N.Y. Comp. Codes R. & Regs. tit. 23 § 600.8

Current through Register Vol. 46, No. 43, October 23, 2024

Section 600.8 - Sales-based financing-historical method

(a) This section shall apply only to sales-based financing utilizing the "historical method" as described in Financial Services Law section 803.

(b) With respect to any assumptions about a recipient's future monthly sales necessary to calculate the disclosures required by this Part, a provider shall use the "estimated monthly sales projection" described below:

(1) the estimated monthly sales projection shall be calculated as the recipient's historical average of:

(i) the monthly sales, income or receipts volume received through the particular payment channel or mechanism; and

(ii) the monthly sales received through any other payment channel or mechanism that the financing contract would have required recipients to redirect to the particular payment channel or mechanism had the financing contract been operative previously;

(2) for all transactions, or by recipient industry or financing amount (or both), a provider shall fix the historical time period used to calculate the average historical sales, income, or receipts and use such period for all disclosure purposes for all sales-based financing products offered. The fixed historical time period shall either be the preceding time period from the specific offer or, alternatively, the provider may use average sales for the same number of months with the highest sales volume within the past twelve months. The fixed historical time period shall be no less than four months and no more than twelve months;

(3) when a recipient has not been in operation for twelve months, the provider may calculate the recipient's historical average sales volume, income, or receipts using an average from the months the recipient has been in operation;

(4) a provider may exclude from the average calculation required by subdivision (b)(1) of this section:

(i) the monthly sales from any month that is less than the average monthly sales of the months required to be considered under subdivisions (b)(2) and (b)(3) of this section if the provider determines that the decreased monthly sales in that month arose from a cause that is unlikely to recur (such as a natural disaster or uncommon business interruption) during performance of the contract. A provider shall have no liability if it declines to make this optional exclusion;

(ii) the monthly sales from any month for which the recipient has failed to provide documentation of average monthly sales following the provider's request; and

(iii) the monthly sales from any number of months at the beginning of the period (starting with the oldest month) set by the provider under paragraph (2) of this subdivision, if the provider does not require and receive monthly sales documentation from those months from the recipient;

(5) in addition to the months considered pursuant to paragraph (2) of this subdivision, a provider may include in its average calculation all or none of the additional months for which the recipient has provided sales documentation, excluding any months in which the recipient was not in operation; and

(6) when a provider fixes the number of months it will consider pursuant to section 600.8(b)(2) or section 600.8(b)(3) of this Part, the provider shall record this decision in an internal document that includes the effective date of the provider's decision. If the provider modifies the months fixed pursuant to section 600.8(b)(2) or section 600.8(b)(3) of this Part, the provider shall create a new version of the document required by section 600.6 of this Part. The provider shall maintain a copy of every version of the document while it is in effect and for a period of four years thereafter.

(c) If a provider must make additional estimates or assumptions other than a recipient's estimated monthly sales projection to provide disclosures required by this Part, the provider shall:

(1) base those estimates or assumptions on the best information reasonably available to the provider at the time of the disclosure;

(2) state clearly that any disclosure based upon an estimate or assumption is an "estimate" by adding the word "estimate" to the descriptive language of any required disclosure under this Part; and

(3) state clearly any assumptions or estimates used as the basis for the disclosure in any description associated with the disclosure.

N.Y. Comp. Codes R. & Regs. Tit. 23 § 600.8

Adopted New York State Register February 1, 2023/Volume XLV, Issue 05, eff. 2/1/2023