2013 New York Consolidated Laws
TAX - Tax
Article 28 - SALES AND COMPENSATING USE TAXES
Part 4 - (1131 - 1148) ADMINISTRATIVE PROVISIONS
1139 - Refunds.

 
    §  1139.  Refunds.  (a) In the manner provided in this section the tax
  commission  shall  refund  or  credit  any  tax,  penalty  or   interest
  erroneously,  illegally  or  unconstitutionally  collected  or  paid  if
  application therefor shall be filed with the tax commission (i)  in  the
  case  of  tax paid by the applicant to a person required to collect tax,
  within three years after the date when  the  tax  was  payable  by  such
  person  to  the  tax  commission  as  provided in section eleven hundred
  thirty-seven, or (ii) in the case of a tax, penalty or interest paid  by
  the  applicant  to the tax commission, within three years after the date
  when such amount was payable under this article, or (iii) in the case of
  a tax due from the seller,  transferor  or  assignor  and  paid  by  the
  applicant  to  the  tax  commission  where the applicant is a purchaser,
  transferee or assignee liable for such tax pursuant to the provisions of
  subdivision (c) of section eleven hundred  forty-one  of  this  chapter,
  within  two  years  after  the giving of notice by the tax commission to
  such purchaser, transferee or assignee of the total amount of any tax or
  taxes which the state claims to be due from the  seller,  transferor  or
  assignor.  Such  application shall be in such form as the tax commission
  shall prescribe. No refund or credit shall be made to any person of  tax
  which he collected from a customer until he shall first establish to the
  satisfaction  of  the  tax  commission, under such regulations as it may
  prescribe, that he has repaid such tax to the customer.  Notwithstanding
  any  other provision of this article, if the time to file an application
  for refund or credit of any tax, penalty  or  interest  would  otherwise
  have   expired  on  or  before  December  nineteenth,  nineteen  hundred
  sixty-nine, the time for filing such application is hereby  extended  to
  and  including  December  twentieth, nineteen hundred sixty-nine, except
  that it shall be further extended, as provided  in  subdivision  (c)  of
  section  eleven  hundred  forty-seven, where a taxpayer has consented in
  writing to the extension of the period for assessment of additional tax.
    (b) If  an  application  for  refund  or  credit  is  filed  with  the
  commissioner  of  taxation and finance as provided in subdivision (a) of
  this section, the commissioner of taxation and finance  shall  grant  or
  deny  such  application in whole or in part within six months of receipt
  of the application in a form which is able to  be  processed  and  shall
  notify  such  applicant by mail accordingly. Such determination shall be
  final and irrevocable unless such applicant shall,  within  ninety  days
  after the mailing of notice of such determination, petition the division
  of  tax  appeals  for a hearing. After such hearing, the division of tax
  appeals shall mail notice of the determination of the administrative law
  judge to such applicant and to the commissioner of taxation and finance.
  Such determination may be  reviewed  by  the  tax  appeals  tribunal  as
  provided  in  article  forty  of  this  chapter. The decision of the tax
  appeals tribunal may be reviewed as provided  in  section  two  thousand
  sixteen of this chapter.
    (c) Claim for credit or refund of an overpayment of sales tax shall be
  filed  by  the  taxpayer within three years from the time the return was
  filed or two years from the time the tax was  paid,  whichever  of  such
  periods  expires  the later, or if no return was filed, within two years
  from the time the tax was paid. If the claim is filed within  the  three
  year  period,  the  amount  of the credit or refund shall not exceed the
  portion of the tax paid within the three years immediately preceding the
  filing of the claim plus the period of any extension of time for  filing
  the  return. If the claim is not filed within the three year period, but
  is filed within the two year period, the amount of the credit or  refund
  shall  not  exceed  the  portion  of  the  tax paid during the two years
  immediately preceding the filing  of  the  claim.  Except  as  otherwise
  provided  in  this section, if no claim is filed, the amount of a credit

  or refund shall not exceed the amount which  would  be  allowable  if  a
  claim  had  been  filed  on the date the credit or refund is allowed. No
  refund or credit shall be made of a tax, interest or penalty paid  after
  a  determination  by  the  commissioner  made pursuant to section eleven
  hundred thirty-eight unless it be  found  that  such  determination  was
  erroneous,  illegal  or  unconstitutional  or otherwise improper, by the
  division of tax appeals pursuant to article forty of this chapter or  by
  the  commissioner  of  his  own  motion, or in a proceeding for judicial
  review provided for in section two thousand sixteen of this chapter,  in
  which  event  a  refund  or credit shall be made of the tax, interest or
  penalty found to have been overpaid.
