S01719 Summary:

BILL NOS01719A
 
SAME ASNo same as
 
SPONSORGRISANTI
 
COSPNSRMAZIARZ
 
MLTSPNSR
 
Rpld Art 12-A, SS1812, 1812-a, 1812-b, 1812-c & 1812-d, amd Tax L, generally; add Art 11-C SS199-o - 199-w, amd S392-i, Gen Bus L; amd S179, Ag & Mkts L; amd S30, Can L; amd SS1.20 & 2.10, CP L; amd SS10-c & 38, Hway L; amd SS385 & 376, Pub Auth L; rpld S54 sub 1 j sub 7, amd S89-b, St Fin L
 
Repeals article 12-A of the tax law in relation to taxes on gasoline and similar motor fuel; establishes exemptions from state sales tax and the petroleum business tax for retail sales of motor fuel and diesel motor fuel; provides for the regulation of motor fuel distributors, importing transporters and terminal operators by the department of state.
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S01719 Actions:

BILL NOS01719A
 
01/09/2013REFERRED TO ENERGY AND TELECOMMUNICATIONS
12/20/2013AMEND AND RECOMMIT TO ENERGY AND TELECOMMUNICATIONS
12/20/2013PRINT NUMBER 1719A
01/08/2014REFERRED TO ENERGY AND TELECOMMUNICATIONS
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S01719 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1719--A
 
                               2013-2014 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 9, 2013
                                       ___________
 
        Introduced by Sens. GRISANTI, MAZIARZ -- read twice and ordered printed,
          and  when printed to be committed to the Committee on Energy and Tele-
          communications  --  committee  discharged,   bill   amended,   ordered
          reprinted as amended and recommitted to said committee
 

        AN ACT to amend the tax law, in relation to establishing exemptions from
          state  sales  tax  and  the petroleum business tax for retail sales of
          motor fuel and diesel motor fuel; to amend the general  business  law,
          in  relation  to  providing for the regulation of motor fuel distribu-
          tors, importing transporters and  terminal  operators;  to  amend  the
          agriculture  and  markets  law,  the canal law, the criminal procedure
          law, the general business law, the highway law, the public authorities
          law, the state finance law and the tax  law,  in  relation  to  making
          conforming  changes thereto; to repeal article 12-A of the tax law, in
          relation to taxes on gasoline and similar motor  fuel;  and  repealing
          certain  provisions  of the state finance law and the tax law relating
          thereto
 

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Article 12-A of the tax law is REPEALED.
     2    §  2.  Subdivision  (a)  of  section 1115 of the tax law is amended by
     3  adding a new paragraph 44 to read as follows:
     4    (44) Retail sales of motor fuel and diesel motor fuel.
     5    § 3. Subdivision (b) of section 1107 of the  tax  law  is  amended  by
     6  adding a new clause 12 to read as follows:
     7    (12)  Except  as  otherwise provided by law, the exemption provided in
     8  paragraph forty-four  of  subdivision  (a)  of  section  eleven  hundred
     9  fifteen  of  this  article  relating to motor fuel and diesel motor fuel
    10  shall not apply.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets

                              [ ] is old law to be omitted.
                                                                   LBD05310-02-3

        S. 1719--A                          2
 
     1    § 4. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as
     2  amended by chapter 13 of the  laws  of  2013,  is  amended  to  read  as
     3  follows:
     4    (1) Either, all of the taxes described in article twenty-eight of this
     5  chapter,  at  the same uniform rate, as to which taxes all provisions of
     6  the local laws, ordinances or resolutions imposing such taxes  shall  be
     7  identical,  except as to rate and except as otherwise provided, with the
     8  corresponding provisions in such  article  twenty-eight,  including  the
     9  definition  and  exemption  provisions  of  such  article, so far as the
    10  provisions of such article twenty-eight can be made  applicable  to  the

    11  taxes  imposed  by  such  city  or  county and with such limitations and
    12  special provisions as are set forth in this article. The  taxes  author-
    13  ized  under  this  subdivision  may  not  be imposed by a city or county
    14  unless the local law, ordinance or resolution imposes such taxes  so  as
    15  to  include  all  portions  and all types of receipts, charges or rents,
    16  subject to state tax under  sections  eleven  hundred  five  and  eleven
    17  hundred ten of this chapter, except as otherwise provided. (i) Any local
    18  law,  ordinance  or  resolution  enacted  by  any  city of less than one
    19  million or by any county or school district, imposing the taxes  author-
    20  ized by this subdivision, shall, notwithstanding any provision of law to
    21  the  contrary,  exclude from the operation of such local taxes all sales
    22  of tangible personal  property  for  use  or  consumption  directly  and

    23  predominantly  in  the  production  of  tangible personal property, gas,
    24  electricity, refrigeration or steam, for sale, by  manufacturing,  proc-
    25  essing,  generating,  assembly,  refining, mining or extracting; and all
    26  sales of tangible personal property for use or consumption predominantly
    27  either in the production of tangible personal  property,  for  sale,  by
    28  farming  or  in  a commercial horse boarding operation, or in both; and,
    29  unless such city, county or school district elects otherwise, shall omit
    30  the provision for credit or refund contained in clause six  of  subdivi-
    31  sion  (a)  or subdivision (d) of section eleven hundred nineteen of this
    32  chapter. (ii) Any local law, ordinance  or  resolution  enacted  by  any
    33  city,  county  or school district, imposing the taxes authorized by this
    34  subdivision, shall omit the residential solar energy  systems  equipment

    35  exemption  provided for in subdivision (ee), the commercial solar energy
    36  systems equipment exemption provided for in  subdivision  (ii)  and  the
    37  clothing  and  footwear  exemption  provided  for in paragraph thirty of
    38  subdivision (a) of section  eleven  hundred  fifteen  of  this  chapter,
    39  unless  such  city,  county  or  school  district elects otherwise as to
    40  either such residential solar energy systems equipment  exemption,  such
    41  commercial solar energy systems equipment exemption or such clothing and
    42  footwear exemption.  Except as otherwise provided by law, any local law,
    43  ordinance  or resolution enacted by any city of less than one million or
    44  by any county or school district, imposing the taxes authorized by  this
    45  subdivision,  shall  omit the motor fuel and diesel motor fuel exemption

    46  provided for in paragraph forty-four of subdivision (a) of such  section
    47  eleven hundred fifteen.
    48    §  5.  Subdivision  (m)  of section 1111 of the tax law, as amended by
    49  section 1 of part M-1 of chapter 109 of the laws of 2006, paragraph 7 as
    50  amended by section 11 of subpart I of part V-1 of chapter 57 of the laws
    51  of 2009, is amended to read as follows:
    52    (m) Notwithstanding any provision of law to the contrary:
    53    (1) [The sales tax  imposed  by  subdivision  (a)  of  section  eleven
    54  hundred  five  of  this  article and the compensating use tax imposed by
    55  section eleven hundred ten of this article, in regard to retail sales of
    56  motor fuel and diesel motor fuel, shall be eight cents per gallon.

        S. 1719--A                          3


     1    (2)] The sales and compensating use taxes imposed by  subdivision  (a)
     2  of  section  eleven  hundred  nine  of this article, in regard to retail
     3  sales of motor fuel and diesel motor fuel, shall  be  three-quarters  of
     4  one cent per gallon.
     5    [(3)  Paragraph  one  of this subdivision shall not apply to the sales
     6  and compensating use taxes imposed by subdivision (a) of section  eleven
     7  hundred  seven  of  this article in regard to retail sales of motor fuel
     8  and diesel motor fuel. However, the]
     9    (2) The legislative body of a city  in  which  the  taxes  imposed  by
    10  [such] section eleven hundred seven of this part are in effect, by local
    11  law,  ordinance,  or  resolution  in  exactly  the  form prepared by the
    12  commissioner, may elect that such taxes, in regard to  retail  sales  of

    13  motor  fuel  and  diesel motor fuel, shall be computed, as determined by
    14  the commissioner, at a rate of cents per gallon, rounded to the  nearest
    15  cent,  equal to two or three dollars, as determined by the municipality,
    16  multiplied by the percentage rate of such taxes within the municipality.
    17    [(4) Paragraph one of this subdivision shall not apply  to  the  sales
    18  and  compensating  use taxes imposed by a local law, ordinance or resol-
    19  ution of a municipality pursuant to the authority of subpart B  of  part
    20  one of article twenty-nine of this chapter, in regard to retail sales of
    21  motor fuel and diesel motor fuel.]
    22    (3) The legislative body of [such] a municipality, by local law, ordi-
    23  nance  or  resolution  in exactly the form prepared by the commissioner,

    24  pursuant to the authority of subpart B of part one  of  article  twenty-
    25  nine  of  this  chapter,  may  elect that its sales and compensating use
    26  taxes, in regard to the retail sale of motor fuel and diesel motor fuel,
    27  shall be computed, as determined by the commissioner, at a rate of cents
    28  per gallon, rounded to the nearest cent, equal to two or three  dollars,
    29  as  determined by the municipality, multiplied by the percentage rate of
    30  such taxes within the municipality.
    31    [(5)] (4) (i) Prior to the start of any sales tax quarter, the commis-
    32  sioner shall apply the local percentage sales tax rate of each county or
    33  city that has elected a cents per  gallon  rate  pursuant  to  paragraph
    34  [three]  two or [four] three of this subdivision to the average price of

    35  motor fuel and diesel motor fuel, not including sales tax and the  motor
    36  fuel  excise  tax,  for  three  consecutive months beginning four months
    37  prior to the start of any sales tax  quarter.  If  the  result  of  this
    38  computation  is less than the elected cents per gallon rate for a county
    39  or city, the cents per gallon rate for such  county  or  city  shall  be
    40  adjusted  to  be  equal  to such computation, rounded to the nearest one
    41  cent. Such rates shall be published by the commissioner and effective in
    42  the next succeeding sales tax quarter.
    43    (ii) Prior to the start of any sales  tax  quarter,  the  commissioner
    44  shall also adjust in a like manner the cents per gallon rates prescribed
    45  by  [paragraphs]  paragraph  one  [and two] of this subdivision based on

    46  percentage sales tax [rates] rate of [four percent and] three-eighths of
    47  a percent [respectively].  Provided, however, adjustments  made  to  the
    48  cents  per  gallon  rate prescribed by paragraph two of this subdivision
    49  shall be rounded to the nearest one-tenth of one cent.
    50    [(6)] (5) A local law, ordinance or resolution making or revoking  the
    51  election  made  pursuant  to paragraph three or four of this subdivision
    52  must go into effect in accordance with the  provisions  of  subdivisions
    53  (d) and (e) of section twelve hundred ten of this chapter.
    54    [(7)]  (6) Notwithstanding any foregoing provision of this subdivision
    55  or other law to the  contrary,  this  subdivision,  subdivision  (h)  of
    56  section  eleven hundred nine of this part and subdivision (n) of section

        S. 1719--A                          4
 
     1  eighteen hundred seventeen of this chapter, section three hundred  nine-
     2  ty-two-i  of  the general business law and other provisions of law which
     3  refer or relate to this subdivision shall apply only to (A)  motor  fuel
     4  or diesel motor fuel sold for use directly and exclusively in the engine
     5  of  a  motor vehicle and (B) motor fuel or diesel motor fuel, other than
     6  water-white kerosene sold exclusively for heating purposes in containers
     7  of no more than twenty gallons,  sold  by  a  retail  gas  station.  For
     8  purposes  of  this subdivision and such other provisions of law, "retail
     9  gas station" shall mean a filling station  where  such  fuel  is  stored
    10  primarily  for  sale  by  delivery  directly into the ordinary fuel tank
    11  connected with the engine of a motor vehicle to be consumed in the oper-

    12  ation of such motor vehicle or where such fuel is stored  primarily  for
    13  sale by delivery directly into the ordinary fuel tank connected with the
    14  engine  of a vessel to be consumed in the operation of such vessel.  The
    15  commissioner is hereby authorized to require the use of certificates  or
    16  other  documents, and procedures related thereto, to effect the purposes
    17  of this subdivision; and any  such  certificate  or  other  document  so
    18  required  by  the  commissioner for a purchaser to tender to a vendor to
    19  purchase such fuel subject to tax on the reduced base established by  or
    20  pursuant to this subdivision is hereby deemed to be an exemption certif-
    21  icate  as such term is used in subdivision (c) of section eleven hundred
    22  thirty-two of this article and as if the provisions of such  subdivision
    23  (c) referred to such a certificate or document required pursuant to this
    24  subdivision.

    25    § 6. Paragraph 1 of subdivision (h) of section 1109 of the tax law, as
    26  amended  by section 2 of part M-1 of chapter 109 of the laws of 2006, is
    27  amended to read as follows:
    28    (1) Except as otherwise provided by law, the  exemption  contained  in
    29  paragraph  forty-four  of  subdivision  (a)  of  section  eleven hundred
    30  fifteen of this article relating to motor fuel  and  diesel  motor  fuel
    31  shall  not  apply.  The  commissioner shall determine and certify to the
    32  comptroller the amount of revenue foregone as a result of the cents  per
    33  gallon tax in paragraph two of subdivision (m) of section eleven hundred
    34  eleven  of  this part in lieu of tax at the rate provided in subdivision
    35  (a) of this section.
    36    § 7. Subdivision (a) of section 301-b of the tax  law  is  amended  by
    37  adding a new paragraph 9 to read as follows:

    38    (9)  Motor fuel or diesel motor fuel sold or used by a petroleum busi-
    39  ness which is registered under article eleven-C of the general  business
    40  law at retail to a consumer for use as fuel to operate a motor vehicle.
    41    §  8. The general business law is amended by adding a new article 11-C
    42  to read as follows:
    43                                 ARTICLE 11-C
    44              REGULATION OF MOTOR FUEL DISTRIBUTORS, IMPORTING
    45                     TRANSPORTERS AND TERMINAL OPERATORS
    46  Section 199-o. Definitions.
    47          199-p. Registration of distributors.
    48          199-q. Licensing of importing transporters.
    49          199-r. Licensing of terminal operators.
    50          199-s. Liquefied petroleum gas fuel permit.

    51          199-t. Petroleum testing fee.
    52          199-u. Records to be kept by distributors and others.
    53          199-v. Records and reports of transportation of motor  fuel  and
    54                   diesel motor fuel.
    55          199-w. Transportation  of motor fuel or diesel motor fuel; mani-
    56                   fest required.

        S. 1719--A                          5
 
     1    § 199-o. Definitions. As used in this article, 1. a. With  respect  to
     2  motor  fuel, "distributor" means any person, firm, association or corpo-
     3  ration, who or which imports or causes to be imported  into  the  state,
     4  for use, distribution, storage or sale within the state, any motor fuel;

     5  and  also  any  person,  firm,  association  or corporation who or which
     6  produces, refines, manufactures  or  compounds  motor  fuel  within  the
     7  state.
     8    b.  With respect to Diesel motor fuel, "distributor" means any person,
     9  firm, association or corporation (i) who or which imports or  causes  to
    10  be imported into the state, for use, distribution, storage or sale with-
    11  in  the  state,  any  Diesel  motor  fuel;  (ii)  who or which produces,
    12  refines, manufactures or compounds Diesel motor fuel within  the  state;
    13  (iii)  who  or  which  makes  a sale or use of Diesel motor fuel in this
    14  state other than: (A) a retail sale not in bulk or (B) the  self-use  of
    15  Diesel  motor  fuel  which has been the subject of a retail sale to such

    16  person; (iv) who or which is registered by the department as a distribu-
    17  tor of kero-jet fuel. For the purposes of this article  when  used  with
    18  respect  to  Diesel  motor  fuel,  a "retail sale not in bulk" means the
    19  making or offering to make any sale of Diesel motor fuel to  a  consumer
    20  of such fuel which is delivered directly into a motor vehicle for use in
    21  the  operation of such vehicle. A "retail sale in bulk" means the making
    22  or offering to make any sale of Diesel motor fuel to a consumer which is
    23  other than a "retail sale not in bulk".  Motor fuel or Diesel motor fuel
    24  brought into the state in the ordinary fuel  tank  connecting  with  the
    25  engine  of  a  motor  vehicle, aeroplane, motor boat or other conveyance

    26  propelled by the use of such motor fuel or Diesel motor fuel, and to  be
    27  used  only in the operation thereof, shall not be deemed imported within
    28  the meaning of this article, if not removed from  such  tank  except  as
    29  used in the propulsion of such engine.
    30    2.  "Motor  fuel" means gasoline, benzol, reformulated blend stock for
    31  oxygenate blending, conventional blend  stock  for  oxygenate  blending,
    32  E85,  fuel grade ethanol that meets the ASTM International active stand-
    33  ards specifications D4806 or D4814 or other product  which  is  suitable
    34  for use in operation of a motor vehicle engine.
    35    3. "Motor vehicle" means any vehicle propelled by any power other than
    36  muscular,  except boats, road building machinery, power shovels, tractor

    37  cranes, tractors used exclusively for  agricultural  purposes  and  such
    38  vehicles as are run only on rails or tracks.
    39    4.  "Purchaser"  shall  include, in addition to its usual meaning, the
    40  distributor in the case of transfer of motor fuel by a distributor  from
    41  his,  their or its stock, into a motor vehicle, or into a container from
    42  which motor fuel is supplied by the distributor to a  motor  vehicle  or
    43  vehicles of the distributor or of others.
    44    5.  "Sale"  shall  include,  in  addition to its meaning under article
    45  twenty-eight of the tax law, the transfer of fuel by a distributor  into
    46  a  motor vehicle or into a receptacle from which fuel is supplied by him
    47  or it to his or its own or other motor vehicles.

    48    6. "Owner" shall include any person offering motor fuel  for  sale  at
    49  retail.
    50    7.  "Person" includes an individual, co-partnership, limited liability
    51  company, society, association, corporation, joint stock company, and any
    52  combination of individuals and also an executor, administrator,  receiv-
    53  er, trustee or other fiduciary.
    54    8. "Transporter" means any person who or which has the use or control,
    55  or  the  right to the use or control of any means of transportation used
    56  in transporting  motor  fuel  including  a  barge,  truck  or  pipeline.

        S. 1719--A                          6
 
     1  "Importing  transporter"  means  any transporter who or which transports

     2  motor fuel in the state where such motor fuel is being imported into the
     3  state for use, distribution, storage or sale in the state.    "Exporting
     4  transporter" means any transporter who or which transports motor fuel in
     5  this  state where such motor fuel is being exported from a point in this
     6  state to without this state.
     7    9. "Terminal" means a motor  fuel  storage  facility  with  a  storage
     8  capacity  of  fifty  thousand gallons or more excluding such facility at
     9  which motor fuel is stored solely for its retail sale at such  facility.
    10  "Terminal  operator"  means  any  person  who or which has the use of or
    11  control over, or the right to so use or control, a terminal.
    12    10. "Diesel motor fuel" shall mean No. 1 Diesel  fuel,  No.  2  Diesel

    13  fuel,  biodiesel, kerosene, fuel oil or other middle distillate and also
    14  motor fuel suitable for use in the operation of an engine of the  diesel
    15  type,  excluding,  however,  any  product specifically designated "No. 4
    16  Diesel fuel" and not suitable as a fuel used in the operation of a motor
    17  vehicle engine.
    18    11. "Public highway" means any public highway, street,  avenue,  road,
    19  public place, public driveway or any other public way.
    20    12. "Department" means the department of state.
    21    13. "Secretary" means the secretary of state.
    22    §  199-p.  Registration  of  distributors. 1. The department, upon the
    23  application of a person, shall register such  person  as  a  distributor

    24  under  this  article  except as provided in subdivisions two and five of
    25  this section. The application shall be in a form and contain  such  data
    26  as  the  department  shall prescribe.   No person, unless so registered,
    27  shall import or cause any motor fuel to be imported into the state,  for
    28  use,  distribution,  storage  or sale within the state or shall produce,
    29  refine, manufacture or compound motor fuel within the state. No distrib-
    30  utor, unless so registered, shall make any sale, transfer, use or  other
    31  disposition of motor fuel within the state, except a sale, transfer, use
    32  or  other  disposition, if any, as to which the state cannot impose such
    33  condition by reason of the United States constitution and of laws of the

    34  United States enacted pursuant thereto.
    35    2. Where a person files an application  for  registration  under  this
    36  section  and  in  considering such application the department ascertains
    37  that such applicant:
    38    (a) has been convicted under the tax laws or penal laws of  any  other
    39  state,  or a political subdivision of this state or such other state, or
    40  of the United States of a criminal offense which, if committed and pros-
    41  ecuted in this state, would  constitute  a  similar  crime,  within  the
    42  preceding five years,
    43    (b)  an  officer, director or partner of such applicant, a shareholder
    44  directly or indirectly owning more than ten percent  of  the  number  of

    45  shares  of  stock  of  such  applicant (where such applicant is a corpo-
    46  ration) entitling the holder thereof to vote for the election of  direc-
    47  tors  or  trustees, or an employee or shareholder of such applicant, has
    48  been convicted under the tax laws or penal laws of any other state, or a
    49  political subdivision of this state or  such  other  state,  or  of  the
    50  United  States  of a criminal offense which, if committed and prosecuted
    51  in this state, would constitute a similar crime,  within  the  preceding
    52  five years,
    53    (c)  such applicant, or an officer, director or partner of such appli-
    54  cant, shareholder directly or indirectly owning more than ten percent of
    55  the number of shares of stock of such applicant (where such applicant is

    56  a corporation) entitling the holder thereof to vote for the election  of

        S. 1719--A                          7
 
     1  directors or trustees, or employee or shareholder of such applicant, who
     2  was  an  officer, director or partner of another person, or who directly
     3  or indirectly owned more than ten percent of the  number  of  shares  of
     4  stock of another person (where such other person is a corporation) enti-
     5  tling  the holder thereof to vote for the election of directors or trus-
     6  tees, or who was an employee or shareholder of  another  person  at  the
     7  time  such  other  person  was convicted of a crime provided for in this
     8  chapter or has been convicted under the tax laws or penal  laws  of  any

     9  other  state,  or  a  political  subdivision of this state or such other
    10  state, or of the United States of a criminal offense which, if committed
    11  and prosecuted in this state, would constitute a similar  crime,  within
    12  the  preceding five years, or at the time the registration of such other
    13  person was cancelled or suspended pursuant to subdivision four  of  this
    14  section  within  the  preceding  five  years,  or at the time such other
    15  person committed any  of  the  acts  or  omissions  which  are,  or  was
    16  convicted  as,  specified in subdivision four of this section within the
    17  preceding five years, provided, however,  where  an  applicant  or  such
    18  officer,  director,  partner,  shareholder or employee of such applicant

    19  was only an employee of another person, the  applicable  examination  of
    20  such  other person shall be limited to acts or omissions with respect to
    21  motor fuel and the applicable examination of prior criminal  convictions
    22  shall be limited to those which relate to motor fuel,
    23    (d)  the  registration of such applicant or of an officer, director or
    24  partner of such applicant, shareholder  directly  or  indirectly  owning
    25  more than ten percent of the number of shares of stock of such applicant
    26  (where  such applicant is a corporation) entitling the holder thereof to
    27  vote for the election of directors or trustees, or  employee  or  share-
    28  holder  of  such  applicant, has been cancelled or suspended pursuant to

    29  subdivision four of this section within the preceding five years, or
    30    (e) the applicant, an officer, director or partner of the applicant, a
    31  shareholder directly or indirectly owning more than ten percent  of  the
    32  number  of  shares of stock of such applicant (where such applicant is a
    33  corporation) entitling the holder thereof to vote for  the  election  of
    34  directors  or trustees, or an employee or shareholder of such applicant,
    35  has committed any of the acts or omissions which are, or  was  convicted
    36  as,  specified  in subdivision four of this section within the preceding
    37  five years, the department may refuse to register such applicant.
    38    3. The department shall require a distributor to file with the depart-

    39  ment a bond issued by a surety company approved by the superintendent of
    40  financial services as to solvency and responsibility and  authorized  to
    41  transact  business  in  this  state  or other security acceptable to the
    42  department on, in such amount as the department may fix,  in  an  amount
    43  determined in accordance with rules and regulations prescribed by it, to
    44  secure  the  payment  of  any sums due from such distributor pursuant to
    45  this article and pursuant to any other section of  law,  rule  or  regu-
    46  lation  with  respect  to  motor fuel. The department shall require that
    47  such a bond or other security be filed before a  distributor  is  regis-
    48  tered,  and  the amount thereof may be increased at any time when in its

    49  judgment the same is necessary. If securities are deposited as  security
    50  under  this  subdivision,  such  securities  shall  be kept in the joint
    51  custody of the comptroller and the secretary and  may  be  sold  by  the
    52  department if it becomes necessary so to do in order to recover any sums
    53  due  from  such distributor pursuant to this article and pursuant to any
    54  other section of law, rule or regulation with respect to sales and  uses
    55  of  motor fuel, but no such sale shall be had until after such distribu-
    56  tor shall have had opportunity to  litigate  the  validity  of  any  sum

        S. 1719--A                          8
 
     1  alleged  due  if  it elects so to do. Upon any such sale the surplus, if

     2  any, above the sums due under this article and  pursuant  to  any  other
     3  section  of  law,  rule  or regulation with respect to sales and uses of
     4  motor  fuel  shall be returned to such distributor. The department, when
     5  authorized by the distributor, shall furnish information  regarding  the
     6  distributor's registration and any other information which the distribu-
     7  tor authorizes it to disclose.
     8    4.  The  registration of any distributor may be cancelled or suspended
     9  by the department where a registrant, or an  officer,  director,  share-
    10  holder,  employee  or  partner  of  the  registrant who as such officer,
    11  director, shareholder, employee or partner is under a duty  to  act  for

    12  such  registrant  or  any shareholder directly or indirectly owning more
    13  than ten percent of the number of shares  of  stock  of  the  registrant
    14  (where such registrant is a corporation) entitling the holder thereof to
    15  vote for the election of directors or trustees of such registrant, fails
    16  to file a bond or other security when required or when the amount there-
    17  of  is  increased,  or  fails  to continue to maintain in full force and
    18  effect at all times the required bond or other security filed  with  the
    19  department,  or fails to comply with any of the provisions of this arti-
    20  cle or any other section of law, rule  or  regulation  with  respect  to
    21  motor  fuel, or knowingly aids and abets another person in violating any

    22  of the provisions of such articles or of any  such  rule  or  regulation
    23  with respect to motor fuel, or transfers its registration as a distribu-
    24  tor without the prior written approval of the department. A registration
    25  may  also  be cancelled or suspended if the department determines that a
    26  registrant or an officer, director, shareholder, employee or partner  of
    27  the  registrant  who as such officer, director, shareholder, employee or
    28  partner is under a duty to act for such registrant  or  any  shareholder
    29  directly  or  indirectly  owning  more than ten percent of the number of
    30  shares of stock of the registrant (where such  registrant  is  a  corpo-
    31  ration)  entitling the holder thereof to vote for the election of direc-

    32  tors or trustees of such registrant:
    33    (a) commits fraud or deceit in his operations as a distributor or  has
    34  committed fraud or deceit in procuring his registration;
    35    (b)  has  been  convicted in a court of competent jurisdiction, either
    36  within or without the state, of a felony, within the meaning of subdivi-
    37  sion eight of this section, bearing on  such  distributor's  duties  and
    38  obligations under this chapter;
    39    (c)  has knowingly aided and abetted a person who is not registered as
    40  a distributor in the importation, production, refining,  manufacture  or
    41  compounding of motor fuel;
    42    (d)  has impersonated any person represented to be a distributor under
    43  this article but not in fact registered under this section; or

    44    (e) has knowingly aided and abetted the  distribution  of  motor  fuel
    45  imported,  caused  to  be  imported,  produced, refined, manufactured or
    46  compounded by a distributor who is not registered by the department.
    47    A registration may also be cancelled or suspended  if  the  department
    48  determines  that  a  registrant  or  an  officer, director, shareholder,
    49  employee or partner of the registrant who  as  such  officer,  director,
    50  shareholder,  employee or partner is under a duty to act for such regis-
    51  trant or any shareholder directly or indirectly  owning  more  than  ten
    52  percent  of  the number of shares of stock of the registrant (where such
    53  registrant is a corporation) entitling the holder thereof  to  vote  for

    54  the  election  of directors or trustees of such registrant, was an offi-
    55  cer, director, shareholder, employee or partner of another person who as
    56  such officer, director, shareholder, employee or  partner  was  under  a

        S. 1719--A                          9
 
     1  duty to act for such other person or was a shareholder directly or indi-
     2  rectly  owning more than ten percent of the number of shares of stock of
     3  such other person (where such other person is a  corporation)  entitling
     4  the  holder thereof to vote for the election of directors or trustees of
     5  such other person at the time such other person  committed  any  of  the
     6  acts  or  omissions  which  are,  or was convicted as, specified in this

     7  subdivision within the preceding five years.
     8    5. A registration shall not be cancelled or  suspended  nor  shall  an
     9  application  for registration be refused unless the registrant or appli-
    10  cant has had an opportunity for a hearing, provided,  however,  that  an
    11  application  for  registration  may  be  denied without a prior hearing.
    12  Provided, a registration may also be cancelled or suspended prior  to  a
    13  hearing for the failure to continue to maintain in full force and effect
    14  at  all  times  the  bond  or  other security filed with the department.
    15  Provided, however, if a surety bond is cancelled  prior  to  expiration,
    16  the  department,  after  considering all the relevant circumstances, may

