N.Y. Comp. Codes R. & Regs. tit. 20 § 538.5

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

Section 538.5 - Rights and obligations of the Department of Taxation and Finance

Tax Law, § 1142-A(d), (e), (f), (h), (i), (j)

(a)Walkabout rules.

(1) The commissioner, any authorized employee of the department or the agent of such commissioner or department shall have the right to conduct a walkabout observation of a parking facility in the following manner and subject to the following provisions:

(i) the walkabout must be conducted during the hours that the facility is open for business;

(ii) the person conducting the walkabout must announce his or her presence at the time of arrival at the facility; and

(iii) such person must display his or her valid identification as an employee or agent to the parking facility operator or officer or employee of such parking facility operator.

(2) The commissioner, the department's authorized employee or the agent of either may:

(i) enter and walk about that portion of the parking facility where any parking service is provided;

(ii) observe and record the make, model and license plate number of any vehicle parked, entering, exiting or being operated in or at the facility and the length of time such vehicle is in or at the facility;

(iii) determine the true capacity of the parking facility;

(iv) observe and record the series of tickets or other memoranda issued, as well as those found on the vehicles in or at the facility, their beginning and ending numbers (as required to be issued pursuant to section 1142-A[b] of the Tax Law and this Part) and such other information as is found on the tickets or other memoranda, at the time of such observation or recording.

(3) The commissioner, authorized employee of the department or agent of either shall conduct such observation and recording in a manner that does not unreasonably interfere with the operation of the parking facility or the parking facility operator. When preparing to conduct a walkabout, such commissioner, employee or agent shall take into account a reasonable time period to arrive at the facility to conduct such observation and recording. For purposes of this section, reasonable time period shall mean the hours that the facility is open for business. The person conducting the walkabout shall not enter or remain at the facility except during the hours that the facility is open for business, unless the facility operator or its officer or employee gives permission to the person conducting the walkabout to enter or remain at the facility at other times.

(b) Information obtained during the walkabout may only be used:

(1) to assess, determine, fix, collect, enforce or administer any tax, fee, penalty or interest imposed on the parking facility operator under article 28 or pursuant to the authority of article 29 of the Tax Law; and

(2) in the prosecution of any crime or offense related thereto under or pursuant to the authority of article 28 or 29 of the Tax Law or the New York Penal Law where the information was obtained either as a result of a walkabout in an area where the parking facility operator had no reasonable expectation of privacy or as a result of a lawful investigative procedure other than the walkabout.

(c)

(1) The department shall furnish, on an annual basis, a copy of subdivision (d) of section 1142-A of the Tax Law, a copy of the regulation provisions adopted pursuant to such subdivision (d) and a written explanation of the power of the commissioner, the department's authorized employee or the agent of either to enter and walk about the parking facility and the limitations thereon, to each parking facility operator which registers or remains registered for purposes of section 1142-A of the Tax Law.

(2) The department shall also prepare, have printed and distribute to each parking facility operator, a poster that provides notice that the facility is subject to periodic inspections by the department for purposes of enforcing articles 28 and 29 of the Tax Law, in accordance with section 1142-A(f) of the Tax Law.

(d) The department may estimate, on the basis of external indices, the amount of tax due from a parking facility operator where such operator:

(1) fails to keep and make available any of the records required or authorized to be kept by section 1142-A of the Tax Law or this Part, in the manner provided for in such law or this Part, for any portion of the period so required; or

(2) does not cooperate with or interferes with the commissioner, any authorized employee of the department or the agent of either of them in conducting the walkabout described in this section.

(e) Nothing in this Part shall be construed to prevent the department from using or furnishing information as provided in section 1146 of the Tax Law or as otherwise provided by law.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 538.5