NY Tax L § 1139 (2021)
2021 New York Laws TAX - Tax Article 28 - Sales and Compensating Use Taxes Part 4 - Administrative Provisions 1139 - Refunds.

§  1139.  Refunds.  (a) In the manner provided in this section the tax commission  shall  refund  or  credit  any  tax,  penalty  or   interest erroneously,  illegally  or  unconstitutionally  collected  or  paid  if application therefor shall be filed with the tax commission (i)  in  the case  of  tax paid by the applicant to a person required to collect tax, within three years after the date when  the  tax  was  payable  by  such person  to  the  tax  commission  as  provided in section eleven hundred thirty-seven, or (ii) in the case of a tax, penalty or interest paid  by the  applicant  to the tax commission, within three years after the date when such amount was payable under this article, or (iii) in the case of a tax due from the seller,  transferor  or  assignor  and  paid  by  the applicant  to  the  tax  commission  where the applicant is a purchaser, transferee or assignee liable for such tax pursuant to the provisions of subdivision (c) of section eleven hundred  forty-one  of  this  chapter, within  two  years  after  the giving of notice by the tax commission to such purchaser, transferee or assignee of the total amount of any tax or taxes which the state claims to be due from the  seller,  transferor  or assignor.  Such  application shall be in such form as the tax commission shall prescribe. No refund or credit shall be made to any person of  tax which he collected from a customer until he shall first establish to the satisfaction  of  the  tax  commission, under such regulations as it may prescribe, that he has repaid such tax to the customer.  Notwithstanding any  other provision of this article, if the time to file an application for refund or credit of any tax, penalty  or  interest  would  otherwise have   expired  on  or  before  December  nineteenth,  nineteen  hundred sixty-nine, the time for filing such application is hereby  extended  to and  including  December  twentieth, nineteen hundred sixty-nine, except that it shall be further extended, as provided  in  subdivision  (c)  of section  eleven  hundred  forty-seven, where a taxpayer has consented in writing to the extension of the period for assessment of additional tax.  (b) If  an  application  for  refund  or  credit  is  filed  with  the commissioner  of  taxation and finance as provided in subdivision (a) of this section, the commissioner of taxation and finance  shall  grant  or deny  such  application in whole or in part within six months of receipt of the application in a form which is able to  be  processed  and  shall notify  such  applicant by mail accordingly. Such determination shall be final and irrevocable unless such applicant shall,  within  ninety  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 such applicant and to the commissioner of taxation and finance. 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.  (c) Claim for credit or refund of an overpayment of sales tax shall be filed  by  the  taxpayer within three years from the time the return was filed or two years from the time the tax was  paid,  whichever  of  such periods  expires  the later, or if no return was filed, within two years from the time the tax was paid. If the claim is filed within  the  three year  period,  the  amount  of the credit or refund shall not exceed the portion of the tax paid within the three years immediately preceding the filing of the claim plus the period of any extension of time for  filing the  return. If the claim is not filed within the three year period, but is filed within the two year period, the amount of the credit or  refund shall  not  exceed  the  portion  of  the  tax paid during the two years immediately preceding the filing  of  the  claim.  Except  as  otherwise provided  in  this section, if no claim is filed, the amount of a credit  or refund shall not exceed the amount which  would  be  allowable  if  a claim  had  been  filed  on the date the credit or refund is allowed. No refund or credit shall be made of a tax, interest or penalty paid  after a  determination  by  the  commissioner  made pursuant to section eleven hundred thirty-eight unless it be  found  that  such  determination  was erroneous,  illegal  or  unconstitutional  or otherwise improper, by the division of tax appeals pursuant to article forty of this chapter or  by the  commissioner  of  his  own  motion, or in a proceeding for judicial review provided for in section two thousand sixteen of this chapter,  in which  event  a  refund  or credit shall be made of the tax, interest or penalty found to have been overpaid.  (d) (1) Except in respect to an overpayment made on a return described in paragraph two of subdivision (a) of section eleven hundred thirty-six of this part or on a return described  in  subdivision  (c)  of  section eleven  hundred  thirty-seven-A  of this part, interest shall be allowed and paid upon any refund made or credit allowed pursuant to this section except as otherwise provided in paragraph two  of  this  subdivision  or subdivision  (e)  of  this  section and except that no interest shall be allowed or paid if the amount thereof would be  less  than  one  dollar. Such  interest  shall be at the overpayment rate set by the commissioner pursuant to section eleven hundred forty-two of this part, or if no rate is set, at the rate of six percent per annum from the date when the tax, penalty or interest refunded or credited was paid to  a  date  preceding the  date  of  the  refund check by not more than thirty days, provided, however, that for the purposes of this subdivision any tax  paid  before the  last  day  prescribed  for its payment shall be deemed to have been paid on such last day. In the case