NY Tax L § 503-A (2021)
2021 New York Laws TAX - Tax Article 21 - Highway Use Tax 503-A - Imposition of Additional Tax.

§  503-a.  Imposition  of  additional  tax.  1. In addition to the tax   imposed by section five hundred three of this chapter, and  in  addition   to  any  other tax or fee imposed by law, there is hereby imposed on and   after July first, nineteen hundred sixty-eight and before January first,   nineteen hundred ninety-six an additional tax on  highway  use  for  the   privilege  of  operating any vehicular unit, other than an omnibus, upon   the public highways of this state,  and  on  and  after  October  first,   nineteen  hundred  sixty-nine and before January first, nineteen hundred   ninety-six an additional  tax  on  highway  use  for  the  privilege  of   operating  upon the public highways of this state any omnibus which is a   vehicular unit as defined in subdivision eight of this  section.    Such   tax  shall  be upon the carrier except that where the carrier is not the   owner of such vehicular unit, the tax  shall  be  a  joint  and  several   liability upon both.2. Such tax shall be at a composite rate determined by adding together   (i)  a  fuel  tax  component  which  shall be equivalent to the rate per   gallon in effect under the taxes on motor fuel  and  diesel  motor  fuel   imposed  by  article  twelve-a  of  this  chapter  and  (ii) a sales tax   component, which shall be equivalent to the rate per  gallon  applicable   to the receipts from the sale of a gallon of motor fuel and diesel motor   fuel  in  effect  under  the sales and compensating use taxes imposed by   sections eleven hundred five and eleven hundred ten of this chapter plus   the highest rate applicable to the receipts from the sale of a gallon of   motor fuel and diesel motor fuel in effect in any locality of this state   imposing a local sales and compensating use tax on  the  sale  of  motor   fuel and diesel motor fuel under the authority of section twelve hundred   ten  of  this  chapter;  provided,  however, that the aggregate rate per   gallon applicable to the receipts from the sale  of  a  gallon  of  such   fuels  imposed  under  clause  (ii) of this subdivision shall not exceed   seven percent. Such total equivalent rate per gallon under  clause  (ii)   of  this  subdivision shall be determined as provided in subdivision (d)   of section eleven hundred eleven  of  this  chapter  and  the  schedules   prescribed  by the commissioner of taxation and finance pursuant to such   subdivision, and  shall  be  based  on  the  average  price  per  gallon   (including  all  federal  and state and any local taxes included in such   price or imposed on the use or consumption of such fuels but  determined   without  the inclusion of any state and local sales tax on receipts from   sales of such fuels) paid by the carrier during the  return  period  for   all motor fuel and diesel motor fuel purchased for use in its operations   either   within  or  without  this  state.  Provided,  however,  if  the   commissioner shall  determine  that  the  records  of  any  carrier  are   inadequate  or incomplete for such a determination of average price, the   price for motor fuel and diesel motor fuel  purchased  by  such  carrier   shall  be  deemed  to  be the prevailing price for motor fuel and diesel   motor fuel, as established by the  commissioner  each  calendar  quarter   pursuant to this section, applicable to the return period. Each calendar   quarter,  the  commissioner  shall for each calendar quarter establish a   prevailing price for motor fuel and  diesel  motor  fuel  based  on  the   prices  being  charged on any given day during the first fifteen days of   the previous calendar quarter at a minimum of ten selected  truck  stops   widely  scattered throughout the state. For any return period, a carrier   may elect to use the prevailing price per gallon so established  by  the   commissioner.  Such  tax shall be computed by multiplying such composite   rate by the amount of motor fuel or diesel motor fuel, as the  case  may   be,  used  by  a carrier in its operations within this state during each   calendar quarter or, where the commissioner has required or permitted  a   return  to  be  based upon a different period, during such other period.   The amount of motor fuel and diesel motor fuel used in the operations of    any carrier within this state shall be  such  proportion  of  the  total   amount  of  such  motor  fuel  and  diesel motor fuel used in its entire   operations within and without this state as the total  number  of  miles   traveled  within  this state bears to the total number of miles traveled   within and without this state.  The  commissioner  may,  by  regulation,   allow  use  of  a  miles  per  gallon  factor  in computing fuel used in   operations in lieu of the above formula if evidence is presented to  the   commissioner's  satisfaction  that no loss of revenue will result. Where   the records of any carrier are inadequate or  incomplete  the  vehicular   units  of  a carrier filing returns shall be deemed to have consumed, on   the average, one gallon of  diesel  motor  fuel  for  every  four  miles   traveled  or  one  gallon  of  motor fuel for every three miles traveled   unless substantial  evidence  discloses  that  a  different  amount  was   consumed.3.  