Sec. 73.1. Registration of retail dealers and vending machines

Tax Law, §§ 475 and 480-a

(a) General.

(1) Except as provided in this subdivision, every retail dealer of cigarettes as defined in section 70.2(h) of this Title and every retail dealer of tobacco products as defined in section 89.2(d) of this Title must be registered with the Department of Taxation and Finance. In addition, every vending machine through which cigarettes or tobacco products are sold in New York State must be registered with the department. For purposes of this Part only, a person will not be considered to be a retail dealer by virtue of any sales of cigarettes or tobacco products made through vending machines, but shall instead be considered a vending machine owner or operator with respect to such sales.

(2) Retail dealers. Every retail dealer must register and publicly display a certificate of retail dealer registration (hereafter referred to as a registration certificate), issued by the department, in each place of business located in this State through which the dealer sells cigarettes or tobacco products at retail. A retail dealer who does not have a regular place of business must register and publicly display such a certificate on each of its carts, stands, trucks or other merchandising devices through which it sells cigarettes or tobacco products in this State. In the event that a retail dealer has both regular places of business and such merchandising devices through which cigarettes or tobacco products are sold, such dealer must publicly display a registration certificate at each place of business and upon each merchandising device, regardless of proximity. Registration certificates must be conspicuously displayed for the purposes of inspection and enforcement of the provisions of article 20 of the Tax Law. Where a retail dealer also sells cigarettes or tobacco products in this State through vending machines, such retail dealer is also subject to the registration provisions of this Part as a vending machine owner or operator.

(3) Vending machines. Every person who owns one or more vending machines through which cigarettes or tobacco products are sold in this State, regardless of whether located on the premises of the vending machine owner or on the premises of any other person, must register each such vending machine with the department. However, if the owner is not the operator of the vending machine, then any person who operates the machine, regardless of whether located on the premises of the vending machine owner or operator or on the premises of any other person, must register such machine. A vending machine registration certificate (hereafter referred to as a registration certificate), in such form as the department shall prescribe, must be conspicuously affixed to each vending machine that is subject to registration, for the purposes of inspection and enforcement of the provisions of article 20 of the Tax Law. Where a vending machine owner or operator also sells cigarettes or tobacco products in this State at retail other than through vending machines, such vending machine owner or operator is also subject to registration as a retail dealer.

(4) Separate registrations are not required if both cigarettes and tobacco products will be sold in New York State. That is, a retail dealer or a vending machine who or which sells both cigarettes and tobacco products from a single location or machine, as the case may be, need only be registered with the department once for such location or machine.

(b) Initial registration.

(1) An application for registration of a retail dealer or of a vending machine must be made on a form prescribed by the Department of Taxation and Finance for such purpose and must fully disclose all of the information required therein. Every retail dealer and every vending machine owner or operator subject to the provisions of this section who:

(i) commences business in this State;

(ii) commences selling cigarettes or tobacco products at retail through new or different places of business in this State; or

(iii) commences selling cigarettes or tobacco products through new or different vending machines in this State;

as the case may be, must file such an application with the department at least 30 days prior to the commencement of such business or the commencement of such sales. Provided, however, the department will accept as being timely filed such an application received at least 20 days prior to the commencement of such business or the commencement of such sales, in order to facilitate the joint administration of the registration procedures provided for under article 28 of the Tax Law and under article 20 of such law and this Part (see section 1134 of the Tax Law and Part 539 of this Title for the requirements for registering as a sales tax vendor and obtaining a certificate of authority). Each retail dealer must pay with the filing of an application for registration, an application fee as provided in section 480-a(2)(b) of the Tax Law, for each retail place of business or merchandising device through which the dealer will sell cigarettes or tobacco products in the State. Each vending machine owner or operator must pay with the filing of such an application, an application fee as provided in section 480-a(2)(b) of the Tax Law, for each vending machine through which cigarettes or tobacco products will be sold in the State. The application fees should be paid by check, money order, or electronically, as prescribed by the department. In no event shall the application fees be prorated for a portion of a calendar year or for any other purpose.

(2) Within 10 days after the receipt of an application for registration, in completed form, and payment of the proper fee or fees, the department will issue the appropriate registration certificates. All registration certificates issued pursuant to this Part on and after December 1st in each year shall be applicable to the following calendar year, in addition to the month of December. (See subdivision [d] of this section concerning registration renewals and the issuance of renewal registration certificates in December of each year.)

(3) When registration certificates are received, the retail dealer or the vending machine owner or operator, as the case may be, must designate each certificate for use in a particular place of business or on a particular merchandising device or vending machine. The retail dealer or vending machine owner or operator must maintain and make available for inspection by the department, complete and accurate records of such designations. The records must clearly associate each individual registration certificate number with the address of the place of business in which it is displayed or the manufacturer's serial number of the merchandising device or vending machine on which it is displayed or affixed. In the absence of a manufacturer's serial number, the merchandising device or vending machine must be inscribed with a permanent identifying number to which the registration certificate number may be associated.

(c) Assignment and surrender.

