2010 New York Code
TAX - Tax
Article 13-A - (300 - 315) TAX ON PETROLEUM BUSINESSES
301-A - Imposition of tax.

§  301-a.  Imposition  of  tax. (a) General. Notwithstanding any other
  provision of this chapter, or of  any  other  law,  for  taxable  months
  commencing  on  or  after  the  first day of September, nineteen hundred
  ninety, there is hereby imposed upon every petroleum  business  for  the
  privilege  of  engaging  in business, doing business, employing capital,
  owning or leasing property, or maintaining an office in  this  state,  a
  monthly  tax for each or any part of a taxable month equal to the sum of
  the motor fuel component determined pursuant to subdivision (b) of  this
  section,  the  automotive-type  diesel  motor  fuel component determined
  pursuant to paragraph one  of  subdivision  (c)  of  this  section,  the
  nonautomotive-type  diesel  motor  fuel component determined pursuant to
  paragraph two of subdivision  (c)  of  this  section  and  the  residual
  petroleum  product  component  determined pursuant to subdivision (d) of
  this section.
    (b) Motor fuel component.  (1)  The  motor  fuel  component  shall  be
  determined  by  multiplying  the  motor  fuel and automotive-type diesel
  motor fuel rate times the number of gallons of (1) motor  fuel  imported
  or  caused  to be imported into this state by the petroleum business for
  use, distribution, storage  or  sale  in  the  state  or  (2)  produced,
  refined,  manufactured  or  compounded  in  the  state  by the petroleum
  business during the month covered by  the  return  under  this  article.
  Provided,  however,  that no motor fuel shall be included in the measure
  of the tax unless it shall have  previously  come  to  rest  within  the
  meaning  of  federal  decisional  law  interpreting  the  United  States
  constitution, nor shall any motor fuel be included in the measure of the
  tax imposed by this article more than once.
    (2) Motor fuel brought into this state in  the  fuel  tank  connecting
  with  the  engine  of  a  vessel propelled by the use of such motor fuel
  shall be deemed to constitute a  taxable  use  of  motor  fuel  for  the
  purposes  of this subdivision to the extent that the fuel is consumed in
  the operation of the vessel in this state. Provided, however, that  this
  paragraph  shall  not  apply  to  (i)  a recreational motor boat or (ii)
  subsequent to  August  thirty-first,  nineteen  hundred  ninety-four,  a
  commercial  fishing  vessel  (as  defined  in subdivision (j) of section
  three hundred of this article) if the motor fuel imported  and  consumed
  in  this state is used to operate such vessel while it is engaged in the
  harvesting of fish for sale. Provided, further, that tax  liability  for
  gallonage that a vessel consumes shall be the tax liability with respect
  to  the positive difference between the gallonage consumed in this state
  during the reporting period and the gallonage purchased  in  this  state
  (upon  which  the tax imposed by this section has been paid) during such
  period. A credit or refund shall be available  for  any  excess  of  tax
  liability  for  gallonage purchased in this state during the period over
  tax liability on gallonage so consumed in this state during such period,
  which excess shall be presumed to have been used outside this state.
    (c)  (1)  Automotive-type  Diesel  motor  fuel  component.   (A)   The
  automotive-type  diesel  motor  fuel  component  shall  be determined by
  multiplying the motor fuel and automotive-type diesel  motor  fuel  rate
  times  (1)  the  number  of gallons of automotive-type diesel motor fuel
  sold or used by a petroleum business in  this  state  during  the  month
  covered  by  the  return  under this article and (2) with respect to any
  gallonage which prior thereto has not been included in  the  measure  of
  the  tax  imposed by this article, times the number of gallons of diesel
  motor fuel delivered (i) to a filling station or (ii) into the fuel tank
  connecting with the engine of a motor vehicle for use in  the  operation
  thereof, whichever of the latter two events shall be the first to occur.
  Provided,  however,  that  no diesel motor fuel shall be included in the
  measure of the tax unless it shall have previously come to  rest  within

the  meaning  of  federal  decisional law interpreting the United States
  constitution, nor decisional law, nor shall any  diesel  motor  fuel  be
  included  in  the  measure  of the tax imposed by this article more than
  once.
