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A03869 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3869
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 8, 2023
                                       ___________
 
        Introduced by M. of A. THIELE -- read once and referred to the Committee
          on Ways and Means
 
        AN  ACT to amend the tax law, in relation to providing an exemption from
          the payment of the motor fuels tax and the sales tax  on  motor  fuels
          used in the operation of commercial fishing vessels

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1.  Paragraph (b) of subdivision 3 of section 282-a of the tax
     2  law, as amended by section 3 of part W of chapter  59  of  the  laws  of
     3  2013, is amended to read as follows:
     4    (b) The tax on the incidence of sale or use imposed by subdivision one
     5  of  this  section shall not apply to: (i) the sale or use of non-highway
     6  Diesel motor fuel, but only if all of such fuel is consumed  other  than
     7  on  the  public highways of this state (except for the use of the public
     8  highway by farmers to reach adjacent farmlands); provided, however, this
     9  exemption shall in no event apply to a sale of non-highway Diesel  motor
    10  fuel which involves a delivery at a filling station or into a repository
    11  which  is equipped with a hose or other apparatus by which such fuel can
    12  be dispensed into the fuel tank of a motor vehicle (except for  delivery
    13  at  a  farm site which qualifies for the exemption under subdivision (g)
    14  of section three hundred one-b of this chapter); or (ii) a sale  to  the
    15  consumer consisting of not more than twenty gallons of water-white kero-
    16  sene  to be used and consumed exclusively for heating purposes; or (iii)
    17  the sale to or delivery at a filling station or other retail  vendor  of
    18  water-white  kerosene  provided  such  filling  station  or other retail
    19  vendor only sells such  water-white  kerosene  exclusively  for  heating
    20  purposes in containers of no more than twenty gallons; or (iv) a sale of
    21  kero-jet  fuel  to an airline for use in its airplanes or a use of kero-
    22  jet fuel by an airline in its airplanes; or (v) a sale of kero-jet  fuel
    23  by  a registered distributor of Diesel motor fuel to a fixed base opera-
    24  tor registered under this article as a distributor of kero-jet fuel only
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03843-01-3

