N.Y. Tax Law § 1120: Refunds and credits with respect to motor fuel and diesel motor fuel

§ 1120. Refunds and credits with respect to motor fuel and diesel

motor fuel. (a) Retail vendor. (1) A vendor of motor fuel or diesel

motor fuel who or which is required to collect the taxes imposed by

subdivision (a) of section eleven hundred five of this article and any

like tax imposed pursuant to the authority of article twenty-nine of

this chapter shall be allowed a refund or credit against the amount of

tax collected and required to be remitted to the commissioner pursuant

to the provisions of section eleven hundred thirty-seven of this article

upon the retail sale of motor fuel or diesel motor fuel in the amount of

the tax on such fuel prepaid by or passed through to and included in the

price paid by such vendor pursuant to the provisions of section eleven

hundred two of this article.

(2) A refund or credit shall also be allowed such vendor for the tax

prepaid by or passed through to and included in the price paid by such

vendor upon any motor fuel or diesel motor fuel pursuant to the

provisions of section eleven hundred two of this article if such fuel is

sold at retail by such vendor under circumstances where the taxes

imposed by section eleven hundred five of this article and pursuant to

the authority of article twenty-nine of this chapter are not required by

the provisions of this article to be collected and remitted upon

receipts from a retail sale thereof.

(b) Retail user. A purchaser, user or consumer of motor fuel or diesel

motor fuel at retail who or which is required to pay the tax imposed by

section eleven hundred ten of this article and any like tax imposed

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

respect to the purchase of or the use or consumption of such fuel shall

be allowed a credit against such tax required to be paid to the

commissioner pursuant to such section and article in the amount of the

tax prepaid by or passed through to and included in the price paid by

such purchaser, user or consumer pursuant to the provisions of section

eleven hundred two of this article.

(c) Self-use of motor fuel or diesel motor fuel purchased at

wholesale. A refund or credit equal to the amount of tax prepaid by or

passed through to and included in the price paid by a purchaser, user or

consumer pursuant to the provisions of section eleven hundred two of

this article with respect to a purchase of motor fuel or diesel motor

fuel other than at retail shall be allowed such purchaser, user or

consumer upon the use or consumption of such fuel at retail if the

acquisition of such fuel by the purchaser, user or consumer would have

otherwise been exempt pursuant to section eleven hundred five-A, eleven

hundred fifteen or eleven hundred sixteen of this article but for the

provisions of the last sentence of subdivision (c) of section eleven

hundred two and subdivision (j) of section eleven hundred fifteen or of

such last sentence and paragraph five of subdivision (b) of section

eleven hundred sixteen of this article. Also, a refund or credit shall

be allowed equal to the difference between the amount of tax prepaid by

or passed through to and included in the price paid by a purchaser, user

or consumer pursuant to the provisions of section eleven hundred two of

this article with respect to a purchase of diesel motor fuel other than

at retail and the aggregate of the amount of tax that would have been

imposed if measured by the applicable rate specified in section eleven

hundred five-A of this article and the amount of tax that would have

been imposed if measured by the applicable rate specified in section

twelve hundred ten of article twenty-nine upon diesel motor fuel which

is used for residential heating purposes if the purchase, use or

consumption would have otherwise been subject to such lower rate of tax

pursuant to such section eleven hundred five-A but for the last sentence

of subdivision (a) of such section eleven hundred five-A or pursuant to

section twelve hundred ten but for the last sentence of subparagraph (i)

of paragraph three of subdivision (a) of such section twelve hundred

ten.

