2010 New York Code
TAX - Tax
Article 12-A - (282 - 289-F) TAX ON GASOLINE AND SIMILAR MOTOR FUEL
289-C - Refunds.

§ 289-c. Refunds. 1. The tax imposed by this article though payable by
  the  distributor,  shall  be borne by the purchaser and when paid by the
  distributor shall be deemed to have been so paid for the account of  the
  purchaser.  No  person  shall  sell,  advertise, or offer for sale motor
  fuel, separate from the tax herein imposed; and the price  paid  by  the
  purchaser  for  motor fuel on which the tax has been paid, if such price
  be not less than the amount of the tax thereon, shall  be  presumed  for
  the purposes of this section to have included the tax.
    1-a. (a) Any person selling motor fuel to an organization described in
  paragraph  one  or  two  of  subdivision  (a)  of section eleven hundred
  sixteen of this chapter or a  hospital  included  in  the  organizations
  described  in  paragraph  four  of  such  subdivision for its own use or
  consumption or selling kero-jet fuel  to  an  airline  for  use  in  its
  airplanes  may  exclude  the  amount of the tax or taxes imposed by this
  article from the selling price thereof.
    (b) (i) Any person registered as a distributor of motor  fuel  selling
  aviation gasoline to a fixed base operator registered under this article
  as  a "retail seller of aviation gasoline" may exclude the amount of the
  tax or taxes imposed by this article  from  the  selling  price  thereof
  where  such  aviation gasoline is delivered to the fixed base operator's
  premises and placed in a  storage  facility  used  exclusively  for  the
  purpose of fueling airplanes. The commissioner may register as a "retail
  seller of aviation gasoline" a fixed base operator who makes no sales of
  aviation gasoline other than retail sales not in bulk delivered directly
  into  the  fuel tank of an airplane and who makes no sales of motor fuel
  other than the foregoing described retail  sales  of  aviation  gasoline
  delivered  directly  into  the  fuel  tank of airplanes (provided, in no
  event, shall kero-jet fuel be construed to constitute motor fuel).  Such
  registration shall apply only to the wholesale purchase of only aviation
  gasoline  by  such  "retail  seller of aviation gasoline" and the retail
  sale by such person of  aviation  gasoline  not  in  bulk  for  delivery
  directly  into  the  fuel  tank  of an airplane for use in the operation
  thereof. In no event shall the  registration  as  a  "retail  seller  of
  aviation  gasoline" be deemed to be an authorization to import, or cause
  to be imported, motor fuel including aviation gasoline, into this state.
  All  the  provisions  of  section  two  hundred  eighty-three-a  (except
  subdivision one) of this article shall be applicable to the registration
  of  "retail sellers of aviation gasoline" with the same force and effect
  as if the language of such section had been incorporated in full  herein
  and  had  expressly  referred  to the registration of "retail sellers of
  aviation gasoline", with such modification as may be necessary in  order
  to  adapt  the language so as to apply to the registration of applicants
  for and persons registered as "retail  sellers  of  aviation  gasoline".
  Provided,  however,  that  if the commissioner is satisfied that certain
  requirements of such foregoing provisions with respect  to  registration
  are not necessary in order to protect tax revenues, the commissioner may
  waive,   limit   or   modify  such  requirements  with  respect  to  the
  registration of "retail sellers of aviation gasoline".  The  department,
  where applicable, shall coordinate the registration process with respect
  to  a  fixed base operator applying for registration as a "retail seller
  of aviation gasoline" and as a distributor of kero-jet  fuel  only  with
  the  purpose  of  eliminating  any duplicative information or procedures
  required of the applicant. Every person registered as a  "retail  seller
  of  aviation  gasoline"  shall  keep  complete  and  accurate records of
  purchases and sales of aviation gasoline (including individual  invoices
  identifying each purchase or sale of aviation gasoline) to and from such
  "retail  seller  of aviation gasoline". The commissioner shall, if it is
  determined to be appropriate, establish a requirement that a certificate

be given by a "retail seller of aviation gasoline" prior to the sale  of
  aviation gasoline pursuant to this paragraph.
    (ii)  Any  person  registered  as a distributor of motor fuel and also
  registered as a "retail seller of aviation  gasoline"  may  exclude  the
  amount  of  the  tax  or  taxes imposed by this article from the selling
  price thereof on such retail sale of aviation gasoline.
