N.Y. Tax Law § 1139: Refunds

§ 1139. Refunds. (a) In the manner provided in this section the tax

commission shall refund or credit any tax, penalty or interest

erroneously, illegally or unconstitutionally collected or paid if

application therefor shall be filed with the tax commission (i) in the

case of tax paid by the applicant to a person required to collect tax,

within three years after the date when the tax was payable by such

person to the tax commission as provided in section eleven hundred

thirty-seven, or (ii) in the case of a tax, penalty or interest paid by

the applicant to the tax commission, within three years after the date

when such amount was payable under this article, or (iii) in the case of

a tax due from the seller, transferor or assignor and paid by the

applicant to the tax commission where the applicant is a purchaser,

transferee or assignee liable for such tax pursuant to the provisions of

subdivision (c) of section eleven hundred forty-one of this chapter,

within two years after the giving of notice by the tax commission to

such purchaser, transferee or assignee of the total amount of any tax or

taxes which the state claims to be due from the seller, transferor or

assignor. Such application shall be in such form as the tax commission

shall prescribe. No refund or credit shall be made to any person of tax

which he collected from a customer until he shall first establish to the

satisfaction of the tax commission, under such regulations as it may

prescribe, that he has repaid such tax to the customer. Notwithstanding

any other provision of this article, if the time to file an application

for refund or credit of any tax, penalty or interest would otherwise

have expired on or before December nineteenth, nineteen hundred

sixty-nine, the time for filing such application is hereby extended to

and including December twentieth, nineteen hundred sixty-nine, except

that it shall be further extended, as provided in subdivision (c) of

section eleven hundred forty-seven, where a taxpayer has consented in

writing to the extension of the period for assessment of additional tax.

(b) If an application for refund or credit is filed with the

commissioner of taxation and finance as provided in subdivision (a) of

this section, the commissioner of taxation and finance shall grant or

deny such application in whole or in part within six months of receipt

of the application in a form which is able to be processed and shall

notify such applicant by mail accordingly. Such determination shall be

final and irrevocable unless such applicant shall, within ninety days

after the mailing of notice of such determination, petition the division

of tax appeals for a hearing. After such hearing, the division of tax

appeals shall mail notice of the determination of the administrative law

judge to such applicant and to the commissioner of taxation and finance.

Such determination may be reviewed by the tax appeals tribunal as

provided in article forty of this chapter. The decision of the tax

appeals tribunal may be reviewed as provided in section two thousand

sixteen of this chapter.

(c) Claim for credit or refund of an overpayment of sales tax shall be

filed by the taxpayer within three years from the time the return was

filed or two years from the time the tax was paid, whichever of such

periods expires the later, or if no return was filed, within two years

from the time the tax was paid. If the claim is filed within the three

year period, the amount of the credit or refund shall not exceed the

portion of the tax paid within the three years immediately preceding the

filing of the claim plus the period of any extension of time for filing

the return. If the claim is not filed within the three year period, but

is filed within the two year period, the amount of the credit or refund

shall not exceed the portion of the tax paid during the two years

immediately preceding the filing of the claim. Except as otherwise

provided in this section, if no claim is filed, the amount of a credit

or refund shall not exceed the amount which would be allowable if a

claim had been filed on the date the credit or refund is allowed. No

refund or credit shall be made of a tax, interest or penalty paid after

a determination by the commissioner made pursuant to section eleven

hundred thirty-eight unless it be found that such determination was

erroneous, illegal or unconstitutional or otherwise improper, by the

division of tax appeals pursuant to article forty of this chapter or by

the commissioner of his own motion, or in a proceeding for judicial

review provided for in section two thousand sixteen of this chapter, in

which event a refund or credit shall be made of the tax, interest or

penalty found to have been overpaid.

(d) (1) Except in respect to an overpayment made on a return described

in paragraph two of subdivision (a) of section eleven hundred thirty-six

of this part or on a return described in subdivision (c) of section

eleven hundred thirty-seven-A of this part, interest shall be allowed

and paid upon any refund made or credit allowed pursuant to this section

except as otherwise provided in paragraph two of this subdivision or

subdivision (e) of this section and except that no interest shall be

allowed or paid if the amount thereof would be less than one dollar.

