NY Tax L § 285-A (2021)
2021 New York Laws TAX - Tax Article 12-A - Tax on Gasoline and Similar Motor Fuel 285-A - Presumption of Taxability.

§  285-a. Presumption of taxability. 1. No person shall purchase motor fuel in this state, excluding a purchase at  retail,  unless  the  taxes imposed  by  this  article have been assumed by a distributor registered under this article in accordance with a certification under  subdivision three  of this section or paid by such distributor, and, in each of such instances, are passed through to such  purchaser.  In  addition  to  any other  civil  and  criminal  penalties  which  may apply, any person who purchases motor fuel without having received a  certification  from  the seller  in  accordance  with  subdivision three of this section shall be jointly and severally liable to pay the taxes imposed  by  this  article with respect to such motor fuel.   2. For the purpose of the proper administration of this article and to prevent evasion of the tax on motor fuel imposed by and pursuant to this article, it shall be presumed that all motor fuel imported, manufactured or  sold,  received  or  possessed  in  the  state  is intended for use, distribution, storage or sale in the state  and  subject  to  the  taxes imposed  by  this article until the contrary is established. It shall be further presumed that all motor fuel so imported, manufactured or  sold, received  or possessed in the state by any person, other than motor fuel delivered into the ordinary fuel tank connected with  the  engine  of  a means  of conveyance in order to propel it, or in small drums or similar containers, which such person cannot otherwise account for,  is  subject to  the taxes imposed by this article and such person is responsible for payment of such taxes. Provided, however, a distributor  of  motor  fuel who  imports,  manufactures  or  sells  and  stores  in the state or who purchases and stores motor fuel in the state on which he  has  paid  the taxes imposed by this article shall be allowed an adjustment in arriving at  the  gallons subject to the taxes imposed by such section on account of the gallons the distributor establishes were lost due  to  shrinkage, evaporation  and  handling;  provided, however, such allowance shall not exceed two percent of  the  fuel  stored.  Provided,  further,  that  in arriving  at  the  gallons of motor fuel subject to the taxes imposed by this article, there shall be allowed an adjustment on account of gallons lost or destroyed due to an accident, such as fire, and at the  time  of such  loss  or destruction were being held or transported for sale other than at retail. The burden of proving that any  motor  fuel  is  not  so subject  shall  be  upon the person so responsible for such payment with respect to such fuel.   3. (a) Upon each sale of motor fuel, other than a sale at retail,  the seller must give to the purchaser and the purchaser shall receive at the time  of  delivery  of  such motor fuel, a certification containing such information as the tax commission shall require which  shall  include  a statement  to the effect: (i) if such seller is a distributor registered under this article, that he assumed the payment of  or  paid  the  taxes imposed  by  this  article  and,  in  each case, is passing through such taxes; or (ii) that such seller is passing through such taxes which were so previously assumed or paid by an  identified  distributor  registered under this article, and passed through to him.  (b)  If  the  certification  required  by  this  subdivision  has been furnished to the purchaser at delivery and accepted in good  faith,  the burden of proving that the taxes imposed by this article were assumed or paid  by  a distributor registered as such under this article and passed through shall be solely on the seller.  (c) Where the certification  required  under  this  paragraph  is  not furnished  by the seller at delivery of motor fuel, it shall be presumed that the taxes imposed by this article have not been assumed or paid  by a  distributor  registered  as  such  under  this  article  and that the purchaser in such case is jointly and severally liable for such taxes.  (d) If, due to the circumstances of delivery, it is  not  possible  to issue  a  certification  required  under this subdivision at the time of delivery of motor fuel, the tax commission may authorize the delivery of the certification required under this paragraph  at  a  time  after  the delivery  of  the  motor fuel which is the subject of the sale under the limited circumstances  it  shall  prescribe  and  upon  such  terms  and conditions  it  shall  deem  necessary to ensure collection of the taxes imposed by this article and the tax imposed by  section  eleven  hundred two of this chapter.