N.Y. Comp. Codes R. & Regs. tit. 20 § 533.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 533.1 - Registration requirement

Tax Law, § 1134

(a)

(1) To obtain a certificate of authority to collect tax, a certificate registration must be filed with the Commissioner of Taxation and Finance, in accordance with the procedures provided for in Part 539 of this Title. A certificate of registration is required to be filed by any person who intends to:

(i) commence business or to open a new place of business and who will be required to collect any tax imposed by article 28 of the Tax Law or pursuant to the authority of article 29 of the Tax Law; or

(ii) commence business or to open a new place of business and who will be purchasing or selling tangible personal property for resale; or

(iii) sell automotive fuel; or

(iv) take possession of or pay for the business assets of another in a bulk sale under circumstances requiring notification to the Department of Taxation and Finance, pursuant to section 1141 (c) of the Tax Law (see Notice of Bulk Sale, Part 537 of this Title) and commences business or opens a new place of business who will either be required to collect sales tax or be purchasing or selling tangible personal property for resale.

Example:

An individual who only purchases tangible personal property for resale to registered vendors is required to file a certificate of registration.

(2)

(i) Any person required to file a certificate of registration for a certificate of authority who fails to file such certificate of registration, may be subject to a penalty in an amount not exceeding $200.

(ii) In addition, any person who fails to obtain a certificate of authority and sells tangible personal property or services subject to tax, receives amusement charges or operates a hotel, purchases or sells tangible personal property for resale, or sells automotive fuel, is subject to a penalty in an amount not exceeding $500 for the first day sales or purchases are made plus an amount not exceeding $200 for each subsequent day sales or purchases are made, but not to exceed $10,000 in the aggregate. Such person may also be subject to the criminal penalties prescribed by section 1817 of the Tax Law.

Cross-references:

For registration procedures see Part 539 of this Title. For expiration of certificates of authority and registration renewals see Part 540 of this Title. For persons required to collect tax, see section 526.11 of this Title. For bulk sales, see Part 537 of this Title. For tax on hotel occupancy, see section 527.9 of this Title. For tax on amusement charges, see sections 527.10 through 527.12 of this Title.

(b)Registration of show vendors.

Every person who has no permanent place of business in the State who intends to display for sale or sell tangible personal property or services subject to tax at a flea market, craft show, antique show, coin show, stamp show, comic book show, fair, or any similar show in the State must file a certificate of registration for a certificate of authority in accordance with Part 539 of this Title.

(c)Registering and applying for a permit to operate a show.

(1) Every person who intends to be a promoter of a show must file a notice of show and application for show permit with the Department of Taxation and Finance to obtain a show permit.

(2) A show is a flea market, craft show, antique show, coin show, stamp show, comic book show, fair, and any similar show held on a regular or temporary basis at which more than one vendor displays for sale or sells tangible personal property or services subject to tax.

(i) For purposes of determining the existence of a show, the permanent nature of the premises or structure in which the activity is held is not relevant. Instead, it is the transient nature of the vendors which is relevant. Accordingly, when there are two or more vendors operating on the same premises, and two or more vendors have leases or licenses to use such premises for a period of less than one year or where the leases or licenses to use may be cancelled on notice of less than 30 days, then a show is presumed to exist for all purposes of this Part. Another fact which indicates the existence of a show is where the vendors regularly remove their merchandise from the premises at the close of each business day.

(ii) If no taxable tangible personal property or services are displayed for sale or sold, then the activity is not a show for purposes of this subdivision.

(iii) Sales of food and drink for consumption on the premises, although taxable, will not be considered for purposes of determining the existence of a show. Further, admission charges for games of chance or skill, like those typically operated on a carnival midway will not be considered for purposes of determining the existence of a show.

Example 1:

A market, where the only items for sale are nontaxable fruits and vegetables, is not a show for purposes of this subdivision.

Example 2:

A market which consists of many stands selling nontaxable fruits and vegetables and, as well, two stands selling taxable beverages and prepared food for consumption on the premises is not a show for purposes of this subdivision.

