N.Y. Comp. Codes R. & Regs. tit. 20 § 473.8

Current through Register Vol. 46, No. 25, June 18, 2024

Section 473.8 - Lessee as carrier

Tax Law, § 501(5)

(a) Many motor vehicles subject to the provisions of article 21 of the Tax Law are leased to others for varying periods of time. There immediately arises the question of whether the owner or the lessee of the motor vehicle should obtain the permit.

(b) Under the law every lessee having direct control of a motor vehicle is a carrier thereof. However, to avoid the issuance of numerous permits for the same motor vehicle, if the owner has already secured a permit for a particular vehicle, a lessee under a lease for 30 days or less may, but is not required to, obtain a permit. Therefore, only a lessee under a lease or agreement covering a period of more than 30 consecutive days is required to obtain a permit; provided, however, that if such vehicle is not to be operated in this State for more than 10 days during such period, such lessee need not obtain a permit if a permit has been issued to the owner.

(c) Where an owner has secured a permit for a vehicle, a lessee of such vehicle under a lease for an indefinite period of time is not required to obtain a permit unless the lease extends beyond 30 days. Where a lessee obtains the permit such permit is valid only during the term of the lease.

Example 1:

If A, the owner of the motor vehicle, leases it to B for a two-week period, either A or B may obtain the permit. If B obtains the permit, it is only valid for two weeks.

Example 2:

If C rents a motor vehicle to D on a trip-lease basis, C should obtain the permit. However, D may obtain the permit, in which event such permit is only valid for the one trip.

Example 3:

If E leases a motor vehicle from F under a lease or agreement giving him direct control thereof for a period of six months, E must obtain the permit even though a permit had previously been issued to F.

(d) A lessee is deemed to have direct control of a motor vehicle if he is actually in control of the operation of the vehicle. A lessee is generally in control of the operations where an employer-employee relationship exists between the lessee and the driver of the vehicle.

(e) The following are some tests for determining whether an employer-employee relationship exists:

(1) The lessee has the right to hire and discharge the driver.

(2) The lessee pays the driver's wages and further pays all State and Federal unemployment insurance taxes, old age pensions, social security taxes, and provides workers' compensation coverage.

(3) The lessee has the right to supervise the driver and direct the manner of his operation of the motor vehicle.

(f) Such supervision and direction over the driver exists where the lessee has the right to control the driver in some or all of the following respects:

(1) requiring physical examination of the driver;

(2) requiring the driver to keep logs and file daily reports;

(3) requiring the driver to submit explanations of delay and details of expense;

(4) requiring the driver to observe the statutes and regulations of the various commissions, such as the Interstate Commerce Commission and the State Department of Transportation;

(5) supervision over the hours of work;

(6) inspection and maintenance of equipment;

(7) supervision over the methods of handling shipments, if any;

(8) checking the time of the driver; and/or

(9) prescribing schedules and routes to be followed and the speed at which the motor vehicle is to be driven.

(g) Where a lessee merely has the right to instruct the driver with respect to the destination of the motor vehicle, the lessee would not generally be considered to have the right of direction and supervision over the driver.

(h) It should be observed that an employer-employee relationship may exist where the lessee has the right to exercise supervision and direction over the driver of the motor vehicle, even though he may not exercise that right.

Example:

A leases a motor vehicle for more than 30 days from B under an agreement providing that B is to furnish a driver who will be paid by A and who is subject to supervision by A. Although A has the right to supervise the driver's operation of the motor vehicle, at times the driver selects his own routes and his own hours of driving. A nevertheless has direct control of the motor vehicle.

(i) The foregoing tests for determining direct control also apply to a motor vehicle leased from an owner-operator who reserves the right to either drive the motor vehicle himself or hires others to drive it. Thus, an owner-operator or a driver hired by him may be an employee of the lessee depending upon the lessee's right of control over the driver. However, when the lessee's control in such a case relates only to instructions as to the destination of the motor vehicle and the owner-operator retains control of the driver and the details of the driver's performance, the owner-operator may be deemed to have direct control, requiring him to obtain the permit.

(j) The application of the above provisions will necessarily result in borderline cases. Whether the degree of control necessary to establish an employer-employee relationship is present in any given case will depend upon the particular facts.

Example 1:

A leases a motor vehicle from B without a driver for more than 30 consecutive days. A has direct control of the motor vehicle and must obtain the permit.

Example 2:

C leases a motor vehicle from D for more than 30 consecutive days, and the motor vehicle is operated by an employee of C selected by C and carried on C's payroll. D agrees to reimburse C for wages paid. C has direct control of the motor vehicle and must obtain the permit.

Example 3:

E leases a motor vehicle from F for more than 30 consecutive days and it is registered in E's name. F drives the motor vehicle as an employee of E and is carried on E's payroll. E has direct control of the motor vehicle and must obtain the permit.

Example 4:

G enters into an agreement with H to deliver its products. G merely indicates to H where deliveries are to be made. G is not in direct control of the motor vehicle operated by H. H therefore must obtain the permit.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 473.8