N.Y. Tax Law § 1102: Prepayment of sales tax on motor fuel and diesel motor fuel

§ 1102. Prepayment of sales tax on motor fuel and diesel motor fuel.

(a) * (1) Every distributor of motor fuel shall pay, as a prepayment on

account of the taxes imposed by this article and pursuant to the

authority of article twenty-nine of this chapter, a tax on each gallon

of motor fuel (i) which he imports or causes to be imported into this

state for use, distribution, storage or sale in the state or produces,

refines, manufactures or compounds in this state or (ii) if the tax has

not been imposed prior to its sale in this state, which he sells (which

acts shall in regard to motor fuel hereinafter in this article be

encompassed by the phrase "imported, manufactured or sold"), except when

imported, manufactured or sold under circumstances which preclude the

collection of such tax by reason of the United States constitution and

of the laws of the United States enacted pursuant thereto or when

imported or manufactured by an organization described in paragraph one

or two of subdivision (a) of section eleven hundred sixteen of this

article or a hospital included in the organizations described in

paragraph four of such subdivision for its own use and consumption and

except kero-jet fuel when imported by an airline for use in its

airplanes, and except CNG, and except hydrogen, and except E85 when

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, and except aviation

gasoline sold for use in commercial aircraft and general aviation

aircraft.

* NB Effective until September 1, 2031

* (1) Every distributor of motor fuel shall pay, as a prepayment on

account of the taxes imposed by this article and pursuant to the

authority of article twenty-nine of this chapter, a tax on each gallon

of motor fuel (i) which he imports or causes to be imported into this

state for use, distribution, storage or sale in the state or produces,

refines, manufactures or compounds in this state or (ii) if the tax has

not been imposed prior to its sale in this state, which he sells (which

acts shall in regard to motor fuel hereinafter in this article be

encompassed by the phrase "imported, manufactured or sold"), except when

imported, manufactured or sold under circumstances which preclude the

collection of such tax by reason of the United States constitution and

of the laws of the United States enacted pursuant thereto or when

imported or manufactured by an organization described in paragraph one

or two of subdivision (a) of section eleven hundred sixteen of this

article or a hospital included in the organizations described in

paragraph four of such subdivision for its own use and consumption and

except kero-jet fuel when imported by an airline for use in its

airplanes, and except aviation gasoline sold for use in commercial

aircraft and general aviation aircraft.

* NB Effective September 1, 2031

* (2) Every distributor of diesel motor fuel shall pay, as a

prepayment on account of the taxes imposed by this article and pursuant

to the authority of article twenty-nine of this chapter, a tax upon the

sale or use of diesel motor fuel in this state. The tax shall be

computed based upon the number of gallons of diesel motor fuel sold or

used. Provided, however, if the tax has not been imposed prior thereto,

it shall be imposed on the removal of highway diesel motor fuel from a

terminal, other than by pipeline, barge, tanker or other vessel, or the

delivery of diesel motor fuel to a retail service station. The

collection of such tax shall not be made applicable to the sale or use

of diesel motor fuel under circumstances which preclude the collection

of such tax by reason of the United States constitution and of laws of

the United States enacted pursuant thereto. The prepaid tax on diesel

motor fuel shall not apply to (i) the sale of non-highway Diesel motor

fuel to a person registered as a distributor of Diesel motor fuel other

than a sale to such person which involves a delivery at a filling

station or into a repository which is equipped with a hose or other

apparatus by which such fuel can be dispensed into the fuel tank of a

motor vehicle; (ii) the sale to or delivery at a filling station or

other retail vendor of water-white kerosene provided such filling

station or other retail vendor only sells such water-white kerosene

exclusively for heating purposes in containers of no more than twenty

gallons or to the sale of CNG or hydrogen; (iii) the sale of previously

untaxed qualified biodiesel, as defined in subdivision twenty-three of

section two hundred eighty-two of this chapter, to a person registered

under article twelve-A of this chapter as a distributor of Diesel motor

fuel other than (A) a retail sale to such person or (B) a sale to such

person which involves a delivery at a filling station or into a

repository which is equipped with a hose or other apparatus by which

such qualified biodiesel can be dispensed into the fuel tank of a motor

vehicle; or (iv) the sale of previously untaxed highway diesel motor

fuel by a person registered under article twelve-A of this chapter as a

distributor of diesel motor fuel to a person registered under such

article twelve-A as a distributor of diesel motor fuel where the highway

diesel motor fuel is either: (A) being delivered by pipeline, railcar,

barge, tanker or other vessel to a terminal, the operator of which

terminal is registered under section two hundred eighty-three-b of this

chapter, or (B) within such a terminal where it has been so delivered.