Example 3:

A market which consists of many stands selling nontaxable fruits and vegetables and, as well, two booths selling cut flowers and vegetable plants, which are subject to sales tax, is a show.

(3) A promoter is any person who:

(i) directly or indirectly rents, leases or grants a license to use space to any person for the conduct of more than three shows in a calendar year; or

(ii) operates more than three shows in a calendar year.

A promoter may also be a person required to collect sales tax within the meaning of section 1131 (1) of the Tax Law and the related provisions of section 526.11 of this Title. A person may be a promoter with respect to show vendors operating on his premises, and at the same time not a promoter with respect to vendors who have permanent places of business on the same premises. For the purposes of determining whether three shows have been held, the conduct of a show on one day alone or up to seven consecutive days shall constitute a single show. If there is more than one person involved in the organization or operation of a show who is within the definition of promoter, then all such persons must file a single notice of show and application for show permit as copromoters.

Example 1:

A, the owner of the X shopping mall, leases an area in the mall to B for the purpose of holding a flea market on each of five weekends during the year. B intends to sublease space to individual show vendors. If neither A nor B is involved in organizing or operating any show other than at the X shopping mall, then, after the third weekend the flea market is held, both A and B are promoters subject to this subdivision. While A, the owner of the X mall, is a promoter with respect to the show vendors participating in the flea market, A is not a promoter with respect to the permanent vendors of the X mall.

Example 2:

A, the owner of the X shopping mall, leases area in the mall to B for the purpose of holding a flea market on the first weekend of July. B intends to sublease portions of the mall area to individual show vendors. A is not involved in organizing or operating any other show during the calendar year. B, however, will operate similar shows on three weekends during June at a location other than the X shopping mall. With regard to the flea market at the X shopping mall, A is not a promoter, but B is a promoter subject to this subdivision.

(4) Promoters must file a notice of show and an application for show permit 10 days prior to the opening of the fourth show.

(5) The application for show permit should be filed with the New York State Department of Taxation and Finance, Sales Tax Registration Unit, W.A. Harriman Campus, Albany, NY 12227.

(6) Promoters must file separate applications for show permits for each location at which a show or shows are to be held. However, promoters may file a single application for multiple shows held at a single location. A separate application must be submitted for any show not listed on a show application previously filed. A permit to operate a show may not be amended.

(7) The applicant must submit the following information:

(i) name and address of the applicant;

(ii) date(s) of show(s);

(iii) location of show(s);

(iv) name, address and social security number of each officer of a corporation;

(v) name and address of each co-promoter; and

(vi) any additional information which may be requested.

(8) The Department of Taxation and Finance will, within five days after the receipt of an application for show permit, issue to the promoter, without charge, a permit to operate such show.

(9) Failure to comply with any of the requirements for promoters may, after an opportunity for a hearing has been afforded, result in the revocation of all existing show permits and the denial of any show permits for up to six months. In addition, any person failing to file a notice of show, or operating a show without a permit, or allowing a show on his property without a permit, may be subject to the criminal penalties prescribed by section 1817 of the Tax Law.

(10) Any promoter, who is also a person required to register with the Department of Taxation and Finance to obtain a certificate of authority, must comply with all requirements relating to such status, as well as with the requirements governing promoters.

(d)Display of certificates and permits.

(1) Each certificate of authority must be prominently displayed at each place of business of the registrant. A registrant who has no fixed place of doing business must attach such certificate to the registrant's cart, stand, truck, or other merchandising device.

Example 1:

A certificate of authority that is attached to a vendor's cash register, placed in his store window or at his customer relations counter, is considered properly displayed.

Example 2:

A certificate of authority which is located in a vendor's private office or some other place that is not accessible and visible to the vendor's customers is not properly displayed.

Example 3:

A vendor who owns a craft shop and who holds a valid certificate of authority also appears with his merchandise at a craft show in an armory. The vendor is required to obtain a duplicate certificate of authority (see section 539.2[b] of this Title), and to display it at the stand at which he is displaying or selling merchandise at the armory.