        A. 3869                             2
 
     1  where such fixed base operator is engaged solely in making  or  offering
     2  to make retail sales not in bulk of kero-jet fuel directly into the fuel
     3  tank  of an airplane for the purpose of operating such airplane; or (vi)
     4  a  retail  sale  not  in  bulk of kero-jet fuel by a fixed base operator
     5  registered under this article as a distributor  of  kero-jet  fuel  only
     6  where  such fuel is delivered directly into the fuel tank of an airplane
     7  for use in the operation of such airplane; or (vii) the sale  of  previ-
     8  ously  untaxed  qualified  biodiesel  to  a person registered under this
     9  article as a distributor of Diesel motor fuel other than  (A)  a  retail
    10  sale to such person or (B) a sale to such person which involves a deliv-
    11  ery  at  a filling station or into a repository which is equipped with a
    12  hose or other  apparatus  by  which  such  qualified  biodiesel  can  be
    13  dispensed  into  the fuel tank of a motor vehicle; or (viii) the sale of
    14  previously untaxed highway Diesel motor  fuel  by  a  person  registered
    15  under  this  article  as  a distributor of Diesel motor fuel to a person
    16  registered under this article as a  distributor  of  Diesel  motor  fuel
    17  where  the  highway  Diesel motor fuel is either: (A) being delivered by
    18  pipeline, railcar, barge, tanker or other  vessel  to  a  terminal,  the
    19  operator  of  which  terminal  is  registered  under section two hundred
    20  eighty-three-b of this article, or (B) within such a terminal  where  it
    21  has  been  so delivered. Provided, however, that the exemption set forth
    22  in this subparagraph shall not apply to any highway Diesel motor fuel if
    23  it is removed from a terminal, other than by pipeline, barge, tanker  or
    24  other vessel; or (ix) a sale of Diesel motor fuel to a "commercial fish-
    25  erman",  as  such  term  is  defined in subdivision (i) of section three
    26  hundred of this chapter, at retail under the circumstances set forth  in
    27  paragraph  one of subdivision (g) of section three hundred one-c of this
    28  chapter, and where such commercial  fishing  vessel  is  operated  by  a
    29  commercial fisherman.
    30    §  2.  Subdivision  4  of  section 282-a of the tax law, as amended by
    31  section 5 of part K of chapter 61 of the laws of  2011,  is  amended  to
    32  read as follows:
    33    4.  The  tax  imposed  by  this  section on Diesel motor fuel shall be
    34  passed through by the seller and included as part of the  selling  price
    35  to each purchaser of such fuel. Provided, however, the amount of the tax
    36  imposed by this section may be excluded from the selling price of Diesel
    37  motor fuel where (i) a sale of Diesel motor fuel is made to an organiza-
    38  tion  described  in  paragraph  (a) of subdivision three of this section
    39  solely for the purpose stated therein; (ii) a sale of non-highway Diesel
    40  motor fuel is made to a consumer but only  if  such  non-highway  Diesel
    41  motor  fuel  is not delivered to a filling station, nor delivered into a
    42  storage tank which is equipped with a hose or other apparatus  by  which
    43  such  fuel  can  be  dispensed into the fuel tank of a motor vehicle; or
    44  (iii) the sale to or delivery at  a  filling  station  or  other  retail
    45  vendor  of  water-white  kerosene provided such filling station or other
    46  retail vendor only sells such water-white kerosene exclusively for heat-
    47  ing purposes in containers of no more than twenty  gallons;  or  (iv)  a
    48  sale of kero-jet fuel is made to an airline for use in its airplanes; or
    49  (v)  a sale of Diesel motor fuel is made to a "commercial fisherman", as
    50  such term is defined in subdivision (i) of section three hundred of this
    51  chapter, at retail under the circumstances set forth in paragraph one of
    52  subdivision (g) of section three hundred  one-c  of  this  chapter,  and
    53  where such commercial fishing vessel is operated by a commercial fisher-
    54  man.
    55    §  3. Section 301-b of the tax law is amended by adding a new subdivi-
    56  sion (k) to read as follows:

