Section 10. Electronic funds transfer by certain taxpayers remitting sales and compensating use taxes, prepaid sales and compensating use taxes on motor fuel and diesel motor fuel, and motor fuel and petroleum business taxes

(a) Definitions. For purposes of this section:    (1) The term "commissioner" means the  commissioner  of  taxation  and
  finance.
    (2) The term "electronic funds transfer" has the meaning prescribed in
  paragraph three of subdivision (a) of section nine of this chapter.
    (3) The term "federal employer identification number" means the number
  assigned in accordance with section six thousand one hundred nine of the
  United  States internal revenue code of nineteen hundred eighty-six, and
  amendments thereto, and regulations promulgated thereunder.
    (4) The term "separate New York state employer identification  number"
  means  a  number  assigned by the department which is either a suffix to
  the federal employer identification  number  or  an  identifying  number
  unrelated to the federal employer identification number.
    (5)  The  term "payment of tax" means a payment or payment over of the
  taxes described in subparagraphs (A), (B) and (C) of  paragraph  one  of
  subdivision (b) of this section.
    (6) The term "taxpayer" means the person required to make a payment of
  tax.
    (b)  Participation  rules.  (1)  General.  Notwithstanding  any  other
  provision of law to the contrary, if, on or  after  June  first  of  any
  year,  during  the  June  first  through  May  thirty-first period which
  immediately precedes the previous June first  through  May  thirty-first
  period, a taxpayer was liable for
    (A)  more  than five hundred thousand dollars of state and local sales
  and compensating use taxes imposed by article twenty-eight and  pursuant
  to the authority of article twenty-nine of this chapter where such taxes
  are administered by the commissioner, or
    (B)  more  than  five million dollars of prepaid state and local sales
  and compensating use taxes on motor fuel and diesel motor  fuel  imposed
  pursuant to section eleven hundred two of this chapter, or
    (C) more than five million dollars of the total of the tax on gasoline
  and  similar  motor  fuel and the tax on petroleum businesses imposed by
  and pursuant to the authority of articles  twelve-A  and  thirteen-A  of
  this chapter,
  then  such  taxpayer  shall  make  payments  of the taxes for which such
  dollar threshold was met by electronic funds transfer or certified check
  in accordance with the provisions of subdivision (c) of this section.
    (2) Special  transitional  rule.  Notwithstanding  the  provisions  of
  paragraph one of this subdivision, for purposes of determining whether a
  taxpayer  described  in  subparagraph  (C)  of  such  paragraph shall be
  required to initially participate in  the  program  prescribed  by  this
  section,  if  such taxpayer was liable for more than three million seven
  hundred fifty thousand dollars in total article twelve-A and  thirteen-A
  taxes  during  the  September first, nineteen hundred ninety through May
  thirty-first, nineteen hundred ninety-one  period,  then  such  taxpayer
  shall  make  payments  of  tax by electronic funds transfer or certified
  check in accordance with the provisions of this section.
    (3) Disaggregation. Every taxpayer who is identified by either its own
  federal employer identification number or  its  own  separate  New  York
  state  employer  identification  number  shall  be treated as a separate
  taxpayer for purposes  of  determining  whether  the  dollar  thresholds
  specified  in  paragraph one or two of this subdivision have been met. A
  taxpayer seeking a  separate  New  York  state  employer  identification
  number for a branch or division may apply to the commissioner for such a
  number.  The  commissioner,  at  his  or her discretion, may assign such

  number upon a showing by the taxpayer of a legitimate  business  purpose
  for such request.
    (4)  Hardship.  (A)  If  a  taxpayer  having  liability  described  in
  subparagraph (A) of paragraph one of this subdivision can demonstrate to
  the satisfaction of the commissioner that (i) for the  two  most  recent
  consecutive  quarters,  the  state  and local sales and compensating use
  taxes properly payable by such taxpayer are less than fifty  percent  of
  the state and local sales and compensating use taxes properly payable by
  such  taxpayer for the comparable two quarters of the preceding year and
  (ii) the sum of such taxpayer's state and local sales  and  compensating
  use  tax  liability  for  such most recent consecutive quarters together
  with the product of the state and local sales and compensating use taxes
  properly payable by such  taxpayer  for  the  two  consecutive  quarters
  immediately  preceding  the  quarters  referred to in clause (i) of this
  subparagraph multiplied by the percentage arrived at under  such  clause
  is  less  than  two  hundred fifty thousand dollars in amount, then such
  taxpayer shall not be required to participate in the program  prescribed
  by  this section for the remaining quarters of the sales tax year ending
  on the next May thirty-first and for  the  immediately  succeeding  four
  sales tax quarters.
