N.Y. Tax Law § 283-A – Licensing of importing transporters

1. The department, upon the application of a person who transports motor fuel, shall license such person as an importing transporter or exporting transporter, as the case may be, under this article except as provided in subdivisions two and five of this section. The application shall be in a form and contain such data as the department shall prescribe. No person, unless licensed as an importing transporter, shall transport motor fuel in the state where such motor fuel is being imported into the state for use, distribution, storage or sale in the state. No person, unless licensed as an exporting transporter, shall transport motor fuel in this state where such motor fuel is being exported from a point in this state to without this state.
2. Where a person files an application for licensing under this section and in considering such application the commissioner ascertains that (a) any tax imposed under this chapter or any related statute as defined in section eighteen hundred of this chapter has been finally determined to be due from such applicant or from any officer, director or partner of such applicant, shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or any shareholder or employee of such applicant under a duty to file a return under or pursuant to the authority of this article or pay the taxes imposed by or pursuant to the authority of this article on behalf of such applicant, and has not been paid in full, (b) a liability for the penalty provided for under subdivision two of section two hundred eighty-nine-b of this article has been finally determined to be due from an officer, director, shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, employee or partner of such applicant or a shareholder of such applicant under a duty to file a return under or pursuant to the authority of this article or pay the taxes imposed by or pursuant to the authority of this article on behalf of such applicant, and has not been paid in full, (c) such applicant has been convicted of a crime provided for in this chapter or has been convicted under the tax laws or penal laws of any other state, or a political subdivision of this state or such other state, or of the United States of a criminal offense which, if committed and prosecuted in this state, would constitute a similar crime under this chapter, within the preceding five years, (d) an officer, director or partner of such applicant, a shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or an employee or shareholder of such applicant who, as such employee or shareholder, is under a duty to file a return under or pursuant to the authority of this article or pay the taxes imposed by or pursuant to the authority of this article on behalf of such applicant, has been convicted of a crime provided for in this chapter or has been convicted under the tax laws or penal laws of any other state, or a political subdivision of this state or such other state, or of the United States of a criminal offense which, if committed and prosecuted in this state, would constitute a similar crime under this chapter, within the preceding five years, or an employee of such applicant was, in his capacity as a person under a duty to file a return under or pursuant to the authority of this article or pay the taxes imposed by or pursuant to the authority of this article on behalf of any person, convicted of a crime provided for in this chapter or has been convicted under the tax laws or penal laws of any other state, or a political subdivision of this state or such other state, or of the United States of a criminal offense which, if committed and prosecuted in this state, would constitute a similar crime under this chapter, within the preceding five years, (e) such applicant, or an officer, director or partner of such applicant, shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or employee or shareholder of such applicant under a duty to file a return under or pursuant to the authority of this article or to pay the taxes imposed by or pursuant to the authority of this article on behalf of such applicant, who was an officer, director or partner of another person, or who directly or indirectly owned more than ten percent of the number of shares of stock of another person (where such other person is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or who was an employee or shareholder of another person under a duty to file a return under or pursuant to the authority of this article or pay the taxes imposed by or pursuant to the authority of this article on behalf of such other person at the time any tax imposed under this chapter or any related statute as defined in section eighteen hundred of this chapter was finally determined to be due from such other person and where such tax has not been paid in full, or at the time such other person was convicted of a crime provided for in this chapter or has been convicted under the tax laws or penal laws of any other state, or a political subdivision of this state or such other state, or of the United State of a criminal offense which, if committed and prosecuted in this state, would constitute a similar crime under this chapter, within the preceding five years or at the time the license of such other person was cancelled or suspended pursuant to subdivision four of this section within the preceding five years, or at the time such other person committed any of the acts or omissions which are, or was convicted as, specified in subdivision four of this section within the preceding five years, provided, however, where an applicant or such officer, director, partner, shareholder or employee of such applicant was only an employee of another person, the applicable examination of tax payment history of such other person shall be limited to the taxes imposed by this article or by or pursuant to article twenty-eight or twenty-nine of this chapter with respect to motor fuel and the applicable examination of prior criminal convictions shall be limited to those which relate to motor fuel, (f) the license of such applicant or of an officer, director or partner of such applicant, shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or employee or shareholder of such applicant under a duty to file a return under or pursuant to the authority of this article or to pay the taxes imposed by or pursuant to the authority of this article on behalf of such applicant has been cancelled or suspended pursuant to subdivision four of this section within the preceding five years, or (g) the applicant, an officer, director or partner of the applicant, a shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or an employee or shareholder of such applicant under a duty to file a return under or pursuant to the authority of this article or to pay the taxes imposed by or pursuant to the authority of this article on behalf of the applicant, has committed any of the acts or omissions which are, or was convicted as, specified in subdivision four of this section within the preceding five years, the commissioner may refuse to register such applicant.