    17  make such other arrangements and require the filing of such  other  bond
    18  or  other  security  as  the  department  deems appropriate.   Provided,
    19  further, a registration may be cancelled or suspended prior to a hearing
    20  for the transfer of such registration without the prior written approval
    21  of the department. A distributor shall immediately  inform  the  depart-
    22  ment,  in  writing, of any change in its address and, if the distributor
    23  is a corporation  or  partnership,  the  distributor  shall  immediately
    24  inform the department, in writing, of any change in its officers, direc-
    25  tors  or  partners or their residence addresses as shown in its applica-
    26  tion for registration.
    27    6. (a) A notice of proposed cancellation or suspension of registration

    28  or refusal to register shall be given to the person registered  pursuant
    29  to  this  article  or to a person applying for such registration. In the
    30  case of a person applying to register, a notice of proposed  refusal  to
    31  register  shall be issued promptly after application for registration is
    32  received by the department. Upon timely application therefor, a  hearing
    33  shall  be scheduled before an administrative law judge, and within three
    34  months from such application for hearing (determined with regard to  any
    35  postponements of any scheduled hearing or conference or other delay made
    36  at  the  request  of  the  applicant) the administrative law judge shall
    37  render a determination either  upholding  the  department's  refusal  to

    38  register  or  ordering  the  department  to  register the applicant. The
    39  action of the department and the  decision  of  the  administrative  law
    40  judge  shall  be  subject  to  review by the supreme court in the manner
    41  provided in article seventy-eight of the civil practice law  and  rules.
    42  The  applicant shall not be registered until there has been filed a bond
    43  or other security in the required amount.
    44    (b) All of such notices of proposed cancellation or suspension  or  of
    45  proposed  refusal  to  register  shall  contain a statement advising the
    46  person to whom it is issued that the cancellation, suspension or refusal
    47  to register may be challenged through a hearing  process  and  that  the

    48  petition  for  such  challenge  must be filed with the department within
    49  ninety days after the giving of such notice.  Where  a  registration  is
    50  cancelled  or  suspended prior to a hearing, the cancellation or suspen-
    51  sion may be challenged through the hearing process provided the petition
    52  for such challenge is filed within  ninety  days  after  the  giving  of
    53  notice of such cancellation or suspension.
    54    (c) Notwithstanding any other provision to the contrary:
    55    (i)  In  the  event that the department determines that an increase in
    56  the amount of the bond or  other  security  filed  by  a  registrant  is

        S. 1719--A                         10
 
     1  required  to secure the liability of such registrant, such bond increase

     2  or other security increase must be filed by such registrant within thir-
     3  ty days from the day the notice and demand therefor has  been  given  by
     4  the department. If the registrant fails to (A) file such increase in the
     5  amount  of  bond or other security within such period or (B) make timely
     6  application for a hearing with particular respect to the amount  of  the
     7  increase  of such bond or other security, the department shall cancel or
     8  suspend the registration of such registrant.
     9    (ii) The registrant may apply to  the  department  for  a  hearing  to
    10  review  an increase in the amount of the bond or other security required
    11  to be filed by making application therefor within seven days of the  day

    12  that  the  notice and demand for an increase is given by the department,
    13  provided, the department may, by regulation, for the causes stated ther-
    14  ein, extend such period to a period not exceeding fifteen days from  the
    15  day  such  notice  and demand is given. If the registrant timely applies
    16  for a hearing to review the increase, such hearing shall be held, unless
    17  extended by the department for good cause, no less than seven  days  and
    18  no more than ten days after the application for a hearing is received by
    19  the  department.   Within fifteen days of the receipt of the application
    20  for a hearing, unless extended by the department, the administrative law
    21  judge shall render a determination with respect to the increase  in  the

    22  amount  of the bond or other security and, if the amount of such bond or
    23  other security is determined to be due, such  increase  shall  be  filed
    24  within seven days from the day the administrative law judge gives notice
    25  of  the determination, or, if later, thirty days from the day the notice
    26  and demand for the increase had been given by the  department.  Notwith-
    27  standing  that  the registrant takes exception to the administrative law
    28  judge's determination that an increased bond or other security  is  due,
    29  if  the  increased bond or other security is not filed within such time,
    30  the department shall cancel or suspend the registration  of  the  regis-
    31  trant.   Where the administrative law judge determines that an increased

    32  bond or other security is not due but such determination is reversed, if
    33  the increased bond or other security is not filed within seven days from
    34  the day the department gives notice of the decision of  the  administra-
    35  tive law judge notwithstanding any judicial review of such decision, the
    36  department shall cancel or suspend the registration of the registrant.
    37    7.  (a) Whenever evidence is furnished by the secretary to any justice
    38  of the supreme court, in court or at chambers, showing that  any  person
    39  not registered as a distributor as required by this article has imported
    40  motor  fuel or diesel motor fuel into this state or caused motor fuel or
    41  diesel motor fuel to be  imported  into  this  state  or  has  produced,

    42  refined,  manufactured  or  compounded  motor fuel or diesel motor fuel,
    43  such justice may make a temporary order without notice prohibiting  such
    44  person  and his agents from selling, transferring or otherwise disposing
    45  of any such fuel or any fuel and also prohibiting all other  persons  in
    46  possession  of  or having control over the same from selling, releasing,
    47  transferring or otherwise disposing of any motor fuel  or  diesel  motor
    48  fuel  imported,  produced,  refined,  manufactured,  compounded, sold or
    49  transferred by such person not so registered pending  a  hearing  for  a
    50  preliminary injunction.
    51    (b)  Upon  granting  a  temporary order, the court shall direct that a
    52  hearing be held at the earliest  possible  time  upon  such  notice  and

    53  service  as  the court shall direct and at the same time, if such action
    54  has not yet been commenced, the secretary shall commence  an  action  in
    55  supreme court for a permanent injunction and forfeiture of motor fuel or
    56  diesel  motor fuel pursuant to paragraph (c) of this subdivision. Where,

        S. 1719--A                         11
 
     1  after such opportunity for a hearing, the court determines that there is
     2  a substantial probability  that  the  secretary  will  prevail  in  such
     3  action,  the  court shall grant a preliminary injunction restraining the
     4  sale,  release,  transfer  or  other  disposition of fuel subject to the
     5  temporary order.
     6    (c) (i) If it is established by clear  and  convincing  evidence  that

     7  motor  fuel  or  diesel  motor fuel was imported, caused to be imported,
     8  produced, refined, manufactured or compounded by any person  not  regis-
     9  tered  as  a  distributor  as  required by this article, the court shall
    10  grant a judgment (A) permanently enjoining such person  and  his  agents
    11  from  selling,  transferring  or otherwise disposing of any such fuel or
    12  any fuel within this state and (B) declaring the forfeiture of any  fuel
    13  that was so imported, caused to be imported, produced, refined, manufac-
    14  tured, or compounded by such person.
    15    (ii)  With  respect  to  motor  fuel  or  diesel  motor  fuel that was
    16  imported, caused to be  imported,  produced,  refined,  manufactured  or

    17  compounded,  by  a person not registered as a distributor as required by
    18  this article or that was unlawfully sold or transferred by such  person,
    19  if  it  is  established  by clear and convincing evidence that any other
    20  person in possession of or having control  over  such  fuel  was  not  a
    21  purchaser  or  transferee in good faith of such fuel with respect to the
    22  fact that such fuel was so imported, caused to  be  imported,  produced,
    23  refined,  manufactured,  or  compounded  by a person not registered as a
    24  distributor as required by this article or that such fuel was so  unlaw-
    25  fully  sold or transferred by such person, the court shall grant a judg-
    26  ment (A) permanently enjoining such other person and his or  her  agents

    27  from selling, releasing, transferring or otherwise disposing of any such
    28  fuel  and (B) declaring the forfeiture of such fuel in the possession or
    29  under the control of such other person.
    30    (d) The secretary may, at any time subsequent to the granting  of  the
    31  temporary order pursuant to paragraph (a) of this subdivision, in his or
    32  her sole discretion consent to a sale of motor fuel or diesel motor fuel
    33  subject  to such temporary order which is in the possession or under the
    34  control of a person other than the person or the agent of the person who
    35  imported,  caused  to  be  imported,  produced,  refined,  manufactured,
    36  compounded  or  unlawfully sold or transferred such fuel. As a condition

    37  of granting permission to a sale of motor  fuel  or  diesel  motor  fuel
    38  pursuant to this subdivision, the secretary shall require the payment of
    39  all fees, penalties and interest imposed by and pursuant to the authori-
    40  ty of this chapter with respect to such fuel.
    41    (e)  (i)  At  any  time  during  the  pendency of an action under this
    42  section, the motor fuel or diesel motor fuel  subject  to  a  temporary,
    43  preliminary  or permanent order hereunder may be released from the scope
    44  of such order if there is given an undertaking, in an  amount  equal  to
    45  the  market value of such fuel, to the effect that there will be paid to
    46  the department the amount of the market value of such fuel in the  event
    47  that such fuel is adjudged forfeited.

    48    (ii) Any person enjoined by a temporary order or a preliminary injunc-
    49  tion  issued  pursuant  to  this  subdivision  may  move at any time, on
    50  notice, to vacate or modify it.
    51    (f) The procedures of the civil practice law and rules  applicable  to
    52  temporary  restraining  orders,  preliminary  injunctions  and permanent
    53  injunctions not inconsistent with this subdivision shall apply to tempo-
    54  rary orders, preliminary injunctions and  permanent  injunctions  issued
    55  under  this  subdivision  and any provision of this subdivision which is
    56  not in accord with the constitutional mandate of such procedures of  the

        S. 1719--A                         12
 
     1  civil practice law and rules shall be deemed to be modified as necessary

     2  to  accord  with  such a mandate. The procedural provisions set forth in
     3  paragraph three of subdivision (d) and in  subdivision  (j)  of  section
     4  eighteen  hundred  forty-eight of the tax law shall apply to the forfei-
     5  ture proceedings under this subdivision and, in respect to a declaration
     6  of forfeiture under this subdivision, the court shall direct the  secre-
     7  tary to sell or otherwise dispose of such forfeited motor fuel or diesel
     8  motor  fuel on such conditions the secretary deems most advantageous and
     9  just under the circumstances. The secretary shall  not  be  required  to
    10  file  any  undertaking  in  connection  with  an action pursuant to this
    11  subdivision.
    12    8. (a) For the purposes of this section, in  determining  whether  any

    13  person  has  been convicted of a felony, the provisions of this subdivi-
    14  sion shall apply; provided, however if any  such  conviction  be  subse-
    15  quently  set  aside or reversed upon appeal and the accused acquitted or
    16  discharged, the registration which has been cancelled or suspended as  a
    17  result of such conviction shall be restored.
    18    (b)  A conviction of a felony shall include the conviction of a felony
    19  by any court in this state or by any court of the United  States  or  by
    20  any  court  of  any other state of the United States; provided, however,
    21  that if a crime of which a person is  convicted  by  any  court  of  the
    22  United  States  or  any  other  state is a felony in the jurisdiction in

    23  which the conviction is had but is not a felony  in  the  state  of  New
    24  York,  then  the conviction shall not be deemed a conviction of a felony
    25  for the purpose of this article. In the event that a crime  of  which  a
    26  person is convicted by any court of the United States or by any court of
    27  any  other  state  is  not  a  felony  in  the jurisdiction in which the
    28  conviction is had but is a felony in the state of  New  York,  then  the
    29  conviction  shall be deemed a conviction of a felony for the purposes of
    30  this article.
    31    (c) If a person convicted of a felony or crime deemed hereby to  be  a
    32  felony  is subsequently pardoned by the governor of the state where such
    33  conviction was had, or by the president of the United States,  or  shall

    34  receive  a  certificate  of relief from disabilities or a certificate of
    35  good conduct pursuant to article twenty-three of the correction law  for
    36  the  purpose  of  removing  the disability under this section because of
    37  such conviction, the department may, in its discretion,  on  application
    38  of  such person and compliance with subdivision two of this section, and
    39  on the submission to it of satisfactory evidence of good moral character
    40  and suitability, again register such person as a distributor under  this
    41  article.
    42    9.  (a)  The  registration  granted to a distributor by the department
    43  shall be personal to the person to whom it is granted. The  transfer  of
    44  such  registration  without the prior written approval of the department

    45  is invalid and such transfer without approval shall be grounds  for  the
    46  immediate  cancellation  or suspension of the registration of the regis-
    47  trant. The department shall establish by rule or regulation  a  specific
    48  procedure  for  the  review  of an application for registration in these
    49  instances where there has been a proposed transfer of registration,  and
    50  the department in making its determination with respect to such approval
    51  shall  review such application in such instance as any other application
    52  for registration under this section and shall make its determination  in
    53  accordance  with  the  criteria  set  forth  in  this  section. Provided
    54  further, the department shall issue a determination with respect to such

    55  application where there has been a  proposed  transfer  of  registration
    56  within  seventy-five  days  after  the  day of the receipt of a properly

        S. 1719--A                         13
 
     1  completed application containing such information as the said department
     2  may require. If the department fails to  issue  a  determination  within
     3  such  time,  the  department shall be required to register such proposed
     4  transferee.
     5    (b)  For  the  purposes  of  this subdivision, a registration shall be
     6  considered to be transferred where, among other  things,  there  is  any
     7  addition  or substitution of a partner of the registrant or the acquisi-
     8  tion by any person of such shares of stock of the registrant (where such

     9  registrant is a corporation) so that such person becomes  the  owner  of
    10  more  than  ten  percent of the number of shares of stock of such regis-
    11  trant entitling the holder thereof to vote for the election of directors
    12  or trustees.   Provided, however, where stock of  the  registrant  or  a
    13  partnership  interest  in  the  registrant or, where the registrant is a
    14  sole proprietorship, the interest of the decedent therein along with the
    15  registration, is transferred pursuant to bequest or inheritance  to  (i)
    16  an  ancestor  of  the decedent, (ii) the spouse of the decedent, (iii) a
    17  lineal descendent of the decedent, of the descendent's spouse, or  of  a
    18  parent  of  the  decedent,  or  (iv) the spouse of any lineal descendent

    19  described in subparagraph (iii) of this paragraph, such  transfer  shall
    20  not,  in  and  of  itself,  be  grounds  for cancellation or suspension.
    21  Provided, however, within ninety days of the death of  the  decedent  in
    22  such  instance,  the  registrant,  the  personal  representative  of the
    23  decedent's estate or such person described in subparagraphs  (i),  (ii),
    24  (iii)  or  (iv)  of this paragraph must submit a revised application for
    25  registration as a distributor. The department may then cancel or suspend
    26  the registration because of the existence of grounds to do so  specified
    27  in this section for refusal or denial of an application for registration
    28  or  for  cancellation  or  suspension  of a registration. The failure to

    29  submit a revised application for registration  within  such  ninety  day
    30  period  shall be grounds for immediate cancellation or suspension of the
    31  registration.
    32    10. For purposes of this section, where reference is  made  to  owner-
    33  ship,  directly or indirectly, of more than ten percent of the shares of
    34  stock of the applicant or another person entitling the holder thereof to
    35  vote for the election of directors or trustees, in the case of an appli-
    36  cant or another person which at the relevant  time  has  four  or  fewer
    37  shareholders  holding  shares  entitling the holders thereof to vote for
    38  the election of directors or trustees, twenty-five percent or more shall
    39  be substituted as the applicable percentage in such references to owner-

    40  ship, directly or indirectly, of voting stock.
    41    § 199-q. Licensing of importing transporters. 1. The department,  upon
    42  the  application  of  a  person who transports motor fuel, shall license
    43  such person as an importing transporter or exporting transporter, as the
    44  case may be, under this article except as provided in  subdivisions  two
    45  and five of this section. The application shall be in a form and contain
    46  such  data as the department shall prescribe. No person, unless licensed
    47  as an importing transporter, shall transport motor  fuel  in  the  state
    48  where such motor fuel is being imported into the state for use, distrib-
    49  ution,  storage  or  sale in the state. No person, unless licensed as an

    50  exporting transporter, shall transport motor fuel in  this  state  where
    51  such  motor fuel is being exported from a point in this state to without
    52  this state.
    53    2. Where a person  files  an  application  for  licensing  under  this
    54  section  and  in  considering such application the department ascertains
    55  that:

        S. 1719--A                         14
 
     1    (a) has been convicted under the tax laws or penal laws of  any  other
     2  state,  or a political subdivision of this state or such other state, or
     3  of the United States of a criminal offense which, if committed and pros-
     4  ecuted in this state, would  constitute  a  similar  crime,  within  the
     5  preceding five years,

     6    (b)  an  officer, director or partner of such applicant, a shareholder
     7  directly or indirectly owning more than ten percent  of  the  number  of
     8  shares  of  stock  of  such  applicant (where such applicant is a corpo-
     9  ration) entitling the holder thereof to vote for the election of  direc-
    10  tors  or  trustees, or an employee or shareholder of such applicant, has
    11  been convicted under the tax laws or penal laws of any other state, or a
    12  political subdivision of this state or  such  other  state,  or  of  the
    13  United  States  of a criminal offense which, if committed and prosecuted
    14  in this state, would constitute a similar crime,  within  the  preceding
    15  five years,
    16    (c)  such applicant, or an officer, director or partner of such appli-

    17  cant, shareholder directly or indirectly owning more than ten percent of
    18  the number of shares of stock of such applicant (where such applicant is
    19  a corporation) entitling the holder thereof to vote for the election  of
    20  directors or trustees, or employee or shareholder of such applicant, who
    21  was  an  officer, director or partner of another person, or who directly
    22  or indirectly owned more than ten percent of the  number  of  shares  of
    23  stock of another person (where such other person is a corporation) enti-
    24  tling  the holder thereof to vote for the election of directors or trus-
    25  tees, or who was an employee or shareholder of  another  person  at  the
    26  time  such  other  person  was convicted of a crime provided for in this

    27  chapter or has been convicted under the tax laws or penal  laws  of  any
    28  other  state,  or  a  political  subdivision of this state or such other
    29  state, or of the United States of a criminal offense which, if committed
    30  and prosecuted in this state, would constitute a similar  crime,  within
    31  the  preceding  five  years,  or  at  the time the license of such other
    32  person was cancelled or suspended pursuant to subdivision four  of  this
    33  section  within  the  preceding  five  years,  or at the time such other
    34  person committed any  of  the  acts  or  omissions  which  are,  or  was
    35  convicted  as,  specified in subdivision four of this section within the
    36  preceding five years, provided, however,  where  an  applicant  or  such

    37  officer,  director,  partner,  shareholder or employee of such applicant
    38  was only an employee of another person, the  applicable  examination  of
    39  such  other person shall be limited to acts or omissions with respect to
    40  motor fuel and the applicable examination of prior criminal  convictions
    41  shall be limited to those which relate to motor fuel,
    42    (d)  the license of such applicant or of an officer, director or part-
    43  ner of such applicant, shareholder directly or  indirectly  owning  more
    44  than  ten  percent  of  the  number of shares of stock of such applicant
    45  (where such applicant is a corporation) entitling the holder thereof  to
    46  vote  for  the  election of directors or trustees, or employee or share-

    47  holder of such applicant, has been cancelled or  suspended  pursuant  to
    48  subdivision four of this section within the preceding five years, or
    49    (e) the applicant, an officer, director or partner of the applicant, a
    50  shareholder  directly  or indirectly owning more than ten percent of the
    51  number of shares of stock of such applicant (where such applicant  is  a
    52  corporation)  entitling  the  holder thereof to vote for the election of
    53  directors or trustees, or an employee or shareholder of such  applicant,
    54  has  committed  any of the acts or omissions which are, or was convicted
    55  as, specified in subdivision four of this section within  the  preceding
    56  five years, the department may refuse to license such applicant.


        S. 1719--A                         15
 
     1    3.  The department may require a transporter seeking licensing to file
     2  with the department a bond issued by a surety company  approved  by  the
     3  superintendent  of  financial services as to solvency and responsibility
     4  and authorized to transact business in  this  state  or  other  security
     5  acceptable  to the department, in such amount as the department may fix,
     6  in an  amount  determined  in  accordance  with  rules  and  regulations
     7  prescribed  by  it, to secure the performance by such transporter of the
     8  duties and responsibilities required pursuant to this article and pursu-
     9  ant to any other section of law, rule  or  regulation  with  respect  to
    10  motor fuel. The department may require that such a bond or other securi-

    11  ty be filed before a transporter is licensed, and the amount thereof may
    12  be  increased at any time when in its judgment the same is necessary. If
    13  securities are deposited as security under this subdivision, such  secu-
    14  rities  shall  be  kept  in the joint custody of the comptroller and the
    15  secretary and may be sold by the department if it becomes  necessary  so
    16  to  do  in  order  to  recover against such transporter but no such sale
    17  shall be had until after such transporter shall have had opportunity  to
    18  litigate  the  validity of the liability if it elects so to do. Upon any
    19  such sale the surplus, if any, above the sums due shall be  returned  to
    20  such  transporter.  The  department, when authorized by the transporter,

    21  shall furnish information regarding the transporter's  license  and  any
    22  other information which the transporter authorizes it to disclose.
    23    4.  The  license  of  any  importing  or  exporting transporter may be
    24  cancelled or suspended by the department where a licensee, or  an  offi-
    25  cer,  director,  shareholder, employee or partner of the licensee who as
    26  such officer, director, shareholder, employee or partner is under a duty
    27  to act for such licensee  or  any  shareholder  directly  or  indirectly
    28  owning  more  than  ten  percent of the number of shares of stock of the
    29  licensee (where such licensee is a  corporation)  entitling  the  holder
    30  thereof to vote for the election of directors or trustees of such licen-

    31  see,  fails  to  file a bond or other security when required or when the
    32  amount thereof is increased, or fails to continue to  maintain  in  full
    33  force  and effect at all times the required bond or other security filed
    34  with the department, or fails to comply with any of  the  provisions  of
    35  this  article  or  any  other  section  of  law, rule or regulation with
    36  respect to motor fuel, or knowingly aids and  abets  another  person  in
    37  violating  any of the provisions of such articles or of any such rule or
    38  regulation with respect to motor fuel, or transfers its  license  as  an
    39  importing  transporter  or  exporting transporter. A license may also be
    40  cancelled or suspended if the department determines that a  licensee  or

    41  an  officer,  director, shareholder, employee or partner of the licensee
    42  who as such officer, director, shareholder, employee or partner is under
    43  a duty to act for such licensee or any shareholder directly or indirect-
    44  ly owning more than ten percent of the number of shares of stock of  the
    45  licensee  (where  such  licensee  is a corporation) entitling the holder
    46  thereof to vote for the election of directors or trustees of such licen-
    47  see:
    48    (a) commits fraud or deceit in his operations as a transporter or  has
    49  committed fraud or deceit in procuring his license;
    50    (b)  has  been  convicted in a court of competent jurisdiction, either
    51  within or without the state, of a felony, as defined  under  subdivision

    52  eight  of  section one hundred ninety-nine-p of this article, bearing on
    53  such transporter's duties and obligations under this chapter;
    54    (c) has knowingly aided and abetted a person who is not registered  as
    55  a  distributor  in the importation, production, refining, manufacture or
    56  compounding of motor fuel; or

        S. 1719--A                         16
 
     1    (d) has knowingly aided and abetted the  distribution  of  motor  fuel
     2  imported,  caused  to  be  imported,  produced, refined, manufactured or
     3  compounded by a distributor who is not registered by the department.
     4    A  license may also be cancelled or suspended if the department deter-
     5  mines that a licensee or an officer, director, shareholder, employee  or

     6  partner  of  the  licensee  who  as such officer, director, shareholder,
     7  employee or partner is under a duty to act  for  such  licensee  or  any
     8  shareholder  directly  or indirectly owning more than ten percent of the
     9  number of shares of stock of the licensee  (where  such  licensee  is  a
    10  corporation)  entitling  the  holder thereof to vote for the election of
    11  directors or trustees of such licensee, was an officer, director, share-
    12  holder, employee or partner of  another  person  who  as  such  officer,
    13  director,  shareholder,  employee or partner was under a duty to act for
    14  such other person or was a shareholder  directly  or  indirectly  owning
    15  more  than  ten  percent  of the number of shares of stock of such other

    16  person (where such other person is a corporation) entitling  the  holder
    17  thereof  to vote for the election of directors or trustees of such other
    18  person at the time such other person committed any of the acts or  omis-
    19  sions  which  are,  or  was  convicted as, specified in this subdivision
    20  within the preceding five years.
    21    5. A license shall not be cancelled or suspended nor shall an applica-
    22  tion for a license be refused unless the licensee  or  applicant  for  a
    23  license has had an opportunity for a hearing, provided, however, that an
    24  application  for  a  license  may  be  denied  without  a prior hearing.
    25  Provided, a license may also be cancelled or suspended prior to a  hear-

    26  ing  for the failure to continue to maintain in full force and effect at
    27  all times  the  bond  or  other  security  filed  with  the  department.
    28  Provided,  however,  if  a surety bond is cancelled prior to expiration,
    29  the department, after considering all the  relevant  circumstances,  may
    30  make  such  other arrangements and require the filing of such other bond
    31  or  other  security  as  the  department  deems  appropriate.  Provided,
    32  further,  a license may be cancelled or suspended prior to a hearing for
    33  the transfer of such license. A transporter shall immediately inform the
    34  department, in writing, of any change in its address and, if the  trans-
    35  porter is a corporation or partnership, the transporter shall immediate-

    36  ly  inform  the  department,  in writing, of any change in its officers,
    37  directors or partners or their  residence  addresses  as  shown  in  its
    38  application for a license.
    39    6.  The provisions of subdivisions six, eight, nine and ten of section
    40  one hundred ninety-nine-p of this article shall apply to the  provisions
    41  of this section in the same manner and with the same force and effect as
    42  if the language of these subdivisions had been incorporated in full into
    43  this  section  and had expressly referred to the importing transporter's
    44  license or the  exporting  transporter's  license  under  this  section,
    45  except to the extent that any such provision is either inconsistent with
    46  a provision of this section or is not relevant to this section.

    47    §  199-r.  Licensing of terminal operators. 1. The department upon the
    48  application of a person who operates a  facility  where  motor  fuel  is
    49  deposited,  shall  license such person as a terminal operator under this
    50  article except as otherwise provided in this  section.  The  application
    51  shall  be in a form and contain such information as the department shall
    52  prescribe. No person, unless so  licensed,  shall  operate  a  terminal,
    53  except  that a person may operate a terminal without a license if all of
    54  the motor fuel stored in such facility is solely for such  person's  own
    55  use and consumption.

