§ 301-A — Imposition of tax

§ 301-a. Imposition of tax. (a) General. Notwithstanding any other\nprovision of this chapter, or of any other law, there is hereby imposed\nupon every petroleum business for the privilege of engaging in business,\ndoing business, employing capital, owning or leasing property, or\nmaintaining an office in this state, a monthly tax for each or any part\nof a taxable month equal to the sum of the motor fuel component\ndetermined pursuant to subdivision (b) of this section, the highway\ndiesel motor fuel component determined pursuant to paragraph one of\nsubdivision (c) of this section, the non-highway diesel motor fuel\ncomponent determined pursuant to paragraph two of subdivision (c) of\nthis section and the residual petroleum product component determined\npursuant to subdivision (d) of this section.\n (b) Motor fuel component. (1) The motor fuel component shall be\ndetermined by multiplying the motor fuel and highway diesel motor fuel\nrate times the number of gallons of (1) motor fuel imported or caused to\nbe imported into this state by the petroleum business for use,\ndistribution, storage or sale in the state or (2) produced, refined,\nmanufactured or compounded in the state by the petroleum business during\nthe month covered by the return under this article. Provided, however,\nthat no motor fuel shall be included in the measure of the tax unless it\nshall have previously come to rest within the meaning of federal\ndecisional law interpreting the United States constitution, nor shall\nany motor fuel be included in the measure of the tax imposed by this\narticle more than once.\n (2) Motor fuel brought into this state in the fuel tank connecting\nwith the engine of a vessel propelled by the use of such motor fuel\nshall be deemed to constitute a taxable use of motor fuel for the\npurposes of this subdivision to the extent that the fuel is consumed in\nthe operation of the vessel in this state. Provided, however, that this\nparagraph shall not apply to (i) a recreational motor boat or (ii)\nsubsequent to August thirty-first, nineteen hundred ninety-four, a\ncommercial fishing vessel (as defined in subdivision (j) of section\nthree hundred of this article) if the motor fuel imported and consumed\nin this state is used to operate such vessel while it is engaged in the\nharvesting of fish for sale. Provided, further, that tax liability for\ngallonage that a vessel consumes shall be the tax liability with respect\nto the positive difference between the gallonage consumed in this state\nduring the reporting period and the gallonage purchased in this state\n(upon which the tax imposed by this section has been paid) during such\nperiod. A credit or refund shall be available for any excess of tax\nliability for gallonage purchased in this state during the period over\ntax liability on gallonage so consumed in this state during such period,\nwhich excess shall be presumed to have been used outside this state.\n (c) (1) Highway Diesel motor fuel component. (A) The highway diesel\nmotor fuel component shall be determined by multiplying the motor fuel\nand highway diesel motor fuel rate times (1) the number of gallons of\nhighway diesel motor fuel sold or used by a petroleum business in this\nstate during the month covered by the return under this article and (2)\nwith respect to any gallonage which prior thereto has not been included\nin the measure of the tax imposed by this article, times the number of\ngallons of highway diesel motor fuel (i) removed from a terminal, other\nthan by pipeline, barge, tanker or other vessel, (ii) delivered to a\nfilling station or, (iii) delivered into the fuel tank connecting with\nthe engine of a motor vehicle for use in the operation thereof,\nwhichever of the latter three events shall be the first to occur.\nProvided, however, that no highway diesel motor fuel shall be included\nin the measure of the tax unless it shall have previously come to rest\nwithin the meaning of federal decisional law interpreting the United\nStates constitution, nor decisional law, nor shall any highway diesel\nmotor fuel be included in the measure of the tax imposed by this article\nmore than once.