283-b. Licensing of terminal operators. 1. The department of taxation and finance, upon the application of a person who operates a facility where motor fuel is deposited, shall license such person as a terminal operator under this article except as otherwise provided in this section. The application shall be in a form and contain such information as the department of taxation and finance shall prescribe. No person, unless so licensed, shall operate a terminal, except that a person may operate a terminal without a license if all of the motor fuel stored in such facility is solely for such person's own use and consumption.
2. Where a person files an application for a license under this section and in considering such application the commissioner ascertains that (a) any tax imposed under this chapter or any related statute as defined in section eighteen hundred of this chapter has been finally determined to be due from such applicant or from any officer, director or partner of such applicant, shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or any shareholder or employee of such applicant under a duty to act for such applicant in complying with any requirement of this article, and has not been paid in full, (b) a liability for the penalty provided for under subdivision two of section two hundred eighty-nine-b of this article has been finally determined to be due from an officer, director, shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, employee or partner of such applicant or a shareholder of such applicant under a duty to act for such applicant in complying with any requirement of this article, and has not been paid in full, (c) such applicant has been convicted of a crime provided for in this chapter or has been convicted under the tax laws or penal laws of any other state, or a political subdivision of this state or such other state, or of the United States of a criminal offense which, if committed and prosecuted in this state, would constitute a similar crime under this chapter, within the preceding five years, (d) an officer, director or partner of such applicant, a shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or an employee or shareholder of such applicant who, as such employee or shareholder, is under a duty to act for such applicant in complying with any requirement of this article, has been convicted of a crime provided for in this chapter or has been convicted under the tax laws or penal laws of any other state, or a political subdivision of this state or such other state, or of the United States of a criminal offense which, if committed and prosecuted in this state, would constitute a similar crime under this chapter, within the preceding five years, (e) such applicant, or an officer, director or partner of such applicant, shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or employee or shareholder of such applicant under a duty to act for such applicant in complying with any requirement of this article, who was an officer, director or partner of another person, or who directly or indirectly owned more than ten percent of the number of shares of stock of another person (where such other person is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or who was an employee or shareholder of another person under a duty to act for such other person in complying with any requirement of this article at the time any tax imposed under this chapter or any related statute as defined in section eighteen hundred of this chapter was finally determined to be due with respect from such other person and where such tax has not been paid in full, or at the time such other person was convicted of a crime provided for in this chapter or has been convicted under the tax laws or penal laws of any other state, or a political subdivision of this state or such other state, or of the United States of a criminal offense which, if committed and prosecuted in this state, would constitute a similar crime under this chapter, within the preceding five years, or at the time the registration of such other person was cancelled or suspended pursuant to subdivision four of this section within the preceding five years, or at the time such other person committed any of the acts or omissions which are, or was convicted as, specified in subdivision four of this section within the preceding five years, provided, however, where an applicant or such officer, director, partner, shareholder or employee of such applicant was only an employee of another person, the applicable examination of tax payment history of such other person shall be limited to the taxes imposed by this article or by or pursuant to article twenty-eight or twenty-nine of this chapter with respect to motor fuel and the applicable examination of prior criminal convictions shall be limited to those which relate to motor fuel, (f) the license of such applicant or of an officer, director or partner of such applicant, shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or employee or shareholder of such applicant under a duty to act for such applicant in complying with any requirement of this article has been cancelled or suspended pursuant to subdivision four of this section within the preceding five years, or (g) the applicant, an officer, director or partner of the applicant, a shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such applicant (where such applicant is a corporation) entitling the holder thereof to vote for the election of directors or trustees, or an employee or shareholder of such applicant under a duty to act for such applicant in complying with any requirement of this article, has committed any of the acts or omissions which are, or was convicted as, specified in subdivision four of this section within the preceding five years, the commissioner may refuse to grant such applicant a license.
3. The tax commission may require a terminal operator to file with the department of taxation and finance a bond issued by a surety company approved by the superintendent of financial services as to solvency and responsibility and authorized to transact business in this state or other security acceptable to the tax commission, in such amount as the tax commission may fix, in an amount determined in accordance with rules and regulations prescribed by it, to secure the performance by such terminal operator of the duties and responsibilities required (i) pursuant to this article and (ii) pursuant to articles twenty-eight and twenty-nine of this chapter with respect to motor fuel. The tax commission may require that such a bond or other security be filed before a terminal operator is licensed, and the amount thereof may be increased at any time when in its judgment the same is necessary. If securities are deposited as security under this subdivision, such securities shall be kept in the joint custody of the comptroller and the commissioner of taxation and finance and may be sold by the tax commission if it becomes necessary so to do in order to recover against such terminal operator but no such sale shall be had until after such terminal operator shall have had opportunity to litigate the validity of the liability if it elects so to do. Upon any such sale the surplus, if any, above the sums due shall be returned to such terminal operator. The department, when authorized by the terminal operator, shall furnish information regarding the terminal operator's license and any other information which the terminal operator authorizes it to disclose.
