§ 289-C — Refunds

New York § 289-C

• Jurisdiction: New York
• Law TAX: Tax
• Art. 12-A: Tax On Gasoline and Similar Motor Fuel

Text

§ 289-c. Refunds. 1. The tax imposed by this article though payable by\nthe distributor, shall be borne by the purchaser and when paid by the\ndistributor shall be deemed to have been so paid for the account of the\npurchaser. No person shall sell, advertise, or offer for sale motor\nfuel, separate from the tax herein imposed; and the price paid by the\npurchaser for motor fuel on which the tax has been paid, if such price\nbe not less than the amount of the tax thereon, shall be presumed for\nthe purposes of this section to have included the tax.\n 1-a. (a) Any person selling motor fuel to an organization described in\nparagraph one or two of subdivision (a) of section eleven hundred\nsixteen of this chapter or a hospital included in the organizations\ndescribed in paragraph four of such subdivision for its own use or\nconsumption or selling kero-jet fuel to an airline for use in its\nairplanes may exclude the amount of the tax or taxes imposed by this\narticle from the selling price thereof.\n (b) (i) Any person registered as a distributor of motor fuel selling\naviation gasoline to a fixed base operator registered under this article\nas a "retail seller of aviation gasoline" may exclude the amount of the\ntax or taxes imposed by this article from the selling price thereof\nwhere such aviation gasoline is delivered to the fixed base operator's\npremises and placed in a storage facility used exclusively for the\npurpose of fueling airplanes. The commissioner may register as a "retail\nseller of aviation gasoline" a fixed base operator who makes no sales of\naviation gasoline other than retail sales not in bulk delivered directly\ninto the fuel tank of an airplane and who makes no sales of motor fuel\nother than the foregoing described retail sales of aviation gasoline\ndelivered directly into the fuel tank of airplanes (provided, in no\nevent, shall kero-jet fuel be construed to constitute motor fuel). Such\nregistration shall apply only to the wholesale purchase of only aviation\ngasoline by such "retail seller of aviation gasoline" and the retail\nsale by such person of aviation gasoline not in bulk for delivery\ndirectly into the fuel tank of an airplane for use in the operation\nthereof. In no event shall the registration as a "retail seller of\naviation gasoline" be deemed to be an authorization to import, or cause\nto be imported, motor fuel including aviation gasoline, into this state.\nAll the provisions of section two hundred eighty-three-a (except\nsubdivision one) of this article shall be applicable to the registration\nof "retail sellers of aviation gasoline" with the same force and effect\nas if the language of such section had been incorporated in full herein\nand had expressly referred to the registration of "retail sellers of\naviation gasoline", with such modification as may be necessary in order\nto adapt the language so as to apply to the registration of applicants\nfor and persons registered as "retail sellers of aviation gasoline".\nProvided, however, that if the commissioner is satisfied that certain\nrequirements of such foregoing provisions with respect to registration\nare not necessary in order to protect tax revenues, the commissioner may\nwaive, limit or modify such requirements with respect to the\nregistration of "retail sellers of aviation gasoline". The department,\nwhere applicable, shall coordinate the registration process with respect\nto a fixed base operator applying for registration as a "retail seller\nof aviation gasoline" and as a distributor of kero-jet fuel only with\nthe purpose of eliminating any duplicative information or procedures\nrequired of the applicant. Every person registered as a "retail seller\nof aviation gasoline" shall keep complete and accurate records of\npurchases and sales of aviation gasoline (including individual invoices\nidentifying each purchase or sale of aviation gasoline) to and from such\n"retail seller of aviation gasoline". The commissioner shall, if it is\ndetermined to be appropriate, establish a requirement that a certificate\nbe given by a "retail seller of aviation gasoline" prior to the sale of\naviation gasoline pursuant to this paragraph.\n (ii) Any person registered as a distributor of motor fuel and also\nregistered as a "retail seller of aviation gasoline" may exclude the\namount of the tax or taxes imposed by this article from the selling\nprice thereof on such retail sale of aviation gasoline.