1145 - Penalties and interest.
§ 1145. Penalties and interest. (a) (1) (i) Any person failing to file a return or to pay or pay over any tax to the tax commission 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 percent of the amount of tax due if such failure is for not more than one month, with an additional one percent for each additional month or fraction thereof during which such failure continues, not exceeding thirty percent in the aggregate. Provided, however, in the case of a failure 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 penalty imposed by this subparagraph shall not be less than the lesser of one hundred dollars or one hundred percent 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. In the case of a failure to file a return by a person required to register with the tax commission as provided in section eleven hundred thirty-four, in no event shall the penalty for failure to file a return be less than fifty dollars. (ii) 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 rate of fourteen and one-half percent per annum or at the underpayment rate set by the commissioner pursuant to section eleven hundred forty-two of this part, whichever is greater, 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 subparagraph shall not be paid if the amount thereof is less than one dollar. (iii) If the commissioner of taxation and finance determines that such failure or delay was due to reasonable cause and not due to willful neglect, he shall remit all of such penalty and that portion of such interest that exceeds the interest that would be payable if such interest were computed at the underpayment rate set by the commissioner of taxation and finance pursuant to section eleven hundred forty-two. The commissioner shall promulgate rules and regulations as to what constitutes reasonable cause. (iv) Provided, however, in the case of a long-form, part-quarterly return, no penalty or interest shall be payable with respect to a return and payment of estimated tax required to be filed and paid under subdivisions (a) and (b) of section eleven hundred thirty-seven-A for March, nineteen hundred seventy-six, nineteen hundred seventy-seven, nineteen hundred seventy-eight, nineteen hundred seventy-nine, nineteen hundred eighty, nineteen hundred eighty-one and nineteen hundred eighty-two, if such returns are timely filed, accompanied by a payment of not less than ninety percent of the tax as finally determined to be due and payable for March, nineteen hundred seventy-six, nineteen hundred seventy-seven, nineteen hundred seventy-eight, nineteen hundred seventy-nine, nineteen hundred eighty, nineteen hundred eighty-one and nineteen hundred eighty-two. Provided, further, that interest, at the rate authorized under subdivision nine of section eleven hundred forty-two, shall be payable upon the amount of any underpayment of the tax due with the returns due on March twentieth, nineteen hundred seventy-six, nineteen hundred seventy-seven, nineteen hundred seventy-eight, nineteen hundred seventy-nine, nineteen hundred eighty, nineteen hundred eighty-one and nineteen hundred eighty-two, for theperiod of such underpayment, but not beyond the due date of the next part-quarterly return. (v) Provided, further, in the case of a March estimated return, no penalty or interest shall be payable with respect to a return and payment of estimated tax required to be filed and paid under subdivision (c) of section eleven hundred thirty-seven-A for March, nineteen hundred eighty-three and each subsequent March through and including March, nineteen hundred ninety, if such returns are timely filed, accompanied by a payment of either: (A) not less than ninety percent of the tax as finally determined to be due and payable for the month of March in which the March estimated tax return is required to be filed; or (B) in the event such person has had at least four successive quarterly tax periods immediately preceding the March twentieth for which the return is to be filed, at least one-third of the sales and compensating use taxes payable by such person to the commissioner of taxation and finance in the comparable quarter of the immediately preceding year. However, where interest is payable because of a failure to meet the requirements of either clause (A) or (B) of this subparagraph such interest shall be at the underpayment rate authorized under subdivision nine of section eleven hundred forty-two upon any underpayment of the amount of tax due for the period of such underpayment, but not beyond the due date of the next part-quarterly return. For purposes of this subparagraph, the underpayment of the amount of tax due shall be: (A) the difference between the amount paid and ninety percent of the amount finally determined to be due and payable for March, nineteen hundred eighty-three and for March of each subsequent year through and including March, nineteen hundred ninety, or (B) if such person has had at least four successive quarterly tax periods immediately preceding the March for which the return was filed, the difference between the amount paid and one-third of the sales and compensating use taxes payable by such person to the commissioner for the comparable quarter of the immediately preceding year under this article, whichever is less. Notwithstanding the preceding sentence, for purposes of this subparagraph: (1) the tax as finally determined to be due and payable for such month of March, and (2) the sales and compensating use taxes payable for the comparable quarter of the immediately preceding year; shall not include