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ARTICLE 3 ENTERTAINMENT SURCHARGE
§ 5-79.0
Definitions. When used in this article the following words shall have the meanings herein
indicated:
1. "Comptroller." The Comptroller of the County.
2. "County." The County of Nassau.
3. "Entertainment." All forms of commercial and/or professional entertainment, including, but not limited
to, concerts, professional athletic events, theatrical or operatic performances, and trade shows.
4. "Event." Any discrete event of entertainment for which a ticket is required for admission or attendance,
including, but not limited to the following: a concert, professional athletic game, contest, meet or event,
receiver, trustee, assignee, referee or any other person acting in a fiduciary or representative capacity,
whether appointed by a court or otherwise, and any combination of individuals.
8. "Ticket." The right of admission to or attendance at an event for an individual, whether or not such right
is evidenced by a ticket. Tickets entitling more than one individual to be admitted or to attend an event
shall be counted as one ticket for each individual. Season tickets or other tickets permitting admission
to or attendance at more than one event shall be counted as one ticket for each such event. Tickets
permitting admission to or attendance at a single event lasting longer than twenty-four consecutive
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hours shall be counted as one ticket for each day or portion thereof during which attendance is
permitted. To be considered a ticket, the right of admission to or attendance at an event must be
obtained by a person in exchange for consideration, which includes monetary consideration, exchange,
barter, the rendering of any service or any agreement therefore.
9. "Treasurer." The treasurer of the County or any duly authorized representative of the treasurer.
§ 5-92.0
Imposition or tax.
a. A tax, to be known as an entertainment surcharge, is hereby imposed on every facility at the rate of one
dollar and fifty cents on every ticket.
b. The tax imposed hereunder shall not apply to events sponsored by colleges or universities or to
amateur athletic competitions, provided that no event otherwise taxable shall be exempted from the
entertainment surcharge solely because of the inclusion in such event of an amateur athletic contest
and/or the participation with others by a college or university in the sponsorship of such event.
c. The tax imposed hereunder shall be in addition to any and all other taxes. It shall be imposed only
once on each ticket.
d. It is intended that the liability for the tax shall be upon the operator. The operator shall have the right to
add the amount of the entertainment surcharge to and collect the same as part of the sales price of any
ticket, but failure to do so shall not excuse payment of the tax. It shall be presumed that all tickets are
subject to tax until the contrary is established, and the burden of proof that a ticket is not taxable
hereunder shall be upon the operator.
§ 5-93.0
Exemptions. The following organizations are exempt from the entertainment surcharge:
a. The State of New York, or any of its agencies, instrumentalities, public corporations (including a public
corporation created pursuant to agreement or compact with another state or Canada) or political
subdivisions where it is the purchaser, user or consumer;
b. The United States of America, and any of its agencies and instrumentalities insofar as it is immune from
taxation where it is the purchaser, user or consumer;
c. The United Nations or other international organizations of which the United States of America is a
member; and
d. Any corporation, or association, or trust, or community chest, fund or foundation, organized and
operated exclusively for religious, charitable, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to the benefit of any private
shareholder or individual, and no substantial part of the activities of which is carrying on propaganda, or
otherwise attempting to influence legislation; provided however, that this subdivision shall not apply to
an organization operated for the primary purpose of carrying on a trade or business for profit, whether
or not all of its profits are payable to one or more organizations described in this subdivision.
§ 5-94.0
Returns and payments; overpayments and underpayments.
a. Every operator of an event whose receipts from the sale of tickets total $300,000 or more in any quarter
of the preceding four quarters must file with the Treasurer, on or before the 20th day of each month, a
return showing the amount of all sales of tickets during the preceding month.
b. Every other operator shall file with the Treasurer, on a quarterly basis, a return showing the amount of
sales of tickets during the preceding calendar quarter. A quarterly return shall be filed on or before the
20
th day of the month following the end of the calendar quarter.
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c. For the period through September 30, 2001, operators will determine their reporting cycle (monthly or
quarterly) based on receipts from the sale of tickets for periods prior to the effective date of the
entertainment surcharge as if the entertainment surcharge had been in effect.
d. Each return must be accompanied by the amount of tax, payable to the Treasurer, which is due with
respect to sales of tickets occurring during the month or calendar quarter covered by the return.
e. The Treasurer will prescribe the form of the return and accompanying instructions. The return must
show:
1. the name, address, federal employer identification number, and type of business of the operator;
2. for each event: the date, the number of tickets sold, the turnstile attendance, the name and location
of the facility, the gross receipts from the sale of tickets, and the amount of tax due;
3. any credits claimed for tickets that are refunded;
4. for any event or sale of tickets that are exempt from tax: the date of the event, the number of tickets
sold that are exempt, and the basis for the exemption;
5. penalties and interest, if any, and total amount due;
6. the signature of the operator or officer or employee of the operator signing the return and the
individual's title;
7. the signature and address of the preparer, if other than the operator; and
8. the date prepared.
