2023 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.