        S. 1719--A                         17
 
     1    2.  Where  a  person  files  an  application  for a license under this

     2  section and in considering such application  the  department  ascertains
     3  that:
     4    (a)  been  convicted  under  the  tax  laws or penal laws of any other
     5  state, or a political subdivision of this state or such other state,  or
     6  of the United States of a criminal offense which, if committed and pros-
     7  ecuted  in  this  state,  would  constitute  a similar crime, within the
     8  preceding five years,
     9    (b) an officer, director or partner of such applicant,  a  shareholder
    10  directly  or  indirectly  owning  more than ten percent of the number of
    11  shares of stock of such applicant (where  such  applicant  is  a  corpo-
    12  ration)  entitling the holder thereof to vote for the election of direc-

    13  tors or trustees, or an employee or shareholder of such  applicant,  has
    14  been convicted under the tax laws or penal laws of any other state, or a
    15  political  subdivision  of  this  state  or  such other state, or of the
    16  United States of a criminal offense which, if committed  and  prosecuted
    17  in  this  state,  would constitute a similar crime, within the preceding
    18  five years,
    19    (c) such applicant, or an officer, director or partner of such  appli-
    20  cant, shareholder directly or indirectly owning more than ten percent of
    21  the number of shares of stock of such applicant (where such applicant is
    22  a  corporation) entitling the holder thereof to vote for the election of
    23  directors or trustees, or employee or shareholder of such applicant, who

    24  was an officer, director or partner of another person, or  who  directly
    25  or  indirectly  owned  more  than ten percent of the number of shares of
    26  stock of another person (where such other person is a corporation) enti-
    27  tling the holder thereof to vote for the election of directors or  trus-
    28  tees,  or  who  was  an employee or shareholder of another person at the
    29  time such other person was convicted of a crime  provided  for  in  this
    30  chapter  or  has  been convicted under the tax laws or penal laws of any
    31  other state, or a political subdivision of  this  state  or  such  other
    32  state, or of the United States of a criminal offense which, if committed
    33  and  prosecuted  in this state, would constitute a similar crime, within

    34  the preceding five years, or at the  time  the  license  of  such  other
    35  person  was  cancelled or suspended pursuant to subdivision four of this
    36  section within the preceding five years,  or  at  the  time  such  other
    37  person  committed  any  of  the  acts  or  omissions  which  are, or was
    38  convicted as, specified in subdivision four of this section  within  the
    39  preceding  five  years,  provided,  however,  where an applicant or such
    40  officer, director, partner, shareholder or employee  of  such  applicant
    41  was  only  an  employee of another person, the applicable examination of
    42  such other person shall be limited to acts or omissions with respect  to
    43  motor  fuel and the applicable examination of prior criminal convictions

    44  shall be limited to those which relate to motor fuel,
    45    (d) the license of such applicant or of an officer, director or  part-
    46  ner  of  such  applicant, shareholder directly or indirectly owning more
    47  than ten percent of the number of shares  of  stock  of  such  applicant
    48  (where  such applicant is a corporation) entitling the holder thereof to
    49  vote for the election of directors or trustees, or  employee  or  share-
    50  holder  of  such  applicant, has been cancelled or suspended pursuant to
    51  subdivision four of this section within the preceding five years, or
    52    (e) the applicant, an officer, director or partner of the applicant, a
    53  shareholder directly or indirectly owning more than ten percent  of  the

    54  number  of  shares of stock of such applicant (where such applicant is a
    55  corporation) entitling the holder thereof to vote for  the  election  of
    56  directors  or trustees, or an employee or shareholder of such applicant,

        S. 1719--A                         18
 
     1  has committed any of the acts or omissions which are, or  was  convicted
     2  as,  specified  in subdivision four of this section within the preceding
     3  five years, the department may refuse to license such applicant.
     4    3.  The  department  may  require a terminal operator to file with the
     5  department a bond issued by a surety company approved by the superinten-
     6  dent of financial services as to solvency and responsibility and author-

     7  ized to transact business in this state or other security acceptable  to
     8  the  department,  in such amount as the department may fix, in an amount
     9  determined in accordance with rules and regulations prescribed by it, to
    10  secure the performance by such  terminal  operator  of  the  duties  and
    11  responsibilities  required  pursuant to this article and pursuant to any
    12  other section of law, rule or regulation with  respect  to  motor  fuel.
    13  The  department  may require that such a bond or other security be filed
    14  before a terminal operator is licensed, and the amount  thereof  may  be
    15  increased  at  any  time  when in its judgment the same is necessary. If
    16  securities are deposited as security under this subdivision, such  secu-

    17  rities  shall  be  kept  in the joint custody of the comptroller and the
    18  secretary and may be sold by the department if it becomes  necessary  so
    19  to  do  in  order  to recover against such terminal operator but no such
    20  sale shall be had until after such  terminal  operator  shall  have  had
    21  opportunity to litigate the validity of the liability if it elects so to
    22  do.  Upon any such sale the surplus, if any, above the sums due shall be
    23  returned to such terminal operator. The department, when  authorized  by
    24  the  terminal operator, shall furnish information regarding the terminal
    25  operator's license and any other information which the terminal operator
    26  authorizes it to disclose.
    27    4. The license of any terminal operator may be cancelled or  suspended

    28  by  the department where a licensee, or an officer, director, sharehold-
    29  er, employee or partner of the licensee who as such  officer,  director,
    30  shareholder,  employee or partner is under a duty to act for such licen-
    31  see or any shareholder directly  or  indirectly  owning  more  than  ten
    32  percent  of  the  number  of shares of stock of the licensee (where such
    33  licensee is a corporation) entitling the holder thereof to vote for  the
    34  election of directors or trustees of such licensee, fails to file a bond
    35  or other security when required or when the amount thereof is increased,
    36  or  fails  to continue to maintain in full force and effect at all times
    37  the required bond or other security filed with the department, or  fails

    38  to  comply  with  any  of  the  provisions  of this article or any other
    39  section of law, rule or regulation with respect to motor fuel, or  know-
    40  ingly  aids  and abets another person in violating any of the provisions
    41  of such articles or of any such rule or regulation with respect to motor
    42  fuel, or transfers its license as an importing transporter or  exporting
    43  transporter. A license may also be cancelled or suspended if the depart-
    44  ment  determines  that  a licensee or an officer, director, shareholder,
    45  employee or partner of the  licensee  who  as  such  officer,  director,
    46  shareholder,  employee or partner is under a duty to act for such licen-
    47  see or any shareholder directly  or  indirectly  owning  more  than  ten

    48  percent  of  the  number  of shares of stock of the licensee (where such
    49  licensee is a corporation) entitling the holder thereof to vote for  the
    50  election of directors or trustees of such licensee:
    51    (a)  commits  fraud or deceit in his operations as a terminal operator
    52  or has committed fraud or deceit in procuring his license;
    53    (b) has been convicted in a court of  competent  jurisdiction,  either
    54  within or without the state, of a felony, within the meaning of subdivi-
    55  sion eight of section one hundred ninety-nine-p of this article, bearing
    56  on such terminal operator's duties and obligations under this chapter;

        S. 1719--A                         19
 
     1    (c)  has knowingly aided and abetted a person who is not registered as

     2  a distributor in the importation, production, refining,  manufacture  or
     3  compounding of motor fuel; or
     4    (d)  has  knowingly  aided  and abetted the distribution of motor fuel
     5  which he has knowledge of as being  imported,  caused  to  be  imported,
     6  produced,  refined,  manufactured  or compounded by a distributor who is
     7  not registered by the department.
     8    A license may also be cancelled or suspended if the department  deter-
     9  mines  that a licensee or an officer, director, shareholder, employee or
    10  partner of the licensee who  as  such  officer,  director,  shareholder,
    11  employee  or  partner  is  under  a duty to act for such licensee or any
    12  shareholder directly or indirectly owning more than ten percent  of  the

    13  number  of  shares  of  stock  of the licensee (where such licensee is a
    14  corporation) entitling the holder thereof to vote for  the  election  of
    15  directors or trustees of such licensee, was an officer, director, share-
    16  holder,  employee  or  partner  of  another  person who as such officer,
    17  director, shareholder, employee or partner was under a duty to  act  for
    18  such  other  person  or  was a shareholder directly or indirectly owning
    19  more than ten percent of the number of shares of  stock  of  such  other
    20  person  (where  such other person is a corporation) entitling the holder
    21  thereof to vote for the election of directors or trustees of such  other
    22  person  at the time such other person committed any of the acts or omis-

    23  sions which are, or was convicted  as,  specified  in  this  subdivision
    24  within the preceding five years.
    25    5. A license shall not be cancelled or suspended nor shall an applica-
    26  tion  for license be refused unless the licensee or applicant has had an
    27  opportunity for a hearing, provided, however, that an application for  a
    28  license  may  be denied without a prior hearing. Provided, a license may
    29  be cancelled or suspended prior to a hearing for the  transfer  of  such
    30  registration  without  the  prior  written approval of the department. A
    31  terminal operator shall immediately inform the department,  in  writing,
    32  of  any  change in its address and, if the terminal operator is a corpo-

    33  ration or partnership, the terminal operator  shall  immediately  inform
    34  the  department, in writing, of any change in its officers, directors or
    35  partners or their residence addresses as shown in  its  application  for
    36  for a license.
    37    6.  The provisions of subdivisions six, eight, nine and ten of section
    38  one hundred ninety-nine-p of this article shall apply to the  provisions
    39  of this section in the same manner and with the same force and effect as
    40  if the language of these subdivisions had been incorporated in full into
    41  this  section  and  had  expressly  referred  to the terminal operator's
    42  license under this section, except to the extent that any such provision
    43  is either inconsistent with a provision of this section or is not  rele-

    44  vant to this section.
    45    § 199-s. Liquefied petroleum gas fuel permit. The department, upon the
    46  application  of  a  person importing, manufacturing or selling liquefied
    47  petroleum gas identified as a fuel for use in the operation of  a  motor
    48  vehicle  or for use in the operation of a pleasure or recreational motor
    49  boat or using or consuming liquefied petroleum gas for such purpose, may
    50  issue such person a liquefied petroleum  gas  fuel  permit  in  lieu  of
    51  registration  as  a  distributor  of  motor fuel pursuant to section one
    52  hundred ninety-nine-p of this article, provided  such  person  does  not
    53  import motor fuel other than liquefied petroleum gas fuel or cause motor
    54  fuel  other  than  liquefied  petroleum gas fuel to be imported into the

    55  state for use, distribution, storage or sale in the  state  or  produce,
    56  refine, manufacture or compound motor fuel other than liquefied petrole-

        S. 1719--A                         20
 
     1  um  gas  fuel  in  the  state. All the provisions of section one hundred
     2  ninety-nine-p of this article shall apply to  applicants  for  liquefied
     3  petroleum  gas  fuel permits under this section and to holders of lique-
     4  fied  petroleum gas fuel permits, provided that the department may waive
     5  the requirement that holders of liquefied  petroleum  gas  fuel  permits
     6  file  a  bond or other security. Holders of liquefied petroleum gas fuel
     7  permits shall be subject to all other provisions of this article and any

     8  other section of law, rule or regulation  relating  to  distributors  of
     9  motor  fuel,  including  but  not  limited  to the keeping of records. A
    10  liquefied petroleum gas fuel permit applies  only  to  the  importation,
    11  manufacture,  sale,  use  or consumption of liquefied petroleum gas fuel
    12  and shall not be considered a distributor registration under this  chap-
    13  ter with respect to any motor fuel product other than liquefied petrole-
    14  um  gas. No holder of a liquefied petroleum gas fuel permit shall import
    15  or cause any motor fuel other than liquefied petroleum gas  fuel  to  be
    16  imported  into  the state, for use, distribution, storage or sale within
    17  the state or shall produce, refine, manufacture or compound  motor  fuel

    18  other than liquefied petroleum gas fuel within the state.
    19    § 199-t. Petroleum testing fee. 1. There is hereby imposed a regulato-
    20  ry  fee  at  the rate of one-half of one mill per gallon upon motor fuel
    21  imported, manufactured or sold within this state by a  distributor.  The
    22  fee  imposed  by this section shall be administered and collected by the
    23  department. The department may make such provisions  as  the  department
    24  deems  necessary for the joint administration of the fee imposed by this
    25  section.
    26    2. All fees imposed by  this  section,  together  with  penalties  and
    27  interest  thereon,  which  are  collected or received by the department,
    28  shall be deposited daily with such responsible banks, banking houses  or

    29  trust  companies, as may be designated by the comptroller, to the credit
    30  of the comptroller. The comptroller shall require adequate security from
    31  all such depositories of such revenue collected by the  department.  The
    32  comptroller  shall retain such amount as the department may determine to
    33  be necessary for refunds in respect to the fees imposed by this section,
    34  out of which the comptroller shall pay any refunds of such fees to which
    35  distributors shall be entitled under the  provisions  of  this  section.
    36  The  department  and the comptroller shall maintain a system of accounts
    37  showing the amount of revenue collected or received from the fee imposed
    38  by this section.  The comptroller, after reserving such  refunds  shall,

    39  on  or  before the tenth day of each month, deposit to the credit of the
    40  motor fuel quality account,  which  is  hereby  established  within  the
    41  miscellaneous  state  special  revenue  fund,  the  fees imposed by this
    42  section, together with penalties  and  interest  thereon,  collected  or
    43  received  by such department pursuant to this section during the preced-
    44  ing calendar month. The amount so payable  shall  be  certified  to  the
    45  comptroller  by  the  secretary  or  his delegate, who shall not be held
    46  liable for any inaccuracy in such certificate. Where the amount so  paid
    47  over  to  such  fund  in  any such distribution is more or less than the
    48  amount due to such fund, the amount of the overpayment  or  underpayment

    49  shall  be certified to the comptroller by the secretary or his delegate,
    50  who shall not be held liable for any inaccuracy in such certificate. The
    51  amount of the overpayment or underpayment shall be so certified  to  the
    52  comptroller  as soon after the discovery of the overpayment or underpay-
    53  ment as reasonably possible and subsequent payments and distributions by
    54  the comptroller to such fund shall be adjusted by subtracting the amount
    55  of any such underpayment from such number  of  subsequent  payments  and
    56  distributions  as  the  comptroller  and  the  department shall consider

        S. 1719--A                         21
 
     1  reasonable in view of the amount of the overpayment or underpayment  and
     2  all other facts or circumstances.

     3    §  199-u.  Records  to  be  kept  by distributors and others. 1. Every
     4  person who imports or causes to be imported  into  this  state,  or  who
     5  produces,  refines,  manufactures or compounds within this state, or who
     6  purchases or sells in this state motor fuel  or  diesel  motor  fuel  or
     7  ingredients  which  may be manufactured or compounded into motor fuel or
     8  diesel motor fuel, shall keep a complete  and  accurate  record  of  all
     9  purchases  and  sales, uses or other dispositions thereof and a complete
    10  and accurate record of the number of gallons of  motor  fuel  or  diesel
    11  motor  fuel or such ingredients so imported, produced, refined, manufac-
    12  tured or compounded. Every person who stores motor fuel or diesel  motor

    13  fuel  shall  keep  a complete and accurate record of the identity of the
    14  person for whom such fuel is stored, the quantity and type  of  fuel  so
    15  stored,  the  identity  of the person to whom such fuel is released from
    16  storage and the quantity and type of  fuel  so  released.  Such  records
    17  shall  be in such form and contain such other information as the depart-
    18  ment shall prescribe. Said department, by rule or regulation,  also  may
    19  require  the  delivery  of statements to purchasers with consignments of
    20  motor fuel or diesel motor fuel or such ingredients, and  prescribe  the
    21  matters  to  be contained therein.   Such records and statements, unless
    22  required by the department to be preserved for a longer period, shall be

    23  preserved for  a  period  of  three  years  and  shall  be  offered  for
    24  inspection  at  any time upon oral or written demand by the secretary or
    25  the secretary's duly authorized agents. The secretary is hereby  further
    26  authorized to examine the equipment of any such person pertaining to the
    27  storage,  sale  or  delivery of such fuels, as well as the stock of such
    28  fuels in the possession or control of such person. Each such  person  is
    29  hereby directed and required to give to the secretary or the secretary's
    30  duly  authorized  representatives, the means, facilities and opportunity
    31  for such examinations as are herein provided for and  required.  Nothing
    32  contained  in this section shall be construed to require the keeping for

    33  purposes of this article of a record of purchases or sales of motor fuel
    34  or diesel motor fuel or such ingredients at retail in  small  quantities
    35  (less  than  thirty  gallons)  or  of  motor  fuel  or diesel motor fuel
    36  imported into this state in the tank of a motor vehicle  which  supplies
    37  the fuel for its operation.
    38    2. The department may, by regulation, provide for the filing of month-
    39  ly  information  returns  by  every  person  required  to  maintain such
    40  records, as prescribed in subdivision one of this section,  which  shall
    41  in  all  material  respects  reflect  the  information  required  to  be
    42  contained in such records. Such  returns  shall  be  in  such  form  and
    43  contain  such  other  information  as the department shall require.   In

    44  addition, such department shall be authorized to require  by  regulation
    45  the  keeping of records and the filing of information returns or reports
    46  by any person registered as the owner under the vehicle and traffic  law
    47  of  a  motor  vehicle  using  diesel motor fuel which is operated on the
    48  public highways of this state  and  the  person  having  a  registration
    49  issued pursuant to section four hundred fifteen of the vehicle and traf-
    50  fic law in the case of a motor vehicle operated under such registration.
    51    3.  The department shall provide for the filing of monthly information
    52  returns by every distributor and every person registered  as  a  "retail
    53  seller  of  aviation  gasoline"  required  to  maintain such records, as

    54  prescribed in subdivision one of this section, which shall in all  mate-
    55  rial  respects  reflect the information required to be contained in such
    56  records. Such returns shall be in  such  form  and  contain  such  other

        S. 1719--A                         22
 
     1  information  as  the  department shall require, provided, the department
     2  shall permit the filing of such return on a quarterly basis by distribu-
     3  tors whose only sales of diesel motor fuel are sales to consumers solely
     4  for  consumption other than on the public highways of this state (except
     5  for the use of the public highway by farmers  to  reach  adjacent  farm-
     6  lands)  and  by persons registered under this article as distributors of
     7  kero-jet fuel only.

     8    § 199-v. Records and reports  of  transportation  of  motor  fuel  and
     9  diesel  motor fuel. Every person transporting motor fuel or diesel motor
    10  fuel within this state, whether such transportation originates within or
    11  without this state, when required by the department, shall keep  a  true
    12  and  accurate  record  of all motor fuel and diesel motor fuel so trans-
    13  ported, including ingredients which may be  manufactured  or  compounded
    14  into  motor  fuel or diesel motor fuel, showing such facts with relation
    15  to such fuel and ingredients and their transportation as the  department
    16  may  require.  Such  record shall be open to inspection by the represen-
    17  tatives of the department at any time and  the  department  may  require

    18  from any such person sworn returns of all or any part of the information
    19  shown by such records.
    20    §  199-w.  Transportation of motor fuel or diesel motor fuel; manifest
    21  required. 1. The master or other person in charge of any  barge,  tanker
    22  or other vessel in which motor fuel or diesel motor fuel is being trans-
    23  ported over any of the navigable waters of this state, the operator of a
    24  motor  vehicle  in which motor fuel or diesel motor fuel is being trans-
    25  ported in this state, or the operator of a pipeline through which  motor
    26  fuel or diesel motor fuel is being transported in this state, other than
    27  motor  fuel  or diesel motor fuel being transported for use in operating
    28  the engine which propels such vessel or motor vehicle, as the  case  may

    29  be,  must  have in his or her possession a manifest which shows the name
    30  and address of the person from whom such fuel was received by him or her
    31  and the place of receipt of such fuel and the name and address of  every
    32  person  to  whom he or she is to make delivery of the same and the place
    33  of delivery, together with the number of gallons to be delivered to each
    34  such person, and, if such fuel is being imported into the state in  such
    35  vessel, motor vehicle or pipeline for use, storage, distribution or sale
    36  in the state, the name of the distributor importing or causing such fuel
    37  to  be imported into the state and such other information as the depart-
    38  ment may require pursuant to  rule  or  regulation,  and  shall  at  the

    39  request  of  a  peace  officer,  acting  pursuant  to his or her special
    40  duties, a police officer, any representative of the  department  or  any
    41  other person authorized by law to inquire into or investigate the trans-
    42  portation of such fuel, produce such manifest for inspection. The person
    43  causing the operation of such vessel, motor vehicle or pipeline shall be
    44  responsible to cause the operator of such vessel, motor vehicle or pipe-
    45  line  to  keep  in  his  or her possession on such vessel, in such motor
    46  vehicle or in the main control building of such pipeline in  this  state
    47  the  manifest  required  by  this  section.  The absence of the manifest
    48  required by this section shall give rise to a presumption that the motor

    49  fuel or diesel motor fuel being transported is intended for  sale,  use,
    50  distribution or storage in this state and is being imported or caused to
    51  be  imported  by  other  than  a  registered  distributor. Moreover, the
    52  absence of:
    53    (a) the place of delivery of motor fuel or diesel motor  fuel  on  the
    54  manifest  with respect to motor fuel or diesel motor fuel being imported
    55  into the state shall give rise to a presumption that such fuel is  being

        S. 1719--A                         23
 
     1  imported  into  the  state for use, distribution, storage or sale in the
     2  state, and
     3    (b)  the name of a registered distributor on the manifest with respect

     4  to motor fuel or diesel motor fuel being imported  into  the  state  for
     5  use,  distribution,  storage  or  sale in the state shall give rise to a
     6  presumption that such fuel is being so imported or caused to be imported
     7  by other than a registered distributor.
     8    Every barge, tanker or other vessel so used for the transportation  of
     9  motor  fuel must be plainly and visibly marked on both sides thereof and
    10  above the water line with the word "Gasoline,"  or  other  name  of  the
    11  motor  fuel being transported, in letters at least eight inches high and
    12  of corresponding appropriate width, or must be identified as  prescribed
    13  by  the  department pursuant to rule or regulation. The master or person

    14  in charge of such barge, tanker or other vessel, as well as  the  owners
    15  thereof,  shall  be guilty of a violation of this section if such barge,
    16  tanker or other vessel is not so marked.
    17    2. The department may, by regulation provide for the form and  content
    18  of  the  manifest  required  for motor and diesel motor fuel and for the
    19  filing of monthly information returns by every person required to  main-
    20  tain  records, described in subdivision one of this section, which shall
    21  in  all  material  respects  reflect  the  information  required  to  be
    22  contained  in  such  records.  Such  returns  shall  be in such form and
    23  contain such other information as the department shall require.
    24    § 9. Paragraph a of subdivision 19 of section 179 of  the  agriculture

    25  and  markets  law,  as  amended  by  chapter 190 of the laws of 1990, is
    26  amended to read as follows:
    27    a. Inspect, test, and take samples, of any and all petroleum  products
    28  kept,  offered  or  exposed  for  sale  or in the process of delivery or
    29  transport and inspect any and all documents and records required  to  be
    30  maintained by this article. The commissioner of taxation and finance and
    31  the  secretary  of state, respectively may request from the commissioner
    32  cooperation and technical assistance, including, among other things, the
    33  inspection, testing and sampling of petroleum  products,  in  connection
    34  with  the  administration  and  enforcement of the fee and taxes imposed
    35  with respect to such products by  or  pursuant  to  article  [twelve-A,]
    36  thirteen-A,  twenty-eight  or  twenty-nine  of  the  tax  law or article

    37  eleven-C of the general business law.
    38    § 10. Paragraph (e) of subdivision 7 of section 30 of the  canal  law,
    39  as  amended  by  chapter  335 of the laws of 2001, is amended to read as
    40  follows:
    41    (e) No such certificate authorizing or  approving  the  first  partial
    42  payment  or  any  final  payment  to  a foreign contractor shall be made
    43  unless such contractor shall furnish satisfactory proof that  all  taxes
    44  due  the  commissioner  of taxation and finance by such contractor under
    45  the provisions of or pursuant to a law enacted pursuant to the authority
    46  of article nine, nine-A,  [twelve-A,]  twenty-one,  twenty-two,  twenty-
    47  eight,  twenty-nine or thirty of the tax law have been paid. The certif-
    48  icate of the commissioner of taxation and finance to the effect that all
    49  such taxes have been paid shall  be,  for  purpose  of  this  paragraph,

    50  conclusive  proof  of  the  payment  of  such  taxes.  The term "foreign
    51  contractor" as used in this subdivision means, in the case of  an  indi-
    52  vidual,  a  person who is not a resident of this state, in the case of a
    53  partnership, one having one or more partners  not  a  resident  of  this
    54  state,  and  in  the  case of a corporation, one not organized under the
    55  laws of this state.

        S. 1719--A                         24
 
     1    § 11. Paragraph (q) of subdivision 34 of section 1.20 of the  criminal
     2  procedure  law,  as amended by section 55 of part K of chapter 61 of the
     3  laws of 2011, is amended to read as follows:
     4    (q) An employee of the department of taxation and finance (i) assigned
     5  to  enforcement of the [taxes imposed under or pursuant to the authority

     6  of article twelve-A of the tax law and administered by the  commissioner
     7  of taxation and finance,] taxes imposed under or pursuant to the author-
     8  ity  of  article eighteen of the tax law and administered by the commis-
     9  sioner, taxes imposed under article twenty of the tax law, or  sales  or
    10  compensating  use  taxes  relating  to  petroleum products or cigarettes
    11  imposed under article twenty-eight or pursuant to the authority of arti-
    12  cle twenty-nine of the tax law and administered by the  commissioner  or
    13  (ii)  designated  as  a  revenue  crimes  specialist and assigned to the
    14  enforcement of the taxes described in paragraph (c) of subdivision  four
    15  of  section  2.10  of  this  title,  for the purpose of applying for and
    16  executing search warrants under article six hundred ninety of this chap-
    17  ter, for the purpose of acting as a claiming agent under  article  thir-

    18  teen-A  of  the  civil  practice  law  and  rules in connection with the
    19  enforcement of the taxes referred  to  above  and  for  the  purpose  of
    20  executing warrants of arrest relating to the respective crimes specified
    21  in subdivision four of section 2.10 of this title.
    22    §  12.  Paragraph (a) of subdivision 4 of section 2.10 of the criminal
    23  procedure law, as amended by section 56 of part K of chapter 61  of  the
    24  laws of 2011, is amended to read as follows:
    25    (a)  to  the enforcement of any of the criminal or seizure and forfei-
    26  ture provisions of the tax law relating to [(i) taxes imposed  under  or
    27  pursuant  to the authority of article twelve-A of the tax law and admin-
    28  istered by the commissioner, (ii)] taxes imposed under  or  pursuant  to
    29  the authority of article eighteen of the tax law and administered by the

    30  commissioner, [(iii)] taxes imposed under article twenty of the tax law,
    31  or [(iv)] sales or compensating use taxes relating to petroleum products
    32  or  cigarettes  imposed  under  article  twenty-eight or pursuant to the
    33  authority of article twenty-nine of the tax law and administered by  the
    34  commissioner or
    35    § 13. Section 392-i of the general business law, as amended by section
    36  5  of part M-1 of chapter 109 of the laws of 2006, is amended to read as
    37  follows:
    38    § 392-i. Prices reduced to reflect change in  sales  tax  computation.
    39  Every  person  engaged  in  the  retail sale of motor fuel and/or diesel
    40  motor fuel or a  distributor  of  such  fuels,  as  defined  in  article
    41  [twelve-A  of  the  tax  law] eleven-C of this chapter, shall reduce the
    42  price such person charges for motor fuel and/or diesel motor fuel in  an

    43  amount  equal  to  any  reduction in taxes prepaid by the distributor or
    44  paid by retail customers resulting from computing sales and compensating
    45  use taxes at a cents per gallon rate pursuant to the provisions of para-
    46  graph two of subdivision (e)  and  subdivision  (m)  of  section  eleven
    47  hundred eleven of the tax law.
    48    §  14. Subdivision 5 of section 10-c of the highway law, as amended by
    49  chapter 20 of the laws of 1983, is amended to read as follows:
    50    5. For amounts to be distributed pursuant to this  section  above  the
    51  funding  level,  as defined in this subdivision, received by any munici-
    52  pality, such municipality shall use at  least  seventy-five  percent  of
    53  such apportioned moneys for the construction, reconstruction or improve-
    54  ment  of  local  highways,  bridges  and/or  highway-railroad crossings,

    55  including  right  of  way  acquisition,  preliminary  engineering,   and
    56  construction  supervision  and inspection, where the service life of the

        S. 1719--A                         25
 
     1  project is at least ten years. Such moneys made available may be used to
     2  match other state and federal funds made  available  for  such  projects
     3  under  federal-aid highway acts. The remainder of the apportionment, may
     4  be used for any highway purposes, except debt service, including but not
     5  limited to, the acquisition of materials and equipment devoted to opera-
     6  tion  and maintenance of local highways, bridges and/or highway-railroad
     7  crossings and the payment of any costs directly attributable  to  opera-
     8  tion  and maintenance of local highways, bridges and/or highway-railroad
     9  crossings. At the discretion of the commissioner, the requirement speci-

    10  fied in this subdivision  may  be  waived  for  assistance  payments  in
    11  amounts of less than five thousand dollars. For purposes of this section
    12  "funding  level"  shall  mean  the  average amounts, calculated for each
    13  municipality, received over two years ending March  thirty-first,  nine-
    14  teen hundred eighty-two from the provisions of the town highway improve-
    15  ment program, the distribution made by former section one hundred twelve
    16  of this chapter, as repealed by section twenty-one of the transportation
    17  systems  assistance  and financing act of 1981 of amounts collected from
    18  taxes on motor fuel imposed by former sections two  hundred  eighty-four
    19  and  two  hundred  eighty-four-a of the tax law and on Diesel motor fuel
    20  imposed by former sections two  hundred  eighty-two-a  and  two  hundred
    21  eighty-two-b  of the tax law, and from motor vehicle fees collected from

    22  residents pursuant to the vehicle and traffic law, and the  distribution
    23  made  by  former  section  two  hundred seventy-nine of this chapter, as
    24  repealed by section twenty-one of the transportation systems  assistance
    25  and financing act of 1981.
    26    § 15. Paragraph (e) of subdivision 7 of section 38 of the highway law,
    27  as amended by chapter 196 of the laws of 1981 and as relettered by chap-
    28  ter 153 of the laws of 1984, is amended to read as follows:
    29    (e)  No  such  certificate  approving or authorizing the first partial
    30  payment or any final payment to  a  foreign  contractor  shall  be  made
    31  unless  such  contractor shall furnish satisfactory proof that all taxes
    32  due the state tax commission by such contractor, under the provisions of
    33  or pursuant to a law enacted pursuant to the authority of article  nine,

    34  [nine-a] nine-A, [twelve-a, sixteen, sixteen-a,] twenty-one, twenty-two,
    35  twenty-three,  twenty-eight,  twenty-nine  or  thirty of the tax law [or
    36  article two-E of the general city law] have been paid.  The  certificate
    37  of  the state tax commission to the effect that all such taxes have been
    38  paid shall be, for purpose of this paragraph, conclusive  proof  of  the
    39  payment  of  such  taxes.  The term "foreign contractor" as used in this
    40  subdivision means, in the case of an individual, a person who is  not  a
    41  resident  of this state, in the case of a partnership, one having one or
    42  more partners not a resident of this state, and in the case of a  corpo-
    43  ration, one not organized under the laws of this state.
    44    §  16.  Subdivision 9 of section 385 of the public authorities law, as

    45  added by chapter 56 of the laws of 1993, is amended to read as follows:
    46    9. Nothing contained in this section shall be deemed to  restrict  the
    47  right  of the state to amend, repeal, modify or otherwise alter statutes
    48  imposing or relating to any taxes or fees, including the  taxes  imposed
    49  pursuant  to  [section two hundred eighty-four,] articles thirteen-A and
    50  twenty-one of the tax law and fees imposed by section four  hundred  one
    51  of  the  vehicle and traffic law. The authority shall not include within
    52  any resolution, contract or agreement with holders of the  bonds,  notes
    53  and  other  obligations  issued  under  this  title  any provision which
    54  provides that a default occurs as a result of the state  exercising  its
    55  right  to  amend,  repeal,  modify or otherwise alter any such taxes and
    56  fees.


