2023 New York Laws › TAX - Tax › Article 21-A - Tax on Fuel Use › 523 - Fuel Use Tax.

§  523.  Fuel  use tax. (a) Imposition. There is hereby imposed on and
after January first, nineteen hundred ninety-six a tax on fuel  use  for
the  privilege  of operating any qualified motor vehicle upon the public
highways of this state.
(b) Rate of tax. The tax  imposed  by  this  section  shall  be  at  a
composite  rate  determined  by adding together (1) a fuel tax component
which shall be equal to the applicable rate per gallon in  effect  under
the  taxes  on  motor  fuel  and  diesel  motor  fuel imposed by article
twelve-A of this chapter and (2) a sales tax component, which  shall  be
equal  to  the  sum  of  (A)  a  state  sales  and  compensating use tax
subcomponent, equal to the applicable rate per gallon  in  effect  under
the sales and compensating use taxes on motor fuel and diesel motor fuel
imposed  by  sections eleven hundred five and eleven hundred ten of this
chapter as described in subdivision (m) of section eleven hundred eleven
of this chapter  plus  (B)  a  local  sales  and  compensating  use  tax
subcomponent, which shall be the lower of (i) the lowest applicable rate
per  gallon in effect under the sales and compensating use taxes on such
fuels in effect in any county of this state imposing a local  sales  and
compensating  use  tax  on  a  cents  per  gallon  basis pursuant to the
authority of subpart B of  part  one  of  article  twenty-nine  of  this
chapter,  or  (ii)  the  equivalent rate per gallon based on the highest
rate applicable to the receipts from the sale of a gallon of motor  fuel
or  diesel motor fuel in effect in any locality of this state imposing a
local sales and compensating use tax on a percentage rate basis  on  the
sale  of  motor  fuel and diesel motor fuel pursuant to the authority of
subpart B of part one of article twenty-nine of this chapter.  Provided,
however,  that the total rate per gallon applicable to the receipts from
the sale of a  gallon  of  such  fuels  imposed  under  clause  (ii)  of
subparagraph  (B)  of paragraph two of this subdivision shall not exceed
three percent. Such equivalent rate per  gallon  under  clause  (ii)  of
subparagraph  B of paragraph two of this subdivision shall be determined
as provided in subdivision (d) or (m) of section eleven  hundred  eleven
of  this  chapter  and  the  schedules  prescribed  by  the commissioner
pursuant to such subdivision (d), and shall  be  based  on  the  average
price  per  gallon  (including all federal and state and any local taxes
included in such price or imposed on the  use  or  consumption  of  such
fuels  upon  which  the state and local sales and compensating use taxes
are computed but determined without the inclusion of any state or  local
sales  tax  on  receipts  from  sales of such fuels) paid by the carrier
during the reporting period for all motor fuel  and  diesel  motor  fuel
purchased for use in its operations either within or without this state.
For purposes of clause (ii) of subparagraph (B) of paragraph two of this
subdivision, the price for motor fuel and diesel motor fuel purchased by
such  carrier  shall be deemed to be the prevailing price for motor fuel
and diesel motor fuel, as established by the commissioner each  calendar
quarter  pursuant  to  this section, applicable to the reporting period.
The commissioner shall for each calendar quarter establish a  prevailing
price  for  motor  fuel  and diesel motor fuel based on the prices being
charged on any given day during the first fifteen days of  the  previous
calendar  quarter  at  a  minimum  of  ten  selected  truck stops widely
scattered throughout the state. The tax imposed by this section shall be
computed by multiplying such composite rate by the amount of motor  fuel
or  diesel  motor  fuel,  as  the  case may be, used by a carrier in its
operations within this state during each reporting period. The amount of
motor fuel and diesel motor fuel used in the operations of  any  carrier
within  this  state  shall be determined by dividing the number of miles
traveled in this state subject to tax under this section by the  average
miles  per gallon for the type of fuel. Where the records of any carrier

are inadequate or incomplete, the qualified motor vehicles of a  carrier
filing  returns  shall  be  deemed to have consumed, on the average, one
gallon of diesel motor fuel for every four miles traveled or one  gallon
of motor fuel for every three miles traveled unless substantial evidence
discloses  that a different amount was consumed; provided, however, that
if the commissioner enters into  a  cooperative  agreement  pursuant  to
section  five  hundred  twenty-eight  of this article and such agreement
prescribes a different average miles per gallon deemed to  be  consumed,
the commissioner shall prescribe such different average.