of a refund or credit  claimed  on  a return  of  tax which is filed after the last date prescribed for filing such return (determined with regard to extensions),  or  claimed  on  an application  for  refund or credit, no interest shall be allowed or paid for any day before the date on which the return or application is filed. For purposes of this subdivision, a return or application for refund  or credit  shall  not  be treated as filed until it is filed in processible form. A return or application is in a processible form if it is filed on a  permitted  form,  and  contains  the  taxpayer's  name,  address  and identifying  number and the required signatures, and sufficient required information (whether  on  the  return  or  application  or  on  required attachments)  to  permit  the mathematical verification of tax liability shown on the return or refund or credit claimed on the application.  (2) If a refund is made or a credit is  allowed  within  three  months after  the  last  date  prescribed or permitted by extension of time for filing a return on which the refund or  credit  was  claimed  or  within three  months  after the return was filed, whichever is later, or within three months after an application for refund or credit is filed on which that refund or credit was claimed, no interest will be allowed  or  paid on that refund or credit.  (e)  The  provisions  of subdivisions (a), (b) and (c) of this section shall be applicable to applications for refund  or  credit  pursuant  to section  eleven  hundred  nineteen and subdivision (e) of section eleven hundred thirty-two, except that an application for credit may be made as provided in such section or subdivision  and  except  that  no  interest shall be allowed or paid upon any refund made or credit allowed pursuant to such section or such subdivision.  (f)  Where a consumer returns a motor vehicle to and receives a refund of the full purchase price, capitalized cost or a portion  thereof  from the  manufacturer  in  accordance  with  the  provisions  of section one hundred ninety-eight-a or subdivision  five  of  section  three  hundred ninety-six-p  of  the general business law, the commissioner of taxation  and finance shall refund to such consumer any tax paid by  the  consumer on  the  amount  of  the  purchase price, capitalized costs and fees and charges refunded by the manufacturer which  is  not  in  excess  of  the receipts  and  proportionate  to  the  receipts  subject to tax. All the provisions of this section shall apply to the refund authorized by  this subdivision,  provided,  however, that a request for a refund under this subdivision shall be timely made if such request for a  refund  is  made within  three  years  of  the  date  the refund from the manufacturer is received by a consumer  pursuant  to  subdivision  (c)  of  section  one hundred  ninety-eight-a of the general business law and further provided that interest allowable under subdivision (d) of this section  shall  be payable  from  the  date  which  is  three  months  after  the  date the application for refund in processible form is received.  (g) The tax commission shall refund or credit any tax  imposed,  under subdivision (a) of section eleven hundred five or section eleven hundred ten, and paid on or after July first, nineteen hundred eighty-seven with respect to:  (i)  tractors, trailers or semi-trailers, as such terms are defined in article one of the vehicle and traffic law, and  property  installed  on such  vehicles  for their equipping, maintenance or repair provided such vehicle is used in combination where the gross vehicle  weight  of  such combination exceeds twenty-six thousand pounds; and  (ii)  services,  if performed upon tractors, trailers or semi-trailers described in paragraph (i) of this subdivision or on property  installed on such vehicles for their equipping, maintenance or repair.   All  of  the  provisions  of  this  section  shall apply to the refund authorized  by  this  subdivision,  provided,  however,  that   interest allowable  under  subdivision  (d)  of  this section shall be payable in accordance with such subdivision but only from the date the tax, penalty or interest refunded or credited was paid, or was deemed  to  have  been paid,  to March thirty-first, nineteen hundred eighty-eight and from the date which is ninety days after the date the application for  refund  in processible form is received.  (h)(1)  Notwithstanding  any  provision  of  the  law to the contrary, pursuant to the provisions of this subdivision, the  commissioner  shall refund  or  credit to (i) a credit card issuer tax paid pursuant to this article in respect to motor fuel and diesel motor fuel  purchased  by  a government  entity  and paid for by such government entity with a credit card issued by such credit card issuer or (ii) a  fuel  distributor  tax paid  pursuant to this article in respect to motor fuel and diesel motor fuel purchased by a government entity and paid for  by  such  government entity  with  a  credit card issued by a credit card issuer. Such credit card issuer or such fuel distributor, as designated by the parties in  a written  designation  to  the  commissioner,  shall  be  the only person eligible to receive such refund or credit, provided that: (A) such taxes were actually paid to the commissioner; (B) the fuel so purchased by the government entity is for its  own  use  or  consumption  such  that  the purchase  qualifies  as  an  exempt purchase pursuant to an exception in paragraph five of subdivision (b) of section eleven hundred  sixteen  of this  article;  (C) the credit card issuer or fuel distributor meets the requirements  of  paragraph  two  of  this  subdivision;  and  (D)   the commissioner has not issued a notice pursuant to subdivision fourteen of section eleven hundred forty-two of this part indicating that the credit card  issuer  or fuel distributor is no longer allowed to claim a refund or credit under this subdivision for the fuel purchased by a  particular government  entity.  