\n (c) (i) Any person making a sale of motor fuel under the circumstances\ndescribed in paragraph (a), or subparagraph (i) of paragraph (b) of this\nsubdivision or making a sale of Diesel motor fuel under the\ncircumstances described in subdivision four of section two hundred\neighty-two-a of this article whereby the tax or taxes imposed by this\narticle have not been passed through to the purchaser, shall be allowed\na refund or credit of the tax or taxes imposed by this article in the\namount of such tax or taxes paid by such person on such motor fuel or\nDiesel motor fuel being sold or included in the price paid by such\nperson for such fuel. Claims for refunds or credits shall be presented,\nand refunds or credits shall be made, only as authorized by the\ncommissioner under such rules and regulations as he may prescribe.\n (ii) Any airline registered as a distributor of motor fuel who imports\naviation gasoline into this state for use in its airplanes and a\ndistributor described in subparagraph (ii) of paragraph (b) of this\nsubdivision shall be allowed a refund or credit of the tax or taxes\nimposed by this article in the amount of such tax or taxes paid by such\nperson on such aviation gasoline so imported and used exclusively in the\noperation of its airplanes. The refund or credit shall accrue at the\ntime the aviation gasoline is delivered and stored as prescribed in\nsubparagraph (i) of paragraph (b) of this subdivision. Claims for\nrefunds or credits shall be presented and refunds or credits shall be\nmade only as authorized by the commissioner, including documentary proof\nrequired to substantiate refund claims.\n * (d)(i) Any person may exclude the amount of the tax or taxes imposed\nby this article on E85 from the selling price thereof where E85 is\ndelivered to a filling station and placed in a storage tank of such\nfilling station for such E85 to be dispensed directly into a motor\nvehicle for use in the operation of such vehicle. Any person making a\nsale of E85 under the circumstances described herein, whereby the tax or\ntaxes otherwise imposed by this article have not been passed through to\nthe purchaser, shall be allowed a refund or credit of the taxes imposed\nby this article in the amount of such tax or taxes paid by such person\non such E85 being sold or included in the price paid by such person for\nsuch fuel. Claims for refunds or credits shall be presented, and refunds\nor credits shall be made, only as authorized by the commissioner under\nsuch rules and regulations as the commissioner may prescribe.\n (ii) Any person may exclude twenty percent of the amount of the tax or\ntaxes imposed by this article from the selling price with respect to any\nsale of B20. Any person making a sale of B20 upon which such person does\nnot pass on more than eighty percent of the taxes otherwise imposed by\nthis article, where such person has purchased such B20 with the entire\namount of the taxes imposed by this article included in such person's\npurchase price, shall be entitled to a refund or credit equal to the\namount of the tax or taxes paid under this article on such B20 in excess\nof eighty percent of the tax or taxes imposed by this article on diesel\nmotor fuel. Claims for refunds or credits shall be presented, and\nrefunds or credits shall be made, only as authorized by the commissioner\nunder such rules and regulations as the commissioner may prescribe.\n (iii) Any person may exclude the amount of the tax or taxes imposed by\nthis article on CNG or hydrogen from the selling price thereof. Any\nperson making a sale of CNG or hydrogen, whereby the tax or taxes\notherwise imposed by this article have not been passed through to the\npurchaser, shall be allowed a refund or credit of any taxes imposed by\nthis article in the amount of such tax or taxes paid by such person on\nsuch CNG or hydrogen being sold or included in the price paid by such\nperson for such CNG or hydrogen. Claims for refunds or credits shall be\npresented, and refunds or credits shall be made, only as authorized by\nthe commissioner under such rules and regulations as the commissioner\nmay prescribe.\n * NB Repealed September 1, 2026\n 2. However, the intention of this article is to place the ultimate\nburden resulting from such tax, so far as possible, on persons who use\nthe public highways of the state for operating motor vehicles thereon,\nor who use the waterways of the state including any other waterways\nbordering on the state for operating pleasure or recreational motor\nboats thereon, and the following refunds are provided to that end,\nsubject to the provisions of subdivision five of this section.