2023 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.
* 4. Upon each sale of motor fuel, other than a sale that is otherwise
exempt  under  this article, the distributor must charge the tax imposed
by this article to the purchaser on  each  gallon  sold.  If  the  taxes
imposed  by  this  article  have  not  already been assumed or paid by a
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