§ 285-B — Presumption of taxability--Diesel motor fuel

§ 285-b. Presumption of taxability--Diesel motor fuel. 1. Except with\nrespect to the exemptions from the excise tax on Diesel motor fuel set\nforth in subdivision three of section two hundred eighty-two-a of this\narticle, no person shall purchase Diesel motor fuel in this state unless\nthe taxes imposed by this article have been assumed by a registered\ndistributor of Diesel motor fuel in accordance with a certification\nunder subdivision four of this section or paid by such distributor and,\nin each of such instances, except in the case of an exemption from the\npass through of such tax authorized in subdivision four of such section\ntwo hundred eighty-two-a, are passed through to such purchaser. In\naddition to any other civil and criminal penalties which may apply, any\nperson who purchases Diesel motor fuel without having received a\ncertification from the seller in accordance with subdivision four of\nthis section shall be jointly and severally liable to pay the taxes\nimposed by this article with respect to such Diesel motor fuel.\n 2. For purposes of the proper administration of this article and to\nprevent evasion of the taxes imposed on Diesel motor fuel by this\narticle, it shall be presumed that all Diesel motor fuel sold, received\nor possessed in the state is subject to the taxes imposed by this\narticle until the contrary is established. It shall be further presumed\nthat any person so selling, receiving or possessing such Diesel motor\nfuel is responsible for payment of the excise taxes on such fuel.\n 3. (a) The claim for or exemption from tax provided for in\nsubparagraphs (i), (ii), (iii), (iv), and (vi) of paragraph (b) of\nsubdivision three of section two hundred eighty-two-a of this article\nshall be established by means of an exempt transaction certificate. If\nany such exemption is applicable, such certificate shall be provided by\nthe purchaser to the seller at the time of or prior to delivery of the\nDiesel motor fuel. Such exempt transaction certificate shall set forth\nthe name and address of the purchaser and the basis of the exemption and\nshall be signed by such purchaser and by the seller. Such certificate\nshall be in such form and contain such other information as the\ncommissioner shall require. Where a proper and complete exempt\ntransaction certificate has been furnished and accepted by the seller in\ngood faith, such certificate under such circumstance shall relieve the\nseller of the burden of proving that the Diesel motor fuel covered by\nsuch certificate is exempt from tax by reason of subparagraph (i), (ii),\n(iii), (iv), or (vi) of paragraph (b) of subdivision three of such\nsection two hundred eighty-two-a. Any purchaser who furnishes to his\nseller a false or fraudulent exempt transaction certificate for the\npurpose of establishing an exemption from the tax imposed by section two\nhundred eighty-two-a of this article shall be jointly and severally\nliable for the tax imposed by such section. In lieu of an exempt\ntransaction certificate, the commissioner may provide for the\nestablishment of such exemption by means of a procedure or other\ndocument which he or she deems appropriate so as to secure the revenues\nfrom the excise tax on Diesel motor fuel. Provided, further, in the case\nof the exemption provided by subparagraph (i) of paragraph (b) of\nsubdivision three of section two hundred eighty-two-a of this article,\nthe commissioner shall provide for an alternative procedure or other\ndocument signed only by the seller, such as a metered delivery ticket,\nfor the establishment of such exemption in those cases where such\ncommissioner is satisfied that the use of such alternative procedure or\nother document will not jeopardize the revenues from the excise tax on\nDiesel motor fuel.\n (b) A claim for the exemption from tax provided for in subparagraph\n(v) of paragraph (b) of subdivision three of section two hundred\neighty-two-a of this article shall be established by means of an\ninterdistributor sale certificate. If such exemption is applicable, such\ncertificate shall be provided by the purchaser to the seller at the time\nof or prior to delivery of the Diesel motor fuel. Such certificate shall\nset forth the name and address of the purchaser, the purchaser's\nregistration number, an affirmation by such purchaser that the purchaser\nis registered as a distributor and that such registration has not been\nsuspended or cancelled and shall be signed by such purchaser and by the\nseller. Such certificate shall be in such form and contain such other\ninformation as the commissioner shall require. Where a proper and\ncomplete interdistributor sale certificate has been