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.
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 Article 12-A of the tax law is REPEALED.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.