\n (B) Highway diesel motor fuel brought into this state in the fuel tank\nconnecting with the engine of a vessel propelled by the use of such\ndiesel motor fuel shall be deemed to constitute a taxable use of diesel\nmotor fuel for the purpose of this paragraph to the extent of the fuel\nthat is consumed in the operation of the vessel in this state. Provided,\nhowever, this paragraph shall not apply to (i) a recreational motor boat\nor (ii) a commercial fishing vessel (as defined in subdivision (j) of\nsection three hundred of this article) if the highway diesel motor fuel\nimported into and consumed in this state is used to operate such\ncommercial fishing vessel while it is engaged in the harvesting of fish\nfor sale. Provided, further, that tax liability for gallonage that a\nvessel consumes in this state shall be the tax liability with respect to\nthe positive difference between the gallonage consumed in this state\nduring the reporting period and the gallonage purchased in this state\n(upon which the tax imposed by this section has been paid) during such\nperiod. A credit or refund shall be available for any excess of tax\nliability for gallonage purchased in this state during the period over\ntax liability on gallonage so consumed in this state during such period,\nwhich excess shall be presumed to have been used outside this state.\n (2) Non-highway diesel motor fuel component. The non-highway diesel\nfuel component shall be determined by multiplying the non-highway diesel\nmotor fuel rate times the number of gallons of non-highway diesel motor\nfuel sold or used by a petroleum business in this state during the month\ncovered by the return under this section. Provided, however, that no\nnon-highway diesel motor fuel shall be included in the measure of the\ntax unless it shall have previously come to rest within the meaning of\nfederal decisional law interpreting the United States constitution, nor\nshall any non-highway diesel motor fuel be included in the measure of\nthe tax imposed by this article more than once.\n (d) Residual petroleum product component. The residual petroleum\nproduct component shall be determined by multiplying the residual\npetroleum product rate times the number of gallons of residual petroleum\nproduct sold or used in this state by a petroleum business during the\nmonth covered by the return under this article. Provided, however, that\nno residual petroleum product shall be included in the measure of the\ntax unless it shall have previously come to rest within the meaning of\nfederal decisional law interpreting the United States constitution, nor\nshall any residual petroleum product be included in the measure of the\ntax imposed by this article more than once.\n (e) Motor fuel and highway diesel motor fuel rate. (1) The basic motor\nfuel and highway diesel motor fuel rate shall be ten and two-tenths\ncents per gallon.\n (2) Every year as of January first, the motor fuel and highway diesel\nmotor fuel rate then in effect on the immediately preceding December\nthirty-first shall be adjusted as follows: such rate shall be multiplied\nby a fraction the numerator of which is the sum of the monthly producer\nprice index (unadjusted) published by the bureau of labor statistics of\nthe United States department of labor for the category of commodities\ndesignated "refined petroleum products" for the twelve consecutive\nmonths ending with the month of August of the immediately preceding year\nand the denominator of which is the sum of the monthly producer price\nindex (unadjusted) published by the bureau of labor statistics of the\nUnited States department of labor for the category of commodities\ndesignated "refined petroleum products" for the twelve consecutive\nmonths ending with the month of August in the year prior to such\nimmediately preceding year, provided, however, that the adjusted rate\nshall not increase above or decrease below the rate in effect on the\nimmediately preceding December thirty-first by more than five percent.\n (3) Notwithstanding any other provision of this article, the per\ngallon rate with respect to "railroad diesel" shall be the adjusted\nmotor fuel and highway diesel motor fuel rate under paragraphs one and\ntwo of this subdivision minus one and three tenths cents per gallon.\n (f) Non-highway diesel motor fuel rate.\n (1) The basic non-highway diesel motor fuel rate shall be nine and\nthree-tenths cents per gallon.\n (2) Every year as of January first the non-highway diesel motor fuel\nrate then in effect on the immediately preceding December thirty-first\nshall be adjusted as follows: Such rate shall be multiplied by a\nfraction the numerator of which is the sum of the monthly producer price\nindex (unadjusted) published by the bureau of labor statistics of the\nUnited States department of labor for the category of commodities\ndesignated "refined petroleum products" for the twelve consecutive\nmonths ending with the month of August of the immediately preceding year\nand the denominator of which is the sum of the monthly producer price\nindex (unadjusted) published by the bureau of labor statistics of the\nUnited States department of labor for the category of commodities\ndesignated "refined petroleum products" for the twelve consecutive\nmonths ending with the month of August in the year prior to such\nimmediately preceding year, provided, however, that the adjusted rate\nshall not increase above or decrease below the rate in effect on the\nimmediately preceding December thirty-first by more than five percent.