NY Tax L § 289-C (2021)
2021 New York Laws TAX - Tax Article 12-A - Tax on Gasoline and Similar Motor Fuel 289-C - Refunds.

§ 289-c. Refunds. 1. The tax imposed by this article though payable by the  distributor,  shall  be borne by the purchaser and when paid by the distributor shall be deemed to have been so paid for the account of  the purchaser.  No  person  shall  sell,  advertise, or offer for sale motor fuel, separate from the tax herein imposed; and the price  paid  by  the purchaser  for  motor fuel on which the tax has been paid, if such price be not less than the amount of the tax thereon, shall  be  presumed  for the purposes of this section to have included the tax.   1-a. (a) Any person selling motor fuel to an organization described in paragraph  one  or  two  of  subdivision  (a)  of section eleven hundred sixteen of this chapter or a  hospital  included  in  the  organizations described  in  paragraph  four  of  such  subdivision for its own use or consumption or selling kero-jet fuel  to  an  airline  for  use  in  its airplanes  may  exclude  the  amount of the tax or taxes imposed by this article from the selling price thereof.  (b) (i) Any person registered as a distributor of motor  fuel  selling aviation gasoline to a fixed base operator registered under this article as  a "retail seller of aviation gasoline" may exclude the amount of the tax or taxes imposed by this article  from  the  selling  price  thereof where  such  aviation gasoline is delivered to the fixed base operator's premises and placed in a  storage  facility  used  exclusively  for  the purpose of fueling airplanes. The commissioner may register as a "retail seller of aviation gasoline" a fixed base operator who makes no sales of aviation gasoline other than retail sales not in bulk delivered directly into  the  fuel tank of an airplane and who makes no sales of motor fuel other than the foregoing described retail  sales  of  aviation  gasoline delivered  directly  into  the  fuel  tank of airplanes (provided, in no event, shall kero-jet fuel be construed to constitute motor fuel).  Such registration shall apply only to the wholesale purchase of only aviation gasoline  by  such  "retail  seller of aviation gasoline" and the retail sale by such person of  aviation  gasoline  not  in  bulk  for  delivery directly  into  the  fuel  tank  of an airplane for use in the operation thereof. In no event shall the  registration  as  a  "retail  seller  of aviation  gasoline" be deemed to be an authorization to import, or cause to be imported, motor fuel including aviation gasoline, into this state. All  the  provisions  of  section  two  hundred  eighty-three-a  (except subdivision one) of this article shall be applicable to the registration of  "retail sellers of aviation gasoline" with the same force and effect as if the language of such section had been incorporated in full  herein and  had  expressly  referred  to the registration of "retail sellers of aviation gasoline", with such modification as may be necessary in  order to  adapt  the language so as to apply to the registration of applicants for and persons registered as "retail  sellers  of  aviation  gasoline". Provided,  however,  that  if the commissioner is satisfied that certain requirements of such foregoing provisions with respect  to  registration are not necessary in order to protect tax revenues, the commissioner may waive,   limit   or   modify  such  requirements  with  respect  to  the registration of "retail sellers of aviation gasoline".  The  department, where applicable, shall coordinate the registration process with respect to  a  fixed base operator applying for registration as a "retail seller of aviation gasoline" and as a distributor of kero-jet  fuel  only  with the  purpose  of  eliminating  any duplicative information or procedures required of the applicant. Every person registered as a  "retail  seller of  aviation  gasoline"  shall  keep  complete  and  accurate records of purchases and sales of aviation gasoline (including individual  invoices identifying each purchase or sale of aviation gasoline) to and from such "retail  seller  of aviation gasoline". The commissioner shall, if it is determined to be appropriate, establish a requirement that a certificate  be given by a "retail seller of aviation gasoline" prior to the sale  of aviation gasoline pursuant to this paragraph.  (ii)  Any  person  registered  as a distributor of motor fuel and also registered as a "retail seller of aviation  gasoline"  may  exclude  the amount  of  the  tax  or  taxes imposed by this article from the selling price thereof on such retail sale of aviation gasoline.  (c) (i) Any person making a sale of motor fuel under the circumstances described in paragraph (a), or subparagraph (i) of paragraph (b) of this subdivision  or  making  a  sale  of  Diesel  motor   fuel   under   the circumstances  described  in  subdivision  four  of  section two hundred eighty-two-a of this article whereby the tax or taxes  imposed  by  this article  have not been passed through to the purchaser, shall be allowed a refund or credit of the tax or taxes imposed by this  article  in  the amount  of  such  tax or taxes paid by such person on such motor fuel or Diesel motor fuel being sold or included  in  the  price  paid  by  such person  for such fuel. Claims for refunds or credits shall be presented, and refunds or  credits  shall  be  made,  only  as  authorized  by  the commissioner under such rules and regulations as he may prescribe.  (ii) Any airline registered as a distributor of motor fuel who imports aviation  gasoline  into  this  state  for  use  in  its airplanes and a distributor described in subparagraph (ii)  of  paragraph  (b)  of  this subdivision  shall  be  allowed  a  refund or credit of the tax or taxes imposed by this article in the amount of such tax or taxes paid by  such person on such aviation gasoline so imported and used exclusively in the operation  of  its  airplanes.  The refund or credit shall accrue at the time the aviation gasoline is delivered  and  stored  as  prescribed  in subparagraph  (i)  of  paragraph  (b)  of  this  subdivision. Claims for refunds or credits shall be presented and refunds or  credits  shall  be made only as authorized by the commissioner, including documentary proof required to substantiate refund claims.   * (d)(i) Any person may exclude the amount of the tax or taxes imposed by  this  article  on  E85  from  the selling price thereof where E85 is delivered to a filling station and placed in  a  storage  tank  of  such filling  station  for  such  E85  to  be dispensed directly into a motor vehicle for use in the operation of such vehicle. Any  person  making  a sale of E85 under the circumstances described herein, whereby the tax or taxes  otherwise imposed by this article have not been passed through to the purchaser, shall be allowed a refund or credit of the taxes  imposed by  this  article in the amount of such tax or taxes paid by such person on such E85 being sold or included in the price paid by such person  for such fuel. Claims for refunds or credits shall be presented, and refunds or  credits  shall be made, only as authorized by the commissioner under such rules and regulations as the commissioner may prescribe.  (ii) Any person may exclude twenty percent of the amount of the tax or taxes imposed by this article from the selling price with respect to any sale of B20. Any person making a sale of B20 upon which such person does not pass on more than eighty percent of the taxes otherwise  imposed  by this  article,  where such person has purchased such B20 with the entire amount of the taxes imposed by this article included  in  such  person's purchase  price,  shall  be  entitled to a refund or credit equal to the amount of the tax or taxes paid under this article on such B20 in excess of eighty percent of the tax or taxes imposed by this article on  diesel motor  fuel.  Claims  for  refunds  or  credits  shall be presented, and refunds or credits shall be made, only as authorized by the commissioner under such rules and regulations as the commissioner may prescribe.  (iii) Any person may exclude the amount of the tax or taxes imposed by this article on CNG or hydrogen from  the  selling  price  thereof.  Any person  making  a  sale  of  CNG  or  hydrogen, whereby the tax or taxes  otherwise imposed by this article have not been passed  through  to  the purchaser,  shall  be allowed a refund or credit of any taxes imposed by this article in the amount of such tax or taxes paid by such  person  on such  CNG  or  hydrogen being sold or included in the price paid by such person for such CNG or hydrogen. Claims for refunds or credits shall  be presented,  and  refunds or credits shall be made, only as authorized by the commissioner under such rules and regulations  as  the  commissioner may prescribe.   * NB Repealed September 1, 2026   2.  However,  the  intention  of this article is to place the ultimate burden resulting from such tax, so far as possible, on persons  who  use the  public  highways of the state for operating motor vehicles thereon, or who use the waterways of the  state  including  any  other  waterways bordering  on  the  state  for  operating pleasure or recreational motor boats thereon, and the following  refunds  are  provided  to  that  end, subject to the provisions of subdivision five of this section.   