    (d) (1) Except in respect to an overpayment made on a return described
  in paragraph two of subdivision (a) of section eleven hundred thirty-six
  of this part or on a return described  in  subdivision  (c)  of  section
  eleven  hundred  thirty-seven-A  of this part, interest shall be allowed
  and paid upon any refund made or credit allowed pursuant to this section
  except as otherwise provided in paragraph two  of  this  subdivision  or
  subdivision  (e)  of  this  section and except that no interest shall be
  allowed or paid if the amount thereof would be  less  than  one  dollar.
  Such  interest  shall be at the overpayment rate set by the commissioner
  pursuant to section eleven hundred forty-two of this part, or if no rate
  is set, at the rate of six percent per annum from the date when the tax,
  penalty or interest refunded or credited was paid to  a  date  preceding
  the  date  of  the  refund check by not more than thirty days, provided,
  however, that for the purposes of this subdivision any tax  paid  before
  the  last  day  prescribed  for its payment shall be deemed to have been
  paid on such last day. In the case of a refund or credit  claimed  on  a
  return  of  tax which is filed after the last date prescribed for filing
  such return (determined with regard to extensions),  or  claimed  on  an
  application  for  refund or credit, no interest shall be allowed or paid
  for any day before the date on which the return or application is filed.
  For purposes of this subdivision, a return or application for refund  or
  credit  shall  not  be treated as filed until it is filed in processible
  form. A return or application is in a processible form if it is filed on
  a  permitted  form,  and  contains  the  taxpayer's  name,  address  and
  identifying  number and the required signatures, and sufficient required
  information (whether  on  the  return  or  application  or  on  required
  attachments)  to  permit  the mathematical verification of tax liability
  shown on the return or refund or credit claimed on the application.
    (2) If a refund is made or a credit is  allowed  within  three  months
  after  the  last  date  prescribed or permitted by extension of time for
  filing a return on which the refund or  credit  was  claimed  or  within
  three  months  after the return was filed, whichever is later, or within
  three months after an application for refund or credit is filed on which
  that refund or credit was claimed, no interest will be allowed  or  paid
  on that refund or credit.
    (e)  The  provisions  of subdivisions (a), (b) and (c) of this section
  shall be applicable to applications for refund  or  credit  pursuant  to
  section  eleven  hundred  nineteen and subdivision (e) of section eleven
  hundred thirty-two, except that an application for credit may be made as
  provided in such section or subdivision  and  except  that  no  interest
  shall be allowed or paid upon any refund made or credit allowed pursuant
  to such section or such subdivision.
    (f)  Where a consumer returns a motor vehicle to and receives a refund
  of the full purchase price, capitalized cost or a portion  thereof  from
  the  manufacturer  in  accordance  with  the  provisions  of section one
  hundred ninety-eight-a or subdivision  five  of  section  three  hundred
  ninety-six-p  of  the general business law, the commissioner of taxation

  and finance shall refund to such consumer any tax paid by  the  consumer
  on  the  amount  of  the  purchase price, capitalized costs and fees and
  charges refunded by the manufacturer which  is  not  in  excess  of  the
  receipts  and  proportionate  to  the  receipts  subject to tax. All the
  provisions of this section shall apply to the refund authorized by  this
  subdivision,  provided,  however, that a request for a refund under this
  subdivision shall be timely made if such request for a  refund  is  made
  within  three  years  of  the  date  the refund from the manufacturer is
  received by a consumer  pursuant  to  subdivision  (c)  of  section  one
  hundred  ninety-eight-a of the general business law and further provided
  that interest allowable under subdivision (d) of this section  shall  be
  payable  from  the  date  which  is  three  months  after  the  date the
  application for refund in processible form is received.