4. The license of any terminal operator may be cancelled or suspended by the commissioner where a licensee, or an officer, director, shareholder, employee or partner of the registrant who as such officer, director, shareholder, employee or partner is under a duty to act for such licensee or any shareholder directly or indirectly owning more than ten percent of the number of shares of stock of the licensee (where such licensee is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such licensee, fails to file a bond or other security when required or when the amount thereof is increased, or fails to comply with any of the provisions of this article or article twenty-eight of this chapter with respect to motor fuel or any rule or regulation with respect to motor fuel adopted pursuant to such articles by the department of taxation and finance or by the commissioner or, knowingly aids and abets another person in violating any of the provisions of such articles or of any such rule or regulation with respect to motor fuel, or transfers its license as a terminal operator. A license may also be cancelled or suspended if the commissioner determines that a licensee or an officer, director, shareholder, employee or partner of the licensee who as such officer, director, shareholder, employee or partner is under a duty to act for such licensee or any shareholder directly or indirectly owning more than ten percent of the number of shares of stock of the licensee (where such licensee is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such licensee:
(i) commits fraud or deceit in his operations as a terminal operator or has committed fraud or deceit in procuring his license;
(ii) has been convicted in a court of competent jurisdiction, either within or without the state, of a felony, within the meaning of subdivision eight of section two hundred eighty-three of this article, bearing on such terminal operator's duties and obligations under this chapter;
(iii) has knowingly aided and abetted a person who is not registered as a distributor in the importation, production, refining, manufacture or compounding of motor fuel; or
(iv) has knowingly aided and abetted the distribution of motor fuel which he has knowledge of as being imported, caused to be imported, produced, refined, manufactured or compounded by a distributor who is not registered by the department of taxation and finance.
A license may also be cancelled or suspended if the commissioner determines that a licensee or an officer, director, shareholder, employee or partner of the licensee who as such officer, director, shareholder, employee or partner is under a duty to act for such licensee or any shareholder directly or indirectly owning more than ten percent of the number of shares of stock of the licensee (where such licensee is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such licensee, was an officer, director, shareholder, employee or partner of another person who as such officer, director, shareholder, employee or partner was under a duty to act for such other person or was a shareholder directly or indirectly owning more than ten percent of the number of shares of stock of such other person (where such other person is a corporation) entitling the holder thereof to vote for the election of directors or trustees of such other person at the time such other person committed any of the acts or omissions which are, or was convicted as, specified in this subdivision within the preceding five years.
5. A license shall not be cancelled or suspended nor shall an application for a license be refused unless the licensee or applicant for a license has had an opportunity for a hearing, provided, however, that an application for a license may be denied without a prior hearing. Provided, further, a license may be cancelled or suspended without a prior hearing, for failure to file a return or report within ten days of the date prescribed for filing under this article or nonpayment of any sums due pursuant to this article or article twenty-eight or twenty-nine of this chapter with respect to motor fuel if the licensee shall have failed to file such return or report or pay taxes within ten days after the date the demand therefor is sent by registered or certified mail to the address of the terminal operator given in his application for a license, or an address substituted therefor as in this subdivision. A license may be cancelled or suspended prior to a hearing for the failure to continue to maintain in full force and effect at all times the required bond or other security filed with the tax commission. Provided, however, if a surety bond is cancelled prior to expiration, the tax commission, after considering all the relevant circumstances, may make such other arrangements and require the filing of such other bond or other security as it deems appropriate. Provided, further, a license may be cancelled or suspended prior to a hearing for the transfer of such license. A terminal operator shall immediately inform the department, in writing, of any change in its address and, if the terminal operator is a corporation or partnership, the terminal operator shall immediately inform the department, in writing, of any change in its officers, directors or partners or their residence addresses as shown in its application for a license.
6. The provisions of subdivisions six, eight, nine and ten of section two hundred eighty-three of this article shall apply to the provisions of this section in the same manner and with the same force and effect as if the language of these subdivisions had been incorporated in full into this section and had expressly referred to the terminal operator's license under this section, except to the extent that any such provision is either inconsistent with a provision of this section or is not relevant to this section.
Last modified: February 3, 2019