§ 503-A — Imposition of additional tax

§ 503-a. Imposition of additional tax. 1. In addition to the tax\nimposed by section five hundred three of this chapter, and in addition\nto any other tax or fee imposed by law, there is hereby imposed on and\nafter July first, nineteen hundred sixty-eight and before January first,\nnineteen hundred ninety-six an additional tax on highway use for the\nprivilege of operating any vehicular unit, other than an omnibus, upon\nthe public highways of this state, and on and after October first,\nnineteen hundred sixty-nine and before January first, nineteen hundred\nninety-six an additional tax on highway use for the privilege of\noperating upon the public highways of this state any omnibus which is a\nvehicular unit as defined in subdivision eight of this section. Such\ntax shall be upon the carrier except that where the carrier is not the\nowner of such vehicular unit, the tax shall be a joint and several\nliability upon both.\n 2. Such tax shall be at a composite rate determined by adding together\n(i) a fuel tax component which shall be equivalent to the rate per\ngallon in effect under the taxes on motor fuel and diesel motor fuel\nimposed by article twelve-a of this chapter and (ii) a sales tax\ncomponent, which shall be equivalent to the rate per gallon applicable\nto the receipts from the sale of a gallon of motor fuel and diesel motor\nfuel in effect under the sales and compensating use taxes imposed by\nsections eleven hundred five and eleven hundred ten of this chapter plus\nthe highest rate applicable to the receipts from the sale of a gallon of\nmotor fuel and diesel motor fuel in effect in any locality of this state\nimposing a local sales and compensating use tax on the sale of motor\nfuel and diesel motor fuel under the authority of section twelve hundred\nten of this chapter; provided, however, that the aggregate rate per\ngallon applicable to the receipts from the sale of a gallon of such\nfuels imposed under clause (ii) of this subdivision shall not exceed\nseven percent. Such total equivalent rate per gallon under clause (ii)\nof this subdivision shall be determined as provided in subdivision (d)\nof section eleven hundred eleven of this chapter and the schedules\nprescribed by the commissioner of taxation and finance pursuant to such\nsubdivision, and shall be based on the average price per gallon\n(including all federal and state and any local taxes included in such\nprice or imposed on the use or consumption of such fuels but determined\nwithout the inclusion of any state and local sales tax on receipts from\nsales of such fuels) paid by the carrier during the return period for\nall motor fuel and diesel motor fuel purchased for use in its operations\neither within or without this state. Provided, however, if the\ncommissioner shall determine that the records of any carrier are\ninadequate or incomplete for such a determination of average price, the\nprice for motor fuel and diesel motor fuel purchased by such carrier\nshall be deemed to be the prevailing price for motor fuel and diesel\nmotor fuel, as established by the commissioner each calendar quarter\npursuant to this section, applicable to the return period. Each calendar\nquarter, the commissioner shall for each calendar quarter establish a\nprevailing price for motor fuel and diesel motor fuel based on the\nprices being charged on any given day during the first fifteen days of\nthe previous calendar quarter at a minimum of ten selected truck stops\nwidely scattered throughout the state. For any return period, a carrier\nmay elect to use the prevailing price per gallon so established by the\ncommissioner. Such tax shall be computed by multiplying such composite\nrate by the amount of motor fuel or diesel motor fuel, as the case may\nbe, used by a carrier in its operations within this state during each\ncalendar quarter or, where the commissioner has required or permitted a\nreturn to be based upon a different period, during such other period.\nThe amount of motor fuel and diesel motor fuel used in the operations of\nany carrier within this state shall be such proportion of the total\namount of such motor fuel and diesel motor fuel used in its entire\noperations within and without this state as the total number of miles\ntraveled within this state bears to the total number of miles traveled\nwithin and without this state. The commissioner may, by regulation,\nallow use of a miles per gallon factor in computing fuel used in\noperations in lieu of the above formula if evidence is presented to the\ncommissioner's satisfaction that no loss of revenue will result. Where\nthe records of any carrier are inadequate or incomplete the vehicular\nunits of a carrier filing returns shall be deemed to have consumed, on\nthe average, one gallon of diesel motor fuel for every four miles\ntraveled or one gallon of motor fuel for every three miles traveled\nunless substantial evidence discloses that a different amount was\nconsumed.