N.Y. Comp. Codes R. & Regs. tit. 20 § 410.2

Current through Register Vol. 46, No. 36, September 4, 2024

Section 410.2 - Definitions

Tax Law, §§ 282, 289-c, 1101(b), 1102(e)

(a)

(1)

(i)Motor fuel means gasoline, benzol or other product, except kerosene and crude oil, which is suitable for use in the operation of a motor vehicle engine. If kerosene or crude oil is compounded or mixed with any other product or products, and the resulting compound or mixture is suitable for use in the operation of any such motor vehicle engine, such resulting compound or mixture in its entirety is motor fuel. Motor fuel includes, but is not limited to, gasoline, benzol, benzene, naphtha, ethanol, methanol, liquefied petroleum gas, compressed natural gas, propane gas, or any combination, or any other product, or combination of products, which is suitable for use in the operation of a motor vehicle engine.

(ii) However, any product that is not commonly or commercially known or sold as gasoline or a blend thereof, will not generally be considered to be suitable for use in the operation of a motor vehicle engine until one of the following, whichever is the earliest, takes place.

(a) The product is compounded or otherwise mixed with any other product or products, the result of which is suitable for use in the operation of a motor vehicle engine.

Example 1:

A sells gasoline, as well as other petroleum products that are used for industrial purposes. A also uses light naphtha and other petrochemicals for blending. Those additives, when compounded or otherwise mixed with gasoline, are motor fuel suitable for use in the operation of a motor vehicle engine. A has produced additional motor fuel in this State. Consequently, A must be registered under article 12-A of the Tax Law and pay the taxes imposed on such motor fuel.

(b) The product is destined for use in the operation of a motor vehicle engine as is reasonably concluded from facts and circumstances concerning such product.

Example 2:

B sells gasoline, gasohol and other motor fuels exclusively. B transports methanol to its motor fuel terminal in New York State. It can reasonably be concluded that such product is motor fuel suitable for use in the operation of a motor vehicle engine. B is deemed to have produced motor fuel in this State because B established the methanol as motor fuel. Consequently, B must be registered under article 12-A of the Tax Law and pay the taxes imposed on such motor fuel.

(c) The product is specifically designated as a fuel suitable for use in the operation of a motor vehicle engine.

Example 3:

C sells a variety of denatured alcohols, including anhydrous ethyl alcohol. These products are primarily used by C's customers as solvents and reagents. C also sells a portion of the anhydrous ethyl alcohol as ethanol fuel. Such product is motor fuel suitable for use in the operation of a motor vehicle engine when the specific designation is made. C is deemed to have produced motor fuel in this State because C established the ethyl alcohol as motor fuel on the sale thereof as motor fuel. Consequently, C must be registered under article 12-A of the Tax Law and pay the taxes imposed on such motor fuel.

(d) The product is pumped into the fuel tank of a motor vehicle for use in the operation thereof on the public highways of New York State or is pumped into the fuel tank of a pleasure or recreational motor boat for use in the operation thereof on the waterways of New York State, including any waterways bordering on the State.

Example 4:

D sells compressed natural gas for heating purposes. In addition, D sells such product to persons operating motor vehicles that have been specially adapted to operate on compressed natural gas. Such compressed natural gas is motor fuel suitable for use in the operation of a motor vehicle engine when it is pumped into the fuel tank of a motor vehicle for use in the operation of the vehicle. D is deemed to have produced motor fuel in this State because D established the compressed natural gas as motor fuel. Consequently, D must be registered under article 12-A of the Tax Law and pay the taxes imposed on such motor fuel.

(iii) Motor fuel that is suitable for use in the operation of an engine of the diesel type is "diesel motor fuel" as defined in this subdivision, and as such is subject to tax as diesel motor fuel pursuant to section 282-a of the Tax Law.

(2)

(i)Diesel motor fuel means kerosene, crude oil, fuel oil or other middle distillate and also motor fuel suitable for use in the operation of an engine of the diesel type, excluding, however, any product specifically designated No. 4 Diesel fuel and not suitable as a fuel used in the operation of a motor vehicle engine. (See section 430.1(b) of this Title for specifications as to what constitutes No. 4 Diesel fuel not suitable as a fuel in such operation.)

(ii)Kero-jet fuel means a quality, highly refined kerosene product or derivative thereof, which meets kerosene-type jet fuel specifications and which is primarily used for commercial turbojet and turboprop aircraft engines.

(3)Automotive fuel means motor fuel or diesel motor fuel.