        S. 1719--A                         26
 
     1    § 17. Paragraph (b) of subdivision 5 of  section  376  of  the  public
     2  authorities  law,  as  amended  by  chapter  55  of the laws of 1992, is
     3  amended to read as follows:
     4    (b)  To  assure  the continued operation and solvency of the authority
     5  for the carrying out of the purposes relating to this section, provision
     6  is made in this section for the accumulation in the debt service reserve
     7  fund of an amount equal to the maximum amount of principal and  interest
     8  maturing  and  becoming due in any succeeding calendar year on all bonds
     9  of the authority then outstanding and  secured  by  such  reserve  fund;
    10  provided  however  for  such  bonds  issued by the authority after April
    11  first, nineteen hundred ninety-two, such debt service reserve  fund  may
    12  in  the  discretion  of  the authority and consistent with any covenants

    13  with any existing bondholders and without impairing the  rights  of  any
    14  existing  bondholders  be sized in an amount equal to not less than one-
    15  half of the maximum amount of principal and interest maturing and becom-
    16  ing due in any succeeding calendar year on such bonds of  the  authority
    17  then outstanding and secured by such debt service reserve fund. In order
    18  to  further  assure  the  maintenance of such debt service reserve fund,
    19  with respect to bonds of the authority issued pursuant  to  subdivisions
    20  two-a,  two-b  and  two-c  of  this  section after April first, nineteen
    21  hundred ninety, the authority shall create a special subaccount in  each
    22  revenue  fund  established  pursuant  to  any  resolution or resolutions
    23  authorizing such bonds. [Such subaccounts shall consist  of  the  moneys
    24  available  after  April  first,  nineteen  hundred  ninety,  pursuant to

    25  sections two hundred eighty-two-b, two hundred eighty-two-c, two hundred
    26  eighty-four-a and two hundred eighty-four-c of the tax law,  respective-
    27  ly,  in  the  emergency  highway  reconditioning  and  preservation fund
    28  reserve account established pursuant to paragraph (b) of subdivision two
    29  of section eighty-nine of the state finance law  and  in  the  emergency
    30  highway construction and reconstruction fund reserve account established
    31  pursuant to paragraph (b) of subdivision two of section eighty-nine-a of
    32  the state finance law, apportioned and paid to the authority for deposit
    33  in such subaccount of the revenue fund.] Amounts in each such subaccount
    34  shall be kept separate and shall not be commingled with any other moneys

    35  in  the custody of the authority.  Amounts in each such subaccount shall
    36  be applied solely to pay such sum, if any, as shall  semi-annually,  (on
    37  such dates as are established under the terms of any cooperative highway
    38  contractual  agreement  of the department of transportation with the New
    39  York state thruway authority entered into on or after April first, nine-
    40  teen hundred ninety which is then in effect), be certified by the chair-
    41  man of the authority to the governor and state director of the budget as
    42  necessary to provide funds in an amount sufficient together  with  other
    43  moneys  available  to the authority for such purpose, to pay one-half of
    44  the total annual principal and interest maturing and becoming due during
    45  the next succeeding twelve calendar months on all bonds of the authority
    46  issued pursuant to subdivisions two-a, two-b and two-c of  this  section

    47  after  April  first,  nineteen hundred ninety and maintaining or funding
    48  debt service reserve funds therefor. [Any surplus of funds in excess  of
    49  such  certified  amounts  remaining  in  each such subaccount after such
    50  payments, if any, have been made shall on the  dates  established  under
    51  the  terms  of  such  cooperative  highway  agreements, be paid over for
    52  deposit, respectively, in the emergency highway reconditioning and pres-
    53  ervation fund reserve account established pursuant to paragraph  (b)  of
    54  subdivision  two  of section eighty-nine of the state finance law and in
    55  the emergency  highway  construction  and  reconstruction  fund  reserve

        S. 1719--A                         27


     1  account  established  pursuant  to  paragraph  (b) of subdivision two of
     2  section eighty-nine-a of the state finance law.]
     3    §  18.  Paragraph  (c)  of  subdivision 1 of section 385 of the public
     4  authorities law, as added by chapter 129 of the laws of 1995, is amended
     5  to read as follows:
     6    (c) Such obligations shall be issued or incurred with the approval  of
     7  the  director  of  the  budget  and  shall be special obligations of the
     8  authority secured by and payable solely out of amounts  appropriated  by
     9  the  legislature  as authorized pursuant to section eighty-nine-b of the
    10  state finance law without recourse against any other assets, revenues or
    11  funds of or other payments due to the authority. Upon payments  of  such
    12  appropriated  amounts  from  the  fund  established  pursuant to section

    13  eighty-nine-b of the state finance law to the account of the  authority,
    14  such  funds  may  be pledged by the authority to secure its bonds, notes
    15  and other obligations authorized by paragraph (b)  of  this  subdivision
    16  and  shall be held free and clear of any claim by any person arising out
    17  of or in connection with articles [twelve-A,] thirteen-A and  twenty-one
    18  of  the  tax  law.  Without limiting the generality of the foregoing and
    19  without limiting the rights and duties of the commissioner  of  taxation
    20  and  finance under articles [twelve-A,] thirteen-A and twenty-one of the
    21  tax law, no taxpayer, or any other person, including  the  state,  shall
    22  have  any right or claim against the authority or any of its bondholders
    23  to any moneys appropriated and transferred from  the  dedicated  highway
    24  and  bridge trust fund established by section eighty-nine-b of the state

    25  finance law for or in respect of a refund, rebate, credit, reimbursement
    26  or other repayment of taxes paid under such articles of the tax law.
    27    § 19. Subparagraph 7 of paragraph j of subdivision 1 of section 54  of
    28  the state finance law is REPEALED.
    29    §  20.  Paragraph  (a)  of  subdivision 3 of section 89-b of the state
    30  finance law, as amended by section 2 of part B of chapter 58 of the laws
    31  of 2012, is amended to read as follows:
    32    (a) The special obligation reserve and payment account  shall  consist
    33  (i)  of all moneys required to be deposited in the dedicated highway and
    34  bridge trust fund pursuant to the provisions  of  sections  two  hundred
    35  five,  [two  hundred  eighty-nine-e,]  three hundred one-j, five hundred
    36  fifteen and eleven hundred sixty-seven of  the  tax  law,  section  four

    37  hundred  one  of  the vehicle and traffic law, and section thirty-one of
    38  chapter fifty-six of the laws of nineteen hundred ninety-three, (ii) all
    39  fees, fines or penalties collected by the commissioner of transportation
    40  pursuant to section fifty-two, section  three  hundred  twenty-six,  and
    41  subdivisions five, eight and twelve of section eighty-eight of the high-
    42  way law, subdivision fifteen of section three hundred eighty-five of the
    43  vehicle  and  traffic  law,  section  two  of  [the] part U-1 of chapter
    44  sixty-two of the laws of two thousand three that amended this paragraph,
    45  subdivision (d) of section three hundred four-a, paragraph one of subdi-
    46  vision (a) and subdivision (d) of section three hundred  five,  subdivi-
    47  sion  six-a  of  section  four  hundred  fifteen  and subdivision (g) of

    48  section twenty-one hundred twenty-five of the vehicle and  traffic  law,
    49  section  fifteen  of  this  chapter, excepting moneys deposited with the
    50  state on account of betterments performed pursuant to subdivision  twen-
    51  ty-seven  or  subdivision thirty-five of section ten of the highway law,
    52  (iii) any moneys collected  by  the  department  of  transportation  for
    53  services provided pursuant to agreements entered into in accordance with
    54  section  ninety-nine-r  of the general municipal law, and (iv) any other
    55  moneys collected therefor or credited or transferred  thereto  from  any
    56  other fund, account or source.

        S. 1719--A                         28
 
     1    §  21.  Paragraph  (a)  of  subdivision 3 of section 89-b of the state
     2  finance law, as amended by section 3 of part B of chapter 58 of the laws
     3  of 2012, is amended to read as follows:

     4    (a)  The  special obligation reserve and payment account shall consist
     5  (i) of all moneys required to be deposited in the dedicated highway  and
     6  bridge  trust  fund  pursuant to the provisions of sections [two hundred
     7  eighty-nine-e,] three hundred one-j, five  hundred  fifteen  and  eleven
     8  hundred  sixty-seven  of  the  tax  law, section four hundred one of the
     9  vehicle and traffic law, and section thirty-one of chapter fifty-six  of
    10  the  laws  of  nineteen  hundred  ninety-three,  (ii) all fees, fines or
    11  penalties collected by the commissioner of  transportation  pursuant  to
    12  section  fifty-two,  section  three hundred twenty-six, and subdivisions
    13  five, eight and twelve of  section  eighty-eight  of  the  highway  law,
    14  subdivision  fifteen of section three hundred eighty-five of the vehicle
    15  and traffic law, section  fifteen  of  this  chapter,  excepting  moneys

    16  deposited with the state on account of betterments performed pursuant to
    17  subdivision  twenty-seven  or  subdivision thirty-five of section ten of
    18  the highway law, (iii) any moneys collected by the department of  trans-
    19  portation  for  services provided pursuant to agreements entered into in
    20  accordance with section ninety-nine-r of the general municipal law,  and
    21  (iv)  any  other  moneys  collected  therefor or credited or transferred
    22  thereto from any other fund, account or source.
    23    § 22. Subparagraph (C) of paragraph 1, paragraph  2  and  subparagraph
    24  (B)  of  paragraph  4  of  subdivision (b) of section 10 of the tax law,
    25  subparagraph (C) of paragraph 1 as amended by chapter 38 of the laws  of
    26  1997,  paragraph 2 and subparagraph (B) of paragraph 4 as added by chap-
    27  ter 55 of the laws of 1992, are amended to read as follows:

    28    (C) more than five million dollars of the total of the tax  on  [gaso-
    29  line and similar motor fuel and the tax on] petroleum businesses imposed
    30  by  and  pursuant  to  the  authority of [articles twelve-A and] article
    31  thirteen-A of this chapter, then such taxpayer shall  make  payments  of
    32  the  taxes  for  which such dollar threshold was met by electronic funds
    33  transfer or certified check in accordance with the provisions of  subdi-
    34  vision (c) of this section.
    35    (2) Special transitional rule. Notwithstanding the provisions of para-
    36  graph  one  of  this  subdivision, for purposes of determining whether a
    37  taxpayer described in  subparagraph  (C)  of  such  paragraph  shall  be
    38  required  to  initially  participate  in  the program prescribed by this
    39  section, if such taxpayer was liable for more than three  million  seven

    40  hundred  fifty  thousand  dollars  in total article [twelve-A and] thir-
    41  teen-A taxes during the September first, nineteen hundred ninety through
    42  May thirty-first, nineteen hundred ninety-one period, then such taxpayer
    43  shall make payments of tax by electronic  funds  transfer  or  certified
    44  check in accordance with the provisions of this section.
    45    (B)  If  a  taxpayer having liability described in subparagraph (B) or
    46  (C) of paragraph one of this subdivision can demonstrate to  the  satis-
    47  faction of the commissioner that (i) for the most recent six-month peri-
    48  od,  (I) the prepaid state and local sales and compensating use taxes on
    49  motor fuel and diesel motor fuel or (II)  the  total  article  [twelve-A
    50  and]  thirteen-A  taxes,  as  the  case may be, properly payable by such
    51  taxpayer are less than fifty percent of such applicable taxes  described

    52  in  subclause  (I) or (II), as the case may be, properly payable by such
    53  taxpayer for the comparable six-month period of the preceding  year  and
    54  (ii)  the sum of such taxpayer's liability for such applicable taxes for
    55  the most recent six months together with the product of such  applicable
    56  taxes  properly  payable by such taxpayer for the six-month period imme-

        S. 1719--A                         29
 
     1  diately preceding the six-month period referred to in clause (i) of this
     2  subparagraph multiplied by the percentage arrived at under  such  clause
     3  is  less  than  two  and  one-half  million dollars in amount, then such
     4  taxpayer  shall not be required to participate in the program prescribed
     5  by this section for the remaining months of the  period  ending  on  the
     6  next May thirty-first and for the immediately succeeding twelve months.

     7    § 23. Item (i) of subparagraph (C) of paragraph 1 and subparagraph (C)
     8  of paragraph 2 of subdivision (c) of section 10 of the tax law, item (i)
     9  of  subparagraph (C) of paragraph 1 as amended by chapter 38 of the laws
    10  of 1997 and subparagraph (C) of paragraph 2 as added by chapter  129  of
    11  the laws of 2000, are amended to read as follows:
    12    (i)  three-fourths  of  the total [article twelve-A and] article thir-
    13  teen-A taxes properly payable by such taxpayer for the comparable  month
    14  of the preceding year; or
    15    (C) A taxpayer having liability described in subparagraph (C) of para-
    16  graph  one  of  subdivision  (b)  of this section shall file the returns
    17  required under and pursuant to the authority of [articles twelve-A  and]
    18  article thirteen-A of this chapter and shall pay to the commissioner the

    19  amounts required to be paid with such returns, less the amounts remitted
    20  by  electronic funds transfer or certified check under this section, for
    21  each of the periods for which such returns are filed under and  pursuant
    22  to the authority of such articles.
    23    §  24.  Paragraphs 2 and 3 of subdivision (g) of section 10 of the tax
    24  law, paragraph 2 as amended by chapter 129 of the laws of 2000 and para-
    25  graph 3 as amended by chapter 38 of the laws of  1997,  are  amended  to
    26  read as follows:
    27    (2)  Failure  to  pay  or  late  payment.  (A)  A taxpayer required or
    28  approved to participate in the program prescribed by  this  section  who
    29  fails to make a payment of tax by electronic funds transfer or certified
    30  check on or before the applicable due date prescribed by subdivision (c)
    31  of  this section, or who fails to pay any tax required to be remitted on

    32  or before such applicable due date shall,  in  the  case  of  the  taxes
    33  imposed  pursuant  to article twenty-eight and pursuant to the authority
    34  of article twenty-nine of this chapter, be liable for penalty and inter-
    35  est as prescribed by subparagraphs (i) and  (ii)  of  paragraph  one  of
    36  subdivision  (a)  of section eleven hundred forty-five of this chapter[,
    37  and in the case of the taxes imposed by and pursuant to the authority of
    38  articles twelve-A and thirteen-A of this chapter, be liable for  penalty
    39  and  interest as prescribed by paragraphs (a) and (b) of subdivision one
    40  of section two hundred eighty-nine-b of this chapter].
    41    (B) Notwithstanding any provision of law to the contrary, if a taxpay-
    42  er described in subparagraph (B) or (C) of paragraph one of  subdivision

    43  (b)  of  this section fails to make a payment of tax by electronic funds
    44  transfer or certified  check  on  or  before  the  applicable  due  date
    45  prescribed  by  subdivision  (c) of this section or fails to pay any tax
    46  required to be remitted on  or  before  such  applicable  due  date,  as
    47  prescribed  by subparagraph (A) of this paragraph, and also fails to pay
    48  or pay over to the commissioner the amounts required to be paid or  paid
    49  over  with  the applicable return described in paragraph two of subdivi-
    50  sion (c) of this section due the twentieth day of the  following  month,
    51  then  penalty  and  interest for such additional failure, as provided by
    52  subparagraphs (i) and (ii)  of  paragraph  one  of  subdivision  (a)  of
    53  section eleven hundred forty-five of this chapter [or paragraphs (a) and
    54  (b)  of  subdivision  one  of  section two hundred eighty-nine-b of this

    55  chapter, as the case may be], shall be computed on the amount  equal  to
    56  the  difference between the total of the amount of tax due or determined

        S. 1719--A                         30
 
     1  to be due with such return and the total of the amount of  tax  required
     2  to  be paid by electronic funds transfer or certified check on or before
     3  the applicable due date prescribed by subdivision (c)  of  this  section
     4  for the preceding month.
     5    (3)  Failure to file required returns. A taxpayer required or approved
     6  to participate in the program prescribed by this  section  who  complies
     7  with  the  payment  requirements  of  subdivision  (c)  of  this section
     8  (including the payment of remaining liabilities described  in  paragraph
     9  two  of  such  subdivision),  but  who fails to file any return required

    10  pursuant to article [twelve-A,] thirteen-A, twenty-eight or  twenty-nine
    11  of  this  chapter,  as  the  case  may be, for the period for which such
    12  payments were timely and fully paid or paid over, shall be liable for  a
    13  penalty equal to five hundred dollars.
    14    §  25.  Subdivision  (h)  of  section 10 of the tax law, as amended by
    15  chapter 38 of the laws of 1997, is amended to read as follows:
    16    (h) Administration. Except as otherwise provided in this section,  the
    17  provisions  of  part  IV  of  article twenty-eight of this chapter shall
    18  apply to the administration  of  and  procedures  with  respect  to  the
    19  provisions  of  this section relating to the taxes described by subpara-
    20  graph (A) of paragraph one of  subdivision  (b)  of  this  section,  the
    21  provisions of section eleven hundred two of this chapter relating to the

    22  administration  of  and  procedures  with  respect to such section shall
    23  apply to the administration  of  and  procedures  with  respect  to  the
    24  provisions  of  this section relating to the taxes described by subpara-
    25  graph (B) of such paragraph one[, and the provisions of article twelve-A
    26  relating to the administration of and procedures with  respect  to  such
    27  article  shall  apply  to the provisions of this section relating to the
    28  taxes described in subparagraph (C) of such paragraph one].
    29    § 26. Subdivision twentieth and paragraph  a  of  subdivision  twenty-
    30  sixth of section 171 of the tax law, subdivision twentieth as amended by
    31  chapter  282  of the laws of 1986 and paragraph a of subdivision twenty-
    32  sixth as amended by section 1 of subpart D of part V-1 of chapter 57  of
    33  the laws of 2009, are amended to read as follows:

    34    Twentieth.  Have  authority,  of  his  own  motion, to abate any small
    35  unpaid balance of an assessment of tax,  or  any  liability  in  respect
    36  thereof,  under  articles  [twelve-A,] eighteen, twenty or twenty-one of
    37  this chapter,  if  such  commissioner  determines  under  uniform  rules
    38  prescribed  by him that the administration and collection costs involved
    39  would not warrant collection of the amount due. He may  also  abate,  of
    40  his  own  motion,  the  unpaid  portion of the assessment of any of such
    41  taxes, or any liability  in  respect  thereof,  which  is  excessive  in
    42  amount,  or is assessed after the expiration of the period of limitation
    43  properly applicable thereto, or is erroneously or illegally assessed. No
    44  claim for abatement under this subdivision shall be  filed  for  any  of
    45  such taxes.

    46    a. Set the overpayment and underpayment rates of interest for purposes
    47  of articles [twelve-A,] eighteen, twenty and twenty-one of this chapter.
    48  Such  rates  shall be the overpayment and underpayment rates of interest
    49  set pursuant to subsection (e) of section  one  thousand  ninety-six  of
    50  this chapter, but the underpayment rate shall not be less than seven and
    51  one-half  percent  per  annum.  Any  such rates set by such commissioner
    52  shall apply to taxes, or any portion thereof, which remain or become due
    53  or overpaid (other than overpayments under such article twenty  and  not
    54  including  reimbursements,  if  any,  under  any of such articles) on or
    55  after the date on which such rates become effective and shall apply only
    56  with respect to interest computed or computable for periods or  portions

        S. 1719--A                         31
 

     1  of  periods  occurring  in  the  period  during  which such rates are in
     2  effect. In computing the amount of any  interest  required  to  be  paid
     3  under  such  articles  by  such  commissioner or by the taxpayer, or any
     4  other  amount  determined  by reference to such amount of interest, such
     5  interest and such amount shall be compounded daily.
     6    § 27. Subdivision 1 of section 171-a of the tax  law,  as  amended  by
     7  section  1  of  part  R of chapter 60 of the laws of 2004, is amended to
     8  read as follows:
     9    1. All taxes, interest, penalties and fees collected  or  received  by
    10  the commissioner or the commissioner's duly authorized agent under arti-
    11  cles nine (except section one hundred eighty-two-a thereof and except as
    12  otherwise  provided  in  section  two  hundred  five  thereof),  nine-A,
    13  [twelve-A (except as otherwise provided in section two  hundred  eighty-

    14  four-d  thereof),] thirteen, thirteen-A (except as otherwise provided in
    15  section  three  hundred  twelve  thereof),  eighteen,  nineteen,  twenty
    16  (except  as otherwise provided in section four hundred eighty-two there-
    17  of),  twenty-one,  twenty-two,  twenty-six,  twenty-six-B,  twenty-eight
    18  (except  as  otherwise  provided in section eleven hundred two or eleven
    19  hundred three thereof), twenty-eight-A, thirty-one (except as  otherwise
    20  provided  in  section  fourteen hundred twenty-one thereof), thirty-two,
    21  thirty-three and thirty-three-A of this chapter shall be deposited daily
    22  in one account with such responsible  banks,  banking  houses  or  trust
    23  companies  as may be designated by the comptroller, to the credit of the
    24  comptroller. Such an account may be established in one or more  of  such
    25  depositories.  Such  deposits  shall be kept separate and apart from all

    26  other money in the possession of the comptroller. The comptroller  shall
    27  require  adequate  security  from  all  such  depositories. Of the total
    28  revenue collected or received under such articles of this  chapter,  the
    29  comptroller  shall  retain in the comptroller's hands such amount as the
    30  commissioner may determine to be necessary for refunds or reimbursements
    31  under such articles of this chapter and former article ten  thereof  out
    32  of  which amount the comptroller shall pay any refunds or reimbursements
    33  to which taxpayers shall be entitled under the provisions of such  arti-
    34  cles  of  this  chapter and former article ten thereof. The commissioner
    35  and the comptroller shall maintain a  system  of  accounts  showing  the
    36  amount  of  revenue collected or received from each of the taxes imposed
    37  by such articles. The comptroller, after reserving  the  amount  to  pay

    38  such  refunds  or  reimbursements,  shall, on or before the tenth day of
    39  each month, pay into the state treasury to the  credit  of  the  general
    40  fund  all  revenue  deposited  under  this  section during the preceding
    41  calendar month and remaining to the comptroller's credit on the last day
    42  of such preceding month, (i) except that the comptroller  shall  pay  to
    43  the  state  department of social services that amount of overpayments of
    44  tax imposed by article twenty-two of this chapter and  the  interest  on
    45  such amount which is certified to the comptroller by the commissioner as
    46  the  amount to be credited against past-due support pursuant to subdivi-
    47  sion six of section one hundred seventy-one-c of this [chapter] article,
    48  (ii) and except that the comptroller shall pay to  the  New  York  state
    49  higher  education  services  corporation and the state university of New

    50  York or the city university of New  York  respectively  that  amount  of
    51  overpayments  of  tax  imposed by article twenty-two of this chapter and
    52  the interest on such amount which is certified to the comptroller by the
    53  commissioner as the amount to be credited against the amount of defaults
    54  in repayment of guaranteed student loans and state university  loans  or
    55  city  university  loans  pursuant  to  subdivision  five  of section one
    56  hundred seventy-one-d and subdivision six of section one hundred  seven-

        S. 1719--A                         32
 
     1  ty-one-e  of  this  [chapter]  article,  (iii)  and except further that,
     2  notwithstanding any law, the comptroller shall  credit  to  the  revenue
     3  arrearage account, pursuant to section ninety-one-a of the state finance

     4  law,  that amount of overpayment of tax imposed by article nine, nine-A,
     5  twenty-two, thirty, thirty-A, thirty-B, thirty-two  or  thirty-three  of
     6  this  chapter, and any interest thereon, which is certified to the comp-
     7  troller by the commissioner as the amount to be credited against a past-
     8  due legally enforceable debt owed to a state agency  pursuant  to  para-
     9  graph  (a)  of  subdivision  six of section one hundred seventy-one-f of
    10  this article, provided, however, he shall credit to the  special  offset
    11  fiduciary account, pursuant to section ninety-one-c of the state finance
    12  law, any such amount creditable as a liability as set forth in paragraph
    13  (b)  of  subdivision  six  of  section one hundred seventy-one-f of this
    14  article, (iv) and except further that the comptroller shall pay  to  the
    15  city  of  New  York that amount of overpayment of tax imposed by article

    16  nine, nine-A, twenty-two, thirty,  thirty-A,  thirty-B,  thirty-two,  or
    17  thirty-three  of this chapter and any interest thereon that is certified
    18  to the comptroller by the commissioner as  the  amount  to  be  credited
    19  against  city  of New York tax warrant judgment debt pursuant to section
    20  one hundred seventy-one-l of this article, (v) and except  further  that
    21  the comptroller shall pay to a non-obligated spouse that amount of over-
    22  payment  of  tax  imposed  by article twenty-two of this chapter and the
    23  interest on such amount which has been credited pursuant to section  one
    24  hundred  seventy-one-c,  one hundred seventy-one-d, one hundred seventy-
    25  one-e, one hundred seventy-one-f or one hundred  seventy-one-l  of  this
    26  article and which is certified to the comptroller by the commissioner as
    27  the  amount  due  such non-obligated spouse pursuant to paragraph six of

    28  subsection (b) of section six hundred fifty-one  of  this  chapter;  and
    29  (vi)  the  comptroller  shall deduct a like amount which the comptroller
    30  shall pay into the treasury to the  credit  of  the  general  fund  from
    31  amounts  subsequently  payable  to  the  department of [social services]
    32  family assistance, the state university of New York, the city university
    33  of New York, or the higher education services corporation, or the reven-
    34  ue arrearage account or special offset  fiduciary  account  pursuant  to
    35  section  ninety-one-a  or  ninety-one-c of the state finance law, as the
    36  case may be, whichever had been credited the amount originally  withheld
    37  from  such  overpayment,  and  (vii)  with respect to amounts originally
    38  withheld from such overpayment pursuant to section one hundred  seventy-
    39  one-l  of this article and paid to the city of New York, the comptroller

    40  shall collect a like amount from the city of New York.
    41    § 28. Paragraph (c) of subdivision 1 of section 183 of the tax law, as
    42  amended by chapter 2 of the laws of 1995, is amended to read as follows:
    43    (c) Notwithstanding the provisions of paragraph (b) of  this  subdivi-
    44  sion,  during  the  period  that  the state tax on motor fuel, [computed
    45  without regard to any reimbursement allowable  under  paragraph  (d)  of
    46  subdivision three of section two hundred eighty-nine-c of this chapter,]
    47  exceeds two cents per gallon, the corporations, herein classed as "taxi-
    48  cab"  and  "omnibus,"  other  than corporations described in subdivision
    49  nine of this section, shall be taxed under  the  provisions  of  article
    50  [nine-a] nine-A of this chapter and not under this section.

    51    § 29. Paragraph (a) of subdivision 2 of section 184 of the tax law, as
    52  amended  by  chapter  485  of  the  laws  of 1988, is amended to read as
    53  follows:
    54    (a) During the period that the state  tax  on  motor  fuel,  [computed
    55  without  regard  to  any  reimbursement allowable under paragraph (d) of
    56  subdivision three of section two hundred eighty-nine-c of this chapter,]

        S. 1719--A                         33
 
     1  exceeds two cents per gallon the corporations herein classed  as  "taxi-
     2  cab"  and  "omnibus", other than corporations described in paragraph (b)
     3  of this subdivision, shall be taxed  under  the  provisions  of  article
     4  [nine-a]  nine-A  of  [the  tax  law] this chapter and as other business

     5  corporations are taxed and not upon their gross receipts.
     6    § 30. Paragraphs 1 and 2 of subdivision (b) of section 300 of the  tax
     7  law, paragraph 1 as amended by chapter 170 of the laws of 1994 and para-
     8  graph  2 as amended by section 17 of part K of chapter 61 of the laws of
     9  2011, are amended to read as follows:
    10    (1) With respect to motor fuel, every corporation  and  unincorporated
    11  business  (i)  importing motor fuel or causing motor fuel to be imported
    12  into the state for use, distribution, storage or sale in the  state,  or
    13  (ii) producing, refining, manufacturing or compounding motor fuel in the
    14  state. Provided, however, a corporation or unincorporated business which
    15  has been issued a liquefied petroleum gas fuel permit under section [two
    16  hundred eighty-three-c of this chapter] one hundred ninety-nine-s of the

    17  general  business  law  and  which does not import motor fuel other than
    18  liquefied petroleum gas fuel or cause motor fuel  other  than  liquefied
    19  petroleum  gas fuel to be imported into the state for use, distribution,
    20  storage or sale in the state or produce, refine, manufacture or compound
    21  motor fuel other than liquefied petroleum gas fuel in  the  state  shall
    22  not be considered a petroleum business with respect to motor fuel within
    23  the meaning of this paragraph. Motor fuel brought into this state in the
    24  ordinary  fuel  tank  connecting  with  the  engine  of a motor vehicle,
    25  airplane, or other conveyance, but not a vessel  (other  than  a  recre-
    26  ational  motor boat or a commercial fishing vessel, as defined in subdi-
    27  vision (j) of this section, if the motor fuel imported into and consumed
    28  in this state is used to operate such vessel while it is engaged in  the

    29  harvesting  of  fish  for sale), propelled by the use of such motor fuel
    30  and to be used only in  the  operation  thereof,  shall  not  be  deemed
    31  imported  within  the  meaning of this article, if not removed from such
    32  tank except as used in the propulsion of such engine.
    33    (2) With respect to diesel motor fuel, every corporation and  unincor-
    34  porated business (i) importing diesel motor fuel or causing diesel motor
    35  fuel  to  be  imported  into the state for use, distribution, storage or
    36  sale in the state, (ii) producing, refining, manufacturing or  compound-
    37  ing  diesel  motor  fuel within the state, (iii) making a sale or use of
    38  diesel motor fuel in the state, other than a retail sale not in bulk  or
    39  self-use  of  diesel  motor  fuel which has been the subject of a retail
    40  sale to such corporation or unincorporated business, or (iv)  registered

    41  by  the department as a "distributor of kero-jet fuel only" [pursuant to
    42  the provisions of subdivision two of section two hundred eighty-two-a of
    43  this chapter]. Diesel motor fuel brought into this state in the ordinary
    44  fuel tank connecting with the engine of a  motor  vehicle,  airplane  or
    45  other conveyance, but not a vessel (other than a recreational motor boat
    46  or  a  commercial  fishing  vessel as defined in subdivision (j) of this
    47  section if the diesel motor fuel imported  into  and  consumed  in  this
    48  state is used to operate such vessel while it is engaged in the harvest-
    49  ing  of  fish  for sale), propelled by the use of such diesel motor fuel
    50  and to be used only in  the  operation  thereof,  shall  not  be  deemed
    51  imported  within  the  meaning of this article, if not removed from such
    52  tank except as used in the propulsion of such engine.