    (B)  If  a  taxpayer having liability described in subparagraph (B) or
  (C) of  paragraph  one  of  this  subdivision  can  demonstrate  to  the
  satisfaction  of the commissioner that (i) for the most recent six-month
  period, (I) the prepaid state and local sales and compensating use taxes
  on motor fuel and diesel motor fuel or (II) the total  article  twelve-A
  and  thirteen-A  taxes,  as  the  case  may be, properly payable by such
  taxpayer are less than fifty percent of such applicable taxes  described
  in  subclause  (I) or (II), as the case may be, properly payable by such
  taxpayer for the comparable six-month period of the preceding  year  and
  (ii)  the sum of such taxpayer's liability for such applicable taxes for
  the most recent six months together with the product of such  applicable
  taxes  properly  payable  by  such  taxpayer  for  the  six-month period
  immediately preceding the six-month period referred to in clause (i)  of
  this  subparagraph  multiplied  by  the percentage arrived at under such
  clause is less than two and one-half million  dollars  in  amount,  then
  such  taxpayer  shall  not  be  required  to  participate in the program
  prescribed by this section for the remaining months of the period ending
  on the next May thirty-first and for the immediately  succeeding  twelve
  months.
    (D)  If  a  taxpayer  required  to  remit  state  and  local sales and
  compensating use taxes by electronic funds transfer or  certified  check
  pursuant  to  the  provisions  of  this  section  can demonstrate to the
  satisfaction of the commissioner that (i) such taxpayer's liability  for
  state  and  local  sales  and  compensating use taxes was less than four
  million dollars during the period described in  paragraph  one  of  this
  subdivision,  and  (ii)  in  any  two sales tax quarters within the most
  recent  four  consecutive  sales  tax  quarters,  such  taxpayer  was  a
  materialman within the meaning of section two of the lien law, primarily
  engaged  in furnishing building materials to contractors, subcontractors
  or repairmen for the improvement of real  property  improved  or  to  be
  improved with a residential dwelling unit, and authorized by such law to
  file  a  mechanic's  lien  upon such real property and improvement, then
  such taxpayer need not remit state and local sales and compensating  use
  taxes  by electronic funds transfer or certified check for the remainder
  of the program period in accordance  with  the  timing  requirements  of
  subdivision  (c)  of  this  section, but may instead remit such taxes by
  electronic funds transfer or certified  check  at  the  same  time  that
  payment  is required to be made for part-quarterly and quarterly returns

  required to be filed under article  twenty-eight  and  pursuant  to  the
  authority of article twenty-nine of this chapter, in the amount required
  under or pursuant to such articles at such time. The due date prescribed
  by  this  subparagraph shall be deemed to be the applicable due date for
  purposes  of  this  section  for   taxpayers   qualifying   under   this
  subparagraph.  The  provisions  of this section shall apply to taxpayers
  qualifying under this subparagraph, except to the extent that  any  such
  provision  is  either inconsistent with a provision of this subparagraph
  or is not relevant to this subparagraph.
    (c) Payment  rules.  (1)  Payment  by  electronic  funds  transfer  or
  certified  check.  On  or  before  the  third business day following the
  twenty-second day of each calendar month:
    (A) a taxpayer having  liability  described  in  subparagraph  (A)  of
  paragraph  one of subdivision (b) of this section shall, notwithstanding
  any provision of this chapter to the contrary, remit by electronic funds
  transfer or certified check: (i)  either  (I)  seventy-five  percent  of
  one-third  of  the  state  and  local  sales  and compensating use taxes
  properly payable by such taxpayer for  the  comparable  quarter  of  the
  preceding year; or
    (II)  such  taxpayer's  total  liability for state and local sales and
  compensating use taxes during the period ending  on  such  twenty-second
  day of the month, provided, however, that in such instance no penalty or
  interest  shall  be payable pursuant to paragraph two of subdivision (g)
  of this section if such taxpayer timely remits a payment of  tax  in  an
  amount  not  less than ninety percent of the taxes as finally determined
  to be due and payable for such period; and
    (ii) (I) for payments of tax due in the month  of  January,  February,
  April, May, July, August, October or November, such taxpayer's remaining
  liability,  if any, for state and local sales and compensating use taxes
  for the immediately preceding calendar month; or
    (II) for payments of tax due in the month of March, June, September or
  December, such taxpayer's remaining liability, if  any,  for  state  and
  local  sales  and  compensating  use taxes for the immediately preceding