(d) Purchase of motor fuel or diesel motor fuel at retail by an exempt

organization. A refund or credit equal to the amount of tax imposed

pursuant to section eleven hundred five of this article and any like tax

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

upon the sale of motor fuel or diesel motor fuel and paid by a purchaser

shall be allowed such purchaser if the purchase, use or consumption of

such fuel would have otherwise been exempt pursuant to section eleven

hundred fifteen or eleven hundred sixteen of this article but for the

provisions of subdivision (j) of section eleven hundred fifteen or

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

this article. Also, there shall be allowed a refund or credit equal to

the difference between the amount of tax actually imposed pursuant to

section eleven hundred five of this article and the amount of tax that

would have been imposed as measured by the applicable rate specified in

section eleven hundred five-A of this article and a refund or credit

equal to the difference between the tax actually imposed pursuant to the

authority of article twenty-nine of this chapter and the amount of tax

that would have been imposed if measured by the applicable rate

specified in section twelve hundred ten of article twenty-nine upon

diesel motor fuel which is used for residential heating purposes if the

purchase, use or consumption would have otherwise been subject to such

lower rate of tax pursuant to such section eleven hundred five-A but for

the last sentence of subdivision (a) of such section eleven hundred

five-A or pursuant to section twelve hundred ten but for the last

sentence of subparagraph (i) of paragraph three of subdivision (a) of

such section twelve hundred ten.

(e) Immediate export. With respect to (i) motor fuel imported,

manufactured or sold or purchased in this state, and (ii) highway diesel

motor fuel, a refund or credit shall be allowed a registered distributor

of this state or a purchaser of the tax required to be prepaid pursuant

to section eleven hundred two of this article in the amount of such tax

paid by or included in the price paid by a distributor or such purchaser

if such fuel was exported from this state for sale 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 provided the applicant complies with

all requirements and rules and regulations of the commissioner,

including evidentiary requirements, relating thereto.

(f) Refunds of the tax required to be prepaid pursuant to the

provisions of section eleven hundred two of this article shall be

allowed only to the extent such tax paid by or passed through to the

retail vendor, or the purchaser, consumer or user exceeds the amount of

tax required to be collected from such person or required to be remitted

by the provisions of this article and pursuant to the authority of

article twenty-nine of this chapter.

(g) Such credit shall be allowed only to the extent that the tax

required to be prepaid pursuant to section eleven hundred two of this

article is prepaid by such vendor, purchaser, user or consumer (i) upon

importation, manufacture, sale or use, as the case may be, and (ii) with

respect to the identified motor fuel or diesel motor fuel for which such

credit is claimed upon the use or consumption thereof, but only to the

extent that the tax imposed by section eleven hundred five of this

article and any like tax imposed pursuant to the authority of article

twenty-nine of this chapter together with the tax imposed by section

eleven hundred ten of this article and any like tax imposed pursuant to

the authority of article twenty-nine of this chapter required to be

paid, collected and remitted has been paid, collected and remitted.

(h) Such refunds and credits shall be subject to the provisions of

sections eleven hundred nineteen and eleven hundred thirty-nine of this

article as if such sections were incorporated in full into this section

and had expressly referred to the refunds and credits authorized by this

section including the periods of limitations on payments and

applications to the commissioner; provided, however, that as provided in

subdivision (e) of section eleven hundred thirty-nine of this article no

interest shall be allowed or paid upon any refund made or credit allowed

pursuant to subdivisions (a) and (b) of this section; and provided,

further, that, with respect to refunds or credits pursuant to

subdivision (d) of this section with respect to organizations described

in paragraph four of subdivision (a) of section eleven hundred sixteen

of this chapter and subdivision (e) of this section, upon receipt of a

claim for refund in processible form, interest shall be allowed or paid

at the overpayment rate set by the commissioner pursuant to section

eleven hundred forty-two of this article, or if no rate is set, at the

rate of six percent per annum, from the due date of the return or the

actual filing date of the return, whichever is later, to the date

immediately preceding the date of the refund check except no interest

shall be allowed or paid if the refund check is mailed within thirty

days of such receipt (except in case of organizations described in

paragraph four of subdivision (a) of section eleven hundred sixteen of

this chapter, the relevant period of time shall be forty-five days from

the date the application for refund is received in processible form and

interest, if allowable, shall apply from the date such application is

received in processible form) and no interest shall be allowed or paid

upon a credit pursuant to such subdivision 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 refund

as expeditiously as possible.