(b)Distributor for purposes of this Article means:

(1) any person, firm, association or corporation (i) importing or causing to be imported motor fuel from without the State for use, distribution, storage or sale within the State, or (ii) producing, refining, manufacturing or compounding any motor fuel within the State;

(2) any person, firm, association or corporation who or which imports or causes to be imported from without the State any motor fuel for use, distribution, storage or sale within the State, even though such person or entity is a retailer selling to customers for their consumption only; and

(3) any person, firm, association or corporation who or which imports or causes to be imported motor fuel from without the State for use, distribution, storage or sale within the State, even though such person or entity is a consumer as distinguished from a dealer of motor fuel.

(c)Imports or causes to be imported.

(1) A person imports or causes motor fuel to be imported into this State:

(i) if such person has ownership of motor fuel at the time the fuel enters New York State's jurisdiction or at any time thereafter up to and including the offloading of such fuel;

(ii) if such person directs or controls the importation of motor fuel into New York State; or

(iii) if such person purchases motor fuel located outside New York State for delivery into New York State from a seller who is not registered as a distributor of motor fuel pursuant to article 12-A of the Tax Law. Thus, more than one party in any particular importation transaction may have imported motor fuel or caused it to be imported. The act of importation encompasses the acts of all the parties to any New York sale commencing with the bringing of motor fuel into New York State and continuing to the offloading of such fuel at or into any terminal, facility or land-sited repository for use, distribution, storage or sale in this State. Accordingly, all persons who have ownership of motor fuel from the time it enters New York State's jurisdiction to the time it is offloaded into a terminal, facility or land-sited repository for use, distribution, storage or sale in the State have caused such motor fuel to be imported into this State. Ownership of motor fuel is evidenced by such factors as title, possession, control and/or risk of loss. The absence of title will not necessarily preclude ownership of motor fuel, and possession, control and risk of loss are given great significance in determining ownership. Unless the circumstances of the transaction clearly indicate otherwise, ownership vests in the buyer when the seller completes his performance under the sales contract with respect to the physical delivery of the motor fuel.

(2) Regardless of the indicia of ownership discussed in paragraph (1) of this subdivision, if the circumstances of an importation transaction indicate that a person or persons, other than the person indicated as the owner, is directing or controlling the importation of motor fuel, such person or persons directing or controlling the importation is importing motor fuel or causing it to be imported into New York State. Factors indicating that a person directs and controls an importation transaction include:

(i) placement of the order with the out-of-state supplier for the motor fuel which is the subject of the importation transaction;

(ii) arranging for the transportation of the motor fuel;

(iii) financing or paying for the purchase and/or the transportation of the motor fuel;

(iv) financing the direct parties to the transaction and/or conducting their business activities; and

(v) conducting transactions between the parties not at arm's-length.

Example 1:

Ownership. A contracts with B, a New York registered distributor under article 12-A, for the purchase of motor fuel located outside the State. A and B agree that B will deliver the motor fuel to A's terminal in New York. B ships the motor fuel by common carrier C to A's terminal. B has imported motor fuel or caused motor fuel to be imported into this State. Although C transports the motor fuel into New York, it does so only as a common carrier.

Example 2:

Ownership. D contracts with E, a New York registered distributor under article 12-A, for the purchase of motor fuel located outside the State. D and E agree that D will take delivery of the motor fuel at E's terminal outside the State. D arranges for the transportation from E's premises to its New York terminal. D has imported motor fuel or caused motor fuel to be imported into New York State.

Example 3:

Directing and controlling the importation. F incorporates a wholly owned subsidiary, G. G has only nominal assets and no employees; its activities are conducted by the officers and employees of F. G purchases motor fuel from an out-of-state supplier and takes delivery of the fuel at the supplier's out-of-state terminal. G delivers the fuel to F's terminal in New York. F, as well as G, have imported motor fuel or caused it to be imported into New York, whether or not F has directly issued payment for the fuel and/or transportation.

Example 4:

Unregistered out-of-state supplier. H contracts with J, who is not a New York registered distributor under article 12-A, for the purchase of motor fuel located outside the State. H and J agree that J will deliver the motor fuel to H's terminal in New York. J ships the motor fuel by common carrier to H's terminal. H, as well as J, have imported motor fuel or caused motor fuel to be imported because H has purchased motor fuel located outside the State for delivery into the State from a seller who is not a New York registered distributor.

