N.Y. Tax Law § 282-a: Imposition of excise tax on Diesel motor fuel

§ 282-a. Imposition of excise tax on Diesel motor fuel. 1. There is

hereby levied and imposed with respect to Diesel motor fuel an excise

tax of four cents per gallon upon the sale or use of Diesel motor fuel

in this state.

The excise tax is imposed on the first sale or use of Diesel motor

fuel to occur which is not exempt from tax under this article. 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 filling station or into the fuel tank

connecting with the engine of a motor vehicle for use in the operation

thereof whichever event shall be first to occur. The tax shall be

computed based upon the number of gallons of Diesel motor fuel sold,

removed or used or the number of gallons of Diesel fuel delivered into

the fuel tank of a motor vehicle, as the case may be. Nothing in this

article shall be construed to require the payment of such excise tax

more than once upon the same Diesel motor fuel. Nor shall the collection

of such tax 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. Provided, further, no 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. All tax for the period for which a

return is required to be filed shall be due on the date limited for the

filing of the return for such period, regardless of whether a return is

filed as required by this article or whether the return which is filed

correctly shows the amount of tax due.

2. No person shall sell or use Diesel motor fuel within this state

(other than a retail sale not in bulk or self-use of Diesel motor fuel

which has been the subject of a retail sale), import or cause the

importation of Diesel motor fuel into the state or produce, refine,

manufacture or compound Diesel motor fuel within the state unless such

person shall be registered by the department as a distributor of Diesel

motor fuel. Provided, the commissioner shall not register as a

distributor of Diesel motor fuel any person who is engaged solely in one

or both of the following: (i) any person who makes or offers to make a

retail sale not in bulk of such fuel or (ii) any person who purchases

Diesel motor fuel in bulk in this state for the sole purpose of

self-use. The commissioner may, however, register as a distributor of

kero-jet fuel only a fixed base operator who makes no sales of kero-jet

fuel other than retail sales not in bulk delivered directly into the

fuel tank of an airplane for use in the operation of such airplane and

who makes no other sales of diesel motor fuel. Such registration shall

apply only to the wholesale purchase of kero-jet fuel and the retail

sale of such fuel not in bulk for delivery directly into the fuel tank

of an airplane for use in the operation thereof. Provided, further, that

if the commissioner is satisfied that full registration is not necessary

in order to protect tax revenues, the commissioner may limit or modify

the requirement of registration as a distributor with respect to any

person otherwise required to register solely because such person engages

in the sale of non-highway Diesel motor fuel where such person makes

sales of non-highway Diesel motor fuel to the consumer solely for the

purposes described in subparagraph (i) of paragraph (b) of subdivision

three of this section, provided that if the commissioner so limits or

modifies such registration requirement with respect to such person, then

such registration shall apply only to the importation, sale and

distribution of such non-highway Diesel motor fuel. The commissioner may

also waive any other requirement imposed by this article on such a

distributor. All the provisions of section two hundred eighty-three of

this article shall apply to applicants for registration and registrants

with respect to Diesel motor fuel, and, in addition, distributors with

respect to Diesel motor fuel shall be subject to all other provisions of

this article relating to distributors of motor fuel, including but not

limited to, the keeping of records, the fixing, determination and

payment of tax and filing of returns. Provided, further, the

commissioner may limit or modify the requirement of registration as a

distributor with respect to any person who produces for self use

"unqualified biodiesel."

3. (a) The tax imposed by this section shall not apply to the sale of

untaxed Diesel motor fuel to or the use of such fuel by an organization

described in paragraph one or two of subdivision (a) of section eleven

hundred sixteen of this chapter where such Diesel motor fuel is used by

such organization for its own use or consumption.

(b) The tax on the incidence of sale or use imposed by subdivision one

of this section shall not apply to: (i) the sale or use of non-highway

Diesel motor fuel, but only if all of such fuel is consumed other than

on the public highways of this state (except for the use of the public

highway by farmers to reach adjacent farmlands); provided, however, this

exemption shall in no event apply to a sale of non-highway Diesel motor

fuel 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 (except for delivery

at a farm site which qualifies for the exemption under subdivision (g)

of section three hundred one-b of this chapter); or (ii) a sale to the

consumer consisting of not more than twenty gallons of water-white

kerosene to be used and consumed exclusively for heating purposes; or

(iii) 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 (iv) a

sale of kero-jet fuel to an airline for use in its airplanes or a use of

kero-jet fuel by an airline in its airplanes; or (v) a sale of kero-jet

fuel by a registered distributor of Diesel motor fuel to a fixed base

operator registered under this article as a distributor of kero-jet fuel

only where such fixed base operator is engaged solely in making or

offering to make retail sales not in bulk of kero-jet fuel directly into

the fuel tank of an airplane for the purpose of operating such airplane;

or (vi) a retail sale not in bulk of kero-jet fuel by a fixed base

operator registered under this article as a distributor of kero-jet fuel

only where such fuel is delivered directly into the fuel tank of an

airplane for use in the operation of such airplane; or (vii) the sale of

previously untaxed qualified biodiesel to a person registered under this

article 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 (viii) the sale of

previously untaxed highway Diesel motor fuel by a person registered

under this article as a distributor of Diesel motor fuel to a person

registered under this article 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 article, 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.

(c) Nothing in this article shall exempt non-highway diesel motor fuel

from the imposition of the tax under this section, if such non-highway

diesel motor fuel is intended for use on the waterways of the state

including any other waterways bordering on the state, for operating

pleasure or recreational motor boats thereon.

4. The tax imposed by this section on Diesel motor fuel shall be

passed through by the seller and included as part of the selling price

to each purchaser of such fuel. Provided, however, the amount of the tax

imposed by this section may be excluded from the selling price of Diesel

motor fuel where (i) a sale of Diesel motor fuel is made to an

organization described in paragraph (a) of subdivision three of this

section solely for the purpose stated therein; (ii) a sale of

non-highway Diesel motor fuel is made to a consumer but only if such

non-highway Diesel motor fuel is not delivered to a filling station, nor

delivered into a storage tank which is equipped with a hose or other

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

motor vehicle; or (iii) 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 (iv) a sale of kero-jet fuel is made to an airline for use

in its airplanes.

5. All the provisions of this article relating to the administration

and collection of the taxes on motor fuel, except section two hundred

eighty-three-a of this article, shall be applicable to the tax imposed

by this section with such limitation as specifically provided for in

this article with respect to Diesel motor fuel and with such

modification as may be necessary to adapt the language of such

provisions to the tax imposed by this section. With respect to the bond

or other security required by subdivision three of section two hundred

eighty-three of this article, the commissioner, in determining the

amount of bond or other security required for the purpose of securing

tax payments, shall take into account the volume of non-highway Diesel

motor fuel and other Diesel motor fuel sold for exempt purposes by a

distributor of Diesel motor fuel during prior periods as a factor

reducing potential tax liability along with any other relevant factors

in determining the amount of security required. With respect to the bond

required to be filed prior to registration as a Diesel motor fuel

distributor, no bond shall be required of an applicant upon a finding of

the applicant's fiscal responsibility, as reflected by such factors as

net worth, current assets and liabilities, and tax reporting and payment

history, and the department shall not provide for a minimum bond of

every applicant.