Provided, however, that the exemption set forth in this subparagraph

shall not apply to any highway diesel motor fuel if it is removed from a

terminal, other than by pipeline, barge, tanker or other vessel.

* NB Effective until September 1, 2031

* (2) Every distributor of diesel motor fuel shall pay, as a

prepayment on account of the taxes imposed by this article and pursuant

to the authority of article twenty-nine of this chapter, a tax upon the

sale or use of diesel motor fuel in this state. The tax shall be

computed based upon the number of gallons of diesel motor fuel sold or

used. Provided, however, if the tax has not been imposed prior thereto,

it shall be imposed on the removal of highway diesel motor fuel from a

terminal, other than by pipeline, barge, tanker or other vessel, or the

delivery of diesel motor fuel to a retail service station. The

collection of such tax shall not be made applicable to the sale or use

of diesel motor fuel under circumstances which preclude the collection

of such tax by reason of the United States constitution and of laws of

the United States enacted pursuant thereto. The prepaid tax on diesel

motor fuel shall not apply to (i) the sale of non-highway Diesel motor

fuel to a person registered as a distributor of Diesel motor fuel other

than a sale to such person which involves a delivery at a filling

station or into a repository which is equipped with a hose or other

apparatus by which such fuel can be dispensed into the fuel tank of a

motor vehicle; (ii) the sale to or delivery at a filling station or

other retail vendor of water-white kerosene provided such filling

station or other retail vendor only sells such water-white kerosene

exclusively for heating purposes in containers of no more than twenty

gallons; (iii) the sale of previously untaxed qualified biodiesel, as

defined in subdivision twenty-three of section two hundred eighty-two of

this chapter to a person registered under article twelve-A of this

chapter as a distributor of Diesel motor fuel other than (A) a retail

sale to such person or (B) a sale to such person which involves a

delivery at a filling station or into a repository which is equipped

with a hose or other apparatus by which such qualified biodiesel can be

dispensed into the fuel tank of a motor vehicle; or (iv) the sale of

previously untaxed highway diesel motor fuel by a person registered

under article twelve-A of this chapter as a distributor of diesel motor

fuel to a person registered under such article twelve-A as a distributor

of diesel motor fuel where the highway diesel motor fuel is either: (A)

being delivered by pipeline, railcar, barge, tanker or other vessel to a

terminal, the operator of which terminal is registered under section two

hundred eighty-three-b of this chapter, or (B) within such a terminal

where it has been so delivered. Provided, however, that the exemption

set forth in this subparagraph shall not apply to any highway diesel

motor fuel once it is removed from a terminal, other than by pipeline,

barge, tanker or other vessel.

* NB Effective September 1, 2031

(3) The amount of such prepayment per gallon shall be computed

pursuant to the provisions of subdivision (e) of section eleven hundred

eleven of this article. Provided, further, no motor fuel or diesel motor

fuel shall be included in the measure of the tax under clause (i) of

paragraph one and paragraph two of this subdivision unless it shall have

previously come to rest within the meaning of federal decisional law

interpreting the United States constitution.

(b) The taxes required to be prepaid pursuant to this section shall be

administered and collected in a like manner as the taxes imposed by

sections eleven hundred five and eleven hundred ten of this article. All

the provisions of this article relating to or applicable to the

administration, collection and disposition of the taxes imposed by such

sections shall apply to the tax required to be prepaid under this

section so far as such provisions can be made applicable to such

prepayments of tax with such limitations as set forth in this article

and such modifications as may be necessary in order to adapt such

language to the tax so imposed, provided, however, that the provisions

of paragraph one of subdivision (c) of section eleven hundred

thirty-seven of this article and the reference in section eleven hundred

thirty-seven-A of this article to such paragraph one of subdivision (c)

of section eleven hundred thirty-seven shall not be applicable to such

tax required to be prepaid under this section. Such provisions shall

apply with the same force and effect as if the language of those

provisions had been set forth in full in this section except to the

extent that any provision is either inconsistent with a provision of

this section or is not relevant to the tax required to be prepaid by

this section. For purposes of this section, any reference in this

article to the tax or taxes imposed by this article shall be deemed to

refer to the tax required to be prepaid pursuant to this section unless

a different meaning is clearly required. Provided, further, that, except

as otherwise provided in subdivision (j) of section eleven hundred

fifteen of this article and except as otherwise provided in paragraph

five of subdivision (b) of section eleven hundred sixteen of this

article, the exemptions provided in such sections (other than that

provided in paragraph nine of subdivision (a) of such section eleven

hundred fifteen with respect to purchases of kero-jet fuel) shall not

apply to the tax required to be prepaid under this section.