3. The commissioner may require a transporter seeking licensing to file with the department a bond issued by a surety company approved by the superintendent of financial services as to solvency and responsibility and authorized to transact business in this state or other security acceptable to the commissioner, in such amount as the commissioner may fix, in an amount determined in accordance with rules and regulations prescribed by the commissioner, to secure the performance by such transporter of the duties and responsibilities required (i) pursuant to this article and (ii) pursuant to articles twenty-eight and twenty-nine of this chapter with respect to motor fuel. The commissioner may require that such a bond or other security be filed before a transporter is licensed, and the amount thereof may be increased at any time when in the commissioner's judgment the same is necessary. If securities are deposited as security under this subdivision, such securities shall be kept in the joint custody of the comptroller and the commissioner and may be sold by the commissioner if it becomes necessary so to do in order to recover against such transporter but no such sale shall be had until after such transporter shall have had opportunity to litigate the validity of the liability if it elects so to do. Upon any such sale the surplus, if any, above the sums due shall be returned to such transporter. The department, when authorized by the transporter, shall furnish information regarding the transporter's license and any other information which the transporter authorizes it to disclose.
4. The license of any importing or exporting transporter may be cancelled or suspended by the commissioner where a licensee, or an officer, director, shareholder, employee or partner of the licensee who as such officer, director, shareholder, employee or partner is under a duty to act for such licensee or any shareholder directly or indirectly owning more than ten percent of the number of shares of stock of the licensee (where such licensee is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such licensee, fails to file a bond or other security when required or when the amount thereof is increased, or fails to comply with any of the provisions of this article or article twenty-eight of this chapter with respect to motor fuel or any rule or regulation with respect to motor fuel adopted pursuant to such articles by the department or by the commissioner, or knowingly aids and abets another person in violating any of the provisions of such articles or of any such rule or regulation with respect to motor fuel, or transfers its license as an importing transporter or exporting transporter. A license may also be cancelled or suspended if the commissioner determines that a licensee or an officer, director, shareholder, employee or partner of the licensee who as such officer, director, shareholder, employee or partner is under a duty to act for such licensee or any shareholder directly or indirectly owning more than ten percent of the number of shares of stock of the licensee (where such licensee is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such licensee:
1. (i) commits fraud or deceit in his operations as a transporter or has committed fraud or deceit in procuring his license;
2. (ii) has been convicted in a court of competent jurisdiction, either within or without the state, of a felony, as defined under subdivision eight of section two hundred eighty-three of this article, bearing on such transporter's duties and obligations under this chapter;
3. (iii) has knowingly aided and abetted a person who is not registered as a distributor in the importation, production, refining, manufacture or compounding of motor fuel; or
4. (iv) has knowingly aided and abetted the distribution of motor fuel imported, caused to be imported, produced, refined, manufactured or compounded by a distributor who is not registered by the department. A license may also be cancelled or suspended if the commissioner determines that a licensee or an officer, director, shareholder, employee or partner of the licensee who as such officer, director, shareholder, employee or partner is under a duty to act for such licensee or any shareholder directly or indirectly owning more than ten percent of the number of shares of stock of the licensee (where such licensee is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such licensee, was an officer, director, shareholder, employee or partner of another person who as such officer, director, shareholder, employee or partner was under a duty to act for such other person or was a shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such other person (where such other person is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such other person at the time such other person committed any of the acts or omissions which are, or was convicted as, specified in this subdivision within the preceding five years.
5. A license shall not be cancelled or suspended nor shall an application for a license be refused unless the licensee or applicant for a license has had an opportunity for a hearing, provided, however, that an application for a license may be denied without a prior hearing. Provided, further, a license may be cancelled or suspended without a prior hearing, for failure to file a return or report within ten days of the date prescribed for filing under this article or for nonpayment of any sums due pursuant to this article or article twenty-eight or twenty-nine of this chapter with respect to motor fuel if the licensee shall have failed to file such return or report or pay such sums within ten days after the date the demand therefor is sent by registered or certified mail to the address of the transporter given in his application for a license, or an address substituted therefor as in this subdivision. A license may also be cancelled or suspended prior to a hearing for the failure to continue to maintain in full force and effect at all times the bond or other security filed with the commissioner. Provided, however, if a surety bond is cancelled prior to expiration, the commissioner, after considering all the relevant circumstances, may make such other arrangements and require the filing of such other bond or other security as the commissioner deems appropriate. Provided, further, a license may be cancelled or suspended prior to a hearing for the transfer of such license. A transporter shall immediately inform the department, in writing, of any change in its address and, if the transporter is a corporation or partnership, the transporter shall immediately inform the department, in writing, of any change in its officers, directors or partners or their residence addresses as shown in its application for a license.
6. The provisions of subdivisions six, eight, nine and ten of section two hundred eighty-three of this article shall apply to the provisions of this section in the same manner and with the same force and effect as if the language of these subdivisions had been incorporated in full into this section and had expressly referred to the importing transporter's license or the exporting transporter's license under this section, except to the extent that any such provision is either inconsistent with a provision of this section or is not relevant to this section.