N.Y. Tax Law § 289-c: Refunds

§ 289-c. Refunds. 1. The tax imposed by this article though payable by

the distributor, shall be borne by the purchaser and when paid by the

distributor shall be deemed to have been so paid for the account of the

purchaser. No person shall sell, advertise, or offer for sale motor

fuel, separate from the tax herein imposed; and the price paid by the

purchaser for motor fuel on which the tax has been paid, if such price

be not less than the amount of the tax thereon, shall be presumed for

the purposes of this section to have included the tax.

1-a. (a) Any person selling motor fuel to an organization described in

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

sixteen of this chapter or a hospital included in the organizations

described in paragraph four of such subdivision for its own use or

consumption or selling kero-jet fuel to an airline for use in its

airplanes may exclude the amount of the tax or taxes imposed by this

article from the selling price thereof.

(b) (i) Any person registered as a distributor of motor fuel selling

aviation gasoline to a fixed base operator registered under this article

as a "retail seller of aviation gasoline" may exclude the amount of the

tax or taxes imposed by this article from the selling price thereof

where such aviation gasoline is delivered to the fixed base operator's

premises and placed in a storage facility used exclusively for the

purpose of fueling airplanes. The commissioner may register as a "retail

seller of aviation gasoline" a fixed base operator who makes no sales of

aviation gasoline other than retail sales not in bulk delivered directly

into the fuel tank of an airplane and who makes no sales of motor fuel

other than the foregoing described retail sales of aviation gasoline

delivered directly into the fuel tank of airplanes (provided, in no

event, shall kero-jet fuel be construed to constitute motor fuel). Such

registration shall apply only to the wholesale purchase of only aviation

gasoline by such "retail seller of aviation gasoline" and the retail

sale by such person of aviation gasoline not in bulk for delivery

directly into the fuel tank of an airplane for use in the operation

thereof. In no event shall the registration as a "retail seller of

aviation gasoline" be deemed to be an authorization to import, or cause

to be imported, motor fuel including aviation gasoline, into this state.

All the provisions of section two hundred eighty-three-a (except

subdivision one) of this article shall be applicable to the registration

of "retail sellers of aviation gasoline" with the same force and effect

as if the language of such section had been incorporated in full herein

and had expressly referred to the registration of "retail sellers of

aviation gasoline", with such modification as may be necessary in order

to adapt the language so as to apply to the registration of applicants

for and persons registered as "retail sellers of aviation gasoline".

Provided, however, that if the commissioner is satisfied that certain

requirements of such foregoing provisions with respect to registration

are not necessary in order to protect tax revenues, the commissioner may

waive, limit or modify such requirements with respect to the

registration of "retail sellers of aviation gasoline". The department,

where applicable, shall coordinate the registration process with respect

to a fixed base operator applying for registration as a "retail seller

of aviation gasoline" and as a distributor of kero-jet fuel only with

the purpose of eliminating any duplicative information or procedures

required of the applicant. Every person registered as a "retail seller

of aviation gasoline" shall keep complete and accurate records of

purchases and sales of aviation gasoline (including individual invoices

identifying each purchase or sale of aviation gasoline) to and from such

"retail seller of aviation gasoline". The commissioner shall, if it is

determined to be appropriate, establish a requirement that a certificate

be given by a "retail seller of aviation gasoline" prior to the sale of

aviation gasoline pursuant to this paragraph.

(ii) Any person registered as a distributor of motor fuel and also

registered as a "retail seller of aviation gasoline" may exclude the

amount of the tax or taxes imposed by this article from the selling

price thereof on such retail sale of aviation gasoline.

(c) (i) Any person making a sale of motor fuel under the circumstances

described in paragraph (a), or subparagraph (i) of paragraph (b) of this

subdivision or making a sale of Diesel motor fuel under the

circumstances described in subdivision four of section two hundred

eighty-two-a of this article whereby the tax or taxes imposed by this

article have not been passed through to the purchaser, shall be allowed

a refund or credit of the tax or taxes imposed by this article in the

amount of such tax or taxes paid by such person on such motor fuel or

Diesel motor fuel being sold or included in the price paid by such

person for such fuel. Claims for refunds or credits shall be presented,

and refunds or credits shall be made, only as authorized by the

commissioner under such rules and regulations as he may prescribe.

