§ 524 — Credits and refunds

§ 524. Credits and refunds. (a) Purchases. Every carrier subject to\nthe tax imposed by this article shall be entitled to a credit against\nsuch tax determined by adding together the following components: (1) a\nfuel tax component computed by multiplying the number of gallons of\nmotor fuel or diesel motor fuel purchased by such carrier within this\nstate in a return period, for use in its operations either within or\nwithout this state, by the applicable rate per gallon imposed on such\nfuel under article twelve-A of this chapter; provided, however, no\ncredit shall be allowed unless the tax imposed under such article\ntwelve-A upon such purchase of fuel has been paid by such carrier, and\n(2) a sales tax component computed by multiplying the number of gallons\nof motor fuel or diesel motor fuel purchased by such carrier within this\nstate in a return period, for use in its operations within or without\nthis state by the applicable rate per gallon of the sales tax component;\nprovided, however, such credit shall not exceed the tax imposed under\narticle twenty-eight or pursuant to the authority of article twenty-nine\nof this chapter upon such purchase of fuel that has been paid by the\ncarrier. Each carrier claiming such credit components shall furnish to\nthe 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 exceeds the amount of tax for\nwhich such carrier is liable under this article for such return period,\nsuch excess shall be allowed as a credit against the tax for which such\ncarrier would otherwise be liable for the eight succeeding calendar\nquarters following the end of the reporting period from which the excess\nwas derived or, if a claim for refund is filed on or before the last day\nof the month immediately following the four-year period commencing with\nthe end of the reporting period for which such excess is derived, the\namount of such excess for such period shall be refunded.\n (b) Transition. Every carrier subject to the tax imposed by this\narticle shall be entitled to a credit against the tax equal to the\ncredit determined under subdivision three of section five hundred\nthree-a of this chapter which the carrier would have been entitled to\ncarry forward against the tax imposed by such section but for the\ntermination of such tax. Such credit may be applied against the tax\nimposed by this section or refunded, subject to the limitations provided\nin subdivision (a) of this section. A person not subject to the tax\nimposed by this article may apply for a refund of such excess credit\nwhich such person would have been entitled to carry forward against the\ntax imposed by such section five hundred three-a but for the termination\nof such tax, subject to the limitations provided in subdivision (a) of\nthis section.\n (c) Actual price. Every carrier which can substantiate that its\naverage price paid per gallon (including all federal and state and any\nlocal taxes included in such price or imposed on the use or consumption\nof such fuels upon which the state and local sales and compensating use\ntaxes are computed but determined with out the inclusion of any state or\nlocal sales tax on receipts from sales of such fuels) during a reporting\nperiod is less than the prevailing price determined for such period\npursuant to subdivision (b) of section five hundred twenty-three of this\narticle, if such calculation was based upon an amount determined under\nclause (ii) of subparagraph (B) of paragraph two of subdivision (b) of\nsection five hundred twenty-three of this article, may apply for a\nrefund of the difference between the tax paid relating to the sales tax\ncomponent computed based upon such prevailing price for such period and\nthe tax relating to the sales tax component computed based upon the\ncarrier's actual average purchase price for such period. Such refund\nmust be applied for on or before the last day of the month immediately\nfollowing the four-year period commencing with the end of the reporting\nperiod which gave rise to the refund.\n (d) Erroneous payment. Whenever the commissioner shall determine that\nany moneys received under the provisions of this article were paid in\nerror, he or she may cause the same to be refunded or credited. Such\nmoneys received under the provisions of this article which the\ncommissioner shall determine were paid in error, may be refunded or\ncredited out of funds in the custody of the comptroller to the credit of\nsuch taxes provided an application therefor is filed with the\ncommissioner within four years from the time the erroneous payment was\nmade, except if an agreement under the provisions of section five\nhundred ten of this chapter as made applicable to the tax imposed by\nthis article by section five hundred twenty-eight of this article\n(extending the period for determination of tax imposed by this article)\nis made within the four-year period for the filing of an application for\nrefund provided for in this subdivision, the period for filing an\napplication for refund shall not expire prior to six months after the\nexpiration of the period within which a determination may be made\npursuant to the agreement or any extension thereof.\n (e) Determination and review. The commissioner shall grant or deny a\nclaim for refund under this section in whole or in part and shall notify\nthe claimant by mail of the commissioner's determination. Such\ndetermination shall be final and irrevocable unless the claimant shall,\nwithin thirty days after the mailing of notice of such determination,\npetition the division of tax appeals for a hearing. If the commissioner\nenters into a cooperative agreement pursuant to section five hundred\ntwenty-eight of this article, notice of a hearing shall be given and a\nhearing held within any time restrictions prescribed in such agreement.\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