    (B)  Diesel  motor  fuel  brought  into  this  state  in the fuel tank
  connecting with the engine of a vessel propelled  by  the  use  of  such
  diesel  motor fuel shall be deemed to constitute a taxable use of diesel
  motor fuel for the purpose of this paragraph to the extent of  the  fuel
  that is consumed in the operation of the vessel in this state. Provided,
  however, this paragraph shall not apply to (i) a recreational motor boat
  or (ii) subsequent to August thirty-first, nineteen hundred ninety-four,
  a  commercial  fishing  vessel (as defined in subdivision (j) of section
  three hundred of this article) if the diesel motor  fuel  imported  into
  and  consumed  in  this state is used to operate such commercial fishing
  vessel while it is engaged in the harvesting of fish for sale. Provided,
  further, that tax liability for gallonage that a vessel consumes in this
  state shall be the tax liability with respect to the positive difference
  between the gallonage consumed in this state during the reporting period
  and the gallonage purchased in this state (upon which the tax imposed by
  this section has been paid) during such period. A credit or refund shall
  be available for any excess of tax liability for gallonage purchased  in
  this state during the period over tax liability on gallonage so consumed
  in this state during such period, which excess shall be presumed to have
  been used outside this state.
    (2)    Nonautomotive-type    diesel    motor   fuel   component.   The
  nonautomotive-type  diesel  fuel  component  shall  be   determined   by
  multiplying  the  nonautomotive-type  diesel  motor  fuel rate times the
  number of gallons of nonautomotive-type diesel motor fuel sold  or  used
  by  a  petroleum  business in this state during the month covered by the
  return under this section. Provided, however, that no diesel motor  fuel
  shall  be  included  in  the  measure  of  the  tax unless it shall have
  previously come to rest within the meaning  of  federal  decisional  law
  interpreting   the   United   States   constitution,   nor   shall   any
  nonautomotive-type diesel motor fuel be included in the measure  of  the
  tax imposed by this article more than once.
    (d)  Residual  petroleum  product  component.  The  residual petroleum
  product component  shall  be  determined  by  multiplying  the  residual
  petroleum product rate times the number of gallons of residual petroleum
  product  sold  or  used in this state by a petroleum business during the
  month covered by the return under this article. Provided, however,  that
  no  residual  petroleum  product shall be included in the measure of the
  tax unless it shall have previously come to rest within the  meaning  of
  federal  decisional law interpreting the United States constitution, nor
  shall any residual petroleum product be included in the measure  of  the
  tax imposed by this article more than once.
    (e)  Motor  fuel  and  automotive-type diesel motor fuel rate. (1) The
  basic motor fuel and diesel automotive-type motor  fuel  rate  shall  be
  five and one-half cents per gallon.
    (2)  Commencing  April  first,  nineteen hundred ninety-one, the motor
  fuel and automotive-type diesel motor fuel rate shall be the product  of
  the basic rate set forth in paragraph one of this subdivision multiplied
  by a fraction, the numerator of which is the sum of the monthly producer
  price  index (unadjusted) published by the bureau of labor statistics of
  the United States department of labor for the  category  of  commodities
  designated  "refined  petroleum  products"  for  the  twelve consecutive
  months ending with the month of November, nineteen hundred  ninety,  and
  the  denominator of which is the sum of the monthly producer price index
  (unadjusted) published by the bureau of labor statistics of  the  United

States  department  of  labor for the category of commodities designated
  "refined petroleum products" for the twelve  consecutive  months  ending
  with the month of November, nineteen hundred eighty-nine.
    (3)   Commencing  on  the  first  day  of  January,  nineteen  hundred
  ninety-two, the motor fuel and automotive-type diesel  motor  fuel  rate
  then  in effect on the immediately preceding December thirty-first shall
  be adjusted as follows: such rate shall be multiplied by a fraction  the
  numerator  of  which  is  the  sum  of  the monthly producer price index
  (unadjusted) published by the bureau of labor statistics of  the  United
  States  department  of  labor for the category of commodities designated
  "refined petroleum products" for the twelve  consecutive  months  ending
  with   the   month  of  August,  nineteen  hundred  ninety-one  and  the
  denominator of which is the sum of  the  monthly  producer  price  index
  (unadjusted)  published  by the bureau of labor statistics of the United
  States department of labor for the category  of  commodities  designated
  "refined  petroleum  products"  for the twelve consecutive months ending
  with the month of August, nineteen hundred  ninety.  Commencing  on  the
  first  day  of  January  of  nineteen  hundred ninety-six and every year
  thereafter, the motor fuel and automotive-type diesel  motor  fuel  rate
  then  in effect on the immediately preceding December thirty-first shall
  be adjusted as follows: such rate shall be multiplied by a fraction  the
  numerator  of  which  is  the  sum  of  the monthly producer price index
  (unadjusted) published by the bureau of labor statistics of  the  United
  States  department  of  labor for the category of commodities designated
  "refined petroleum products" for the twelve  consecutive  months  ending
  with  the  month  of  August  of  the immediately preceding year and the
  denominator of which is the sum of  the  monthly  producer  price  index
  (unadjusted)  published  by the bureau of labor statistics of the United
  States department of labor for the category  of  commodities  designated
  "refined  petroleum  products"  for the twelve consecutive months ending
  with the month of August in the year prior to such immediately preceding
  year, provided, however, that  the  adjusted  rate  to  take  effect  on
  January  first,  nineteen  hundred  ninety-six  and  each  January first
  thereafter shall not increase above or decrease below the rate in effect
  on the immediately preceding December thirty-first  by  more  than  five
  percent.