Such  application  for  credit  or  refund shall be submitted after the end of the quarter in which the vendor of the  motor fuel  or  diesel  motor fuel was required to report the tax liability it  collected from the credit card issuer or fuel  distributor  pursuant  to section   eleven  hundred  thirty-six  of  this  part,  but  within  the applicable statute of limitations as required under this section.  (2)  In  order to be eligible to receive the refund or credit provided for in paragraph one of this subdivision, the credit card issuer or fuel distributor shall: (A) file  with  the  commissioner  a  certificate  of registration  and receive a certificate of authority pursuant to section eleven hundred thirty-four of this part, if not already  so  registered, provided,  however,  the  credit  card  issuer or fuel distributor shall provide such additional information as the commissioner may require; (B) establish it has (i) not charged or otherwise received any tax,  or  any amount  purportedly  as  tax,  from  the  government  entity  making the purchase; and (ii) filed a written consent signed by  the  chief  fiscal officer of the government entity stating that no tax was charged to such government  entity  by  the  credit card issuer or fuel distributor, and that therefore the government entity has no claim for a credit or refund relating to its purchases of motor fuel or diesel  motor  fuel  effected with  the credit card issuer's credit card and that no such claim has or will be made by the government entity; (C) establish either that (i) the retail station or other vendor has been repaid  the  amount  of  tax  it charged  to the government entity on the government entity's purchase of the motor fuel or diesel  motor  fuel,  or  (ii)  obtained  the  written consent  of  the  retail station or other vendor to the allowance of the credit or refund to the credit card issuer or fuel distributor; and  (D) provide  such  detailed  transactional and jurisdictional information to the commissioner as the commissioner may require, in the form  requested by the commissioner.  (3)(A)  The  term  "government  entity"  means  an entity described in paragraph one, two or three of subdivision (a) of section eleven hundred sixteen  of  this  article  or  any  diplomatic  mission  or  diplomatic personnel  who  are  permitted by the United States to purchase fuel and diesel motor fuel exempt from the taxes imposed pursuant to this article and articles twelve-A and thirteen-A of this chapter.  (B) The term "credit card issuer" means a person  which  finances  the exempt  purchase  of  motor  fuel  or  diesel motor fuel by a government entity by means  of  a  credit  or  other  access  card  issued  to  the government entity by such person.  (C)  The  term "fuel distributor" means any person who is a registered distributor under article twelve-A of this chapter and who is registered as a person required to collect tax pursuant to this article.  (4) If any requirement of paragraph two of  this  subdivision  is  not met,  or  if  the  credit  card  issuer  and, where applicable, the fuel distributor, receive  a  notice  pursuant  to  subdivision  fourteen  of section  eleven  hundred forty-two of this article, then an amount equal to the  tax  imposed  by  this  article  shall  be  collected  from  the government entity, notwithstanding such entity's exempt status, and such government  entity shall be responsible for seeking any credit or refund which it may be allowed under this article.  (5) The provisions of subdivisions (a), (b) and (c)  of  this  section shall also apply to an application for refund or credit pursuant to this subdivision,   except   to   the   extent  that  such  subdivisions  are inconsistent with this subdivision, and except that no interest shall be allowed or paid upon any refund made or credit allowed pursuant to  this subdivision. Any document required pursuant to this subdivision shall be in  such  form  and  contain  such information as the commissioner shall prescribe.  (6) A credit card issuer or fuel distributor  designated  pursuant  to this  subdivision  to  receive  the  refund  or credit and its officers,  directors, employees, managers and members under a duty to act for  such credit card issuer or fuel distributor in complying with any requirement of  this  article and, where such credit card issuer or fuel distributor is  a  partnership  or  limited  liability  company,  any member of such partnership or company shall be deemed to be persons required to collect tax and shall be personally liable in  accordance  with  section  eleven hundred  thirty-three  of  this  article with respect to the liabilities described in subparagraph (E) of paragraph three of subdivision  (a)  of section  eleven  hundred  thirty-eight  of  this  part.  Nothing in this subdivision shall be construed to require a credit card issuer to file a return pursuant to section eleven hundred thirty-six of this part unless otherwise required to do so by another  provision  of  this  article  or unless  the  commissioner,  in  his  or her discretion, determines it is necessary for the proper enforcement of this  article  for  credit  card issuers  or  distinct  classes  of such issuers to file such returns and gives notice of such determination to such issuers.  (7) Nothing in this subdivision shall be construed to exempt  (A)  the purchase of motor fuel or diesel motor fuel by a government entity where it is not the ultimate user or consumer of such fuel, or (B) any sale by a government entity of motor fuel or diesel motor fuel.