N.Y. Comp. Codes R. & Regs. tit. 20 § 412.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 412.1 - Tax imposition

Tax Law, §§ 284, 284-a, 284-c, 285, 285-a, 287

(a)

(1) Except as provided for in this section, every distributor must pay an aggregate excise tax of eight cents per gallon on each gallon of motor fuel which it imports or causes to be imported into New York State for use, distribution, storage or sale in the State. The liability for the tax is imposed on the owner of the motor fuel being imported at the time the offloading of such motor fuel is commenced at or into any terminal, facility or any other land-sited repository. 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. The person who owns such fuel while it is held in the truck, vessel or other means of transportation at the time of the commencement of offloading of the fuel is the party responsible for the payment of the tax. Provided, however, when motor fuel which is being imported for use, distribution, storage or sale in the State is sold after it has been loaded by the transporter but before it has been offloaded at or into any terminal, facility or other land-sited repository in the State and, in such instance, the name of the immediate purchaser does not appear on the current listing of registered distributors prepared by the Department of Taxation and Finance, the person selling to such purchaser is jointly and severally liable for the taxes with respect to such motor fuel. In addition, the seller in that instance shall be presumed to have knowingly aided and abetted a person who is not registered as a distributor in the importation of motor fuel for the purpose of registration cancellation or suspension under section 283 (4)(iii) of the Tax Law.

(2) Where the circumstances of an importation transaction indicate that a person or persons, other than the person indicated as the owner of the motor fuel at the time of offloading, is directing or controlling such transaction, the person or persons directing or controlling the importation is jointly and severally liable for the payment of the tax. Provided further, if the owner of the motor fuel at the time that offloading is commenced is not registered as a distributor of motor fuel pursuant to 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 with such unregistered owner.

(3) In no event shall the tax be collected more than once with respect to a particular importation of motor fuel.

(b) Except as provided for in this section, every distributor must pay an aggregate excise tax of eight cents per gallon on each gallon of motor fuel which it produces, refines, manufactures or compounds in New York State. The liability for the tax is imposed on the distributor at the time the production, refining, manufacturing or compounding has been completed and the resulting product or by-product constitutes motor fuel as defined in this Title. In determining the amount of the tax, the motor fuel is to be measured by the amount of motor fuel which exists upon completion of the production, refining, manufacturing or compounding processes in the State. Where motor fuel is produced, refined, manufactured or compounded in the State from ingredients which in and of themselves are motor fuel and the taxes on such ingredients imposed pursuant to articles 12-A, 28 and 29 of the Tax Law with respect to motor fuel have been assumed or paid as evidenced by certifications of tax payment (see sections 412.3 and 412.4 of this Part), the quantity of such ingredients shall be used as a credit against the amount of motor fuel produced, refined, manufactured or compounded in this State to the extent such taxes have been assumed or paid thereon. In no event shall the tax in the aggregate be collected more than once with respect to the production, refining, manufacturing or compounding of motor fuel in New York State.

(c)

(1) Motor fuel may be imported or caused to be imported into New York State for use, distribution, storage or sale in the State and motor fuel may be produced, refined, manufactured, compounded or sold in New York State by a distributor without payment of the motor fuel tax imposed pursuant to article 12-A of the Tax Law under circumstances which preclude the collection of such tax by reason of the United States Constitution and any laws enacted pursuant thereto. Motor fuel may also be imported or caused to be imported, or produced, refined, manufactured or compounded in New York State without payment of the motor fuel tax by:

(i) the United States of America, and any of its agencies and instrumentalities;

(ii) New York State, or any of its agencies, instrumentalities, public corporations (including a public corporation created pursuant to agreement or compact with another state or Canada) or political subdivisions (including school districts); or

(iii) a hospital which holds a current operating certificate issued by the New York State Department of Health pursuant to the authority of section 2805 of the Public Health Law or by the New York State Department of Mental Hygiene pursuant to the authority of article 31 of the Mental Hygiene Law and which qualifies as an exempt organization pursuant to section 1116 (a)(4) of the Tax Law, if such motor fuel is for such entities' own use or consumption. (See Part 414 of this Title for exemptions.)

(2) Where motor fuel is imported into the State or caused to be imported into the State for use, distribution, storage or sale in the State or when motor fuel is produced, refined, manufactured or compounded in the State, as described in paragraph (1) of this subdivision or in any other event, the aggregate excise tax of eight cents per gallon must be paid on each gallon of motor fuel sold (as a sale is defined in section 410.2 of this Title) by a distributor if the tax has not been imposed prior to its sale in this State and such sale is not precluded from the imposition of tax.

Example:

A qualified hospital imports motor fuel into New York State for use in its own motor vehicles and is accordingly not required to pay the tax in respect of such importation. Occasionally such motor fuel is supplied by the hospital into motor vehicles of others. The motor fuel tax imposed pursuant to article 12-A of the Tax Law must be paid by the hospital on each gallon of motor fuel supplied to the motor vehicles of others.

(3) If any person, firm, association or corporation receives any motor fuel in such form and under such circumstances as to preclude the collection of the motor fuel tax from a distributor by reason of the Constitution and Laws of the United States and thereafter sells or uses any of such motor fuel under circumstances as may be subject to tax, such person, firm, association or corporation is considered a distributor of motor fuel with respect to such sale or use. All the provisions of article 12-A of the Tax Law relating to distributors will apply to such person, firm, association or corporation.

(d)

(1) A distributor of motor fuel who or which stores motor fuel in the State on which such distributor has paid the taxes imposed pursuant to article 12-A of the Tax Law will be allowed an adjustment in arriving at the gallons of motor fuel subject to tax on account of the gallons of motor fuel the distributor establishes to the satisfaction of the Department of Taxation and Finance were lost due to shrinkage, evaporation and handling. In no event will such allowance exceed two percent of the motor fuel stored.

(2) Provided further, that in arriving at the gallons of motor fuel subject to tax there is also allowed an adjustment on account of the gallons of motor fuel lost or destroyed due to accident, such as a fire, at the time such gallons of motor fuel were being held or transported for sale other than at retail.

(3) The burden of proving that any motor fuel is not so subject to tax is upon the person claiming the adjustment.

(e) The motor fuel tax imposed pursuant to article 12-A of the Tax Law must be remitted with a monthly return which is required to be filed on or before the 20th day of the month following the month for which the return is made. (See Part 413 of this Title.)

(f) Whenever motor fuel is subject to tax pursuant to this Title, such tax is required to be passed through to any purchaser of such fuel. Whenever such motor fuel is sold for purposes of resale, the seller must give the purchaser a certification of tax payment when the fuel is delivered. (See sections 412.3 and 412.4 of this Part for information with respect to the certifications of tax payment.) A seller of motor fuel is relieved of the requirement to pass through the tax if it receives from the purchaser a properly completed certification (as prescribed by the Department of Taxation and Finance) indicating that the purchaser is a duly registered or licensed distributor of, or dealer in, motor fuel in another state or province of a foreign country, and will immediately export the motor fuel being purchased to an identified location in that state or province for the purpose of selling such motor fuel.

(g) Unless the motor fuel tax was not required to be passed through to it pursuant to subdivision (f) of this section, no person may purchase motor fuel in this State unless the tax required to be paid has been paid or assumed by a distributor of motor fuel registered under article 12-A of the Tax Law and except as provided in such subdivision, no person may purchase motor fuel in this State, excluding a purchase at retail, without having received from the seller a certification of tax payment to the effect that such tax has been paid or assumed by such a distributor.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 412.1