NY Tax L § 285-B (2021)
2021 New York Laws TAX - Tax Article 12-A - Tax on Gasoline and Similar Motor Fuel 285-B - Presumption of Taxability--Diesel Motor Fuel.

§  285-b. Presumption of taxability--Diesel motor fuel. 1. Except with respect to the exemptions from the excise tax on Diesel motor  fuel  set forth  in  subdivision three of section two hundred eighty-two-a of this article, no person shall purchase Diesel motor fuel in this state unless the taxes imposed by this article have  been  assumed  by  a  registered distributor  of  Diesel  motor  fuel  in accordance with a certification under subdivision four of this section or paid by such distributor  and, in  each  of such instances, except in the case of an exemption from the pass through of such tax authorized in subdivision four of such  section two  hundred  eighty-two-a,  are  passed  through  to such purchaser. In addition to any other civil and criminal penalties which may apply,  any person  who  purchases  Diesel  motor  fuel  without  having  received a certification from the seller in accordance  with  subdivision  four  of this  section  shall  be  jointly  and severally liable to pay the taxes imposed by this article with respect to such Diesel motor fuel.   2. For purposes of the proper administration of this  article  and  to prevent  evasion  of  the  taxes  imposed  on  Diesel motor fuel by this article, it shall be presumed that all Diesel motor fuel sold,  received or  possessed  in  the  state  is  subject  to the taxes imposed by this article until the contrary is established. It shall be further  presumed that  any  person  so selling, receiving or possessing such Diesel motor fuel is responsible for payment of the excise taxes on such fuel.   3.  (a)  The  claim  for  or  exemption  from  tax  provided  for   in subparagraphs  (i),  (ii),  (iii),  (iv),  and  (vi) of paragraph (b) of subdivision three of section two hundred eighty-two-a  of  this  article shall  be  established by means of an exempt transaction certificate. If any such exemption is applicable, such certificate shall be provided  by the  purchaser  to the seller at the time of or prior to delivery of the Diesel motor fuel. Such exempt transaction certificate shall  set  forth the name and address of the purchaser and the basis of the exemption and shall  be  signed  by such purchaser and by the seller. Such certificate shall be in  such  form  and  contain  such  other  information  as  the commissioner   shall   require.  Where  a  proper  and  complete  exempt transaction certificate has been furnished and accepted by the seller in good faith, such certificate under such circumstance shall  relieve  the seller  of  the  burden of proving that the Diesel motor fuel covered by such certificate is exempt from tax by reason of subparagraph (i), (ii), (iii), (iv), or (vi) of paragraph  (b)  of  subdivision  three  of  such section  two  hundred  eighty-two-a.  Any purchaser who furnishes to his seller a false or fraudulent  exempt  transaction  certificate  for  the purpose of establishing an exemption from the tax imposed by section two hundred  eighty-two-a  of  this  article  shall be jointly and severally liable for the tax imposed  by  such  section.  In  lieu  of  an  exempt transaction   certificate,   the   commissioner   may  provide  for  the establishment of such  exemption  by  means  of  a  procedure  or  other document  which he or she deems appropriate so as to secure the revenues from the excise tax on Diesel motor fuel. Provided, further, in the case of the exemption provided  by  subparagraph  (i)  of  paragraph  (b)  of subdivision  three  of section two hundred eighty-two-a of this article, the commissioner shall provide for an  alternative  procedure  or  other document  signed  only by the seller, such as a metered delivery ticket, for the establishment of  such  exemption  in  those  cases  where  such commissioner  is satisfied that the use of such alternative procedure or other document will not jeopardize the revenues from the excise  tax  on Diesel motor fuel.  (b)  A  claim  for the exemption from tax provided for in subparagraph (v) of paragraph  (b)  of  subdivision  three  of  section  two  hundred eighty-two-a  of  this  article  shall  be  established  by  means of an  interdistributor sale certificate. If such exemption is applicable, such certificate shall be provided by the purchaser to the seller at the time of or prior to delivery of the Diesel motor fuel. Such certificate shall set  forth  the  name  and  address  of  the  purchaser, the purchaser's registration number, an affirmation by such purchaser that the purchaser is registered as a distributor and that such registration has  not  been suspended  or cancelled and shall be signed by such purchaser and by the seller. Such certificate shall be in such form and  contain  such  other information  as  the  commissioner  shall  require.  