        A. 3869                             3
 
     1    (k) Sales or uses of diesel motor fuel and residual petroleum  product
     2  for  commercial fishing. Diesel motor fuel or residual petroleum product
     3  sold to or used by a "commercial fisherman", as such term is defined  in
     4  subdivision  (i)  of  section  three  hundred of this article, at retail
     5  under the circumstances set forth in paragraph one of subdivision (g) of
     6  section  three  hundred one-c of this article, and where such commercial
     7  fishing vessel is operated by a commercial fisherman.
     8    § 4. Subdivision (j) of section 1115 of the tax  law,  as  amended  by
     9  section  41  of  part K of chapter 61 of the laws of 2011, is amended to
    10  read as follows:
    11    (j) The exemptions provided in this section shall not apply to the tax
    12  required to be prepaid pursuant to  the  provisions  of  section  eleven
    13  hundred  two of this article nor to the taxes imposed by sections eleven
    14  hundred five and eleven hundred ten of  this  article  with  respect  to
    15  receipts  from sales and uses of motor fuel or diesel motor fuel, except
    16  that the exemptions provided in paragraphs nine and forty-two of  subdi-
    17  vision (a) of this section shall apply to the tax required to be prepaid
    18  pursuant to the provisions of section eleven hundred two of this article
    19  and  to  the  taxes  imposed  by sections eleven hundred five and eleven
    20  hundred ten of this article with respect to sales and uses  of  kero-jet
    21  fuel,  CNG,  hydrogen  and E85, provided, however, the exemption allowed
    22  for E85 shall be subject to  the  additional  requirements  provided  in
    23  section  eleven  hundred  two  of  this  article with respect to E85 and
    24  except that the exemption provided in paragraph twenty-four of  subdivi-
    25  sion  (a)  of  this section shall apply to the taxes imposed by sections
    26  eleven hundred five and eleven hundred ten of this article with  respect
    27  to  sales and uses of diesel motor fuel used in the operation of a fish-
    28  ing vessel as described in paragraph twenty-four of subdivision  (a)  of
    29  this section.  The exemption provided in subdivision (c) of this section
    30  shall  apply to sales and uses of non-highway diesel motor fuel but only
    31  if all of such fuel is consumed other than on  the  public  highways  of
    32  this  state.   The exemption provided in subdivision (c) of this section
    33  shall apply to sales and uses of non-highway diesel motor fuel  for  use
    34  or  consumption  either  in the production for sale of tangible personal
    35  property by farming or in a commercial horse boarding operation,  or  in
    36  both  but  only if all of such fuel is consumed other than on the public
    37  highways of this state (except for the use of  the  public  highways  to
    38  reach  adjacent  farmlands  or adjacent lands used in a commercial horse
    39  boarding operation, or both).
    40    § 5. Subdivision (j) of section 1115 of the tax  law,  as  amended  by
    41  section  41-a of part K of chapter 61 of the laws of 2011, is amended to
    42  read as follows:
    43    (j) The exemptions provided in this section shall not apply to the tax
    44  required to be prepaid pursuant to  the  provisions  of  section  eleven
    45  hundred  two of this article nor to the taxes imposed by sections eleven
    46  hundred five and eleven hundred ten of  this  article  with  respect  to
    47  receipts  from sales and uses of motor fuel or diesel motor fuel, except
    48  that the exemption provided in paragraph nine of subdivision (a) of this
    49  section shall apply to the tax required to be prepaid  pursuant  to  the
    50  provisions  of  section  eleven  hundred  two of this article and to the
    51  taxes imposed by sections eleven hundred five and eleven hundred ten  of
    52  this  article with respect to sales and uses of kero-jet fuel and except
    53  that the exemption provided in paragraph twenty-four of subdivision  (a)
    54  of  this  section  shall  apply  to the taxes imposed by sections eleven
    55  hundred five and eleven hundred ten of  this  article  with  respect  to
    56  sales  and  uses of diesel motor fuel used in the operation of a fishing

        A. 3869                             4
 
     1  vessel as described in paragraph twenty-four of subdivision (a) of  this
     2  section.    The  exemption  provided  in subdivision (c) of this section
     3  shall apply to sales and uses of non-highway diesel motor fuel but  only
     4  if  all  of  such  fuel is consumed other than on the public highways of
     5  this state. The exemption provided in subdivision (c)  of  this  section
     6  shall  apply  to sales and uses of non-highway diesel motor fuel for use
     7  or consumption either in the production for sale  of  tangible  personal
     8  property  by  farming or in a commercial horse boarding operation, or in
     9  both but only if all of such fuel is consumed other than on  the  public
    10  highways  of  this  state  (except for the use of the public highways to
    11  reach adjacent farmlands or adjacent lands used in  a  commercial  horse
    12  boarding operation, or both).
    13    § 6.  This act shall take effect on the first day of a sales tax quar-
    14  terly period, as described in subdivision (b) of section 1136 of the tax
    15  law,  next  commencing  at  least  ninety days after this act shall have
    16  become a law; sections four and five of this act shall  apply  to  sales
    17  made  under  and uses occurring on or after the dates such sections four
    18  and five shall have taken effect, respectively, although made or  occur-
    19  ring  under  a prior contract; and provided further that such amendments
    20  made by section four of this act shall be subject to the expiration  and
    21  reversion  of  such  subdivision  pursuant  to section 19 of part W-1 of
    22  chapter 109 of the laws of 2006, as amended, when  upon  such  date  the
    23  provisions of section five of this act shall take effect.
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