Eliminates provisions of law that require the payment and subsequent refund of the ten cent diesel excise tax and sales tax on diesel motor fuel when sold to operators of commercial fishing vessels for use in the operation of such vessels.
STATE OF NEW YORK
________________________________________________________________________
1903--A
2009-2010 Regular Sessions
IN ASSEMBLY
January 14, 2009
___________
Introduced by M. of A. THIELE -- read once and referred to the Committee
on Ways and Means -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the tax law, in relation to providing an exemption from
the payment of the motor fuels tax and the sales tax on motor fuels
used in the operation of commercial fishing vessels; and to amend the
tax law, in relation to exempting fuel used in vessels used directly
and predominantly in a business providing sport fishing opportunities
for hire to the general public from the tax on petroleum businesses
and from sales and compensating use taxes
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (b) of subdivision 3 of section 282-a of the tax
2 law, as amended by chapter 245 of the laws of 1989, is amended to read
3 as follows:
4 (b) The tax on the incident of sale or use imposed by subdivision one
5 of this section shall not apply to: (i) the sale to or use by the
6 consumer of previously untaxed Diesel motor fuel which is not enhanced
7 Diesel motor fuel and which is used exclusively for heating purposes or
8 for the purpose of use or consumption directly and exclusively in the
9 production of tangible personal property, gas, electricity, refriger-
10 ation or steam, for sale, but only if all of such fuel is consumed other
11 than on the highways of this state; provided, however, this exemption
12 shall in no event apply to a sale of Diesel motor fuel which involves a
13 delivery at a filling station or into a repository which is equipped
14 with a hose or other apparatus by which such fuel can be dispensed into
15 the fuel tank of a motor vehicle; or (ii) the sale of previously untaxed
16 Diesel motor fuel which is not enhanced Diesel motor fuel to a person
17 registered under this article as a distributor of Diesel motor fuel
18 other than (A) a retail sale to such person or (B) a sale to such person
19 which involves a delivery at a filling station or into a repository
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03183-03-0
A. 1903--A 2
1 which is equipped with a hose or other apparatus by which such fuel can
2 be dispensed into the fuel tank of a motor vehicle; or (iii) a sale or
3 use of enhanced Diesel motor fuel to or by a consumer exclusively for
4 the purposes of heating specified in subparagraph (i) of this paragraph
5 but only if such enhanced Diesel motor fuel is delivered into a storage
6 tank which is not equipped with a hose or other apparatus by which such
7 fuel can be dispensed into the fuel tank of a motor vehicle and such
8 storage tank is attached to the heating unit burning such fuel, provided
9 that each delivery of such fuel of over four thousand five hundred
10 gallons shall be evidenced by a certificate signed by the purchaser
11 stating that the product will be used exclusively for heating purposes;
12 or (iv) a sale or use consisting of no more than four thousand five
13 hundred gallons of Diesel motor fuel in a thirty-day period to or by a
14 consumer who purchases or uses such fuel for use or consumption directly
15 and exclusively in the production for sale of tangible personal property
16 by farming but only if all of such fuel is delivered on the farm site
17 and is consumed other than on the highways of this state (except for the
18 use of the highway to reach adjacent farmlands) provided, however, a
19 farmer may purchase more than four thousand five hundred gallons of
20 Diesel motor fuel in a thirty-day period for such use or consumption
21 exempt from the tax in accordance with prior clearance given by the
22 commissioner [of taxation and finance]; or (v) a sale to the consumer
23 consisting of not more than twenty gallons of water-white kerosene to be
24 used and consumed exclusively for heating purposes; or (vi) the sale to
25 or delivery at a filling station or other retail vendor of water-white
26 kerosene provided such filling station or other retail vendor only sells
27 such water-white kerosene exclusively for heating purposes in containers
28 of no more than twenty gallons; or (vii) a sale of kero-jet fuel to an
29 airline for use in its airplanes or a use of kero-jet fuel by an airline
30 in its airplanes; or (viii) a sale of kero-jet fuel by a registered
31 distributor of Diesel motor fuel to a fixed base operator registered
32 under this article as a distributor of kero-jet fuel only where such
33 fixed base operator is engaged solely in making or offering to make
34 retail sales not in bulk of kero-jet fuel directly into the fuel tank of
35 an airplane for the purpose of operating such airplane; or (ix) a retail
36 sale not in bulk of kero-jet fuel by a fixed base operator registered
37 under this article as a distributor of kero-jet fuel only where such
38 fuel is delivered directly into the fuel tank of an airplane for use in
39 the operation of such airplane; or (x) a sale of Diesel motor fuel to a
40 "commercial fisherman", as such term is defined in subdivision (i) of
41 section three hundred of this chapter, at retail under the circumstances
42 set forth in paragraph one of subdivision (g) of section three hundred
43 one-c of this chapter, and where such commercial fishing vessel is oper-
44 ated by a commercial fisherman.