\n 3. Every carrier subject to the tax imposed by this section shall be\nentitled to a credit against such tax determined by adding together the\nfollowing components: (i) a fuel tax component computed by multiplying\nthe number of gallons of motor fuel or diesel motor fuel purchased by\nsuch carrier within this state in a return period, for use in its\noperations either within or without this state, by the applicable rate\nper gallon imposed on such fuel under article twelve-A of this chapter,\nprovided, however, no credit shall be allowed unless the tax imposed\nunder such article twelve-A upon such purchase of fuel has been paid by\nsuch carrier, and (ii) a sales tax component computed by multiplying the\nnumber of gallons of motor fuel or diesel motor fuel purchased by such\ncarrier within this state in a return period, for use in its operations\neither within or without this state (as determined in a manner similar\nto the method for determining the use of fuel in the state as provided\nfor under subdivision two of this section), by the applicable equivalent\nrate per gallon of the sales tax component of the tax rate (as\ndetermined under subdivision two of this section), provided, however, no\ncredit shall be allowed unless the tax imposed under article\ntwenty-eight of this chapter upon such purchase of fuel has been paid by\nthe carrier. Each carrier claiming such credit components shall furnish\nto the commissioner such evidence of payment of such taxes as the\ncommissioner may require. When the amount of the credit to which any\ncarrier is entitled for any return period with respect to gallonage\npurchased in such return period exceeds the amount of tax for which such\ncarrier is liable under this section for such return period, such excess\nshall be allowed as a credit against the tax or which such carrier would\notherwise be liable for those succeeding periods (after application of\nany credits derived with respect to gallonage purchased in each such\nsucceeding period) which fall wholly within the twenty-four month period\ncommencing with the end of the return period from which the excess was\nderived or, if a claim for refund is filed on or before the last day of\nthe month immediately following the forty-eight month period commencing\nwith the end of the return period which gave rise to the refund, the\namount of such excess for such period shall be refunded; but, such a\nclaim for refund may be filed no more frequently than quarterly, with\nrespect to the calendar quarters: January through March, April through\nJune, July through September and October through December. The\ncommissioner shall grant or deny any such claim for refund in whole or\nin part and shall notify the claimant by mail of the commissioner's\ndetermination. Such determination shall be final and irrevocable unless\nthe claimant shall, within thirty days after the mailing of notice of\nsuch determination, petition the division of tax appeals for a hearing.\nAfter such hearing, the division of tax appeals shall mail notice of the\ndetermination of the administrative law judge to the claimant and to the\ncommissioner. Such determination may be reviewed by the tax appeals\ntribunal as provided in article forty of this chapter. The decision of\nthe tax appeals tribunal may be reviewed as provided in section two\nthousand sixteen of this chapter. However, such a proceeding may not be\ncommenced unless an undertaking is filed with the commissioner in such\namount and with such sureties as a justice of the supreme court shall\napprove to the effect that if the proceeding be dismissed or the\ndecision confirmed, the petitioner will pay all costs and charges which\nmay accrue against him in the prosecution of the proceeding.\n 4. Except as otherwise provided in this subdivision, every carrier\nsubject to the tax imposed by this section shall file returns reporting\nits operations pursuant to the provisions of section five hundred five\nof this article for the reporting periods provided pursuant thereto. If\nthe commissioner of taxation and finance finds that the enforcement of\nthe tax imposed by this section would not be adversely affected, the\ncommissioner may provide, by regulation, that a carrier operating\nprimarily within this state may file an information return, rather than\nthe aforementioned returns, provided the carrier has purchased in this\nstate all the motor fuel and diesel motor fuel used in its operations\nduring the period covered by such return and pays the taxes imposed\nunder articles twelve-a and twenty-eight and pursuant to the authority\nof article twenty-nine of this chapter on such fuels in the manner\nrequired by such articles. An election to file an information return\nshall be made in such form, for such time and upon such terms as the\ncommissioner shall require.\n 5. At the time of filing its return, as required pursuant to the\npreceding subdivision, each carrier shall pay the tax imposed by this\nsection calculated upon the amount of motor fuel and Diesel motor fuel\nused in its operations within this state during the period covered by\nthe return filed.\n 6. For purposes of this section, the definition of "motor fuel" in\nsubdivision two of section two hundred eighty-two and the definition of\n"Diesel motor fuel" in subdivision fourteen of section two hundred\neighty-two of this chapter shall apply.\n 7. For purposes of this section, the term "operations" means\noperations of all vehicular units, whether loaded or empty, whether or\nnot for compensation and whether owned by or leased to the carrier which\noperates them or causes them to be operated.\n 8. For purposes of this section only, (a) the term "vehicular unit"\nshall include an omnibus engaged in the interstate or foreign\ntransportation of passengers and subject to the jurisdiction of the\ninterstate commerce commission, or any agency successor thereto, or one\nor more state regulatory agencies concerned with the regulation of\npassenger transport, having a seating capacity of more than seven\npersons in addition to the driver; and (b) the term "carrier" shall\ninclude any person having the lawful use or control, or the right to the\nuse or control of any such omnibus.\n 9. The rest of the provisions of this article shall be applicable to\nthe tax imposed by this section except to the extent such provisions are\ninconsistent with a provision in this section.\n