motor fuel and those persons whose registrations have been
suspended or cancelled. Any purchaser who furnishes to his seller a
false or fraudulent interdistributor sale certificate for the purpose of
establishing an exemption from the tax required to be prepaid by section
eleven hundred two of this article shall be jointly and severally liable
for the tax imposed by such section.

(iv) (A) Upon each sale, other than a retail sale at a filling
station, the seller must give to the purchaser and the purchaser shall
receive at the time of delivery of such Diesel motor fuel, a
certification containing such information as the commissioner of
taxation and finance shall require which, unless otherwise provided in
this paragraph, shall include a statement to the effect: (i) if such
seller is a distributor registered under article twelve-A of this
chapter, that he has assumed the payment of or paid the taxes imposed by
this article and, in each case, is passing through such taxes; (ii) that
such seller is passing through such taxes which were so previously
assumed or paid by an identified distributor registered under article
twelve-A of this chapter, and passed through to him; or (iii) if such
seller is making a retail sale to a purchaser, that such taxes are not
being passed through on the retail sale of Diesel motor fuel, in
accordance with subparagraph (i) of this paragraph. In the case of a
sale of Diesel motor fuel described in paragraph two of subdivision (a)
of section eleven hundred two of this article which is exempt from the
tax required to be prepaid by section eleven hundred two, the
certificate, in lieu of the foregoing statements, shall state that,
based upon good faith reliance on the interdistributor sales
certificate, such Diesel motor fuel is being sold under the
circumstances described in such paragraph two of subdivision (a) of
section eleven hundred two and that the tax imposed by section eleven
hundred two of this article is not applicable.

(B) In the case of a sale of Diesel motor fuel subject to the tax
required to be prepaid by section eleven hundred two of this article and
in all cases where such tax is required to be passed through, if the
certification required by this subparagraph has been furnished to the
purchaser at the time of delivery of such fuel and accepted in good
faith, the burden of proving that the tax required to be prepaid by
section eleven hundred two of this article was assumed or paid by a
distributor registered as such under article twelve-A of this chapter
and passed through shall be solely on the seller.

(C) Where the certification required under this subdivision is not
furnished by the seller at the time of delivery of the Diesel motor
fuel, it shall be presumed that the tax required to be prepaid by
section eleven hundred two of this article is due and owing and has not
been assumed or paid by a distributor registered as such under article
twelve-A of this chapter and that the purchaser in such case is jointly
and severally liable for the tax.

(D) If, due to the circumstances of delivery, it is not possible to
issue a certification required under this subdivision at the time of
delivery of Diesel motor fuel, the commissioner of taxation and finance
may authorize the delivery of the certification required under this
subdivision at a time after the delivery of the Diesel motor fuel which
is the subject of the sale under the limited circumstances he shall
prescribe and upon such terms and conditions he shall deem necessary to
ensure collection of the tax imposed by section eleven hundred two of
this article and the Diesel motor fuel taxes imposed by article twelve-A
of this chapter.

(3) (i) For the purpose of the proper administration of this article
and to prevent evasion of the tax hereby imposed, it shall be presumed
that all retail sales of motor fuel or diesel motor fuel are subject to
the tax required to be collected by subdivision (a) of section eleven
hundred five of this article or paid by the provisions of section eleven
hundred ten of this article until the contrary is established, and it
shall be presumed that all motor fuel or diesel motor fuel imported,
manufactured, sold, received or possessed by any person in this state,
which such person cannot otherwise account for as having been sold
subject to the tax required to be collected by subdivision (a) of
section eleven hundred five or paid by the provisions of section eleven
hundred ten of this article, has been sold subject to the tax required
to be collected by subdivision (a) of section eleven hundred five or
paid by the provisions of section eleven hundred ten except that no such
presumption shall apply with respect to motor fuel or diesel motor fuel
in the fuel tank of a motor vehicle used to propel such vehicle or to
motor fuel in small drums or similar containers. The burden of proving
that any sale is not so subject shall be upon the person required to
collect such tax and the purchaser of such fuel.