(2) Promoters are required to prominently display the permit to operate a show at the main entrance to the show. If the notice of show has been filed by the promoter and the permit has not been received prior to the opening of the show, the requirement with respect to obtaining and displaying such permit is deemed to have been complied with unless and until the promoter receives a notice sent by registered or certified mail from the Department of Taxation and Finance denying the application for a permit.

(3) A vending machine operator may, in lieu of placing a certificate of authority on each vending machine, place a card on each vending machine, in a location visible to the customer, which contains the name, address and number that appear on the vendor's certificate of authority.

(4) A show promoter must not permit any person to display for sale or sell tangible personal property or services subject to tax at a show unless such person has obtained a certificate of authority and properly displays such certificate.

(5) Any person failing to display a certificate of authority may be subject to the civil and criminal penalties prescribed, respectively, by sections 1145 (a)(4) and 1817 of the Tax Law.

(e)Amending the certificate of authority or the certificate of registration.

(1) A registered vendor is required to notify the New York State Department of Taxation and Finance, Sales Tax Registration Unit, W.A. Harriman Campus, Albany, NY 12227, within 20 days if any of the following changes are made:

(i) there is a change in the form of the business;

(ii) there is a change in the name of the business;

(iii) there is a change in the address of the business, including an additional place of business at a new location;

(iv) there is a change in the name or address of an owner;

(v) there is a change in the responsible persons of the business, including those responsible for collecting or paying tax (as such persons are described in section 539.2[h][2] of this Title);

(vi) there is a change in trade name; or

(vii) there is a change in business activity.

(2) Any person failing to furnish data with respect to changes in any of the information listed on a registration certificate may be subject to the penalty provisions of section 1817 of article 37 of the Tax Law.

(f)Surrender of certificates and permits.

(1) Certificates of authority must be surrendered to the New York State Department of Taxation and Finance, Sales Tax Registration Unit, W.A. Harriman Campus, Albany, NY 12227 within 20 days of the registrant's ceasing to do business, and must accompany the final return. Ceasing to do business means that the registrant is no longer operating the business even though the business may continue.

Cross-reference:

For final returns, see section 533.3(e) of this Part.

(2) Upon surrendering the certificate of authority, the vendor must complete the reverse side of the certificate and indicate the details of the sale or other disposition of the business. Where a certificate of authority has been lost, stolen, destroyed or is otherwise unreturnable to the department, the owner, partner or responsible officer of a vendor which was issued such certificate is required to notify the Sales Tax Registration Unit that such certificate cannot be returned, setting forth the specific reasons for such failure. The notification must be in written form, signed by the owner, partner or responsible officer and received within 20 days of the registrant's ceasing to do business.

(3) A show vendor must surrender the vendor's certificate of authority to the New York State Department of Taxation and Finance, together with a final return of the vendor, within 20 days after the termination of the vendor's business. A show vendor's business is terminated when the vendor no longer participates in shows in New York State.

(4) Any person who assigns or transfers a certificate of authority or who fails to surrender a certificate of authority may be subject to the criminal penalties prescribed by section 1817 of the Tax Law.

Example 1:

Mr. Brown has operated a flower shop for 25 years as a sole proprietorship. He decides to retire and give the shop to his daughter. His daughter will continue to operate the shop as a sole proprietorship. Mr. Brown must surrender his certificate of authority, and his daughter is required to obtain a new certificate in her name.

Example 2:

A vendor sells his business to another who will operate the business under the same name. Even though the business will be operated under the same name, the seller must surrender his certificate of authority to the Department of Taxation and Finance, Sales Tax Registration Unit. The purchaser is required to obtain his own certificate of authority. The purchaser is also required to file a notice of bulk sale.

Cross-reference:

For bulk sales, see Part 537 of this Title.

(5) A permit to operate a show must be surrendered with the report of show for the last show for which the permit was issued (see section 533.3[h] of this Part for reports of show).

(6) The criminal penalties prescribed by section 1817 of the Tax Law do not apply to a failure to surrender a certificate of authority which is required to be surrendered where business never commenced.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 533.1