N.Y. Tax Law § 285-a: Presumption of taxability

§ 285-a. Presumption of taxability. 1. No person shall purchase motor

fuel in this state, excluding a purchase at retail, unless the taxes

imposed by this article have been assumed by a distributor registered

under this article in accordance with a certification under subdivision

three of this section or paid by such distributor, and, in each of such

instances, are passed through to such purchaser. In addition to any

other civil and criminal penalties which may apply, any person who

purchases motor fuel without having received a certification from the

seller in accordance with subdivision three of this section shall be

jointly and severally liable to pay the taxes imposed by this article

with respect to such motor fuel.

2. For the purpose of the proper administration of this article and to

prevent evasion of the tax on motor fuel imposed by and pursuant to this

article, it shall be presumed that all motor fuel imported, manufactured

or sold, received or possessed in the state is intended for use,

distribution, storage or sale in the state and subject to the taxes

imposed by this article until the contrary is established. It shall be

further presumed that all motor fuel so imported, manufactured or sold,

received or possessed in the state by any person, other than motor fuel

delivered into the ordinary fuel tank connected with the engine of a

means of conveyance in order to propel it, or in small drums or similar

containers, which such person cannot otherwise account for, is subject

to the taxes imposed by this article and such person is responsible for

payment of such taxes. Provided, however, a distributor of motor fuel

who imports, manufactures or sells and stores in the state or who

purchases and stores motor fuel in the state on which he has paid the

taxes imposed by this article shall be allowed an adjustment in arriving

at the gallons subject to the taxes imposed by such section on account

of the gallons the distributor establishes were lost due to shrinkage,

evaporation and handling; provided, however, such allowance shall not

exceed two percent of the fuel stored. Provided, further, that in

arriving at the gallons of motor fuel subject to the taxes imposed by

this article, there shall be allowed an adjustment on account of gallons

lost or destroyed due to an accident, such as fire, and at the time of

such loss or destruction were being held or transported for sale other

than at retail. The burden of proving that any motor fuel is not so

subject shall be upon the person so responsible for such payment with

respect to such fuel.

3. (a) Upon each sale of motor fuel, other than a sale at retail, the

seller must give to the purchaser and the purchaser shall receive at the

time of delivery of such motor fuel, a certification containing such

information as the tax commission shall require which shall include a

statement to the effect: (i) if such seller is a distributor registered

under this article, that he assumed the payment of or paid the taxes

imposed by this article and, in each case, is passing through such

taxes; or (ii) that such seller is passing through such taxes which were

so previously assumed or paid by an identified distributor registered

under this article, and passed through to him.

(b) If the certification required by this subdivision has been

furnished to the purchaser at delivery and accepted in good faith, the

burden of proving that the taxes imposed by this article were assumed or

paid by a distributor registered as such under this article and passed

through shall be solely on the seller.

(c) Where the certification required under this paragraph is not

furnished by the seller at delivery of motor fuel, it shall be presumed

that the taxes imposed by this article have not been assumed or paid by

a distributor registered as such under this article and that the

purchaser in such case is jointly and severally liable for such taxes.

(d) If, due to the circumstances of delivery, it is not possible to

issue a certification required under this subdivision at the time of

delivery of motor fuel, the tax commission may authorize the delivery of

the certification required under this paragraph at a time after the

delivery of the motor fuel which is the subject of the sale under the

limited circumstances it shall prescribe and upon such terms and

conditions it shall deem necessary to ensure collection of the taxes

imposed by this article and the tax imposed by section eleven hundred

two of this chapter.

* 4. Upon each sale of motor fuel, other than a sale that is otherwise

exempt under this article, the distributor must charge the tax imposed

by this article to the purchaser on each gallon sold. If the taxes

imposed by this article have not already been assumed or paid by a

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