NY Tax L § 1102 (2021)
2021 New York Laws TAX - Tax Article 28 - Sales and Compensating Use Taxes Part 1 - Definitions 1102 - Prepayment of Sales Tax on Motor Fuel and Diesel Motor Fuel.

§  1102.  Prepayment of sales tax on motor fuel and diesel motor fuel. (a) * (1) Every distributor of motor fuel shall pay, as a prepayment  on account  of  the  taxes  imposed  by  this  article  and pursuant to the authority of article twenty-nine of this chapter, a tax on  each  gallon of  motor  fuel  (i) which he imports or causes to be imported into this state for use, distribution, storage or sale in the state  or  produces, refines,  manufactures or compounds in this state or (ii) if the tax has not been imposed prior to its sale in this state, which he sells  (which acts  shall  in  regard  to  motor  fuel  hereinafter in this article be encompassed by the phrase "imported, manufactured or sold"), except when imported, manufactured or sold under circumstances  which  preclude  the collection  of  such tax by reason of the United States constitution and of the laws of the  United  States  enacted  pursuant  thereto  or  when imported  or  manufactured by an organization described in paragraph one or two of subdivision (a) of section  eleven  hundred  sixteen  of  this article  or  a  hospital  included  in  the  organizations  described in paragraph four of such subdivision for its own use and  consumption  and except  kero-jet  fuel  when  imported  by  an  airline  for  use in its airplanes, and except CNG, and except  hydrogen,  and  except  E85  when 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, and except aviation gasoline sold for  use  in  commercial  aircraft  and  general  aviation aircraft.   * NB Effective until September 1, 2026   * (1)  Every  distributor  of motor fuel shall pay, as a prepayment on account of the taxes  imposed  by  this  article  and  pursuant  to  the authority  of  article twenty-nine of this chapter, a tax on each gallon of motor fuel (i) which he imports or causes to be  imported  into  this state  for  use, distribution, storage or sale in the state or produces, refines, manufactures or compounds in this state or (ii) if the tax  has not  been imposed prior to its sale in this state, which he sells (which acts shall in regard to  motor  fuel  hereinafter  in  this  article  be encompassed by the phrase "imported, manufactured or sold"), except when imported,  manufactured  or  sold under circumstances which preclude the collection of such tax by reason of the United States  constitution  and of  the  laws  of  the  United  States  enacted pursuant thereto or when imported or manufactured by an organization described in  paragraph  one or  two  of  subdivision  (a)  of section eleven hundred sixteen of this article or  a  hospital  included  in  the  organizations  described  in paragraph  four  of such subdivision for its own use and consumption and except kero-jet fuel  when  imported  by  an  airline  for  use  in  its airplanes,  and  except  aviation  gasoline  sold  for use in commercial aircraft and general aviation aircraft.   * NB Effective September 1, 2026   * (2)  Every  distributor  of  diesel  motor  fuel  shall  pay,  as  a prepayment  on account of the taxes imposed by this article and pursuant to the authority of article twenty-nine of this chapter, a tax upon  the sale  or  use  of  diesel  motor  fuel  in  this state. The tax shall be computed based upon the number of gallons of diesel motor fuel  sold  or used.  Provided, however, if the tax has not been imposed prior thereto, it shall be imposed on the removal of highway diesel motor fuel  from  a terminal,  other than by pipeline, barge, tanker or other vessel, or the delivery  of  diesel  motor  fuel  to  a  retail  service  station.  The collection  of  such tax shall not be made applicable to the sale or use of diesel motor fuel under circumstances which preclude  the  collection of  such  tax by reason of the United States constitution and of laws of the United States enacted pursuant thereto. The prepaid  tax  on  diesel  motor  fuel  shall not apply to (i) the sale of non-highway Diesel motor fuel to a person registered as a distributor of Diesel motor fuel  other than  a  sale  to  such  person  which  involves a delivery at a filling station  or  into  a  repository  which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel  tank  of  a motor  vehicle;  (ii)  the  sale  to or delivery at a filling station or other retail  vendor  of  water-white  kerosene  provided  such  filling station  or  other  retail  vendor  only sells such water-white kerosene exclusively for heating purposes in containers of no  more  than  twenty gallons  or to the sale of CNG or hydrogen; (iii) the sale of previously untaxed qualified biodiesel, as defined in subdivision  twenty-three  of section  two  hundred eighty-two of this chapter, to a person registered under article twelve-A of this chapter as a distributor of Diesel  motor fuel  other  than (A) a retail sale to such person or (B) a sale to such person which involves  a  delivery  at  a  filling  station  or  into  a repository  which  is  equipped  with a hose or other apparatus by which such qualified biodiesel can be dispensed into the fuel tank of a  motor vehicle;  or  (iv)  the  sale of previously untaxed highway diesel motor fuel by a person registered under article twelve-A of this chapter as  a distributor  of  diesel  motor  fuel  to  a person registered under such article twelve-A as a distributor of diesel motor fuel where the highway diesel motor fuel is either: (A) being delivered by  pipeline,  railcar, barge,  tanker  or  other  vessel  to  a terminal, the operator of which terminal is registered under section two hundred eighty-three-b of  this chapter,  or  (B) within such a terminal where it has been so delivered. Provided, however, that the exemption set  forth  in  this  subparagraph shall not apply to any highway diesel motor fuel if it is removed from a terminal, other than by pipeline, barge, tanker or other vessel.   * NB Effective until September 1, 2026   * (2)  Every  distributor  of  diesel  motor  fuel  shall  pay,  as  a prepayment on account of the taxes imposed by this article and  pursuant to  the authority of article twenty-nine of this chapter, a tax upon the sale or use of diesel motor  fuel  in  this  state.  The  tax  shall  be computed  based  upon the number of gallons of diesel motor fuel sold or used. Provided, however, if the tax has not been imposed prior  thereto, it  shall  be imposed on the removal of highway diesel motor fuel from a terminal, other than by pipeline, barge, tanker or other vessel, or  the delivery  of  diesel  motor  fuel  to  a  retail  service  station.  The collection of such tax shall not be made applicable to the sale  or  use of  diesel  motor fuel under circumstances which preclude the collection of such tax by reason of the United States constitution and of  laws  of the  United  States  enacted pursuant thereto. The prepaid tax on diesel motor fuel shall not apply to (i) the sale of non-highway  Diesel  motor fuel  to a person registered as a distributor of Diesel motor fuel other than a sale to such person  which  involves  a  delivery  at  a  filling station  or  into  a  repository  which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel  tank  of  a motor  vehicle;  (ii)  the  sale  to or delivery at a filling station or other retail  vendor  of  water-white  kerosene  provided  such  filling station  or  other  retail  vendor  only sells such water-white kerosene exclusively for heating purposes in containers of no  more  than  twenty gallons;  (iii)  the  sale of previously untaxed qualified biodiesel, as defined in subdivision twenty-three of section two hundred eighty-two of this chapter to a person  registered  under  article  twelve-A  of  this chapter  as  a  distributor of Diesel motor fuel other than (A) a retail sale to such person or (B) a  sale  to  such  person  which  involves  a delivery  at  a  filling  station or into a repository which is equipped with a hose or other apparatus by which such qualified biodiesel can  be  dispensed  into  the  fuel  tank of a motor vehicle; or (iv) the sale of previously untaxed highway diesel motor  fuel  by  a  person  registered under  article twelve-A of this chapter as a distributor of diesel motor fuel to a person registered under such article twelve-A as a distributor of  diesel motor fuel where the highway diesel motor fuel is either: (A) being delivered by pipeline, railcar, barge, tanker or other vessel to a terminal, the operator of which terminal is registered under section two hundred eighty-three-b of this chapter, or (B) within  such  a  terminal where  it  has  been so delivered. Provided, however, that the exemption set forth in this subparagraph shall not apply  to  any  highway  diesel motor  fuel  once it is removed from a terminal, other than by pipeline, barge, tanker or other vessel.   * NB Effective September 1, 2026  (3) The amount  of  such  prepayment  per  gallon  shall  be  computed pursuant  to the provisions of subdivision (e) of section eleven hundred eleven of this article. Provided, further, no motor fuel or diesel motor fuel shall be included in the measure of the tax  under  clause  (i)  of paragraph one and paragraph two of this subdivision unless it shall have previously  come  to  rest  within the meaning of federal decisional law interpreting the United States constitution.  (b) The taxes required to be prepaid pursuant to this section shall be administered and collected in a like manner  as  the  taxes  imposed  by sections eleven hundred five and eleven hundred ten of this article. All the  provisions  of  this  article  relating  to  or  applicable  to the administration, collection and disposition of the taxes imposed by  such sections  shall  apply  to  the  tax  required  to be prepaid under this section so far as  such  provisions  can  be  made  applicable  to  such prepayments  of  tax  with such limitations as set forth in this article and such modifications as may  be  necessary  in  order  to  adapt  such language  to  the tax so imposed, provided, however, that the provisions of  paragraph  one  of  subdivision  (c)  of  section   eleven   hundred thirty-seven of this article and the reference in section eleven hundred thirty-seven-A  of this article to such paragraph one of subdivision (c) of section eleven hundred thirty-seven shall not be applicable  to  such tax  required  to  be  prepaid under this section. Such provisions shall apply with the same force  and  effect  as  if  the  language  of  those provisions  had  been  set  forth  in full in this section except to the extent that any provision is either inconsistent  with  a  provision  of this  section  or  is  not relevant to the tax required to be prepaid by this section. For purposes  of  this  section,  any  reference  in  this article  to  the tax or taxes imposed by this article shall be deemed to refer to the tax required to be prepaid pursuant to this section  unless a different meaning is clearly required. Provided, further, that, except as  otherwise  provided  in  subdivision  (j)  of section eleven hundred fifteen of this article and except as otherwise  provided  in  paragraph five  of  subdivision  (b)  of  section  eleven  hundred sixteen of this article, the exemptions provided  in  such  sections  (other  than  that provided  in  paragraph  nine  of subdivision (a) of such section eleven hundred fifteen with respect to purchases of kero-jet  fuel)  shall  not apply to the tax required to be prepaid under this section.  (c)  Nothing in this article shall be construed to require the payment of the tax required to be prepaid pursuant to  this  section  more  than once  upon  motor  fuel or diesel motor fuel sold within the state. When the foregoing prepaid tax imposed pursuant to this section  is  paid  it shall  have been so paid on account of the taxes imposed by this article or pursuant to the authority of article twenty-nine of this chapter with respect to the retail sale or use of motor fuel or  diesel  motor  fuel. Nothing  in  this  section  shall  modify or affect the taxes imposed by  sections eleven hundred five and eleven hundred ten of this  article  as applied to receipts from the sale or use of such fuel.  (d)  Deposit  and disposition of revenue. (1) Consistent with sections eleven hundred forty-eight and twelve hundred sixty-one of this chapter, the taxes imposed pursuant to this section and  interest  and  penalties thereon  received  by the commissioner, after deducting the amount which the commissioner of taxation and finance or his delegate shall determine to  be  necessary  for  reasonable  costs   of   the   commissioner   in administering,   collecting   and  distributing  such  taxes,  shall  be deposited daily with such responsible banks,  banking  houses  or  trust companies, as may be designated by the comptroller, to the credit of the comptroller.  Of  the  total  revenue  collected  or received under this section, the comptroller shall retain in his hands such  amount  as  the commissioner  of  taxation and finance may determine to be necessary for refunds under this article and pursuant  to  the  authority  of  article twenty-nine of this chapter.  (2)  On  or before the twelfth day of each month, after reserving such amount for  such  refunds  and  such  costs,  the  commissioner  or  the commissioner's  delegate  shall certify to the comptroller the amount of all revenues so received during the prior  month  as  a  result  of  the taxes,  interest and penalties so imposed and, in addition, on or before the last day of June and December the  commissioner  or  delegate  shall certify  the  amount  of  such  moneys received during and including the first twenty-five days of said months.  At  the  time  the  commissioner prepares  such  certification,  the  commissioner  or the commissioner's delegate shall determine the receipts attributable to  the  amount,  and number of gallons, of motor fuel and diesel motor fuel sold at retail in each  county  and  city  and in the metropolitan commuter transportation district subject to the taxes imposed by sections  eleven  hundred  five and  eleven  hundred  ten  of  this  article  and the like taxes imposed pursuant to the authority of article twenty-nine of this chapter and the commissioner or delegate shall certify the portion of such receipts  and gallons  from  the  total  payments  that  represents the prepaid tax on account of the taxes  imposed  by  this  article  and  pursuant  to  the authority  of  article  twenty-nine  of this chapter (determined without regard to the taxes imposed by this section and any like  taxes  imposed pursuant  to the authority of article twenty-nine of this chapter) based upon the retail sales or uses of  such  fuel  in  such  jurisdiction  or district.  The  amount  of  revenues so certified shall be deposited and distributed by the comptroller in accordance therewith. Where the amount so certified in any distribution is more or less than  the  amount  due, the  amount  of  the  overpayment or underpayment shall be determined as soon after the discovery  of  the  overpayment  or  underpayment  as  is reasonably  possible  and  subsequent  certifications to the comptroller shall be adjusted by subtracting the amount of any such overpayment from or by adding the amount of any  such  underpayment  to  such  number  of subsequent  payments  as  the  comptroller  and  the  commissioner shall consider reasonable  in  view  of  the  amount  of  the  overpayment  or underpayment and all other pertinent facts and circumstances.  (e)  For  the  purposes  of  this section and article twelve-A of this chapter the term "use" shall mean, in addition to the meaning set  forth in  paragraph  seven of subdivision (b) of section eleven hundred one of this article, the exercise of any right or  power  over  motor  fuel  or diesel  motor fuel by any person, whether or not a purchaser, including, but not limited to, the receiving, the withdrawal from  storage  or  any consumption of such fuel.  (f)  Every  wholesaler  of  motor  fuel,  as  such  term is defined by subdivision twenty-seven of  section  two  hundred  eighty-two  of  this  chapter,  shall  pay  or  be  entitled  to a credit or refund of the tax imposed by this section on gallons of motor fuel under the circumstances set forth in paragraph  three  of  subdivision  (e)  of  section  eleven hundred eleven of this article.