Sets all local sales tax rates on motor diesel fuel at 4% per gallon payable to those localities of the state which impose local sales and compensating use taxes on a cents per gallon basis pursuant to subpart B of part 1 of article 29 of this chapter.
STATE OF NEW YORK
________________________________________________________________________
2643
2011-2012 Regular Sessions
IN ASSEMBLY
January 19, 2011
___________
Introduced by M. of A. GABRYSZAK, BURLING, RAIA, McDONOUGH, CASTRO --
Multi-Sponsored by -- M. of A. BARCLAY, DESTITO, REILLY, THIELE --
read once and referred to the Committee on Ways and Means
AN ACT to amend the tax law, in relation to setting local sales tax at a
rate of four percent per gallon upon the sale of a gallon of diesel
motor fuel
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision (b) of section 523 of the tax law, as amended
2 by section 7 of part M-1 of chapter 109 of the laws of 2006, is amended
3 to read as follows:
4 (b) Rate of tax. The tax imposed by this section shall be at a compos-
5 ite rate determined by adding together (1) a fuel tax component which
6 shall be equal to the applicable rate per gallon in effect under the
7 taxes on motor fuel and diesel motor fuel imposed by article twelve-A of
8 this chapter and (2) a sales tax component, which shall be equal to the
9 sum of (A) a state sales and compensating use tax subcomponent, equal to
10 the applicable rate per gallon in effect under the sales and compensat-
11 ing use taxes on motor fuel and diesel motor fuel imposed by sections
12 eleven hundred five and eleven hundred ten of this chapter as described
13 in subdivision (m) of section eleven hundred eleven of this chapter plus
14 (B) a local sales and compensating use tax subcomponent, which shall be
15 [the lower of (i) the lowest applicable rate per gallon in effect under
16 the sales and compensating use taxes on such fuels in effect in any
17 county of this state imposing a local sales and compensating use tax on
18 a cents per gallon basis pursuant to the authority of subpart B of part
19 one of article twenty-nine of this chapter, or (ii) the equivalent rate
20 per gallon based on the highest rate applicable to the receipts from the
21 sale of a gallon of motor fuel or diesel motor fuel in effect in any
22 locality of this state imposing a local sales and compensating use tax
23 on a percentage rate basis on the sale of motor fuel and diesel motor
24 fuel pursuant to the authority of subpart B of part one of article twen-
25 ty-nine of this chapter. Provided, however, that the total rate per
26 gallon applicable to the receipts from the sale of a gallon of such
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07710-01-1
A. 2643 2
1 fuels imposed under clause (ii) of subparagraph (B) of paragraph two of
2 this subdivision shall not exceed three percent. Such equivalent rate
3 per gallon under clause (ii) of subparagraph B of paragraph two of this
4 subdivision shall be determined as provided in subdivision (d) or (m) of
5 section eleven hundred eleven of this chapter and the schedules
6 prescribed by the commissioner pursuant to such subdivision (d), and
7 shall be based on the average price per gallon (including all federal
8 and state and any local taxes included in such price or imposed on the
9 use or consumption of such fuels upon which the state and local sales
10 and compensating use taxes are computed but determined without the
11 inclusion of any state or local sales tax on receipts from sales of such
12 fuels) paid by the carrier during the reporting period for all motor
13 fuel and diesel motor fuel purchased for use in its operations either
14 within or without this state. For purposes of clause (ii) of subpara-
15 graph (B) of paragraph two of this subdivision, the price for motor fuel
16 and diesel motor fuel purchased by such carrier shall be deemed to be
17 the prevailing price for motor fuel and diesel motor fuel, as estab-
18 lished by the commissioner each calendar quarter pursuant to this
19 section, applicable to the reporting period] at a rate of four percent
20 per gallon upon the sale of a gallon of diesel motor fuel, payable to
21 those localities of the state which impose local sales and compensating
22 use taxes on a cents per gallon basis pursuant to subpart B of part one
23 of article twenty-nine of this chapter. Such uniform rate shall be
24 subject to adjustment on a quarterly basis. The commissioner shall for
25 each calendar quarter establish a prevailing price for motor fuel and
26 diesel motor fuel based on the prices being charged on any given day
27 during the first fifteen days of the previous calendar quarter at a
28 minimum of ten selected truck stops widely scattered throughout the
29 state. Such tax for diesel motor fuel shall be computed by taking the
30 composite rate minus the state excise tax and minus the state sales tax;
31 the resultant taxable sales number shall be multiplied by four percent
32 and this shall establish the cents per gallon statewide local sales tax
33 on a gallon of diesel motor fuel for the calendar quarter. The tax
34 imposed by this section shall be computed by multiplying such composite
35 rate by the amount of motor fuel [or diesel motor fuel, as the case may
36 be], used by a carrier in its operations within this state during each
37 reporting period. The amount of motor fuel and diesel motor fuel used in
38 the operations of any carrier within this state shall be determined by
39 dividing the number of miles traveled in this state subject to tax under
40 this section by the average miles per gallon for the type of fuel. Where
41 the records of any carrier are inadequate or incomplete, the qualified
42 motor vehicles of a carrier filing returns shall be deemed to have
43 consumed, on the average, one gallon of diesel motor fuel for every four
44 miles traveled or one gallon of motor fuel for every three miles trav-
45 eled unless substantial evidence discloses that a different amount was
46 consumed; provided, however, that if the commissioner enters into a
47 cooperative agreement pursuant to section five hundred twenty-eight of
48 this article and such agreement prescribes a different average miles per
49 gallon deemed to be consumed, the commissioner shall prescribe such
50 different average. The commissioner shall be charged with developing a
51 mechanism to compensate those counties charging a rate higher than four
52 percent on diesel motor fuel sales for such counties' loss in tax reven-
53 ues.
54 § 2. This act shall take effect immediately and shall apply to the
55 next taxable year and all subsequent taxable years.
