STATE OF NEW YORK
________________________________________________________________________
7297--A
2011-2012 Regular Sessions
IN ASSEMBLY
April 28, 2011
___________
Introduced by M. of A. TEDISCO, McLAUGHLIN, CASTELLI, D. MILLER, McDO-
NOUGH, SMARDZ, GIGLIO, THIELE, MONTESANO, BLANKENBUSH, CERETTO, TOBAC-
CO, MALLIOTAKIS, RABBITT, RAIA, MURRAY -- Multi-Sponsored by -- M. of
A. CROUCH, HAYES -- 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, the state finance law, and the general
business law, in relation to suspending taxes on gasoline and similar
motor fuels on certain summer holiday weekends in 2011
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The tax law is amended by adding a new section 36 to read
2 as follows:
3 § 36. Fuel tax holiday. (a) Definitions. For purposes of this
4 section,
5 (1) "Applicable period" shall mean (A) Friday, May twenty-seventh
6 through Monday, May thirtieth, two thousand eleven, (B) Friday, July
7 first, through Monday, July fourth, two thousand eleven, and (C) Friday,
8 September second through Monday, September fifth, two thousand eleven.
9 (2) "Diesel motor fuel" and "motor fuel" shall have the same meaning
10 as section two hundred eighty-two of this chapter.
11 (3) "Filling station" shall have the same meaning as section two
12 hundred eighty-two of this chapter.
13 (4) "Retail sale" and "sold at retail" shall mean any sale of motor
14 fuel or diesel motor fuel at a filling station to a person for use in a
15 motor vehicle.
16 (5) "Retail seller" shall mean any person who sells motor fuel or
17 diesel motor fuel at retail.
18 (6) "Sale" shall have the same meaning as section two hundred eighty-
19 two of this chapter.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11057-09-1
A. 7297--A 2
1 (b) Exemption from taxation. Notwithstanding any other provision of
2 law, rule or regulation to the contrary, the taxes imposed on retail
3 sales of motor fuel and diesel motor fuel made during the applicable
4 period shall be exempt from the taxes imposed by articles twelve-A,
5 thirteen-A, and twenty-eight of this chapter. If the retail seller is
6 located within a municipality that has elected to eliminate the tax
7 imposed pursuant to article twenty-nine of this chapter, such taxes
8 shall not be imposed on the retail sale of motor fuel or diesel motor
9 fuel during the applicable period.
10 (c) Price reduction. During the applicable period, each retail seller
11 shall reduce the price per gallon of motor fuel and diesel motor fuel
12 offered for sale by the amount of the taxes that the retail seller
13 prepaid on the gallon of motor fuel and diesel motor fuel and the amount
14 of tax in excess of the prepaid amount that would have been collected
15 from the consumer if the sale of the motor fuel or diesel motor fuel had
16 not been exempt from tax pursuant to subdivision (b) of this section.
17 (d) Advertising. Notwithstanding any other provision of law to the
18 contrary, a retail seller may advertise that the motor fuel and/or
19 diesel motor fuel is being or will be sold without the state taxes. Such
20 advertisement may commence no earlier than three days before the appli-
21 cable period and must end by the end of the applicable period.
22 (e) Refunds and credits. (1) Notwithstanding any other provision of
23 law to the contrary, the retail seller shall be entitled to receive a
24 credit against the taxes due pursuant to article twenty-eight of this
25 chapter for the amount of tax that the retail seller prepaid pursuant to
26 articles twelve-A, thirteen-A, twenty-eight and, if applicable, twenty-
27 nine of this chapter. If the retail seller is located within a munici-
28 pality that has elected to eliminate the tax imposed pursuant to article
29 twenty-nine of this chapter, the retail seller shall be entitled to
30 claim a credit against the taxes due pursuant to article twenty-eight of
31 this chapter for such prepaid taxes. The amount of credit shall equal
32 the amount of tax that was prepaid pursuant to articles twelve-A, thir-
33 teen-A, twenty-eight and, if applicable, twenty-nine of this chapter for
34 each gallon of motor fuel and diesel motor fuel sold at retail during
35 the applicable period. Such credit shall not be allowed for sales that
36 would have otherwise been exempt from tax.
37 (2) A retail seller may claim the credit prescribed in paragraph one
38 of this subdivision when the retail seller files its return of tax for
39 the sales of motor fuel and diesel motor fuel for the period that
40 includes the applicable period. Notwithstanding the foregoing, if a
41 retailer seller is required to file its return more than thirty days
42 after the close of the applicable period defined in subparagraph (A),
43 (B), or (C) of paragraph one of subdivision (a) of this section, such
44 retailer shall be authorized to file an amendment to its most recently
45 filed return to claim such credit. No credit may be claimed for the
46 taxes prepaid pursuant to article twelve-A, thirteen-A, twenty-eight or,
47 if applicable, twenty-nine of this chapter pursuant to this section if
48 the claim would have been barred pursuant to the article that required
49 prepayment of such taxes. No interest shall be paid on any claims for
50 credit made pursuant to this section.
