2010 New York Code
TAX - Tax
Article 12-A - (282 - 289-F) TAX ON GASOLINE AND SIMILAR MOTOR FUEL
285-B - Presumption of taxability--Diesel motor fuel.

§  285-b. Presumption of taxability--Diesel motor fuel. 1. Except with
  respect to the exemptions from the excise tax on Diesel motor  fuel  set
  forth  in  subdivision three of section two hundred eighty-two-a of this
  article, no person shall purchase Diesel motor fuel in this state unless
  the taxes imposed by this article have  been  assumed  by  a  registered
  distributor  of  Diesel  motor  fuel  in accordance with a certification
  under subdivision four of this section or paid by such distributor  and,
  in  each  of such instances, except in the case of an exemption from the
  pass through of such tax authorized in subdivision four of such  section
  two  hundred  eighty-two-a,  are  passed  through  to such purchaser. In
  addition to any other civil and criminal penalties which may apply,  any
  person  who  purchases  Diesel  motor  fuel  without  having  received a
  certification from the seller in accordance  with  subdivision  four  of
  this  section  shall  be  jointly  and severally liable to pay the taxes
  imposed by this article with respect to such Diesel motor fuel.
    2. For purposes of the proper administration of this  article  and  to
  prevent  evasion  of  the  taxes  imposed  on  Diesel motor fuel by this
  article, it shall be presumed that all Diesel motor fuel sold,  received
  or  possessed  in  the  state  is  subject  to the taxes imposed by this
  article until the contrary is established. It shall be further  presumed
  that  any  person  so selling, receiving or possessing such Diesel motor
  fuel is responsible for payment of the excise taxes on such fuel.
    3.  (a)  The  claim  for  or  exemption  from  tax  provided  for   in
  subparagraphs  (i),  (iii), (iv), (v), (vi), (vii) and (ix) of paragraph
  (b) of subdivision three of section two  hundred  eighty-two-a  of  this
  article   shall  be  established  by  means  of  an  exempt  transaction
  certificate. If any such exemption is applicable, such certificate shall
  be provided by the purchaser to the seller at the time of  or  prior  to
  delivery  of  the Diesel motor fuel. Such exempt transaction certificate
  shall set forth the name and address of the purchaser and the  basis  of
  the  exemption  and shall be signed by such purchaser and by the seller.
  Such  certificate  shall  be  in  such  form  and  contain  such   other
  information  as  the commissioner of taxation and finance shall require.
  Where a proper and complete  exempt  transaction  certificate  has  been
  furnished  and  accepted  by  the seller in good faith, such certificate
  under such circumstance shall  relieve  the  seller  of  the  burden  of
  proving that the Diesel motor fuel covered by such certificate is exempt
  from tax by reason of subparagraph (i), (iii), (iv), (v), (vi), (vii) or
  (ix)  of  paragraph (b) of subdivision three of such section two hundred
  eighty-two-a. Any purchaser who furnishes  to  his  seller  a  false  or
  fraudulent   exempt   transaction   certificate   for   the  purpose  of
  establishing an exemption from the tax imposed by  section  two  hundred
  eighty-two-a  of  this article shall be jointly and severally liable for
  the tax imposed by such  section.  In  lieu  of  an  exempt  transaction
  certificate,  the  commissioner  of taxation and finance may provide for
  the establishment of such exemption by means of  a  procedure  or  other
  document  which  he  deems appropriate so as to secure the revenues from
  the excise tax on Diesel motor fuel.  Provided, further, in the case  of
  the   exemption  provided  by  subparagraph  (i)  of  paragraph  (b)  of
  subdivision three of section two hundred eighty-two-a of  this  article,
  the  commissioner  shall  provide  for an alternative procedure or other
  document signed only by the seller, such as a metered  delivery  ticket,
  for  the  establishment  of  such  exemption  in  those cases where such
  commissioner is satisfied that the use of such alternative procedure  or
  other  document  will not jeopardize the revenues from the excise tax on
  Diesel motor fuel.
    (b) A claim for the exemption from tax provided  for  in  subparagraph
  (ii)  or  (viii)  of  paragraph  (b) of subdivision three of section two