  sales tax quarter;
    (B) a taxpayer having  liability  described  in  subparagraph  (B)  of
  paragraph  one  of  subdivision  (b)  of  this  section  shall  remit by
  electronic funds transfer or certified check either:
    (i)  three-fourths  of  the  prepaid  state  and   local   sales   and
  compensating  use  taxes  on  motor  fuel and diesel motor fuel properly
  payable by such taxpayer for the comparable month of the preceding year;
  or
    (ii) its total  liability  for  prepaid  state  and  local  sales  and
  compensating  use  taxes  on motor fuel and diesel motor fuel during the
  period ending on such twenty-second day of the month, provided, however,
  that in such instance no penalty or interest shall be  payable  pursuant
  to  paragraph  two  of  subdivision (g) of this section if such taxpayer
  timely remits a payment of tax in an amount not less than ninety percent
  of the taxes as finally determined  to  be  due  and  payable  for  such
  period;
    (C)  a  taxpayer  having  liability  described  in subparagraph (C) of
  paragraph one  of  subdivision  (b)  of  this  section  shall  remit  by
  electronic funds transfer or certified check either:
    (i) three-fourths of the total article twelve-A and article thirteen-A
  taxes  properly payable by such taxpayer for the comparable month of the
  preceding year; or
    (ii) its total liability for such taxes during the  period  ending  on
  such  twenty-second  day  of  the month, provided, however, that in such
  instance no penalty or interest shall be payable pursuant  to  paragraph

  two  of subdivision (g) of this section if such taxpayer timely remits a
  payment of tax in an amount not less than ninety percent of the taxes as
  finally determined to be due and payable for such period.
    (2)  Filing  obligations  and  payment of remaining liabilities. (A) A
  taxpayer having liability described in subparagraph (A) of paragraph one
  of subdivision (b) of this section shall, notwithstanding any  provision
  of  this  chapter  to  the  contrary,  file  only  the quarterly returns
  required under article twenty-eight and pursuant  to  the  authority  of
  article  twenty-nine  of  this chapter for each of the periods for which
  such returns are filed under and  pursuant  to  the  authority  of  such
  articles; provided, however, that for those months for which a return is
  not   required   to   be  filed  pursuant  to  the  provisions  of  this
  subparagraph, the making  of  a  payment  of  tax  by  electronic  funds
  transfer  or  certified  check  covering  any  period shall be deemed to
  constitute the filing of a return for purposes  of  subdivision  (b)  of
  section  eleven hundred forty-seven of this chapter with respect to such
  period.
    (B) A taxpayer having  liability  described  in  subparagraph  (B)  of
  paragraph  one of subdivision (b) of this section shall file the returns
  required under section eleven hundred two of this chapter and shall  pay
  to  the  commissioner the amounts required to be paid with such returns,
  less the amounts remitted by  electronic  funds  transfer  or  certified
  check under this section, for each of the periods for which such returns
  are filed under such section.
    (C)  A  taxpayer  having  liability  described  in subparagraph (C) of
  paragraph one of subdivision (b) of this section shall file the  returns
  required  under  and  pursuant to the authority of articles twelve-A and
  thirteen-A of this chapter and shall pay to the commissioner the amounts
  required to be paid with such returns,  less  the  amounts  remitted  by
  electronic  funds  transfer  or  certified check under this section, for
  each of the periods for which such returns are filed under and  pursuant
  to the authority of such articles.
    (3)  Payment  date;  payment  by  certified  check.  Payment of tax by
  electronic funds transfer or certified check shall be made  to  a  bank,
  banking  house  or  trust  company  designated  by the commissioner. The
  commissioner shall designate only such banks, banking  houses  or  trust
  companies   as  are  or  shall  be  designated  by  the  comptroller  as
  depositories pursuant to  section  one  hundred  seventy-one-a  of  this
  chapter,  as added by chapter sixty-nine of the laws of nineteen hundred
  seventy-eight.  Notwithstanding  any  other  provision  of  law  to  the
  contrary,  any  electronic  funds transfer shall be deemed to be made on
  the date payment is  received  by  the  depository  of  the  department,
  provided,  however,  that  at  the election of a taxpayer subject to the
  provisions of this section, mailing by the taxpayer of a certified check
  for the amount of the tax liability on or before the second business day
  prior to the applicable due date prescribed by  paragraph  one  of  this
  subdivision  shall  fulfill the requirements with respect to payments of
  tax by electronic funds transfer prescribed by this section and shall be
  deemed to be timely payment of such tax liability.
