2012 New York Consolidated Laws
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, 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  highway
  diesel  motor  fuel  component  determined  pursuant to paragraph one of
  subdivision (c) of this  section,  the  non-highway  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 highway 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)  Highway  Diesel motor fuel component. (A) The highway diesel
  motor fuel component shall be determined by multiplying the  motor  fuel
  and  highway  diesel  motor fuel rate times (1) the number of gallons of
  highway 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 highway 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  highway  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  highway  diesel motor fuel be included in the measure of the
  tax imposed by this article more than once.
    (B) Highway 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) a commercial fishing vessel (as defined in  subdivision  (j)  of
  section  three hundred of this article) if the highway 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) Non-highway diesel motor fuel component.  The  non-highway  diesel
  fuel component shall be determined by multiplying the non-highway diesel
  motor  fuel rate times the number of gallons of non-highway 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
  non-highway  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 non-highway 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 highway diesel motor fuel rate. (1) The basic motor
  fuel  and  highway  diesel  motor  fuel rate shall be ten and two-tenths
  cents per gallon.
    (2) Every year as of January first, the motor fuel and highway  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

  shall not increase above or decrease below the rate  in  effect  on  the
  immediately preceding December thirty-first by more than five percent.
    (3)  Notwithstanding  any  other  provision  of  this article, the per
  gallon rate with respect to "railroad  diesel"  shall  be  the  adjusted
  motor  fuel  and highway diesel motor fuel rate under paragraphs one and
  two of this subdivision minus one and three tenths cents per gallon.
    (f) Non-highway diesel motor fuel rate.
    (1) The basic non-highway diesel motor fuel rate  shall  be  nine  and
  three-tenths cents per gallon.
    (2)  Every  year as of January first the non-highway 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
  shall  not  increase  above  or decrease below the rate in effect on the
  immediately preceding December thirty-first by more than five percent.
    (3) Notwithstanding any other provision of this  article,  non-highway
  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 non-highway 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 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 highway diesel
  motor fuel  rate,  non-highway  diesel  motor  fuel  rate  and  residual
  petroleum  product  rate fixed by this section for the period commencing
  on January first, two  thousand  twelve,  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.
    (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.
    (m)  Special  rate adjustment for certain vessels. Notwithstanding any
  provision of this section to the contrary, the use of non-highway diesel
  motor fuel in the engine of a vessel to  propel  such  vessel  shall  be
  subject  to  tax  at  the  motor fuel and highway diesel motor fuel rate
  provided for in this section, and shall be subject to the provisions  of
  section  three  hundred  one-j of this article, including the adjustment
  set forth in paragraph four of subdivision (a)  of  such  section  three
  hundred  one-j.  A credit or refund shall be available to the extent tax
  paid on gallonage used to propel any such vessel exceeds the  amount  of
  tax  due based on the tax rate set forth herein. Provided, however, that
  the commissioner shall require such documentary proof to qualify for any
  credit or reimbursement provided hereunder  as  the  commissioner  deems
  appropriate.