\n 3. (a) Except as otherwise provided in paragraph (b) of this section,\nany person who shall buy any motor fuel or diesel motor fuel, on which\nthe tax imposed by this article shall have been paid, and shall consume\nthe same in any manner except in the operation of a motor vehicle upon\nor over the public highways of this state, or in the operation of a\npleasure or recreational motor boat upon or over the waterways of the\nstate including waterways bordering on the state, shall be reimbursed\nthe amount of such tax in the manner and subject to the conditions\nherein provided except that there shall be no reimbursement of tax paid\non motor fuel or diesel motor fuel taken out of this state in a fuel\ntank connected with the engine of a motor vehicle and consumed outside\nof this state.\n (b) Any omnibus carrier which shall buy any motor fuel on which the\naggregate tax imposed by section two hundred eighty-four and section two\nhundred eighty-four-a of this chapter, or any diesel motor fuel on which\nthe aggregate tax imposed by section two hundred eighty-two-a and\nsection two hundred eighty-two-b of this chapter, shall have been paid,\nshall be reimbursed, in the case of such motor fuel, the amount paid\npursuant to such sections two hundred eighty-four and two hundred\neighty-four-a in excess of four cents per gallon, and in the case of\ndiesel motor fuel, the amount paid pursuant to such sections two hundred\neighty-two-a and two hundred eighty-two-b in excess of six cents per\ngallon, provided such motor fuel or diesel motor fuel has been consumed\nby such carrier in the operation of an omnibus in this state. Any\ntaxicab licensee, as defined by subdivision ten of section two hundred\neighty-two of this chapter, who or which shall buy any motor fuel on\nwhich the aggregate tax imposed by section two hundred eighty-four and\nsection two hundred eighty-four-a of this chapter or any diesel motor\nfuel on which the aggregate tax imposed by section two hundred\neighty-two-a and section two hundred eighty-two-b of this chapter, shall\nhave been paid, shall be reimbursed, in the case of such motor fuel, the\namount paid pursuant to such sections two hundred eighty-four and two\nhundred eighty-four-a in excess of four cents per gallon, and in the\ncase of diesel motor fuel, the amount paid pursuant to such sections two\nhundred eighty-two-a and two hundred eighty-two-b in excess of six cents\nper gallon, provided such motor fuel or diesel fuel has been consumed by\nsuch licensee in the operation of a taxicab in this state.\n (c) All claims for reimbursement shall be in such form and contain\nsuch information as the commissioner shall prescribe and shall be filed\nwithin three years from (i) the date of the purchase, in the case of the\npurchaser; or (ii) the date of the sale, in the case of the seller, of\nthe motor fuel so subject to reimbursement. Every such claim shall\ninclude a certificate by or on behalf of the party presenting the same\nto the effect that it is just, true and correct, that no part thereof\nhas been paid, except as stated therein, and that the balance therein\nstated is actually due and owing. The claimant shall satisfy the\ndepartment that the claimant has borne the tax and that the motor fuel\nhas been consumed by the claimant in a manner other than the operation\nof a motor vehicle upon or over the public highways of this state, the\noperation of a pleasure or recreational motorboat upon or over the\nwaterways of the state including waterways bordering on the state or, in\nthe case of an omnibus carrier, taxicab licensee, nonpublic school\noperator or volunteer ambulance service, that the claimant has borne the\ntax and that the amount claimed is the amount of such tax reimbursable\nunder paragraph (b), (d), (e) or (f) of this subdivision. The department\nmay require such further information or proof as it shall deem necessary\nfor the administration of such claim. Claims for reimbursement approved\nby the department shall be paid from revenues collected under this\narticle and deposited to the credit of the comptroller as hereinafter\nprovided; but no such claims shall be paid unless the department is\nsatisfied that the amount of the tax for which the reimbursement is\nclaimed has actually been collected by the state. The amount of any\nerroneous or excessive payment to a claimant for reimbursement may be\ndetermined by the department and may be recovered from such claimant in\nthe same manner as a tax imposed by this article, provided, however,\nthat any such determination shall be made within three years after the\ndate of such erroneous or excessive payment.