2023 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.
*(g)  The  tax  imposed  by  this section must be charged on the sale,
other than a retail sale or a sale that is otherwise exempt  under  this
article, of each gallon of motor fuel or Diesel motor fuel. If the taxes
imposed  by  this  section  have not already been assumed or paid by the
distributor on any quantity of such fuel for any reason, including,  but
not  limited  to,  the expansion of such fuel as a result of temperature
fluctuation, the distributor must remit such taxes to  the  commissioner
on the return for the period in which such sale was made.
* NB Effective September 1, 2023