45 § 2. Subdivision 4 of section 282-a of the tax law, as added by chap-
46 ter 261 of the laws of 1988, is amended to read as follows:
47 4. The tax imposed by this section on Diesel motor fuel shall be
48 passed through by the seller and included as part of the selling price
49 to each purchaser of such fuel. Provided, however, the amount of the tax
50 imposed by this section may be excluded from the selling price of Diesel
51 motor fuel where (i) a sale of Diesel motor fuel is made to an organiza-
52 tion described in paragraph (a) of subdivision three of this section
53 solely for the purpose stated therein; (ii) a sale of enhanced Diesel
54 motor fuel is made to a consumer exclusively for the purposes of heating
55 specified in subparagraph (i) of paragraph (b) of subdivision three of
56 this section but only if such enhanced Diesel motor fuel is delivered
A. 1903--A 3
1 into a storage tank which is not equipped with a hose or other apparatus
2 by which such fuel can be dispensed into the fuel tank of a motor vehi-
3 cle and such storage tank is attached to the heating unit burning such
4 fuel, provided that each delivery of such fuel of over four thousand
5 five hundred gallons shall be evidenced by a certificate signed by the
6 purchaser stating that the product will be used exclusively for heating
7 purposes; (iii) a sale is made consisting of no more than four thousand
8 five hundred gallons (or a greater amount which has been given prior
9 clearance by the commissioner [of taxation and finance]) of Diesel motor
10 fuel in a thirty-day period to a consumer who purchases such fuel for
11 use or consumption directly and exclusively in the production for sale
12 of tangible personal property by farming but only if all of such fuel is
13 consumed other than on the highways or waterways of this state; or (iv)
14 the sale to or delivery at a filling station or other retail vendor of
15 water-white kerosene provided such filling station or other retail
16 vendor only sells such water-white kerosene exclusively for heating
17 purposes in containers of no more than twenty gallons; or (v) a sale of
18 kero-jet fuel is made to an airline for use in its airplanes; or (vi) a
19 sale of Diesel motor fuel is made to a "commercial fisherman", as such
20 term is defined in subdivision (i) of section three hundred of this
21 chapter, at retail under the circumstances set forth in paragraph one of
22 subdivision (g) of section three hundred one-c of this chapter, and
23 where such commercial fishing vessel is operated by a commercial fisher-
24 man.
25 § 3. Section 301-b of the tax law is amended by adding a new subdivi-
26 sion (k) to read as follows:
27 (k) Sales or uses of diesel motor fuel and residual petroleum product
28 for commercial fishing. Diesel motor fuel or residual petroleum product
29 sold to or used by a "commercial fisherman", as such term is defined in
30 subdivision (i) of section three hundred of this article, at retail
31 under the circumstances set forth in paragraph one of subdivision (g) of
32 section three hundred one-c of this article, and where such commercial
33 fishing vessel is operated by a commercial fisherman.
