N.Y. Comp. Codes R. & Regs. tit. 20 § 412.4

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

Section 412.4 - Preliminary certification

Tax Law, § 285-a(3)

(a)

(1) If, due to the circumstances of delivery, it is not possible to issue a complete certification of tax payment in accordance with section 412.3 of this Part at the time of delivery, the Department of Taxation and Finance, upon application, may authorize the use of a preliminary certification. An example of where such authorization may be granted is the circumstance where motor fuel is sold through a terminal operated by a third person at which the seller has no agents or employees and the information necessary for a complete certification is not available.

(2) Authorization to issue a preliminary certification must be received from the department and an application for authorization to issue preliminary certifications must contain a detailed description of the applicant's method of operation (including where motor fuel is stored and the method of withdrawal from storage) and an explanation of why it is not possible to issue complete certifications of tax payment at the time of delivery. If the applicant is not a registered distributor under article 12-A of the Tax Law, the application must also contain a list of the applicant's suppliers and the names of the distributors who will be remitting the tax to the Department of Taxation and Finance. A seller authorized to issue preliminary certifications who is not a registered distributor must notify the department of any changes in its suppliers or in the names of the distributors who will be remitting the tax within five days of any such changes. Failure to do so results in revocation of the authorization to issue preliminary certifications. Preliminary certifications may be issued only under those circumstances and for those locations for which authorization is expressly granted by the department.

(b) The authorization to issue preliminary certifications is subject to review and may be revoked at any time by the Department of Taxation and Finance. In addition, the authorization of a registered distributor to issue preliminary certifications is immediately and automatically revoked upon cancellation of the distributor's registration. In order to continue to issue certifications in such instance, the person must submit a new application as a nondistributor.

(c) A preliminary certification must be signed by the seller or its authorized representative. If the seller is a motor fuel distributor registered pursuant to article 12-A of the Tax Law, no signature is required. The preliminary certification may be furnished by either of two methods:

(1) The seller may provide its customer with the following statement prior to delivery of motor fuel covering any and all deliveries for which a preliminary certification is authorized during a particular month:

(Seller) certifies that both the New York State motor fuel tax and prepaid sales tax required to be paid on any fuel sold to (purchaser) have been paid or have been assumed and will be paid by the seller or were passed through to the seller by his supplier. In addition, (seller) certifies that his current authorization to issue preliminary certifications, which is herewith provided to you or has previously been provided to you, has not been revoked and is currently in effect. (Seller) also certifies that the amounts of these taxes will be stated to you within 10 business days of any delivery and in a form acceptable to the New York State Department of Taxation and Finance.

This statement must contain the names of the seller and the purchaser and the month and year covered by the statement. The statement must be renewed every month.

(2) Alternatively, the seller may incorporate the following statement in its bill of lading, loading ticket, delivery receipt, or other shipping document given to the purchaser at the time of delivery of the motor fuel:

(Seller) certifies that both the New York State motor fuel tax and prepaid sales tax required to be paid for the motor fuel shown on this document have been paid or have been assumed and will be paid by the seller or were passed through to the seller by his supplier. In addition, (seller) certifies that his current authorization to issue preliminary certifications, which is herewith provided to you or has previously been provided to you has not been revoked and is currently in effect. (Seller) also certifies that the amounts of these taxes will be stated to the purchaser within 10 business days of this delivery and in a form acceptable to the New York State Department of Taxation and Finance.

(d) The preliminary certification, if accepted in good faith, will, until delivery of the complete certification or for 10 business days, whichever is sooner, relieve the purchaser of liability for payment of the motor fuel tax and the prepaid sales tax. In the event a preliminary certification is used, the seller must furnish the purchaser with a complete certification of tax payment within 10 business days of the delivery of the motor fuel. If the purchaser does not receive a properly completed certification of tax payment within such 10 business days, it may no longer avail itself of the protection of the preliminary certification. Accordingly, such purchaser is subject to personal liability for the payment of the motor fuel and prepaid sales taxes. Additionally, if a purchaser does not receive a properly completed certification of tax payment from a seller within 10 business days, it may not thereafter avail itself of the protection of any preliminary certifications issued by such seller.

(e) As a condition to constitute acceptance of a preliminary certification in good faith from a seller, the purchaser must have received from the seller at or prior to the time of receipt of the preliminary certification a copy of the seller's letter of authorization to issue a preliminary certification from the Department of Taxation and Finance. Such authorization must be in effect at the time of the receipt of any preliminary certification.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 412.4