N.Y. Tax Law § 301-e: Aviation fuel business

§ 301-e. Aviation fuel business. (a) Notwithstanding any other

provision of this chapter, for taxable months commencing on and after

the first day of September, nineteen hundred ninety, there is hereby

imposed upon every aviation fuel business for the privilege of engaging

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

property, or maintaining an office in this state, for all or any part of

each of its taxable months a monthly tax equal to the sum of (1) the

aviation gasoline component determined pursuant to subdivision (b) of

this section and (2) the kero-jet component determined pursuant to

subdivision (c) of this section. Provided, however, the commissioner may

permit the tax imposed under this subdivision and returns related to

such tax to be paid and filed for a period covering twelve consecutive

taxable months by aviation fuel businesses which are not airlines.

(b) Aviation gasoline component. (1) The aviation gasoline component

shall be determined by multiplying the aviation gasoline rate times the

number of gallons of aviation gasoline imported or caused to be imported

into this state by an aviation fuel business for use, distribution,

storage or sale in the state or produced, refined, manufactured or

compounded in the state by an aviation fuel business. Provided that

importation of aviation gasoline into the state in the fuel tanks of

aircraft shall be importation for use for the purposes of this section.

The basic aviation gasoline rate shall be five and one-half cents per

gallon. The rate shall be adjusted at the same time as the rates of the

components of the petroleum business tax imposed by section three

hundred one-a of this article, and the method of making adjustments to

the aviation gasoline rate shall be the same as the method used for such

rates.

(2) Partial credit or refund with respect to aviation gasoline. A

distributor of motor fuel shall be entitled to a partial credit or

refund of the tax paid under this section on aviation gasoline sold to a

fixed base operator registered under article twelve-a of this chapter as

a "retail seller of aviation gasoline" under the circumstances described

in subparagraph (i) of paragraph (b) of subdivision one-a of section two

hundred eighty-nine-c of this chapter. Provided, that in order to

qualify for the credit or refund the amount of tax claimed as a credit

or refund shall have been paid or assumed on such sale by such

distributor and shall have not been passed on to such "retail seller of

aviation gasoline". A distributor of motor fuel, also registered as a

"retail seller of aviation gasoline", shall be entitled to a partial

credit or refund for aviation gasoline delivered and stored at its fixed

base operations premises in such subparagraph (i), and such credit or

refund shall accrue at the time the fuel is so delivered and placed in

such storage facility. An airline which is registered as a distributor

of motor fuel and which imports aviation gasoline into this state for

use in its airplanes, where delivery and storage take place as described

in such subparagraph (i), shall also be allowed such partial credit or

refund of tax on such fuel so imported and used exclusively in the

operation of its airplanes. An aviation fuel business, taxed as such, by

reason of importation in the fuel tank of an airplane shall also be

allowed such partial credit or refund for aviation gasoline consumed in

this state. The amount of the partial credit or refund allowable under

this subparagraph shall be the excess of tax which exceeds five and

two-tenths cents per gallon. Provided, that such five and two-tenths

cents rate used to compute this partial credit and refund shall be

adjusted at the same time as the rate of the aviation gasoline component

imposed by paragraph one of this subdivision, and the methods of making

such adjustments to this partial credit and refund shall be the same as

the method used for such rates.

(c) Kero-jet fuel component. The kero-jet fuel component shall be

determined by multiplying the kero-jet fuel rate times the number of

gallons of (1) kero-jet fuel imported or caused to be imported into this

state by an aviation fuel business and consumed in this state by such

business in the operation of its aircraft; and (2) kero-jet fuel, which

has not been previously included in the measure of the tax imposed by

this section, (i) which is sold in this state by an aviation fuel

business to persons other than those registered under this article as

aviation fuel businesses or (ii) which is consumed in this state by an

aviation fuel business in the operation of its aircraft. Provided that

importation of kero-jet fuel in the fuel tanks of aircraft shall be

importation for the purposes of this section. The basic kero-jet fuel

rate shall be six and eight-tenths cents per gallon. The rate shall be

adjusted at the same time as the rates of the components of the

petroleum business tax imposed by section three hundred one-a of this

article, and the method of making adjustments to the kero-jet fuel rate

shall be the same as the method used for such rates.