(ii) Unless the vendor has received from the purchaser a statement or
certificate in such form as the commissioner may require, that the
purchaser pursuant to the provisions of subdivision (a) of section
eleven hundred five-A, subdivision (j) of section eleven hundred fifteen
or subdivision (b) of section eleven hundred sixteen of this article is
not subject to the provisions of this paragraph, such sale shall be
deemed a sale subject to the provisions of sections eleven hundred five
and eleven hundred ten of this article notwithstanding any provision of
subdivision (c) of this section.

(iii) Where any certificate or statement required under this paragraph
has been furnished to the vendor and accepted in good faith, the burden
of proving that the receipt is not taxable hereunder shall be solely
upon the purchaser. The vendor shall not be required to collect such
taxes from purchasers who furnish such certificates or statements in
proper form.

(i) The commissioner shall, by regulation, provide for a certificate
which must be furnished by a purchaser of a large volume of motor fuel
or diesel motor fuel who or which is commonly referred to as a
commercial account where such purchase is for consumption by such
purchaser and is not resold in order for the sales tax on such sale to
be based on the actual receipts therefor.

(k) (1) (i) No person shall purchase cigarettes in this state, other
than in a purchase at retail, unless the tax required to be prepaid by
subdivision (a) of section eleven hundred three of this article has been
paid by an agent and passed through by such agent and by a wholesale
dealer or retail dealer, authorized, licensed or registered under
article twenty of this chapter, in accordance with a certification under
this paragraph or paid by such agent, wholesale dealer or retail dealer,
and, in each of such instances, is passed through to such purchaser. In
addition to any other civil and criminal penalties which may apply, any
person who purchases cigarettes in violation of this subparagraph shall
be jointly and severally liable to pay the tax required to be prepaid by
section eleven hundred three of this article with respect to such
cigarettes.

(ii) For the purpose of the proper administration of this article and
to prevent evasion of the tax on sales and uses of cigarettes imposed by
this article and pursuant to the authority of article twenty-nine of
this chapter, it shall be presumed that all cigarettes possessed in this
state, other than four hundred or fewer cigarettes brought into the
state by, or in the possession of, any person, are intended for sale or
use in the state and subject to the tax required to be prepaid by
section eleven hundred three of this article until the contrary is
established and that such person is responsible for such prepayment.

(iii) Upon each sale of cigarettes, other than a sale at retail, the
seller must give to the purchaser and the purchaser shall receive, at
the time of delivery of such cigarettes, a certification containing such
information as the commissioner shall require which shall include a
statement to the effect (A) if such seller is an agent under article
twenty of this chapter, that such agent has paid the amount of tax
required to be prepaid by section eleven hundred three of this article
and is passing through such amount of tax, or (B) that such seller is
passing through such amount of tax which was so previously assumed or
paid by an agent under article twenty of this chapter identified on such
certification, and passed through to such seller.

(iv) If the certification required by this paragraph has been
furnished to the purchaser by the seller at delivery and accepted in
good faith on cigarettes bearing a cigarette tax stamp under article
twenty of this chapter and this article of an issue currently in effect,
the burden of proving that the tax required to be paid by section eleven
hundred three of this article was assumed or paid by an agent licensed
as such under article twenty of this chapter and passed through shall be
solely on the seller.

(v) Where the certification required under this paragraph is not
furnished by the seller to the purchaser at delivery of cigarettes, it
shall be presumed that no amount of tax required to be prepaid by
section eleven hundred three of this article has been paid by an agent
authorized as such under article twenty of this chapter and that the
purchaser in such case is jointly and severally liable for the tax
imposed by such section eleven hundred three.

(2) (i) For the purpose of the proper administration of this article
and to prevent evasion of the tax imposed under this article, it shall
be presumed that all retail sales of cigarettes are subject to the tax
imposed by subdivision (a) of section eleven hundred five and required
to be collected by section eleven hundred thirty-two of this article or
required to be paid by the provisions of section eleven hundred ten of
this article until the contrary is established; and it shall be presumed
that all cigarettes possessed in this state, which such person cannot
otherwise account for as having been sold subject to the tax imposed by
subdivision (a) of section eleven hundred five and required to be
collected by section eleven hundred thirty-two or required to be paid by
the provisions of section eleven hundred ten of this article, have been
sold subject to the tax imposed by subdivision (a) of section eleven
hundred five and required to be collected by section eleven hundred
thirty-two or required to be paid by the provisions of section eleven
hundred ten, except that no such presumption shall apply with respect to
four hundred or fewer cigarettes brought into the state by, or in the
possession of, any person. The burden of proving that any sale is not so
subject to tax shall be upon the person required to collect such tax and
the purchaser or user of such cigarettes.