    (4)  Notwithstanding  any  other provision of this article, commencing
  January first, nineteen hundred ninety-seven, the per gallon  rate  with
  respect  to  "railroad  diesel"  shall  be  the  adjusted motor fuel and
  automotive-type diesel motor fuel  rate  under  paragraphs  one  through
  three  of this subdivision for the period commencing such January first,
  nineteen hundred ninety-seven, minus one  and  three  tenths  cents  per
  gallon. Commencing on the first day of January each year thereafter, the
  per gallon rate with respect to "railroad diesel" shall be determined by
  taking  the  then  motor fuel and automotive-type diesel motor fuel rate
  under paragraphs one through three of this subdivision  which  commences
  on  such first day of January and subtracting one and three tenths cents
  per gallon.
    (f) Nonautomotive-type diesel motor fuel rate.
    (1) The basic nonautomotive-type diesel motor fuel rate shall be  five
  cents per gallon.
    (2)   Commencing   April   first,  nineteen  hundred  ninety-one,  the
  nonautomotive-type diesel motor fuel rate shall be the  product  of  the
  basic  rate set forth in paragraph one of this subdivision multiplied by
  a fraction the numerator of which is the sum  of  the  monthly  producer
  price  index (unadjusted) published by the bureau of labor statistics of
  the United States department of labor for the  category  of  commodities
  designated  "refined  petroleum  products"  for  the  twelve consecutive

months ending with the month of November, nineteen hundred  ninety,  and
  the  denominator of which is the sum of the monthly producer price index
  (unadjusted) published by the bureau of  the  labor  statistics  of  the
  United  States  department  of  labor  for  the  category of commodities
  designated "refined  petroleum  products"  for  the  twelve  consecutive
  months ending with the month of November, nineteen hundred eighty-nine.
    (3)   Commencing  on  the  first  day  of  January,  nineteen  hundred
  ninety-two, the nonautomotive-type diesel motor fuel rate then in effect
  on the immediately preceding December thirty-first shall be adjusted  as
  follows:  Such  rate  shall be multiplied by a fraction the numerator of
  which is the sum  of  the  monthly  producer  price  index  (unadjusted)
  published  by  the  bureau  of  labor  statistics  of  the United States
  department of labor for the category of commodities designated  "refined
  petroleum  products"  for  the twelve consecutive months ending with the
  month of August, nineteen hundred  ninety-one  and  the  denominator  of
  which  is  the  sum  of  the  monthly  producer price index (unadjusted)
  published by the  bureau  of  labor  statistics  of  the  United  States
  department  of labor for the category of commodities designated "refined
  petroleum products" for the twelve consecutive months  ending  with  the
  month of August, nineteen hundred ninety. Commencing on the first day of
  January  of  nineteen  hundred ninety-six and every year thereafter, the
  nonautomotive-type  diesel  motor  fuel  rate  then  in  effect  on  the
  immediately   preceding  December  thirty-first  shall  be  adjusted  as
  follows: Such rate shall be multiplied by a fraction  the  numerator  of
  which  is  the  sum  of  the  monthly  producer price index (unadjusted)
  published by the  bureau  of  labor  statistics  of  the  United  States
  department  of labor for the category of commodities designated "refined
  petroleum products" for the twelve consecutive months  ending  with  the
  month of August of the immediately preceding year and the denominator of
  which  is  the  sum  of  the  monthly  producer price index (unadjusted)
  published by the  bureau  of  labor  statistics  of  the  United  States
  department  of labor for the category of commodities designated "refined
  petroleum products" for the twelve consecutive months  ending  with  the
  month  of  August  in the year prior to such immediately preceding year,
  provided, however, that the adjusted rate  to  take  effect  on  January
  first,  nineteen  hundred  ninety-six  and each January first thereafter
  shall not increase above or decrease below the rate  in  effect  on  the
  immediately preceding December thirty-first by more than five percent.
