NY Tax L § 301-A (2021)
2021 New York Laws TAX - Tax Article 13-A - Tax on Petroleum Businesses 301-A - Imposition of Tax.

§  301-a.  Imposition  of  tax. (a) General. Notwithstanding any other provision of this chapter, or of any other law, there is hereby  imposed upon every petroleum business for the privilege of engaging in business, doing  business,  employing  capital,  owning  or  leasing  property, or maintaining an office in this state, a monthly tax for each or any  part of  a  taxable  month  equal  to  the  sum  of  the motor fuel component determined pursuant to subdivision (b)  of  this  section,  the  highway diesel  motor  fuel  component  determined  pursuant to paragraph one of subdivision (c) of this  section,  the  non-highway  diesel  motor  fuel component  determined  pursuant  to  paragraph two of subdivision (c) of this section and the residual  petroleum  product  component  determined pursuant to subdivision (d) of this section.  (b)  Motor  fuel  component.  (1)  The  motor  fuel component shall be determined by multiplying the motor fuel and highway diesel  motor  fuel rate times the number of gallons of (1) motor fuel imported or caused to be  imported  into  this  state  by  the  petroleum  business  for  use, distribution, storage or sale in the state  or  (2)  produced,  refined, manufactured or compounded in the state by the petroleum business during the  month  covered by the return under this article. Provided, however, that no motor fuel shall be included in the measure of the tax unless it shall have previously  come  to  rest  within  the  meaning  of  federal decisional  law  interpreting  the United States constitution, nor shall any motor fuel be included in the measure of the  tax  imposed  by  this article more than once.  (2)  Motor  fuel  brought  into this state in the fuel tank connecting with the engine of a vessel propelled by the  use  of  such  motor  fuel shall  be  deemed  to  constitute  a  taxable  use of motor fuel for the purposes of this subdivision to the extent that the fuel is consumed  in the  operation of the vessel in this state. Provided, however, that this paragraph shall not apply to (i)  a  recreational  motor  boat  or  (ii) subsequent  to  August  thirty-first,  nineteen  hundred  ninety-four, a commercial fishing vessel (as defined  in  subdivision  (j)  of  section three  hundred  of this article) if the motor fuel imported and consumed in this state is used to operate such vessel while it is engaged in  the harvesting  of  fish for sale. Provided, further, that tax liability for gallonage that a vessel consumes shall be the tax liability with respect to the positive difference between the gallonage consumed in this  state during  the  reporting  period and the gallonage purchased in this state (upon which the tax imposed by this section has been paid)  during  such period.  A  credit  or  refund  shall be available for any excess of tax liability for gallonage purchased in this state during the  period  over tax liability on gallonage so consumed in this state during such period, which excess shall be presumed to have been used outside this state.  (c)  (1)  Highway  Diesel motor fuel component. (A) The highway diesel motor fuel component shall be determined by multiplying the  motor  fuel and  highway  diesel  motor fuel rate times (1) the number of gallons of highway diesel motor fuel sold or used by a petroleum business  in  this state  during the month covered by the return under this article and (2) with respect to any gallonage which prior thereto has not been  included in  the  measure of the tax imposed by this article, times the number of gallons of highway diesel motor fuel (i) removed from a terminal,  other than  by  pipeline,  barge,  tanker or other vessel, (ii) delivered to a filling station or, (iii) delivered into the fuel tank  connecting  with the  engine  of  a  motor  vehicle  for  use  in  the operation thereof, whichever of the latter three  events  shall  be  the  first  to  occur. Provided,  however,  that no highway diesel motor fuel shall be included in the measure of the tax unless it shall have previously come  to  rest within  the  meaning  of  federal decisional law interpreting the United  States constitution, nor decisional law, nor shall  any  highway  diesel motor fuel be included in the measure of the tax imposed by this article more than once.  (B) Highway diesel motor fuel brought into this state in the fuel tank connecting  with  the  engine  of  a vessel propelled by the use of such diesel motor fuel shall be deemed to constitute a taxable use of  diesel motor  fuel  for the purpose of this paragraph to the extent of the fuel that is consumed in the operation of the vessel in this state. Provided, however, this paragraph shall not apply to (i) a recreational motor boat or (ii) a commercial fishing vessel (as defined in  subdivision  (j)  of section  three hundred of this article) if the highway diesel motor fuel imported into and consumed  in  this  state  is  used  to  operate  such commercial  fishing vessel while it is engaged in the harvesting of fish for sale. Provided, further, that tax liability  for  gallonage  that  a vessel consumes in this state shall be the tax liability with respect to the  positive  difference  between  the gallonage consumed in this state during the reporting period and the gallonage purchased  in  this  state (upon  which  the tax imposed by this section has been paid) during such period. A credit or refund shall be available  for  any  excess  of  tax liability  for  gallonage purchased in this state during the period over tax liability on gallonage so consumed in this state during such period, which excess shall be presumed to have been used outside this state.  (2) Non-highway diesel motor fuel component.  The  non-highway  diesel fuel component shall be determined by multiplying the non-highway diesel motor  fuel rate times the number of gallons of non-highway diesel motor fuel sold or used by a petroleum business in this state during the month covered by the return under this section.  Provided,  however,  that  no non-highway  diesel  motor  fuel shall be included in the measure of the tax unless it shall have previously come to rest within the  meaning  of federal  decisional law interpreting the United States constitution, nor shall any non-highway diesel motor fuel be included in  the  measure  of the tax imposed by this article more than once.  (d)  Residual  petroleum  product  component.  The  residual petroleum product component  shall  be  determined  by  multiplying  the  residual petroleum product rate times the number of gallons of residual petroleum product  sold  or  used in this state by a petroleum business during the month covered by the return under this article. Provided, however,  that no  residual  petroleum  product shall be included in the measure of the tax unless it shall have previously come to rest within the  meaning  of federal  decisional law interpreting the United States constitution, nor shall any residual petroleum product be included in the measure  of  the tax imposed by this article more than once.  (e) Motor fuel and highway diesel motor fuel rate. (1) The basic motor fuel  and  highway  diesel  motor  fuel rate shall be ten and two-tenths cents per gallon.  (2) Every year as of January first, the motor fuel and highway  diesel motor  fuel  rate  then  in effect on the immediately preceding December thirty-first shall be adjusted as follows: such rate shall be multiplied by a fraction the numerator of which is the sum of the monthly  producer price  index (unadjusted) published by the bureau of labor statistics of the United States department of labor for the  category  of  commodities designated  "refined  petroleum  products"  for  the  twelve consecutive months ending with the month of August of the immediately preceding year and the denominator of which is the sum of the  monthly  producer  price index  (unadjusted)  published  by the bureau of labor statistics of the United States department  of  labor  for  the  category  of  commodities designated  "refined  petroleum  products"  for  the  twelve consecutive months ending with the month  of  August  in  the  year  prior  to  such  immediately  preceding  year,  provided, however, that the adjusted rate shall not increase above or decrease below the rate  in  effect  on  the immediately preceding December thirty-first by more than five percent.  (3)  Notwithstanding  any  other  provision  of  this article, the per gallon rate with respect to "railroad  diesel"  shall  be  the  adjusted motor  fuel  and highway diesel motor fuel rate under paragraphs one and two of this subdivision minus one and three tenths cents per gallon.  (f) Non-highway diesel motor fuel rate.  (1) The basic non-highway diesel motor fuel rate  shall  be  nine  and three-tenths cents per gallon.  (2)  Every  year as of January first the non-highway diesel motor fuel rate then in effect on the immediately preceding  December  thirty-first shall  be  adjusted  as  follows:  Such  rate  shall  be multiplied by a fraction the numerator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor  statistics  of  the United  States  department  of  labor  for  the  category of commodities designated "refined  petroleum  products"  for  the  twelve  consecutive months ending with the month of August of the immediately preceding year and  the  denominator  of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor  statistics  of  the United  States  department  of  labor  for  the  category of commodities designated "refined  petroleum  products"  for  the  twelve  consecutive months  ending  with  the  month  of  August  in  the year prior to such immediately preceding year, provided, however, that  the  adjusted  rate shall  not  increase  above  or decrease below the rate in effect on the immediately preceding December thirty-first by more than five percent.  (3) Notwithstanding any other provision of this  article,  non-highway diesel  motor  fuel  which is "manufacturing gallonage," as such term is defined in subdivision (m) of section three  hundred  of  this  article, shall  be  exempt  from the measure of the non-highway diesel motor fuel component of the tax imposed under this section.  (g) Residual petroleum product rate. (1) The basic residual  petroleum product rate shall be four cents per gallon.  (2)  Commencing April first, nineteen hundred ninety-one, the residual petroleum product rate shall be the product of the basic rate set  forth in  paragraph  one  of  this  subdivision  multiplied  by a fraction the numerator of which is the  sum  of  the  monthly  producer  price  index (unadjusted)  published  by the bureau of labor statistics of the United States department of labor for the category  of  commodities  designated "refined  petroleum  products"  for the twelve consecutive months ending with the month of November, nineteen hundred ninety, and the denominator of which is the sum of the monthly  producer  price  index  (unadjusted) published  by  the  bureau  of the labor statistics of the United States department of labor for the category of commodities designated  "refined petroleum  products"  for  the twelve consecutive months ending with the month of November, nineteen hundred eighty-nine.  (3)  Commencing  on  the  first  day  of  January,  nineteen   hundred ninety-two,  the  residual  petroleum product rate then in effect on the immediately  preceding  December  thirty-first  shall  be  adjusted   as follows:  Such  rate  shall be multiplied by a fraction the numerator of which is the sum  of  the  monthly  producer  price  index  (unadjusted) published  by  the  bureau  of  labor  statistics  of  the United States department of labor for the category of commodities designated  "refined petroleum  products"  for  the twelve consecutive months ending with the month of August, nineteen hundred  ninety-one  and  the  denominator  of which  is  the  sum  of  the  monthly  producer price index (unadjusted) published by the  bureau  of  labor  statistics  of  the  United  States department  of labor for the category of commodities designated "refined  petroleum products" for the twelve consecutive months  ending  with  the month of August, nineteen hundred ninety. Commencing on the first day of January  of  nineteen  hundred ninety-six and every year thereafter, the residual  petroleum  product  rate  then  in  effect  on the immediately preceding December thirty-first shall be adjusted as follows: Such  rate shall  be  multiplied by a fraction the numerator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the  United  States  department  of  labor  for  the category  of commodities designated "refined petroleum products" for the twelve consecutive months  ending  with  the  month  of  August  of  the immediately  preceding  year  and the denominator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the  United  States  department  of  labor  for  the category  of commodities designated "refined petroleum products" for the twelve consecutive months ending with the month of August  in  the  year prior  to  such  immediately preceding year, provided, however, that the adjusted  rate  to  take  effect  on  January  first,  nineteen  hundred ninety-six and each January first thereafter shall not increase above or decrease  below the rate in effect on the immediately preceding December thirty-first by more than five percent.  (4) Notwithstanding any other provision of  this  article,  commencing January first, nineteen hundred ninety-eight, residual petroleum product which   is  "manufacturing  gallonage,"  as  such  term  is  defined  in subdivision (m) of section three  hundred  of  this  article,  shall  be exempt  from  the measure of the residual petroleum product component of the tax imposed under this section.  (h) Publication and rounding of rate. (1) The commissioner shall cause to be published in the section for miscellaneous notices  in  the  state register,  and  give  other  appropriate  general  notice  of,  the rate adjustment calculation and the resulting motor fuel and  highway  diesel motor  fuel  rate,  non-highway  diesel  motor  fuel  rate  and residual petroleum product rate fixed by this section for the  period  commencing on  January  first,  two  thousand  twelve,  and  for each calendar year thereafter, no  later  than  the  immediately  preceding  first  day  of December.  The  calculation and publication of the rates of tax so fixed by provisions of this section shall not be included within paragraph (a) of  subdivision  two  of  section  one  hundred   two   of   the   state administrative procedure act relating to the definition of a rule.  (2)  The rates determined pursuant to this section shall be rounded to the nearest one-tenth of one cent.  (i) Doing business, etc. Any petroleum business shall not be deemed to be doing business, engaging in business, employing  capital,  owning  or leasing  property,  or  maintaining  an  office  in  this state, for the purposes of this article, by reason  of  (i)  the  maintenance  of  cash balances  with  banks  or  trust  companies  in  this state, or (ii) the ownership of shares of stock or securities kept in this state,  if  kept in  a  safe  deposit box, safe, vault or other receptacle rented for the purpose, or if pledged as collateral security, or if deposited with  one or  more  banks  or  trust  companies,  or  brokers who are members of a recognized security exchange, in safekeeping  or  custody  accounts,  or (iii)  the  taking  of  any  action by any such bank or trust company or broker, which is incidental to the rendering of safekeeping or custodian service to such petroleum business, or (iv) the maintenance of an office in this state by one or more officers  or  directors  of  the  petroleum business (where such business is a corporation) who are not employees of the  petroleum  business  if  such  petroleum  business otherwise is not engaging in business or doing business  in  this  state,  and  does  not employ  capital  or  own  or  lease  property  in this state, or (v) the  keeping of books or records of a petroleum business  in  this  state  if such  books  or  records  are  not  kept  by employees of such petroleum business and such  petroleum  business  does  not  otherwise  engage  in business, do business, employ capital, own or lease property or maintain an  office  in  this  state,  or  (vi)  any combination of the foregoing activities.  (j) Special  provision  relating  to  lack  of  jurisdiction  to  tax. Notwithstanding  any provision of law to the contrary, if a person shall receive any motor fuel in this state with respect to  which  this  state was  without  power to impose the tax under this article, and such motor fuel thereafter becomes subject to the taxing power of this state,  then the  person  possessing  such  motor fuel at such time shall be deemed a petroleum business and be liable for the tax  under  this  article  with respect  to such motor fuel and shall make the same reports and returns, pay the same tax and be subject to all other provisions of this  article relating to petroleum businesses with respect to motor fuel.  (l)  Taxes  imposed  on  qualified reservations. In furtherance of the joint administration of the taxes imposed by article  twelve-A  of  this chapter and the taxes imposed by this article, the provisions of section two  hundred eighty-four-e of this chapter concerning the sales of motor fuel and Diesel motor fuel on qualified Indian reservations shall  apply to  the  payment  and  pass-through of the petroleum business tax in the same manner and with the same force and effect as if the  provisions  of such  section had been incorporated in full into this article, except to the extent that  any  such  provision  is  either  inconsistent  with  a provision of this article or not relevant thereto.  (m)  Special  rate adjustment for certain vessels. Notwithstanding any provision of this section to the contrary, the use of non-highway diesel motor fuel in the engine of a vessel to  propel  such  vessel  shall  be subject  to  tax  at  the  motor fuel and highway diesel motor fuel rate provided for in this section, and shall be subject to the provisions  of section  three  hundred  one-j of this article, including the adjustment set forth in paragraph four of subdivision (a)  of  such  section  three hundred  one-j.  A credit or refund shall be available to the extent tax paid on gallonage used to propel any such vessel exceeds the  amount  of tax  due based on the tax rate set forth herein. Provided, however, that the commissioner shall require such documentary proof to qualify for any credit or reimbursement provided hereunder  as  the  commissioner  deems appropriate.