§ 1139 — Refunds

New York § 1139

• Jurisdiction: New York
• Law TAX: Tax
• Part 4: Administrative Provisions
• Art. 28: Sales and Compensating Use Taxes

Text

§ 1139. Refunds. (a) In the manner provided in this section the tax\ncommission shall refund or credit any tax, penalty or interest\nerroneously, illegally or unconstitutionally collected or paid if\napplication therefor shall be filed with the tax commission (i) in the\ncase of tax paid by the applicant to a person required to collect tax,\nwithin three years after the date when the tax was payable by such\nperson to the tax commission as provided in section eleven hundred\nthirty-seven, or (ii) in the case of a tax, penalty or interest paid by\nthe applicant to the tax commission, within three years after the date\nwhen such amount was payable under this article, or (iii) in the case of\na tax due from the seller, transferor or assignor and paid by the\napplicant to the tax commission where the applicant is a purchaser,\ntransferee or assignee liable for such tax pursuant to the provisions of\nsubdivision (c) of section eleven hundred forty-one of this chapter,\nwithin two years after the giving of notice by the tax commission to\nsuch purchaser, transferee or assignee of the total amount of any tax or\ntaxes which the state claims to be due from the seller, transferor or\nassignor. Such application shall be in such form as the tax commission\nshall prescribe. No refund or credit shall be made to any person of tax\nwhich he collected from a customer until he shall first establish to the\nsatisfaction of the tax commission, under such regulations as it may\nprescribe, that he has repaid such tax to the customer. Notwithstanding\nany other provision of this article, if the time to file an application\nfor refund or credit of any tax, penalty or interest would otherwise\nhave expired on or before December nineteenth, nineteen hundred\nsixty-nine, the time for filing such application is hereby extended to\nand including December twentieth, nineteen hundred sixty-nine, except\nthat it shall be further extended, as provided in subdivision (c) of\nsection eleven hundred forty-seven, where a taxpayer has consented in\nwriting to the extension of the period for assessment of additional tax.\n (b) If an application for refund or credit is filed with the\ncommissioner of taxation and finance as provided in subdivision (a) of\nthis section, the commissioner of taxation and finance shall grant or\ndeny such application in whole or in part within six months of receipt\nof the application in a form which is able to be processed and shall\nnotify such applicant by mail accordingly. Such determination shall be\nfinal and irrevocable unless such applicant shall, within ninety days\nafter the mailing of notice of such determination, petition the division\nof tax appeals for a hearing. After such hearing, the division of tax\nappeals shall mail notice of the determination of the administrative law\njudge to such applicant and to the commissioner of taxation and finance.\nSuch determination may be reviewed by the tax appeals tribunal as\nprovided in article forty of this chapter. The decision of the tax\nappeals tribunal may be reviewed as provided in section two thousand\nsixteen of this chapter.\n (c) Claim for credit or refund of an overpayment of sales tax shall be\nfiled by the taxpayer within three years from the time the return was\nfiled or two years from the time the tax was paid, whichever of such\nperiods expires the later, or if no return was filed, within two years\nfrom the time the tax was paid. If the claim is filed within the three\nyear period, the amount of the credit or refund shall not exceed the\nportion of the tax paid within the three years immediately preceding the\nfiling of the claim plus the period of any extension of time for filing\nthe return. If the claim is not filed within the three year period, but\nis filed within the two year period, the amount of the credit or refund\nshall not exceed the portion of the tax paid during the two years\nimmediately preceding the filing of the claim. Except as otherwise\nprovided in this section, if no claim is filed, the amount of a credit\nor refund shall not exceed the amount which would be allowable if a\nclaim had been filed on the date the credit or refund is allowed. No\nrefund or credit shall be made of a tax, interest or penalty paid after\na determination by the commissioner made pursuant to section eleven\nhundred thirty-eight unless it be found that such determination was\nerroneous, illegal or unconstitutional or otherwise improper, by the\ndivision of tax appeals pursuant to article forty of this chapter or by\nthe commissioner of his own motion, or in a proceeding for judicial\nreview provided for in section two thousand sixteen of this chapter, in\nwhich event a refund or credit shall be made of the tax, interest or\npenalty found to have been overpaid.\n (d) (1) Except in respect to an overpayment made on a return described\nin paragraph two of subdivision (a) of section eleven hundred thirty-six\nof this part or on a return described in subdivision (c) of section\neleven hundred thirty-seven-A of this part, interest shall be allowed\nand paid upon any refund made or credit allowed pursuant to this section\nexcept as otherwise provided in paragraph two of this subdivision or\nsubdivision (e) of this section and except that no interest shall be\nallowed or paid if the amount thereof would be less than one dollar.