(1) The registrations of retail dealers and individual vending machines are not assignable to other persons, as provided in section 72.1(d) of this Title nor are such registrations, or certificates evidencing such registrations, transferable among retail locations or merchandising devices of retail dealers or among vending machines of vending machine owners or operators.

(2) In the event that a retail dealer never commences business or ceases to do business as specified in a registration certificate, such certificate must be surrendered to the Department of Taxation and Finance immediately. Similarly, if a vending machine owner or operator never commences business or ceases to do business as specified in a registration certificate, such certificate must be immediately returned to the department unless the registration certificate has been affixed to a vending machine, in which case such certificate must be immediately destroyed.

(d) Annual renewals.

The registrations of retail dealers and individual vending machines are valid for a single calendar year and must be renewed each year if cigarettes or tobacco products will continue to be sold in this State. Every retail dealer and every vending machine owner or operator who, pursuant to section 1136 of the Tax Law, is required to file a sales tax return for the quarterly period ending on the last day of August must file a new application for registration under this section with such quarterly return in every calendar year. The Department of Taxation and Finance may require that the applications for renewal be mailed to a designated address, separate from the sales tax returns. In which case, such applications must be filed on or before September 20th. In addition, where the department has permitted or required sales tax returns to be made covering other periods and upon such dates as it has specified, such applications for renewal must also be filed on or before September 20th. The yearly applications for renewal must be accompanied by the appropriate application fees as described in subdivision (b) of this section. In December of each year, after receiving such registration renewal applications and the proper fees, the department will issue new, distinctively colored registration certificates. Such certificates must be publicly displayed, or affixed to individual vending machines, as of January 1st. Registration certificates for the succeeding calendar year may, however, be lawfully displayed and affixed as early as the preceding December 1st. Expired certificates are not required to be surrendered to the department.

(e) Replacement certificates.

(1) Upon written request, the Department of Taxation and Finance may issue, without charge, replacement registration certificates to be used in place of registration certificates that have been in some manner lost, mutilated or destroyed and for certificates that will unavoidably be destroyed as a result of a purposeful act; for example, the refurbishing of a vending machine. A request for such a replacement certificate must provide the following information:

(i) the name and address of the retail dealer, or vending machine owner or operator;

(ii) the identification number of the original registration certificate to be replaced;

(iii) the exact location of the place of business, merchandising device (if possible) or vending machine to which the registration certificate related;

(iv) the manufacturer's serial number or other authorized identifying number of the merchandising device or vending machine; and

(v) a detailed explanation as to why a replacement certificate is being requested, including the date any loss, mutilation or destruction was first discovered or the intended date of the purposeful act resulting in destruction.

(2) A retail dealer or a vending machine owner or operator will not be in violation of the Tax Law or of this Part for failure to display or affix a registration certificate, if the retail dealer or vending machine owner or operator can establish that the department was notified within five days after the retail dealer or vending machine owner or operator first discovered any loss, mutilation or destruction of the original registration certificate, and that the replacement certificate was publicly displayed or affixed to the vending machine within 10 days after the date it was issued by the department. When a retail dealer or vending machine owner or operator receives a replacement certificate, the records concerning the designation of registration certificates required by subdivision (b) of this section must be immediately amended to reflect such receipt.

(f) Consignment certificates.

(1) Any vending machine owner or operator who requires registration certificates throughout the year in volume and who has 100 or more vending machines registered with the Department of Taxation and Finance may apply to the department for consignment registration certificates. Consignment certificates are registration certificates entrusted to a vending machine owner or operator for such owner or operator's expedient use in the future.

(2)

(i) An application for consignment certificates must be made on a form prescribed by the department for such purpose. Consignment certificates may not be requested in units of less than 10 nor more than 100 certificates. In addition, the number of consignment certificates requested and the number of such certificates to be issued at any one time may not exceed 10 percent of the number of vending machines then registered by the owner or operator under article 20 of the Tax Law. Moreover, successive applications for consignment certificates will not be accepted by the department until 75 percent of the owner or operator's previous order for such certificates has been assigned to vending machines, and until the owner or operator has no more than 25 consignment certificates outstanding. Accordingly, taking into consideration the 25 consignment certificates outstanding and the maximum request for 100 certificates, a vending machine owner or operator may have no more than 125 consignment registration certificates at any given time.

(ii) Application fees of $25 for each consignment certificate must be paid in full with the filing of the application. Unless the application is denied by the department, the application fees are not refundable. However, at the time of annual renewal, any consignment certificates outstanding may be converted to new consignment certificates at no additional fee.

(iii) An application for consignment certificates may be denied, and the authority to use consignment registration certificates may be withdrawn at any time, if the owner or operator has violated any of the provisions of article 20 of the Tax Law or any rule or regulation adopted pursuant thereto.

(3) Once the vending machine owner or operator has received consignment certificates, the owner or operator is directly accountable to the department for such certificates. Immediately upon assignment of a registration certificate to a particular machine, the owner or operator must make a detailed record of such assignment as provided in subdivision (b) of this section. A copy of such records must be submitted to the department upon any request for additional consignment certificates.

(g) Construction.

Nothing in this Part nor Title shall be construed to require registration in any circumstances in which the State is without power to do so by reason of the United States Constitution or any laws enacted pursuant thereto.