2023 New York Laws › TAX - Tax › Article 12-A - Tax on Gasoline and Similar Motor Fuel › 285-B - Presumption of Taxability--Diesel Motor Fuel.

§  285-b. Presumption of taxability--Diesel motor fuel. 1. Except with
respect to the exemptions from the excise tax on Diesel motor  fuel  set
forth  in  subdivision three of section two hundred eighty-two-a of this
article, no person shall purchase Diesel motor fuel in this state unless
the taxes imposed by this article have  been  assumed  by  a  registered
distributor  of  Diesel  motor  fuel  in accordance with a certification
under subdivision four of this section or paid by such distributor  and,
in  each  of such instances, except in the case of an exemption from the
pass through of such tax authorized in subdivision four of such  section
two  hundred  eighty-two-a,  are  passed  through  to such purchaser. In
addition to any other civil and criminal penalties which may apply,  any
person  who  purchases  Diesel  motor  fuel  without  having  received a
certification from the seller in accordance  with  subdivision  four  of
this  section  shall  be  jointly  and severally liable to pay the taxes
imposed by this article with respect to such Diesel motor fuel.
2. For purposes of the proper administration of this  article  and  to
prevent  evasion  of  the  taxes  imposed  on  Diesel motor fuel by this
article, it shall be presumed that all Diesel motor fuel sold,  received
or  possessed  in  the  state  is  subject  to the taxes imposed by this
article until the contrary is established. It shall be further  presumed
that  any  person  so selling, receiving or possessing such Diesel motor
fuel is responsible for payment of the excise taxes on such fuel.
3.  (a)  The  claim  for  or  exemption  from  tax  provided  for   in
subparagraphs  (i),  (ii),  (iii),  (iv),  and  (vi) of paragraph (b) of
subdivision three of section two hundred eighty-two-a  of  this  article
shall  be  established by means of an exempt transaction certificate. If
any such exemption is applicable, such certificate shall be provided  by
the  purchaser  to the seller at the time of or prior to delivery of the
Diesel motor fuel. Such exempt transaction certificate shall  set  forth
the name and address of the purchaser and the basis of the exemption and
shall  be  signed  by such purchaser and by the seller. Such certificate
shall be in  such  form  and  contain  such  other  information  as  the
commissioner   shall   require.  Where  a  proper  and  complete  exempt
transaction certificate has been furnished and accepted by the seller in
good faith, such certificate under such circumstance shall  relieve  the
seller  of  the  burden of proving that the Diesel motor fuel covered by
such certificate is exempt from tax by reason of subparagraph (i), (ii),
(iii), (iv), or (vi) of paragraph  (b)  of  subdivision  three  of  such
section  two  hundred  eighty-two-a.  Any purchaser who furnishes to his
seller a false or fraudulent  exempt  transaction  certificate  for  the
purpose of establishing an exemption from the tax imposed by section two
hundred  eighty-two-a  of  this  article  shall be jointly and severally
liable for the tax imposed  by  such  section.  In  lieu  of  an  exempt
transaction   certificate,   the   commissioner   may  provide  for  the
establishment of such  exemption  by  means  of  a  procedure  or  other
document  which he or she deems appropriate so as to secure the revenues
from the excise tax on Diesel motor fuel. Provided, further, in the case
of the exemption provided  by  subparagraph  (i)  of  paragraph  (b)  of
subdivision  three  of section two hundred eighty-two-a of this article,
the commissioner shall provide for an  alternative  procedure  or  other
document  signed  only by the seller, such as a metered delivery ticket,
for the establishment of  such  exemption  in  those  cases  where  such
commissioner  is satisfied that the use of such alternative procedure or
other document will not jeopardize the revenues from the excise  tax  on
Diesel motor fuel.
(b)  A  claim  for the exemption from tax provided for in subparagraph
(v) of paragraph  (b)  of  subdivision  three  of  section  two  hundred
eighty-two-a  of  this  article  shall  be  established  by  means of an

