§ 285-A — Presumption of taxability

§ 285-a. Presumption of taxability. 1. No person shall purchase motor\nfuel in this state, excluding a purchase at retail, unless the taxes\nimposed by this article have been assumed by a distributor registered\nunder this article in accordance with a certification under subdivision\nthree of this section or paid by such distributor, and, in each of such\ninstances, are passed through to such purchaser. In addition to any\nother civil and criminal penalties which may apply, any person who\npurchases motor fuel without having received a certification from the\nseller in accordance with subdivision three of this section shall be\njointly and severally liable to pay the taxes imposed by this article\nwith respect to such motor fuel.\n 2. For the purpose of the proper administration of this article and to\nprevent evasion of the tax on motor fuel imposed by and pursuant to this\narticle, it shall be presumed that all motor fuel imported, manufactured\nor sold, received or possessed in the state is intended for use,\ndistribution, storage or sale in the state and subject to the taxes\nimposed by this article until the contrary is established. It shall be\nfurther presumed that all motor fuel so imported, manufactured or sold,\nreceived or possessed in the state by any person, other than motor fuel\ndelivered into the ordinary fuel tank connected with the engine of a\nmeans of conveyance in order to propel it, or in small drums or similar\ncontainers, which such person cannot otherwise account for, is subject\nto the taxes imposed by this article and such person is responsible for\npayment of such taxes. Provided, however, a distributor of motor fuel\nwho imports, manufactures or sells and stores in the state or who\npurchases and stores motor fuel in the state on which he has paid the\ntaxes imposed by this article shall be allowed an adjustment in arriving\nat the gallons subject to the taxes imposed by such section on account\nof the gallons the distributor establishes were lost due to shrinkage,\nevaporation and handling; provided, however, such allowance shall not\nexceed two percent of the fuel stored. Provided, further, that in\narriving at the gallons of motor fuel subject to the taxes imposed by\nthis article, there shall be allowed an adjustment on account of gallons\nlost or destroyed due to an accident, such as fire, and at the time of\nsuch loss or destruction were being held or transported for sale other\nthan at retail. The burden of proving that any motor fuel is not so\nsubject shall be upon the person so responsible for such payment with\nrespect to such fuel.\n 3. (a) Upon each sale of motor fuel, other than a sale at retail, the\nseller must give to the purchaser and the purchaser shall receive at the\ntime of delivery of such motor fuel, a certification containing such\ninformation as the tax commission shall require which shall include a\nstatement to the effect: (i) if such seller is a distributor registered\nunder this article, that he assumed the payment of or paid the taxes\nimposed by this article and, in each case, is passing through such\ntaxes; or (ii) that such seller is passing through such taxes which were\nso previously assumed or paid by an identified distributor registered\nunder this article, and passed through to him.\n (b) If the certification required by this subdivision has been\nfurnished to the purchaser at delivery and accepted in good faith, the\nburden of proving that the taxes imposed by this article were assumed or\npaid by a distributor registered as such under this article and passed\nthrough shall be solely on the seller.\n (c) Where the certification required under this paragraph is not\nfurnished by the seller at delivery of motor fuel, it shall be presumed\nthat the taxes imposed by this article have not been assumed or paid by\na distributor registered as such under this article and that the\npurchaser in such case is jointly and severally liable for such taxes.\n (d) If, due to the circumstances of delivery, it is not possible to\nissue a certification required under this subdivision at the time of\ndelivery of motor fuel, the tax commission may authorize the delivery of\nthe certification required under this paragraph at a time after the\ndelivery of the motor fuel which is the subject of the sale under the\nlimited circumstances it shall prescribe and upon such terms and\nconditions it shall deem necessary to ensure collection of the taxes\nimposed by this article and the tax imposed by section eleven hundred\ntwo of this chapter.\n * 4. Upon each sale of motor fuel, other than a sale that is otherwise\nexempt under this article, the distributor must charge the tax imposed\nby this article to the purchaser on each gallon sold. If the taxes\nimposed by this article have not already been assumed or paid by a\ndistributor on any quantity of such fuel for any reason, including, but\nnot limited to, the expansion of such fuel as a result of temperature\nfluctuation, the distributor must remit such taxes to the commissioner\non the return for the period in which such sale was made.\n * NB Effective September 1, 2023\n