(ii) Any airline registered as a distributor of motor fuel who imports

aviation gasoline into this state for use in its airplanes and a

distributor described in subparagraph (ii) of paragraph (b) of this

subdivision shall be allowed a refund or credit of the tax or taxes

imposed by this article in the amount of such tax or taxes paid by such

person on such aviation gasoline so imported and used exclusively in the

operation of its airplanes. The refund or credit shall accrue at the

time the aviation gasoline is delivered and stored as prescribed in

subparagraph (i) of paragraph (b) of this subdivision. Claims for

refunds or credits shall be presented and refunds or credits shall be

made only as authorized by the commissioner, including documentary proof

required to substantiate refund claims.

* (d)(i) Any person may exclude the amount of the tax or taxes imposed

by this article on E85 from the selling price thereof where E85 is

delivered to a filling station and placed in a storage tank of such

filling station for such E85 to be dispensed directly into a motor

vehicle for use in the operation of such vehicle. Any person making a

sale of E85 under the circumstances described herein, whereby the tax or

taxes otherwise imposed by this article have not been passed through to

the purchaser, shall be allowed a refund or credit of the taxes imposed

by this article in the amount of such tax or taxes paid by such person

on such E85 being sold or included in the price paid by such person for

such fuel. Claims for refunds or credits shall be presented, and refunds

or credits shall be made, only as authorized by the commissioner under

such rules and regulations as the commissioner may prescribe.

(ii) Any person may exclude twenty percent of the amount of the tax or

taxes imposed by this article from the selling price with respect to any

sale of B20. Any person making a sale of B20 upon which such person does

not pass on more than eighty percent of the taxes otherwise imposed by

this article, where such person has purchased such B20 with the entire

amount of the taxes imposed by this article included in such person's

purchase price, shall be entitled to a refund or credit equal to the

amount of the tax or taxes paid under this article on such B20 in excess

of eighty percent of the tax or taxes imposed by this article on diesel

motor fuel. Claims for refunds or credits shall be presented, and

refunds or credits shall be made, only as authorized by the commissioner

under such rules and regulations as the commissioner may prescribe.

(iii) Any person may exclude the amount of the tax or taxes imposed by

this article on CNG or hydrogen from the selling price thereof. Any

person making a sale of CNG or hydrogen, whereby the tax or taxes

otherwise imposed by this article have not been passed through to the

purchaser, shall be allowed a refund or credit of any taxes imposed by

this article in the amount of such tax or taxes paid by such person on

such CNG or hydrogen being sold or included in the price paid by such

person for such CNG or hydrogen. Claims for refunds or credits shall be

presented, and refunds or credits shall be made, only as authorized by

the commissioner under such rules and regulations as the commissioner

may prescribe.

* NB Repealed September 1, 2031

2. However, the intention of this article is to place the ultimate

burden resulting from such tax, so far as possible, on persons who use

the public highways of the state for operating motor vehicles thereon,

or who use the waterways of the state including any other waterways

bordering on the state for operating pleasure or recreational motor

boats thereon, and the following refunds are provided to that end,

subject to the provisions of subdivision five of this section.

3. (a) Except as otherwise provided in paragraph (b) of this section,

any person who shall buy any motor fuel or diesel motor fuel, on which

the tax imposed by this article shall have been paid, and shall consume

the same in any manner except in the operation of a motor vehicle upon

or over the public highways of this state, or in the operation of a

pleasure or recreational motor boat upon or over the waterways of the

state including waterways bordering on the state, shall be reimbursed

the amount of such tax in the manner and subject to the conditions

herein provided except that there shall be no reimbursement of tax paid

on motor fuel or diesel motor fuel taken out of this state in a fuel

tank connected with the engine of a motor vehicle and consumed outside

of this state.

(b) Any omnibus carrier which shall buy any motor fuel on which the

aggregate tax imposed by section two hundred eighty-four and section two

hundred eighty-four-a of this chapter, or any diesel motor fuel on which

the aggregate tax imposed by section two hundred eighty-two-a and

section two hundred eighty-two-b of this chapter, shall have been paid,

shall be reimbursed, in the case of such motor fuel, the amount paid

pursuant to such sections two hundred eighty-four and two hundred

eighty-four-a in excess of four cents per gallon, and in the case of

diesel motor fuel, the amount paid pursuant to such sections two hundred

eighty-two-a and two hundred eighty-two-b in excess of six cents per

gallon, provided such motor fuel or diesel motor fuel has been consumed

by such carrier in the operation of an omnibus in this state. Any

taxicab licensee, as defined by subdivision ten of section two hundred

eighty-two of this chapter, who or which shall buy any motor fuel on

which the aggregate tax imposed by section two hundred eighty-four and

section two hundred eighty-four-a of this chapter or any diesel motor

fuel on which the aggregate tax imposed by section two hundred

eighty-two-a and section two hundred eighty-two-b of this chapter, shall

have been paid, shall be reimbursed, in the case of such motor fuel, the

amount paid pursuant to such sections two hundred eighty-four and two

hundred eighty-four-a in excess of four cents per gallon, and in the

case of diesel motor fuel, the amount paid pursuant to such sections two

hundred eighty-two-a and two hundred eighty-two-b in excess of six cents

per gallon, provided such motor fuel or diesel fuel has been consumed by

such licensee in the operation of a taxicab in this state.