\nSuch interest shall be at the overpayment rate set by the commissioner\npursuant to section eleven hundred forty-two of this part, or if no rate\nis set, at the rate of six percent per annum from the date when the tax,\npenalty or interest refunded or credited was paid to a date preceding\nthe date of the refund check by not more than thirty days, provided,\nhowever, that for the purposes of this subdivision any tax paid before\nthe last day prescribed for its payment shall be deemed to have been\npaid on such last day. In the case of a refund or credit claimed on a\nreturn of tax which is filed after the last date prescribed for filing\nsuch return (determined with regard to extensions), or claimed on an\napplication for refund or credit, no interest shall be allowed or paid\nfor any day before the date on which the return or application is filed.\nFor purposes of this subdivision, a return or application for refund or\ncredit shall not be treated as filed until it is filed in processible\nform. A return or application is in a processible form if it is filed on\na permitted form, and contains the taxpayer's name, address and\nidentifying number and the required signatures, and sufficient required\ninformation (whether on the return or application or on required\nattachments) to permit the mathematical verification of tax liability\nshown on the return or refund or credit claimed on the application.\n (2) If a refund is made or a credit is allowed within three months\nafter the last date prescribed or permitted by extension of time for\nfiling a return on which the refund or credit was claimed or within\nthree months after the return was filed, whichever is later, or within\nthree months after an application for refund or credit is filed on which\nthat refund or credit was claimed, no interest will be allowed or paid\non that refund or credit.\n (e) The provisions of subdivisions (a), (b) and (c) of this section\nshall be applicable to applications for refund or credit pursuant to\nsection eleven hundred nineteen and subdivision (e) of section eleven\nhundred thirty-two, except that an application for credit may be made as\nprovided in such section or subdivision and except that no interest\nshall be allowed or paid upon any refund made or credit allowed pursuant\nto such section or such subdivision.\n (f) Where a consumer returns a motor vehicle to and receives a refund\nof the full purchase price, capitalized cost or a portion thereof from\nthe manufacturer in accordance with the provisions of section one\nhundred ninety-eight-a or subdivision five of section three hundred\nninety-six-p of the general business law, the commissioner of taxation\nand finance shall refund to such consumer any tax paid by the consumer\non the amount of the purchase price, capitalized costs and fees and\ncharges refunded by the manufacturer which is not in excess of the\nreceipts and proportionate to the receipts subject to tax. All the\nprovisions of this section shall apply to the refund authorized by this\nsubdivision, provided, however, that a request for a refund under this\nsubdivision shall be timely made if such request for a refund is made\nwithin three years of the date the refund from the manufacturer is\nreceived by a consumer pursuant to subdivision (c) of section one\nhundred ninety-eight-a of the general business law and further provided\nthat interest allowable under subdivision (d) of this section shall be\npayable from the date which is three months after the date the\napplication for refund in processible form is received.\n (g) The tax commission shall refund or credit any tax imposed, under\nsubdivision (a) of section eleven hundred five or section eleven hundred\nten, and paid on or after July first, nineteen hundred eighty-seven with\nrespect to:\n (i) tractors, trailers or semi-trailers, as such terms are defined in\narticle one of the vehicle and traffic law, and property installed on\nsuch vehicles for their equipping, maintenance or repair provided such\nvehicle is used in combination where the gross vehicle weight of such\ncombination exceeds twenty-six thousand pounds; and\n (ii) services, if performed upon tractors, trailers or semi-trailers\ndescribed in paragraph (i) of this subdivision or on property installed\non such vehicles for their equipping, maintenance or repair.\n All of the provisions of this section shall apply to the refund\nauthorized by this subdivision, provided, however, that interest\nallowable under subdivision (d) of this section shall be payable in\naccordance with such subdivision but only from the date the tax, penalty\nor interest refunded or credited was paid, or was deemed to have been\npaid, to March thirty-first, nineteen hundred eighty-eight and from the\ndate which is ninety days after the date the application for refund in\nprocessible form is received.\n (h)(1) Notwithstanding any provision of the law to the contrary,\npursuant to the provisions of this subdivision, the commissioner shall\nrefund or credit to (i) a credit card issuer tax paid pursuant to this\narticle in respect to motor fuel and diesel motor fuel purchased by a\ngovernment entity and paid for by such government entity with a credit\ncard issued by such credit card issuer or (ii) a fuel distributor tax\npaid pursuant to this article in respect to motor fuel and diesel motor\nfuel purchased by a government entity and paid for by such government\nentity with a credit card issued by a credit card issuer. Such credit\ncard issuer or such fuel distributor, as designated by the parties in a\nwritten designation to the commissioner, shall be the only person\neligible to receive such refund or credit, provided that: (A) such taxes\nwere actually paid to the commissioner; (B) the fuel so purchased by the\ngovernment entity is for its own use or consumption such that the\npurchase qualifies as an exempt purchase pursuant to an exception in\nparagraph five of subdivision (b) of section eleven hundred sixteen of\nthis article; (C) the credit card issuer or fuel distributor meets the\nrequirements of paragraph two of this subdivision; and (D) the\ncommissioner has not issued a notice pursuant to subdivision fourteen of\nsection eleven hundred forty-two of this part indicating that the credit\ncard issuer or fuel distributor is no longer allowed to claim a refund\nor credit under this subdivision for the fuel purchased by a particular\ngovernment entity. Such application for credit or refund shall be\nsubmitted after the end of the quarter in which the vendor of the motor\nfuel or diesel motor fuel was required to report the tax liability it\ncollected from the credit card issuer or fuel distributor pursuant to\nsection eleven hundred thirty-six of this part, but within the\napplicable statute of limitations as required under this section.