    (4) Special payment rule. If a taxpayer is liable for payment of taxes
  described in two or more of subparagraphs (A), (B) and (C) of  paragraph
  one  of  subdivision  (b) of this section, then such taxpayer shall make
  separate payment by electronic funds transfer or certified check of  the
  taxes described in each of such subparagraphs.
    (d)  Enrollment and initial payment; duration of participation. Within
  forty-five days after each June first, the commissioner shall notify  by
  certified  or  registered  mail all taxpayers required to participate in
  the program prescribed  by  this  section.  Such  notice  shall  contain

  language  advising  the  taxpayer of the enrollment procedure and of the
  consequences of failure to enroll in such  program,  as  well  as  of  a
  taxpayer's   right   to   challenge   such   determination  of  required
  participation  provided  a hearing is requested within forty days of the
  mailing of such notice. If a taxpayer does not enroll within forty  days
  of  the  mailing  of  such  certified  or  registered notice of required
  participation or where a taxpayer's challenge is not sustained  and  the
  taxpayer  has  not enrolled within ten days of notification thereof, the
  commissioner shall mail another notice,  in  addition  to  making  other
  reasonable  attempts,  to  inform the taxpayer of the civil penalty that
  has been assessed pursuant to paragraph one of subdivision (g)  of  this
  section,  of  the  opportunity for abatement of such penalty, and of the
  future penalties that may result from continued failure  to  enroll  and
  failure  to  pay  by  electronic funds transfer or certified check or to
  file; provided, however, that for the program period beginning  December
  first, nineteen hundred ninety-two through August thirty-first, nineteen
  hundred ninety-three, the thirty-day period referred to in this sentence
  shall  be  read  as  forty-five  days.  A  taxpayer shall make its first
  payment of tax by electronic funds transfer or  certified  check  on  or
  before  the  applicable  due  date prescribed by subdivision (c) of this
  section for the month of December in nineteen  hundred  ninety-two,  the
  month  of  September  in  nineteen hundred ninety-three and the month of
  September for any year thereafter. Unless  otherwise  provided  by  this
  section,  such  taxpayer  shall  continue  to  make  payments  of tax by
  electronic funds transfer or certified  check  in  accordance  with  the
  provisions  of  this  section through the succeeding month of August and
  shall continue  to  make  such  payments  of  tax  for  each  succeeding
  September-to-August  period  where  such  taxpayer meets the criteria of
  subdivision (b)  of  this  section  and  is  properly  notified  by  the
  commissioner  pursuant to the enrollment provisions of this subdivision.
  Provided, however, that:
    (1) A taxpayer described in  subparagraph  (A)  of  paragraph  one  of
  subdivision  (b) of this section who is newly required to participate in
  the program  for  the  September  first,  nineteen  hundred  ninety-four
  through  August  thirty-first, nineteen hundred ninety-five period shall
  have forty-five days to enroll in the program and shall make  its  first
  payment  of  tax  by  electronic funds transfer or certified check on or
  before the applicable due date prescribed by  subdivision  (c)  of  this
  section for the month of December in nineteen hundred ninety-four; and
    (2)  A  taxpayer  described  in  subparagraph  (A) of paragraph one of
  subdivision (b) of this section who is newly required to participate  in
  the  program  for  the  September  first,  nineteen  hundred ninety-five
  through August thirty-first, nineteen hundred  ninety-six  period  shall
  make  its first payment of tax by electronic funds transfer or certified
  check on or before the applicable due date prescribed by subdivision (c)
  of  this  section  for  the  month  of  December  in  nineteen   hundred
  ninety-five.
    (e)  Voluntary  participation.  A  taxpayer  who  is  not  required to
  participate in the  program  prescribed  by  this  section  but  who  is
  required to remit any of the taxes specified in subparagraph (A), (B) or
  (C)  of  paragraph  one  of  subdivision  (b) of this section may file a
  request with the commissioner to remit any of such taxes  by  electronic
  funds  transfer  or certified check in accordance with the provisions of
  this section. Such request shall be in a form as the commissioner  shall
  require  and  shall be granted under such conditions as the commissioner
  in his or her discretion shall deem necessary.
    (f) Confidentiality. The department shall assure  the  confidentiality
  of  information  supplied  by  taxpayers  in  effecting  payments of tax

  pursuant to this section in accordance with the provisions  of  sections
  three  hundred fourteen and eleven hundred forty-six of this chapter and
  any other applicable provisions of law. The provisions of article six of
  the public officers law shall not apply to any such information supplied
  by taxpayers subject to this section.