(c) All claims for reimbursement shall be in such form and contain

such information as the commissioner shall prescribe and shall be filed

within three years from (i) the date of the purchase, in the case of the

purchaser; or (ii) the date of the sale, in the case of the seller, of

the motor fuel so subject to reimbursement. Every such claim shall

include a certificate by or on behalf of the party presenting the same

to the effect that it is just, true and correct, that no part thereof

has been paid, except as stated therein, and that the balance therein

stated is actually due and owing. The claimant shall satisfy the

department that the claimant has borne the tax and that the motor fuel

has been consumed by the claimant in a manner other than the operation

of a motor vehicle upon or over the public highways of this state, the

operation of a pleasure or recreational motorboat upon or over the

waterways of the state including waterways bordering on the state or, in

the case of an omnibus carrier, taxicab licensee, nonpublic school

operator or volunteer ambulance service, that the claimant has borne the

tax and that the amount claimed is the amount of such tax reimbursable

under paragraph (b), (d), (e) or (f) of this subdivision. The department

may require such further information or proof as it shall deem necessary

for the administration of such claim. Claims for reimbursement approved

by the department shall be paid from revenues collected under this

article and deposited to the credit of the comptroller as hereinafter

provided; but no such claims shall be paid unless the department is

satisfied that the amount of the tax for which the reimbursement is

claimed has actually been collected by the state. The amount of any

erroneous or excessive payment to a claimant for reimbursement may be

determined by the department and may be recovered from such claimant in

the same manner as a tax imposed by this article, provided, however,

that any such determination shall be made within three years after the

date of such erroneous or excessive payment.

(d) Any omnibus carrier which shall buy motor fuel on which the

aggregate tax imposed by section two hundred eighty-four, section two

hundred eighty-four-a and section two hundred eighty-four-c of this

chapter or any diesel motor fuel on which the aggregate tax imposed by

section two hundred eighty-two-a, section two hundred eighty-two-b and

section two hundred eighty-two-c of this chapter shall have been paid,

shall be reimbursed the amount paid provided such motor fuel or diesel

motor fuel has been consumed by such carrier in the operation of an

omnibus in local transit service in this state pursuant to a certificate

of convenience and necessity issued by the commissioner of

transportation of this state or by the interstate commerce commission of

the United States or pursuant to a contract, franchise or consent

between such carrier and a city having a population of more than one

million inhabitants, or any agency of such city.

(e) Any nonpublic school operator which shall buy motor fuel on which

the aggregate tax imposed by section two hundred eighty-four, section

two hundred eighty-four-a and section two hundred eighty-four-c of this

chapter or any diesel motor fuel on which the aggregate tax imposed by

section two hundred eighty-two-a, section two hundred eighty-two-b and

section two hundred eighty-two-c of this chapter shall have been paid,

shall be reimbursed the amount paid provided such motor fuel or diesel

motor fuel has been consumed by such nonpublic school operator

exclusively in educational related activities.

(f) Any voluntary ambulance service, as defined in section thirty

hundred one of the public health law, which shall buy motor fuel on

which the tax or taxes imposed by this article shall have been paid

shall be reimbursed the amount of such tax in the manner and subject to

the conditions herein set forth, provided such motor fuel has been

consumed by such volunteer ambulance service vehicle in the course of

operating within the state.

(g) An organization described in paragraph one or two of subdivision

(a) of section eleven hundred sixteen of this chapter or a hospital

included in the organizations described in paragraph four of such

subdivision, or a fire company or fire department, as defined in section

three of the volunteer firefighters' benefit law, or a volunteer rescue

squad supported in whole or in part by tax money where any such entity

is the purchaser, user or consumer of motor fuel or diesel motor fuel in

a vehicle owned and operated by it and used exclusively for its

purposes, or an airline where it has purchased kero-jet fuel for use in

its airplanes shall be reimbursed the amount of the taxes on motor fuel

and diesel motor fuel imposed by or pursuant to the authority of this

article included in the price paid for such motor fuel or diesel motor

fuel.