Every  carrier subject to the tax imposed by this section shall be   entitled to a credit against such tax determined by adding together  the   following  components:  (i) a fuel tax component computed by multiplying   the number of gallons of motor fuel or diesel motor  fuel  purchased  by   such  carrier  within  this  state  in  a  return period, for use in its   operations either within or without this state, by the  applicable  rate   per  gallon imposed on such fuel under article twelve-A of this chapter,   provided, however, no credit shall be allowed  unless  the  tax  imposed   under  such article twelve-A upon such purchase of fuel has been paid by   such carrier, and (ii) a sales tax component computed by multiplying the   number of gallons of motor fuel or diesel motor fuel purchased  by  such   carrier  within this state in a return period, for use in its operations   either within or without this state (as determined in a  manner  similar   to  the  method for determining the use of fuel in the state as provided   for under subdivision two of this section), by the applicable equivalent   rate per gallon  of  the  sales  tax  component  of  the  tax  rate  (as   determined under subdivision two of this section), provided, however, no   credit   shall   be   allowed  unless  the  tax  imposed  under  article   twenty-eight of this chapter upon such purchase of fuel has been paid by   the carrier. Each carrier claiming such credit components shall  furnish   to  the  commissioner  such  evidence  of  payment  of such taxes as the   commissioner may require. When the amount of the  credit  to  which  any   carrier  is  entitled  for  any  return period with respect to gallonage   purchased in such return period exceeds the amount of tax for which such   carrier is liable under this section for such return period, such excess   shall be allowed as a credit against the tax or which such carrier would   otherwise be liable for those succeeding periods (after  application  of   any  credits  derived  with  respect to gallonage purchased in each such   succeeding period) which fall wholly within the twenty-four month period   commencing with the end of the return period from which the  excess  was   derived  or, if a claim for refund is filed on or before the last day of   the month immediately following the forty-eight month period  commencing   with  the  end  of  the return period which gave rise to the refund, the   amount of such excess for such period shall be  refunded;  but,  such  a   claim  for  refund  may be filed no more frequently than quarterly, with   respect to the calendar quarters: January through March,  April  through   June,  July  through  September  and  October  through  December.    The   commissioner shall grant or deny any such claim for refund in  whole  or   in  part  and  shall  notify  the claimant by mail of the commissioner's   determination. Such determination shall be final and irrevocable  unless   the  claimant  shall,  within thirty days after the mailing of notice of   such determination, petition the division of tax appeals for a  hearing.   After such hearing, the division of tax appeals shall mail notice of the   determination of the administrative law judge to the claimant and to the    commissioner.  Such  determination  may  be  reviewed by the tax appeals   tribunal as provided in article forty of this chapter. The  decision  of   the  tax  appeals  tribunal  may  be reviewed as provided in section two   thousand  sixteen of this chapter. However, such a proceeding may not be   commenced unless an undertaking is filed with the commissioner  in  such   amount  and  with  such sureties as a justice of the supreme court shall   approve to the effect  that  if  the  proceeding  be  dismissed  or  the   decision  confirmed, the petitioner will pay all costs and charges which   may accrue against him in the prosecution of the proceeding.4. Except as otherwise provided in  this  subdivision,  every  carrier   subject  to the tax imposed by this section shall file returns reporting   its operations pursuant to the provisions of section five  hundred  five   of  this article for the reporting periods provided pursuant thereto. If   the commissioner of taxation and finance finds that the  enforcement  of   the  tax  imposed  by  this section would not be adversely affected, the   commissioner may  provide,  by  regulation,  that  a  carrier  operating   primarily  within this state may file an information return, rather than   the aforementioned returns, provided the carrier has purchased  in  this   state  all  the  motor fuel and diesel motor fuel used in its operations   during the period covered by such return  and  pays  the  taxes  imposed   under  articles  twelve-a and twenty-eight and pursuant to the authority   of article twenty-nine of this chapter  on  such  fuels  in  the  manner   required  by  such  articles.  An election to file an information return   shall be made in such form, for such time and upon  such  terms  as  the   commissioner shall require.5.  At  the  time  of  filing  its return, as required pursuant to the   preceding subdivision, each carrier shall pay the tax  imposed  by  this   section  calculated  upon the amount of motor fuel and Diesel motor fuel   used in its operations within this state during the  period  covered  by   the return filed.6.  For  purposes  of  this section, the definition of "motor fuel" in   subdivision two of section two hundred eighty-two and the definition  of   "Diesel  motor  fuel"  in  subdivision  fourteen  of section two hundred   eighty-two of this chapter shall apply.7.  For  purposes  of  this  section,  the  term  "operations"   means   operations  of  all vehicular units, whether loaded or empty, whether or   not for compensation and whether owned by or leased to the carrier which   operates them or causes them to be operated.8. For purposes of this section only, (a) the  term  "vehicular  unit"   shall   include   an  omnibus  engaged  in  the  interstate  or  foreign   transportation of passengers and subject  to  the  jurisdiction  of  the   interstate  commerce commission, or any agency successor thereto, or one   or more state regulatory  agencies  concerned  with  the  regulation  of   passenger  transport,  having  a  seating  capacity  of  more than seven   persons in addition to the driver; and  (b)  the  term  "carrier"  shall   include any person having the lawful use or control, or the right to the   use or control of any such omnibus.9.  The  rest of the provisions of this article shall be applicable to   the tax imposed by this section except to the extent such provisions are   inconsistent with a provision in this section.