taxes imposed by section eleven hundred seven or eleven hundred eight of this article or pursuant to the authority of article twenty-nine of this chapter. Provided, however, all other provisions of this article shall apply in the determination of such taxes. (vi) Any person required by this article to file a return, who omits from the total amount of state and local sales and compensating use taxes required to be shown on a return an amount which is in excess of twenty-five percent of the amount of such taxes required to be shown on the return shall be subject to a penalty equal to ten percent of the amount of such omission. The amount of the omission under the preceding sentence shall be reduced by that portion of the omission which is attributable to the tax treatment of any item by such person if there is or was substantial authority for such treatment, or any item with respect to which the relevant facts affecting the item's tax treatment are adequately disclosed in the return or in a statement attached to the return. If the tax commission determines that such omission was due to reasonable cause and not due to willful neglect, it shall remit all of such penalty. The penalty provided for in this subparagraph shall not apply to any return of estimated tax required to be filed under section eleven hundred thirty-seven-A. (vii) Any owner of a filling station who shall willfully and knowingly have in his custody, possession or under his control any motor fuel ordiesel motor fuel on which (A) the prepaid tax imposed 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, or (B) the prepaid tax imposed by section eleven hundred two of this article was required to have been passed through to him and has not been included in the cost of such fuel to him shall be liable for a penalty in the amount of twice the tax so not assumed or paid, or included. Such penalty shall be determined, assessed, collected and paid in the same manner as taxes imposed by this article and all the provisions of this article relating thereto shall be deemed also to refer to the penalty imposed by this paragraph and, for this purpose, the term "person required to collect tax" shall be deemed to include an owner of a filling station. Such penalty may be determined at any time within three years after such motor fuel or diesel motor fuel shall have come into his custody, possession or control. For purposes of this subparagraph, such owner shall willfully and knowingly have in his custody, possession or under his control motor fuel or diesel motor fuel on which (A) such tax has not been assumed or paid by a distributor registered as such or (B) such tax was required to have been passed through to him and has not been included in the cost of such fuel to him where such owner has knowledge of the requirement that such taxes be paid and where, to his knowledge, such taxes have not been so included. For purposes of this subparagraph, it shall be presumptive evidence that such owner shall willfully and knowingly have in his custody, possession or under his control motor fuel or diesel motor fuel (A) on which such tax has not been assumed or paid by a distributor registered as such or (B) on which such tax was required to have been passed through to him and has not been included in the cost of such fuel to him where such owner has not received the certification required by subdivision (h) of section eleven hundred thirty-two of this article at the time of delivery of such motor fuel or diesel motor fuel or, in those circumstances where the commissioner has authorized the delivery of such certification at a time after delivery of the motor fuel or diesel motor fuel, at the time prescribed by the commissioner. (viii) Any person required to collect tax who sells cigarettes at retail and who shall willfully and knowingly have in such person's custody or possession or under such person's control any cigarettes on which (A) the prepaid tax imposed by section eleven hundred three of this article has not been assumed or paid by an agent licensed as such under article twenty of this chapter, or (B) the prepaid tax imposed by such section eleven hundred three was required to have been passed through to such person and has not been included in the cost of such cigarettes to such person, shall be liable for a penalty in the amount of twice the tax not so assumed or paid, or included. Such penalty shall be determined, assessed, collected and paid in the same manner as taxes imposed by this article and all the provisions of this article relating thereto shall be deemed also to refer to the penalty imposed by this subparagraph. Such penalty may be determined at any time within three years after such cigarettes shall have come into such person's custody or possession or under such person's control. For purposes of this subparagraph, such person shall willfully and knowingly have in such person's custody or possession or under such person's control cigarettes on which (A) such tax has not been assumed or paid by an agent licensed as such under article twenty of this chapter, or (B) such tax was required to have been passed through to such person and has not been included in the cost of such cigarettes to such person, where such person has knowledge of the requirement that such taxes be paid or assumed or so included and where, to such person's knowledge, such taxeshave not been so paid or assumed or so included. For purposes of this subparagraph, it shall be presumptive evidence that such person shall willfully and knowingly have in such person's custody or