f. If the amount of tax required to be reported and paid is later determined to be greater or less than the
amount actually reported and paid, the Treasurer shall:
1. Charge and collect from the operator the additional tax determined to be due, with interest and
penalties, if any, thereon until paid; or
2. Refund any overpayment to the person entitled thereto pursuant to the regulations, without interest.
§ 5-95.0
Records to be kept; examination.
a. All operators and all other vendors of tickets and sponsors of events held within the County shall
maintain and keep for a period of three years such records of tickets received, sold, collected, canceled
or delivered as may be required by the Treasurer.
b. The Treasurer and the Comptroller are hereby authorized to examine the books, papers, invoices and
other records of any operator or other vendor of tickets or sponsor of events held within the County. To
verify the accuracy of the tax imposed and assessed by Local Law, each such person is hereby
directed and required to give to the Treasurer and the Comptroller, the means, facilities and opportunity
for such examinations as are herein provided for and required.
c. The Treasurer shall investigate any failure to pay the tax required by Local Law or any other failure to
comply with Local Law or the rules or regulations promulgated hereunder, and shall take the necessary
steps to enforce compliance therewith.
§ 5-96.0
General powers of the Treasurer. In addition to the powers granted to the Treasurer in Article
29 of the New York State Tax Law, he is authorized and empowered pursuant to Local Law:
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1. To delegate his functions hereunder to a deputy treasurer or other employee or employees of his
department, and, with the consent of the Comptroller, to the Comptroller or any of his employees;
2. To promulgate rules and regulations for the interpretation, administration and enforcement of this
article;
3. To extend, for cause shown, the time of filing any return for a period not exceeding thirty days; and
4. To retain consultants, agents and counsel to assist in his duties hereunder;
§ 5-97.0
Administration of oaths and compelling testimony.
a. The Treasurer and the employees or agents duly designated and authorized by the Treasurer shall
have power to administer oaths and take affidavits in relation to any matter or proceeding in the
exercise of their powers and duties under Local Law and these regulations. The Treasurer shall have
power to subpoena and require the attendance of witnesses and the production of books, papers and
documents to secure information pertinent to the performance of the duties of the Treasurer hereunder
and of the enforcement of Local Law and these regulations, and to examine them in relation thereto,
and to issue commissions for the examination of witnesses who are out of the state, or unable to attend
before the Treasurer, or excused from attendance.
b. A justice of the supreme court, either in court or in chambers, shall have power summarily to enforce by
proper proceedings the attendance and testimony of witnesses and the production and examination of
books, papers and documents called for by the subpoena of the Treasurer.
c. Any person who shall refuse to testify or to produce books or records or who shall testify falsely in any
matter pending before the Treasurer hereunder shall be guilty of a misdemeanor, punishment for which
shall be a fine of not more than one thousand dollars or imprisonment for not more than one year, or
both such fine and imprisonment.
d. The officers who serve the summons or subpoena of the Treasurer and witnesses attending in
response thereto shall be entitled to the same fees as are allowed to officers and witnesses in civil
cases in courts of record, except as herein otherwise provided. Such officers shall be the County
sheriff and the County sheriff’s duly appointed deputies.
§ 5-98.0
Determination of tax. If any person fails to pay the tax, or to file a return required by Local Law
and these regulations, or if a return, when filed, is insufficient and the maker fails to file a corrected or sufficient
return within ten days after, the same may be required by notice from the Treasurer. The Treasurer shall
determine the amount of tax due from such information as may be obtainable or on the basis of external
indices, such as the number of tickets purchased, sold, collected, canceled or on hand, the volume of
attendance at similar events and/or other factors. Notice of such determination shall be given to the person
liable for the payment of the tax. Such determination shall finally and irrevocably fix the tax unless the person
against whom it is assessed shall, within thirty days of the giving or such notice, apply to the Treasurer for a
hearing on such determination, or unless the Treasurer shall of his own motion redetermine such tax. After
such hearing the Treasurer shall give notice of his decision to the person liable for the tax.
§ 5-99.0
Judicial review. Any final determination of the amount of any tax payable pursuant to Local Law
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 therefore is made to the supreme
court within four months after the giving of the notice of such final determination, provided however, that any
such proceeding under article seventy-eight of the Civil Practice Law and Rules shall not be instituted by a
taxpayer unless (I) the amount of any tax sought to be reviewed, with such interest and penalties thereon as
may be provided for by local law, ordinance, resolution or regulation, shall be first deposited and there is filed
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
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taxpayer will pay all costs and charges which may accrue in the prosecution of such proceeding or (II) at the
option of the taxpayer, such undertaking may be in a sum sufficient to cover the taxes, interest and penalties
stated in such determination, plus the costs and charges which may accrue against such taxpayer shall not be
required to pay such taxes, interest or penalties as a condition precedent to the application.