    (g) The tax commission shall refund or credit any tax  imposed,  under
  subdivision (a) of section eleven hundred five or section eleven hundred
  ten, and paid on or after July first, nineteen hundred eighty-seven with
  respect to:
    (i)  tractors, trailers or semi-trailers, as such terms are defined in
  article one of the vehicle and traffic law, and  property  installed  on
  such  vehicles  for their equipping, maintenance or repair provided such
  vehicle is used in combination where the gross vehicle  weight  of  such
  combination exceeds twenty-six thousand pounds; and
    (ii)  services,  if performed upon tractors, trailers or semi-trailers
  described in paragraph (i) of this subdivision or on property  installed
  on such vehicles for their equipping, maintenance or repair.
    All  of  the  provisions  of  this  section  shall apply to the refund
  authorized  by  this  subdivision,  provided,  however,  that   interest
  allowable  under  subdivision  (d)  of  this section shall be payable in
  accordance with such subdivision but only from the date the tax, penalty
  or interest refunded or credited was paid, or was deemed  to  have  been
  paid,  to March thirty-first, nineteen hundred eighty-eight and from the
  date which is ninety days after the date the application for  refund  in
  processible form is received.
    (h)(1)  Notwithstanding  any  provision  of  the  law to the contrary,
  pursuant to the provisions of this subdivision, the  commissioner  shall
  refund  or  credit to (i) a credit card issuer tax paid pursuant to this
  article in respect to motor fuel and diesel motor fuel  purchased  by  a
  government  entity  and paid for by such government entity with a credit
  card issued by such credit card issuer or (ii) a  fuel  distributor  tax
  paid  pursuant to this article in respect to motor fuel and diesel motor
  fuel purchased by a government entity and paid for  by  such  government
  entity  with  a  credit card issued by a credit card issuer. Such credit
  card issuer or such fuel distributor, as designated by the parties in  a
  written  designation  to  the  commissioner,  shall  be  the only person
  eligible to receive such refund or credit, provided that: (A) such taxes
  were actually paid to the commissioner; (B) the fuel so purchased by the
  government entity is for its  own  use  or  consumption  such  that  the
  purchase  qualifies  as  an  exempt purchase pursuant to an exception in
  paragraph five of subdivision (b) of section eleven hundred  sixteen  of
  this  article;  (C) the credit card issuer or fuel distributor meets the
  requirements  of  paragraph  two  of  this  subdivision;  and  (D)   the
  commissioner has not issued a notice pursuant to subdivision fourteen of
  section eleven hundred forty-two of this part indicating that the credit
  card  issuer  or fuel distributor is no longer allowed to claim a refund
  or credit under this subdivision for the fuel purchased by a  particular
  government  entity.  Such  application  for  credit  or  refund shall be
  submitted after the end of the quarter in which the vendor of the  motor
  fuel  or  diesel  motor fuel was required to report the tax liability it

  collected from the credit card issuer or fuel  distributor  pursuant  to
  section   eleven  hundred  thirty-six  of  this  part,  but  within  the
  applicable statute of limitations as required under this section.