possession or under such person's control cigarettes on which (A) such tax has not been assumed or paid by an agent authorized as such under such article twenty or (B) such tax was required to have been passed through to such person and has not been included in the cost of such cigarettes to such person where such person has not received the certification required by subdivision (k) of section eleven hundred thirty-two of this article at the time of delivery of such cigarettes or, in those circumstances where the commissioner has authorized the delivery of such certification at a time after delivery of the cigarettes, at the time prescribed by the commissioner. (ix) In addition to any other penalty or interest under this article or other law, any credit card issuer or fuel distributor, as defined in subdivision (h) of section eleven hundred thirty-nine of this part, who receives a refund or credit pursuant to such subdivision knowing, at the time the refund application is filed or the credit is taken, that the motor fuel or diesel motor fuel purchased was not for the government entity's own use or consumption, shall be liable for a penalty in the amount of the tax refunded or credited, plus applicable interest due under this article. (2) If the failure to pay or pay over any tax to the commissioner within the time required by this article is due to fraud, in lieu of the penalties and interest provided for in subparagraphs (i) and (ii) of paragraph one of this subdivision, there shall be added to the tax (i) a penalty of two times the amount of the tax due, plus (ii) interest on such unpaid tax at the rate of fourteen and one-half percent per annum or the underpayment rate of interest set by the commissioner pursuant to section eleven hundred forty-two of this part, whichever is greater, 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. (3) (i) Any person required to obtain a certificate of authority under section eleven hundred thirty-four who, without possessing a valid certificate of authority, (A) sells tangible personal property or services subject to tax, receives amusement charges or operates a hotel, (B) purchases or sells tangible personal property for resale, (C) sells automotive fuel, or (D) sells cigarettes shall, in addition to any other penalty imposed by this chapter, be subject to a penalty in an amount not exceeding five hundred dollars for the first day on which such sales or purchases are made, plus an amount not exceeding two hundred dollars for each subsequent day on which such sales or purchases are made, not to exceed ten thousand dollars in the aggregate. (ii) Any person who fails to surrender a certificate of authority when a notice of revocation or suspension has become final shall, in addition to any other penalty imposed by this chapter, be subject to a penalty in an amount not exceeding five hundred dollars for the first day of such failure, together with a penalty in an amount not exceeding two hundred dollars for each subsequent day of such failure, not to exceed ten thousand dollars in the aggregate. (iii) Any person described in paragraph one or two of subdivision (a) of section eleven hundred thirty-four who takes possession of or pays for business assets under circumstances requiring notification by such person to the tax commission pursuant to subdivision (c) of section eleven hundred forty-one without having filed a certificate of registration pursuant to section eleven hundred thirty-four shall, inaddition to any other penalty imposed by this chapter, be subject to a penalty in an amount not exceeding two hundred dollars. (iv) If the tax commission determines that any failure or act described in this paragraph was due to reasonable cause and not due to willful neglect, it may remit all or part of such penalty. (4) Any person required by this article to display a certificate of authority, who fails to display such certificate in the manner required by this article or any rule or regulation adopted by the tax commission in connection with such requirement shall, in addition to any other penalty imposed by this chapter, be subject to a penalty of fifty dollars. If the tax commission determines that such failure was due to reasonable cause and not due to willful neglect, it may remit all or part of such penalty. (5) Any person who issues a false or fraudulent resale or other exemption certificate or document with intent to evade tax shall, in addition to any other penalty imposed by this chapter, be subject to a penalty of one hundred percent of the tax that would have been due had there not been a misuse of such certificate or document and a penalty of fifty dollars for each such certificate or document. (6) The tax commission shall promulgate rules and regulations as to what constitutes reasonable cause for purposes of this subdivision. (7) The penalties and interest provided for in this subdivision shall be paid and disposed of in the same manner as other revenues from this article. Such penalties and interest may be determined, assessed, collected and enforced in the same manner as the tax imposed by this article. Interest under this subdivision shall be compounded daily. (b) Cross-reference: For criminal penalties, see article thirty-seven of this chapter. (c) Any person failing to file a return or to pay any tax required to be prepaid to the commissioner with respect to motor fuel or diesel motor fuel pursuant to the provisions of section eleven hundred two of this article within the time required by this article shall, in addition to any other penalty provided in