to the tax commission, and to keep the amount of such tax in such account until payment over to the tax commission. Such notice shall remain in effect until a notice of cancellation is given by the tax commission.

§ 82. Paragraph three of subdivision (a) of section eleven hundred thirty-eight of such law, as added by chapter seven hundred fourteen of the laws of nineteen hundred seventy-nine, is amended to read as follows: (3) (A) The liability of a purchaser, transferee or assignee of business assets sold, transferred or assigned in bulk for the payment to the state of taxes determined to be due from the seller, transferor or assignor arising under subdivision (c) of section eleven hundred forty-one of this chapter shall be finally and irrevocably fixed unless the purchaser, transferee or assignee, within ninety days after the giving of notice by the tax commission to such purchaser, transferee or assignee of the total amount of any tax or taxes which the state claims to be due from the seller, transferor or assignor, shall apply to the tax commission for a hearing or unless the tax commission, on its own motion, shall redetermine such liability. Where the tax commission determines that the amount of taxes claimed to be due from the seller, transferor or assignor is erroneous or excessive in whole or in part it shall, on behalf of the purchaser, transferee or assignee, determine the amount of tax or taxes properly due and if such amount is less than the amount of taxes for which the purchaser would have been liable in the absence of such determination it shall reduce such liability accordingly. The commission may, on its motion, abate, on behalf of the purchaser, transferee or assignee, any part of the taxes determined to be erroneous or excessive, whether or not such taxes had become finally and irrevocably fixed.

(B) The liability, pursuant to subdivision (a) of section eleven hundred thirty-three of this article, of any officer, director or employee of a corporation or of a dissolved corporation, member or employee of a partnership or employee of an individual proprietorship who as such officer, director, employee or member is under a duty to act for such corporation, partnership or individual proprietorship in complying with any requirement of this article for the tax imposed, collected or required to be collected, or for the tax required to be paid or paid over to

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commission under this article, and the amount of such tax liability (whether or not a return is filed under this article, whether or not such return when filed is incorrect or insufficient, or where the tax shown to be due on the return filed under this article has not been paid or has not been paid in full) shall be determined by the tax commission. Such determination shall finally and irrevocably fix the tax and liability for the tax with respect to such person unless such person, within ninety days after the giving of notice of such determination, shall apply to the tax commission for a hearing. The tax commission may, nevertheless, of its own motion, redetermine such determination of tax or liability for tax. Where the tax commission determines or redetermines that the amount of tax claimed to be due from a vendor of tangible personal property or services, a recipient of amusement charges, an operator of a hotel or a promoter of a show is erroneous or excessive whole or in part, it shall redetermine the amount of tax properly due from any such person as a person required to collect tax with respect to such vendor, recipient, operator or promoter, and if such amount is less than the amount of tax for which such person would have been liable in the absence of such determination or redetermination, it shall reduce such liability accordingly. Furthermore, the tax commission may, of its own motion, abate on behalf of any such person, any part of the tax determined to be erroneous or excessive whether or not such tax had become finally and irrevocably fixed with respect to such person but no claim for abatement may be filed by any such person. The provisions of this paragraph shall not be construed to limit in any manner the powers of the attorney general under subdivision (a) of section eleven hundred forty-one or the powers of the tax commission to issue a warrant under subdivision (b) of such section against any person whose liability has become finally and irrevocably fixed.

§ 83. Paragraph four of subdivision (a) of section eleven hundred thirty-eight of such law, as amended by chapter seven hundred sixty of the laws of nineteen hundred eighty-one, is amended to read as follows: (4) After the hearing provided for in paragraph one or three of this subdivision, the tax commission shall give notice promptly by registered or certified mail of its determination to the applicant. The determina

tion of the tax commission shall be reviewable for error, illegality or unconstitutionality or any other reason whatsoever by a proceeding under article seventy-eight of the civil practice law and rules if application therefor is made to the supreme court within four months after the giving of the notice of such determination. A proceeding under under article seventy-eight of the civil practice law and rules shall not be instituted unless the amount of any tax sought to be reviewed, with penalties and interest thereon, if any, shall be first deposited with the tax commission and there shall be filed with the tax commission an undertaking, issued by a surety company authorized to transact business in this state and approved by the superintendent of insurance of this state as to solvency and responsibility, in such amount as a justice of the supreme court shall approve to the effect that if such proceeding, be dismissed or the tax confirmed the petitioner will pay all costs and charges which may accrue in the prosecution of the proceeding, or at the option of the applicant such undertaking filed with the tax commission may be in a sum sufficient to cover the taxes, penalties and interest thereon stated such determination plus the costs and charges which may accrue against it in the prosecution of the proceeding, in which event the applicant shall not be required to deposit such taxes, penalties and interest as a condition precedent to the application. The preceding sentence shall not apply to a proceeding brought to review a determination made under subparagraph (B) of paragraph three of this subdivision.