34 § 4. Subdivision (j) of section 1115 of the tax law, as amended by
35 section 12 of part W-1 of chapter 109 of the laws of 2006, is amended to
36 read as follows:
37 (j) The exemptions provided in this section shall not apply to the tax
38 required to be prepaid pursuant to the provisions of section eleven
39 hundred two of this article nor to the taxes imposed by sections eleven
40 hundred five and eleven hundred ten of this article with respect to
41 receipts from sales and uses of motor fuel or diesel motor fuel, except
42 that the exemptions provided in paragraphs nine and forty-two of subdi-
43 vision (a) of this section shall apply to the tax required to be prepaid
44 pursuant to the provisions of section eleven hundred two of this article
45 and to the taxes imposed by sections eleven hundred five and eleven
46 hundred ten of this article with respect to sales and uses of kero-jet
47 fuel, CNG, hydrogen and E85, provided, however, the exemption allowed
48 for E85 shall be subject to the additional requirements provided in
49 section eleven hundred two of this article with respect to E85 and
50 except that the exemption provided in paragraph twenty-four of subdivi-
51 sion (a) of this section shall apply to the taxes imposed by sections
52 eleven hundred five and eleven hundred ten of this article with respect
53 to sales and uses of diesel motor fuel used in the operation of a fish-
54 ing vessel as described in paragraph twenty-four of subdivision (a) of
55 this section. The exemption provided in subdivision (c) of this section
56 shall apply to sales and uses of diesel motor fuel which is not enhanced
A. 1903--A 4
1 diesel motor fuel but only if all of such fuel is consumed other than on
2 the highways of this state, provided, however, this exemption shall in
3 no event apply to a sale of diesel motor fuel which involves a delivery
4 at a filling station or into a repository which is equipped with a hose
5 or other apparatus by which such fuel can be dispensed into the fuel
6 tank of a motor vehicle. The exemption provided in subdivision (c) of
7 this section shall apply to sales and uses of no more than four thousand
8 five hundred gallons of diesel motor fuel in a thirty-day period for use
9 or consumption either in the production for sale of tangible personal
10 property by farming or in a commercial horse boarding operation, or in
11 both but only if all of such fuel is consumed other than on the highways
12 of this state (except for the use of the highways to reach adjacent
13 farmlands or adjacent lands used in a commercial horse boarding opera-
14 tion, or both), provided, however, such exemption shall be applicable to
15 the sale or use of more than four thousand five hundred gallons of
16 diesel motor fuel in a thirty-day period for such use or consumption in
17 accordance with a prior clearance given by the commissioner.
18 § 5. Subdivision (j) of section 1115 of the tax law, as amended by
19 section 8 of part B of chapter 63 of the laws of 2000, is amended to
20 read as follows:
21 (j) The exemptions provided in this section shall not apply to the tax
22 required to be prepaid pursuant to the provisions of section eleven
23 hundred two of this article nor to the taxes imposed by sections eleven
24 hundred five and eleven hundred ten of this article with respect to
25 receipts from sales and uses of motor fuel or diesel motor fuel, except
26 that the exemption provided in paragraph nine of subdivision (a) of this
27 section shall apply to the tax required to be prepaid pursuant to the
28 provisions of section eleven hundred two of this article and to the
29 taxes imposed by sections eleven hundred five and eleven hundred ten of
30 this article with respect to sales and uses of kero-jet fuel and except
31 that the exemption provided in paragraph twenty-four of subdivision (a)
32 of this section shall apply to the taxes imposed by sections eleven
33 hundred five and eleven hundred ten of this article with respect to
34 sales and uses of diesel motor fuel used in the operation of a fishing
35 vessel as described in paragraph twenty-four of subdivision (a) of this
36 section. The exemption provided in subdivision (c) of this section shall
37 apply to sales and uses of diesel motor fuel which is not enhanced
38 diesel motor fuel but only if all of such fuel is consumed other than on
39 the highways of this state, provided, however, this exemption shall in
40 no event apply to a sale of diesel motor fuel which involves a delivery
41 at a filling station or into a repository which is equipped with a hose
42 or other apparatus by which such fuel can be dispensed into the fuel
43 tank of a motor vehicle. The exemption provided in subdivision (c) of
44 this section shall apply to sales and uses of no more than four thousand
45 five hundred gallons of diesel motor fuel in a thirty-day period for use
46 or consumption either in the production for sale of tangible personal
47 property by farming or in a commercial horse boarding operation, or in
48 both but only if all of such fuel is consumed other than on the highways
49 of this state (except for the use of the highways to reach adjacent
50 farmlands or adjacent lands used in a commercial horse boarding opera-
51 tion, or both), provided, however, such exemption shall be applicable to
52 the sale or use of more than four thousand five hundred gallons of
53 diesel motor fuel in a thirty-day period for such use or consumption in
54 accordance with a prior clearance given by the commissioner.