\n (3) Notwithstanding any other provision of this article, non-highway\ndiesel motor fuel which is "manufacturing gallonage," as such term is\ndefined in subdivision (m) of section three hundred of this article,\nshall be exempt from the measure of the non-highway diesel motor fuel\ncomponent of the tax imposed under this section.\n (g) Residual petroleum product rate. (1) The basic residual petroleum\nproduct rate shall be four cents per gallon.\n (2) Commencing April first, nineteen hundred ninety-one, the residual\npetroleum product rate shall be the product of the basic rate set forth\nin paragraph one of this subdivision multiplied by a fraction the\nnumerator of which is the sum of the monthly producer price index\n(unadjusted) published by the bureau of labor statistics of the United\nStates department of labor for the category of commodities designated\n"refined petroleum products" for the twelve consecutive months ending\nwith the month of November, nineteen hundred ninety, and the denominator\nof which is the sum of the monthly producer price index (unadjusted)\npublished by the bureau of the labor statistics of the United States\ndepartment of labor for the category of commodities designated "refined\npetroleum products" for the twelve consecutive months ending with the\nmonth of November, nineteen hundred eighty-nine.\n (3) Commencing on the first day of January, nineteen hundred\nninety-two, the residual petroleum product rate then in effect on the\nimmediately preceding December thirty-first shall be adjusted as\nfollows: Such rate shall be multiplied by a fraction the numerator of\nwhich is the sum of the monthly producer price index (unadjusted)\npublished by the bureau of labor statistics of the United States\ndepartment of labor for the category of commodities designated "refined\npetroleum products" for the twelve consecutive months ending with the\nmonth of August, nineteen hundred ninety-one and the denominator of\nwhich is the sum of the monthly producer price index (unadjusted)\npublished by the bureau of labor statistics of the United States\ndepartment of labor for the category of commodities designated "refined\npetroleum products" for the twelve consecutive months ending with the\nmonth of August, nineteen hundred ninety. Commencing on the first day of\nJanuary of nineteen hundred ninety-six and every year thereafter, the\nresidual petroleum product rate then in effect on the immediately\npreceding December thirty-first shall be adjusted as follows: Such rate\nshall be multiplied by a fraction the numerator of which is the sum of\nthe monthly producer price index (unadjusted) published by the bureau of\nlabor statistics of the United States department of labor for the\ncategory of commodities designated "refined petroleum products" for the\ntwelve consecutive months ending with the month of August of the\nimmediately preceding year and the denominator of which is the sum of\nthe monthly producer price index (unadjusted) published by the bureau of\nlabor statistics of the United States department of labor for the\ncategory of commodities designated "refined petroleum products" for the\ntwelve consecutive months ending with the month of August in the year\nprior to such immediately preceding year, provided, however, that the\nadjusted rate to take effect on January first, nineteen hundred\nninety-six and each January first thereafter shall not increase above or\ndecrease below the rate in effect on the immediately preceding December\nthirty-first by more than five percent.\n (4) Notwithstanding any other provision of this article, commencing\nJanuary first, nineteen hundred ninety-eight, residual petroleum product\nwhich is "manufacturing gallonage," as such term is defined in\nsubdivision (m) of section three hundred of this article, shall be\nexempt from the measure of the residual petroleum product component of\nthe tax imposed under this section.