hundred eighty-two-a of this article shall be established by means of an
  interdistributor sale certificate. If such exemption is applicable, such
  certificate shall be provided by the purchaser to the seller at the time
  of or prior to delivery of the Diesel motor fuel. Such certificate shall
  set  forth  the  name  and  address  of  the  purchaser, the purchaser's
  registration number, an affirmation by such purchaser that the purchaser
  is registered as a distributor and that such registration has  not  been
  suspended  or cancelled and shall be signed by such purchaser and by the
  seller. Such certificate shall be in such form and  contain  such  other
  information  as  the commissioner of taxation and finance shall require.
  Where a proper and complete interdistributor sale certificate  has  been
  furnished  and  accepted  by  the seller in good faith, such certificate
  under such circumstance shall  relieve  the  seller  of  the  burden  of
  proving that the Diesel motor fuel covered by such certificate is exempt
  from  tax  by  reason of subparagraph (ii) or (viii) of paragraph (b) of
  subdivision three of such section two hundred eighty-two-a. For purposes
  of this paragraph, a seller shall not have accepted such certificate  in
  good  faith  if  the  purchaser's registration is invalid because it has
  been suspended or cancelled, or if the purchaser is not registered,  and
  the  commissioner  of  taxation  and  finance  has  furnished registered
  distributors with information identifying all those persons then validly
  registered as distributors of Diesel motor fuel and those persons  whose
  registrations  have  been  suspended  or  cancelled.  Any  purchaser who
  furnishes to his seller a  false  or  fraudulent  interdistributor  sale
  certificate  for  the  purpose of establishing an exemption from the tax
  imposed by section two hundred eighty-two-a of  this  article  shall  be
  jointly and severally liable for the tax imposed by such section.
    4.  (a)  Upon  each  sale,  other  than a retail sale not in bulk, the
  seller must give to the purchaser and the purchaser shall receive at the
  time of delivery of such Diesel motor fuel, a  certification  containing
  such  information  as  the  commissioner  of  taxation and finance shall
  require which,  unless  otherwise  provided  in  this  paragraph,  shall
  include  a  statement to the effect: (i) if such seller is a distributor
  registered under this article, that he has assumed  the  payment  of  or
  paid  the  taxes  imposed  by this article and, in each case, is passing
  through such taxes; or (ii) that such seller  is  passing  through  such
  taxes  which  were  so  previously  assumed  or  paid  by  an identified
  distributor registered under this article, and passed through to him. In
  the case  of  a  transaction  described  in  paragraph  (a)  or  (b)  of
  subdivision  three  of  section two hundred eighty-two-a of this article
  which is exempt from the imposition of the taxes imposed on Diesel motor
  fuel or where the seller, pursuant to and in accordance with subdivision
  four of  such  section,  has  not  passed  through  such  taxes  to  the
  purchaser,   the  certificate,  in  lieu  of  either  of  the  foregoing
  statements, shall state that, based  upon  good  faith  reliance  on  an
  exempt  transaction  certificate  (or  such  other  similar  document or
  procedure prescribed by the commissioner of taxation  and  finance),  an
  interdistributor sales certificate or the exemption document provided by
  an  organization described in paragraph one or two of subdivision (a) of
  section eleven hundred sixteen of this chapter, as the case may be, such
  motor fuel is being sold  under  the  circumstances  described  in  such
  paragraph  (a)  or  (b)  of  subdivision  three  of  section two hundred
  eighty-two-a or, in the case of the exemption from the pass through,  is
  being sold under the circumstances specified in subdivision four of such
  section and that the taxes imposed by this article are not applicable or
  are not being passed through, as the case may be.
    (b)  In  the case of a sale of Diesel motor fuel subject to the excise
  taxes and in all cases where the excise taxes are required to be  passed

through,  if  the  certification  required  by this subdivision has been
  furnished to the purchaser at the time of  delivery  of  such  fuel  and
  accepted  in good faith, the burden of proving that the taxes imposed by
  this  article  were  assumed or paid by a distributor registered as such
  under this article and passed through shall be solely on the seller.
    (c) Where the certification required under  this  subdivision  is  not
  furnished  by  the  seller  at  the time of delivery of the Diesel motor
  fuel, it shall be presumed that the taxes imposed by  this  article  are
  due  and  owing  and  have  not  been  assumed  or paid by a distributor
  registered as such under this article and that  the  purchaser  in  such
  case is jointly and severally liable for such taxes.
    (d)  If,  due  to the circumstances of delivery, it is not possible to
  issue a certification required under this subdivision  at  the  time  of
  delivery  of Diesel motor fuel, the commissioner of taxation and finance
  may authorize the delivery of  the  certification  required  under  this
  subdivision  at a time after the delivery of the Diesel motor fuel which
  is the subject of the sale under  the  limited  circumstances  it  shall
  prescribe  and upon such terms and conditions it shall deem necessary to
  ensure collection of the taxes imposed  by  this  article  and  the  tax
  imposed by section eleven hundred three of this chapter.