(ii) Unless the vendor has received from the purchaser a statement or
certificate, in such form as the commissioner may require, that the
purchaser pursuant to the provisions of paragraph six of subdivision (b)
of section eleven hundred sixteen of this article is not subject to the
provisions of this paragraph, such sale shall be deemed a sale subject
to the provisions of sections eleven hundred five and eleven hundred ten
of this article notwithstanding any provision of subdivision (c) of this
section.

(iii) Where any certificate or statement required under this paragraph
has been furnished to the vendor and accepted in good faith, the burden
of proving that the receipt is not taxable hereunder shall be solely
upon the purchaser. The vendor shall not be required to collect such
taxes from purchasers who furnish such certificates or statements in
proper form.

(l)(1) A marketplace provider with respect to a sale of tangible
personal property it facilitates: (A) shall have all the obligations and
rights of a vendor under this article and article twenty-nine of this
chapter and under any regulations adopted pursuant thereto, including,
but not limited to, the duty to obtain a certificate of authority, to
collect tax, file returns, remit tax, and the right to accept a
certificate or other documentation from a customer substantiating an
exemption or exclusion from tax, the right to receive the refund
authorized by subdivision (e) of this section and the credit allowed by
subdivision (f) of section eleven hundred thirty-seven of this part
subject to the provisions of such subdivisions; and (B) shall keep such
records and information and cooperate with the commissioner to ensure
the proper collection and remittance of tax imposed, collected or
required to be collected under this article and article twenty-nine of
this chapter.

(2) A marketplace seller who is a vendor is relieved from the duty to
collect tax in regard to a particular sale of tangible personal property
subject to tax under subdivision (a) of section eleven hundred five of
this article and shall not include the receipts from such sale in its
taxable receipts for purposes of section eleven hundred thirty-six of
this part if, in regard to such sale: (A) the marketplace seller can
show that such sale was facilitated by a marketplace provider from whom
such seller has received in good faith a properly completed certificate
of collection in a form prescribed by the commissioner, certifying that
the marketplace provider is registered to collect sales tax and will
collect sales tax on all taxable sales of tangible personal property by
the marketplace seller facilitated by the marketplace provider, and with
such other information as the commissioner may prescribe; and (B) any
failure of the marketplace provider to collect the proper amount of tax
in regard to such sale was not the result of such marketplace seller
providing the marketplace provider with incorrect information. This
provision shall be administered in a manner consistent with subparagraph
(i) of paragraph one of subdivision (c) of this section as if a
certificate of collection were a resale or exemption certificate for
purposes of such subparagraph, including with regard to the completeness
of such certificate of collection and the timing of its acceptance by
the marketplace seller. Provided that, with regard to any sales of
tangible personal property by a marketplace seller that are facilitated
by a marketplace provider who is affiliated with such marketplace seller
within the meaning of paragraph one of subdivision (e) of section eleven
hundred one of this article, the marketplace seller shall be deemed
liable as a person under a duty to act for such marketplace provider for
purposes of subdivision one of section eleven hundred thirty-one of this
part.

(3) The commissioner may, in his or her discretion: (A) develop a
standard provision, or approve a provision developed by a marketplace
provider, in which the marketplace provider obligates itself to collect
the tax on behalf of all the marketplace sellers for whom the
marketplace provider facilitates sales of tangible personal property,
with respect to all sales that it facilitates for such sellers where
delivery occurs in the state; and (B) provide by regulation or otherwise
that the inclusion of such provision in the publicly-available agreement
between the marketplace provider and marketplace seller will have the
same effect as a marketplace seller's acceptance of a certificate of
collection from such marketplace provider under paragraph two of this
subdivision.