N.Y. Tax Law § 301-a: Imposition of tax

§ 301-a. Imposition of tax. (a) General. Notwithstanding any other

provision of this chapter, or of any other law, there is hereby imposed

upon every petroleum business for the privilege of engaging in business,

doing business, employing capital, owning or leasing property, or

maintaining an office in this state, a monthly tax for each or any part

of a taxable month equal to the sum of the motor fuel component

determined pursuant to subdivision (b) of this section, the highway

diesel motor fuel component determined pursuant to paragraph one of

subdivision (c) of this section, the non-highway diesel motor fuel

component determined pursuant to paragraph two of subdivision (c) of

this section and the residual petroleum product component determined

pursuant to subdivision (d) of this section.

(b) Motor fuel component. (1) The motor fuel component shall be

determined by multiplying the motor fuel and highway diesel motor fuel

rate times the number of gallons of (1) motor fuel imported or caused to

be imported into this state by the petroleum business for use,

distribution, storage or sale in the state or (2) produced, refined,

manufactured or compounded in the state by the petroleum business during

the month covered by the return under this article. Provided, however,

that no 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, nor shall

any motor fuel be included in the measure of the tax imposed by this

article more than once.

(2) Motor fuel brought into this state in the fuel tank connecting

with the engine of a vessel propelled by the use of such motor fuel

shall be deemed to constitute a taxable use of motor fuel for the

purposes of this subdivision to the extent that the fuel is consumed in

the operation of the vessel in this state. Provided, however, that this

paragraph shall not apply to (i) a recreational motor boat or (ii)

subsequent to August thirty-first, nineteen hundred ninety-four, a

commercial fishing vessel (as defined in subdivision (j) of section

three hundred of this article) if the motor fuel imported and consumed

in this state is used to operate such vessel while it is engaged in the

harvesting of fish for sale. Provided, further, that tax liability for

gallonage that a vessel consumes shall be the tax liability with respect

to the positive difference between the gallonage consumed in this state

during the reporting period and the gallonage purchased in this state

(upon which the tax imposed by this section has been paid) during such

period. A credit or refund shall be available for any excess of tax

liability for gallonage purchased in this state during the period over

tax liability on gallonage so consumed in this state during such period,

which excess shall be presumed to have been used outside this state.

(c) (1) Highway Diesel motor fuel component. (A) The highway diesel

motor fuel component shall be determined by multiplying the motor fuel

and highway diesel motor fuel rate times (1) the number of gallons of

highway diesel motor fuel sold or used by a petroleum business in this

state during the month covered by the return under this article and (2)

with respect to any gallonage which prior thereto has not been included

in the measure of the tax imposed by this article, times the number of

gallons of highway diesel motor fuel (i) removed from a terminal, other

than by pipeline, barge, tanker or other vessel, (ii) delivered to a

filling station or, (iii) delivered into the fuel tank connecting with

the engine of a motor vehicle for use in the operation thereof,

whichever of the latter three events shall be the first to occur.

Provided, however, that no highway 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, nor decisional law, nor shall any highway diesel

motor fuel be included in the measure of the tax imposed by this article

more than once.

(B) Highway diesel motor fuel brought into this state in the fuel tank

connecting with the engine of a vessel propelled by the use of such

diesel motor fuel shall be deemed to constitute a taxable use of diesel

motor fuel for the purpose of this paragraph to the extent of the fuel

that is consumed in the operation of the vessel in this state. Provided,

however, this paragraph shall not apply to (i) a recreational motor boat

or (ii) a commercial fishing vessel (as defined in subdivision (j) of

section three hundred of this article) if the highway diesel motor fuel

imported into and consumed in this state is used to operate such

commercial fishing vessel while it is engaged in the harvesting of fish

for sale. Provided, further, that tax liability for gallonage that a

vessel consumes in this state shall be the tax liability with respect to

the positive difference between the gallonage consumed in this state

during the reporting period and the gallonage purchased in this state

(upon which the tax imposed by this section has been paid) during such

period. A credit or refund shall be available for any excess of tax

liability for gallonage purchased in this state during the period over

tax liability on gallonage so consumed in this state during such period,

which excess shall be presumed to have been used outside this state.

(2) Non-highway diesel motor fuel component. The non-highway diesel

fuel component shall be determined by multiplying the non-highway diesel

motor fuel rate times the number of gallons of non-highway diesel motor

fuel sold or used by a petroleum business in this state during the month

covered by the return under this section. Provided, however, that no

non-highway 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, nor

shall any non-highway diesel motor fuel be included in the measure of

the tax imposed by this article more than once.