(3) New York State's jurisdiction includes New York's territorial waters. When sales or transfers of motor fuel occur when such motor fuel is on New York territorial waters prior to its being offloaded into a New York land-sited facility, each of the parties to such sales or transfers has caused the motor fuel to be imported into New York for use, distribution, storage or sale in this State. Additionally, if the party owning the motor fuel at the time offloading into a New York land-sited facility commences is not registered as a distributor of motor fuel pursuant to article 12-A of the Tax Law, the party owning the motor fuel immediately after its offloading has also caused the motor fuel to be imported into New York. The owner of motor fuel at the time that offloading is commenced at or into any terminal, facility or any other land-sited repository is responsible for payment of the taxes with respect to such motor fuel, and, in determining the amount of the tax, the motor fuel is to be measured by the amount of motor fuel which is offloaded into the terminal, facility or other land-sited repository. Persons owning motor fuel prior to the person owning it at the time offloading is commenced are not liable for the tax. If, however, the owner of the motor fuel at the time that offloading is commenced is not registered as a distributor under article 12-A of the Tax Law, then the owner of the motor fuel immediately after it is offloaded is jointly and severally liable for payment of the tax. (See section 412.1 of this Title.) In no event shall the tax be collected more than once with respect to any particular importation of motor fuel.

(4) Motor fuel brought into the State in the ordinary fuel tank connected with the engine of a motor vehicle, airplane, motor boat or other conveyance propelled by the use of such motor fuel, and to be used only in the operation thereof, will not be deemed imported within the meaning of this definition.

(d)Motor vehicle means any vehicle propelled by any power other than muscular, except:

(1) boats (other than pleasure craft),

(2) road building machinery,

(3) power shovels,

(4) tractor cranes,

(5) tractors used exclusively for agricultural purposes, and

(6) such vehicles as are run only on rails or tracks.

(e)Person includes an individual, copartnership, society, association, corporation, joint-stock company and any combination of individuals. Person also includes an executor, administrator, receiver, trustee or other fiduciary.

(f)Purchaser includes, in addition to its usual meaning, a distributor who or which transfers motor fuel from stock into a motor vehicle, or into a container from which motor fuel is supplied by the distributor to a motor vehicle or vehicles of the distributor or of others.

(g)

(1)Sale for purposes of article 12-A of the Tax Law by statutory definition constitutes a sale as defined in article 28 of such law. Thus in general, a sale is any transfer of title or possession or both, exchange or barter, rental, lease or license to use or consume, conditional or otherwise, in any manner or by any means whatsoever, for a consideration.

(2) In addition to the general meaning described in paragraph (1) of this subdivision, a sale also includes the transfer of motor fuel by a distributor into a motor vehicle or into a receptacle from which motor fuel will be supplied by the distributor to such distributor's own motor vehicles or the motor vehicles of others.

(3) A retail sale of motor fuel is any sale of motor fuel for purposes other than resale.

(h)Use.

For the purpose of the imposition of the tax, the term use means the exercise of any right or power over motor fuel by any person, whether or not a purchaser, including but not limited to the receiving, storage or any keeping or retention for any length of time, withdrawal from storage or any consumption of such motor fuel.

(i)

(1)Transporter means any person who or which has the use or control, or the right to the use or control of any means of transportation used in transporting motor fuel, including a barge, truck or pipeline.

(2)Importing transporter means any transporter who or which transports motor fuel in the State, where such motor fuel is being imported into the State for use, distribution, storage or sale in the State.

(j)

(1)Terminal means a motor fuel storage facility with a storage capacity of 50,000 gallons or more, excluding such a facility at which motor fuel is stored solely for its retail sale at such facility.

(2)Terminal operator means any person who or which has the use of or control over, or the right to use or control, a terminal.

(k)

(1)Filling station means any place, location or station where motor fuel is stored for sale primarily by delivery directly into the ordinary fuel tank connected with the engine of a motor vehicle to be consumed in the operation of such motor vehicle.

(2)Owner of a filling station means the owner, lessee or operator of a filling station.

(l) Highway.

For purposes of article 12-A of the Tax Law, highway means any highway, street, avenue, road, alley, boulevard, parkway, or other similar thoroughfare.

(m)

(1)Omnibus carrier means every person engaged in operating an omnibus line subject to the supervision of the State Commissioner of Transportation, including every person operating omnibuses used for the transportation of school children under a contract made pursuant to the provisions of the Education Law.

(2)Omnibus for purposes of paragraph (1) of this subdivision means every motor vehicle, with a seating capacity of more than seven persons in addition to the driver, used in the business of transporting passengers for hire. Such term does not include a taxicab.

(n)

(1)Taxicab licensee means every corporation, company, association, partnership and person engaged in operating a taxicab and licensed by local authorities to operate at a fixed rate of fare.

(2)Taxicab for purposes of paragraph (1) of this subdivision means every motor vehicle, other than an omnibus, used in the business of transporting passengers for hire. However, such term does not include vehicles rented or leased without drivers.

(o)Nonpublic school operator means any nonpublic elementary or secondary school which owns or leases and operates any vehicle solely and exclusively for its purposes.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 410.2