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§ 84. Subdivision (b) of section eleven hundred forty-one of such law, as added by chapter ninety-three of the laws of nineteen hundred sixtyfive, is amended to read as follows:

(b) As an additional or alternate remedy, the tax commission may issue a warrant, directed to the sheriff of any county commanding him to levy upon and sell the real and personal property of any person liable for the tax, which may be found within his county, for the payment of the amount thereof, with any penalties and interest, and the cost of executing the warrant, and to return such warrant to the tax commission and to pay it the money collected by virtue thereof within sixty days after the receipt of such warrant. The sheriff shall within five days after the receipt of the warrant file with the county clerk a copy thereof, and thereupon such clerk shall enter in the judgment docket the name of the person mentioned in the warrant and the amount of the tax, penalties and interest for which the warrant is issued and the date when such copy is filed. Thereupon the amount of such warrant so docketed shall become a lien upon the title to and interest in real and personal property of the person against whom the warrant is issued. Such lien shall not apply to personal property unless such warrant is filed in the department of state. The sheriff shall then proceed upon the warrant, in the same manner, and with like effect, as that provided by law in respect to executions issued against property upon judgments of a court of record and for services in executing the warrant he shall be entitled to the same fees, which he may collect in the same manner. In the discretion of the tax commission a warrant of like terms, force and effect may be issued and directed to any officer or employee of the department of taxation and finance, and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs, but shall be entitled to no fee or compensation in excess of the actual expenses paid in the performance of such duty. [If] Upon such the filing omission of warrant is returned not satisfied ints und tax [may from time to time issue new warrants shall [also] have the same remedies to enforce the amount due thereunder as if the state had recovered judgment therefor [and execution thereon had been returned unsatisfied].

§ 85. Subdivision nine of section eleven hundred forty-two of such law, as amended by chapter fifteen of the laws of nineteen hundred eighty-three, is amended to read as follows:

9. By regulation, to set the rate of interest [to be paid pursuant to] for purposes of sections eleven hundred thirty-nine and eleven hundred forty-five. Such rate shall be the same for each such section and shall be the rate of interest prescribed in paragraph two of subsection (j) of section six hundred ninety-seven of this chapter, but not less than six percent per annum. Any rate set by the tax commission shall apply to taxes, or any portion thereof, which remain or become due or overpaid on or after the date on which such rate becomes effective and shall apply EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

only with respect to interest computed or computable for periods or portions of periods occurring in the period during which such rate is in effect. in computing the amount of any interest required to be paid under this article by the tax commission or by the taxpayer, or any other amount determined by reference to such amount of interest, such interest and such amount shall be compounded daily. The preceding sentence shall not apply for purposes of computing the amount of any interest for failure to pay estimated tax under subparagraph (iii) of paragraph one of subdivision (a) of section one thousand one hundred forty-five of this article.

§ 86. Subdivision (a) of section eleven hundred forty-five of such law, as amended by chapter two hundred eighty-seven of the laws of nineteen hundred seventy-five, paragraph one as amended by chapter one hundred fifty-five of the laws of nineteen hundred eighty-two and paragraph two as amended by chapter one hundred three of the laws of nineteen hundred eighty-one, is amended to read as follows:

(a) (1) (i) Any person failing to file a return or to pay or pay over any tax to the tax commission within the time required by or pursuant to this article (determined with regard to any extension of time for filing or paying) shall be subject to a penalty of [five] ten percent of the amount of tax due if such failure is for not more than one month, with an additional one percent for each additional month or fraction thereof during which such failure continues, not exceeding [twenty-five] thirty percent in the aggregate[; plus interest at the rate of one percent of such tax or one-twelfth of the annual rate of interest set by the tax commission pursuant to section eleven hundred forty-two, whichever is greater, for each month of delay after such return was required to be filed or such tax became due. (ii)]. Provided, however, in the case of a failure to file such return within sixty days of the date prescribed for filing of such return by or pursuant to this article (determined with regard to any extension of time for filing), the penalty imposed by this subparagraph shall not be less than the lesser of one hundred dollars or one hundred percent of the amount required to be shown as tax on such return. For the purpose of the preceding sentence, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return. In no event shall the penalty for failure to file a return be less than fifty dollars.