(c) Nothing in this article shall be construed to require the payment

of the tax required to be prepaid pursuant to this section more than

once upon motor fuel or diesel motor fuel sold within the state. When

the foregoing prepaid tax imposed pursuant to this section is paid it

shall have been so paid on account of the taxes imposed by this article

or pursuant to the authority of article twenty-nine of this chapter with

respect to the retail sale or use of motor fuel or diesel motor fuel.

Nothing in this section shall modify or affect the taxes imposed by

sections eleven hundred five and eleven hundred ten of this article as

applied to receipts from the sale or use of such fuel.

(d) Deposit and disposition of revenue. (1) Consistent with sections

eleven hundred forty-eight and twelve hundred sixty-one of this chapter,

the taxes imposed pursuant to this section and interest and penalties

thereon received by the commissioner, after deducting the amount which

the commissioner of taxation and finance or his delegate shall determine

to be necessary for reasonable costs of the commissioner in

administering, collecting and distributing such taxes, shall be

deposited daily with such responsible banks, banking houses or trust

companies, as may be designated by the comptroller, to the credit of the

comptroller. Of the total revenue collected or received under this

section, the comptroller shall retain in his hands such amount as the

commissioner of taxation and finance may determine to be necessary for

refunds under this article and pursuant to the authority of article

twenty-nine of this chapter.

(2) On or before the twelfth day of each month, after reserving such

amount for such refunds and such costs, the commissioner or the

commissioner's delegate shall certify to the comptroller the amount of

all revenues so received during the prior month as a result of the

taxes, interest and penalties so imposed and, in addition, on or before

the last day of June and December the commissioner or delegate shall

certify the amount of such moneys received during and including the

first twenty-five days of said months. At the time the commissioner

prepares such certification, the commissioner or the commissioner's

delegate shall determine the receipts attributable to the amount, and

number of gallons, of motor fuel and diesel motor fuel sold at retail in

each county and city and in the metropolitan commuter transportation

district subject to the taxes imposed by sections eleven hundred five

and eleven hundred ten of this article and the like taxes imposed

pursuant to the authority of article twenty-nine of this chapter and the

commissioner or delegate shall certify the portion of such receipts and

gallons from the total payments that represents the prepaid tax on

account of the taxes imposed by this article and pursuant to the

authority of article twenty-nine of this chapter (determined without

regard to the taxes imposed by this section and any like taxes imposed

pursuant to the authority of article twenty-nine of this chapter) based

upon the retail sales or uses of such fuel in such jurisdiction or

district. The amount of revenues so certified shall be deposited and

distributed by the comptroller in accordance therewith. Where the amount

so certified in any distribution is more or less than the amount due,

the amount of the overpayment or underpayment shall be determined as

soon after the discovery of the overpayment or underpayment as is

reasonably possible and subsequent certifications to the comptroller

shall be adjusted by subtracting the amount of any such overpayment from

or by adding the amount of any such underpayment to such number of

subsequent payments as the comptroller and the commissioner shall

consider reasonable in view of the amount of the overpayment or

underpayment and all other pertinent facts and circumstances.

(e) For the purposes of this section and article twelve-A of this

chapter the term "use" shall mean, in addition to the meaning set forth

in paragraph seven of subdivision (b) of section eleven hundred one of

this article, the exercise of any right or power over motor fuel or

diesel motor fuel by any person, whether or not a purchaser, including,

but not limited to, the receiving, the withdrawal from storage or any

consumption of such fuel.

(f) Every wholesaler of motor fuel, as such term is defined by

subdivision twenty-seven of section two hundred eighty-two of this

chapter, shall pay or be entitled to a credit or refund of the tax

imposed by this section on gallons of motor fuel under the circumstances

set forth in paragraph three of subdivision (e) of section eleven

hundred eleven of this article.

*(g) The tax imposed by this section must be charged on the sale,

other than a retail sale or a sale that is otherwise exempt under this

article, of each gallon of motor fuel or Diesel motor fuel. If the taxes

imposed by this section have not already been assumed or paid by the

distributor on any quantity of such fuel for any reason, including, but

not limited to, the expansion of such fuel as a result of temperature

fluctuation, the distributor must remit such taxes to the commissioner

on the return for the period in which such sale was made.

* NB Effective September 1, 2023