    (c) (i) Any person making a sale of motor fuel under the circumstances
  described in paragraph (a), or subparagraph (i) of paragraph (b) of this
  subdivision  or  making  a  sale  of  Diesel  motor   fuel   under   the
  circumstances  described  in  subdivision  four  of  section two hundred
  eighty-two-a of this article whereby the tax or taxes  imposed  by  this
  article  have not been passed through to the purchaser, shall be allowed
  a refund or credit of the tax or taxes imposed by this  article  in  the
  amount  of  such  tax or taxes paid by such person on such motor fuel or
  Diesel motor fuel being sold or included  in  the  price  paid  by  such
  person  for such fuel. Claims for refunds or credits shall be presented,
  and refunds or  credits  shall  be  made,  only  as  authorized  by  the
  commissioner under such rules and regulations as he may prescribe.
    (ii) Any airline registered as a distributor of motor fuel who imports
  aviation  gasoline  into  this  state  for  use  in  its airplanes and a
  distributor described in subparagraph (ii)  of  paragraph  (b)  of  this
  subdivision  shall  be  allowed  a  refund or credit of the tax or taxes
  imposed by this article in the amount of such tax or taxes paid by  such
  person on such aviation gasoline so imported and used exclusively in the
  operation  of  its  airplanes.  The refund or credit shall accrue at the
  time the aviation gasoline is delivered  and  stored  as  prescribed  in
  subparagraph  (i)  of  paragraph  (b)  of  this  subdivision. Claims for
  refunds or credits shall be presented and refunds or  credits  shall  be
  made only as authorized by the commissioner, including documentary proof
  required to substantiate refund claims.
    * (d)(i) Any person may exclude the amount of the tax or taxes imposed
  by  this  article  on  E85  from  the selling price thereof where E85 is
  delivered to a filling station and placed in  a  storage  tank  of  such
  filling  station  for  such  E85  to  be dispensed directly into a motor
  vehicle for use in the operation of such vehicle. Any  person  making  a
  sale of E85 under the circumstances described herein, whereby the tax or
  taxes  otherwise imposed by this article have not been passed through to
  the purchaser, shall be allowed a refund or credit of the taxes  imposed
  by  this  article in the amount of such tax or taxes paid by such person
  on such E85 being sold or included in the price paid by such person  for
  such fuel. Claims for refunds or credits shall be presented, and refunds
  or  credits  shall be made, only as authorized by the commissioner under
  such rules and regulations as the commissioner may prescribe.
    (ii) Any person may exclude twenty percent of the amount of the tax or
  taxes imposed by this article from the selling price with respect to any
  sale of B20. Any person making a sale of B20 upon which such person does
  not pass on more than eighty percent of the taxes otherwise  imposed  by
  this  article,  where such person has purchased such B20 with the entire
  amount of the taxes imposed by this article included  in  such  person's
  purchase  price,  shall  be  entitled to a refund or credit equal to the
  amount of the tax or taxes paid under this article on such B20 in excess
  of eighty percent of the tax or taxes imposed by this article on  diesel
  motor  fuel.  Claims  for  refunds  or  credits  shall be presented, and
  refunds or credits shall be made, only as authorized by the commissioner
  under such rules and regulations as the commissioner may prescribe.
    (iii) Any person may exclude the amount of the tax or taxes imposed by
  this article on CNG or hydrogen from  the  selling  price  thereof.  Any
  person  making  a  sale  of  CNG  or  hydrogen, whereby the tax or taxes

otherwise imposed by this article have not been passed  through  to  the
  purchaser,  shall  be allowed a refund or credit of any taxes imposed by
  this article in the amount of such tax or taxes paid by such  person  on
  such  CNG  or  hydrogen being sold or included in the price paid by such
  person for such CNG or hydrogen. Claims for refunds or credits shall  be
  presented,  and  refunds or credits shall be made, only as authorized by
  the commissioner under such rules and regulations  as  the  commissioner
  may prescribe.
    * NB Repealed September 1, 2011
    2.  However,  the  intention  of this article is to place the ultimate
  burden resulting from such tax, so far as possible, on persons  who  use
  the  public  highways of the state for operating motor vehicles thereon,
  or who use the waterways of the  state  including  any  other  waterways
  bordering  on  the  state  for  operating pleasure or recreational motor
  boats thereon, and the following  refunds  are  provided  to  that  end,
  subject to the provisions of subdivision five of this section.