\n (d) Any omnibus carrier which shall buy motor fuel on which the\naggregate tax imposed by section two hundred eighty-four, section two\nhundred eighty-four-a and section two hundred eighty-four-c of this\nchapter or any diesel motor fuel on which the aggregate tax imposed by\nsection two hundred eighty-two-a, section two hundred eighty-two-b and\nsection two hundred eighty-two-c of this chapter shall have been paid,\nshall be reimbursed the amount paid provided such motor fuel or diesel\nmotor fuel has been consumed by such carrier in the operation of an\nomnibus in local transit service in this state pursuant to a certificate\nof convenience and necessity issued by the commissioner of\ntransportation of this state or by the interstate commerce commission of\nthe United States or pursuant to a contract, franchise or consent\nbetween such carrier and a city having a population of more than one\nmillion inhabitants, or any agency of such city.\n (e) Any nonpublic school operator which shall buy motor fuel on which\nthe aggregate tax imposed by section two hundred eighty-four, section\ntwo hundred eighty-four-a and section two hundred eighty-four-c of this\nchapter or any diesel motor fuel on which the aggregate tax imposed by\nsection two hundred eighty-two-a, section two hundred eighty-two-b and\nsection two hundred eighty-two-c of this chapter shall have been paid,\nshall be reimbursed the amount paid provided such motor fuel or diesel\nmotor fuel has been consumed by such nonpublic school operator\nexclusively in educational related activities.\n (f) Any voluntary ambulance service, as defined in section thirty\nhundred one of the public health law, which shall buy motor fuel on\nwhich the tax or taxes imposed by this article shall have been paid\nshall be reimbursed the amount of such tax in the manner and subject to\nthe conditions herein set forth, provided such motor fuel has been\nconsumed by such volunteer ambulance service vehicle in the course of\noperating within the state.\n (g) An organization described in paragraph one or two of subdivision\n(a) of section eleven hundred sixteen of this chapter or a hospital\nincluded in the organizations described in paragraph four of such\nsubdivision, or a fire company or fire department, as defined in section\nthree of the volunteer firefighters' benefit law, or a volunteer rescue\nsquad supported in whole or in part by tax money where any such entity\nis the purchaser, user or consumer of motor fuel or diesel motor fuel in\na vehicle owned and operated by it and used exclusively for its\npurposes, or an airline where it has purchased kero-jet fuel for use in\nits airplanes shall be reimbursed the amount of the taxes on motor fuel\nand diesel motor fuel imposed by or pursuant to the authority of this\narticle included in the price paid for such motor fuel or diesel motor\nfuel.\n (h) Notwithstanding any provision of the law to the contrary, tax paid\npursuant to this article in respect to motor fuel or diesel motor fuel\npurchased by a government entity and paid for by such government entity\nwith a credit card shall be reimbursed or credited to the issuer of the\ncredit card used for such purchase or the fuel distributor designated in\naccordance with and subject to the provisions of sections eleven hundred\nthirty-eight, eleven hundred thirty-nine, eleven hundred forty-two, and\neleven hundred forty-five of this chapter concerning such credit card\nissuers, fuel distributors and government entities. Such provisions\nshall apply with respect to the administration of and procedure with\nrespect to the taxes imposed under this article in the same manner and\nwith the same force and effect as if the language of such provisions had\nbeen incorporated in full into this article and had expressly referred\nto the tax under this article, with such modifications as may be\nnecessary in order to adapt the language of such provisions to the taxes\nimposed by this article, except to the extent that any such provision is\nnot relevant to this article.\n 5. If the provisions of this section providing for reimbursement of\nthe amount of the tax paid be held unconstitutional by a court of\ncompetent jurisdiction, the other constitutional provisions of this\narticle nevertheless shall stand, it being the express intention of the\nlegislature that even though such provision for reimbursement be held\nunconstitutional the tax provided for by this article shall be imposed,\ncollected and distributed as provided in this article, regardless in\nthat event of the manner in which the motor fuel is consumed.