(d) Residual petroleum product component. The residual petroleum

product component shall be determined by multiplying the residual

petroleum product rate times the number of gallons of residual petroleum

product sold or used in this state by a petroleum business during the

month covered by the return under this article. Provided, however, that

no residual petroleum product 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, nor

shall any residual petroleum product be included in the measure of the

tax imposed by this article more than once.

(e) Motor fuel and highway diesel motor fuel rate. (1) The basic motor

fuel and highway diesel motor fuel rate shall be ten and two-tenths

cents per gallon.

(2) Every year as of January first, the motor fuel and highway diesel

motor fuel rate then in effect on the immediately preceding December

thirty-first shall be adjusted as follows: such rate shall be multiplied

by a fraction the numerator of which is the sum of the monthly producer

price index (unadjusted) published by the bureau of labor statistics of

the United States department of labor for the category of commodities

designated "refined petroleum products" for the twelve consecutive

months ending with the month of August of the immediately preceding year

and the denominator of which is the sum of the monthly producer price

index (unadjusted) published by the bureau of labor statistics of the

United States department of labor for the category of commodities

designated "refined petroleum products" for the twelve consecutive

months ending with the month of August in the year prior to such

immediately preceding year, provided, however, that the adjusted rate

shall not increase above or decrease below the rate in effect on the

immediately preceding December thirty-first by more than five percent.

(3) Notwithstanding any other provision of this article, the per

gallon rate with respect to "railroad diesel" shall be the adjusted

motor fuel and highway diesel motor fuel rate under paragraphs one and

two of this subdivision minus one and three tenths cents per gallon.

(f) Non-highway diesel motor fuel rate.

(1) The basic non-highway diesel motor fuel rate shall be nine and

three-tenths cents per gallon.

(2) Every year as of January first the non-highway diesel motor fuel

rate then in effect on the immediately preceding December thirty-first

shall be adjusted as follows: Such rate shall be multiplied by a

fraction the numerator of which is the sum of the monthly producer price

index (unadjusted) published by the bureau of labor statistics of the

United States department of labor for the category of commodities

designated "refined petroleum products" for the twelve consecutive

months ending with the month of August of the immediately preceding year

and the denominator of which is the sum of the monthly producer price

index (unadjusted) published by the bureau of labor statistics of the

United States department of labor for the category of commodities

designated "refined petroleum products" for the twelve consecutive

months ending with the month of August in the year prior to such

immediately preceding year, provided, however, that the adjusted rate

shall not increase above or decrease below the rate in effect on the

immediately preceding December thirty-first by more than five percent.

(3) Notwithstanding any other provision of this article, non-highway

diesel motor fuel which is "manufacturing gallonage," as such term is

defined in subdivision (m) of section three hundred of this article,

shall be exempt from the measure of the non-highway diesel motor fuel

component of the tax imposed under this section.

(g) Residual petroleum product rate. (1) The basic residual petroleum

product rate shall be four cents per gallon.

(2) Commencing April first, nineteen hundred ninety-one, the residual

petroleum product rate shall be the product of the basic rate set forth

in paragraph one of this subdivision multiplied by a fraction the

numerator of which is the sum of the monthly producer price index

(unadjusted) published by the bureau of labor statistics of the United

States department of labor for the category of commodities designated

"refined petroleum products" for the twelve consecutive months ending

with the month of November, nineteen hundred ninety, and the denominator

of which is the sum of the monthly producer price index (unadjusted)

published by the bureau of the labor statistics of the United States

department of labor for the category of commodities designated "refined

petroleum products" for the twelve consecutive months ending with the

month of November, nineteen hundred eighty-nine.

(3) Commencing on the first day of January, nineteen hundred

ninety-two, the residual petroleum product rate then in effect on the

immediately preceding December thirty-first shall be adjusted as

follows: Such rate shall be multiplied by a fraction the numerator of

which is the sum of the monthly producer price index (unadjusted)

published by the bureau of labor statistics of the United States

department of labor for the category of commodities designated "refined

petroleum products" for the twelve consecutive months ending with the

month of August, nineteen hundred ninety-one and the denominator of

which is the sum of the monthly producer price index (unadjusted)

