N.Y. Tax Law § 285-b: Presumption of taxability--Diesel motor fuel

§ 285-b. Presumption of taxability--Diesel motor fuel. 1. Except with

respect to the exemptions from the excise tax on Diesel motor fuel set

forth in subdivision three of section two hundred eighty-two-a of this

article, no person shall purchase Diesel motor fuel in this state unless

the taxes imposed by this article have been assumed by a registered

distributor of Diesel motor fuel in accordance with a certification

under subdivision four of this section or paid by such distributor and,

in each of such instances, except in the case of an exemption from the

pass through of such tax authorized in subdivision four of such section

two hundred eighty-two-a, are passed through to such purchaser. In

addition to any other civil and criminal penalties which may apply, any

person who purchases Diesel motor fuel without having received a

certification from the seller in accordance with subdivision four of

this section shall be jointly and severally liable to pay the taxes

imposed by this article with respect to such Diesel motor fuel.

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

prevent evasion of the taxes imposed on Diesel motor fuel by this

article, it shall be presumed that all Diesel motor fuel sold, received

or possessed in the state is subject to the taxes imposed by this

article until the contrary is established. It shall be further presumed

that any person so selling, receiving or possessing such Diesel motor

fuel is responsible for payment of the excise taxes on such fuel.

3. (a) The claim for or exemption from tax provided for in

subparagraphs (i), (ii), (iii), (iv), and (vi) of paragraph (b) of

subdivision three of section two hundred eighty-two-a of this article

shall be established by means of an exempt transaction certificate. If

any such exemption is applicable, such certificate shall be provided by

the purchaser to the seller at the time of or prior to delivery of the

Diesel motor fuel. Such exempt transaction certificate shall set forth

the name and address of the purchaser and the basis of the exemption and

shall be signed by such purchaser and by the seller. Such certificate

shall be in such form and contain such other information as the

commissioner shall require. Where a proper and complete exempt

transaction certificate has been furnished and accepted by the seller in

good faith, such certificate under such circumstance shall relieve the

seller of the burden of proving that the Diesel motor fuel covered by

such certificate is exempt from tax by reason of subparagraph (i), (ii),

(iii), (iv), or (vi) of paragraph (b) of subdivision three of such

section two hundred eighty-two-a. Any purchaser who furnishes to his

seller a false or fraudulent exempt transaction certificate for the

purpose of establishing an exemption from the tax imposed by section two

hundred eighty-two-a of this article shall be jointly and severally

liable for the tax imposed by such section. In lieu of an exempt

transaction certificate, the commissioner may provide for the

establishment of such exemption by means of a procedure or other

document which he or she deems appropriate so as to secure the revenues

from the excise tax on Diesel motor fuel. Provided, further, in the case

of the exemption provided by subparagraph (i) of paragraph (b) of

subdivision three of section two hundred eighty-two-a of this article,

the commissioner shall provide for an alternative procedure or other

document signed only by the seller, such as a metered delivery ticket,

for the establishment of such exemption in those cases where such

commissioner is satisfied that the use of such alternative procedure or

other document will not jeopardize the revenues from the excise tax on

Diesel motor fuel.

(b) A claim for the exemption from tax provided for in subparagraph

(v) of paragraph (b) of subdivision three of section two hundred

eighty-two-a of this article shall be established by means of an

interdistributor sale certificate. If such exemption is applicable, such

certificate shall be provided by the purchaser to the seller at the time

of or prior to delivery of the Diesel motor fuel. Such certificate shall

set forth the name and address of the purchaser, the purchaser's

registration number, an affirmation by such purchaser that the purchaser

is registered as a distributor and that such registration has not been

suspended or cancelled and shall be signed by such purchaser and by the

seller. Such certificate shall be in such form and contain such other

information as the commissioner shall require. Where a proper and

complete interdistributor sale certificate has been furnished and

accepted by the seller in good faith, such certificate under such

circumstance shall relieve the seller of the burden of proving that the

Diesel motor fuel covered by such certificate is exempt from tax by

reason of subparagraph (v) of paragraph (b) of subdivision three of such

section two hundred eighty-two-a. For purposes of this paragraph, a

seller shall not have accepted such certificate in good faith if the

purchaser's registration is invalid because it has been suspended or

cancelled, or if the purchaser is not registered, and the commissioner

has furnished registered distributors with information identifying all

those persons then validly registered as distributors of Diesel motor

fuel and those persons whose registrations have been suspended or

cancelled. Any purchaser who furnishes to his seller a false or

fraudulent interdistributor sale certificate for the purpose of

establishing an exemption from the tax imposed by section two hundred

eighty-two-a of this article shall be jointly and severally liable for

the tax imposed by such section.

4. (a) Upon each sale, other than a retail sale not in bulk, the

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

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

such information as the commissioner of taxation and finance shall

require which, unless otherwise provided in this paragraph, shall

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

registered under this article, that he has 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. In

the case of a transaction described in paragraph (a) or (b) of

subdivision three of section two hundred eighty-two-a of this article

which is exempt from the imposition of the taxes imposed on Diesel motor

fuel or where the seller, pursuant to and in accordance with subdivision

four of such section, has not passed through such taxes to the

purchaser, the certificate, in lieu of either of the foregoing

statements, shall state that, based upon good faith reliance on an

exempt transaction certificate (or such other similar document or

procedure prescribed by the commissioner of taxation and finance), an

interdistributor sales certificate or the exemption document provided by

an organization described in paragraph one or two of subdivision (a) of

section eleven hundred sixteen of this chapter, as the case may be, such

motor fuel is being sold under the circumstances described in such

paragraph (a) or (b) of subdivision three of section two hundred

eighty-two-a or, in the case of the exemption from the pass through, is

being sold under the circumstances specified in subdivision four of such

section and that the taxes imposed by this article are not applicable or

are not being passed through, as the case may be.

(b) In the case of a sale of Diesel motor fuel subject to the excise

taxes and in all cases where the excise taxes are required to be passed

through, if the certification required by this subdivision has been

furnished to the purchaser at the time of delivery of such fuel 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 subdivision is not

furnished by the seller at the time of delivery of the Diesel motor

fuel, it shall be presumed that the taxes imposed by this article are

due and owing and 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 Diesel motor fuel, the commissioner of taxation and finance

may authorize the delivery of the certification required under this

subdivision at a time after the delivery of the Diesel 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 three of this chapter.

* 5. Upon each sale of Diesel 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