N.Y. Tax Law § 182-a: Franchise tax on certain oil companies

§ 182-a. Franchise tax on certain oil companies. 1. Notwithstanding

any other provision of this chapter, or of any other law, for the period

beginning with taxable years commencing on or after the first day of

July, nineteen hundred eighty-one, but including that portion of any

taxable year commencing prior thereto to the extent of that portion of

such year which includes the period which commences with the first day

of July, nineteen hundred eighty-one, and ending with but not including

taxable years commencing on or after the first day of July, nineteen

hundred eighty-three, but including that portion of any taxable year

commencing prior thereto to the extent of that portion of such year

which includes the period which terminates with the thirtieth day of

June, nineteen hundred eighty-three, an annual tax is hereby imposed

upon every oil company equal to three-quarters of one per centum of its

gross receipts from sales of petroleum, or the portion thereof allocated

within the state as hereinafter provided, for the privilege of

exercising its corporate franchise, or of doing business, or of

employing capital, or of owning or leasing property in this state in a

corporate or organized capacity, or of maintaining an office in this

state, for all or any part of each of its taxable years. In no event

shall the tax imposed by this section be less than two hundred fifty

dollars.

2. As used in this section: (a) The term "oil company" means every

corporation formed for or engaged in the business of importing or

causing to be imported (by a person other than a corporation subject to

tax under this section) into this state for sale in this state,

extracting, producing, refining, manufacturing, or compounding

petroleum. Provided, however, a corporation which is principally engaged

in selling fuel oil (excluding diesel motor fuel) used for residential

purposes shall not be considered an oil company. For purposes of this

section, petroleum shall include, but shall not be limited to, gasoline,

aviation fuel, kerosene, diesel motor fuel, benzol, distillate fuels,

residual oil, crude oil or any similar product.

(b) The term "gross receipts from sales of petroleum" means all

receipts from sales of petroleum, whether from within or without the

United States, whether in cash, credits or property of any kind or

nature, without any deduction therefrom on account of the cost of the

property sold, the cost of materials used, labor or services, or other

costs, interest or discount paid, or any other expense whatsoever.

Receipts received by reason of any sale of fuel oil (excluding diesel

motor fuel) or liquified or liquifiable gases (except when sold in

containers of less than one hundred pounds) used for residential

purposes shall not be included in gross receipts.

However, to prevent the multiple application of the tax imposed by

this section, gross receipts shall not include the receipts from any

sale for resale to a purchaser which is an oil company subject to tax

under this section. It shall be presumed that no receipts are receipts

from a sale for resale to such purchaser unless such purchaser furnishes

the oil company with a resale certificate in such form and under such

terms and conditions as the tax commission may prescribe and such

certificate is accepted in good faith by such oil company. In addition,

it shall be presumed that no receipts are receipts received by reason of

any sale of fuel oil (excluding diesel motor fuel) or liquified or

liquifiable gases (except when sold in containers of less than one

hundred pounds) used for residential purposes unless the purchaser

furnishes the oil company with a residential use certificate, in such

form, at such times and under such terms and conditions as the tax

commission may prescribe, and such certificate is accepted in good faith

by such oil company. Provided, however, where a purchaser is a consumer

of such fuel oil or liquified or liquifiable gases, such purchaser shall

not be required to furnish such certificate and the oil company making

such sale shall be required to maintain records of such transactions in

such form and manner as the tax commission may prescribe. In order to

assist the purchaser from an oil company in completing its residential

use certificate, the tax commission may require such other purchasers of

petroleum as it deems necessary to furnish their suppliers with

residential use certificates.

(c) The term "corporation" includes a corporation, joint-stock company

or association and any business conducted by a trustee or trustees

wherein interest or ownership is evidenced by certificate or other

written instrument.

(d) The term "taxable year" means the oil company's taxable year for

federal income tax purposes, or the part thereof during which such oil

company is subject to tax under this section.

(e) The term "petroleum" shall mean crude oil, plant condensate,

gasoline, aviation fuel, kerosene, diesel motor fuel, benzol,

petrochemical feedstocks, distillate fuels, residual oil, and liquified

or liquifiable gases such as butane, ethylene, or propane.

3. The portion of the gross receipts from sales of petroleum of an oil

company to be allocated within the state shall be determined by

multiplying such gross receipts by the ratio which the gross receipts

from sales of petroleum where shipments are made to points within the

state bear to the gross receipts from sales of petroleum within and

without the state. Receipts received by reason of any sale of fuel oil

or liquified or liquifiable gases used for residential purposes and

receipts received from a sale for resale as described in paragraph (b)

of subdivision two of this section shall be included as a receipt in the

computation of the allocation percentage.

4. Every oil company subject to tax under this section shall keep such

records of its business in such form as the tax commission may require,

and such records shall be preserved for a period of three years, except

that the tax commission may consent to their destruction within that

period or may require that they be kept longer.