Such interest shall be at the overpayment rate set by the commissioner

pursuant to section eleven hundred forty-two of this part, or if no rate

is set, at the rate of six percent per annum from the date when the tax,

penalty or interest refunded or credited was paid to a date preceding

the date of the refund check by not more than thirty days, provided,

however, that for the purposes of this subdivision any tax paid before

the last day prescribed for its payment shall be deemed to have been

paid on such last day. In the case of a refund or credit claimed on a

return of tax which is filed after the last date prescribed for filing

such return (determined with regard to extensions), or claimed on an

application for refund or credit, no interest shall be allowed or paid

for any day before the date on which the return or application is filed.

For purposes of this subdivision, a return or application for refund or

credit shall not be treated as filed until it is filed in processible

form. A return or application is in a processible form if it is filed on

a permitted form, and contains the taxpayer's name, address and

identifying number and the required signatures, and sufficient required

information (whether on the return or application or on required

attachments) to permit the mathematical verification of tax liability

shown on the return or refund or credit claimed on the application.

(2) If a refund is made or a credit is allowed within three months

after the last date prescribed or permitted by extension of time for

filing a return on which the refund or credit was claimed or within

three months after the return was filed, whichever is later, or within

three months after an application for refund or credit is filed on which

that refund or credit was claimed, no interest will be allowed or paid

on that refund or credit.

(e) The provisions of subdivisions (a), (b) and (c) of this section

shall be applicable to applications for refund or credit pursuant to

section eleven hundred nineteen and subdivision (e) of section eleven

hundred thirty-two, except that an application for credit may be made as

provided in such section or subdivision and except that no interest

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

to such section or such subdivision.

(f) Where a consumer returns a motor vehicle to and receives a refund

of the full purchase price, capitalized cost or a portion thereof from

the manufacturer in accordance with the provisions of section one

hundred ninety-eight-a or subdivision five of section three hundred

ninety-six-p of the general business law, the commissioner of taxation

and finance shall refund to such consumer any tax paid by the consumer

on the amount of the purchase price, capitalized costs and fees and

charges refunded by the manufacturer which is not in excess of the

receipts and proportionate to the receipts subject to tax. All the

provisions of this section shall apply to the refund authorized by this

subdivision, provided, however, that a request for a refund under this

subdivision shall be timely made if such request for a refund is made

within three years of the date the refund from the manufacturer is

received by a consumer pursuant to subdivision (c) of section one

hundred ninety-eight-a of the general business law and further provided

that interest allowable under subdivision (d) of this section shall be

payable from the date which is three months after the date the

application for refund in processible form is received.

(g) The tax commission shall refund or credit any tax imposed, under

subdivision (a) of section eleven hundred five or section eleven hundred

ten, and paid on or after July first, nineteen hundred eighty-seven with

respect to:

(i) tractors, trailers or semi-trailers, as such terms are defined in

article one of the vehicle and traffic law, and property installed on

such vehicles for their equipping, maintenance or repair provided such

vehicle is used in combination where the gross vehicle weight of such

combination exceeds twenty-six thousand pounds; and

(ii) services, if performed upon tractors, trailers or semi-trailers

described in paragraph (i) of this subdivision or on property installed

on such vehicles for their equipping, maintenance or repair.

All of the provisions of this section shall apply to the refund

authorized by this subdivision, provided, however, that interest

allowable under subdivision (d) of this section shall be payable in

accordance with such subdivision but only from the date the tax, penalty

or interest refunded or credited was paid, or was deemed to have been

paid, to March thirty-first, nineteen hundred eighty-eight and from the

date which is ninety days after the date the application for refund in

processible form is received.

(h)(1) Notwithstanding any provision of the law to the contrary,

pursuant to the provisions of this subdivision, the commissioner shall

refund or credit to (i) a credit card issuer tax paid pursuant to this

article in respect to motor fuel and diesel motor fuel purchased by a

government entity and paid for by such government entity with a credit

card issued by such credit card issuer or (ii) a fuel distributor tax

paid pursuant to this article in respect to motor fuel and diesel motor

fuel purchased by a government entity and paid for by such government

entity with a credit card issued by a credit card issuer. Such credit

card issuer or such fuel distributor, as designated by the parties in a

written designation to the commissioner, shall be the only person

eligible to receive such refund or credit, provided that: (A) such taxes

were actually paid to the commissioner; (B) the fuel so purchased by the

government entity is for its own use or consumption such that the

purchase qualifies as an exempt purchase pursuant to an exception in

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

this article; (C) the credit card issuer or fuel distributor meets the

requirements of paragraph two of this subdivision; and (D) the

commissioner has not issued a notice pursuant to subdivision fourteen of

section eleven hundred forty-two of this part indicating that the credit

card issuer or fuel distributor is no longer allowed to claim a refund

or credit under this subdivision for the fuel purchased by a particular

government entity. Such application for credit or refund shall be

submitted after the end of the quarter in which the vendor of the motor

fuel or diesel motor fuel was required to report the tax liability it

collected from the credit card issuer or fuel distributor pursuant to

section eleven hundred thirty-six of this part, but within the

applicable statute of limitations as required under this section.

