Sec. 417.6. Cancellation or suspension of a license as an importing transporter

Tax Law, § 283-a(4), (5)

(a) The license of any importing transporter, in the circumstances described herein, may be cancelled or suspended by the Department of Taxation and Finance pursuant to the provisions of this section. A determination as to whether a license should be cancelled or suspended and the duration of suspension will be made by the department on the basis of the circumstances in each case. The department may, in its discretion, continue such license upon such terms and conditions as it may deem necessary in protection of the revenues under articles 12-A, 28 and 29 of the Tax Law.

(b)

(1) Generally, a license will not be cancelled nor suspended unless the licensee has had an opportunity for a hearing. (See subdivision [c] of this section for exceptions.) A license as an importing transporter may be cancelled or suspended upon a licensee's:

(i) failure to file a bond or deposit acceptable security (or increase the amounts thereof) as required by the Department of Taxation and Finance;

(ii) failure to comply with any of the provisions of article 12-A of the Tax Law or article 28 of such law with respect to motor fuel, or any rule or regulation pursuant to article 12-A of the Tax Law or article 28 of such law in respect to motor fuel; or

(iii) upon a licensee's knowingly aiding and abetting another person in violating any of the provisions of such articles or of such rules or regulations in respect to motor fuel.

(2)

(i) A license as an importing transporter may also be cancelled or suspended if it is determined that the licensee or an officer, director, shareholder, employee or partner of the licensee who as such is under a duty to act for such licensee:

(a) commits fraud or deceit in operating as an importing transporter or has committed fraud or deceit in procuring a license as an importing transporter;

(b) has been convicted in a court of competent jurisdiction, either within or without the State of New York, of a felony, bearing on such transporter's duties and obligations under any article of the Tax Law;

(c) has knowingly aided and abetted a person, who is not registered as a distributor, in the importation, production, refining, manufacturing or compounding of motor fuel into or within New York State; or

(d) has knowingly aided and abetted the distribution of motor fuel imported or caused to be imported into or produced, refined, manufactured or compounded within New York State by a person who is not registered as a distributor of motor fuel pursuant to article 12-A of the Tax Law.

(ii)

(a) A felony for purposes of clause (i)(b) of this paragraph includes the conviction of a felony by any court in this State, the United States or any other state of the United States. Provided, however, if a crime of which a person is convicted by any such court, other than a court in this State, is a felony in such jurisdiction of conviction but is not a felony in the State of New York, the conviction is not deemed a conviction of a felony for purposes of article 12-A of the Tax Law. Conversely, in the event that a crime of which a person is convicted by any such court, other than a court in this State, is not a felony in such jurisdiction of conviction but is a felony in New York State, the conviction is deemed a conviction of a felony for purposes of article 12-A.

(b) If a conviction of a felony is subsequently set aside or reversed upon appeal and the accused is acquitted or discharged, any license as an importing transporter which was cancelled or suspended based on such conviction may be restored upon application to the Department of Taxation and Finance. In addition, if a person is convicted of a crime, hereby deemed to be a felony, and such person is subsequently pardoned by the governor of the state of conviction or by the President of the United States, or if such person receives a certificate of good conduct granted by the Board of Parole pursuant to the provisions of the Executive Law for purpose of removing the disability because of such conviction, the department may, in its discretion, on application and submission of satisfactory evidence of good moral character and suitability relicense the person as an importing transporter.

(c)

(1) A license as an importing transporter may be cancelled or suspended without a prior hearing for failure to file, within 10 days after the date prescribed for filing, a return or report under article 12-A of the Tax Law, or for nonpayment of any sums due pursuant to article 12-A and articles 28 and 29 with respect to motor fuel, if such returns or reports have not been filed and/or such taxes paid 10 days after the date a demand therefor is sent by registered or certified mail to the importing transporter at the address given in such transporter's application for license (as same may have been amended in accordance with section 417.5 [a] of this Part).

(2) A license as an importing transporter may be cancelled or suspended prior to a hearing for failure to continue to maintain in full force and effect at all times the bond or other security required to be filed with the Department of Taxation and Finance. If, however, a surety bond is cancelled prior to its expiration, the department, after considering all relevant circumstances, may make such other arrangements and require the filing of such other bond or acceptable security as it deems appropriate.

(3) A license as an importing transporter may also be cancelled or suspended prior to a hearing if such license is transferred without written approval of the Department of Taxation and Finance.