5. Every oil company subject to tax hereunder shall annually file on

or before the fifteenth day of the third month following the close of

its taxable year a return which shall state the gross receipts from

sales of petroleum for the period covered by such return. Returns shall

be filed with the tax commission in a form prescribed by it setting

forth such information as the tax commission may prescribe. Every oil

company subject to tax hereunder which ceases to exercise its franchise

or to be subject to the tax imposed by this section shall transmit to

the tax commission a return on the date of such cessation or at such

other time as the tax commission may require covering each year or

period for which no return was theretofore filed. Notwithstanding the

foregoing provisions of this subdivision, the tax commission may require

any oil company to file an annual return, which shall contain any data

specified by it, regardless of whether the oil company is subject to tax

under this section.

6. If any provision of this section conflicts with any other provision

contained in this article, the provisions of this section shall control,

but the provisions of this article which do not conflict with the

provisions of this section shall apply with respect to the taxes under

this section, insofar as they are, or may be made, applicable.

7. Any corporation which is subject to tax under section one hundred

eighty-three, one hundred eighty-four, one hundred eighty-five or one

hundred eighty-six of this article shall not be subject to tax under

this section.

8. An oil company which is not incorporated or organized under the

laws of this state shall not be deemed to be doing business, employing

capital, owning or leasing property, or maintaining an office in this

state, for the purposes of this section, by reason of (a) the

maintenance of cash balances with banks or trusts companies in this

state, or (b) 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 of banks or trust companies, or brokers who are

members of a recognized security exchange, in safekeeping or custody

accounts, or (c) 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 oil company, or (d) the maintenance of an

office in this state by one or more officers or directors of the oil

company who are not employees of the oil company if the company

otherwise is not doing business in this state, and does not employ

capital or own or lease property in this state, or (e) the keeping of

books or records of an oil company in this state if such books or

records are not kept by employees of such oil company and such oil

company does not otherwise do business, employ capital, own or lease

property or maintain an office in this state, or (f) any combination of

the foregoing activities.

9. Any receiver, referee, trustee, assignee or other fiduciary, or any

officer or agent appointed by any court, who conducts the business of

any oil company shall be subject to the tax imposed by this section in

the same manner and to the same extent as if the business were conducted

by the agents or officers of such oil company. A dissolved oil company

which continues to conduct business shall also be subject to the tax

imposed by this section.

10. (a) Where a false or fraudulent resale certificate or residential

use certificate has been furnished to an oil company or to any other

person, the corporation or person furnishing such certificate shall be

subject to a penalty equal to three per centum of the gross receipts

which would have otherwise been taxable to such oil company if such

certificate had not been furnished to such company or to such other

person. Such penalty shall be assessed, collected and paid in the same

manner as the addition to tax with respect to a deficiency due to fraud

provided for in subsection (e) of section one thousand eighty-five of

this chapter is assessed, collected and paid.

(b) If a purchaser which is required by paragraph (b) of subdivision

two of section one hundred eighty-two-a to provide an oil company or

other supplier with a residential use certificate fails to provide such

certificate or provides a certificate which understates the amount of

fuel oil (excluding diesel motor fuel) or liquified or liquifiable gases

(except when sold in containers of less than one hundred pounds) used

for residential purposes, unless it is shown that such failure or

understatement is due to reasonable cause and not to willful neglect,

there shall, upon notice and demand by the tax commission and in the

same manner as tax, be paid by such purchaser a penalty of one hundred

dollars for each such failure or for each certificate containing such

understatement; provided, however, in no event may more than five

thousand dollars in such penalties be imposed against such purchaser in

any calendar year.

11. All taxes, interest and penalties collected or received by the

commissioner under the taxes and penalties imposed by this section shall

be deposited daily in one account with such responsible banks, banking

houses or trust companies as may be designated by the comptroller, to

the credit of the comptroller. Such an account may be established in one

or more of such depositories. Such deposits shall be kept separate and

apart from all other money in the possession of the comptroller. The

comptroller shall require adequate security from all such depositories.

Of the total revenue collected or received under this section, the

comptroller shall retain in his hands such amount as the commissioner

may determine to be necessary for refunds under this section, out of

which amount the comptroller shall pay any refunds to which oil

companies shall be entitled under the provisions of this section. After

reserving the amount required to pay such refunds, the comptroller shall

prior to April first, nineteen hundred ninety-four, deposit weekly

forty-five percent of all remaining revenue in the mass transportation

operating assistance fund to the credit of the public transportation

systems operating assistance account therein, and fifty-five percent of

such revenue in such fund to the credit of the metropolitan mass

transportation operating assistance account therein, established by

section eighty-eight-a of the state finance law, and on and after April

first, nineteen hundred ninety-four, after reserving the amount to pay

such refunds, the comptroller shall deposit weekly all the revenues

remaining in such mass transportation operating assistance fund to the

credit of such public transportation systems operating assistance

account therein. After reserving the amount to pay such refunds, the

comptroller shall on and after April first, nineteen hundred ninety-six,

deposit weekly forty-five percent of all remaining revenue in such mass

transportation operating assistance fund to the credit of such public

transportation systems operating assistance account therein, and

fifty-five percent of such revenue in such fund to the credit of such

metropolitan mass transportation operating assistance account therein.