\n (2) In order to be eligible to receive the refund or credit provided\nfor in paragraph one of this subdivision, the credit card issuer or fuel\ndistributor shall: (A) file with the commissioner a certificate of\nregistration and receive a certificate of authority pursuant to section\neleven hundred thirty-four of this part, if not already so registered,\nprovided, however, the credit card issuer or fuel distributor shall\nprovide such additional information as the commissioner may require; (B)\nestablish it has (i) not charged or otherwise received any tax, or any\namount purportedly as tax, from the government entity making the\npurchase; and (ii) filed a written consent signed by the chief fiscal\nofficer of the government entity stating that no tax was charged to such\ngovernment entity by the credit card issuer or fuel distributor, and\nthat therefore the government entity has no claim for a credit or refund\nrelating to its purchases of motor fuel or diesel motor fuel effected\nwith the credit card issuer's credit card and that no such claim has or\nwill be made by the government entity; (C) establish either that (i) the\nretail station or other vendor has been repaid the amount of tax it\ncharged to the government entity on the government entity's purchase of\nthe motor fuel or diesel motor fuel, or (ii) obtained the written\nconsent of the retail station or other vendor to the allowance of the\ncredit or refund to the credit card issuer or fuel distributor; and (D)\nprovide such detailed transactional and jurisdictional information to\nthe commissioner as the commissioner may require, in the form requested\nby the commissioner.\n (3)(A) The term "government entity" means an entity described in\nparagraph one, two or three of subdivision (a) of section eleven hundred\nsixteen of this article or any diplomatic mission or diplomatic\npersonnel who are permitted by the United States to purchase fuel and\ndiesel motor fuel exempt from the taxes imposed pursuant to this article\nand articles twelve-A and thirteen-A of this chapter.\n (B) The term "credit card issuer" means a person which finances the\nexempt purchase of motor fuel or diesel motor fuel by a government\nentity by means of a credit or other access card issued to the\ngovernment entity by such person.\n (C) The term "fuel distributor" means any person who is a registered\ndistributor under article twelve-A of this chapter and who is registered\nas a person required to collect tax pursuant to this article.\n (4) If any requirement of paragraph two of this subdivision is not\nmet, or if the credit card issuer and, where applicable, the fuel\ndistributor, receive a notice pursuant to subdivision fourteen of\nsection eleven hundred forty-two of this article, then an amount equal\nto the tax imposed by this article shall be collected from the\ngovernment entity, notwithstanding such entity's exempt status, and such\ngovernment entity shall be responsible for seeking any credit or refund\nwhich it may be allowed under this article.\n (5) The provisions of subdivisions (a), (b) and (c) of this section\nshall also apply to an application for refund or credit pursuant to this\nsubdivision, except to the extent that such subdivisions are\ninconsistent with this subdivision, and except that no interest shall be\nallowed or paid upon any refund made or credit allowed pursuant to this\nsubdivision. Any document required pursuant to this subdivision shall be\nin such form and contain such information as the commissioner shall\nprescribe.\n (6) A credit card issuer or fuel distributor designated pursuant to\nthis subdivision to receive the refund or credit and its officers,\ndirectors, employees, managers and members under a duty to act for such\ncredit card issuer or fuel distributor in complying with any requirement\nof this article and, where such credit card issuer or fuel distributor\nis a partnership or limited liability company, any member of such\npartnership or company shall be deemed to be persons required to collect\ntax and shall be personally liable in accordance with section eleven\nhundred thirty-three of this article with respect to the liabilities\ndescribed in subparagraph (E) of paragraph three of subdivision (a) of\nsection eleven hundred thirty-eight of this part. Nothing in this\nsubdivision shall be construed to require a credit card issuer to file a\nreturn pursuant to section eleven hundred thirty-six of this part unless\notherwise required to do so by another provision of this article or\nunless the commissioner, in his or her discretion, determines it is\nnecessary for the proper enforcement of this article for credit card\nissuers or distinct classes of such issuers to file such returns and\ngives notice of such determination to such issuers.\n (7) Nothing in this subdivision shall be construed to exempt (A) the\npurchase of motor fuel or diesel motor fuel by a government entity where\nit is not the ultimate user or consumer of such fuel, or (B) any sale by\na government entity of motor fuel or diesel motor fuel.\n