published by the bureau of labor statistics of the United States

department of labor for the category of commodities designated "refined

petroleum products" for the twelve consecutive months ending with the

month of August, nineteen hundred ninety. Commencing on the first day of

January of nineteen hundred ninety-six and every year thereafter, the

residual petroleum product rate then in effect on the immediately

preceding December thirty-first shall be adjusted as follows: Such rate

shall be multiplied by a fraction the numerator of which is the sum of

the monthly producer price index (unadjusted) published by the bureau of

labor statistics of the United States department of labor for the

category of commodities designated "refined petroleum products" for the

twelve consecutive months ending with the month of August of the

immediately preceding year and the denominator of which is the sum of

the monthly producer price index (unadjusted) published by the bureau of

labor statistics of the United States department of labor for the

category of commodities designated "refined petroleum products" for the

twelve consecutive months ending with the month of August in the year

prior to such immediately preceding year, provided, however, that the

adjusted rate to take effect on January first, nineteen hundred

ninety-six and each January first thereafter shall not increase above or

decrease below the rate in effect on the immediately preceding December

thirty-first by more than five percent.

(4) Notwithstanding any other provision of this article, commencing

January first, nineteen hundred ninety-eight, residual petroleum product

which is "manufacturing gallonage," as such term is defined in

subdivision (m) of section three hundred of this article, shall be

exempt from the measure of the residual petroleum product component of

the tax imposed under this section.

(h) Publication and rounding of rate. (1) The commissioner shall cause

to be published in the section for miscellaneous notices in the state

register, and give other appropriate general notice of, the rate

adjustment calculation and the resulting motor fuel and highway diesel

motor fuel rate, non-highway diesel motor fuel rate and residual

petroleum product rate fixed by this section for the period commencing

on January first, two thousand twelve, and for each calendar year

thereafter, no later than the immediately preceding first day of

December. The calculation and publication of the rates of tax so fixed

by provisions of this section shall not be included within paragraph (a)

of subdivision two of section one hundred two of the state

administrative procedure act relating to the definition of a rule.

(2) The rates determined pursuant to this section shall be rounded to

the nearest one-tenth of one cent.

(i) Doing business, etc. Any petroleum business shall not be deemed to

be doing business, engaging in business, employing capital, owning or

leasing property, or maintaining an office in this state, for the

purposes of this article, by reason of (i) the maintenance of cash

balances with banks or trust companies in this state, or (ii) 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

or more banks or trust companies, or brokers who are members of a

recognized security exchange, in safekeeping or custody accounts, or

(iii) 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 petroleum business, or (iv) the maintenance of an office

in this state by one or more officers or directors of the petroleum

business (where such business is a corporation) who are not employees of

the petroleum business if such petroleum business otherwise is not

engaging in business or doing business in this state, and does not

employ capital or own or lease property in this state, or (v) the

keeping of books or records of a petroleum business in this state if

such books or records are not kept by employees of such petroleum

business and such petroleum business does not otherwise engage in

business, do business, employ capital, own or lease property or maintain

an office in this state, or (vi) any combination of the foregoing

activities.

(j) Special provision relating to lack of jurisdiction to tax.

Notwithstanding any provision of law to the contrary, if a person shall

receive any motor fuel in this state with respect to which this state

was without power to impose the tax under this article, and such motor

fuel thereafter becomes subject to the taxing power of this state, then

the person possessing such motor fuel at such time shall be deemed a

petroleum business and be liable for the tax under this article with

respect to such motor fuel and shall make the same reports and returns,

pay the same tax and be subject to all other provisions of this article

relating to petroleum businesses with respect to motor fuel.

(l) Taxes imposed on qualified reservations. In furtherance of the

joint administration of the taxes imposed by article twelve-A of this

chapter and the taxes imposed by this article, the provisions of section

two hundred eighty-four-e of this chapter concerning the sales of motor

fuel and Diesel motor fuel on qualified Indian reservations shall apply

to the payment and pass-through of the petroleum business tax in the

same manner and with the same force and effect as if the provisions of

such section had been incorporated in full into this article, except to

the extent that any such provision is either inconsistent with a

provision of this article or not relevant thereto.

(m) Special rate adjustment for certain vessels. Notwithstanding any

provision of this section to the contrary, the use of non-highway diesel

motor fuel in the engine of a vessel to propel such vessel shall be

subject to tax at the motor fuel and highway diesel motor fuel rate

provided for in this section, and shall be subject to the provisions of

section three hundred one-j of this article, including the adjustment

set forth in paragraph four of subdivision (a) of such section three

hundred one-j. A credit or refund shall be available to the extent tax

paid on gallonage used to propel any such vessel exceeds the amount of

tax due based on the tax rate set forth herein. Provided, however, that

the commissioner shall require such documentary proof to qualify for any

credit or reimbursement provided hereunder as the commissioner deems

appropriate.