    (4)  Notwithstanding  any  other provision of this article, commencing
  January first, nineteen hundred ninety-eight, nonautomotive-type  diesel
  motor  fuel  which is "manufacturing gallonage," as such term is defined
  in subdivision (m) of section three hundred of this  article,  shall  be
  exempt  from  the  measure  of  the nonautomotive-type diesel motor fuel
  component of the tax imposed under this section.
    (g) Residual petroleum product rate. (1) The basic residual  petroleum
  product rate shall be four cents per gallon.
    (2)  Commencing April first, nineteen hundred ninety-one, the residual
  petroleum product rate shall be the product of the basic rate set  forth
  in  paragraph  one  of  this  subdivision  multiplied  by a fraction the
  numerator of which is the  sum  of  the  monthly  producer  price  index
  (unadjusted)  published  by the bureau of labor statistics of the United
  States department of labor for the category  of  commodities  designated
  "refined  petroleum  products"  for the twelve consecutive months ending
  with the month of November, nineteen hundred ninety, and the denominator
  of which is the sum of the monthly  producer  price  index  (unadjusted)
  published  by  the  bureau  of the labor statistics of the United States
  department of labor for the category of commodities designated  "refined

petroleum  products"  for  the twelve consecutive months ending with the
  month of November, nineteen hundred eighty-nine.
    (3)   Commencing  on  the  first  day  of  January,  nineteen  hundred
  ninety-two, the residual petroleum product rate then in  effect  on  the
  immediately   preceding  December  thirty-first  shall  be  adjusted  as
  follows: Such rate shall be multiplied by a fraction  the  numerator  of
  which  is  the  sum  of  the  monthly  producer price index (unadjusted)
  published by the  bureau  of  labor  statistics  of  the  United  States
  department  of labor for the category of commodities designated "refined
  petroleum products" for the twelve consecutive months  ending  with  the
  month  of  August,  nineteen  hundred  ninety-one and the denominator of
  which is the sum  of  the  monthly  producer  price  index  (unadjusted)
  published  by  the  bureau  of  labor  statistics  of  the United States
  department of labor for the category of commodities designated  "refined
  petroleum  products"  for  the twelve consecutive months ending with the
  month of August, nineteen hundred ninety. Commencing on the first day of
  January of nineteen hundred ninety-six and every  year  thereafter,  the
  residual  petroleum  product  rate  then  in  effect  on the immediately
  preceding December thirty-first shall be adjusted as follows: Such  rate
  shall  be  multiplied by a fraction the numerator of which is the sum of
  the monthly producer price index (unadjusted) published by the bureau of
  labor statistics of the  United  States  department  of  labor  for  the
  category  of commodities designated "refined petroleum products" for the
  twelve consecutive months  ending  with  the  month  of  August  of  the
  immediately  preceding  year  and the denominator of which is the sum of
  the monthly producer price index (unadjusted) published by the bureau of
  labor statistics of the  United  States  department  of  labor  for  the
  category  of commodities designated "refined petroleum products" for the
  twelve consecutive months ending with the month of August  in  the  year
  prior  to  such  immediately preceding year, provided, however, that the
  adjusted  rate  to  take  effect  on  January  first,  nineteen  hundred
  ninety-six and each January first thereafter shall not increase above or
  decrease  below the rate in effect on the immediately preceding December
  thirty-first by more than five percent.
    (4) Notwithstanding any other provision of  this  article,  commencing
  January first, nineteen hundred ninety-eight, residual petroleum product
  which   is  "manufacturing  gallonage,"  as  such  term  is  defined  in
  subdivision (m) of section three  hundred  of  this  article,  shall  be
  exempt  from  the measure of the residual petroleum product component of
  the tax imposed under this section.