interdistributor sale certificate. If such exemption is applicable, such
certificate shall be provided by the purchaser to the seller at the time
of or prior to delivery of the Diesel motor fuel. Such certificate shall
set  forth  the  name  and  address  of  the  purchaser, the purchaser's
registration number, an affirmation by such purchaser that the purchaser
is registered as a distributor and that such registration has  not  been
suspended  or cancelled and shall be signed by such purchaser and by the
seller. Such certificate shall be in such form and  contain  such  other
information  as  the  commissioner  shall  require.  Where  a proper and
complete  interdistributor  sale  certificate  has  been  furnished  and
accepted  by  the  seller  in  good  faith,  such certificate under such
circumstance shall relieve the seller of the burden of proving that  the
Diesel  motor  fuel  covered  by  such certificate is exempt from tax by
reason of subparagraph (v) of paragraph (b) of subdivision three of such
section two hundred eighty-two-a. For  purposes  of  this  paragraph,  a
seller  shall  not  have  accepted such certificate in good faith if the
purchaser's registration is invalid because it  has  been  suspended  or
cancelled,  or  if the purchaser is not registered, and the commissioner
has furnished registered distributors with information  identifying  all
those  persons  then  validly registered as distributors of Diesel motor
fuel and those  persons  whose  registrations  have  been  suspended  or
cancelled.  Any  purchaser  who  furnishes  to  his  seller  a  false or
fraudulent  interdistributor  sale  certificate  for  the   purpose   of
establishing  an  exemption  from the tax imposed by section two hundred
eighty-two-a of this article shall be jointly and severally  liable  for
the tax imposed by such section.
4.  (a)  Upon  each  sale,  other  than a retail sale not in bulk, the
seller must give to the purchaser and the purchaser shall receive at the
time of delivery of such Diesel motor fuel, a  certification  containing
such  information  as  the  commissioner  of  taxation and finance shall
require which,  unless  otherwise  provided  in  this  paragraph,  shall
include  a  statement to the effect: (i) if such seller is a distributor
registered under this article, that he has 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. In
the case  of  a  transaction  described  in  paragraph  (a)  or  (b)  of
subdivision  three  of  section two hundred eighty-two-a of this article
which is exempt from the imposition of the taxes imposed on Diesel motor
fuel or where the seller, pursuant to and in accordance with subdivision
four of  such  section,  has  not  passed  through  such  taxes  to  the
purchaser,   the  certificate,  in  lieu  of  either  of  the  foregoing
statements, shall state that, based  upon  good  faith  reliance  on  an
exempt  transaction  certificate  (or  such  other  similar  document or
procedure prescribed by the commissioner of taxation  and  finance),  an
interdistributor sales certificate or the exemption document provided by
an  organization described in paragraph one or two of subdivision (a) of
section eleven hundred sixteen of this chapter, as the case may be, such
motor fuel is being sold  under  the  circumstances  described  in  such
paragraph  (a)  or  (b)  of  subdivision  three  of  section two hundred
eighty-two-a or, in the case of the exemption from the pass through,  is
being sold under the circumstances specified in subdivision four of such
section and that the taxes imposed by this article are not applicable or
are not being passed through, as the case may be.
(b)  In  the case of a sale of Diesel motor fuel subject to the excise
taxes and in all cases where the excise taxes are required to be  passed
through,  if  the  certification  required  by this subdivision has been

furnished to the purchaser at the time of  delivery  of  such  fuel  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 subdivision is not
furnished by the seller at the time of  delivery  of  the  Diesel  motor
fuel,  it  shall  be presumed that the taxes imposed by this article are
due and owing and 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 Diesel motor fuel, the commissioner of taxation and  finance
may  authorize  the  delivery  of  the certification required under this
subdivision at a time after the delivery of the Diesel 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 three of this chapter.
* 5. Upon each sale of Diesel 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