51 § 2. Section 88-a of the state finance law is amended by adding a new
52 subdivision 10 to read as follows:
53 10. By March thirty-first, two thousand twelve, the comptroller shall
54 transfer from the general fund to the mass transportation operating
55 assistance fund an amount no greater than the amount that would have
56 otherwise been deposited in the mass transportation operating assistance
A. 7297--A 3
1 fund pursuant to this section if the exemption defined in subdivision
2 (b) of section thirty-six of the tax law had not been authorized;
3 provided however that the comptroller shall make such transfer only
4 after the director of the budget has determined in his or her discretion
5 that the transfer is necessary to ensure a positive fund balance of the
6 mass transportation operating assistance fund at the end of the two
7 thousand eleven-two thousand twelve state fiscal year.
8 § 3. Subdivision 3 of section 89-b of the state finance law is amended
9 by adding a new paragraph (g) to read as follows:
10 (g) Within forty-five days after an applicable period as defined by
11 subdivision (a) of section thirty-six of the tax law, the comptroller,
12 in consultation with the director of the division of the budget, shall
13 transfer from the general fund to the special obligation reserve and
14 payment account an amount equal to the amount that would have otherwise
15 been deposited in the special obligation reserve and payment account
16 pursuant to this section if the exemption defined in subdivision (b) of
17 section thirty-six of the tax law had not been authorized.
18 § 4. Section 89-c of the state finance law is amended by adding a new
19 subdivision 4 to read as follows:
20 4. Within forty-five days after an applicable period as defined by
21 subdivision (a) of section thirty-six of the tax law, the comptroller,
22 in consultation with the director of the division of the budget, shall
23 transfer from the general fund to the dedicated mass transportation
24 trust fund an amount equal to the amount that would have otherwise been
25 deposited in the dedicated mass transportation trust fund pursuant to
26 this section if the exemption defined in subdivision (b) of section
27 thirty-six of the tax law had not been authorized.
28 § 5. Section 392-i of the general business law, as amended by section
29 5 of part M-1 of chapter 109 of the laws of 2006, is amended to read as
30 follows:
31 § 392-i. Prices reduced to reflect change in sales tax computation.
32 Every person engaged in the retail sale of motor fuel and/or diesel
33 motor fuel or a distributor of such fuels, as defined in article
34 twelve-A of the tax law, shall reduce the price such person charges for
35 motor fuel and/or diesel motor fuel in an amount equal to any reduction
36 in taxes prepaid by the distributor, credit for the amount of taxes
37 prepaid by the retail seller allowable pursuant to section thirty-six of
38 the tax law, exemption from taxation pursuant to section thirty-six of
39 the tax law to the extent that the tax that would have been otherwise
40 due exceeds the amount of tax prepaid, or paid by retail customers
41 resulting from computing sales and compensating use and other taxes at a
42 cents per gallon rate pursuant to the provisions of paragraph two of
43 subdivision (e) and subdivision (m) of section eleven hundred eleven of
44 the tax law.
45 § 6. Paragraph 1 of subdivision (n) of section 1817 of the tax law, as
46 amended by section 30 of subpart I of part V-1 of chapter 57 of the laws
47 of 2009, is amended to read as follows:
48 (1) Every person engaged in the retail sale of motor fuel and/or
49 diesel motor fuel or a distributor of such fuels, as defined in article
50 twelve-A of this chapter, shall comply with the provisions of section
51 three hundred ninety-two-i of the general business law by reducing the
52 prices charged for motor fuel and diesel motor fuel in an amount equal
53 to any reduction in taxes prepaid by the distributor, credit for the
54 amount of taxes prepaid by the retail seller allowable pursuant to
55 section thirty-six of the tax law, exemption from taxation pursuant to
56 section thirty-six of the tax law to the extent that the tax that would
A. 7297--A 4
1 have been otherwise due exceeds the amount of tax prepaid, or imposed on
2 retail customers resulting from computing sales and compensating use
3 taxes at a cents per gallon rate pursuant to the provisions of paragraph
4 two of subdivision (e) and subdivision (m) of section one thousand one
5 hundred eleven of this chapter.
6 § 7. Notwithstanding any law to the contrary, a municipality may make
7 the election to eliminate all taxes on motor fuel and diesel motor fuel
8 pursuant to sections eleven hundred seven and eleven hundred eight of
9 the tax law or article twenty-nine of the tax law from Friday, May twen-
10 ty-seventh through Monday, May thirtieth, two thousand eleven, from
11 Friday, July first, through Monday, July fourth, two thousand eleven and
12 from Friday, September second through Monday, September fifth, two thou-
13 sand eleven, by local law, ordinance or resolution, if such municipality
14 mails, by certified or registered mail, a certified copy of such local
15 law, ordinance or resolution to the commissioner of taxation and finance
16 at his or her office in Albany no later than the Wednesday immediately
17 preceding the first date listed in subparagraph (A), (B) or (C) of para-
18 graph one of subdivision (a) of section thirty-six of the tax law,
19 provided, however, that a municipality may adopt one local law, ordi-
20 nance or resolution that will apply to all or some of the dates listed
21 in paragraph one of subdivision (a) of section thirty-six of the tax
22 law.
23 § 8. The commissioner of taxation and finance shall, on an emergency
24 basis, promulgate and/or amend any rules and regulations necessary to
25 provide for the tax free sales of motor fuel and diesel motor fuel and
26 refunds of prepaid tax to retail sellers.
27 § 9. This act shall take effect immediately, provided however that the
28 commissioner of taxation and finance shall make provision for retail
29 sellers to apply for credit for the taxes prepaid pursuant to articles
30 twelve-A, thirteen-A, twenty-eight, and, if applicable, twenty-nine of
31 the tax law, no later than the tenth day of June, two thousand eleven.