Where  a proper and complete  interdistributor  sale  certificate  has  been  furnished  and accepted  by  the  seller  in  good  faith,  such certificate under such circumstance shall relieve the seller of the burden of proving that  the Diesel  motor  fuel  covered  by  such certificate is exempt from tax by reason of subparagraph (v) of paragraph (b) of subdivision three of such section two hundred eighty-two-a. For  purposes  of  this  paragraph,  a seller  shall  not  have  accepted such certificate in good faith if the purchaser's registration is invalid because it  has  been  suspended  or cancelled,  or  if the purchaser is not registered, and the commissioner has furnished registered distributors with information  identifying  all those  persons  then  validly registered as distributors of Diesel motor fuel and those  persons  whose  registrations  have  been  suspended  or cancelled.  Any  purchaser  who  furnishes  to  his  seller  a  false or fraudulent  interdistributor  sale  certificate  for  the   purpose   of establishing  an  exemption  from the tax imposed by section two hundred eighty-two-a of this article shall be jointly and severally  liable  for the tax imposed by such section.   4.  (a)  Upon  each  sale,  other  than a retail sale not in bulk, the seller must give to the purchaser and the purchaser shall receive at the time of delivery of such Diesel motor fuel, a  certification  containing such  information  as  the  commissioner  of  taxation and finance shall require which,  unless  otherwise  provided  in  this  paragraph,  shall include  a  statement to the effect: (i) if such seller is a distributor registered under this article, that he has assumed  the  payment  of  or paid  the  taxes  imposed  by this article and, in each case, is passing through such taxes; or (ii) that such seller  is  passing  through  such taxes  which  were  so  previously  assumed  or  paid  by  an identified distributor registered under this article, and passed through to him. In the case  of  a  transaction  described  in  paragraph  (a)  or  (b)  of subdivision  three  of  section two hundred eighty-two-a of this article which is exempt from the imposition of the taxes imposed on Diesel motor fuel or where the seller, pursuant to and in accordance with subdivision four of  such  section,  has  not  passed  through  such  taxes  to  the purchaser,   the  certificate,  in  lieu  of  either  of  the  foregoing statements, shall state that, based  upon  good  faith  reliance  on  an exempt  transaction  certificate  (or  such  other  similar  document or procedure prescribed by the commissioner of taxation  and  finance),  an interdistributor sales certificate or the exemption document provided by an  organization described in paragraph one or two of subdivision (a) of section eleven hundred sixteen of this chapter, as the case may be, such motor fuel is being sold  under  the  circumstances  described  in  such paragraph  (a)  or  (b)  of  subdivision  three  of  section two hundred eighty-two-a or, in the case of the exemption from the pass through,  is being sold under the circumstances specified in subdivision four of such section and that the taxes imposed by this article are not applicable or are not being passed through, as the case may be.  (b)  In  the case of a sale of Diesel motor fuel subject to the excise taxes and in all cases where the excise taxes are required to be  passed through,  if  the  certification  required  by this subdivision has been  furnished to the purchaser at the time of  delivery  of  such  fuel  and accepted  in good faith, the burden of proving that the taxes imposed by this article were assumed or paid by a distributor  registered  as  such under this article and passed through shall be solely on the seller.  (c)  Where  the  certification  required under this subdivision is not furnished by the seller at the time of  delivery  of  the  Diesel  motor fuel,  it  shall  be presumed that the taxes imposed by this article are due and owing and have  not  been  assumed  or  paid  by  a  distributor registered  as  such  under  this article and that the purchaser in such case is jointly and severally liable for such taxes.  (d) If, due to the circumstances of delivery, it is  not  possible  to issue  a  certification  required  under this subdivision at the time of delivery of Diesel motor fuel, the commissioner of taxation and  finance may  authorize  the  delivery  of  the certification required under this subdivision at a time after the delivery of the Diesel motor fuel  which is  the  subject  of  the  sale under the limited circumstances it shall prescribe and upon such terms and conditions it shall deem necessary  to ensure  collection  of  the  taxes  imposed  by this article and the tax imposed by section eleven hundred three of this chapter.