\n (h) Publication and rounding of rate. (1) The commissioner shall cause\nto be published in the section for miscellaneous notices in the state\nregister, and give other appropriate general notice of, the rate\nadjustment calculation and the resulting motor fuel and highway diesel\nmotor fuel rate, non-highway diesel motor fuel rate and residual\npetroleum product rate fixed by this section for the period commencing\non January first, two thousand twelve, and for each calendar year\nthereafter, no later than the immediately preceding first day of\nDecember. The calculation and publication of the rates of tax so fixed\nby provisions of this section shall not be included within paragraph (a)\nof subdivision two of section one hundred two of the state\nadministrative procedure act relating to the definition of a rule.\n (2) The rates determined pursuant to this section shall be rounded to\nthe nearest one-tenth of one cent.\n (i) Doing business, etc. Any petroleum business shall not be deemed to\nbe doing business, engaging in business, employing capital, owning or\nleasing property, or maintaining an office in this state, for the\npurposes of this article, by reason of (i) the maintenance of cash\nbalances with banks or trust companies in this state, or (ii) the\nownership of shares of stock or securities kept in this state, if kept\nin a safe deposit box, safe, vault or other receptacle rented for the\npurpose, or if pledged as collateral security, or if deposited with one\nor more banks or trust companies, or brokers who are members of a\nrecognized security exchange, in safekeeping or custody accounts, or\n(iii) the taking of any action by any such bank or trust company or\nbroker, which is incidental to the rendering of safekeeping or custodian\nservice to such petroleum business, or (iv) the maintenance of an office\nin this state by one or more officers or directors of the petroleum\nbusiness (where such business is a corporation) who are not employees of\nthe petroleum business if such petroleum business otherwise is not\nengaging in business or doing business in this state, and does not\nemploy capital or own or lease property in this state, or (v) the\nkeeping of books or records of a petroleum business in this state if\nsuch books or records are not kept by employees of such petroleum\nbusiness and such petroleum business does not otherwise engage in\nbusiness, do business, employ capital, own or lease property or maintain\nan office in this state, or (vi) any combination of the foregoing\nactivities.\n (j) Special provision relating to lack of jurisdiction to tax.\nNotwithstanding any provision of law to the contrary, if a person shall\nreceive any motor fuel in this state with respect to which this state\nwas without power to impose the tax under this article, and such motor\nfuel thereafter becomes subject to the taxing power of this state, then\nthe person possessing such motor fuel at such time shall be deemed a\npetroleum business and be liable for the tax under this article with\nrespect to such motor fuel and shall make the same reports and returns,\npay the same tax and be subject to all other provisions of this article\nrelating to petroleum businesses with respect to motor fuel.\n (l) Taxes imposed on qualified reservations. In furtherance of the\njoint administration of the taxes imposed by article twelve-A of this\nchapter and the taxes imposed by this article, the provisions of section\ntwo hundred eighty-four-e of this chapter concerning the sales of motor\nfuel and Diesel motor fuel on qualified Indian reservations shall apply\nto the payment and pass-through of the petroleum business tax in the\nsame manner and with the same force and effect as if the provisions of\nsuch section had been incorporated in full into this article, except to\nthe extent that any such provision is either inconsistent with a\nprovision of this article or not relevant thereto.\n (m) Special rate adjustment for certain vessels. Notwithstanding any\nprovision of this section to the contrary, the use of non-highway diesel\nmotor fuel in the engine of a vessel to propel such vessel shall be\nsubject to tax at the motor fuel and highway diesel motor fuel rate\nprovided for in this section, and shall be subject to the provisions of\nsection three hundred one-j of this article, including the adjustment\nset forth in paragraph four of subdivision (a) of such section three\nhundred one-j. A credit or refund shall be available to the extent tax\npaid on gallonage used to propel any such vessel exceeds the amount of\ntax due based on the tax rate set forth herein. Provided, however, that\nthe commissioner shall require such documentary proof to qualify for any\ncredit or reimbursement provided hereunder as the commissioner deems\nappropriate.\n