this article or otherwise imposed by law, be subject to a penalty equal to the amount of tax required to be so prepaid pursuant to the provisions of such section eleven hundred two. If the commissioner determines that such failure to file a return or to pay any such tax was due to reasonable cause and not due to willful neglect, he shall remit all or any part of such penalty. (d) The certificate of the tax commission to the effect that a tax has not been paid, that a return, bond or registration certificate has not been filed, or that information has not been supplied pursuant to the provisions of this article shall be presumptive evidence thereof. (e) Any officer, director, shareholder or employee of a corporation or of a dissolved corporation, any employee of a partnership, any employee or manager of a limited liability company, or any employee of an individual proprietorship, who as such officer, director, shareholder, employee or manager is under a duty to act for such corporation, partnership, limited liability company or proprietorship in complying with any requirement of this article, and any member of a partnership or limited liability company, which fails to pay the tax required to be prepaid by section eleven hundred two or eleven hundred three of this article, shall, in addition to other penalties provided by law, be liable for a penalty equal to the total amount of the tax not paid, plus penalties and interest computed pursuant to subdivision (a) of this section as if such person were a distributor under article twelve-a of this chapter or an agent under article twenty of this chapter, respectively. If the commissioner determines that such failure was due to reasonable cause and not due to willful neglect, the commissionershall remit all or part of such penalty imposed under this subdivision. Such penalty shall be determined, assessed, collected and paid in the same manner as the tax required to be prepaid by section eleven hundred two or eleven hundred three, as the case may be, of this article and shall be disposed of as provided with respect to moneys derived from either such tax, respectively. Provided, however, that the penalty provided for by this subdivision shall not be imposed on any person on account of the failure of such a distributor or agent to pay the tax required to be prepaid by section eleven hundred two or eleven hundred three, respectively, of this article if such person is liable for such tax pursuant to subdivision (b) of such section eleven hundred two or subdivision (b) of such section eleven hundred three, respectively. (f) Any entertainment promoter who authorizes an entertainment vendor to make taxable sales of tangible personal property at an entertainment event with respect to which he is a promoter, where such vendor is not registered under subdivision (a) of section eleven hundred thirty-four shall, in addition to any other penalty provided in this article or otherwise imposed by law, be subject to a penalty of not more than ten thousand dollars with respect to each such entertainment event. (g) (1) Any person failing to keep any of the additional records required to be kept pursuant to section eleven hundred forty-two-A of this article, shall, in addition to any other penalty provided in this article or otherwise imposed by law, be subject to a penalty in an amount not to exceed five hundred dollars where such records have not been kept for a month or part thereof. Such penalty for failure to keep such records shall not be imposed and collected more than once for any such failure to keep records for such month or part thereof. (2) Any person described in subdivision (a) of section eleven hundred forty-two-A of this chapter who fails to consent to the entering and walking about for the purposes described in such section, or who interferes with the commissioner or any authorized employee of the department, or the agent of either of them, with respect to entering and walking about for the purposes described in such section, or whose employee fails to consent or interferes with such entering and walking about for the purposes described in such section, shall, in addition to any other penalty provided in this article or otherwise imposed by law, be subject to a penalty in an amount not to exceed five hundred dollars for the first day of such failure to consent or the first day of such interference. Each subsequent day any such failure to consent to or interference with such entering and walking about shall occur shall be subject to an additional penalty not to exceed one thousand dollars. In no event, shall such penalties exceed ten thousand dollars in the aggregate. (3) If the commissioner determines that such failure to keep such records described in paragraph one of this subdivision or that such failure to consent to or such interference with the entering and walking about described in paragraph two of this subdivision was due to reasonable cause and not due to willful neglect, the commissioner shall remit all or any part of such penalty. Such penalties shall be paid and disposed of in the same manner as other revenues from this article. Such penalties shall be determined, assessed, collected, paid and enforced in the same manner as the tax imposed by this article and all the provisions of this article relating to tax shall be deemed also to apply to the penalties imposed by this subdivision. (h) (1) Any person required to file a report pursuant to subdivision (h) of section eleven hundred thirty-six of this article, who fails to include the name or certificate of