    (2)  In  order to be eligible to receive the refund or credit provided
  for in paragraph one of this subdivision, the credit card issuer or fuel
  distributor shall: (A) file  with  the  commissioner  a  certificate  of
  registration  and receive a certificate of authority pursuant to section
  eleven hundred thirty-four of this part, if not already  so  registered,
  provided,  however,  the  credit  card  issuer or fuel distributor shall
  provide such additional information as the commissioner may require; (B)
  establish it has (i) not charged or otherwise received any tax,  or  any
  amount  purportedly  as  tax,  from  the  government  entity  making the
  purchase; and (ii) filed a written consent signed by  the  chief  fiscal
  officer of the government entity stating that no tax was charged to such
  government  entity  by  the  credit card issuer or fuel distributor, and
  that therefore the government entity has no claim for a credit or refund
  relating to its purchases of motor fuel or diesel  motor  fuel  effected
  with  the credit card issuer's credit card and that no such claim has or
  will be made by the government entity; (C) establish either that (i) the
  retail station or other vendor has been repaid  the  amount  of  tax  it
  charged  to the government entity on the government entity's purchase of
  the motor fuel or diesel  motor  fuel,  or  (ii)  obtained  the  written
  consent  of  the  retail station or other vendor to the allowance of the
  credit or refund to the credit card issuer or fuel distributor; and  (D)
  provide  such  detailed  transactional and jurisdictional information to
  the commissioner as the commissioner may require, in the form  requested
  by the commissioner.
    (3)(A)  The  term  "government  entity"  means  an entity described in
  paragraph one, two or three of subdivision (a) of section eleven hundred
  sixteen  of  this  article  or  any  diplomatic  mission  or  diplomatic
  personnel  who  are  permitted by the United States to purchase fuel and
  diesel motor fuel exempt from the taxes imposed pursuant to this article
  and articles twelve-A and thirteen-A of this chapter.
    (B) The term "credit card issuer" means a person  which  finances  the
  exempt  purchase  of  motor  fuel  or  diesel motor fuel by a government
  entity by means  of  a  credit  or  other  access  card  issued  to  the
  government entity by such person.
    (C)  The  term "fuel distributor" means any person who is a registered
  distributor under article twelve-A of this chapter and who is registered
  as a person required to collect tax pursuant to this article.
    (4) If any requirement of paragraph two of  this  subdivision  is  not
  met,  or  if  the  credit  card  issuer  and, where applicable, the fuel
  distributor, receive  a  notice  pursuant  to  subdivision  fourteen  of
  section  eleven  hundred forty-two of this article, then an amount equal
  to the  tax  imposed  by  this  article  shall  be  collected  from  the
  government entity, notwithstanding such entity's exempt status, and such
  government  entity shall be responsible for seeking any credit or refund
  which it may be allowed under this article.
    (5) The provisions of subdivisions (a), (b) and (c)  of  this  section
  shall also apply to an application for refund or credit pursuant to this
  subdivision,   except   to   the   extent  that  such  subdivisions  are
  inconsistent with this subdivision, and except that no interest shall be
  allowed or paid upon any refund made or credit allowed pursuant to  this
  subdivision. Any document required pursuant to this subdivision shall be
  in  such  form  and  contain  such information as the commissioner shall
  prescribe.
    (6) A credit card issuer or fuel distributor  designated  pursuant  to
  this  subdivision  to  receive  the  refund  or credit and its officers,

  directors, employees, managers and members under a duty to act for  such
  credit card issuer or fuel distributor in complying with any requirement
  of  this  article and, where such credit card issuer or fuel distributor
  is  a  partnership  or  limited  liability  company,  any member of such
  partnership or company shall be deemed to be persons required to collect
  tax and shall be personally liable in  accordance  with  section  eleven
  hundred  thirty-three  of  this  article with respect to the liabilities
  described in subparagraph (E) of paragraph three of subdivision  (a)  of
  section  eleven  hundred  thirty-eight  of  this  part.  Nothing in this
  subdivision shall be construed to require a credit card issuer to file a
  return pursuant to section eleven hundred thirty-six of this part unless
  otherwise required to do so by another  provision  of  this  article  or
  unless  the  commissioner,  in  his  or her discretion, determines it is
  necessary for the proper enforcement of this  article  for  credit  card
  issuers  or  distinct  classes  of such issuers to file such returns and
  gives notice of such determination to such issuers.
    (7) Nothing in this subdivision shall be construed to exempt  (A)  the
  purchase of motor fuel or diesel motor fuel by a government entity where
  it is not the ultimate user or consumer of such fuel, or (B) any sale by
  a government entity of motor fuel or diesel motor fuel.