§ 5-100.0
Refunds. The Treasurer shall refund any tax, interest or penalty erroneously, illegally or
unconstitutionally collected or paid. No refund shall be granted unless application to the Treasurer therefore is
made within one hundred eighty days from the payment thereof. Whenever a refund is authorized by the
Treasurer and made by the Treasurer, on the Treasurer's own initiative or after a hearing by the Treasurer, the
Treasurer shall state his reasons for the refund in writing. A person shall not be entitled to a hearing in
connection with such application for a refund if he has already had a hearing or had been given the opportunity
of a hearing as provided in these regulations. No refund shall be made of a tax, interest or penalty paid
pursuant to a determination of the Treasurer, unless the Treasurer, after a hearing as in the above section
provided on forms on motion, shall have reduced the tax or penalty, or it shall have been established in a
proceeding, pursuant to article seventy-eight of the Civil Practice Law and Rules, that such determination was
erroneous, illegal, unconstitutional or otherwise improper, in which event a refund without interest shall be
made as provided upon the determination of such proceeding. An application to the Treasurer for a refund
made as herein provided shall be deemed an application for a revision of any tax, interest or penalty
complained of and the Treasurer shall receive evidence with respect thereto. After making his determination
the Treasurer shall give notice thereof to the person interested who shall be entitled to maintain a proceeding
under article seventy-eight of the Civil Practice Law and Rules in accordance with section 5-99.0, Judicial
Review.
§ 5-101.0
Remedies; exclusive. The remedies provided by these regulations shall be the exclusive
remedies available to any person for the review of tax liability imposed by Local Law and no determination or
proposed determination of tax or determination on an application for refund shall be enjoined or reviewed by an
action for declaratory judgment, an action for money had and received, or by any legal or equitable action or
proceeding other than a proceeding under article seventy-eight of the Civil Practice Law and Rules.
§ 5-102.0
Proceeding to recover tax. Whenever any operator shall fail to pay any tax penalty or interest
imposed by Local Law as herein provided the County Attorney shall, upon the request of the Treasurer, bring
or cause to be brought an action to enforce the payment of the same on behalf of the County in any court of
the State of New York or of any other state or of the United States.
§ 5-103.0
Notices and limitations of timing.
a. Any notice authorized or required under the provisions of these regulations may be given by mailing the
same to the person for whom it is intended in a postpaid envelope addressed to such person at the
address given in the last return filed by him pursuant to the provisions of these regulations or in any
application made by him or, if no return has been filed or application made, then to such address as
may be obtainable. The mailing of such notice shall be presumptive evidence of the receipt of the
same by the person to whom addressed. Any period of time which is determined according to the
provisions of the regulation by the giving of notice shall commence to run from the date of mailing of
such notice.
b. The provisions of the Civil Practice Law and Rules or any other law relative to limitations of time for the
enforcement of a civil remedy shall not apply to any proceeding or action taken by the County to levy,
appraise, assess, determine or enforce the collection of any tax, interest or penalty provided by this
article. However, except in the case of a willfully false or fraudulent return with intent to evade the tax,
no assessment of additional tax shall be made after the expiration of more than three years from the
date of the filing of a return, provided, that where no return has been filed as provided by law, the tax
may be assessed at any time.
c. Where, before the expiration of the period prescribed herein for the assessment of any additional tax, a
person has consented in writing that such period be extended, the amount of such additional tax due
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may be determined at any time within such extended period. The period extended may be further
extended by subsequent consents in writing made before the expiration the extended period.
§ 5-104.0
Penalties and interest.
a. Any person failing to pay a tax payable under this article when due shall be subject to a penalty of fifty
per centum of the amount of tax due. Such penalty shall be paid and disposed of in the same manner
as other revenues under Local Law. Unpaid penalties may be enforced in the same manner as the tax
imposed by Local law.
b. If any amount of tax is not paid on or before the last date prescribed for payment, without regard to any
extension of time granted for payment, interest on such amount and on the penalty at the rate of nine
percent per annum, shall be paid for the period from such last date to the date of payment. In
computing the amount of interest to be paid, such interest shall be compounded daily. The interest
imposed by this subdivision shall be paid and disposed of in the same manner as otherwise required
from this article. Unpaid interest may be enforced in the same manner as proposed by Local law.
§ 5-105.0
Disposition of revenues. All revenues resulting from the imposition of the tax under Local Law
shall be paid to the Treasurer and shall be credited to and deposited in the general fund of the County.
§ 5-106.0
Construction and enforcement. These regulations shall be construed and enforced in
conformity with chapter five, article 3, of the administrative code of the County of Nassau, pursuant to which
they are promulgated.
§ 5-107.0
Effective data of entertainment surcharge. The entertainment surcharge shall be applicable
to sales occurring on or after September 15, 2000, of tickets for events scheduled to occur or occurring on or
after October 1, 2000.
(Amended by Local Law 31-2000, effective September 12, 2000.) Nassau County Criminal Defense Law Firm
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