\n 6. Moneys paid in error under this article may be refunded. Where\nmotor fuel, upon which the tax imposed by this article has been paid, is\nsold, under such circumstances that, if the tax had not been paid, the\nsale would not have been taxable under this article, the tax may be\nrefunded. Refunds shall be made only as authorized by the commissioner\nunder such rules and regulations as the commissioner may prescribe\nprovided an application therefor is filed with the commissioner within\nthree years from the time the erroneous payment was made, or tax paid\nmotor fuel was so sold. Refunds authorized by the commissioner shall be\npaid from revenues collected under this article and deposited to the\ncredit of the comptroller as hereinafter provided.\n 7. If an agreement under the provisions of section two hundred\neighty-eight (extending the period for determination of tax imposed by\nthis article) is made within the three-year period for the filing of an\napplication for refund under subdivision six of this section or, in the\ncase of a claim for reimbursement under subdivision three of this\nsection, if such agreement is made within three years from the date of\npurchase or sale (as the case may be) of the motor fuel, the period for\nfiling an application for refund or a claim for reimbursement shall not\nexpire prior to six months after the expiration of the period within\nwhich determination may be made pursuant to the agreement or any\nextension thereof.\n 8. With respect to motor fuel imported, manufactured or sold or\npurchased in this state, and with respect to the sale or use of Diesel\nmotor fuel, a refund or credit shall be allowed a distributor or a\npurchaser of the tax required to be paid pursuant to this article upon\nsuch motor fuel or Diesel motor fuel in the amount of such tax paid by\nor included in the price paid by a distributor or such purchaser to the\nseller thereof if such fuel was exported from this state for sale or use\noutside this state, such distributor or such purchaser, as the case may\nbe, exporting such fuel is duly registered with or licensed by the\ntaxing authorities of the state to which such fuel is exported as a\ndistributor or a dealer in the fuel being so exported, and in connection\nwith such exportation such fuel was immediately shipped to an identified\nfacility in the state to which such fuel is exported, and the applicant\ncomplies with all requirements and rules and regulations of the\ncommissioner, including evidentiary requirements, relating thereto; and\nprovided further that upon receipt of a claim for refund in processible\nform, interest shall be allowed and paid at the overpayment rate set by\nthe commissioner pursuant to subdivision twenty-sixth of section one\nhundred seventy-one of this chapter from the due date of the return to\nthe date immediately preceding the date of the refund check except no\nsuch interest shall be allowed or paid if the refund check is mailed\nwithin thirty days of such receipt and except no interest shall be\nallowed or paid if the amount thereof would be less than one dollar. For\nthe purpose of this article, "export" from this state shall in no event\nbe construed to include motor fuel or diesel motor fuel taken out of\nthis state in the fuel tank connected with the engine of a motor vehicle\nor any conveyance and consumed in the operation thereof outside of this\nstate.\n 9. With respect to any organization described in paragraph four of\nsubdivision (a) of section eleven hundred sixteen of this chapter which\nis eligible pursuant to this section for reimbursement of the tax\nrequired to be paid pursuant to this article, upon receipt of a claim\nfor reimbursement in processible form, interest shall be allowed and\npaid at the overpayment rate set by the commissioner of taxation and\nfinance pursuant to subdivision twenty-sixth of section one hundred\nseventy-one of this chapter from the date of the application for\nreimbursement to the date immediately preceding the date of the\nreimbursement check except no such interest shall be allowed or paid if\nthe reimbursement check is mailed within forty-five days of such receipt\nand except no interest shall be allowed or paid if the amount thereof\nwould be less than one dollar. Provided, however, the department shall\nprocess applications for reimbursement as expeditiously as possible.\n