3.  (a) Except as otherwise provided in paragraph (b) of this section, any person who shall buy any motor fuel or diesel motor fuel,  on  which the  tax imposed by this article shall have been paid, and shall consume the same in any manner except in the operation of a motor  vehicle  upon or  over  the  public  highways  of this state, or in the operation of a pleasure or recreational motor boat upon or over the  waterways  of  the state  including  waterways  bordering on the state, shall be reimbursed the amount of such tax in the  manner  and  subject  to  the  conditions herein  provided except that there shall be no reimbursement of tax paid on motor fuel or diesel motor fuel taken out of this  state  in  a  fuel tank  connected  with the engine of a motor vehicle and consumed outside of this state.  (b) Any omnibus carrier which shall buy any motor fuel  on  which  the aggregate tax imposed by section two hundred eighty-four and section two hundred eighty-four-a of this chapter, or any diesel motor fuel on which the  aggregate  tax  imposed  by  section  two  hundred eighty-two-a and section two hundred eighty-two-b of this chapter, shall have been  paid, shall  be  reimbursed,  in  the case of such motor fuel, the amount paid pursuant to such  sections  two  hundred  eighty-four  and  two  hundred eighty-four-a  in  excess  of  four cents per gallon, and in the case of diesel motor fuel, the amount paid pursuant to such sections two hundred eighty-two-a and two hundred eighty-two-b in excess  of  six  cents  per gallon,  provided such motor fuel or diesel motor fuel has been consumed by such carrier in the operation  of  an  omnibus  in  this  state.  Any taxicab  licensee,  as defined by subdivision ten of section two hundred eighty-two of this chapter, who or which shall buy  any  motor  fuel  on which  the  aggregate tax imposed by section two hundred eighty-four and section two hundred eighty-four-a of this chapter or  any  diesel  motor fuel  on  which  the  aggregate  tax  imposed  by  section  two  hundred eighty-two-a and section two hundred eighty-two-b of this chapter, shall have been paid, shall be reimbursed, in the case of such motor fuel, the amount paid pursuant to such sections two hundred  eighty-four  and  two hundred  eighty-four-a  in  excess  of four cents per gallon, and in the case of diesel motor fuel, the amount paid pursuant to such sections two hundred eighty-two-a and two hundred eighty-two-b in excess of six cents per gallon, provided such motor fuel or diesel fuel has been consumed by such licensee in the operation of a taxicab in this state.  (c) All claims for reimbursement shall be in  such  form  and  contain such  information as the commissioner shall prescribe and shall be filed within three years from (i) the date of the purchase, in the case of the purchaser; or (ii) the date of the sale, in the case of the  seller,  of the  motor  fuel  so  subject  to  reimbursement. Every such claim shall  include a certificate by or on behalf of the party presenting  the  same to  the  effect  that it is just, true and correct, that no part thereof has been paid, except as stated therein, and that  the  balance  therein stated  is  actually  due  and  owing.  The  claimant  shall satisfy the department that the claimant has borne the tax and that the  motor  fuel has  been  consumed by the claimant in a manner other than the operation of a motor vehicle upon or over the public highways of this  state,  the operation  of  a  pleasure  or  recreational  motorboat upon or over the waterways of the state including waterways bordering on the state or, in the case of an  omnibus  carrier,  taxicab  licensee,  nonpublic  school operator or volunteer ambulance service, that the claimant has borne the tax  and  that the amount claimed is the amount of such tax reimbursable under paragraph (b), (d), (e) or (f) of this subdivision. The department may require such further information or proof as it shall deem necessary for the administration of such claim. Claims for reimbursement  approved by  the  department  shall  be  paid  from revenues collected under this article and deposited to the credit of the  comptroller  as  hereinafter provided;  but  no  such  claims  shall be paid unless the department is satisfied that the amount of the tax  for  which  the  reimbursement  is claimed  has  actually  been  collected  by the state. The amount of any erroneous or excessive payment to a claimant for  reimbursement  may  be determined  by the department and may be recovered from such claimant in the same manner as a tax imposed by  this  article,  provided,  however, that  any  such determination shall be made within three years after the date of such erroneous or excessive payment.  (d) Any omnibus carrier which  shall  buy  motor  fuel  on  which  the aggregate  tax  imposed  by section two hundred eighty-four, section two hundred eighty-four-a and section  two  hundred  eighty-four-c  of  this chapter  or  any diesel motor fuel on which the aggregate tax imposed by section two hundred eighty-two-a, section two hundred  eighty-two-b  and section  two  hundred eighty-two-c of this chapter shall have been paid, shall be reimbursed the amount paid provided such motor fuel  or  diesel motor  fuel  has  been  consumed  by such carrier in the operation of an omnibus in local transit service in this state pursuant to a certificate of  convenience  and   necessity   issued   by   the   commissioner   of transportation of this state or by the interstate commerce commission of the  United  States  or  pursuant  to  a  contract, franchise or consent between such carrier and a city having a population  of  more  than  one million inhabitants, or any agency of such city.  (e)  Any nonpublic school operator which shall buy motor fuel on which the aggregate tax imposed by section two  hundred  eighty-four,  section two  hundred eighty-four-a and section two hundred eighty-four-c of this chapter or any diesel motor fuel on which the aggregate tax  imposed  by section  two  hundred eighty-two-a, section two hundred eighty-two-b and section two hundred eighty-two-c of this chapter shall have  been  paid, shall  be  reimbursed the amount paid provided such motor fuel or diesel motor  fuel  has  been  consumed  by  such  nonpublic  school   operator exclusively in educational related activities.  (f)  Any  voluntary  ambulance  service,  as defined in section thirty hundred one of the public health law, which  shall  buy  motor  fuel  on which  the  tax  or  taxes  imposed by this article shall have been paid shall be reimbursed the amount of such tax in the manner and subject  to the  conditions  herein  set  forth,  provided  such motor fuel has been consumed by such volunteer ambulance service vehicle in  the  course  of operating within the state.  (g)  An  organization described in paragraph one or two of subdivision (a) of section eleven hundred sixteen of  this  chapter  or  a  hospital included  in  the  organizations  described  in  paragraph  four of such  subdivision, or a fire company or fire department, as defined in section three of the volunteer firefighters' benefit law, or a volunteer  rescue squad  supported  in whole or in part by tax money where any such entity is the purchaser, user or consumer of motor fuel or diesel motor fuel in a  vehicle  owned  and  operated  by  it  and  used  exclusively for its purposes, or an airline where it has purchased kero-jet fuel for use  in its  airplanes shall be reimbursed the amount of the taxes on motor fuel and diesel motor fuel imposed by or pursuant to the  authority  of  this article  included  in the price paid for such motor fuel or diesel motor fuel.  (h) Notwithstanding any provision of the law to the contrary, tax paid pursuant to this article in respect to motor fuel or diesel  motor  fuel purchased  by a government entity and paid for by such government entity with a credit card shall be reimbursed or credited to the issuer of  the credit card used for such purchase or the fuel distributor designated in accordance with and subject to the provisions of sections eleven hundred thirty-eight,  eleven hundred thirty-nine, eleven hundred forty-two, and eleven hundred forty-five of this chapter concerning  such  credit  card issuers,  fuel  distributors  and  government  entities. Such provisions shall apply with respect to the administration  of  and  procedure  with respect  to  the taxes imposed under this article in the same manner and with the same force and effect as if the language of such provisions had been incorporated in full into this article and had  expressly  referred to  the  tax  under  this  article,  with  such  modifications as may be necessary in order to adapt the language of such provisions to the taxes imposed by this article, except to the extent that any such provision is not relevant to this article.   5. If the provisions of this section providing  for  reimbursement  of the  amount  of  the  tax  paid  be  held unconstitutional by a court of competent jurisdiction, the  other  constitutional  provisions  of  this article  nevertheless shall stand, it being the express intention of the legislature that even though such provision for  reimbursement  be  held unconstitutional  the tax provided for by this article shall be imposed, collected and distributed as provided in  this  article,  regardless  in that event of the manner in which the motor fuel is consumed.   