§ 282-A — Imposition of excise tax on Diesel motor fuel

§ 282-a. Imposition of excise tax on Diesel motor fuel. 1. There is\nhereby levied and imposed with respect to Diesel motor fuel an excise\ntax of four cents per gallon upon the sale or use of Diesel motor fuel\nin this state.\n The excise tax is imposed on the first sale or use of Diesel motor\nfuel to occur which is not exempt from tax under this article. Provided,\nhowever, if the tax has not been imposed prior thereto, it shall be\nimposed on the removal of highway Diesel motor fuel from a terminal,\nother than by pipeline, barge, tanker or other vessel, or the delivery\nof Diesel motor fuel to a filling station or into the fuel tank\nconnecting with the engine of a motor vehicle for use in the operation\nthereof whichever event shall be first to occur. The tax shall be\ncomputed based upon the number of gallons of Diesel motor fuel sold,\nremoved or used or the number of gallons of Diesel fuel delivered into\nthe fuel tank of a motor vehicle, as the case may be. Nothing in this\narticle shall be construed to require the payment of such excise tax\nmore than once upon the same Diesel motor fuel. Nor shall the collection\nof such tax be made applicable to the sale or use of Diesel motor fuel\nunder circumstances which preclude the collection of such tax by reason\nof the United States constitution and of laws of the United States\nenacted pursuant thereto. Provided, further, no Diesel motor fuel shall\nbe included in the measure of the tax unless it shall have previously\ncome to rest within the meaning of federal decisional law interpreting\nthe United States constitution. All tax for the period for which a\nreturn is required to be filed shall be due on the date limited for the\nfiling of the return for such period, regardless of whether a return is\nfiled as required by this article or whether the return which is filed\ncorrectly shows the amount of tax due.\n 2. No person shall sell or use Diesel motor fuel within this state\n(other than a retail sale not in bulk or self-use of Diesel motor fuel\nwhich has been the subject of a retail sale), import or cause the\nimportation of Diesel motor fuel into the state or produce, refine,\nmanufacture or compound Diesel motor fuel within the state unless such\nperson shall be registered by the department as a distributor of Diesel\nmotor fuel. Provided, the commissioner shall not register as a\ndistributor of Diesel motor fuel any person who is engaged solely in one\nor both of the following: (i) any person who makes or offers to make a\nretail sale not in bulk of such fuel or (ii) any person who purchases\nDiesel motor fuel in bulk in this state for the sole purpose of\nself-use. The commissioner may, however, register as a distributor of\nkero-jet fuel only a fixed base operator who makes no sales of kero-jet\nfuel other than retail sales not in bulk delivered directly into the\nfuel tank of an airplane for use in the operation of such airplane and\nwho makes no other sales of diesel motor fuel. Such registration shall\napply only to the wholesale purchase of kero-jet fuel and the retail\nsale of such fuel not in bulk for delivery directly into the fuel tank\nof an airplane for use in the operation thereof. Provided, further, that\nif the commissioner is satisfied that full registration is not necessary\nin order to protect tax revenues, the commissioner may limit or modify\nthe requirement of registration as a distributor with respect to any\nperson otherwise required to register solely because such person engages\nin the sale of non-highway Diesel motor fuel where such person makes\nsales of non-highway Diesel motor fuel to the consumer solely for the\npurposes described in subparagraph (i) of paragraph (b) of subdivision\nthree of this section, provided that if the commissioner so limits or\nmodifies such registration requirement with respect to such person, then\nsuch registration shall apply only to the importation, sale and\ndistribution of such non-highway Diesel motor fuel. The commissioner may\nalso waive any other requirement imposed by this article on such a\ndistributor. All the provisions of section two hundred eighty-three of\nthis article shall apply to applicants for registration and registrants\nwith respect to Diesel motor fuel, and, in addition, distributors with\nrespect to Diesel motor fuel shall be subject to all other provisions of\nthis article relating to distributors of motor fuel, including but not\nlimited to, the keeping of records, the fixing, determination and\npayment of tax and filing of returns. Provided, further, the\ncommissioner may limit or modify the requirement of registration as a\ndistributor with respect to any person who produces for self use\n"unqualified biodiesel."\n 3. (a) The tax imposed by this section shall not apply to the sale of\nuntaxed Diesel motor fuel to or the use of such fuel by an organization\ndescribed in paragraph one or two of subdivision (a) of section eleven\nhundred sixteen of this chapter where such Diesel motor fuel is used by\nsuch organization for its own use or consumption.