    53    § 31. Subdivisions (c) and (d) of section 300 of the tax law, subdivi-
    54  sion (c) as amended by section 17 of part K of chapter 61 of the laws of
    55  2011 and subdivision (d) as added by chapter 190 of the  laws  of  1990,
    56  are amended to read as follows:

        S. 1719--A                         34
 
     1    (c)  The  terms  (1) "diesel motor fuel" means such term as defined in
     2  subdivision [fourteen] ten of section [two hundred  eighty-two  of  this
     3  chapter] one hundred ninety-nine-o of the general business law, and
     4    (2)  "highway diesel motor fuel" means [such term as defined in subdi-
     5  vision sixteen-a of section two hundred eighty-two of this chapter]  any
     6  diesel motor fuel which is not non-highway diesel motor fuel, and

     7    (3)  "non-highway  diesel  motor  fuel" means [such term as defined in
     8  subdivision sixteen of section two hundred eighty-two of  this  chapter]
     9  any  diesel motor fuel that is designated for use other than on a public
    10  highway (except for the use of the public highway by  farmers  to  reach
    11  adjacent  lands),  and  is  dyed diesel motor fuel, meaning diesel motor
    12  fuel which has been dyed in accordance  with  and  for  the  purpose  of
    13  complying  with  the  provisions of 26 USC § 4082(a) and the regulations
    14  thereunder, as may be amended from time to time.
    15    (4) As used in this article, references to persons or petroleum  busi-
    16  nesses  registered  under article [twelve-A of this chapter] eleven-C of

    17  the general business law as distributors  of  diesel  motor  fuel  shall
    18  include  all  such persons or petroleum businesses registered under such
    19  article as distributors of diesel motor fuel and  persons  or  petroleum
    20  businesses  operating  under  valid  limited  registrations  relating to
    21  persons or petroleum businesses making retail sales of diesel motor fuel
    22  to consumers solely for [the purposes described in subparagraph  (i)  of
    23  paragraph  (b)  of subdivision three of section two hundred eighty-two-a
    24  of this chapter] consumption other than on the public highways  of  this
    25  state  (except  for  the  use  of the public highway by farmers to reach
    26  adjacent farmlands), but such references shall not include  persons  and
    27  petroleum  businesses registered as "distributors of kero-jet fuel only"

    28  [pursuant to the provisions of subdivision two of  section  two  hundred
    29  eighty-two-a of this chapter].
    30    (d)  The  term  "motor fuel" means such term as defined in subdivision
    31  two of section [two hundred eighty-two  of  this  chapter]  one  hundred
    32  ninety-nine-o of the general business law.
    33    §  32.  Subdivisions  (o),  (p), (q) and (r) of section 300 of the tax
    34  law, as added by section 3 of part W-1 of chapter 109  of  the  laws  of
    35  2006, are amended to read as follows:
    36    (o)  The  term  "E85"  [shall  have the same meaning as in subdivision
    37  twenty-two of section two hundred eighty-two of this  chapter]  means  a
    38  fuel  blend  consisting  of ethanol and motor fuel, which meets the ASTM
    39  International active standard D5798 for fuel ethanol.

    40    (p) The term "B20" [shall have the  same  meaning  as  in  subdivision
    41  twenty-three  of section two hundred eighty-two of this chapter] means a
    42  mixture consisting by volume of twenty percent biodiesel and the remain-
    43  der of which is diesel motor fuel. "Biodiesel" shall mean either "quali-
    44  fied biodiesel" or "unqualified biodiesel". "Qualified biodiesel"  means
    45  a  diesel  motor  fuel  substitute  produced from nonpetroleum renewable
    46  resources that meets the registration requirements for  fuels  and  fuel
    47  additives  established  by  the  Environmental  Protection  Agency under
    48  section 211 of the Clean Air Act (42 U.S.C. 7545)  and  that  meets  the
    49  ASTM  International  active standard D6751 for biodiesel fuel. "Unquali-

    50  fied biodiesel" means a  diesel  motor  fuel  substitute  produced  from
    51  nonpetroleum  renewable  resources  that does not meet the ASTM Interna-
    52  tional active standard D6751 for biodiesel fuel.
    53    (q) The term "CNG" [shall have the  same  meaning  as  in  subdivision
    54  twenty-four  of  section  two  hundred eighty-two of this chapter] means
    55  fuel comprised primarily of methane,  stored  in  either  a  gaseous  or

        S. 1719--A                         35
 
     1  liquid  state, suitable for use and consumption in the engine of a motor
     2  vehicle.
     3    (r) The term "hydrogen" [shall have the same meaning as in subdivision
     4  twenty-five  of  section  two  hundred eighty-two of this chapter] means

     5  fuel comprised primarily of molecular hydrogen, stored in either a gase-
     6  ous or liquid state, suitable for use and consumption in the engine of a
     7  motor vehicle.
     8    § 32-a. Subdivision (s) of section 300 of the tax  law,  as  added  by
     9  section  5  of  part  W of chapter 59 of the laws of 2013, is amended to
    10  read as follows:
    11    (s) The term "terminal" shall have the same meaning as in  subdivision
    12  [thirteen  of  section  two  hundred eighty-two of this chapter] nine of
    13  section one hundred ninety-nine-o of the general business law.
    14    § 33. Subdivision (l) of section 301-a of the tax law, as  amended  by
    15  section  5  of  part  K of chapter 61 of the laws of 2005, is amended to
    16  read as follows:
    17    (l) Taxes imposed on qualified reservations.  In  furtherance  of  the

    18  joint  administration  of [the taxes imposed by article twelve-A of this
    19  chapter and] the taxes imposed by this article, the provisions of former
    20  section two hundred eighty-four-e of this chapter concerning  the  sales
    21  of  motor  fuel  and  Diesel motor fuel on qualified Indian reservations
    22  shall apply to the payment and pass-through of  the  petroleum  business
    23  tax  in  the  same  manner  and with the same force and effect as if the
    24  provisions of such section had been incorporated in full into this arti-
    25  cle, except to the extent that any such provision is either inconsistent
    26  with a provision of this article or not relevant thereto.
    27    § 34. Paragraphs 1, 2, 3, 6 and 7 of subdivision (a) of section  301-b
    28  of  the  tax  law,  paragraphs 1, 2 and 3 as added by chapter 190 of the

    29  laws of 1990 and paragraphs 6 and 7 as added by section 4 of part W-1 of
    30  chapter 109 of the laws of 2006, are amended to read as follows:
    31    (1) Kerosene sold or used by a petroleum business which is  registered
    32  under  article  [twelve-A of this chapter] eleven-C of the general busi-
    33  ness law as a distributor of diesel motor fuel so long as (i) such prod-
    34  uct has not been blended or mixed with any  other  product  constituting
    35  diesel motor fuel or motor fuel or a residual petroleum product and (ii)
    36  such  product is not used by the petroleum business as fuel to operate a
    37  motor vehicle or sold by such petroleum business to a consumer  for  use
    38  as fuel to operate a motor vehicle.
    39    (2) Kero-jet fuel (i) sold by a petroleum business which is registered
    40  under  article  [twelve-A of this chapter] eleven-C of the general busi-

    41  ness law as a distributor of diesel motor fuel to  a  consumer  for  use
    42  exclusively  as  jet aircraft fuel or to a petroleum business registered
    43  under such article [twelve-A] eleven-C of the general business law as  a
    44  "distributor  of  kero-jet  fuel only" where such fixed base operator is
    45  engaged solely in making or offering to make retail sales not in bulk of
    46  kero-jet fuel directly into the fuel tank of an airplane for the purpose
    47  of operating such airplane, (ii) used by a  petroleum  business,  regis-
    48  tered  under  article [twelve-A of this chapter] eleven-C of the general
    49  business law as a distributor of diesel motor fuel, exclusively  as  jet
    50  aircraft  fuel, or (iii) sold at retail not in bulk by a petroleum busi-

    51  ness registered under article [twelve-A of this chapter] eleven-C of the
    52  general business law as a "distributor of kero-jet fuel only" where such
    53  fuel is delivered directly into the fuel tank of a jet airplane for  use
    54  in the operation of such airplane.
    55    (3)  Aviation gasoline, meeting the specifications set forth in Ameri-
    56  can Standard Testing Material Specification D910 or Military  Specifica-

        S. 1719--A                         36
 
     1  tion  MIL-G-5572,  which  is imported or caused to be imported into this
     2  state  by  a  petroleum  business  which  is  registered  under  article
     3  [twelve-A  of  this  chapter]  eleven-C of the general business law as a
     4  distributor   of  motor  fuel  or  produced,  refined,  manufactured  or
     5  compounded in this state by such a petroleum business.

     6    (6) E85 imported or caused to be imported into this state or produced,
     7  refined, manufactured or compounded in this state by a  petroleum  busi-
     8  ness registered under article [twelve-A of this chapter] eleven-C of the
     9  general  business  law, as a distributor of motor fuel, and then sold by
    10  such petroleum business and delivered to a filling station and placed in
    11  a storage tank of such filling station for  such  E85  to  be  dispensed
    12  directly into a motor vehicle for use in the operation of such vehicle.
    13    (7)(i)  Partial  B20  exemption. B20 imported or caused to be imported
    14  into this state or produced, refined, manufactured or compounded in this
    15  state by a petroleum business registered under article [twelve-A of this
    16  chapter] eleven-C of the general  business  law,  as  a  distributor  of

    17  diesel motor fuel, and then sold by such petroleum business.
    18    (ii)  Calculation  of  partial  exemption.  The  amount of the partial
    19  exemption under this paragraph shall be determined  by  multiplying  the
    20  quantity  of  B20 times twenty percent of the applicable taxes otherwise
    21  imposed by this article on such fuel.
    22    § 35. The opening paragraph of paragraph 1 and the  opening  paragraph
    23  of  paragraph  2 of subdivision (b) of section 301-b of the tax law, the
    24  opening paragraph of paragraph 1 as added by chapter 190 of the laws  of
    25  1990  and  the opening paragraph of paragraph 2 as amended by section 21
    26  of part K of chapter 61 of the laws of 2011,  are  amended  to  read  as
    27  follows:
    28    Motor  fuel  imported  or  caused  to  be  imported into this state or
    29  produced, refined, manufactured or compounded in this state by a  petro-

    30  leum  business  registered  under  article  [twelve-A  of  this chapter]
    31  eleven-C of the general business law, as a distributor  of  motor  fuel,
    32  where
    33    Highway  diesel motor fuel imported or caused to be imported into this
    34  state or produced, refined, manufactured or compounded in this state  by
    35  a petroleum business registered under article [twelve-A of this chapter]
    36  eleven-C  of  the general business law, as a distributor of diesel motor
    37  fuel, which is sold by such petroleum business to a purchaser  who  then
    38  exports  such  highway diesel motor fuel from this state for sale or use
    39  outside the state where
    40    § 36. Paragraphs 1, 2 and 3 of subdivision (c) and paragraphs 1 and  2
    41  of  subdivision  (d)  of  section  301-b  of the tax law, paragraph 1 of
    42  subdivision (c) as added by chapter 190 of the laws of 1990,  paragraphs

    43  2  and 3 of subdivision (c) and paragraphs 1 and 2 of subdivision (d) as
    44  amended by section 21 of part K of chapter 61 of the laws of  2011,  are
    45  amended to read as follows:
    46    (1)  Motor  fuel  imported or caused to be imported into this state or
    47  produced, refined, manufactured or compounded in this state by a  petro-
    48  leum  business  registered  under  article  [twelve-A  of  this chapter]
    49  eleven-C of the general business law, as a distributor  of  motor  fuel,
    50  and then sold by such petroleum business to an organization described in
    51  paragraph  one  or  two  of  subdivision  (a)  of section eleven hundred
    52  sixteen of this chapter where such motor fuel is used by such  organiza-
    53  tion for its own use or consumption.
    54    (2)  Highway  diesel motor fuel imported or caused to be imported into
    55  this state or produced, refined, manufactured or compounded by a  petro-

    56  leum  business  registered  under  article  [twelve-A  of  this chapter]

        S. 1719--A                         37
 
     1  eleven-C of the general business law, as a distributor of  diesel  motor
     2  fuel,  and  then  sold  by  such  petroleum  business to an organization
     3  described in paragraph one or two of subdivision (a) of  section  eleven
     4  hundred  sixteen of this chapter where such highway diesel motor fuel is
     5  used by such organization for its own use or consumption.
     6    (3) Non-highway Diesel motor fuel sold by a petroleum business  regis-
     7  tered  under  article [twelve-A of this chapter] eleven-C of the general
     8  business law as a distributor of diesel motor fuel  to  an  organization
     9  described  in  paragraph one or two of subdivision (a) of section eleven

    10  hundred sixteen of this chapter where such non-highway diesel motor fuel
    11  is used by such organization for its own use or consumption.
    12    (1) Total residential heating exemption. Non-highway diesel motor fuel
    13  sold by a petroleum business registered under article [twelve-A of  this
    14  chapter] eleven-C of the general business law as a distributor of diesel
    15  motor  fuel  or  residual petroleum product sold by a petroleum business
    16  registered under this article as a residual petroleum  product  business
    17  to  the  consumer  exclusively  for residential heating purposes only if
    18  such non-highway diesel motor fuel is  delivered  into  a  storage  tank
    19  which  is not equipped with a hose or other apparatus by which such fuel
    20  can be dispensed into the fuel tank of a motor vehicle and such  storage
    21  tank is attached to the heating unit burning such fuel.

    22    (2)  Partial non-residential heating exemption. (A) Non-highway diesel
    23  motor fuel  sold  by  a  petroleum  business  registered  under  article
    24  [twelve-A  of  this  chapter]  eleven-C of the general business law as a
    25  distributor of diesel motor fuel or residual petroleum product sold by a
    26  petroleum business registered under this article as a residual petroleum
    27  product business to the consumer exclusively  for  heating,  other  than
    28  residential  heating purposes only if such non-highway diesel motor fuel
    29  is delivered into a storage tank which is not equipped with  a  hose  or
    30  other  apparatus  by which such fuel can be dispensed into the fuel tank
    31  of a motor vehicle and such storage tank is attached to the heating unit
    32  burning such fuel.
    33    (B) Calculation of partial exemption. The partial exemption under this

    34  paragraph shall be determined by multiplying the quantity of non-highway
    35  diesel motor fuel  and  residual  petroleum  product  eligible  for  the
    36  exemption times the sum of the then current rate of the supplemental tax
    37  imposed  by  section  three  hundred one-j of this article and forty-six
    38  percent of the then current rate of the tax  imposed  by  section  three
    39  hundred  one-a of this article, with respect to the specific non-highway
    40  diesel motor fuel or residual petroleum product rate, as  the  case  may
    41  be.
    42    §  37.  Subdivision (e) of section 301-b of the tax law, as amended by
    43  section 7 of part W of chapter 59 of the laws of  2013,  is  amended  to
    44  read as follows:
    45    (e) Sales of highway diesel motor fuel, qualified biodiesel, non-high-
    46  way  diesel  motor  fuel  and  residual  petroleum product to registered

    47  distributors of diesel motor  fuel  and  registered  residual  petroleum
    48  product businesses.
    49    (1)  The  sale  of  previously  untaxed highway diesel motor fuel by a
    50  person registered under article [twelve-A of this chapter]  eleven-C  of
    51  the  general  business  law  as  a distributor of diesel motor fuel to a
    52  person registered under such article [twelve-A] eleven-C of the  general
    53  business  law  as  a  distributor of diesel motor fuel where the highway
    54  diesel motor fuel is either: (A) being delivered by  pipeline,  railcar,
    55  barge,  tanker  or  other  vessel  to  a terminal, the operator of which
    56  terminal is registered under [section two hundred eighty-three-b of this

        S. 1719--A                         38


     1  chapter] such article eleven-C, or (B) within such a terminal  where  it
     2  has  been  so delivered. Provided, however, that the exemption set forth
     3  in this paragraph shall not apply to any highway diesel motor fuel if it
     4  is  removed  from  a  terminal, other than by pipeline, barge, tanker or
     5  other vessel.
     6    (2) Qualified biodiesel and non-highway diesel motor fuel  sold  by  a
     7  person  registered  under article [twelve-A of this chapter] eleven-C of
     8  the general business law as a distributor of  diesel  motor  fuel  to  a
     9  person  registered under such article [twelve-A] eleven-C as a distribu-
    10  tor of diesel motor fuel where such sale is not a retail sale or a  sale
    11  that  involves  a  delivery  at  a  filling station or into a repository

    12  equipped with a hose or other apparatus by which such qualified biodies-
    13  el or non-highway diesel motor fuel can be dispensed into the fuel  tank
    14  of a motor vehicle.
    15    (3)  Residual petroleum product sold by a person registered under this
    16  article as a residual petroleum product business to a person  registered
    17  under  this  article as a residual petroleum product business where such
    18  sale is not a retail sale. Provided, however, that the commissioner  may
    19  require  such documentary proof to qualify for any exemption provided in
    20  this section as  the  commissioner  deems  appropriate[,  including  the
    21  expansion of any certifications required pursuant to section two hundred
    22  eighty-five-a  or two hundred eighty-five-b of this chapter to cover the
    23  taxes imposed by this article].

    24    (4) "Qualified biodiesel" means [such term as defined  in  subdivision
    25  twenty-three  of  section  two  hundred  eighty-two  of this chapter]  a
    26  diesel  motor  fuel  substitute  produced  from  nonpetroleum  renewable
    27  resources  that  meets  the registration requirements for fuels and fuel
    28  additives established  by  the  Environmental  Protection  Agency  under
    29  section  211  of  the  Clean Air Act (42 U.S.C. 7545) and that meets the
    30  ASTM International active standard D6751 for biodiesel fuel.
    31    § 38. Paragraph 2 of subdivision (b) and paragraph  3  of  subdivision
    32  (d)  of  section 301-e of the tax law, paragraph 2 of subdivision (b) as
    33  added by chapter 2 of the laws of 1995 and paragraph  3  of  subdivision
    34  (d)  as added by chapter 309 of the laws of 1996, are amended to read as

    35  follows:
    36    (2) Partial credit or refund with  respect  to  aviation  gasoline.  A
    37  distributor  of  motor  fuel  shall  be  entitled to a partial credit or
    38  refund of the tax paid under this section on aviation gasoline sold to a
    39  fixed base operator registered under article [twelve-a of this  chapter]
    40  eleven-C  of  the  general  business law as a "retail seller of aviation
    41  gasoline" under the circumstances described in former  subparagraph  (i)
    42  of  paragraph  (b)  of  subdivision one-a of section two hundred eighty-
    43  nine-c of this chapter. Provided, that in order to qualify for the cred-
    44  it or refund the amount of tax claimed as a credit or refund shall  have
    45  been paid or assumed on such sale by such distributor and shall have not
    46  been passed on to such "retail seller of aviation gasoline". A distribu-

    47  tor of motor fuel, also registered as a "retail seller of aviation gaso-
    48  line",  shall  be  entitled  to  a partial credit or refund for aviation
    49  gasoline delivered and stored at its fixed base operations  premises  in
    50  such  subparagraph  (i),  and  such credit or refund shall accrue at the
    51  time the fuel is so delivered and placed in such  storage  facility.  An
    52  airline  which  is  registered  as a distributor of motor fuel and which
    53  imports aviation gasoline into this state  for  use  in  its  airplanes,
    54  where  delivery and storage take place as described in such subparagraph
    55  (i), shall also be allowed such partial credit or refund of tax on  such
    56  fuel so imported and used exclusively in the operation of its airplanes.

        S. 1719--A                         39
 
     1  An  aviation  fuel  business, taxed as such, by reason of importation in

     2  the fuel tank of an airplane shall also be allowed such  partial  credit
     3  or  refund  for  aviation gasoline consumed in this state. The amount of
     4  the  partial credit or refund allowable under this subparagraph shall be
     5  the excess of tax which exceeds five and two-tenths  cents  per  gallon.
     6  Provided,  that such five and two-tenths cents rate used to compute this
     7  partial credit and refund shall be adjusted at the same time as the rate
     8  of the aviation gasoline component imposed  by  paragraph  one  of  this
     9  subdivision,  and the methods of making such adjustments to this partial
    10  credit and refund shall be the same as the method used for such rates.
    11    (3) Any purchaser of aviation gasoline in this state who consumes such
    12  aviation gasoline exclusively as aviation fuel in the operation  of  its
    13  aircraft shall be entitled to a partial reimbursement of the tax imposed

    14  by this section with respect to aviation gasoline which was purchased by
    15  such  purchaser  and upon which such purchaser paid or absorbed the full
    16  amount of the tax imposed by this section (where no  partial  credit  or
    17  refund  under  paragraph  two  of  subdivision  (b)  of this section was
    18  provided with  respect  to  such  aviation  gasoline)  where:  (i)  such
    19  purchaser  purchases  the  aviation  gasoline from a fixed base operator
    20  which qualifies as a retail seller of aviation gasoline but  is  not  so
    21  registered  under  article  [twelve-A  of  this chapter] eleven-C of the
    22  general business law, or (ii)  such  purchaser  purchases  the  aviation
    23  gasoline in bulk from a distributor of motor fuel registered under arti-
    24  cle  [twelve-A  of  this  chapter]  eleven-C of the general business law

    25  where such distributor delivers such aviation gasoline directly  into  a
    26  bulk storage facility of the purchaser which is at a fixed and permanent
    27  place  at  an  airport  within this state and is used solely to fill the
    28  fuel tanks of its aircraft for use in the operations thereof. The amount
    29  of the reimbursement allowable under this paragraph shall  be  equal  to
    30  the amount of the partial credit or refund allowable under paragraph two
    31  of subdivision (b) of this section.
    32    §  39.  Subdivisions (b), (c) and (d) of section 301-c of the tax law,
    33  subdivision (b) as amended and subdivisions (c)  and  (d)  as  added  by
    34  chapter 330 of the laws of 1991, are amended to read as follows:
    35    (b) Sales to New York state and the federal government. Motor fuel and
    36  diesel  motor fuel purchased in this state and sold by such purchaser in

    37  this state to an organization described  in  paragraph  one  or  two  of
    38  subdivision  (a) of section eleven hundred sixteen of this chapter where
    39  (i) such motor fuel or diesel motor fuel is for such organization's  own
    40  use  or  consumption,  (ii) the tax imposed pursuant to this article has
    41  been paid with respect to such motor fuel or diesel motor fuel  and  the
    42  entire amount of such tax has been absorbed by such purchaser and, (iii)
    43  such  purchaser  possesses documentary proof satisfactory to the commis-
    44  sioner of taxation and finance evidencing the absorption by  it  of  the
    45  entire  amount  of  the  tax imposed pursuant to this article. Provided,
    46  however, that the commissioner of taxation  and  finance  shall  require
    47  such  documentary proof to qualify for any reimbursement of tax provided
    48  by this section as the commissioner deems  appropriate[,  including  the

    49  expansion  of any certification required pursuant to section two hundred
    50  eighty-five-a or two hundred eighty-five-b of this chapter to cover  the
    51  taxes imposed pursuant to this article].
    52    (c) Motor fuel and diesel motor fuel used by certain omnibus carriers.
    53  Motor  fuel  and diesel motor fuel purchased in this state by an omnibus
    54  carrier and consumed by such omnibus carrier  in  the  operation  of  an
    55  omnibus  (i) in local transit service in this state[, as described under
    56  paragraph (d) of subdivision three of section two hundred  eighty-nine-c

        S. 1719--A                         40

     1  of  this  chapter],  pursuant to a certificate of public convenience and
     2  necessity issued by the commissioner of transportation of this state  or

     3  by  the  interstate commerce commission of the United States or pursuant
     4  to  a  contract,  franchise  or  consent between such carrier and a city
     5  having a population of more than one million inhabitants, or any  agency
     6  of  such  city,  or (ii) in the transportation of school children in the
     7  state under a contract made pursuant to the provisions of the  education
     8  law.  Provided,  however,  the  reimbursement  under this subdivision is
     9  available only where the tax imposed pursuant to this article  has  been
    10  paid with respect to such motor fuel or diesel motor fuel and the entire
    11  amount of such tax has been absorbed by such omnibus carrier, where such
    12  omnibus  carrier possesses documentary proof satisfactory to the commis-
    13  sioner of taxation and finance evidencing the absorption by  it  of  the
    14  entire  amount  of the tax imposed pursuant to this article[, and where,

    15  in the case of the reimbursement under clause (i) of  this  subdivision,
    16  such  motor  fuel or diesel motor fuel is included in the gallonage upon
    17  which reimbursement is calculated under  paragraph  (d)  of  subdivision
    18  three  of  section two hundred eighty-nine-c of this chapter and, in the
    19  case of the reimbursement under clause (ii) of  this  subdivision,  such
    20  motor  fuel or diesel motor fuel is included in the gallonage upon which
    21  reimbursement is calculated under  paragraph  (b)  of  such  subdivision
    22  three of section two hundred eighty-nine-c].
    23    (d)  Motor fuel and diesel motor fuel used by certain nonpublic school
    24  operators. Motor fuel and diesel motor fuel purchased in this state by a
    25  nonpublic school operator, [as defined in subdivision eleven of  section

    26  two hundred eighty-two of this chapter] meaning any nonpublic elementary
    27  or secondary school which owns or leases and operates any vehicle solely
    28  and  exclusively for its purposes, and consumed by such nonpublic school
    29  operator exclusively in educational related activities. Provided, howev-
    30  er, the reimbursement under this subdivision is available only where the
    31  tax imposed pursuant to this article has been paid with respect to  such
    32  motor  fuel  or  diesel motor fuel and the entire amount of such tax has
    33  been absorbed by such nonpublic school operator,  where  such  nonpublic
    34  school  operator possesses documentary proof satisfactory to the commis-
    35  sioner of taxation and finance evidencing the absorption by  it  of  the
    36  entire  amount  of  the tax imposed pursuant to this article[, and where

    37  such motor fuel or diesel motor fuel is included in the  gallonage  upon
    38  which the reimbursement is calculated under paragraph (e) of subdivision
    39  three of section two hundred eighty-nine-c of this chapter].
    40    §  40. Section 302 of the tax law, as added by chapter 190 of the laws
    41  of 1990, subdivision (b) as amended by section 31 of part K  of  chapter
    42  61  of  the  laws of 2011, subdivision (c) as further amended by section
    43  104 of part A of chapter 62 of the laws  of  2011,  subdivision  (d)  as
    44  amended  and subdivision (e) as added by chapter 57 of the laws of 1993,
    45  is amended to read as follows:
    46    §  302.  Registration  of  petroleum  businesses.   (a)   Registration
    47  required.    Each  petroleum business with respect to motor fuel must be
    48  registered with the department of taxation and finance as a  distributor

    49  of  motor  fuel under article [twelve-A of this chapter] eleven-C of the
    50  general business law.  Each petroleum business with  respect  to  diesel
    51  motor  fuel  must  be  registered  with  the  department of taxation and
    52  finance as a distributor of diesel motor fuel under article [twelve-A of
    53  this chapter] eleven-C of the general business law or, where applicable,
    54  as a "distributor of kero-jet fuel only" under such article. Each petro-
    55  leum business with respect to residual petroleum product must be  regis-
    56  tered  as a residual petroleum product business under subdivision (b) of

        S. 1719--A                         41
 
     1  this section. No petroleum business unless so registered, shall make any
     2  sale, transfer, use or other disposition of  motor  fuel,  diesel  motor