55 § 6. Section 300 of the tax law is amended by adding a new subdivision
56 (j-1) to read as follows:
A. 1903--A 5
1 (j-1) "Commercial sport fishing vessel" means a vessel owned by a
2 person domiciled in this state, who has been issued and holds a marine
3 and coastal district party and charter boat license pursuant to section
4 13-0336 of the environmental conservation law.
5 § 7. Paragraph 2 of subdivision (b) of section 301-a of the tax law,
6 as added by section 154 of part A of chapter 389 of the laws of 1997, is
7 amended to read as follows:
8 (2) Motor fuel brought into this state in the fuel tank connecting
9 with the engine of a vessel propelled by the use of such motor fuel
10 shall be deemed to constitute a taxable use of motor fuel for the
11 purposes of this subdivision to the extent that the fuel is consumed in
12 the operation of the vessel in this state. Provided, however, that this
13 paragraph shall not apply to (i) a recreational motor boat or (ii)
14 subsequent to August thirty-first, nineteen hundred ninety-four, a
15 commercial fishing vessel (as defined in subdivision (j) of section
16 three hundred of this article) if the motor fuel imported and consumed
17 in this state is used to operate such vessel while it is engaged in the
18 harvesting of fish for sale or (iii) a commercial sport fishing vessel,
19 if such vessel provides its owner with at least fifty percent of his or
20 her total annual income. Provided, further, that tax liability for
21 gallonage that a vessel consumes shall be the tax liability with respect
22 to the positive difference between the gallonage consumed in this state
23 during the reporting period and the gallonage purchased in this state
24 (upon which the tax imposed by this section has been paid) during such
25 period. A credit or refund shall be available for any excess of tax
26 liability for gallonage purchased in this state during the period over
27 tax liability on gallonage so consumed in this state during such period,
28 which excess shall be presumed to have been used outside this state.
29 § 8. Subparagraph (B) of paragraph 1 of subdivision (c) of section
30 301-a of the tax law, as added by section 154 of part A of chapter 389
31 of the laws of 1997, is amended to read as follows:
32 (B) Diesel motor fuel brought into this state in the fuel tank
33 connecting with the engine of a vessel propelled by the use of such
34 diesel motor fuel shall be deemed to constitute a taxable use of diesel
35 motor fuel for the purpose of this paragraph to the extent of the fuel
36 that is consumed in the operation of the vessel in this state. Provided,
37 however, this paragraph shall not apply to (i) a recreational motor boat
38 or (ii) subsequent to August thirty-first, nineteen hundred ninety-four,
39 a commercial fishing vessel (as defined in subdivision (j) of section
40 three hundred of this article) if the diesel motor fuel imported into
41 and consumed in this state is used to operate such commercial fishing
42 vessel while it is engaged in the harvesting of fish for sale or (iii) a
43 commercial sport fishing vessel, if such vessel provides its owner with
44 at least fifty percent of his or her total annual income. Provided,
45 further, that tax liability for gallonage that a vessel consumes in this
46 state shall be the tax liability with respect to the positive difference
47 between the gallonage consumed in this state during the reporting period
48 and the gallonage purchased in this state (upon which the tax imposed by
49 this section has been paid) during such period. A credit or refund shall
50 be available for any excess of tax liability for gallonage purchased in
51 this state during the period over tax liability on gallonage so consumed
52 in this state during such period, which excess shall be presumed to have
53 been used outside this state.