(ii) If any amount of tax is not paid on or before the last date prescribed in this article for payment, interest on such amount at the rate of twelve per cent per annum or at the rate set by the tax commission pursuant to section eleven hundred forty-two, whichever is greater, shall be paid for the period from such last date to the date paid, whether or not any extension of time for payment was granted. Interest under this subparagraph shall not be paid if the amount thereof is less than one dollar.

(iii) If the tax commission determines that such failure or delay was due to reasonable cause and not due to willful neglect, it shall remit all of such penalty and that portion of such interest that exceeds the interest that would be payable if such interest were computed at the rate set by the tax commission pursuant to section eleven hundred fortytwo. The tax commission shall promulgate rules and regulations as to what constitutes reasonable cause.

[(iii)] (iv) Provided, however, in the case of a long-form, partquarterly return, no penalty or interest shall be payable with respect to a return and payment of estimated tax required to be filed and paid under subdivisions (a) and (b) of section eleven hundred thirty-seven-A for March, nineteen hundred seventy-six, nineteen hundred seventy-seven, nineteen hundred seventy-eight, nineteen hundred seventy-nine, nineteen hundred eighty, nineteen hundred eighty-one and nineteen hundred eightytwo, if such returns are timely filed, accompanied by a payment of not less than ninety percent of the tax as finally determined to be due and payable for March, nineteen hundred seventy-six, nineteen hundred seventy-seven, nineteen hundred seventy-eight, nineteen hundred seventynine, nineteen hundred eighty, nineteen hundred eighty-one and nineteen hundred eighty-two. Provided, further, that interest, at the rate authorized under subdivision nine of section eleven hundred forty-two, shall be payable upon the amount of any underpayment of the tax due with the returns due on March twentieth, nineteen hundred seventy-six, nineteen hundred seventy-seven, nineteen hundred seventy-eight, nineteen hundred seventy-nine, nineteen hundred eighty, nineteen hundred eighty

one and nineteen hundred eighty-two, for the period of such underpayment, but not beyond the due date of the next part-quarterly return. [(iv)] (v) Provided, further, in the case of a March estimated return, no penalty or interest shall be payable with respect

to a return and payment of estimated tax required to be filed and paid under subdivision (c) of section eleven hundred thirty-seven-A for March, nineteen hundred eighty-three and each subsequent March, if such returns are timely filed, accompanied by a payment of either: (A) not less than ninety percent of the tax as finally determined to be due and payable for the month of March in which the March estimated tax return is required to be filed; or (B) in the event such person has had at least four successive quarterly tax periods immediately preceding the March twentieth for which the return is to be filed, at least one-third of the sales and compensating use taxes payable by such person to the tax commission in the comparable quarter of the immediately preceding year. However, where interest is payable because of a failure to meet the requirements of either clause (A) or (B) of this subparagraph such interest shall be at the rate authorized under subdivision nine of section eleven hundred forty-two upon any underpayment of the amount of tax due for the period of such underpayment, but not beyond the due date of the next partquarterly return. For purposes of this subparagraph, the underpayment of the amount of tax due shall be: (A) the difference between the amount paid and ninety percent of the amount finally determined to be due and payable for March, nineteen hundred eighty-three and for March of each subsequent year, or (B) if such person has had at least four successive quarterly tax periods immediately preceding the March for which the return was filed, the difference between the amount paid and one-third of the sales and compensating use taxes payable by such person to the tax commission for the comparable quarter of the immediately preceding year under this article, whichever is less. Notwithstanding the preceding sentence, for purposes of this subparagraph: (1) the tax as finally determined to be due and payable for such month of March, and (2) the sales and compensating use taxes payable for the comparable quarter of the immediately preceding year; shall not include taxes imposed by section eleven hundred seven or eleven hundred eight of this article or pursuant to the authority of article twenty-nine of this chapter. Provided, however, all other provisions of this article shall apply in the determination of such taxes.

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(vi) Any person required by this article to file a return, who omits from the total amount of state and local sales and Compensating taxes required to be shown on a return an amount which is in excess of twenty-five percent of the amount of such taxes required to be shown the return shall be subject to a penalty equal to ten percent of the amount of such omission. The amount of the omission under the preceding sentence shall be reduced by that portion of the omission which is attributable to the tax treatment of any item by such person if there is or was substantial authority for such treatment, or any item with respect to which the relevant facts affecting the item's tax treatment are adequately disclosed in the return or in a statement attached to the return. If the tax commission determines that such omission was due to reasonable cause and not due to willful neglect, it shall remit all of such penalty. The penalty provided for in this subparagraph shall not apply to any return of estimated tax required to be filed under section eleven hundred thirty-seven-A.