     3  fuel  or  residual  petroleum  product  within the state, except a sale,
     4  transfer, use or other disposition, if any, as to which the state cannot
     5  impose such condition by reason of the United States constitution and of
     6  laws  of  the  United States enacted pursuant thereto. No person, unless
     7  registered as a residual petroleum product business under this  section,
     8  shall (i) import or cause residual petroleum product to be imported into
     9  this  state,  (ii)  produce,  refine,  manufacture  or compound residual
    10  petroleum product within the state, or (iii) make a sale or use of resi-
    11  dual petroleum product in the state other than a  self-use  of  residual
    12  petroleum  product  which  has been the subject of a retail sale to such
    13  person.
    14    (b) Residual petroleum product  business.  The  department,  upon  the
    15  application  of a corporation or unincorporated business, shall register

    16  such corporation or unincorporated  business  as  a  residual  petroleum
    17  product  business except that the commissioner may refuse to register an
    18  applicant for any of the grounds specified in subdivision two or five of
    19  section [two hundred eighty-three of this chapter] one  hundred  ninety-
    20  nine-p  of  the  general  business  law  or  in  subdivision (d) of this
    21  section. The application shall be in such form and contain such informa-
    22  tion as the commissioner shall  prescribe.  All  of  the  provisions  of
    23  subdivisions two, four, five, six, seven, eight, nine and ten of section
    24  [two  hundred eighty-three of this chapter] one hundred ninety-nine-p of
    25  the general business law relating to registration of distributors  shall
    26  be  applicable  to  the registration of residual petroleum product busi-

    27  nesses under this section with the same  force  and  effect  as  if  the
    28  language  of  those  subdivisions  had been incorporated in full in this
    29  section and had expressly  referred  to  the  registration  of  residual
    30  petroleum  product  businesses and the tax imposed by this article, with
    31  such modification as may be necessary in order to adapt the language  of
    32  such  provisions  to  the  provisions of this article, provided, specif-
    33  ically, that the term "distributor" shall be read as "residual petroleum
    34  product business" and the term "motor fuel" shall be read  as  "residual
    35  petroleum  product".  Provided,  however,  that  if  the commissioner is
    36  satisfied that the requirements of such provisions for registration  are
    37  not  necessary  in  order  to protect tax revenues, the commissioner may
    38  limit or modify such requirements with respect to corporations or  unin-

    39  corporated  businesses  not required to be registered as distributors of
    40  motor fuel or diesel motor fuel.
    41    (c) Bond or other security. The commissioner may require  a  petroleum
    42  business  to  file with it a bond issued by a surety company approved by
    43  the superintendent of financial services as to solvency and responsibil-
    44  ity and authorized to transact business in this state or other  security
    45  acceptable  to  the commissioner, in such amount as the commissioner may
    46  fix in an amount determined in accordance  with  rules  and  regulations
    47  prescribed  by  the  commissioner, to secure the payment of any sums due
    48  from such petroleum business pursuant to this article. The  commissioner
    49  may  require that such a bond or other security be filed before a petro-
    50  leum business is registered, and the amount thereof may be increased  at

    51  any  time when in the commissioner's judgment the same is necessary as a
    52  protection to the revenues under this article. If securities are  depos-
    53  ited  as  security under this subdivision, such securities shall be kept
    54  in the joint custody of the comptroller and the commissioner  [of  taxa-
    55  tion and finance]. Such securities may be sold by the commissioner if it
    56  becomes  necessary  so  to do in order to recover any sums due from such

        S. 1719--A                         42
 
     1  petroleum business pursuant to this article, but no such sale  shall  be
     2  had  until  after  such petroleum business shall have had opportunity to
     3  litigate the validity of any tax if it elects so to do.  Upon  any  such
     4  sale the surplus, if any, above the sums due under this article shall be

     5  returned  to such petroleum business. All of the provisions of paragraph
     6  (b) of subdivision six of section  [two  hundred  eighty-three  of  this
     7  chapter]  one hundred ninety-nine-p of the general business law relating
     8  to increasing the amount of the bond or other security  required  to  be
     9  filed  pursuant  to  article  [twelve-A of this chapter] eleven-C of the
    10  general business law shall be applicable  to  bonds  or  other  security
    11  required to be filed pursuant to this subdivision.
    12    (d)  Refusal  to register. [For the purposes of determining whether to
    13  refuse an application for registration under article  twelve-A  of  this
    14  chapter  as  a  distributor of motor fuel, diesel motor fuel or kero-jet

    15  fuel only or under this section as a residual  petroleum  product  busi-
    16  ness,  the  references in subdivision two of section two hundred eighty-
    17  three of this chapter to employees or shareholders under a duty to  file
    18  a  return under or pursuant to the authority of article twelve-A of this
    19  chapter or pay the taxes imposed by or pursuant to the authority of such
    20  article on behalf of the applicant or another person shall be deemed  to
    21  also  include  an  employee  under  a duty to file a return or pay taxes
    22  under or pursuant to the authority of this article  on  behalf  of  such
    23  applicant  or  other  person.]  In  addition to the grounds specified in
    24  section [two hundred eighty-three of this chapter] one  hundred  ninety-

    25  nine-p  of  the  general  business  law,  the commissioner may refuse to
    26  register an applicant as a distributor of motor fuel, diesel motor  fuel
    27  or  kero-jet fuel only or as a residual petroleum product business where
    28  the commissioner ascertains that the applicant, an officer, director  or
    29  partner  of  the  applicant, a shareholder directly or indirectly owning
    30  more than ten percent of the number of shares of stock of such applicant
    31  (where such applicant is a corporation) entitling the holder thereof  to
    32  vote for the election of directors or trustees, or an employee or share-
    33  holder of such applicant under a duty to file a return under or pursuant
    34  to  the  authority of this article [or article twelve-A of this chapter]
    35  or to pay the taxes imposed by or pursuant  to  the  authority  of  this

    36  article  [or  article  twelve-A of this chapter] on behalf of the appli-
    37  cant, (1) has committed any of the acts or omissions which are,  or  was
    38  convicted  as,  specified  in subdivision (e) of this section within the
    39  preceding five years, or (2) was an  officer,  director  or  partner  of
    40  another  person,  or  who  directly  or  indirectly  owned more than ten
    41  percent of the shares of stock  of  another  person  (where  such  other
    42  person  is  a  corporation) entitling the holder thereof to vote for the
    43  election of directors or trustees, or who was an employee or shareholder
    44  of another person under a duty to file a return under or pursuant to the
    45  authority of this article [or article twelve-A of this chapter]  or  pay
    46  the  taxes  imposed  by or pursuant to the authority of this article [or

    47  article twelve-A of this chapter] on behalf of such other person at  the
    48  time such other person committed any of the acts or omissions which are,
    49  or was convicted as, specified in subdivision (e) of this section within
    50  the preceding five years.
    51    (e)  Cancellation  or  suspension  of  registration. The grounds for a
    52  cancellation or suspension of a registration under article [twelve-A  of
    53  this  chapter]  eleven-C of the general business law as a distributor of
    54  motor fuel, diesel motor fuel  or  kero-jet  fuel  only  or  under  this
    55  section as a residual petroleum product business are those grounds spec-
    56  ified  in section [two hundred eighty-three of this chapter] one hundred

        S. 1719--A                         43
 

     1  ninety-nine-p of the general business  law  and,  in  addition  to  such
     2  grounds, the following grounds relating to this article shall apply:
     3    (1)  A  registration as a distributor of motor fuel, diesel motor fuel
     4  or kero-jet fuel only or as a residual petroleum product business may be
     5  cancelled or suspended if the commissioner determines that a  registrant
     6  or  an  officer,  director  or  partner of the registrant, a shareholder
     7  directly or indirectly owning more than ten percent  of  the  number  of
     8  shares  of  stock  of such registrant (where such registrant is a corpo-
     9  ration) entitling the holder thereof to vote for the election of  direc-
    10  tors or trustees, or an employee or shareholder of such registrant under
    11  a duty to file a return under or pursuant to the authority of this arti-
    12  cle [or article twelve-A of this chapter] or to pay the taxes imposed by

    13  or  pursuant  to  the  authority of this article [or article twelve-A of
    14  this chapter] on behalf of the registrant (A) fails to file or  maintain
    15  in full force and effect a bond or other security when required pursuant
    16  to  subdivision  (c)  of  this  section  or  when  the amount thereof is
    17  increased,
    18    (B) fails to comply with any of the provisions of this article or  any
    19  rule or regulation adopted pursuant to this article by the commissioner,
    20    (C)  knowingly  aids  and abets another person in violating any of the
    21  provisions of this article or any rule or regulation adopted pursuant to
    22  this article by the commissioner,
    23    (D) transfers its registration as a  petroleum  business  without  the
    24  prior written approval of the commissioner,
    25    (E)  with  respect to a petroleum business which is a corporation, has

    26  been dissolved pursuant to section two hundred three-a of  this  chapter
    27  and subdivision (d) of section three hundred ten of this article,
    28    (F)  commits  fraud  or deceit in his or its operations as a petroleum
    29  business or has committed fraud or deceit in procuring his or its regis-
    30  tration,
    31    (G) has impersonated any person represented to be a petroleum business
    32  under this article but not in fact registered as a distributor of  motor
    33  fuel,  diesel  motor  fuel or kero-jet fuel only or a residual petroleum
    34  product business, or
    35    (H) has knowingly aided and abetted the distribution  of  motor  fuel,
    36  diesel  motor fuel or residual petroleum product by corporation or unin-
    37  corporated business which such registrant or such other person knows (i)
    38  has not been registered by the commissioner as a  distributor  of  motor

    39  fuel, diesel motor fuel or kero-jet fuel only or as a residual petroleum
    40  product  business and (ii) is a petroleum business pursuant to the terms
    41  of subdivision (b) of section three hundred of this article.
    42    (2) A registration as a distributor of motor fuel, diesel  motor  fuel
    43  or kero-jet fuel only or as a residual petroleum product business may be
    44  cancelled  or suspended if the commissioner determines that a registrant
    45  or an officer, director or partner  of  the  registrant,  a  shareholder
    46  directly  or  indirectly  owning  more than ten percent of the number of
    47  shares of stock of such registrant (where such registrant  is  a  corpo-
    48  ration)  entitling the holder thereof to vote for the election of direc-
    49  tors or trustees, or an employee or shareholder of such registrant under
    50  a duty to file a return under or pursuant to the authority of this arti-

    51  cle [or article twelve-A of this chapter] on behalf of  the  registrant,
    52  was  an  officer,  director or partner of another person or was a share-
    53  holder directly or indirectly owning more than ten percent of the number
    54  of shares of stock of another person  (where  such  other  person  is  a
    55  corporation)  entitling  the  holder thereof to vote for the election of
    56  directors or trustees, or was an  employee  or  shareholder  of  another

        S. 1719--A                         44
 
     1  person  under a duty to file a return under or pursuant to the authority
     2  of this article [or article twelve-A of this  chapter]  or  to  pay  the
     3  taxes  imposed by or pursuant to the authority of this article [or arti-
     4  cle twelve-A of this chapter] on behalf of such other person at the time

     5  such  other  person committed any of the acts specified in paragraph one
     6  of this subdivision within the preceding five years.
     7    (f) Cancellation or suspension of registration prior to a hearing. The
     8  grounds for  cancelling  or  suspending  a  registration  under  article
     9  [twelve-A  of  this  chapter]  eleven-C of the general business law as a
    10  distributor of motor fuel, diesel motor fuel or kero-jet  fuel  only  or
    11  under  this  section as a residual petroleum product business prior to a
    12  hearing are those specified in subdivision five of section [two  hundred
    13  eighty-three  of  this chapter] one hundred ninety-nine-p of the general
    14  business law and, in addition to such  grounds,  the  following  grounds
    15  relating to this article shall apply:

    16    (1)  the  failure  to  file  a  return  within  ten  days  of the date
    17  prescribed for filing a return under this article or nonpayment  of  any
    18  tax  due pursuant to this article if the registrant shall have failed to
    19  file such return or pay such taxes within ten days after  the  date  the
    20  demand  therefor  is sent by registered or certified mail to the address
    21  of the distributor or residual petroleum business given in its  applica-
    22  tion, or an address substituted therefor as provided in subdivision five
    23  of  section [two hundred eighty-three of this chapter] one hundred nine-
    24  ty-nine-p of the general business law,
    25    (2) the failure to continue to maintain in full force  and  effect  at
    26  all  times  the  bond or other security required to be filed pursuant to
    27  subdivision (c) of this section, provided, however,  that  if  a  surety

    28  bond  is  cancelled  prior  to  expiration,  the  commissioner may after
    29  considering all the relevant circumstances make such other arrangements,
    30  and may require the filing of such other bond or other  security  as  it
    31  deems appropriate,
    32    (3)  the  transfer  of a registration as a residual petroleum business
    33  without the prior written approval of the commissioner, or
    34    (4) with respect to a petroleum business which is a  corporation,  the
    35  dissolution  or  annulment of such corporation pursuant to section three
    36  hundred ten of this article.
    37    § 41. Subdivisions (a) and (i) of section 308 of the tax law, subdivi-
    38  sion (a) as amended by chapter 2 of the laws of 1995 and subdivision (i)
    39  as amended by chapter 190 of the laws of 1990, are amended  to  read  as
    40  follows:
    41    (a) General.--Every petroleum business subject to tax under this arti-

    42  cle shall monthly, on or before the twentieth day following the close of
    43  its  taxable  month,  file  a return which shall state (i) the number of
    44  gallons of motor fuel imported or caused to be imported into this  state
    45  for  use,  distribution,  storage  or  sale  in  the  state or produced,
    46  refined, manufactured or compounded in the state  during  the  preceding
    47  calendar  month, (ii) the number of gallons of diesel motor fuel sold or
    48  used or, with respect to gallonage which  prior  thereto  has  not  been
    49  included in the measure of the tax imposed by this article, delivered by
    50  the  petroleum  business  to  a  filling  station  or into the fuel tank
    51  connecting with the engine of a motor vehicle for use in  the  operation
    52  thereof during the preceding calendar month, (iii) the number of gallons
    53  of,  and  the resultant product produced, manufactured or blended, using

    54  diesel motor fuel as a component of such resultant product and the sales
    55  of such resultant product, and (iv) the number of  gallons  of  residual
    56  petroleum product sold or used in this state and the sales of such resi-

        S. 1719--A                         45
 
     1  dual  petroleum  product, for the period covered by such return. A resi-
     2  dual petroleum business shall include  in  its  reports  the  number  of
     3  gallons  of  residual  petroleum  product  imported  into  the  state or
     4  purchased  in  this  state,  the  number of gallons of diesel motor fuel
     5  purchased in this state and the number of gallons of, and the  resultant
     6  product  produced,  manufactured  or blended by such petroleum business,
     7  using diesel motor fuel as a component of such  resultant  product.  The
     8  commissioner [of taxation and finance] may permit the filing of a return

     9  on  a  quarterly  basis  in  the case of a petroleum business which only
    10  makes sales of diesel motor fuel solely for residential heating purposes
    11  and which  is  registered  under  article  [twelve-A  of  this  chapter]
    12  eleven-C  of the general business law as a diesel motor fuel distributor
    13  under a limited registration applicable only to  the  importation,  sale
    14  and  distribution  of  diesel  motor fuel for [the purposes described in
    15  subparagraph (i) of paragraph (b) of subdivision three  of  section  two
    16  hundred  eighty-two-a  of  this  chapter]  consumption other than on the
    17  public highways of this state (except for the use of the public  highway
    18  by  farmers  to  reach adjacent farmlands) or in the case of a petroleum

    19  business registered as a "distributor of kero-jet fuel  only"  [pursuant
    20  to the provisions of subdivision two of section two hundred eighty-two-a
    21  of this chapter]. In the case of such returns permitted to be filed on a
    22  quarterly  basis, the adjustments to the rates of tax then in effect, as
    23  provided for in sections three hundred one-a and three hundred one-e  of
    24  this article, which take effect on the first day of January of each year
    25  shall,  with  respect to such quarterly return, take effect on the first
    26  day of the next succeeding  March.  Returns  shall  be  filed  with  the
    27  commissioner  in  a  form  prescribed by the commissioner, setting forth
    28  such other information as the commissioner may prescribe.  Every  petro-
    29  leum  business shall also transmit such other returns and such facts and

    30  information as the commissioner may require  in  the  administration  of
    31  this article. Every petroleum business which is a corporation subject to
    32  tax  under this article and which ceases to exercise its franchise or to
    33  be subject to the tax imposed by this  article  shall  transmit  to  the
    34  commissioner  a  return  on the date of such cessation, or at such other
    35  time as the commissioner may require, covering each month or period  for
    36  which  no  return  was  theretofore  filed. The commissioner may, if the
    37  commissioner deems it necessary in order to insure the  payment  of  the
    38  tax  imposed  by  this article, require returns to be made at such times
    39  and covering such  periods  as  the  commissioner  may  deem  necessary.
    40  Notwithstanding  the  foregoing  provisions  of  this  subdivision,  the
    41  commissioner may require  any  corporation  or  unincorporated  business

    42  which  engages  in transactions involving petroleum or similar products,
    43  including aviation fuels, to file a monthly return, which shall  contain
    44  any  data  specified  by  him, regardless of whether such corporation or
    45  unincorporated business is subject to tax under this article.
    46    (i) Returns and records.--Returns shall be preserved for  five  years,
    47  and  thereafter  until the commissioner [of taxation and finance] orders
    48  them to be destroyed. Every petroleum business subject to tax under this
    49  article shall keep the records and documents referred to in  subdivision
    50  one  of  section  [two  hundred  eighty-six of this chapter] one hundred
    51  ninety-nine-u of the general business law and such other records of  its
    52  business  in  such  form  as the commissioner may require; moreover, the

    53  records required of transporters  and  storers  under  such  subdivision
    54  shall  apply  with the same force and effect to transporters and storers
    55  of any product included in the measure of the tax imposed by this  arti-
    56  cle.  All  such  records shall be preserved for a period of three years,

        S. 1719--A                         46
 
     1  except that the commissioner may consent  to  their  destruction  within
     2  that period or may require that they be kept longer.
     3    § 42. Subdivisions (a) and (f) of section 314 of the tax law, subdivi-
     4  sion  (a)  as amended by chapter 190 of the laws of 1990 and subdivision
     5  (f) as added by chapter 577 of the laws of 1997, are amended to read  as
     6  follows:
     7    (a)  General.--Except  in  accordance with proper judicial order or as
     8  otherwise provided by law, it shall be unlawful for any tax  commission-

     9  er, any officer or employee of the department [of taxation and finance],
    10  or any person who, pursuant to this section, is permitted to inspect any
    11  return, or to whom any information contained in any return is furnished,
    12  or  any  person engaged or retained by such department on an independent
    13  contract basis, or any person who in any manner may acquire knowledge of
    14  the contents of a return filed pursuant to this article, to  divulge  or
    15  make  known  in any manner the amount of income or gross receipts or any
    16  particulars set forth or disclosed in any return under this article. The
    17  officers charged with the custody of such returns shall not be  required
    18  to  produce any of them or evidence of anything contained in them in any
    19  action or proceeding in any court, except on behalf of the state or  the
    20  commissioner  [of taxation and finance] in an action or proceeding under

    21  the provisions of this chapter or in  any  other  action  or  proceeding
    22  involving  the  collection  of a tax due under this chapter to which the
    23  state or the commissioner is a party or a claimant, or on behalf of  any
    24  party  to  any action or proceeding under the provisions of this article
    25  when the returns or facts shown thereby are directly  involved  in  such
    26  action  or  proceeding, in any of which events the court may require the
    27  production of, and may admit in evidence, so much of said returns or  of
    28  the facts shown thereby as are pertinent to the action or proceeding and
    29  no more. The commissioner may, nevertheless, publish a copy or a summary
    30  of  any  determination  or  decision  rendered  after the formal hearing
    31  provided for in this chapter.  Nothing  herein  shall  be  construed  to
    32  prohibit  the  delivery  to  a petroleum business or its duly authorized

    33  representative of a copy of any return filed by it, nor to prohibit  the
    34  publication of statistics so classified as to prevent the identification
    35  of  particular  returns  and  the  items  thereof, or the publication of
    36  delinquent lists showing the names  of  petroleum  businesses  who  have
    37  failed  to  pay  their  taxes  at the time and in the manner provided by
    38  section three hundred eight of this article together with  any  relevant
    39  information  which  in the opinion of the commissioner may assist in the
    40  collection of such delinquent taxes; or the inspection by  the  attorney
    41  general or other legal representatives of the state of the return of any
    42  petroleum  business  which shall bring action to set aside or review the
    43  tax based thereon, or against whom an action or  proceeding  under  this
    44  chapter has been recommended by the commissioner or the attorney general

    45  or has been instituted; or the inspection of the returns of any petrole-
    46  um business by the comptroller or duly designated officer or employee of
    47  the  state department of audit and control, for purposes of the audit of
    48  a refund of any tax paid by such petroleum business under this  article.
    49  Provided,  further,  nothing  herein  shall be construed to prohibit the
    50  disclosure of taxpayer identity  information,  including  name,  mailing
    51  address and taxpayer identifying number (social security account number,
    52  or such other number as has been assigned by the secretary of the United
    53  States treasury or his delegate, or by the commissioner [of taxation and
    54  finance]), with respect to persons who are registered as residual petro-
    55  leum  product  or  aviation  fuel  businesses  under  this article or as
    56  distributors of motor fuel or diesel motor fuel or  kero-jet  fuel  only

        S. 1719--A                         47
 
     1  for  the  purpose  of article [twelve-A of this chapter] eleven-C of the
     2  general business law or this article, whose registration as  a  residual
     3  petroleum  product business or as such distributor has been cancelled or
     4  suspended  pursuant  to this article or such article [twelve-A] eleven-C
     5  of the general business law or whose application for registration  as  a
     6  residual  petroleum  product  business  or  as such distributor has been
     7  refused pursuant to this article or such article [twelve-A] eleven-C  of
     8  the general business law. In addition, the commissioner may disclose the
     9  fact  that  a  person is not registered as a residual petroleum business

    10  under this article or as a distributor of motor fuel, diesel motor  fuel
    11  or  kero-jet fuel only under article [twelve-A of this chapter] eleven-C
    12  of the general business law.  Information  disclosed  pursuant  to  this
    13  subdivision shall not, by itself, be construed as proof of compliance or
    14  noncompliance with the provisions of this chapter.
    15    [(f)  Disclosure  of certain information where more than one person is
    16  subject to penalty.  If the commissioner determines  that  a  person  is
    17  liable for a penalty under subdivision two of section two hundred eight-
    18  y-nine-b  of  this  chapter (as applicable to this article under section
    19  three hundred fifteen of this article) with respect to any failure, upon
    20  request in writing of such person, the commissioner  shall  disclose  in

    21  writing to such person (1) the name of any other person whom the commis-
    22  sioner has determined to be liable for such penalty with respect to such
    23  failure,  and (2) whether the commissioner has attempted to collect such
    24  penalty from such other person, the general nature  of  such  collection
    25  activities, and the amount collected.]
    26    §  43.  Section  315  of the tax law, as amended by chapter 190 of the
    27  laws of 1990 and subdivision (b) as amended by section 33 of part  K  of
    28  chapter 61 of the laws of 2011, is amended to read as follows:
    29    §  315. Practice and procedure.--(a) The provisions of subsections (g)
    30  and (j) of section one thousand ninety-two[,] and section  one  thousand
    31  ninety-three  [and  article  twelve-A] of this chapter[, including those

    32  provisions of such article twelve-A relating to penalty  and  interest,]
    33  shall  apply  to the administration of and procedure with respect to the
    34  tax imposed under this article in the same  manner  and  with  the  same
    35  force  and  effect as if the language of such subsections (g) and (j)[,]
    36  and section one thousand ninety-three [and article  twelve-A]  had  been
    37  incorporated in full into this article and had expressly referred to the
    38  tax  under this article, except to the extent that any such provision is
    39  either inconsistent with a provision of this article or is not  relevant
    40  to  this  article  [or  that the provisions of such article twelve-A are
    41  inconsistent with the provisions of such subsections (g) and (j) or with
    42  such section one thousand ninety-three].

    43    (b) Joint administration of taxes. In addition to the  powers  granted
    44  to  the commissioner in this chapter, the commissioner is hereby author-
    45  ized to make provisions for the joint administration,  in  whole  or  in
    46  part,  of  the  taxes imposed by [articles twelve-A and] article twenty-
    47  eight and pursuant to the authority of article twenty-nine of this chap-
    48  ter upon motor fuel and diesel motor fuel and the taxes imposed by  this
    49  article, including the joint reporting, assessment, collection, determi-
    50  nation  and refund of such taxes, and for that purpose to prescribe that
    51  any of  the  commissioner's  functions  under  such  articles,  and  any
    52  returns,  forms, statements, documents or information to be submitted to
    53  the commissioner under such articles, any books and records to  be  kept
    54  for  purposes  of  the taxes imposed or authorized to be imposed by such

    55  articles, any schedules of amounts to be collected under such  articles,
    56  any  registration required under such articles, and the payment of taxes

        S. 1719--A                         48
 
     1  under such articles, shall be on a joint basis with respect to the taxes
     2  imposed by or pursuant to such articles. [Provided, notwithstanding  any
     3  provision  of  this article to the contrary, in the furtherance of joint
     4  administration, the provisions of subdivision one of section two hundred
     5  eighty-five-a  and  subdivision one of section two hundred eighty-nine-c
     6  of this chapter shall apply to the taxes imposed under this article with
     7  the same force and effect as if those provisions  specifically  referred
     8  to  the  taxes  imposed  hereunder  and all the products with respect to

     9  which the taxes are imposed under this  article.  Provided,  further,  a
    10  reimbursement  (or  credit) of taxes imposed under this article shall be
    11  available to subsequent purchasers of motor fuel, diesel motor  fuel  or
    12  residual petroleum product under the circumstances specified in subdivi-
    13  sion  eight  of  section  two hundred eighty-nine-c of this chapter with
    14  respect to the export of such products.] In addition, all the provisions
    15  of subdivision one of section [two hundred eighty-six of  this  chapter]
    16  one  hundred ninety-nine-u of the general business law shall be applica-
    17  ble to all of the products included in the measure of the tax imposed by
    18  this article and the powers of the commissioner in administering the tax

    19  imposed by this article shall include these set forth in  such  subdivi-
    20  sion.  Moreover, the commissioner, in order to preserve the revenue from
    21  the tax imposed by this article, shall, by regulation, require that  the
    22  movement of residual petroleum product into or in this state be accompa-
    23  nied  by  a  tracking document.   Also, the commissioner may require (i)
    24  that any [returns,] forms, statements or other document with respect  to
    25  motor  fuel  or  diesel  motor fuel required of transporters or terminal
    26  operators under [such] article [twelve-A of this  chapter]  eleven-C  of
    27  the general business law apply with the same force and effect to persons
    28  transporting  or  storing residual petroleum product, and (ii) a certif-
    29  ication that particular gallonage of motor fuel, diesel  motor  fuel  or

    30  residual  petroleum  product has been included in the measure of the tax
    31  imposed by this article and such tax has been paid[, and (iii) that  the
    32  certification  required pursuant to section two hundred eighty-five-a or
    33  two hundred eighty-five-b of this chapter be expanded to include the tax
    34  imposed by this article].
    35    § 44. Section 423 of the tax law, as amended by  chapter  508  of  the
    36  laws of 1993, is amended to read as follows:
    37    §  423. Cancellation of registration of distributors. The registration
    38  of any distributor may be cancelled by the commissioner upon its failure
    39  to file a bond or other security when required, and the registration  of
    40  a  distributor  may be cancelled by the commissioner upon its failure to
    41  comply with any of the provisions of  this  article  or  any  reasonable

    42  requirement,  rule or regulation adopted pursuant to this article by the
    43  department [of taxation and finance] or by  the  commissioner.  All  the
    44  provisions  of  subdivisions  four  through six and eight through ten of
    45  section [two hundred eighty-three of this chapter] one  hundred  ninety-
    46  nine-p of the general business law relating to registration of distribu-
    47  tors  of motor fuel shall be applicable to the registration of distribu-
    48  tors under this article with  the  same  force  and  effect  as  if  the
    49  language  of  those  subdivisions  had been incorporated in full in this
    50  section and had expressly referred to the registration  of  distributors
    51  under  this  article  and  the  tax  imposed  by this article, with such
    52  modification as may be necessary in order to adapt the language of  such

    53  provisions  to  the  provisions of this article, provided, specifically,
    54  that the term "motor fuel"  shall  be  read  as  "alcoholic  beverages".
    55  Provided,  however,  a registration shall be cancelled immediately, upon
    56  cancellation or revocation for cause of a license  under  the  alcoholic

        S. 1719--A                         49
 
     1  beverage control law. A distributor shall immediately inform the depart-
     2  ment  in  writing  of any change in its name or address, and a corporate
     3  distributor shall immediately inform the department, in writing, of  any
     4  change  in its name, or in its officers or directors, or their residence
     5  addresses.
     6    § 45. Subdivision 2 of section 428 of the tax law, as added by chapter
     7  508 of the laws of 1993, is amended to read as follows:
     8    2. The operator of a motor vehicle, as such term is defined in  subdi-

     9  vision  three  of  section  [two hundred eighty-two of this chapter] one
    10  hundred ninety-nine-o of the general business law, or any other means of
    11  transport of liquors in which more than  ninety  liters  of  liquors  is
    12  being  transported  in  this  state must have in his or her possession a
    13  manifest, invoice or other document which shows the name and address  of
    14  the  person  from whom such liquors were received and the date and place
    15  of receipt of such liquor and the name and address of  every  person  to
    16  whom  such  operator  is  to  make delivery of the same and the place of
    17  delivery, together with the number of liters to  be  delivered  to  each
    18  person,  and,  if  such  liquor is being imported into the state in such
    19  motor vehicle or such other means of transport, the name of the distrib-

    20  utor importing or causing such liquors to be imported into the state and
    21  such other information as the commissioner may require pursuant to  rule
    22  or  regulation. Every operator of such motor vehicle or such other means
    23  of transport shall at the request of a peace officer, acting pursuant to
    24  his special duties, a police officer, any representative of the  depart-
    25  ment  or  any other person authorized by law to inquire into or investi-
    26  gate the transportation of such liquors, produce such manifest,  invoice
    27  or  other  document  for inspection. The person causing the operation of
    28  such motor vehicle or such other means of transport shall be responsible
    29  to cause the operator to keep in  such  operator's  possession  in  such
    30  motor  vehicle or such other means of transport the manifest, invoice or
    31  other document required by this section. The absence  of  the  manifest,

    32  invoice  or other document required by this section shall give rise to a
    33  presumption that the liquors being transported  are  being  imported  or
    34  caused  to  be imported into this state for sale or use therein by other
    35  than a registered distributor.  Moreover, the absence of (1)  the  place
    36  of  delivery  of liquors on the manifest, invoice or other document with
    37  respect to liquors being imported into the state shall give  rise  to  a
    38  presumption that such liquors are being imported into the state for sale
    39  or  use in the state and (2) the name of a registered distributor on the
    40  manifest, invoice or  other  document  with  respect  to  liquors  being
    41  imported  into  the  state  shall  give  rise to a presumption that such
    42  liquors are being so imported or caused to be imported into this  state,
    43  for  sale  or  use therein, by other than a registered distributor. Such

    44  presumptions may be rebutted by the introduction of substantial evidence
    45  to the contrary.
    46    § 46. Section 482 of the tax law, as amended by section 2 of part T of
    47  chapter 61 of the laws of 2011, is amended to read as follows:
    48    § 482. Deposit and disposition of revenue. (a) All taxes, fees, inter-
    49  est and penalties collected or received by the commissioner  under  this
    50  article  [and  article  twenty-A of this chapter] shall be deposited and
    51  disposed of pursuant to the provisions of section one  hundred  seventy-
    52  one-a  of  this  chapter.  (b)  From  the  taxes, interest and penalties
    53  collected or received by the commissioner under  sections  four  hundred
    54  seventy-one and four hundred seventy-one-a of this article, effective on
    55  and   after   March  first,  two  thousand,  forty-nine  and  fifty-five

    56  hundredths, and effective on and after February first, two thousand two,

        S. 1719--A                         50
 
     1  forty-three and seventy hundredths;  and  effective  on  and  after  May
     2  first,  two  thousand  two,  sixty-four  and  fifty-five hundredths; and
     3  effective on and after April first, two thousand  three,  sixty-one  and
     4  twenty-two  hundredths  percent;  and effective on and after June third,
     5  two thousand eight, seventy  and  sixty-three  hundredths  percent;  and
     6  effective on and after July first, two thousand ten, seventy-six percent
     7  collected  or  received  under  those  sections must be deposited to the
     8  credit of the tobacco control  and  insurance  initiatives  pool  to  be
     9  established  and distributed by the commissioner of health in accordance
    10  with section twenty-eight hundred seven-v of the public health law.