    3.  (a) Except as otherwise provided in paragraph (b) of this section,
  any person who shall buy any motor fuel or diesel motor fuel,  on  which
  the  tax imposed by this article shall have been paid, and shall consume
  the same in any manner except in the operation of a motor  vehicle  upon
  or over the highways of this state, or in the operation of a pleasure or
  recreational  motor  boat  upon  or  over  the  waterways  of  the state
  including waterways bordering on the  state,  shall  be  reimbursed  the
  amount  of  such  tax in the manner and subject to the conditions herein
  provided except that there shall be no  reimbursement  of  tax  paid  on
  motor  fuel  or diesel motor fuel taken out of this state in a fuel tank
  connected with the engine of a motor vehicle  and  consumed  outside  of
  this state.
    (b)  Any  omnibus  carrier which shall buy any motor fuel on which the
  aggregate tax imposed by section two hundred eighty-four and section two
  hundred eighty-four-a of this chapter, or any diesel motor fuel on which
  the aggregate tax  imposed  by  section  two  hundred  eighty-two-a  and
  section  two hundred eighty-two-b of this chapter, shall have been paid,
  shall be reimbursed, in the case of such motor  fuel,  the  amount  paid
  pursuant  to  such  sections  two  hundred  eighty-four  and two hundred
  eighty-four-a in excess of four cents per gallon, and  in  the  case  of
  diesel motor fuel, the amount paid pursuant to such sections two hundred
  eighty-two-a  and  two  hundred  eighty-two-b in excess of six cents per
  gallon, provided such motor fuel or diesel motor fuel has been  consumed
  by  such  carrier  in  the  operation  of  an omnibus in this state. Any
  taxicab licensee, as defined by subdivision ten of section  two  hundred
  eighty-two  of  this  chapter,  who or which shall buy any motor fuel on
  which the aggregate tax imposed by section two hundred  eighty-four  and
  section  two  hundred  eighty-four-a of this chapter or any diesel motor
  fuel  on  which  the  aggregate  tax  imposed  by  section  two  hundred
  eighty-two-a and section two hundred eighty-two-b of this chapter, shall
  have been paid, shall be reimbursed, in the case of such motor fuel, the
  amount  paid  pursuant  to such sections two hundred eighty-four and two
  hundred eighty-four-a in excess of four cents per  gallon,  and  in  the
  case of diesel motor fuel, the amount paid pursuant to such sections two
  hundred eighty-two-a and two hundred eighty-two-b in excess of six cents
  per gallon, provided such motor fuel or diesel fuel has been consumed by
  such licensee in the operation of a taxicab in this state.
    (c)  All  claims  for  reimbursement shall be in such form and contain
  such information as the commissioner shall prescribe and shall be  filed
  within three years from (i) the date of the purchase, in the case of the
  purchaser;  or  (ii) the date of the sale, in the case of the seller, of
  the motor fuel so subject  to  reimbursement.  Every  such  claim  shall

include  a  certificate by or on behalf of the party presenting the same
  to the effect that it is just, true and correct, that  no  part  thereof
  has  been  paid,  except as stated therein, and that the balance therein
  stated  is  actually  due  and  owing.  The  claimant  shall satisfy the
  department that the claimant has borne the tax and that the  motor  fuel
  has  been  consumed by the claimant in a manner other than the operation
  of a motor vehicle  upon  or  over  the  highways  of  this  state,  the
  operation  of  a  pleasure  or  recreational  motorboat upon or over the
  waterways of the state including waterways bordering on the state or, in
  the case of an  omnibus  carrier,  taxicab  licensee,  nonpublic  school
  operator or volunteer ambulance service, that the claimant has borne the
  tax  and  that the amount claimed is the amount of such tax reimbursable
  under paragraph (b), (d), (e)  or  (f)  of  subdivision  three  of  this
  section. The department may require such further information or proof as
  it shall deem necessary for the administration of such claim. Claims for
  reimbursement  approved  by  the  department shall be paid from revenues
  collected under  this  article  and  deposited  to  the  credit  of  the
  comptroller  as  hereinafter  provided; but no such claims shall be paid
  unless the department is satisfied that the amount of the tax for  which
  the  reimbursement  is claimed has actually been collected by the state.
