§ 182-A — Franchise tax on certain oil companies

§ 182-a. Franchise tax on certain oil companies. 1. Notwithstanding\nany other provision of this chapter, or of any other law, for the period\nbeginning with taxable years commencing on or after the first day of\nJuly, nineteen hundred eighty-one, but including that portion of any\ntaxable year commencing prior thereto to the extent of that portion of\nsuch year which includes the period which commences with the first day\nof July, nineteen hundred eighty-one, and ending with but not including\ntaxable years commencing on or after the first day of July, nineteen\nhundred eighty-three, but including that portion of any taxable year\ncommencing prior thereto to the extent of that portion of such year\nwhich includes the period which terminates with the thirtieth day of\nJune, nineteen hundred eighty-three, an annual tax is hereby imposed\nupon every oil company equal to three-quarters of one per centum of its\ngross receipts from sales of petroleum, or the portion thereof allocated\nwithin the state as hereinafter provided, for the privilege of\nexercising its corporate franchise, or of doing business, or of\nemploying capital, or of owning or leasing property in this state in a\ncorporate or organized capacity, or of maintaining an office in this\nstate, for all or any part of each of its taxable years. In no event\nshall the tax imposed by this section be less than two hundred fifty\ndollars.\n 2. As used in this section: (a) The term "oil company" means every\ncorporation formed for or engaged in the business of importing or\ncausing to be imported (by a person other than a corporation subject to\ntax under this section) into this state for sale in this state,\nextracting, producing, refining, manufacturing, or compounding\npetroleum. Provided, however, a corporation which is principally engaged\nin selling fuel oil (excluding diesel motor fuel) used for residential\npurposes shall not be considered an oil company. For purposes of this\nsection, petroleum shall include, but shall not be limited to, gasoline,\naviation fuel, kerosene, diesel motor fuel, benzol, distillate fuels,\nresidual oil, crude oil or any similar product.\n (b) The term "gross receipts from sales of petroleum" means all\nreceipts from sales of petroleum, whether from within or without the\nUnited States, whether in cash, credits or property of any kind or\nnature, without any deduction therefrom on account of the cost of the\nproperty sold, the cost of materials used, labor or services, or other\ncosts, interest or discount paid, or any other expense whatsoever.\nReceipts received by reason of any sale of fuel oil (excluding diesel\nmotor fuel) or liquified or liquifiable gases (except when sold in\ncontainers of less than one hundred pounds) used for residential\npurposes shall not be included in gross receipts.\n However, to prevent the multiple application of the tax imposed by\nthis section, gross receipts shall not include the receipts from any\nsale for resale to a purchaser which is an oil company subject to tax\nunder this section. It shall be presumed that no receipts are receipts\nfrom a sale for resale to such purchaser unless such purchaser furnishes\nthe oil company with a resale certificate in such form and under such\nterms and conditions as the tax commission may prescribe and such\ncertificate is accepted in good faith by such oil company. In addition,\nit shall be presumed that no receipts are receipts received by reason of\nany sale of fuel oil (excluding diesel motor fuel) or liquified or\nliquifiable gases (except when sold in containers of less than one\nhundred pounds) used for residential purposes unless the purchaser\nfurnishes the oil company with a residential use certificate, in such\nform, at such times and under such terms and conditions as the tax\ncommission may prescribe, and such certificate is accepted in good faith\nby such oil company. Provided, however, where a purchaser is a consumer\nof such fuel oil or liquified or liquifiable gases, such purchaser shall\nnot be required to furnish such certificate and the oil company making\nsuch sale shall be required to maintain records of such transactions in\nsuch form and manner as the tax commission may prescribe. In order to\nassist the purchaser from an oil company in completing its residential\nuse certificate, the tax commission may require such other purchasers of\npetroleum as it deems necessary to furnish their suppliers with\nresidential use certificates.\n (c) The term "corporation" includes a corporation, joint-stock company\nor association and any business conducted by a trustee or trustees\nwherein interest or ownership is evidenced by certificate or other\nwritten instrument.\n (d) The term "taxable year" means the oil company's taxable year for\nfederal income tax purposes, or the part thereof during which such oil\ncompany is subject to tax under this section.\n (e) The term "petroleum" shall mean crude oil, plant condensate,\ngasoline, aviation fuel, kerosene, diesel motor fuel, benzol,\npetrochemical feedstocks, distillate fuels, residual oil, and liquified\nor liquifiable gases such as butane, ethylene, or propane.\n 3. The portion of the gross receipts from sales of petroleum of an oil\ncompany to be allocated within the state shall be determined by\nmultiplying such gross receipts by the ratio which the gross receipts\nfrom sales of petroleum where shipments are made to points within the\nstate bear to the gross receipts from sales of petroleum within and\nwithout the state. Receipts received by reason of any sale of fuel oil\nor liquified or liquifiable gases used for residential purposes and\nreceipts received from a sale for resale as described in paragraph (b)\nof subdivision two of this section shall be included as a receipt in the\ncomputation of the allocation percentage.\n 4. Every oil company subject to tax under this section shall keep such\nrecords of its business in such form as the tax commission may require,\nand such records shall be preserved for a period of three years, except\nthat the tax commission may consent to their destruction within that\nperiod or may require that they be kept longer.\n 5. Every oil company subject to tax hereunder shall annually file on\nor before the fifteenth day of the third month following the close of\nits taxable year a return which shall state the gross receipts from\nsales of petroleum for the period covered by such return. Returns shall\nbe filed with the tax commission in a form prescribed by it setting\nforth such information as the tax commission may prescribe. Every oil\ncompany subject to tax hereunder which ceases to exercise its franchise\nor to be subject to the tax imposed by this section shall transmit to\nthe tax commission a return on the date of such cessation or at such\nother time as the tax commission may require covering each year or\nperiod for which no return was theretofore filed. Notwithstanding the\nforegoing provisions of this subdivision, the tax commission may require\nany oil company to file an annual return, which shall contain any data\nspecified by it, regardless of whether the oil company is subject to tax\nunder this section.