N.Y. Comp. Codes R. & Regs. tit. 20 § 411.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 411.1 - Registration of distributors

Tax Law, § 283(1), (3), (5)

(a) Any person who or which imports or causes to be imported into this State motor fuel for use, distribution, storage or sale within this State, or who or which produces, refines, manufactures or compounds motor fuel within this State is a distributor and must be registered with the Department of Taxation and Finance as a distributor of motor fuels. Unless so registered, no person may (1) import motor fuel or cause motor fuel to be imported into New York State for use, distribution, storage or sale within the State; or (2) produce, refine, manufacture or compound motor fuel in this State. Further, no distributor unless so registered may make any sale, transfer, use or other disposition of motor fuel within the State, except a sale, transfer, use or other disposition, if any, as to which the State cannot require registration as a prerequisite by reason of the United States Constitution and any laws enacted pursuant thereto.

(b) Before any person may be registered as a distributor of motor fuel, such person must submit to the department:

(1) a completed application for registration as a distributor of motor fuel (form TP-128.3);

(2) current unqualified financial statements certified by a certified public accountant pursuant to an audit conducted by such accountant; and

(3) an estimate of the monthly number of gallons of motor fuel expected to be:

(i) imported or caused to be imported into the State for use, distribution, storage or sale within the State;

(ii) produced, refined, manufactured or compounded within the State; and

(iii) sold, transferred, used or otherwise distributed within the State.

(c) The department (in order to protect article 12-A-revenues, and articles 28 and 29-revenues with respect to motor fuel) will periodically review the financial status of registered distributors and may, at any time subsequent to registration of any person as a distributor, require any such distributor to submit to the department:

(1) completed motor fuel distributor informational reports; and

(2) current unqualified financial statements certified by a certified public accountant pursuant to an audit conducted by such accountant.

(d)

(1)Current unqualified financial statements as used in this Part means unqualified financial statements for a 12-month period of time ended not more than 18 months prior to the date such statements are submitted to the department. Where such unqualified financial statements are for a period ended more than six months prior to the date of submission, in addition to such unqualified financial statements, interim financial statements (on a monthly, quarterly or yearly basis) must be submitted to the department for a period of time ending within such six-month period. All financial statements submitted to the department must reflect the individual activities of the applicant or of the distributor, as the case may be. Where an unqualified certification is applicable to a consolidated group of entities, the financial spreadsheets upon which the certification was based, together with an analysis of all intercompany accounts, must also be provided.

(2) Generally, if an applicant or distributor fails to supply current unqualified financial statements as required by subdivisions (b) and (c) of this section, the applicant will not be registered or such distributor's registration will be cancelled. However, on petition, either through the hearing process or on the motion of the department, the requirement of submitting unqualified financial statements may be waived. If such requirement is waived, the applicant or distributor will be required to file a bond or deposit acceptable security in such amount as is deemed appropriate, regardless of the net worth or financial status of the applicant or distributor.

(e)

(1) A distributor must immediately inform the Department of Taxation and Finance, in writing, of any change in its address. Additionally, a distributor which is a corporation or a partnership must immediately inform the department, in writing, of any changes in such distributor's officers, directors or partners or any changes in such persons' addresses as shown in the distributor's application for registration.

(2) When shares of stock are acquired by any person such that a distributor which had four or fewer shareholders owning or controlling, directly or indirectly, the voting stock of such distributor upon such acquisition has more than four shareholders so owning or controlling such stock, the distributor must immediately file a notification of such acquisitions with the department. However, if in any such acquisitions, a person not previously owning or controlling, directly or indirectly, more than 10 percent of the shares of voting stock of such distributor acquires shares of stock such that the person owns or controls, directly or indirectly, more than 10 percent of the shares of voting stock of such distributor, such acquisition is a transfer of registration subject to the provisions of section 411.8 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 411.1