54 § 9. The opening paragraph of section 301-c of the tax law, as amended
55 by section 5 of part W-1 of chapter 109 of the laws of 2006, is amended
56 to read as follows:
A. 1903--A 6
1 A subsequent purchaser shall be eligible for reimbursement of tax with
2 respect to the following gallonage, subsequently sold by such purchaser
3 in accordance with subdivision (a), (b), (e), (h), (j), (k), (n) or (o)
4 of this section or used by such purchaser in accordance with subdivision
5 (c), (d), (f), (g), (g-1), (i), (l) or (m) of this section, which gallo-
6 nage has been included in the measure of the tax imposed by this article
7 on a petroleum business:
8 § 10. The opening paragraph of section 301-c of the tax law, as
9 amended by chapter 468 of the laws of 2000, is amended to read as
10 follows:
11 A subsequent purchaser shall be eligible for reimbursement of tax with
12 respect to the following gallonage, subsequently sold by such purchaser
13 in accordance with subdivision (a), (b), (e), (h), (j) or (k) of this
14 section or used by such purchaser in accordance with subdivision (c),
15 (d), (f), (g), (g-1), (i), (l) or (m) of this section, which gallonage
16 has been included in the measure of the tax imposed by this article on a
17 petroleum business:
18 § 11. Section 301-c of the tax law is amended by adding a new subdivi-
19 sion (g-1) to read as follows:
20 (g-1) Diesel motor fuel and motor fuel used in the operation of
21 commercial sport fishing vessels. Diesel motor fuel or motor fuel
22 purchased in this state by the operator of a commercial sport fishing
23 vessel at retail wherein such diesel motor fuel or such motor fuel is
24 delivered by a pump equipped with a hose directly into the fuel tank of
25 a commercial sport fishing vessel to be used as fuel in the operation of
26 such vessel for the purpose of providing sport fishing opportunities for
27 hire to the general public; but only where (1) the tax imposed pursuant
28 to this article has been paid with respect to such diesel motor fuel or
29 such motor fuel and the entire amount of such tax has been absorbed by
30 such purchaser, (2) such purchaser possesses documentary proof satisfac-
31 tory to the commissioner evidencing the absorption by it of the entire
32 amount of the tax imposed pursuant to this article, and (3) the vessel
33 provides its owner with at least fifty percent of his or her total annu-
34 al income. Provided, however, that the commissioner shall require such
35 documentary proof to qualify for any reimbursement of tax provided by
36 this section as the commissioner deems appropriate.
37 § 12. Subdivision (a) of section 1115 of the tax law is amended by
38 adding a new paragraph 24-a to read as follows:
39 (24-a) Fuel used in vessels used directly and predominantly in a busi-
40 ness providing sport fishing opportunities for hire to the general
41 public; provided that such vessel provides its owner with at least fifty
42 percent of his or her total annual income.
43 § 13. Subparagraph (i) of paragraph 1 of subdivision (a) of section
44 1210 of the tax law, as amended by section 34 of part S-1 of chapter 57
45 of the laws of 2009, is amended to read as follows:
46 (i) Either, all of the taxes described in article twenty-eight of this
47 chapter, at the same uniform rate, as to which taxes all provisions of
48 the local laws, ordinances or resolutions imposing such taxes shall be
49 identical, except as to rate and except as otherwise provided, with the
50 corresponding provisions in such article twenty-eight, including the
51 definition and exemption provisions of such article, so far as the
52 provisions of such article twenty-eight can be made applicable to the
53 taxes imposed by such city or county and with such limitations and
54 special provisions as are set forth in this article. The taxes author-
55 ized under this subdivision may not be imposed by a city or county
56 unless the local law, ordinance or resolution imposes such taxes so as
A. 1903--A 7
1 to include all portions and all types of receipts, charges or rents,
2 subject to state tax under sections eleven hundred five and eleven
3 hundred ten of this chapter, except as otherwise provided. (i) Any local
4 law, ordinance or resolution enacted by any city of less than one
5 million or by any county or school district, imposing the taxes author-
6 ized by this subdivision, shall, notwithstanding any provision of law to
7 the contrary, exclude from the operation of such local taxes all sales
8 of tangible personal property for use or consumption directly and
9 predominantly in the production of tangible personal property, gas,
10 electricity, refrigeration or steam, for sale, by manufacturing, proc-
11 essing, generating, assembly, refining, mining or extracting; and all
12 sales of tangible personal property for use or consumption predominantly
13 either in the production of tangible personal property, for sale, by
14 farming or in a commercial horse boarding operation, or in both; and,
15 unless such city, county or school district elects otherwise, shall omit
16 the provision for credit or refund contained in clause six of subdivi-
17 sion (a) or subdivision (d) of section eleven hundred nineteen of this
18 chapter. (ii) Any local law, ordinance or resolution enacted by any
19 city, county or school district, imposing the taxes authorized by this
20 subdivision, shall omit the fuel used in commercial sport fishing
21 vessels exemption provided for in paragraph twenty-four-a of subdivision
22 (a), the residential solar energy systems equipment exemption provided
23 for in subdivision (ee) and the clothing and footwear exemption provided
24 for in paragraph thirty of subdivision (a) of section eleven hundred
25 fifteen of this chapter, unless such city, county or school district
26 elects otherwise as to either such residential solar energy systems
27 equipment exemption or such clothing and footwear exemption.
