NY Tax L § 301-E (2021)
2021 New York Laws TAX - Tax Article 13-A - Tax on Petroleum Businesses 301-E - Aviation Fuel Business.

§  301-e.  Aviation  fuel  business.  (a)  Notwithstanding  any  other provision of this chapter, for taxable months commencing  on  and  after the  first  day  of  September, nineteen hundred ninety, there is hereby imposed upon every aviation fuel business for the privilege of  engaging in  business,  doing  business,  employing  capital,  owning  or leasing property, or maintaining an office in this state, for all or any part of each of its taxable months a monthly tax equal to the  sum  of  (1)  the aviation  gasoline  component  determined pursuant to subdivision (b) of this section and (2)  the  kero-jet  component  determined  pursuant  to subdivision (c) of this section. Provided, however, the commissioner may permit  the  tax  imposed  under this subdivision and returns related to such tax to be paid and filed for a period covering  twelve  consecutive taxable months by aviation fuel businesses which are not airlines.  (b)  Aviation  gasoline component. (1) The aviation gasoline component shall be determined by multiplying the aviation gasoline rate times  the number of gallons of aviation gasoline imported or caused to be imported into  this  state  by  an  aviation fuel business for use, distribution, storage or sale in the  state  or  produced,  refined,  manufactured  or compounded  in  the  state  by  an aviation fuel business. Provided that importation of aviation gasoline into the state in  the  fuel  tanks  of aircraft  shall be importation for use for the purposes of this section. The basic aviation gasoline rate shall be five and  one-half  cents  per gallon.  The rate shall be adjusted at the same time as the rates of the components of the  petroleum  business  tax  imposed  by  section  three hundred  one-a  of this article, and the method of making adjustments to the aviation gasoline rate shall be the same as the method used for such rates.  (2) Partial credit or refund with  respect  to  aviation  gasoline.  A distributor  of  motor  fuel  shall  be  entitled to a partial credit or refund of the tax paid under this section on aviation gasoline sold to a fixed base operator registered under article twelve-a of this chapter as a "retail seller of aviation gasoline" under the circumstances described in subparagraph (i) of paragraph (b) of subdivision one-a of section two hundred eighty-nine-c of  this  chapter.  Provided,  that  in  order  to qualify  for  the credit or refund the amount of tax claimed as a credit or refund shall  have  been  paid  or  assumed  on  such  sale  by  such distributor  and shall have not been passed on to such "retail seller of aviation gasoline". A distributor of motor fuel, also  registered  as  a "retail  seller  of  aviation  gasoline", shall be entitled to a partial credit or refund for aviation gasoline delivered and stored at its fixed base operations premises in such subparagraph (i), and  such  credit  or refund  shall  accrue at the time the fuel is so delivered and placed in such storage facility. An airline which is registered as  a  distributor of  motor  fuel  and which imports aviation gasoline into this state for use in its airplanes, where delivery and storage take place as described in such subparagraph (i), shall also be allowed such partial  credit  or refund  of  tax  on  such  fuel  so imported and used exclusively in the operation of its airplanes. An aviation fuel business, taxed as such, by reason of importation in the fuel tank of  an  airplane  shall  also  be allowed  such partial credit or refund for aviation gasoline consumed in this state. The amount of the partial credit or refund  allowable  under this  subparagraph  shall  be  the  excess of tax which exceeds five and two-tenths cents per gallon. Provided, that  such  five  and  two-tenths cents  rate  used  to  compute  this  partial credit and refund shall be adjusted at the same time as the rate of the aviation gasoline component imposed by paragraph one of this subdivision, and the methods of  making such  adjustments to this partial credit and refund shall be the same as the method used for such rates.  (c) Kero-jet fuel component. The  kero-jet  fuel  component  shall  be determined  by  multiplying  the  kero-jet fuel rate times the number of gallons of (1) kero-jet fuel imported or caused to be imported into this state by an aviation fuel business and consumed in this  state  by  such business  in the operation of its aircraft; and (2) kero-jet fuel, which has not been previously included in the measure of the  tax  imposed  by this  section,  (i)  which  is  sold  in  this state by an aviation fuel business to persons other than those registered under  this  article  as aviation  fuel  businesses or (ii) which is consumed in this state by an aviation fuel business in the operation of its aircraft.  Provided  that importation  of  kero-jet  fuel  in  the fuel tanks of aircraft shall be importation for the purposes of this section. The  basic  kero-jet  fuel rate  shall  be six and eight-tenths cents per gallon. The rate shall be adjusted at the same  time  as  the  rates  of  the  components  of  the petroleum  business  tax  imposed by section three hundred one-a of this article, and the method of making adjustments to the kero-jet fuel  rate shall be the same as the method used for such rates.  (d)  (1)  An aviation fuel business shall be entitled to reimbursement of the tax imposed by this section, less any credit  allowed  or  refund granted,  with  respect to aviation gasoline purchased in this state and consumed by such business exclusively as aviation fuel in the  operation of  its  aircraft  where  such aviation gasoline is not consumed in this state, provided that the amount of such tax, less any credit or  refund, has  been absorbed by such aviation fuel business. Provided, further, an aviation fuel business which has imported aviation  gasoline  into  this state  and  consumed  such  aviation  gasoline  in  the operation of its aircraft where a portion of such aviation gasoline is  not  consumed  in this  state shall be allowed a credit for such gallonage not consumed in this state in computing the tax imposed by such section.  (2) An aviation fuel business shall be entitled  to  reimbursement  of the  tax imposed by this section with respect to kero-jet fuel purchased in this state and consumed by such business exclusively as aviation fuel in the operation of  its  aircraft  where  such  kero-jet  fuel  is  not consumed  in this state, provided that the entire amount of such tax has been absorbed by such aviation fuel business.  (3) Any purchaser of aviation gasoline in this state who consumes such aviation gasoline exclusively as aviation fuel in the operation  of  its aircraft shall be entitled to a partial reimbursement of the tax imposed by this section with respect to aviation gasoline which was purchased by such  purchaser  and upon which such purchaser paid or absorbed the full amount of the tax imposed by this section (where no  partial  credit  or refund  under  paragraph  two  of  subdivision  (b)  of this section was provided with  respect  to  such  aviation  gasoline)  where:  (i)  such purchaser  purchases  the  aviation  gasoline from a fixed base operator which qualifies as a retail seller of aviation gasoline but  is  not  so registered  under  article  twelve-A  of  this  chapter,  or  (ii)  such purchaser purchases the aviation gasoline in bulk from a distributor  of motor  fuel registered under article twelve-A of this chapter where such distributor delivers such aviation gasoline directly into a bulk storage facility of the purchaser which is at a fixed and permanent place at  an airport  within  this state and is used solely to fill the fuel tanks of its aircraft for use in  the  operations  thereof.  The  amount  of  the reimbursement  allowable  under  this  paragraph  shall  be equal to the amount of the partial credit or refund allowable under paragraph two  of subdivision (b) of this section.  (4)  The  commissioner shall require such documentary proof to qualify for any credit, refund or  reimbursement  of  tax  provided  under  this subdivision as the commissioner deems appropriate.  (e) All the provisions of this article relating to the administration, collection  and  disposition of the tax imposed on petroleum businesses, including the registration provisions of section three  hundred  two  of this  article applicable to residual petroleum product businesses, shall apply to the tax imposed by this section and the registration under this article  of  aviation  fuel  businesses with such modification as may be necessary in order to adapt the language of such provisions to  the  tax imposed  by this section. When reference in this article is made to "the tax imposed under this article" or where words  of  similar  import  are used, unless the context indicates otherwise, such reference shall be to the  tax  imposed  under section three hundred one-a of this article and this section. The tax imposed by  this  section  shall  be  administered jointly  in  conjunction  with,  and  as  a  part of, the tax imposed on petroleum businesses as if the provisions of  subdivision  (a)  of  this section,  imposing  the  tax under this section, were made a part of the imposition provisions of  section  three  hundred  one-a,  except  where contrary  or  not  applicable  to or inconsistent with the provisions of this section. Provided, further, for the purpose of this section:  (1)  the  term  "aviation  fuel  business"  shall  mean  a  "petroleum business"  as described in paragraph one or paragraph two of subdivision (b) of section three hundred of this article except that the  activities described  therein  shall  separately  relate to aviation gasoline (such paragraph one) and kero-jet fuel (such  paragraph  two)  and  such  term shall   also   include  every  corporation  or  unincorporated  business importing or causing to be imported aviation fuel into  this  state  for consumption by it in this state by bringing such aviation fuel into this state  in  aircraft  fuel  tanks which connect to the engines propelling such aircraft.  (2) kero-jet fuel and aviation gasoline consumed in this  state  shall be  presumed  to mean all such fuel consumed during takeoffs from points in this state;  (3) where the commissioner of taxation and finance decides  that  with respect to a certain petroleum business any of the methods prescribed in paragraph  two  of  this subdivision do not fairly and equitably reflect fuel consumed in this state, the commissioner shall prescribe methods of attribution which fairly and equitably reflect  fuel  consumed  in  this state.  (4)  "aviation  fuel"  means  kero-jet  fuel and aviation gasoline (as described in paragraph three of subdivision (a) of section three hundred one-b of this article). Provided, further the term  kero-jet  shall  not include  naphtha  based  aviation  fuel  refined  and  used  solely  for propelling military jet airplanes of the United States Armed Forces.  (f) An aviation fuel business, which services four or more  cities  in the  state  with  non-stop  flights between such cities, shall be exempt from the tax imposed by this section and any surcharge imposed  on  such tax.