    11    § 47. Subdivisions 9 and 10 of section 501 of the tax law, subdivision
    12  9 as amended by chapter 469 of the laws of 1982 and  subdivision  10  as
    13  amended  by  section 34 of part K of chapter 61 of the laws of 2011, are
    14  amended to read as follows:
    15    9. "Automotive fuel carriers manifest" shall mean a detailed record of
    16  all automotive fuel transported by  an  automotive  fuel  carrier.  Such
    17  manifest shall contain such information as prescribed by the tax commis-
    18  sion  pursuant to rules and regulations, and shall include the location,
    19  name, and any license, registration or permit identification numbers  of
    20  any  distributor,  filling  station or person from which such automotive
    21  fuel is transported and to which such automotive fuel is delivered. Such
    22  manifest shall include for each such  location  the  total  quantity  of

    23  automotive fuel transported therefrom or delivered thereto and any taxes
    24  paid  or  collected  thereon  pursuant to or authorized pursuant to this
    25  chapter. The term "distributor" shall have the same meaning  as  it  has
    26  for purposes of article [twelve-A of this chapter, excluding persons who
    27  are not required pursuant to section two hundred eighty-two-a to pay the
    28  tax  imposed  thereby]  eleven-C  of  the general business law. The term
    29  "filling station" shall mean any place, location or station where  auto-
    30  motive  fuel  is  offered  for  sale  to a purchaser of such fuel, to be
    31  delivered directly to a vehicle propelled by any power other than muscu-
    32  lar.
    33    10. "Automotive fuel" shall mean, solely for purposes of this article,
    34  diesel motor fuel as defined in subdivision [fourteen]  ten  of  section

    35  [two  hundred  eighty-two  of this chapter] one hundred ninety-nine-o of
    36  the general business law and motor fuel as defined in subdivision two of
    37  section [two hundred eighty-two of this  chapter]  one  hundred  ninety-
    38  nine-o of the general business law.
    39    §  48.  Subdivisions  2,  3,  4 and 6 of section 503-a of the tax law,
    40  subdivisions 2, 4 and 6 as amended by chapter 407 of the  laws  of  1990
    41  and  subdivision  3  as  amended by chapter 309 of the laws of 1996, are
    42  amended to read as follows:
    43    2. Such tax shall be at a composite rate determined by adding together
    44  (i) a fuel tax component which shall  be  equivalent  to  the  rate  per
    45  gallon  in  effect  under  the taxes on motor fuel and diesel motor fuel

    46  imposed by former article [twelve-a] twelve-A of this chapter and (ii) a
    47  sales tax component, which shall be equivalent to the  rate  per  gallon
    48  applicable  to  the receipts from the sale of a gallon of motor fuel and
    49  diesel motor fuel in effect under the sales and compensating  use  taxes
    50  imposed  by  sections eleven hundred five and eleven hundred ten of this
    51  chapter plus the highest rate applicable to the receipts from  the  sale
    52  of a gallon of motor fuel and diesel motor fuel in effect in any locali-
    53  ty  of this state imposing a local sales and compensating use tax on the
    54  sale of motor fuel and diesel motor fuel under the authority of  section
    55  twelve  hundred  ten of this chapter; provided, however, that the aggre-
    56  gate rate per gallon applicable to the  receipts  from  the  sale  of  a


        S. 1719--A                         51
 
     1  gallon of such fuels imposed under clause (ii) of this subdivision shall
     2  not  exceed  seven  percent. Such total equivalent rate per gallon under
     3  clause (ii) of this subdivision  shall  be  determined  as  provided  in
     4  subdivision (d) of section eleven hundred eleven of this chapter and the
     5  schedules  prescribed  by  the  commissioner  [of  taxation and finance]
     6  pursuant to such subdivision, and shall be based on  the  average  price
     7  per gallon (including all federal and state and any local taxes included
     8  in  such  price  or  imposed on the use or consumption of such fuels but
     9  determined without the inclusion of any state and  local  sales  tax  on
    10  receipts from sales of such fuels) paid by the carrier during the return
    11  period for all motor fuel and diesel motor fuel purchased for use in its

    12  operations  either  within  or without this state. Provided, however, if
    13  the commissioner shall determine that the records  of  any  carrier  are
    14  inadequate  or incomplete for such a determination of average price, the
    15  price for motor fuel and diesel motor fuel  purchased  by  such  carrier
    16  shall  be  deemed  to  be the prevailing price for motor fuel and diesel
    17  motor fuel, as established by the  commissioner  each  calendar  quarter
    18  pursuant to this section, applicable to the return period. Each calendar
    19  quarter,  the  commissioner  shall for each calendar quarter establish a
    20  prevailing price for motor fuel and diesel motor fuel based on the pric-
    21  es being charged on any given day during the first fifteen days  of  the
    22  previous calendar quarter at a minimum of ten selected truck stops wide-
    23  ly  scattered throughout the state. For any return period, a carrier may

    24  elect to use the prevailing price  per  gallon  so  established  by  the
    25  commissioner.  Such  tax shall be computed by multiplying such composite
    26  rate by the amount of motor fuel or diesel motor fuel, as the  case  may
    27  be,  used  by  a carrier in its operations within this state during each
    28  calendar quarter or, where the commissioner has required or permitted  a
    29  return  to  be  based upon a different period, during such other period.
    30  The amount of motor fuel and diesel motor fuel used in the operations of
    31  any carrier within this state shall be  such  proportion  of  the  total
    32  amount of such motor fuel and diesel motor fuel used in its entire oper-
    33  ations  within and without this state as the total number of miles trav-
    34  eled within this state bears to the total number of miles traveled with-
    35  in and without this state. The commissioner may,  by  regulation,  allow

    36  use of a miles per gallon factor in computing fuel used in operations in
    37  lieu of the above formula if evidence is presented to the commissioner's
    38  satisfaction  that  no loss of revenue will result. Where the records of
    39  any carrier are inadequate or incomplete the vehicular units of a carri-
    40  er filing returns shall be deemed to have consumed, on the average,  one
    41  gallon  of diesel motor fuel for every four miles traveled or one gallon
    42  of motor fuel for every three miles traveled unless substantial evidence
    43  discloses that a different amount was consumed.
    44    3. Every carrier subject to the tax imposed by this section  shall  be
    45  entitled  to a credit against such tax determined by adding together the
    46  following components: (i) a fuel tax component computed  by  multiplying
    47  the  number  of  gallons of motor fuel or diesel motor fuel purchased by

    48  such carrier within this state in a return period, for use in its  oper-
    49  ations  either  within or without this state, by the applicable rate per
    50  gallon imposed on such fuel under former article twelve-A of this  chap-
    51  ter[,  provided,  however,  no  credit  shall  be allowed unless the tax
    52  imposed under such article twelve-A upon such purchase of fuel has  been
    53  paid by such carrier], and (ii) a sales tax component computed by multi-
    54  plying  the  number  of  gallons  of  motor  fuel  or  diesel motor fuel
    55  purchased by such carrier within this state in a return period, for  use
    56  in  its operations either within or without this state (as determined in

        S. 1719--A                         52
 
     1  a manner similar to the method for determining the use of  fuel  in  the

     2  state  as  provided  for  under subdivision two of this section), by the
     3  applicable equivalent rate per gallon of the sales tax component of  the
     4  tax  rate  (as  determined  under  subdivision  two  of  this  section),
     5  provided, however, no credit shall be allowed  unless  the  tax  imposed
     6  under  article  twenty-eight  of this chapter upon such purchase of fuel
     7  has been paid by the carrier. Each carrier claiming such  credit  compo-
     8  nents shall furnish to the commissioner such evidence of payment of such
     9  taxes  as the commissioner may require. When the amount of the credit to
    10  which any carrier is entitled for any  return  period  with  respect  to
    11  gallonage  purchased in such return period exceeds the amount of tax for
    12  which such carrier is liable under this section for such return  period,
    13  such  excess  shall be allowed as a credit against the tax or which such

    14  carrier would otherwise be liable for those  succeeding  periods  (after
    15  application  of  any credits derived with respect to gallonage purchased
    16  in each such succeeding period) which fall wholly within the twenty-four
    17  month period commencing with the end of the return period from which the
    18  excess was derived or, if a claim for refund is filed on or  before  the
    19  last day of the month immediately following the forty-eight month period
    20  commencing  with  the  end  of  the return period which gave rise to the
    21  refund, the amount of such excess for such  period  shall  be  refunded;
    22  but,  such a claim for refund may be filed no more frequently than quar-
    23  terly, with respect to the calendar  quarters:  January  through  March,
    24  April through June, July through September and October through December.
    25  The  commissioner shall grant or deny any such claim for refund in whole

    26  or in part and shall notify the claimant by mail of  the  commissioner's
    27  determination.  Such determination shall be final and irrevocable unless
    28  the claimant shall, within thirty days after the mailing  of  notice  of
    29  such  determination, petition the division of tax appeals for a hearing.
    30  After such hearing, the division of tax appeals shall mail notice of the
    31  determination of the administrative law judge to the claimant and to the
    32  commissioner. Such determination may be  reviewed  by  the  tax  appeals
    33  tribunal  as  provided in article forty of this chapter. The decision of
    34  the tax appeals tribunal may be reviewed  as  provided  in  section  two
    35  thousand  sixteen of this chapter. However, such a proceeding may not be
    36  commenced unless an undertaking is filed with the commissioner  in  such
    37  amount  and  with  such sureties as a justice of the supreme court shall

    38  approve to the effect that if the proceeding be dismissed or  the  deci-
    39  sion  confirmed, the petitioner will pay all costs and charges which may
    40  accrue against him in the prosecution of the proceeding.
    41    4. Except as otherwise provided in  this  subdivision,  every  carrier
    42  subject  to the tax imposed by this section shall file returns reporting
    43  its operations pursuant to the provisions of section five  hundred  five
    44  of  this article for the reporting periods provided pursuant thereto. If
    45  the commissioner of taxation and finance finds that the  enforcement  of
    46  the  tax  imposed  by  this section would not be adversely affected, the
    47  commissioner may provide, by regulation, that a carrier operating prima-
    48  rily within this state may file an information return, rather  than  the
    49  aforementioned returns, provided the carrier has purchased in this state

    50  all  the  motor fuel and diesel motor fuel used in its operations during
    51  the period covered by such return  and  pays  the  taxes  imposed  under
    52  [articles twelve-a and] article twenty-eight and pursuant to the author-
    53  ity  of  article twenty-nine of this chapter on such fuels in the manner
    54  required by such articles. An election to  file  an  information  return
    55  shall  be  made  in  such form, for such time and upon such terms as the
    56  commissioner shall require.

        S. 1719--A                         53
 
     1    6. For purposes of this section, the definition  of  "motor  fuel"  in
     2  subdivision  two of section [two hundred eighty-two] one hundred ninety-
     3  nine-o of the general business law and the definition of  "Diesel  motor

     4  fuel"  in  subdivision [fourteen] ten of section [two hundred eighty-two
     5  of  this  chapter] one hundred ninety-nine-o of the general business law
     6  shall apply.
     7    § 49. Subdivision (b) of section 523 of the tax  law,  as  amended  by
     8  section  7 of part M-1 of chapter 109 of the laws of 2006, is amended to
     9  read as follows:
    10    (b) Rate of tax. The tax imposed by this section shall be at a compos-
    11  ite rate determined by adding together (1) a fuel  tax  component  which
    12  shall  be  equal  to  the applicable rate per gallon in effect under the
    13  taxes on motor fuel and diesel motor  fuel  imposed  by  former  article
    14  twelve-A  of  this chapter and (2) a sales tax component, which shall be
    15  equal to the sum of (A) a state sales and compensating use tax subcompo-

    16  nent, equal to the applicable rate per gallon in effect under the  sales
    17  and  compensating  use taxes on motor fuel and diesel motor fuel imposed
    18  by sections eleven hundred five and eleven hundred ten of  this  chapter
    19  as described in subdivision (m) of section eleven hundred eleven of this
    20  chapter  plus  (B)  a local sales and compensating use tax subcomponent,
    21  which shall be the lower of (i) the lowest applicable rate per gallon in
    22  effect under the sales and compensating  use  taxes  on  such  fuels  in
    23  effect in any county of this state imposing a local sales and compensat-
    24  ing  use  tax  on  a cents per gallon basis pursuant to the authority of
    25  subpart B of part one of article twenty-nine of this  chapter,  or  (ii)
    26  the  equivalent  rate per gallon based on the highest rate applicable to
    27  the receipts from the sale of a gallon of motor  fuel  or  diesel  motor

    28  fuel  in effect in any locality of this state imposing a local sales and
    29  compensating use tax on a percentage rate basis on  the  sale  of  motor
    30  fuel  and  diesel  motor  fuel pursuant to the authority of subpart B of
    31  part one of article twenty-nine of this chapter. Provided, however, that
    32  the total rate per gallon applicable to the receipts from the sale of  a
    33  gallon  of  such  fuels imposed under clause (ii) of subparagraph (B) of
    34  paragraph two of this subdivision shall not exceed three  percent.  Such
    35  equivalent  rate per gallon under clause (ii) of subparagraph B of para-
    36  graph two of this subdivision shall be determined as provided in  subdi-
    37  vision  (d)  or (m) of section eleven hundred eleven of this chapter and
    38  the schedules prescribed by the commissioner pursuant to  such  subdivi-
    39  sion  (d), and shall be based on the average price per gallon (including

    40  all federal and state and any local taxes  included  in  such  price  or
    41  imposed on the use or consumption of such fuels upon which the state and
    42  local sales and compensating use taxes are computed but determined with-
    43  out the inclusion of any state or local sales tax on receipts from sales
    44  of  such  fuels) paid by the carrier during the reporting period for all
    45  motor fuel and diesel motor fuel purchased for  use  in  its  operations
    46  either  within  or  without  this  state. For purposes of clause (ii) of
    47  subparagraph (B) of paragraph two of this  subdivision,  the  price  for
    48  motor  fuel  and  diesel  motor  fuel purchased by such carrier shall be
    49  deemed to be the prevailing price for motor fuel and diesel motor  fuel,
    50  as  established  by  the  commissioner each calendar quarter pursuant to
    51  this section, applicable to the reporting period. The commissioner shall

    52  for each calendar quarter establish a prevailing price  for  motor  fuel
    53  and diesel motor fuel based on the prices being charged on any given day
    54  during  the  first  fifteen  days  of the previous calendar quarter at a
    55  minimum of ten selected truck  stops  widely  scattered  throughout  the
    56  state.  The tax imposed by this section shall be computed by multiplying

        S. 1719--A                         54
 
     1  such composite rate by the amount of motor fuel or diesel motor fuel, as
     2  the case may be, used by a carrier in its operations within  this  state
     3  during  each reporting period. The amount of motor fuel and diesel motor
     4  fuel  used  in  the operations of any carrier within this state shall be
     5  determined by dividing the  number  of  miles  traveled  in  this  state
     6  subject  to  tax  under this section by the average miles per gallon for

     7  the type of fuel. Where the records of any  carrier  are  inadequate  or
     8  incomplete,  the  qualified  motor  vehicles of a carrier filing returns
     9  shall be deemed to have consumed, on the average, one gallon  of  diesel
    10  motor fuel for every four miles traveled or one gallon of motor fuel for
    11  every  three miles traveled unless substantial evidence discloses that a
    12  different amount was consumed; provided, however, that  if  the  commis-
    13  sioner  enters  into  a  cooperative  agreement pursuant to section five
    14  hundred twenty-eight of this article and  such  agreement  prescribes  a
    15  different  average  miles  per gallon deemed to be consumed, the commis-
    16  sioner shall prescribe such different average.
    17    § 50. Subdivision (a) of section 524 of the tax  law,  as  amended  by
    18  section  8 of part M-1 of chapter 109 of the laws of 2006, is amended to
    19  read as follows:

    20    (a) Purchases. Every carrier subject to the tax imposed by this  arti-
    21  cle  shall be entitled to a credit against such tax determined by adding
    22  together the following components: (1) a fuel tax component computed  by
    23  multiplying  the  number  of  gallons of motor fuel or diesel motor fuel
    24  purchased by such carrier within this state in a return period, for  use
    25  in its operations either within or without this state, by the applicable
    26  rate  per  gallon  imposed on such fuel under former article twelve-A of
    27  this chapter[; provided, however, no credit shall be allowed unless  the
    28  tax  imposed  under such article twelve-A upon such purchase of fuel has
    29  been paid by such carrier], and (2) a sales tax  component  computed  by
    30  multiplying  the  number  of  gallons of motor fuel or diesel motor fuel

    31  purchased by such carrier within this state in a return period, for  use
    32  in  its  operations  within or without this state by the applicable rate
    33  per gallon of the sales tax component; provided,  however,  such  credit
    34  shall  not exceed the tax imposed under article twenty-eight or pursuant
    35  to the authority of  article  twenty-nine  of  this  chapter  upon  such
    36  purchase of fuel that has been paid by the carrier.  Each carrier claim-
    37  ing  such  credit  components  shall  furnish  to  the commissioner such
    38  evidence of payment of such taxes as the commissioner may require.  When
    39  the amount of the credit to which any carrier is entitled for any return
    40  period  exceeds the amount of tax for which such carrier is liable under
    41  this article for such return period, such excess shall be allowed  as  a
    42  credit  against the tax for which such carrier would otherwise be liable

    43  for the eight succeeding calendar quarters  following  the  end  of  the
    44  reporting  period  from  which the excess was derived or, if a claim for
    45  refund is filed on or before the  last  day  of  the  month  immediately
    46  following  the four-year period commencing with the end of the reporting
    47  period for which such excess is derived, the amount of such  excess  for
    48  such period shall be refunded.
    49    § 51. Paragraph 2 of subdivision (b) of section 525 of the tax law, as
    50  added by chapter 170 of the laws of 1994, is amended to read as follows:
    51    (2)  The  taxes  imposed by this article shall not apply to motor fuel
    52  and diesel motor fuel used by an omnibus carrier in the operation of  an
    53  omnibus  in  local  transit  service  in  this state, as described under
    54  former paragraph (d) of subdivision three of section two hundred  eight-

    55  y-nine-c  of  this  chapter, pursuant to a certificate of public conven-
    56  ience and necessity issued by the commissioner of transportation of this

        S. 1719--A                         55
 
     1  state or by the interstate commerce commission of the United  States  or
     2  pursuant  to a contract, franchise or consent between such carrier and a
     3  city having a population of more than one million  inhabitants,  or  any
     4  agency of such city.
     5    §  52. Clauses (A), (B), (C), (D), (E) and (F) of subparagraph (ii) of
     6  paragraph 4 of subdivision (b) of section 1101 of the tax  law,  clauses
     7  (B),  (C)  and (E) as amended by chapter 261 of the laws of 1988, clause
     8  (A) as amended by section 37 and clause (F) as added by  section  38  of
     9  part  K  of  chapter  61  of  the laws of 2011, clause (D) as amended by

    10  section 8 of part W of chapter 59 of the laws of 2013,  are  amended  to
    11  read as follows:
    12    (A)  "Petroleum products" means diesel motor fuel as defined in subdi-
    13  vision [fourteen] ten of section [two hundred eighty-two of  this  chap-
    14  ter]  one  hundred ninety-nine-o of the general business law, other than
    15  kerosene or propane used for residential  purposes,  or  motor  fuel  as
    16  defined  in  subdivision  two of section [two hundred eighty-two of this
    17  chapter] one hundred ninety-nine-o of the general  business  law.    The
    18  phrase "used for residential purposes" shall have the same meaning as it
    19  has for purposes of section eleven hundred five-A of this article.
    20    (B)  The  term "distributor" shall have the same meaning as it has for

    21  purposes of article [twelve-A of this chapter, excluding persons who are
    22  not required pursuant to section two hundred eighty-two-a to pay the tax
    23  imposed thereby] eleven-C of the general business law.
    24    (C) The term "motor fuel" means motor fuel as defined  in  subdivision
    25  two  of  section  [two  hundred  eighty-two of this chapter] one hundred
    26  ninety-nine-o of the general business law.
    27    (D) The terms "filling station", "terminal" and "owner" shall have the
    28  same meaning as they have for the purposes of article [twelve-A of  this
    29  chapter] eleven-e of the general business law.
    30    (E) The term "diesel motor fuel" means diesel motor fuel as defined in
    31  subdivision  [fourteen]  ten  of section [two hundred eighty-two of this

    32  chapter] one hundred ninety-nine-o of the general business law.
    33    (F) The [terms] term "highway diesel  motor  fuel"  means  any  diesel
    34  motor  fuel  which is not non-highway diesel motor fuel and "non-highway
    35  diesel motor fuel" [shall  have  the  same  meaning  as  they  have  for
    36  purposes  of  article  twelve-A  of this chapter] means any diesel motor
    37  fuel that is designated for use other than on a public  highway  (except
    38  for  the  use of the public highway by farmers to reach adjacent lands),
    39  and is dyed diesel motor fuel, meaning diesel motor fuel which has  been
    40  dyed  in  accordance  with  and  for  the  purpose of complying with the

    41  provisions of 26 USC §4082(a) and the regulations thereunder, as may  be
    42  amended from time to time.
    43    §  53. Paragraphs 29, 30, 31 and 32 of subdivision (b) of section 1101
    44  of the tax law, as added by section 7 of part W-1 of chapter 109 of  the
    45  laws of 2006, are amended to read as follows:
    46    (29)  "E85" shall have the same meaning as in subdivision [twenty-two]
    47  (o) of section [two hundred eighty-two] three hundred of this chapter.
    48    (30) "B20" shall have the same  meaning  as  in  subdivision  [twenty-
    49  three]  (p)  of  section  [two hundred eighty-two] three hundred of this
    50  chapter.
    51    (31) "CNG" shall have the same meaning as in subdivision [twenty-four]

    52  (q) of section [two hundred eighty-two] three hundred of this chapter.
    53    (32) "Hydrogen" shall have the same meaning as in  subdivision  [twen-
    54  ty-five]  (r)  of section [two hundred eighty-two] three hundred of this
    55  chapter.