    (h) Publication and rounding of rate. (1) The commissioner of taxation
  and finance shall cause to be published in the section for miscellaneous
  notices in the state register, and give other appropriate general notice
  of, the rate adjustment calculation and the  resulting  motor  fuel  and
  automotive-type  diesel motor fuel rate, nonautomotive-type diesel motor
  fuel rate and residual petroleum product rate fixed by this section  for
  the  period  commencing  on April first, nineteen hundred ninety-one, no
  later than the immediately preceding first day of  March  and  for  each
  calendar  year  thereafter no later than the immediately preceding first
  day of December. The calculation and publication of the rates of tax  so
  fixed  by  provisions  of  this  section  shall  not  be included within
  paragraph (a) of subdivision two of section one hundred two of the state
  administrative procedure act relating to the definition of a rule.
    (2) The rates determined pursuant to this section shall be rounded  to
  the nearest one-tenth of one cent.
    (i) Doing business, etc. Any petroleum business shall not be deemed to
  be  doing  business,  engaging in business, employing capital, owning or
  leasing property, or maintaining  an  office  in  this  state,  for  the

purposes  of  this  article,  by  reason  of (i) the maintenance of cash
  balances with banks or trust  companies  in  this  state,  or  (ii)  the
  ownership  of  shares of stock or securities kept in this state, if kept
  in  a  safe  deposit box, safe, vault or other receptacle rented for the
  purpose, or if pledged as collateral security, or if deposited with  one
  or  more  banks  or  trust  companies,  or  brokers who are members of a
  recognized security exchange, in safekeeping  or  custody  accounts,  or
  (iii)  the  taking  of  any  action by any such bank or trust company or
  broker, which is incidental to the rendering of safekeeping or custodian
  service to such petroleum business, or (iv) the maintenance of an office
  in this state by one or more officers  or  directors  of  the  petroleum
  business (where such business is a corporation) who are not employees of
  the  petroleum  business  if  such  petroleum  business otherwise is not
  engaging in business or doing business  in  this  state,  and  does  not
  employ  capital  or  own  or  lease  property  in this state, or (v) the
  keeping of books or records of a petroleum business  in  this  state  if
  such  books  or  records  are  not  kept  by employees of such petroleum
  business and such  petroleum  business  does  not  otherwise  engage  in
  business, do business, employ capital, own or lease property or maintain
  an  office  in  this  state,  or  (vi)  any combination of the foregoing
  activities.
    (j) Special  provision  relating  to  lack  of  jurisdiction  to  tax.
  Notwithstanding  any provision of law to the contrary, if a person shall
  receive any motor fuel in this state with respect to  which  this  state
  was  without  power to impose the tax under this article, and such motor
  fuel thereafter becomes subject to the taxing power of this state,  then
  the  person  possessing  such  motor fuel at such time shall be deemed a
  petroleum business and be liable for the tax  under  this  article  with
  respect  to such motor fuel and shall make the same reports and returns,
  pay the same tax and be subject to all other provisions of this  article
  relating to petroleum businesses with respect to motor fuel.
    (k) Special provision relating to taxation during transitional period.
  With  respect  to  motor  fuel  in  this  state on the date this section
  becomes applicable, there is hereby imposed on all persons holding motor
  fuel in this state on or after such date which has not been included  in
  the  measure  of  the  business  privilege  tax imposed by section three
  hundred one of this article or the measure of the restructured  business
  privilege  tax  imposed by subdivision (a) of this section, a tax on the
  first sale or use in this state of any and all such motor fuel  so  held
  at the rate fixed pursuant to subdivision (e) of this section applicable
  at  the  time  of such sale or use. Provided, that if such motor fuel is
  commingled with other motor fuel held by such person, then, for purposes
  of the tax imposed by this subdivision, such motor fuel  so  held  which
  has  not  been  included  in  the  measure of the business privilege tax
  imposed by section three hundred one of this article or the  measure  of
  such  restructured  business privilege tax shall be deemed to be sold or
  used prior to such other motor fuel. The tax imposed by this subdivision
  shall be reported and paid with the return covering the taxable month in
  which the motor fuel is sold or used.
    (l) Taxes imposed on qualified reservations.  In  furtherance  of  the
  joint  administration  of  the taxes imposed by article twelve-A of this
  chapter and the taxes imposed by this article, the provisions of section
  two hundred eighty-four-e of this chapter concerning the sales of  motor
  fuel  and Diesel motor fuel on qualified Indian reservations shall apply
  to the payment and pass-through of the petroleum  business  tax  in  the
  same  manner  and with the same force and effect as if the provisions of
  such section had been incorporated in full into this article, except  to

the  extent  that  any  such  provision  is  either  inconsistent with a
  provision of this article or not relevant thereto.