  The amount of any erroneous or  excessive  payment  to  a  claimant  for
  reimbursement  may  be determined by the department and may be recovered
  from such claimant in the same manner as a tax imposed by this  article,
  provided,  however,  that  any  such  determination shall be made within
  three years after the date of such erroneous or excessive payment.
    (d) Any omnibus carrier which  shall  buy  motor  fuel  on  which  the
  aggregate  tax  imposed  by section two hundred eighty-four, section two
  hundred eighty-four-a and section  two  hundred  eighty-four-c  of  this
  chapter  or  any diesel motor fuel on which the aggregate tax imposed by
  section two hundred eighty-two-a, section two hundred  eighty-two-b  and
  section  two  hundred eighty-two-c of this chapter shall have been paid,
  shall be reimbursed the amount paid provided such motor fuel  or  diesel
  motor  fuel  has  been  consumed  by such carrier in the operation of an
  omnibus in local transit service in this state pursuant to a certificate
  of  convenience  and   necessity   issued   by   the   commissioner   of
  transportation of this state or by the interstate commerce commission of
  the  United  States  or  pursuant  to  a  contract, franchise or consent
  between such carrier and a city having a population  of  more  than  one
  million inhabitants, or any agency of such city.
    (e)  Any nonpublic school operator which shall buy motor fuel on which
  the aggregate tax imposed by section two  hundred  eighty-four,  section
  two  hundred eighty-four-a and section two hundred eighty-four-c of this
  chapter or any diesel motor fuel on which the aggregate tax  imposed  by
  section  two  hundred eighty-two-a, section two hundred eighty-two-b and
  section two hundred eighty-two-c of this chapter shall have  been  paid,
  shall  be  reimbursed the amount paid provided such motor fuel or diesel
  motor  fuel  has  been  consumed  by  such  nonpublic  school   operator
  exclusively in educational related activities.
    (f)  Any  voluntary  ambulance  service,  as defined in section thirty
  hundred one of the public health law, which  shall  buy  motor  fuel  on
  which  the  tax  or  taxes  imposed by this article shall have been paid
  shall be reimbursed the amount of such tax in the manner and subject  to
  the  conditions  herein  set  forth,  provided  such motor fuel has been
  consumed by such volunteer ambulance service vehicle in  the  course  of
  operating within the state.
    (g)  An  organization described in paragraph one or two of subdivision
  (a) of section eleven hundred sixteen of  this  chapter  or  a  hospital
  included  in  the  organizations  described  in  paragraph  four of such

subdivision, or a fire company or fire department, as defined in section
  three of the volunteer firefighters' benefit law, or a volunteer  rescue
  squad  supported  in whole or in part by tax money where any such entity
  is the purchaser, user or consumer of motor fuel or diesel motor fuel in
  a  vehicle  owned  and  operated  by  it  and  used  exclusively for its
  purposes, or an airline where it has purchased kero-jet fuel for use  in
  its  airplanes shall be reimbursed the amount of the taxes on motor fuel
  and diesel motor fuel imposed by or pursuant to the  authority  of  this
  article  included  in the price paid for such motor fuel or diesel motor
  fuel.
    (h) Notwithstanding any provision of the law to the contrary, tax paid
  pursuant to this article in respect to motor fuel or diesel  motor  fuel
  purchased  by a government entity and paid for by such government entity
  with a credit card shall be reimbursed or credited to the issuer of  the
  credit card used for such purchase or the fuel distributor designated in
  accordance with and subject to the provisions of sections eleven hundred
  thirty-eight,  eleven hundred thirty-nine, eleven hundred forty-two, and
  eleven hundred forty-five of this chapter concerning  such  credit  card
  issuers,  fuel  distributors  and  government  entities. Such provisions
  shall apply with respect to the administration  of  and  procedure  with
  respect  to  the taxes imposed under this article in the same manner and
  with the same force and effect as if the language of such provisions had
  been incorporated in full into this article and had  expressly  referred
  to  the  tax  under  this  article,  with  such  modifications as may be
  necessary in order to adapt the language of such provisions to the taxes
  imposed by this article, except to the extent that any such provision is
  not relevant to this article.
    4. "Highway," within the meaning of this  section,  means  a  highway,
  street,  avenue,  road,  alley,  boulevard,  parkway,  or  other similar
  thoroughfare.
