433 - Penalties and interest.
§ 433. Penalties and interest. 1. (a)(i) A distributor who or which fails to file a return or to pay any tax within the time required by or pursuant to this article (determined with regard to any extension of time for filing or paying) shall be subject to a penalty of ten per centum of the amount of tax determined to be due as provided in this article plus one per centum of such amount for each month or fraction thereof during which such failure continues after the expiration of the first month after such return was required to be filed or such tax became due, not exceeding thirty per centum in the aggregate. (ii) Any other person who fails to file a return or to pay any tax within the time required by or pursuant to this article, if such person does not offer alcoholic beverages for sale or use alcoholic beverages for any commercial purpose, shall be subject to a penalty of fifty per centum of the amount of tax determined to be due as provided in this article plus one per centum of such amount for each month or fraction thereof during which such failure continues after the expiration of the first month after such return was required to be filed or such tax become due. (iii) In the case of a failure by a distributor or other person to file such return within sixty days of the date prescribed for filing of such return by or pursuant to this article (determined with regard to any extension of time for filing), the penalties imposed by this subdivision shall not be less than the lesser of one hundred dollars or one hundred per centum of the amount required to be shown as tax on such return. For the purpose of the preceding sentence, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return. (b) If any amount of tax is not paid on or before the last date prescribed in this article for payment, interest on such amount at the underpayment rate set by the commissioner of taxation and finance pursuant to subdivision twenty-sixth of section one hundred seventy-one of this chapter shall be paid for the period from such last date to the date paid, whether or not any extension of time for payment was granted. Interest under this paragraph shall not be paid if the amount thereof is less than one dollar. (c) If the tax commission determines that such failure was due to reasonable cause and not due to willful neglect, it shall remit all or part of such penalties. The tax commission shall promulgate rules and regulations as to what constitutes reasonable cause. (d) If the failure to pay any tax within the time required by or pursuant to this article is due to fraud, in lieu of the penalties and interest provided for in paragraphs (a) and (b) of this subdivision, there shall be added to the tax (i) a penalty of two times the amount of tax due, plus (ii) interest on such unpaid tax at the underpayment rate set by the commissioner of taxation and finance pursuant to subdivision twenty-sixth of section one hundred seventy-one of this chapter for the period beginning on the last day prescribed by this article for the payment of such tax (determined without regard to any extension of time for paying) and ending on the day on which such tax is paid. (e) The penalties and interest provided for in this subdivision shall be determined, assessed, collected and paid in the same manner as the taxes imposed by this article and shall be disposed of as hereinafter provided with respect to moneys derived from the tax. Unpaid penalties and interest under this subdivision may be recovered by the attorney-general in an action brought pursuant to section four hundredthirty-one of this article. Interest under this subdivision shall be compounded daily. 2. For purposes of this chapter, the failure to do any act required by or under the provisions of this article shall be deemed an act committed in part at the office of the department of taxation and finance, in Albany. For the purposes of this chapter, the certificate of the tax commission to the effect that a tax has not been paid, that a return has not been filed, or that information has not been supplied, as required by or under the provisions of this article, shall be prima facie evidence that such tax has not been paid, that such return has not been filed, or that such information has not been supplied. 3. Cross-reference: For criminal penalties, see article thirty-seven of this chapter.