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

pursuant to this article in respect to motor fuel or diesel motor fuel

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

with a credit card shall be reimbursed or credited to the issuer of the

credit card used for such purchase or the fuel distributor designated in

accordance with and subject to the provisions of sections eleven hundred

thirty-eight, eleven hundred thirty-nine, eleven hundred forty-two, and

eleven hundred forty-five of this chapter concerning such credit card

issuers, fuel distributors and government entities. Such provisions

shall apply with respect to the administration of and procedure with

respect to the taxes imposed under this article in the same manner and

with the same force and effect as if the language of such provisions had

been incorporated in full into this article and had expressly referred

to the tax under this article, with such modifications as may be

necessary in order to adapt the language of such provisions to the taxes

imposed by this article, except to the extent that any such provision is

not relevant to this article.

5. If the provisions of this section providing for reimbursement of

the amount of the tax paid be held unconstitutional by a court of

competent jurisdiction, the other constitutional provisions of this

article nevertheless shall stand, it being the express intention of the

legislature that even though such provision for reimbursement be held

unconstitutional the tax provided for by this article shall be imposed,

collected and distributed as provided in this article, regardless in

that event of the manner in which the motor fuel is consumed.

6. Moneys paid in error under this article may be refunded. Where

motor fuel, upon which the tax imposed by this article has been paid, is

sold, under such circumstances that, if the tax had not been paid, the

sale would not have been taxable under this article, the tax may be

refunded. Refunds shall be made only as authorized by the commissioner

under such rules and regulations as the commissioner may prescribe

provided an application therefor is filed with the commissioner within

three years from the time the erroneous payment was made, or tax paid

motor fuel was so sold. Refunds authorized by the commissioner shall be

paid from revenues collected under this article and deposited to the

credit of the comptroller as hereinafter provided.

7. If an agreement under the provisions of section two hundred

eighty-eight (extending the period for determination of tax imposed by

this article) is made within the three-year period for the filing of an

application for refund under subdivision six of this section or, in the

case of a claim for reimbursement under subdivision three of this

section, if such agreement is made within three years from the date of

purchase or sale (as the case may be) of the motor fuel, the period for

filing an application for refund or a claim for reimbursement shall not

expire prior to six months after the expiration of the period within

which determination may be made pursuant to the agreement or any

extension thereof.

8. With respect to motor fuel imported, manufactured or sold or

purchased in this state, and with respect to the sale or use of Diesel

motor fuel, a refund or credit shall be allowed a distributor or a

purchaser of the tax required to be paid pursuant to this article upon

such motor fuel or Diesel motor fuel in the amount of such tax paid by

or included in the price paid by a distributor or such purchaser to the

seller thereof if such fuel was exported from this state for sale or use

outside this state, such distributor or such purchaser, as the case may

be, exporting such fuel is duly registered with or licensed by the

taxing authorities of the state to which such fuel is exported as a

distributor or a dealer in the fuel being so exported, and in connection

with such exportation such fuel was immediately shipped to an identified

facility in the state to which such fuel is exported, and the applicant

complies with all requirements and rules and regulations of the

commissioner, including evidentiary requirements, relating thereto; and

provided further that upon receipt of a claim for refund in processible

form, interest shall be allowed and paid at the overpayment rate set by

the commissioner pursuant to subdivision twenty-sixth of section one

hundred seventy-one of this chapter from the due date of the return to

the date immediately preceding the date of the refund check except no

such interest shall be allowed or paid if the refund check is mailed

within thirty days of such receipt and except no interest shall be

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

the purpose of this article, "export" from this state shall in no event

be construed to include motor fuel or diesel motor fuel taken out of

this state in the fuel tank connected with the engine of a motor vehicle

or any conveyance and consumed in the operation thereof outside of this

state.

9. With respect to any organization described in paragraph four of

subdivision (a) of section eleven hundred sixteen of this chapter which

is eligible pursuant to this section for reimbursement of the tax

required to be paid pursuant to this article, upon receipt of a claim

for reimbursement in processible form, interest shall be allowed and

paid at the overpayment rate set by the commissioner of taxation and

finance pursuant to subdivision twenty-sixth of section one hundred

seventy-one of this chapter from the date of the application for

reimbursement to the date immediately preceding the date of the

reimbursement check except no such interest shall be allowed or paid if

the reimbursement check is mailed within forty-five days of such receipt

and except no interest shall be allowed or paid if the amount thereof

would be less than one dollar. Provided, however, the department shall

process applications for reimbursement as expeditiously as possible.