(2) In order to be eligible to receive the refund or credit provided

for in paragraph one of this subdivision, the credit card issuer or fuel

distributor shall: (A) file with the commissioner a certificate of

registration and receive a certificate of authority pursuant to section

eleven hundred thirty-four of this part, if not already so registered,

provided, however, the credit card issuer or fuel distributor shall

provide such additional information as the commissioner may require; (B)

establish it has (i) not charged or otherwise received any tax, or any

amount purportedly as tax, from the government entity making the

purchase; and (ii) filed a written consent signed by the chief fiscal

officer of the government entity stating that no tax was charged to such

government entity by the credit card issuer or fuel distributor, and

that therefore the government entity has no claim for a credit or refund

relating to its purchases of motor fuel or diesel motor fuel effected

with the credit card issuer's credit card and that no such claim has or

will be made by the government entity; (C) establish either that (i) the

retail station or other vendor has been repaid the amount of tax it

charged to the government entity on the government entity's purchase of

the motor fuel or diesel motor fuel, or (ii) obtained the written

consent of the retail station or other vendor to the allowance of the

credit or refund to the credit card issuer or fuel distributor; and (D)

provide such detailed transactional and jurisdictional information to

the commissioner as the commissioner may require, in the form requested

by the commissioner.

(3)(A) The term "government entity" means an entity described in

paragraph one, two or three of subdivision (a) of section eleven hundred

sixteen of this article or any diplomatic mission or diplomatic

personnel who are permitted by the United States to purchase fuel and

diesel motor fuel exempt from the taxes imposed pursuant to this article

and articles twelve-A and thirteen-A of this chapter.

(B) The term "credit card issuer" means a person which finances the

exempt purchase of motor fuel or diesel motor fuel by a government

entity by means of a credit or other access card issued to the

government entity by such person.

(C) The term "fuel distributor" means any person who is a registered

distributor under article twelve-A of this chapter and who is registered

as a person required to collect tax pursuant to this article.

(4) If any requirement of paragraph two of this subdivision is not

met, or if the credit card issuer and, where applicable, the fuel

distributor, receive a notice pursuant to subdivision fourteen of

section eleven hundred forty-two of this article, then an amount equal

to the tax imposed by this article shall be collected from the

government entity, notwithstanding such entity's exempt status, and such

government entity shall be responsible for seeking any credit or refund

which it may be allowed under this article.

(5) The provisions of subdivisions (a), (b) and (c) of this section

shall also apply to an application for refund or credit pursuant to this

subdivision, except to the extent that such subdivisions are

inconsistent with this subdivision, and except that no interest shall be

allowed or paid upon any refund made or credit allowed pursuant to this

subdivision. Any document required pursuant to this subdivision shall be

in such form and contain such information as the commissioner shall

prescribe.

(6) A credit card issuer or fuel distributor designated pursuant to

this subdivision to receive the refund or credit and its officers,

directors, employees, managers and members under a duty to act for such

credit card issuer or fuel distributor in complying with any requirement

of this article and, where such credit card issuer or fuel distributor

is a partnership or limited liability company, any member of such

partnership or company shall be deemed to be persons required to collect

tax and shall be personally liable in accordance with section eleven

hundred thirty-three of this article with respect to the liabilities

described in subparagraph (E) of paragraph three of subdivision (a) of

section eleven hundred thirty-eight of this part. Nothing in this

subdivision shall be construed to require a credit card issuer to file a

return pursuant to section eleven hundred thirty-six of this part unless

otherwise required to do so by another provision of this article or

unless the commissioner, in his or her discretion, determines it is

necessary for the proper enforcement of this article for credit card

issuers or distinct classes of such issuers to file such returns and

gives notice of such determination to such issuers.

(7) Nothing in this subdivision shall be construed to exempt (A) the

purchase of motor fuel or diesel motor fuel by a government entity where

it is not the ultimate user or consumer of such fuel, or (B) any sale by

a government entity of motor fuel or diesel motor fuel.