    (g) Civil penalties and interest. (1) Failure to enroll. If a taxpayer
  required  to participate in the program prescribed by this section fails
  to enroll in such program in accordance with  the  terms  set  forth  in
  subdivision (d) of this section, such taxpayer shall pay a penalty equal
  to  five  thousand  dollars;  provided,  however,  that if such taxpayer
  enrolls  in  the  program  within  thirty  days  after  notification  of
  assessment  of  such  penalty  is sent by the department by certified or
  registered mail return receipt requested, then  such  penalty  shall  be
  abated.  If  such  taxpayer  continues  to fail to enroll in the program
  after such thirty-day period,  the  taxpayer  shall  pay  an  additional
  penalty  of five hundred dollars if the failure is for not more than one
  month, with an additional five hundred dollars for each additional month
  or fraction thereof during which such failure continues.
    (2) Failure to pay  or  late  payment.  (A)  A  taxpayer  required  or
  approved  to  participate  in the program prescribed by this section who
  fails to make a payment of tax by electronic funds transfer or certified
  check on or before the applicable due date prescribed by subdivision (c)
  of this section, or who fails to pay any tax required to be remitted  on
  or  before  such  applicable  due  date  shall, in the case of the taxes
  imposed pursuant to article twenty-eight and pursuant to  the  authority
  of  article  twenty-nine  of  this  chapter,  be  liable for penalty and
  interest as prescribed by subparagraphs (i) and (ii) of paragraph one of
  subdivision (a) of section eleven hundred forty-five  of  this  chapter,
  and in the case of the taxes imposed by and pursuant to the authority of
  articles  twelve-A and thirteen-A of this chapter, be liable for penalty
  and interest as prescribed by paragraphs (a) and (b) of subdivision  one
  of section two hundred eighty-nine-b of this chapter.
    (B)  Notwithstanding  any  provision  of  law  to  the  contrary, if a
  taxpayer described in subparagraph  (B)  or  (C)  of  paragraph  one  of
  subdivision  (b)  of  this  section  fails  to  make a payment of tax by
  electronic funds transfer or certified check on or before the applicable
  due date prescribed by subdivision (c) of this section or fails  to  pay
  any  tax  required to be remitted on or before such applicable due date,
  as prescribed by subparagraph (A) of this paragraph, and also  fails  to
  pay  or  pay over to the commissioner the amounts required to be paid or
  paid over with the applicable  return  described  in  paragraph  two  of
  subdivision  (c)  of this section due the twentieth day of the following
  month, then  penalty  and  interest  for  such  additional  failure,  as
  provided  by  subparagraphs (i) and (ii) of paragraph one of subdivision
  (a) of section eleven hundred forty-five of this chapter  or  paragraphs
  (a)  and  (b) of subdivision one of section two hundred eighty-nine-b of
  this chapter, as the case may be, shall be computed on the amount  equal
  to  the  difference  between  the  total  of  the  amount  of tax due or
  determined to be due with such return and the total of the amount of tax
  required to be paid by electronic funds transfer or certified  check  on
  or  before the applicable due date prescribed by subdivision (c) of this
  section for the preceding month.
    (3) Failure to file required returns. A taxpayer required or  approved
  to  participate  in  the program prescribed by this section who complies
  with the  payment  requirements  of  subdivision  (c)  of  this  section
  (including  the  payment of remaining liabilities described in paragraph
  two of such subdivision), but who fails  to  file  any  return  required
  pursuant to article twelve-A, thirteen-A, twenty-eight or twenty-nine of

  this chapter, as the case may be, for the period for which such payments
  were  timely  and fully paid or paid over, shall be liable for a penalty
  equal to five hundred dollars.
    (h)  Administration. Except as otherwise provided in this section, the
  provisions of part IV of article  twenty-eight  of  this  chapter  shall
  apply  to  the  administration  of  and  procedures  with respect to the
  provisions  of  this  section  relating  to  the  taxes   described   by
  subparagraph  (A)  of  paragraph one of subdivision (b) of this section,
  the provisions of section eleven hundred two of this chapter relating to
  the administration of and procedures with respect to such section  shall
  apply  to  the  administration  of  and  procedures  with respect to the
  provisions  of  this  section  relating  to  the  taxes   described   by
  subparagraph  (B)  of  such paragraph one, and the provisions of article
  twelve-A relating to the administration of and procedures  with  respect
  to  such  article shall apply to the provisions of this section relating
  to the taxes described in subparagraph (C) of such paragraph one.
    (i)  Regulations.  The  commissioner  shall  have  the  authority   to
  promulgate  regulations  in  order  to  implement the provisions of this
  section.