\n 6. If any provision of this section conflicts with any other provision\ncontained in this article, the provisions of this section shall control,\nbut the provisions of this article which do not conflict with the\nprovisions of this section shall apply with respect to the taxes under\nthis section, insofar as they are, or may be made, applicable.\n 7. Any corporation which is subject to tax under section one hundred\neighty-three, one hundred eighty-four, one hundred eighty-five or one\nhundred eighty-six of this article shall not be subject to tax under\nthis section.\n 8. An oil company which is not incorporated or organized under the\nlaws of this state shall not be deemed to be doing business, employing\ncapital, owning or leasing property, or maintaining an office in this\nstate, for the purposes of this section, by reason of (a) the\nmaintenance of cash balances with banks or trusts companies in this\nstate, or (b) the ownership of shares of stock or securities kept in\nthis state, if kept in a safe deposit box, safe, vault or other\nreceptacle rented for the purpose, or if pledged as collateral security,\nor if deposited with one of banks or trust companies, or brokers who are\nmembers of a recognized security exchange, in safekeeping or custody\naccounts, or (c) the taking of any action by any such bank or trust\ncompany or broker, which is incidental to the rendering of safekeeping\nor custodian service to such oil company, or (d) the maintenance of an\noffice in this state by one or more officers or directors of the oil\ncompany who are not employees of the oil company if the company\notherwise is not doing business in this state, and does not employ\ncapital or own or lease property in this state, or (e) the keeping of\nbooks or records of an oil company in this state if such books or\nrecords are not kept by employees of such oil company and such oil\ncompany does not otherwise do business, employ capital, own or lease\nproperty or maintain an office in this state, or (f) any combination of\nthe foregoing activities.\n 9. Any receiver, referee, trustee, assignee or other fiduciary, or any\nofficer or agent appointed by any court, who conducts the business of\nany oil company shall be subject to the tax imposed by this section in\nthe same manner and to the same extent as if the business were conducted\nby the agents or officers of such oil company. A dissolved oil company\nwhich continues to conduct business shall also be subject to the tax\nimposed by this section.\n 10. (a) Where a false or fraudulent resale certificate or residential\nuse certificate has been furnished to an oil company or to any other\nperson, the corporation or person furnishing such certificate shall be\nsubject to a penalty equal to three per centum of the gross receipts\nwhich would have otherwise been taxable to such oil company if such\ncertificate had not been furnished to such company or to such other\nperson. Such penalty shall be assessed, collected and paid in the same\nmanner as the addition to tax with respect to a deficiency due to fraud\nprovided for in subsection (e) of section one thousand eighty-five of\nthis chapter is assessed, collected and paid.\n (b) If a purchaser which is required by paragraph (b) of subdivision\ntwo of section one hundred eighty-two-a to provide an oil company or\nother supplier with a residential use certificate fails to provide such\ncertificate or provides a certificate which understates the amount of\nfuel oil (excluding diesel motor fuel) or liquified or liquifiable gases\n(except when sold in containers of less than one hundred pounds) used\nfor residential purposes, unless it is shown that such failure or\nunderstatement is due to reasonable cause and not to willful neglect,\nthere shall, upon notice and demand by the tax commission and in the\nsame manner as tax, be paid by such purchaser a penalty of one hundred\ndollars for each such failure or for each certificate containing such\nunderstatement; provided, however, in no event may more than five\nthousand dollars in such penalties be imposed against such purchaser in\nany calendar year.\n 11. All taxes, interest and penalties collected or received by the\ncommissioner under the taxes and penalties imposed by this section shall\nbe deposited daily in one account with such responsible banks, banking\nhouses or trust companies as may be designated by the comptroller, to\nthe credit of the comptroller. Such an account may be established in one\nor more of such depositories. Such deposits shall be kept separate and\napart from all other money in the possession of the comptroller. The\ncomptroller shall require adequate security from all such depositories.\nOf the total revenue collected or received under this section, the\ncomptroller shall retain in his hands such amount as the commissioner\nmay determine to be necessary for refunds under this section, out of\nwhich amount the comptroller shall pay any refunds to which oil\ncompanies shall be entitled under the provisions of this section. After\nreserving the amount required to pay such refunds, the comptroller shall\nprior to April first, nineteen hundred ninety-four, deposit weekly\nforty-five percent of all remaining revenue in the mass transportation\noperating assistance fund to the credit of the public transportation\nsystems operating assistance account therein, and fifty-five percent of\nsuch revenue in such fund to the credit of the metropolitan mass\ntransportation operating assistance account therein, established by\nsection eighty-eight-a of the state finance law, and on and after April\nfirst, nineteen hundred ninety-four, after reserving the amount to pay\nsuch refunds, the comptroller shall deposit weekly all the revenues\nremaining in such mass transportation operating assistance fund to the\ncredit of such public transportation systems operating assistance\naccount therein. After reserving the amount to pay such refunds, the\ncomptroller shall on and after April first, nineteen hundred ninety-six,\ndeposit weekly forty-five percent of all remaining revenue in such mass\ntransportation operating assistance fund to the credit of such public\ntransportation systems operating assistance account therein, and\nfifty-five percent of such revenue in such fund to the credit of such\nmetropolitan mass transportation operating assistance account therein.\n