authority number of any itinerant vendor or the sales for resale made to such vendor and the amounts paid,charged or due thereon, required to be included in such report, or who fails to include such information which is true and correct, shall, in addition to any other penalty provided in this article or otherwise imposed by law, be subject to a penalty computed by multiplying an amount not to exceed fifty dollars by the number of itinerant vendors required to be included in such report that are not so included (whether or not such a report is filed) or for which incomplete or incorrect information has been reported. (2) Any person failing to file a report required pursuant to subdivision (h) of section eleven hundred thirty-six of this article within the time required by regulations promulgated pursuant to such subdivision, shall, in addition to any other penalty provided in this article or otherwise imposed by law, be subject to a penalty in an amount not to exceed five hundred dollars for each such failure. (3) In no event shall the penalty imposed by paragraph one of this subdivision, or the aggregate of the penalties imposed by paragraphs one and two of this subdivision, exceed five thousand dollars for any twelve month period commencing June first and ending May thirty-first of the following year. (4) If the commissioner determines that any failure to include information, or to include true and correct information, in a report required to be filed, or failure to timely file a report, as described in this subdivision, was due to reasonable cause and not due to willful neglect, the commissioner shall remit all or part of any of the penalties imposed under this subdivision. Such penalties shall be determined, assessed, collected, paid, disposed of and enforced in the same manner as taxes imposed by this article and all the provisions of this article relating thereto shall be deemed also to refer to such penalties. * (i) Any person required to make or maintain records under this article (but not including the records required under section eleven hundred forty-two-A of this part) who fails to make or maintain or make available to the commissioner these records is subject to a penalty not to exceed one thousand dollars for the first quarter or part thereof for which the failure occurs and not to exceed five thousand dollars for each additional quarterly period or part thereof for which the failure occurs. This penalty is in addition to any other penalty provided for in this article but may not be imposed and collected more than once for failures for the same quarterly period or part thereof. If the commissioner determines that a failure to make or maintain or make available records in any quarter was entirely due to reasonable cause and not to willful neglect, the commissioner must remit the penalty imposed for that quarter. These penalties will be paid and disposed of in the same manner as other revenues from this article. These penalties will be determined, assessed, collected, paid and enforced in the same manner as the tax imposed by this article, and all the provisions of this article relating to tax will be deemed also to apply to the penalties imposed by this subdivision. For purposes of the penalty imposed by this subdivision, a person will be considered to have failed to make or maintain the required records when the records made or maintained by that person for a quarterly period make it virtually impossible to verify sales receipts or the taxability of those receipts and to conduct a complete audit. * NB There are 3 sb (i)'s * (i)(1) Every person required to file an information return by subdivision (i) of section eleven hundred thirty-six of this part who (A) fails to provide any of the information required by paragraph one or two of subdivision (i) of section eleven hundred thirty-six of this partfor a vendor, operator, or recipient, or who fails to include any such information that is true and correct (whether or not such a report is filed) for a vendor, operator, or recipient, or (B) fails to provide the information required by paragraph four of subdivision (i) of section eleven hundred thirty-six of this part to a vendor, operator, or recipient specified in paragraph four of subdivision (i) of section eleven hundred thirty-six of this part, will, in addition to any other penalty provided in this article or otherwise imposed by law, be subject to a penalty of five hundred dollars for ten or fewer failures, and up to fifty dollars for each additional failure. (2) Every person failing to file an information return required by subdivision (i) of section eleven hundred thirty-six of this part within the time required by subdivision (i) of section eleven hundred thirty-six of this part will, in addition to any other penalty provided for in this article or otherwise imposed by law, be subject to a penalty in an amount not to exceed two thousand dollars for each such failure, provided that the minimum penalty under this paragraph is five hundred dollars. (3) In no event will the penalty imposed by paragraph one, or the aggregate of the penalties imposed under paragraphs one and two of this subdivision, exceed ten thousand dollars for any annual filing period as described by paragraph three of subdivision (i) of section eleven hundred thirty-six of this part. (4) If the commissioner determines that any of the failures that are subject to penalty under this subdivision was entirely due to reasonable cause and not due to willful neglect, the commissioner must remit the penalty imposed under this subdivision. These