        S. 1719--A                         56
 
     1    § 54. Paragraph 2 of subdivision (a) of section 1102 of the  tax  law,
     2  as  amended by section 9 of part W of chapter 59 of the laws of 2013, is
     3  amended to read as follows:
     4    (2)  Every distributor of diesel motor fuel shall pay, as a prepayment
     5  on account of the taxes imposed by this  article  and  pursuant  to  the
     6  authority of article twenty-nine of this chapter, a tax upon the sale or
     7  use  of diesel motor fuel in this state. The tax shall be computed based

     8  upon the number of gallons of diesel motor fuel sold or used.  Provided,
     9  however,  if  the  tax  has  not been imposed prior thereto, it shall be
    10  imposed on the removal of highway diesel motor  fuel  from  a  terminal,
    11  other  than  by pipeline, barge, tanker or other vessel, or the delivery
    12  of diesel motor fuel to a retail service station. The collection of such
    13  tax shall not be made applicable to the sale or use of diesel motor fuel
    14  under circumstances which preclude the collection of such tax by  reason
    15  of  the  United  States  constitution  and  of laws of the United States
    16  enacted pursuant thereto. The prepaid tax on diesel motor fuel shall not
    17  apply to (i) the sale of non-highway  Diesel  motor  fuel  to  a  person
    18  registered  as  a  distributor of Diesel motor fuel other than a sale to
    19  such person which involves a delivery at a filling  station  or  into  a

    20  repository  which  is  equipped  with a hose or other apparatus by which
    21  such fuel can be dispensed into the fuel tank of a motor  vehicle;  (ii)
    22  the  sale  to or delivery at a filling station or other retail vendor of
    23  water-white kerosene provided  such  filling  station  or  other  retail
    24  vendor  only  sells  such  water-white  kerosene exclusively for heating
    25  purposes in containers of no more than twenty gallons or to the sale  of
    26  CNG or hydrogen; (iii) the sale of previously untaxed qualified biodies-
    27  el,  [as]  defined  [in  subdivision twenty-three of section two hundred
    28  eighty-two of this chapter] as a Diesel motor fuel  substitute  produced
    29  from  nonpetroleum  renewable  resources  that  meets  the  registration
    30  requirements for fuels and fuel additives established  by  the  Environ-

    31  mental  Protection  Agency  under  section  211 of the Clean Air Act (42
    32  U.S.C. 7545) and that meets ASTM International active standard D6751 for
    33  biodiesel fuel, to a person registered under article [twelve-A  of  this
    34  chapter] eleven-C of the general business law as a distributor of Diesel
    35  motor  fuel other than (A) a retail sale to such person or (B) a sale to
    36  such person which involves a delivery at a filling  station  or  into  a
    37  repository  which  is  equipped  with a hose or other apparatus by which
    38  such qualified biodiesel can be dispensed into the fuel tank of a  motor
    39  vehicle;  or  (iv)  the  sale of previously untaxed highway diesel motor
    40  fuel by a person registered under article  [twelve-A  of  this  chapter]

    41  eleven-C  of  the  general business law as a distributor of diesel motor
    42  fuel to a person registered under such article [twelve-A] eleven-C as  a
    43  distributor  of diesel motor fuel where the highway diesel motor fuel is
    44  either: (A) being delivered by pipeline, railcar, barge, tanker or other
    45  vessel to a terminal, the operator of which terminal is registered under
    46  [section two  hundred  eighty-three-b  of  this  chapter]  such  article
    47  eleven-C , or (B) within such a terminal where it has been so delivered.
    48  Provided,  however,  that  the  exemption set forth in this subparagraph
    49  shall not apply to any highway diesel motor fuel if it is removed from a
    50  terminal, other than by pipeline, barge, tanker or other vessel.
    51    § 55. Paragraph 2 of subdivision (a) of section 1102 of the  tax  law,

    52  as amended by section 10 of part W of chapter 59 of the laws of 2013, is
    53  amended to read as follows:
    54    (2)  Every distributor of diesel motor fuel shall pay, as a prepayment
    55  on account of the taxes imposed by this  article  and  pursuant  to  the
    56  authority of article twenty-nine of this chapter, a tax upon the sale or

        S. 1719--A                         57
 
     1  use  of diesel motor fuel in this state. The tax shall be computed based
     2  upon the number of gallons of diesel motor fuel sold or used.  Provided,
     3  however,  if  the  tax  has  not been imposed prior thereto, it shall be
     4  imposed  on  the  removal  of highway diesel motor fuel from a terminal,
     5  other than by pipeline, barge, tanker or other vessel, or  the  delivery
     6  of diesel motor fuel to a retail service station. The collection of such

     7  tax shall not be made applicable to the sale or use of diesel motor fuel
     8  under  circumstances which preclude the collection of such tax by reason
     9  of the United States constitution and  of  laws  of  the  United  States
    10  enacted pursuant thereto. The prepaid tax on diesel motor fuel shall not
    11  apply  to  (i)  the  sale  of  non-highway Diesel motor fuel to a person
    12  registered as a distributor of Diesel motor fuel other than  a  sale  to
    13  such  person  which  involves  a delivery at a filling station or into a
    14  repository which is equipped with a hose or  other  apparatus  by  which
    15  such  fuel  can be dispensed into the fuel tank of a motor vehicle; (ii)
    16  the sale to or delivery at a filling station or other retail  vendor  of
    17  water-white  kerosene  provided  such  filling  station  or other retail
    18  vendor only sells such  water-white  kerosene  exclusively  for  heating

    19  purposes in containers of no more than twenty gallons; (iii) the sale of
    20  previously  untaxed  qualified  biodiesel,  [as] defined [in subdivision
    21  twenty-three of section two hundred eighty-two of  this  chapter]  as  a
    22  Diesel  motor  fuel  substitute  produced  from  nonpetroleum  renewable
    23  resources that meets the registration requirements for  fuels  and  fuel
    24  additives  established  by  the  Environmental  Protection  Agency under
    25  section 211 of the Clean Air Act (42 U.S.C. 7545) and  that  meets  ASTM
    26  International  active  standard  D6751  for  biodiesel  fuel to a person
    27  registered under article [twelve-A of  this  chapter]  eleven-C  of  the
    28  general  business  law  as a distributor of Diesel motor fuel other than

    29  (A) a retail sale to such person or (B) a  sale  to  such  person  which
    30  involves  a  delivery at a filling station or into a repository which is
    31  equipped with a hose or other apparatus by which such qualified biodies-
    32  el can be dispensed into the fuel tank of a motor vehicle; or  (iv)  the
    33  sale  of previously untaxed highway diesel motor fuel by a person regis-
    34  tered under article [twelve-A of this chapter] eleven-C of  the  general
    35  business  law  as  a distributor of diesel motor fuel to a person regis-
    36  tered under such article [twelve-A] eleven-C as a distributor of  diesel
    37  motor  fuel  where  the  highway  diesel motor fuel is either: (A) being
    38  delivered by pipeline, railcar, barge,  tanker  or  other  vessel  to  a
    39  terminal,  the  operator  of which terminal is registered under [section

    40  two hundred eighty-three-b of this chapter] such  article  eleven-C,  or
    41  (B)  within  such  a  terminal where it has been so delivered. Provided,
    42  however, that the exemption set forth in  this  subparagraph  shall  not
    43  apply  to any highway diesel motor fuel once it is removed from a termi-
    44  nal, other than by pipeline, barge, tanker or other vessel.
    45    § 56. Subdivision (e) of section 1102 of the tax law,  as  amended  by
    46  chapter 261 of the laws of 1988, is amended to read as follows:
    47    (e)  For  the  purposes  of this section [and article twelve-A of this
    48  chapter], the term "use" shall mean, in  addition  to  the  meaning  set
    49  forth  in  paragraph  seven of subdivision (b) of section eleven hundred
    50  one of this article, the exercise of any right or power over motor  fuel

    51  or  diesel motor fuel by any person, whether or not a purchaser, includ-
    52  ing, but not limited to, the receiving, the withdrawal from  storage  or
    53  any consumption of such fuel.
    54    §  57.  Subdivision  (c)  of  section 1112 of the tax law, as added by
    55  section 6 of part K of chapter 61 of the laws of  2005,  is  amended  to
    56  read as follows:

        S. 1719--A                         58
 
     1    (c) The provisions of former section two hundred eighty-four-e of this
     2  chapter  concerning  sales of motor fuel and Diesel motor fuel on quali-
     3  fied Indian reservations shall apply to  the  prepayment  of  sales  tax
     4  imposed  on  motor fuel and Diesel motor fuel pursuant to section eleven
     5  hundred  two  of this article in the same manner and with the same force
     6  and effect as if the provisions  of  such  former  section  two  hundred

     7  eighty-four-e had been incorporated in full into this article, except to
     8  the  extent  that  any  such  provision  is  either  inconsistent with a
     9  provision of such section eleven hundred two or not relevant thereto.
    10    § 58. Paragraph 1 of subdivision (h) of section 1132 of the  tax  law,
    11  as  amended  by  chapter  276 of the laws of 1986, is amended to read as
    12  follows:
    13    (1) (i) No person shall purchase motor fuel in this state, excluding a
    14  purchase at retail, unless the tax required to be prepaid by subdivision
    15  (a) of section eleven hundred two of this article has been assumed by  a
    16  distributor registered under article [twelve-A of this chapter] eleven-C
    17  of  the  general  business  law in accordance with a certification under
    18  this paragraph or paid  by  such  distributor,  and,  in  each  of  such

    19  instances, is passed through to such purchaser. In addition to any other
    20  civil  and  criminal penalties which may apply, any person who purchases
    21  motor fuel in violation  of  this  subparagraph  shall  be  jointly  and
    22  severally liable to pay the tax required to be prepaid by section eleven
    23  hundred two of this article with respect to such motor fuel.
    24    (ii)  For the purpose of the proper administration of this article and
    25  to prevent evasion of the tax on motor fuel imposed by and  pursuant  to
    26  this  article,  it shall be presumed that all motor fuel imported, manu-
    27  factured or sold, received or possessed in the  state  is  intended  for
    28  use,  distribution,  storage or sale in the state and subject to the tax
    29  required to be prepaid by section eleven hundred  two  of  this  article
    30  until the contrary is established. It shall be further presumed that all

    31  motor fuel so imported, manufactured, sold, received or possessed in the
    32  state  by  any person, other than motor fuel delivered into the ordinary
    33  fuel tank connected with the engine of a means of conveyance in order to
    34  propel it, or in small drums or similar containers,  which  such  person
    35  cannot  otherwise  account  for,  is  subject  to the tax required to be
    36  prepaid under section eleven hundred two of this article and such person
    37  is responsible for such prepayment. Provided, however, a distributor  of
    38  motor fuel who imports, manufactures or sells and stores in the state or
    39  who purchases and stores motor fuel in the state on which he has prepaid
    40  the tax required to be prepaid pursuant to section eleven hundred two of
    41  this  article  shall be allowed an adjustment in arriving at the gallons
    42  subject to the taxes imposed by such section on account of  the  gallons

    43  the  distributor establishes were lost due to shrinkage, evaporation and
    44  handling; provided, however, such allowance shall not exceed two percent
    45  of the fuel stored. Provided, further, that in arriving at  the  gallons
    46  of  motor  fuel  subject  to  the tax required to be prepaid pursuant to
    47  section eleven hundred two of this article, there shall  be  allowed  an
    48  adjustment  on  account of gallons lost or destroyed due to an accident,
    49  such as fire, and at the time of such loss  or  destruction  were  being
    50  held or transported for sale other than at retail. The burden of proving
    51  that  any  motor  fuel  is  not  so  subject shall be upon the person so
    52  responsible for such prepayment with respect to such fuel.
    53    (iii) Upon each sale of motor fuel, other than a sale at  retail,  the
    54  seller  must  give  to the purchaser and the purchaser shall receive, at

    55  the time of delivery of such motor fuel, a certification containing such
    56  information as the tax commission shall require which  shall  include  a

        S. 1719--A                         59
 
     1  statement  to  the effect (A) if such seller is a distributor registered
     2  under article [twelve-A of this chapter] eleven-C of the  general  busi-
     3  ness law, that he has assumed the payment of or paid the tax required to
     4  be  prepaid  by  section eleven hundred two of this article and, in each
     5  case, is passing through such tax or (B) that  such  seller  is  passing
     6  through  such  tax which was so previously assumed or paid by an identi-
     7  fied distributor registered under article  [twelve-A  of  this  chapter]
     8  eleven-C of the general business law, and passed through to him.

     9    (iv)  If  the  certification  required  by  this  paragraph  has  been
    10  furnished to the purchaser by the seller at  delivery  and  accepted  in
    11  good  faith,  the  burden of proving that the tax required to be paid by
    12  section eleven hundred two of this article was  assumed  or  paid  by  a
    13  distributor  registered as such under article [twelve-A of this chapter]
    14  eleven-C of the general business law and passed through shall be  solely
    15  on the seller.
    16    (v)  Where  the  certification  required  under  this paragraph is not
    17  furnished by the seller at delivery of motor fuel, it shall be  presumed
    18  that  the  tax  required  to be prepaid by section eleven hundred two of
    19  this article has not been assumed or paid by a distributor registered as
    20  such under article [twelve-A of this chapter] eleven-C  of  the  general

    21  business  law  and  that  the  purchaser  in  such  case  is jointly and
    22  severally liable for the tax.
    23    (vi) If, due to the circumstances of delivery, it is not  possible  to
    24  issue  a  certification  required  under  this  paragraph at the time of
    25  delivery of motor fuel, the tax commission may authorize the delivery of
    26  the certification required under this paragraph  at  a  time  after  the
    27  delivery  of  the  motor fuel which is the subject of the sale under the
    28  limited circumstances it shall prescribe and upon such terms and  condi-
    29  tions it shall deem necessary to ensure collection of the tax imposed by
    30  section  eleven  hundred  two  of this article [and the motor fuel taxes
    31  imposed by article twelve-A of this chapter].
    32    § 59. Subparagraph (iv) of paragraph 2 of subdivision (h)  of  section

    33  1132  of  the  tax  law, as added by chapter 261 of the laws of 1988, is
    34  amended to read as follows:
    35    (iv) (A) Upon each sale,  other  than  a  retail  sale  at  a  filling
    36  station,  the  seller must give to the purchaser and the purchaser shall
    37  receive at the time of delivery of such Diesel  motor  fuel,  a  certif-
    38  ication containing such information as the commissioner [of taxation and
    39  finance]  shall  require  which, unless otherwise provided in this para-
    40  graph, shall include a statement to the effect: (i) if such seller is  a
    41  distributor registered under article [twelve-A of this chapter] eleven-C
    42  of  the general business law, that he has assumed the payment of or paid
    43  the taxes imposed by this article and, in each case, is passing  through
    44  such  taxes;  (ii)  that such seller is passing through such taxes which

    45  were so previously assumed or paid by an identified  distributor  regis-
    46  tered  under  article [twelve-A of this chapter] eleven-C of the general
    47  business law, and passed through to him; or  (iii)  if  such  seller  is
    48  making  a  retail  sale  to  a  purchaser, that such taxes are not being
    49  passed through on the retail sale of Diesel motor  fuel,  in  accordance
    50  with subparagraph (i) of this paragraph. In the case of a sale of Diesel
    51  motor  fuel  described  in  paragraph  two of subdivision (a) of section
    52  eleven hundred two of this article which is exempt from the tax required
    53  to be prepaid by section eleven hundred two, the certificate, in lieu of
    54  the foregoing statements, shall state that, based upon good faith  reli-
    55  ance  on  the interdistributor sales certificate, such Diesel motor fuel

    56  is being sold under the circumstances described in such paragraph two of

        S. 1719--A                         60
 
     1  subdivision (a) of section eleven hundred two and that the  tax  imposed
     2  by section eleven hundred two of this article is not applicable.
     3    (B)  In  the  case  of  a sale of Diesel motor fuel subject to the tax
     4  required to be prepaid by section eleven hundred two of this article and
     5  in all cases where such tax is required to be  passed  through,  if  the
     6  certification  required  by  this subparagraph has been furnished to the
     7  purchaser at the time of delivery of such  fuel  and  accepted  in  good
     8  faith,  the  burden  of  proving  that the tax required to be prepaid by
     9  section eleven hundred two of this article was  assumed  or  paid  by  a
    10  distributor  registered as such under article [twelve-A of this chapter]

    11  eleven-C of the general business law and passed through shall be  solely
    12  on the seller.
    13    (C)  Where  the  certification  required under this subdivision is not
    14  furnished by the seller at the time of  delivery  of  the  Diesel  motor
    15  fuel,  it  shall  be  presumed  that  the  tax required to be prepaid by
    16  section eleven hundred two of this article is due and owing and has  not
    17  been  assumed  or paid by a distributor registered as such under article
    18  [twelve-A of this chapter] eleven-C of the general business law and that
    19  the purchaser in such case is jointly and severally liable for the tax.
    20    (D) If, due to the circumstances of delivery, it is  not  possible  to
    21  issue  a  certification  required  under this subdivision at the time of
    22  delivery of Diesel motor fuel, the commissioner of taxation and  finance

    23  may  authorize  the  delivery  of  the certification required under this
    24  subdivision at a time after the delivery of the Diesel motor fuel  which
    25  is  the  subject  of  the  sale under the limited circumstances he shall
    26  prescribe and upon such terms and conditions he shall deem necessary  to
    27  ensure  collection  of  the tax imposed by section eleven hundred two of
    28  this article [and  the  Diesel  motor  fuel  taxes  imposed  by  article
    29  twelve-A of this chapter].
    30    §  60.  Subparagraphs (A) and (C) of paragraph 3 of subdivision (h) of
    31  section 1139 of the tax law, as added by chapter  102  of  the  laws  of
    32  2008, are amended to read as follows:
    33    (A)  The  term  "government entity" means an entity described in para-
    34  graph one, two or three of subdivision (a)  of  section  eleven  hundred

    35  sixteen  of this article or any diplomatic mission or diplomatic person-
    36  nel who are permitted by the United States to purchase fuel  and  diesel
    37  motor  fuel  exempt  from the taxes imposed pursuant to this article and
    38  [articles twelve-A and] article thirteen-A of this chapter.
    39    (C) The term "fuel distributor" means any person who is  a  registered
    40  distributor  under  article  [twelve-A  of this chapter] eleven-C of the
    41  general business law and who is  registered  as  a  person  required  to
    42  collect tax pursuant to this article.
    43    §  61.  Subdivision  11  of section 1142 of the tax law, as amended by
    44  section 47 of part K of chapter 61 of the laws of 2011,  is  amended  to
    45  read as follows:
    46    11.  To  make such provision pursuant to rules and regulations for the

    47  joint administration, in whole or in part, of the state and local  taxes
    48  imposed  by  this  article and authorized by article twenty-nine of this
    49  chapter upon the sale of petroleum products [and the  taxes  imposed  by
    50  article  twelve-A  of  this chapter and authorized to be imposed by such
    51  article], including the joint reporting, assessment, collection,  deter-
    52  mination  and  refund  of  such taxes, and for that purpose to prescribe
    53  that any of the commissioner's functions under said  articles,  and  any
    54  returns,  forms, statements, documents or information to be submitted to
    55  the commissioner under said articles, any books and records to  be  kept
    56  for  purposes  of  the taxes imposed or authorized by said articles, any

        S. 1719--A                         61
 

     1  schedules of amounts to be collected under said articles, any  registra-
     2  tion  required  under said articles, and the payment of taxes under said
     3  articles shall be on a joint basis with respect to the taxes imposed  by
     4  said articles.
     5    §  62. Subparagraph (vii) of paragraph 1 of subdivision (a) of section
     6  1145 of the tax law, as amended by chapter 261 of the laws of  1988,  is
     7  amended to read as follows:
     8    (vii) Any owner of a filling station who shall willfully and knowingly
     9  have  in  his custody, possession or under his control any motor fuel or
    10  diesel motor fuel on which (A) the prepaid tax imposed by section eleven
    11  hundred two of this article has not been assumed or paid by a  distribu-
    12  tor registered as such under article [twelve-A of this chapter] eleven-C
    13  of  the  general business law, or (B) the prepaid tax imposed by section

    14  eleven hundred two of this article was  required  to  have  been  passed
    15  through to him and has not been included in the cost of such fuel to him
    16  shall  be  liable  for  a  penalty in the amount of twice the tax so not
    17  assumed  or  paid,  or  included.  Such  penalty  shall  be  determined,
    18  assessed, collected and paid in the same manner as taxes imposed by this
    19  article and all the provisions of this article relating thereto shall be
    20  deemed  also  to refer to the penalty imposed by this paragraph and, for
    21  this purpose, the term "person required to collect tax" shall be  deemed
    22  to include an owner of a filling station. Such penalty may be determined
    23  at  any  time  within  three years after such motor fuel or diesel motor
    24  fuel shall have come  into  his  custody,  possession  or  control.  For
    25  purposes  of this subparagraph, such owner shall willfully and knowingly

    26  have in his custody, possession or  under  his  control  motor  fuel  or
    27  diesel  motor fuel on which (A) such tax has not been assumed or paid by
    28  a distributor registered as such or (B) such tax was  required  to  have
    29  been passed through to him and has not been included in the cost of such
    30  fuel  to him where such owner has knowledge of the requirement that such
    31  taxes be paid and where, to his knowledge, such taxes have not  been  so
    32  included.  For  purposes  of  this subparagraph, it shall be presumptive
    33  evidence that such owner shall  willfully  and  knowingly  have  in  his
    34  custody, possession or under his control motor fuel or diesel motor fuel
    35  (A)  on  which  such  tax  has not been assumed or paid by a distributor
    36  registered as such or (B) on which such tax was required  to  have  been
    37  passed through to him and has not been included in the cost of such fuel

    38  to  him  where such owner has not received the certification required by
    39  subdivision (h) of section eleven hundred thirty-two of this article  at
    40  the  time  of  delivery  of  such motor fuel or diesel motor fuel or, in
    41  those circumstances where the commissioner has authorized  the  delivery
    42  of  such  certification  at  a  time after delivery of the motor fuel or
    43  diesel motor fuel, at the time prescribed by the commissioner.
    44    § 63. Subdivision (e) of section 1145 of the tax law,  as  amended  by
    45  chapter 2 of the laws of 1995, is amended to read as follows:
    46    (e) Any officer, director, shareholder or employee of a corporation or
    47  of  a dissolved corporation, any employee of a partnership, any employee
    48  or manager of a limited liability company, or any employee of  an  indi-
    49  vidual  proprietorship,  who  as  such  officer,  director, shareholder,

    50  employee or manager is under a duty to act for such  corporation,  part-
    51  nership,  limited  liability company or proprietorship in complying with
    52  any requirement of this article, and any  member  of  a  partnership  or
    53  limited  liability  company,  which  fails to pay the tax required to be
    54  prepaid by section eleven hundred two or eleven hundred  three  of  this
    55  article,  shall,  in  addition  to  other  penalties provided by law, be
    56  liable for a penalty equal to the total amount of the tax not paid, plus

        S. 1719--A                         62
 
     1  penalties and interest computed pursuant  to  subdivision  (a)  of  this
     2  section  as if such person were a distributor under article [twelve-a of
     3  this chapter] eleven-C of the general business law  or  an  agent  under

     4  article twenty of this chapter, respectively. If the commissioner deter-
     5  mines that such failure was due to reasonable cause and not due to will-
     6  ful  neglect,  the  commissioner shall remit all or part of such penalty
     7  imposed under this subdivision.    Such  penalty  shall  be  determined,
     8  assessed,  collected  and paid in the same manner as the tax required to
     9  be prepaid by section eleven hundred two or eleven hundred three, as the
    10  case may be, of this article and shall be disposed of as  provided  with
    11  respect  to moneys derived from either such tax, respectively. Provided,
    12  however, that the penalty provided for by this subdivision shall not  be
    13  imposed on any person on account of the failure of such a distributor or
    14  agent  to  pay  the tax required to be prepaid by section eleven hundred
    15  two or eleven hundred three,  respectively,  of  this  article  if  such

    16  person  is  liable  for  such  tax  pursuant  to subdivision (b) of such
    17  section eleven hundred two or subdivision (b)  of  such  section  eleven
    18  hundred three, respectively.
    19    §  64. Sections 1812, 1812-a, 1812-b, 1812-c and 1812-d of the tax law
    20  are REPEALED.
    21    § 65. Subdivision (f) and paragraph 1 of subdivision  (n)  of  section
    22  1817  of  the tax law, as amended by section 30 of subpart I of part V-1
    23  of chapter 57 of the laws of 2009, are amended to read as follows:
    24    (f) Any owner of a filling station who shall willfully  and  knowingly
    25  have  in  his custody, possession or under his control any motor fuel or
    26  diesel motor fuel on which (1) the prepaid tax imposed by section eleven
    27  hundred two of this chapter has not been assumed or paid by a  distribu-
    28  tor registered as such under article [twelve-A of this chapter] eleven-C

    29  of  the  general  business law or (2) the prepaid tax imposed by section
    30  eleven hundred two of this chapter was  required  to  have  been  passed
    31  through  to  him  and  has not been included in the cost of such fuel to
    32  him, shall in either case, be guilty of a class E felony.  For  purposes
    33  of  this  subdivision,  such owner shall willfully and knowingly have in
    34  his custody, possession or under his control any motor  fuel  or  diesel
    35  motor fuel on which such tax has not been assumed or paid by a distribu-
    36  tor registered as such where such owner has knowledge of the requirement
    37  that such tax be paid and where, to his knowledge, such tax has not been
    38  assumed  or  paid  by  such registered distributor on such motor fuel or
    39  diesel motor fuel. Such owner shall willfully and knowingly have in  his
    40  custody, possession or under his control motor fuel or diesel motor fuel

    41  on which such tax is required to have been passed through to him and has
    42  not  been  included in the cost to him where such owner has knowledge of
    43  the requirement that such tax be passed through and where to  his  know-
    44  ledge such tax has not been so included.
    45    (1)  Every  person  engaged  in  the  retail sale of motor fuel and/or
    46  diesel motor fuel or a distributor of such fuels, as defined in  article
    47  [twelve-A  of  this chapter] eleven-C of the general business law, shall
    48  comply with the provisions of section three hundred ninety-two-i of  the
    49  general  business  law by reducing the prices charged for motor fuel and
    50  diesel motor fuel in an amount equal to any reduction in  taxes  prepaid
    51  by the distributor or imposed on retail customers resulting from comput-
    52  ing sales and compensating use taxes at a cents per gallon rate pursuant

    53  to  the  provisions  of paragraph two of subdivision (e) and subdivision
    54  (m) of section one thousand one hundred eleven of this chapter.

        S. 1719--A                         63
 
     1    § 66. Subdivision (a) and paragraph 3 of subdivision  (d)  of  section
     2  1848 of the tax law, as amended by section 54 of part K of chapter 61 of
     3  the laws of 2011, are amended to read as follows:
     4    (a) Temporary seizure. Whenever a police officer designated in section
     5  1.20  of  the  criminal  procedure  law or a peace officer designated in
     6  subdivision four of section 2.10 of such law,  acting  pursuant  to  his
     7  special duties, shall discover any motor fuel or diesel motor fuel which
     8  is  being  imported  for use, distribution, storage or sale in the state
     9  where the person importing or causing such motor fuel  or  diesel  motor

    10  fuel  to  be  imported  is not registered as a distributor under section
    11  [two hundred eighty-three or section two hundred eighty-two-a,  of  this
    12  chapter,  as  the  case may be] one hundred ninety-nine-p of the general
    13  business law, such police officer or peace officer is hereby  authorized
    14  to  seize  and  take possession of such motor fuel or diesel motor fuel,
    15  together with the vehicle or  other  means  of  transportation  used  to
    16  transport such motor fuel.
    17    (3)  Forfeiture  of  motor fuel or diesel motor fuel together with the
    18  vehicle or other means of transportation used to  transport  such  motor
    19  fuel or diesel motor fuel shall be adjudged where the department proves,
    20  by  clear  and convincing evidence, that the person importing or causing
    21  such motor fuel or diesel motor fuel to be imported was  not  registered

    22  as  a distributor under section [two hundred eighty-three or section two
    23  hundred eighty-two-a of this chapter, as the case may  be]  one  hundred
    24  ninety-nine-p  of  the general business law. All defendants in a forfei-
    25  ture action brought pursuant to this article shall  have  the  right  to
    26  trial by jury on any issue of fact.
    27    §  67.  Subparagraph (D) of paragraph 4 and paragraph 6 of subdivision
    28  (d) of section 1848 of the tax law, as amended by section 54 of  part  K
    29  of chapter 61 of the laws of 2011, are amended to read as follows:
    30    (D)  The  court  may  grant the relief provided in subparagraph (A) of
    31  this paragraph if it finds that such relief is warranted by  the  exist-
    32  ence  of  some  compelling  factor, consideration or circumstance demon-
    33  strating that forfeiture of the property or any part thereof, would  not

    34  serve  the  ends  of  justice.  Reporting and payment of the tax imposed
    35  pursuant to [article twelve-A or] article twenty-eight of  this  chapter
    36  with  respect  to such motor fuel or diesel motor fuel subsequent to the
    37  seizure of such fuel shall not constitute a compelling factor, consider-
    38  ation or circumstance warranting the granting of the relief provided for
    39  in subparagraph (A) of  this  paragraph.  In  determining  whether  such
    40  relief  is warranted by the existence of some compelling factor, consid-
    41  eration or circumstances pursuant to  this  paragraph,  the  court  may,
    42  however,  take into account the fact that such taxes with respect to the
    43  seized fuel have been reported and remitted to the state  prior  to  the
    44  temporary  seizure of such fuel if the unregistered importation into the
    45  state was effected in good faith and without knowledge of  the  require-

    46  ment  of  registration  and  without intent to evade tax. The court must
    47  issue a written decision, stating the basis for an order issued pursuant
    48  to this paragraph.
    49    (6) The total that may be recovered shall not exceed the value of  the
    50  motor  fuel  or  diesel  motor  fuel seized and, in addition, either the
    51  value of the vehicle or other means of transportation used to  transport
    52  such  fuel  or three times the amount of the tax and penalty under arti-
    53  cles [twelve-A,] thirteen-A and twenty-eight and pursuant to the author-
    54  ity of article twenty-nine of this chapter with  respect  to  the  motor
    55  fuel or diesel motor fuel, whichever is less.

        S. 1719--A                         64
 
     1    §  68.  Subdivision  (f) of section 1848 of the tax law, as amended by
     2  chapter 190 of the laws of 1990, is amended to read as follows:

     3    (f)  Release  of property. A person whose property has been seized may
     4  move, upon notice to the department [of taxation and  finance],  in  the
     5  supreme  court in any county, provided that if the department shall have
     6  moved to confirm the temporary seizure of such property, in the  supreme
     7  court  of such county for an order releasing all or part of the property
     8  seized upon payment of the department's fees and expenses,  if  any.  On
     9  such  a  motion,  the  defendant shall give an undertaking in accordance
    10  with article twenty-five of the civil practice  law  and  rules,  in  an
    11  amount equal to the value of the property sought to be released, that he
    12  will pay the department the value of such property which may be adjudged
    13  forfeited  (but  in the case of the owner of a vehicle or other means of
    14  transportation, the amount of the undertaking required shall not  exceed

    15  three  times  the  amount  of all taxes and penalties due under articles
    16  [twelve-A,] thirteen-A and twenty-eight and pursuant to the authority of
    17  article twenty-nine of this chapter).
    18    § 69. This act shall take effect January 1, 2015;  provided,  however,
    19  that:
    20    (a)  the  amendments to paragraph (a) of subdivision 3 of section 89-b
    21  of the state finance law made by section twenty of  this  act  shall  be
    22  subject  to  the expiration and reversion of such paragraph, pursuant to
    23  section 13 of part U-1 of chapter 62 of the laws of  2003,  as  amended,
    24  when  upon  such  date  the provisions of section twenty-one of this act
    25  shall take effect;
    26    (b) the amendments to subdivisions (o), (p), (q) and  (r)  of  section
    27  300  of  the  tax  law  made by section thirty-two of this act shall not
    28  affect the repeal of such subdivisions  and  shall  be  deemed  repealed

    29  therewith;
    30    (c) the amendments to paragraphs 6 and 7 of subdivision (a) of section
    31  301-b  of  the tax law made by section thirty-four of this act shall not
    32  affect the repeal of such paragraphs and shall be deemed repealed there-
    33  with;
    34    (d) the amendments to paragraphs 29, 30, 31 and 32 of subdivision  (b)
    35  of  section  1101 of the tax law made by section fifty-three of this act
    36  shall not affect the repeal of  such  paragraphs  and  shall  be  deemed
    37  repealed therewith; and
    38    (e)  the amendments to paragraph 2 of subdivision a of section 1102 of
    39  the tax law made by section fifty-four of this act shall be  subject  to
    40  the  expiration  and reversion of such paragraph, pursuant to section 19
    41  of part W-1 of chapter 109 of the laws of 2006, as  amended,  when  upon
    42  such  date  the  provisions of section fifty-five of this act shall take
    43  effect.
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