furnished and\naccepted by the seller in good faith, such certificate under such\ncircumstance shall relieve the seller of the burden of proving that the\nDiesel motor fuel covered by such certificate is exempt from tax by\nreason of subparagraph (v) of paragraph (b) of subdivision three of such\nsection two hundred eighty-two-a. For purposes of this paragraph, a\nseller shall not have accepted such certificate in good faith if the\npurchaser's registration is invalid because it has been suspended or\ncancelled, or if the purchaser is not registered, and the commissioner\nhas furnished registered distributors with information identifying all\nthose persons then validly registered as distributors of Diesel motor\nfuel and those persons whose registrations have been suspended or\ncancelled. Any purchaser who furnishes to his seller a false or\nfraudulent interdistributor sale certificate for the purpose of\nestablishing an exemption from the tax imposed by section two hundred\neighty-two-a of this article shall be jointly and severally liable for\nthe tax imposed by such section.\n 4. (a) Upon each sale, other than a retail sale not in bulk, the\nseller must give to the purchaser and the purchaser shall receive at the\ntime of delivery of such Diesel motor fuel, a certification containing\nsuch information as the commissioner of taxation and finance shall\nrequire which, unless otherwise provided in this paragraph, shall\ninclude a statement to the effect: (i) if such seller is a distributor\nregistered under this article, that he has assumed the payment of or\npaid the taxes imposed by this article and, in each case, is passing\nthrough such taxes; or (ii) that such seller is passing through such\ntaxes which were so previously assumed or paid by an identified\ndistributor registered under this article, and passed through to him. In\nthe case of a transaction described in paragraph (a) or (b) of\nsubdivision three of section two hundred eighty-two-a of this article\nwhich is exempt from the imposition of the taxes imposed on Diesel motor\nfuel or where the seller, pursuant to and in accordance with subdivision\nfour of such section, has not passed through such taxes to the\npurchaser, the certificate, in lieu of either of the foregoing\nstatements, shall state that, based upon good faith reliance on an\nexempt transaction certificate (or such other similar document or\nprocedure prescribed by the commissioner of taxation and finance), an\ninterdistributor sales certificate or the exemption document provided by\nan organization described in paragraph one or two of subdivision (a) of\nsection eleven hundred sixteen of this chapter, as the case may be, such\nmotor fuel is being sold under the circumstances described in such\nparagraph (a) or (b) of subdivision three of section two hundred\neighty-two-a or, in the case of the exemption from the pass through, is\nbeing sold under the circumstances specified in subdivision four of such\nsection and that the taxes imposed by this article are not applicable or\nare not being passed through, as the case may be.\n (b) In the case of a sale of Diesel motor fuel subject to the excise\ntaxes and in all cases where the excise taxes are required to be passed\nthrough, if the certification required by this subdivision has been\nfurnished to the purchaser at the time of delivery of such fuel and\naccepted in good faith, the burden of proving that the taxes imposed by\nthis article were assumed or paid by a distributor registered as such\nunder this article and passed through shall be solely on the seller.\n (c) Where the certification required under this subdivision is not\nfurnished by the seller at the time of delivery of the Diesel motor\nfuel, it shall be presumed that the taxes imposed by this article are\ndue and owing and have not been assumed or paid by a distributor\nregistered as such under this article and that the purchaser in such\ncase 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 Diesel motor fuel, the commissioner of taxation and finance\nmay authorize the delivery of the certification required under this\nsubdivision at a time after the delivery of the Diesel motor fuel which\nis the subject of the sale under the limited circumstances it shall\nprescribe and upon such terms and conditions it shall deem necessary to\nensure collection of the taxes imposed by this article and the tax\nimposed by section eleven hundred three of this chapter.\n * 5. Upon each sale of Diesel motor fuel, other than a sale that is\notherwise exempt under this article, the distributor must charge the tax\nimposed by this article to the purchaser on each gallon sold. If the\ntaxes imposed 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