(2) If the failure to [file a return or to] pay or pay over any tax to the tax commission within the time required by this article is due to fraud, in lieu of the penalties and interest provided for in subparagraphs (i) and (ii) of paragraph one of this subdivision, there shall be added to the tax (1) a penalty of fifty percent of the amount of the tax due [(in lieu of the penalty provided for in subparagraph (i) of paragraph one)], plus (ii) interest on such unpaid tax at the rate of [one] twelve percent [of such tax] or [one-twelfth of] the rate of interest set by the tax commission pursuant to section eleven hundred forty-two, whichever is greater, for [each month of delay after such return was required to be filed or such tax became due] the period beginning on the last day prescribed by this article for the payment of such tax (determined without regard to any extension of time for paying) and ending on the day on which such tax is paid, plus (iii) for the period beginning on the last day prescribed by this article for the payment of EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

such tax (determined without regard to any extension of time for paying) and ending on the day the amount of tax due is finally determined or, if earlier, on the day on which such tax is paid, an amount equal to fifty percent of the interest payable under subparagraph (ii) of this paragraph, on that portion of the unpaid tax which is attributable to fraud. (3) [Such] (1) Any Any person required to obtain a certificate of authority under section eleven hundred thirty-four who, without possessing a valid certificate of authority, (A) sells tangible personal property or services subject to tax, receives amusement charges or operates a hotel, (B) purchases or sells tangible personal property for resale, or (C) sells automotive fuel, shall, in addition to any other penalty imposed by this chapter, be subject to a penalty in an amount not exceeding five hundred dollars for the first day on which such sales or purchases are made, plus an amount not exceeding two hundred dollars for each subsequent day on which such sales or purchases are made, not to exceed ten thousand dollars in the aggregate.

(ii) Any person who fails to surrender a certificate of authority when a notice of revocation or suspension has become final shall, in addition to any other penalty imposed by this chapter, be subject to a penalty in an amount not exceeding five hundred dollars for the first day of such failure, together with a penalty in an amount not exceeding two hundred dollars for each subsequent day of such failure, not to exceed ten thousand dollars in the aggregate.

(iii) Any person described in paragraph one or two of subdivision (a) of section eleven hundred thirty-four who takes possession of or pays

for business assets under circumstances requiring notification by such person to the tax commission pursuant to subdivision (c) of section eleven hundred forty-one without having filed a certificate of registration pursuant to section eleven hundred thirty-four shall, in addition to any other penalty imposed by this chapter, be subject to a penalty in an amount not exceeding two hundred dollars.

(iv) If the tax commission determines that any failure or act described in this paragraph was due to reasonable cause and not due to willful neglect, it may remit all or part of such penalty.

(4) Any person required by this article to display a certificate of authority, who fails to display such certificate in the manner required by this article or any rule or regulation adopted by the tax commission in connection with such requirement shall, in addition to any other penalty imposed by this chapter, be subject to a penalty of fifty dollars. If the tax commission determines that such failure was due to reasonable cause and not due to willful neglect, it may remit all or part of such penalty.

(5) Any person who issues a false or fraudulent resale or other exemption certificate or document with intent to evade tax shall, in addition to any other penalty imposed by this chapter, be subject to a penalty of one hundred percent of the tax that would have been due had there not been a misuse of such certificate or document and a penalty of fifty dollars for each such certificate or document.

(6) The tax commission shall promulgate rules and regulations as to what constitutes reasonable cause for purposes of this subdivision.

(7) The penalties and interest provided for in this subdivision shall be paid and disposed of in the same manner as other revenues from this article. [Unpaid] Such penalties and interest may be determined, assessed, collected and enforced in the same manner as the tax imposed by this article. Interest under this subdivision shall be compounded daily. § 87. Subdivision (a) of section eleven hundred forty-six of such law, as amended by chapter seven hundred fourteen of the laws of nineteen hundred seventy-nine, is amended to read as follows:

(a) Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the tax commission, any tax commissioner, any officer or employee of the department of taxation and finance, any person engaged or retained by such department on an independent contract basis, or any person who in any manner may acquire knowledge of the contents of a return or report filed with the tax commission pursuant to this article, to divulge or make known in any manner any particulars set forth or disclosed in any such return or report. The officers charged with the custody of such returns and reports shall not be required to produce any of them or evidence of anything contained in them in any action or proceeding in any court, except on behalf of the tax commission in an action or proceeding under the provisions of the tax law or in any other action or proceeding involving the collection of a tax due under this chapter to which the state or the tax com