6.  Moneys  paid  in  error  under this article may be refunded. Where motor fuel, upon which the tax imposed by this article has been paid, is sold, under such circumstances that, if the tax had not been  paid,  the sale  would  not  have  been  taxable under this article, the tax may be refunded.  Refunds shall be made only as authorized by the  commissioner under  such  rules  and  regulations  as  the commissioner may prescribe provided an application therefor is filed with the  commissioner  within three  years  from  the time the erroneous payment was made, or tax paid motor fuel was so sold. Refunds authorized by the commissioner shall  be paid  from  revenues  collected  under this article and deposited to the credit of the comptroller as hereinafter provided.   7. If an  agreement  under  the  provisions  of  section  two  hundred eighty-eight  (extending  the period for determination of tax imposed by this article) is made within the three-year period for the filing of  an application  for refund under subdivision six of this section or, in the case of a claim  for  reimbursement  under  subdivision  three  of  this section,  if  such agreement is made within three years from the date of purchase or sale (as the case may be) of the motor fuel, the period  for filing  an application for refund or a claim for reimbursement shall not expire prior to six months after the expiration  of  the  period  within which  determination  may  be  made  pursuant  to  the  agreement or any extension thereof.    8. With respect to  motor  fuel  imported,  manufactured  or  sold  or purchased  in  this state, and with respect to the sale or use of Diesel motor fuel, a refund or credit shall  be  allowed  a  distributor  or  a purchaser  of  the tax required to be paid pursuant to this article upon such  motor  fuel or Diesel motor fuel in the amount of such tax paid by or included in the price paid by a distributor or such purchaser to  the seller thereof if such fuel was exported from this state for sale or use outside  this state, such distributor or such purchaser, as the case may be, exporting such fuel is duly  registered  with  or  licensed  by  the taxing  authorities  of  the  state  to which such fuel is exported as a distributor or a dealer in the fuel being so exported, and in connection with such exportation such fuel was immediately shipped to an identified facility in the state to which such fuel is exported, and the  applicant complies  with  all  requirements  and  rules  and  regulations  of  the commissioner, including evidentiary requirements, relating thereto;  and provided  further that upon receipt of a claim for refund in processible form, interest shall be allowed and paid at the overpayment rate set  by the  commissioner  pursuant  to  subdivision twenty-sixth of section one hundred seventy-one of this chapter from the due date of the  return  to the  date  immediately  preceding the date of the refund check except no such interest shall be allowed or paid if the  refund  check  is  mailed within  thirty  days  of  such  receipt  and except no interest shall be allowed or paid if the amount thereof would be less than one dollar. For the purpose of this article, "export" from this state shall in no  event be  construed  to  include  motor fuel or diesel motor fuel taken out of this state in the fuel tank connected with the engine of a motor vehicle or any conveyance and consumed in the operation thereof outside of  this state.   9.  With  respect  to  any organization described in paragraph four of subdivision (a) of section eleven hundred sixteen of this chapter  which is  eligible  pursuant  to  this  section  for  reimbursement of the tax required to be paid pursuant to this article, upon receipt  of  a  claim for  reimbursement  in  processible  form, interest shall be allowed and paid at the overpayment rate set by the  commissioner  of  taxation  and finance  pursuant  to  subdivision  twenty-sixth  of section one hundred seventy-one of this  chapter  from  the  date  of  the  application  for reimbursement  to  the  date  immediately  preceding  the  date  of  the reimbursement check except no such interest shall be allowed or paid  if the reimbursement check is mailed within forty-five days of such receipt and  except  no  interest shall be allowed or paid if the amount thereof would be less than one dollar. Provided, however, the  department  shall process applications for reimbursement as expeditiously as possible.