    5. If the provisions of this section providing  for  reimbursement  of
  the  amount  of  the  tax  paid  be  held unconstitutional by a court of
  competent jurisdiction, the  other  constitutional  provisions  of  this
  article  nevertheless shall stand, it being the express intention of the
  legislature that even though such provision for  reimbursement  be  held
  unconstitutional  the tax provided for by this article shall be imposed,
  collected and distributed as provided in  this  article,  regardless  in
  that event of the manner in which the motor fuel is consumed.
    6.  Moneys  paid  in  error  under this article may be refunded. Where
  motor fuel, upon which the tax imposed by this article has been paid, is
  sold, under such circumstances that, if the tax had not been  paid,  the
  sale  would  not  have  been  taxable under this article, the tax may be
  refunded.  Refunds shall be made only as authorized by the  commissioner
  under  such  rules  and  regulations  as  the commissioner may prescribe
  provided an application therefor is filed with the  commissioner  within
  three  years  from  the time the erroneous payment was made, or tax paid
  motor fuel was so sold. Refunds authorized by the commissioner shall  be
  paid  from  revenues  collected  under this article and deposited to the
  credit of the comptroller as hereinafter provided.
    7. If an  agreement  under  the  provisions  of  section  two  hundred
  eighty-eight  (extending  the period for determination of tax imposed by
  this article) is made within the three-year period for the filing of  an
  application  for refund under subdivision six of this section or, in the
  case of a claim  for  reimbursement  under  subdivision  three  of  this
  section,  if  such agreement is made within three years from the date of
  purchase or sale (as the case may be) of the motor fuel, the period  for
  filing  an application for refund or a claim for reimbursement shall not
  expire prior to six months after the expiration  of  the  period  within

which  determination  may  be  made  pursuant  to  the  agreement or any
  extension thereof.
    8.  With  respect  to  motor  fuel  imported,  manufactured or sold or
  purchased in this state, and with respect to the sale or use  of  Diesel
  motor  fuel,  a  refund  or  credit  shall be allowed a distributor or a
  purchaser of the tax required to be paid pursuant to this  article  upon
  such  motor  fuel or Diesel motor fuel in the amount of such tax paid by
  or included in the price paid by a distributor or such purchaser to  the
  seller thereof if such fuel was exported from this state for sale or use
  outside  this state, such distributor or such purchaser, as the case may
  be, exporting such fuel is duly  registered  with  or  licensed  by  the
  taxing  authorities  of  the  state  to which such fuel is exported as a
  distributor or a dealer in the fuel being so exported, and in connection
  with such exportation such fuel was immediately shipped to an identified
  facility in the state to which such fuel is exported, and the  applicant
  complies  with  all  requirements  and  rules  and  regulations  of  the
  commissioner, including evidentiary requirements, relating thereto;  and
  provided  further that upon receipt of a claim for refund in processible
  form, interest shall be allowed and paid at the overpayment rate set  by
  the  commissioner  pursuant  to  subdivision twenty-sixth of section one
  hundred seventy-one of this chapter from the due date of the  return  to
  the  date  immediately  preceding the date of the refund check except no
  such interest shall be allowed or paid if the  refund  check  is  mailed
  within  thirty  days  of  such  receipt  and except no interest shall be
  allowed or paid if the amount thereof would be less than one dollar. For
  the purpose of this article, "export" from this state shall in no  event
  be  construed  to  include  motor fuel or diesel motor fuel taken out of
  this state in the fuel tank connected with the engine of a motor vehicle
  or any conveyance and consumed in the operation thereof outside of  this
  state.
    9.  With  respect  to  any organization described in paragraph four of
  subdivision (a) of section eleven hundred sixteen of this chapter  which
  is  eligible  pursuant  to  this  section  for  reimbursement of the tax
  required to be paid pursuant to this article, upon receipt  of  a  claim
  for  reimbursement  in  processible  form, interest shall be allowed and
  paid at the overpayment rate set by the  commissioner  of  taxation  and
  finance  pursuant  to  subdivision  twenty-sixth  of section one hundred
  seventy-one of this  chapter  from  the  date  of  the  application  for
  reimbursement  to  the  date  immediately  preceding  the  date  of  the
  reimbursement check except no such interest shall be allowed or paid  if
  the reimbursement check is mailed within forty-five days of such receipt
  and  except  no  interest shall be allowed or paid if the amount thereof
  would be less than one dollar. Provided, however, the  department  shall
  process applications for reimbursement as expeditiously as possible.