28 § 14. Section 1210 of the tax law is amended by adding a new subdivi-
29 sion (p) to read as follows:
30 (p) Notwithstanding any other provision of state or local law, ordi-
31 nance or resolution to the contrary:
32 (1) Any city having a population of one million or more in which the
33 taxes imposed by section eleven hundred seven of this chapter are in
34 effect, acting through its local legislative body, is hereby authorized
35 and empowered to elect to provide the same exemptions from such taxes as
36 the fuel used in commercial sport fishing vessels exemption from state
37 sales and compensating use taxes described in paragraph twenty-four-a of
38 subdivision (a) of section eleven hundred fifteen of this chapter by
39 enacting a resolution in the form set forth in paragraph two of this
40 subdivision; whereupon, upon compliance with the provisions of subdivi-
41 sions (d) and (e) of this section, such enactment of such resolution
42 shall be deemed to be an amendment to such section eleven hundred seven
43 and such section eleven hundred seven shall be deemed to incorporate
44 such exemptions as if they had been duly enacted by the state legisla-
45 ture and approved by the governor.
46 (2) Form of Resolution: Be it enacted by the (insert proper title of
47 local legislative body) as follows:
48 Section one. Receipts from sales of and consideration given or
49 contracted to be given for, or for the use of, property and services
50 exempt from state sales and compensating use taxes pursuant to paragraph
51 twenty-four-a of subdivision (a) of section 1115 of the tax law shall
52 also be exempt from sales and compensating use taxes imposed in this
53 jurisdiction.
54 Section two. This resolution shall take effect June 1, (insert the
55 year, but not earlier than the year 2008) and shall apply to sales made,
56 services rendered and uses occurring on and after that date in accord-
A. 1903--A 8
1 ance with the applicable transitional provisions in sections 1106, 1216
2 and 1217 of the New York tax law.
3 § 15. This act shall take effect on the first day of a sales tax
4 quarterly period, as described in subdivision (b) of section 1136 of the
5 tax law, next commencing at least ninety days after this act shall have
6 become a law, and sections four and five of this act shall apply to
7 sales made under and uses occurring on or after the dates such sections
8 four and five shall have taken effect, respectively, although made or
9 occurring under a prior contract, provided that the amendments to subdi-
10 vision (j) of section 1115 of the tax law made by section four of this
11 act shall be subject to the expiration and reversion of such subdivision
12 pursuant to section 19 of part W-1 of chapter 109 of the laws of 2006,
13 as amended, when upon such date the provisions of section five of this
14 act shall take effect; provided, further, that sections six, seven,
15 eight, nine, ten and eleven of this act shall take effect June 1, 2011;
16 provided, further, that the amendments to the opening paragraph of
17 section 301-c of the tax law, made by section nine of this act shall not
18 affect the expiration and repeal of such paragraph pursuant to section
19 19 of part W-1 of chapter 109 of the laws of 2006, as amended, and shall
20 expire and be deemed repealed therewith, when upon such date the
21 provisions of section ten of this act shall take effect.