penalties will be determined, assessed, collected, paid, disposed of and enforced in the same manner as taxes imposed by this article and all the provisions of this article relating thereto will be deemed also to refer to these penalties. * NB There are 3 sb (i)'s * (i) Aiding or assisting in the giving of fraudulent returns, reports, statements or other documents. Any person who, with the intent that tax be evaded, for a fee or other compensation or as an incident to the performance of other services for which that person receives compensation, aids or assists in, or procures, counsels, or advises the preparation or presentation under this article, or in connection with any matter arising under this article, of any return, report, declaration, statement or other document that is fraudulent or false as to any material matter, or supplies any false or fraudulent information, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present that return, report, declaration, statement or other document, will pay a penalty not exceeding five thousand dollars. The definitions in subsection (l) of section ten hundred eighty-five of this chapter apply for the purposes of this penalty. * NB There are 3 sb (i)'s * (j) Any person required to make or maintain records under this article who fails to present and make available these records in an auditable form is subject to a penalty not to exceed one thousand dollars for each quarterly period or part thereof for which records maintained by that person are not presented and made available by that person in auditable form, even if these records are adequate to verify credits, receipts, and the taxability thereof and to perform a complete audit. This penalty is in addition to any other penalty provided for in this article, but will not be imposed and collected more than once for these failures for the same quarterly period or part thereof. If thecommissioner determines that any failure described in this subdivision for a quarterly period was entirely due to reasonable cause and not to willful neglect, the commissioner must remit the penalty imposed for that quarter. The penalties imposed by this subdivision will be paid and disposed of in the same manner as other revenues from this article. These penalties will be determined, assessed, collected, paid and enforced in the same manner as the tax imposed by this article, and all the provisions of this article relating to tax will be deemed also to apply to the penalties imposed by this subdivision. For purposes of the penalty imposed by this subdivision, a person will be considered to have failed to present and make records available in auditable form when the records presented by that person for that quarter lack sufficient organization, such as by date, invoice number, sales receipts, or sequential numbering, or are otherwise inadequate (without reorganizing, reordering or otherwise rearranging the records into an auditable form) to permit direct reconciliation of the receipts, invoices or other source documents with the entries for the quarterly period in the books and records and on the returns of that person. * NB There are 2 sb (j)'s * (j) False or fraudulent document penalty. Any taxpayer that submits a false or fraudulent document to the department will be subject to a penalty of one hundred dollars per document submitted, or five hundred dollars per tax return submitted. This penalty will be in addition to any other penalty provided by law. * NB There are 2 sb (j)'s (k) Any person who, having elected to maintain in an electronic format any portion or all of the records he or she is required to make and maintain by this article, fails to present and make these records available and accessible to the commissioner in electronic format, is subject to a penalty not to exceed five thousand dollars for each quarterly period or part thereof for which these electronic records are not presented and made available and accessible upon request, notwithstanding that the records may also be maintained and available in hard copy format. This penalty is in addition to any other penalty provided for in this article, but may not be imposed and collected more than once for a failure for the same quarterly period or part thereof. Provided, however, nothing in this subdivision will prevent the separate imposition, if applicable, of any penalty imposed by subdivision (i) or (j) of this section for the same quarterly period or part thereof. If the commissioner determines that the failure to present and make electronically maintained records available and accessible for a quarterly period was entirely due to reasonable cause and not to willful neglect, the commissioner must remit the penalty imposed for that quarter. These penalties will be paid and disposed of in the same manner as other revenues from this article. These penalties will be determined, assessed, collected, paid and enforced in the same manner as the tax imposed by this article, and all the provisions of this article relating to tax will be deemed also to apply to the penalty imposed by this subdivision. For purposes of the penalty imposed by this subdivision, a failure to present and make available and accessible a record maintained in electronic format includes not only the denial of access to the requested records that were maintained electronically, but also the failure to make available to the commissioner the information, knowledge, or means necessary to access and otherwise use the electronically maintained records in the inspection and examination of these records.