2023 New York Laws › TAX - Tax › Article 12-A - Tax on Gasoline and Similar Motor Fuel › 282-A - Imposition of Excise Tax on Diesel Motor Fuel.

§  282-a.  Imposition of excise tax on Diesel motor fuel.  1. There is
hereby levied and imposed with respect to Diesel motor  fuel  an  excise
tax  of  four cents per gallon upon the sale or use of Diesel motor fuel
in this state.
The excise tax is imposed on the first sale or  use  of  Diesel  motor
fuel to occur which is not exempt from tax under this article. 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  filling  station  or  into  the  fuel  tank
connecting  with  the engine of a motor vehicle for use in the operation
thereof whichever event shall be  first  to  occur.  The  tax  shall  be
computed  based  upon  the  number of gallons of Diesel motor fuel sold,
removed or used or the number of gallons of Diesel fuel  delivered  into
the  fuel  tank  of a motor vehicle, as the case may be. Nothing in this
article shall be construed to require the payment  of  such  excise  tax
more than once upon the same Diesel motor fuel. Nor shall the collection
of  such  tax 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. Provided, further, no Diesel motor fuel  shall
be  included  in  the measure of the tax unless it shall have previously
come to rest within the meaning of federal decisional  law  interpreting
the  United  States  constitution.  All  tax  for the period for which a
return is required to be filed shall be due on the date limited for  the
filing  of the return for such period, regardless of whether a return is
filed as required by this article or whether the return which  is  filed
correctly shows the amount of tax due.
2.  No  person  shall  sell or use Diesel motor fuel within this state
(other than a retail sale not in bulk or self-use of Diesel  motor  fuel
which  has  been  the  subject  of  a  retail sale), import or cause the
importation of Diesel motor fuel into  the  state  or  produce,  refine,
manufacture  or  compound Diesel motor fuel within the state unless such
person shall be registered by the department as a distributor of  Diesel
motor   fuel.  Provided,  the  commissioner  shall  not  register  as  a
distributor of Diesel motor fuel any person who is engaged solely in one
or both of the following: (i) any person who makes or offers to  make  a
retail  sale  not  in bulk of such fuel or (ii) any person who purchases
Diesel motor fuel in  bulk  in  this  state  for  the  sole  purpose  of
self-use.  The  commissioner  may, however, register as a distributor of
kero-jet fuel only a fixed base operator who makes no sales of  kero-jet
fuel  other  than  retail  sales not in bulk delivered directly into the
fuel tank of an airplane for use in the operation of such  airplane  and
who  makes  no other sales of diesel motor fuel. Such registration shall
apply only to the wholesale purchase of kero-jet  fuel  and  the  retail
sale  of  such fuel not in bulk for delivery directly into the fuel tank
of an airplane for use in the operation thereof. Provided, further, that
if the commissioner is satisfied that full registration is not necessary
in order to protect tax revenues, the commissioner may limit  or  modify
the  requirement  of  registration  as a distributor with respect to any
person otherwise required to register solely because such person engages
in the sale of non-highway Diesel motor fuel  where  such  person  makes
sales  of  non-highway  Diesel motor fuel to the consumer solely for the
purposes described in subparagraph (i) of paragraph (b)  of  subdivision
three  of  this  section, provided that if the commissioner so limits or
modifies such registration requirement with respect to such person, then
such  registration  shall  apply  only  to  the  importation,  sale  and
distribution of such non-highway Diesel motor fuel. The commissioner may

also  waive  any  other  requirement  imposed  by this article on such a
distributor. All the provisions of section two hundred  eighty-three  of
this  article shall apply to applicants for registration and registrants
with  respect  to Diesel motor fuel, and, in addition, distributors with
respect to Diesel motor fuel shall be subject to all other provisions of
this article relating to distributors of motor fuel, including  but  not
limited  to,  the  keeping  of  records,  the  fixing, determination and
payment  of  tax  and  filing  of  returns.   Provided,   further,   the
commissioner  may  limit  or modify the requirement of registration as a
distributor with respect  to  any  person  who  produces  for  self  use
"unqualified biodiesel."
3.  (a) The tax imposed by this section shall not apply to the sale of
untaxed Diesel motor fuel to or the use of such fuel by an  organization
described  in  paragraph one or two of subdivision (a) of section eleven
hundred sixteen of this chapter where such Diesel motor fuel is used  by
such organization for its own use or consumption.