\n (b) The tax on the incidence of sale or use imposed by subdivision one\nof this section shall not apply to: (i) the sale or use of non-highway\nDiesel motor fuel, but only if all of such fuel is consumed other than\non the public highways of this state (except for the use of the public\nhighway by farmers to reach adjacent farmlands); provided, however, this\nexemption shall in no event apply to a sale of non-highway Diesel motor\nfuel which involves a delivery at a filling station or into a repository\nwhich is equipped with a hose or other apparatus by which such fuel can\nbe dispensed into the fuel tank of a motor vehicle (except for delivery\nat a farm site which qualifies for the exemption under subdivision (g)\nof section three hundred one-b of this chapter); or (ii) a sale to the\nconsumer consisting of not more than twenty gallons of water-white\nkerosene to be used and consumed exclusively for heating purposes; or\n(iii) the sale to or delivery at a filling station or other retail\nvendor of water-white kerosene provided such filling station or other\nretail vendor only sells such water-white kerosene exclusively for\nheating purposes in containers of no more than twenty gallons; or (iv) a\nsale of kero-jet fuel to an airline for use in its airplanes or a use of\nkero-jet fuel by an airline in its airplanes; or (v) a sale of kero-jet\nfuel by a registered distributor of Diesel motor fuel to a fixed base\noperator registered under this article as a distributor of kero-jet fuel\nonly where such fixed base operator is engaged solely in making or\noffering to make retail sales not in bulk of kero-jet fuel directly into\nthe fuel tank of an airplane for the purpose of operating such airplane;\nor (vi) a retail sale not in bulk of kero-jet fuel by a fixed base\noperator registered under this article as a distributor of kero-jet fuel\nonly where such fuel is delivered directly into the fuel tank of an\nairplane for use in the operation of such airplane; or (vii) the sale of\npreviously untaxed qualified biodiesel to a person registered under this\narticle as a distributor of Diesel motor fuel other than (A) a retail\nsale to such person or (B) a sale to such person which involves a\ndelivery at a filling station or into a repository which is equipped\nwith a hose or other apparatus by which such qualified biodiesel can be\ndispensed into the fuel tank of a motor vehicle; or (viii) the sale of\npreviously untaxed highway Diesel motor fuel by a person registered\nunder this article as a distributor of Diesel motor fuel to a person\nregistered under this article as a distributor of Diesel motor fuel\nwhere the highway Diesel motor fuel is either: (A) being delivered by\npipeline, railcar, barge, tanker or other vessel to a terminal, the\noperator of which terminal is registered under section two hundred\neighty-three-b of this article, or (B) within such a terminal where it\nhas been so delivered. Provided, however, that the exemption set forth\nin this subparagraph shall not apply to any highway Diesel motor fuel if\nit is removed from a terminal, other than by pipeline, barge, tanker or\nother vessel.\n (c) Nothing in this article shall exempt non-highway diesel motor fuel\nfrom the imposition of the tax under this section, if such non-highway\ndiesel motor fuel is intended for use on the waterways of the state\nincluding any other waterways bordering on the state, for operating\npleasure or recreational motor boats thereon.\n 4. The tax imposed by this section on Diesel motor fuel shall be\npassed through by the seller and included as part of the selling price\nto each purchaser of such fuel. Provided, however, the amount of the tax\nimposed by this section may be excluded from the selling price of Diesel\nmotor fuel where (i) a sale of Diesel motor fuel is made to an\norganization described in paragraph (a) of subdivision three of this\nsection solely for the purpose stated therein; (ii) a sale of\nnon-highway Diesel motor fuel is made to a consumer but only if such\nnon-highway Diesel motor fuel is not delivered to a filling station, nor\ndelivered into a storage tank which is equipped with a hose or other\napparatus by which such fuel can be dispensed into the fuel tank of a\nmotor vehicle; or (iii) the sale to or delivery at a filling station or\nother retail vendor of water-white kerosene provided such filling\nstation or other retail vendor only sells such water-white kerosene\nexclusively for heating purposes in containers of no more than twenty\ngallons; or (iv) a sale of kero-jet fuel is made to an airline for use\nin its airplanes.\n 5. All the provisions of this article relating to the administration\nand collection of the taxes on motor fuel, except section two hundred\neighty-three-a of this article, shall be applicable to the tax imposed\nby this section with such limitation as specifically provided for in\nthis article with respect to Diesel motor fuel and with such\nmodification as may be necessary to adapt the language of such\nprovisions to the tax imposed by this section. With respect to the bond\nor other security required by subdivision three of section two hundred\neighty-three of this article, the commissioner, in determining the\namount of bond or other security required for the purpose of securing\ntax payments, shall take into account the volume of non-highway Diesel\nmotor fuel and other Diesel motor fuel sold for exempt purposes by a\ndistributor of Diesel motor fuel during prior periods as a factor\nreducing potential tax liability along with any other relevant factors\nin determining the amount of security required. With respect to the bond\nrequired to be filed prior to registration as a Diesel motor fuel\ndistributor, no bond shall be required of an applicant upon a finding of\nthe applicant's fiscal responsibility, as reflected by such factors as\nnet worth, current assets and liabilities, and tax reporting and payment\nhistory, and the department shall not provide for a minimum bond of\nevery applicant.\n