(b) The tax on the incidence of sale or use imposed by subdivision one
of  this  section shall not apply to: (i) the sale or use of non-highway
Diesel motor fuel, but only if all of such fuel is consumed  other  than
on  the  public highways of this state (except for the use of the public
highway by farmers to reach adjacent farmlands); provided, however, this
exemption shall in no event apply to a sale of non-highway Diesel  motor
fuel 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 (except for  delivery
at  a  farm site which qualifies for the exemption under subdivision (g)
of section three hundred one-b of this chapter); or (ii) a sale  to  the
consumer  consisting  of  not  more  than  twenty gallons of water-white
kerosene to be used and consumed exclusively for  heating  purposes;  or
(iii)  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 (iv) a
sale of kero-jet fuel to an airline for use in its airplanes or a use of
kero-jet fuel by an airline in its airplanes; or (v) a sale of  kero-jet
fuel  by  a  registered distributor of Diesel motor fuel to a fixed base
operator registered under this article as a distributor of kero-jet fuel
only where such fixed base operator  is  engaged  solely  in  making  or
offering to make retail sales not in bulk of kero-jet fuel directly into
the fuel tank of an airplane for the purpose of operating such airplane;
or  (vi)  a  retail  sale  not  in bulk of kero-jet fuel by a fixed base
operator registered under this article as a distributor of kero-jet fuel
only where such fuel is delivered directly into  the  fuel  tank  of  an
airplane for use in the operation of such airplane; or (vii) the sale of
previously untaxed qualified biodiesel to a person registered under this
article  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 (viii) the sale of
previously untaxed highway Diesel motor  fuel  by  a  person  registered
under  this  article  as  a distributor of Diesel motor fuel to a person
registered under this article 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 article, 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.
(c) Nothing in this article shall exempt non-highway diesel motor fuel
from  the  imposition of the tax under this section, if such non-highway
diesel motor fuel is intended for use on  the  waterways  of  the  state
including  any  other  waterways  bordering  on the state, for operating
pleasure or recreational motor boats thereon.
4. The tax imposed by this section  on  Diesel  motor  fuel  shall  be
passed  through  by the seller and included as part of the selling price
to each purchaser of such fuel. Provided, however, the amount of the tax
imposed by this section may be excluded from the selling price of Diesel
motor fuel where (i)  a  sale  of  Diesel  motor  fuel  is  made  to  an
organization  described  in  paragraph  (a) of subdivision three of this
section  solely  for  the  purpose  stated  therein;  (ii)  a  sale   of
non-highway  Diesel  motor  fuel  is made to a consumer but only if such
non-highway Diesel motor fuel is not delivered to a filling station, nor
delivered into a storage tank which is equipped with  a  hose  or  other
apparatus  by  which  such fuel can be dispensed into the fuel tank of a
motor vehicle; or (iii) 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 (iv) a sale of kero-jet fuel is made to an airline  for  use
in its airplanes.
5.  All  the provisions of this article relating to the administration
and collection of the taxes on motor fuel, except  section  two  hundred
eighty-three-a  of  this article, shall be applicable to the tax imposed
by this section with such limitation as  specifically  provided  for  in
this   article   with  respect  to  Diesel  motor  fuel  and  with  such
modification  as  may  be  necessary  to  adapt  the  language  of  such
provisions  to the tax imposed by this section. With respect to the bond
or other security required by subdivision three of section  two  hundred
eighty-three  of  this  article,  the  commissioner,  in determining the
amount of bond or other security required for the  purpose  of  securing
tax  payments,  shall take into account the volume of non-highway Diesel
motor fuel and other Diesel motor fuel sold for  exempt  purposes  by  a
distributor  of  Diesel  motor  fuel  during  prior  periods as a factor
reducing potential tax liability along with any other  relevant  factors
in determining the amount of security required. With respect to the bond
required  to  be  filed  prior  to  registration  as a Diesel motor fuel
distributor, no bond shall be required of an applicant upon a finding of
the applicant's fiscal responsibility, as reflected by such  factors  as
net worth, current assets and liabilities, and tax reporting and payment
history,  and  the  department  shall  not provide for a minimum bond of
every applicant.