(d) (1) An aviation fuel business shall be entitled to reimbursement

of the tax imposed by this section, less any credit allowed or refund

granted, with respect to aviation gasoline purchased in this state and

consumed by such business exclusively as aviation fuel in the operation

of its aircraft where such aviation gasoline is not consumed in this

state, provided that the amount of such tax, less any credit or refund,

has been absorbed by such aviation fuel business. Provided, further, an

aviation fuel business which has imported aviation gasoline into this

state and consumed such aviation gasoline in the operation of its

aircraft where a portion of such aviation gasoline is not consumed in

this state shall be allowed a credit for such gallonage not consumed in

this state in computing the tax imposed by such section.

(2) An aviation fuel business shall be entitled to reimbursement of

the tax imposed by this section with respect to kero-jet fuel purchased

in this state and consumed by such business exclusively as aviation fuel

in the operation of its aircraft where such kero-jet fuel is not

consumed in this state, provided that the entire amount of such tax has

been absorbed by such aviation fuel business.

(3) Any purchaser of aviation gasoline in this state who consumes such

aviation gasoline exclusively as aviation fuel in the operation of its

aircraft shall be entitled to a partial reimbursement of the tax imposed

by this section with respect to aviation gasoline which was purchased by

such purchaser and upon which such purchaser paid or absorbed the full

amount of the tax imposed by this section (where no partial credit or

refund under paragraph two of subdivision (b) of this section was

provided with respect to such aviation gasoline) where: (i) such

purchaser purchases the aviation gasoline from a fixed base operator

which qualifies as a retail seller of aviation gasoline but is not so

registered under article twelve-A of this chapter, or (ii) such

purchaser purchases the aviation gasoline in bulk from a distributor of

motor fuel registered under article twelve-A of this chapter where such

distributor delivers such aviation gasoline directly into a bulk storage

facility of the purchaser which is at a fixed and permanent place at an

airport within this state and is used solely to fill the fuel tanks of

its aircraft for use in the operations thereof. The amount of the

reimbursement allowable under this paragraph shall be equal to the

amount of the partial credit or refund allowable under paragraph two of

subdivision (b) of this section.

(4) The commissioner shall require such documentary proof to qualify

for any credit, refund or reimbursement of tax provided under this

subdivision as the commissioner deems appropriate.

(e) All the provisions of this article relating to the administration,

collection and disposition of the tax imposed on petroleum businesses,

including the registration provisions of section three hundred two of

this article applicable to residual petroleum product businesses, shall

apply to the tax imposed by this section and the registration under this

article of aviation fuel businesses with such modification as may be

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

imposed by this section. When reference in this article is made to "the

tax imposed under this article" or where words of similar import are

used, unless the context indicates otherwise, such reference shall be to

the tax imposed under section three hundred one-a of this article and

this section. The tax imposed by this section shall be administered

jointly in conjunction with, and as a part of, the tax imposed on

petroleum businesses as if the provisions of subdivision (a) of this

section, imposing the tax under this section, were made a part of the

imposition provisions of section three hundred one-a, except where

contrary or not applicable to or inconsistent with the provisions of

this section. Provided, further, for the purpose of this section:

(1) the term "aviation fuel business" shall mean a "petroleum

business" as described in paragraph one or paragraph two of subdivision

(b) of section three hundred of this article except that the activities

described therein shall separately relate to aviation gasoline (such

paragraph one) and kero-jet fuel (such paragraph two) and such term

shall also include every corporation or unincorporated business

importing or causing to be imported aviation fuel into this state for

consumption by it in this state by bringing such aviation fuel into this

state in aircraft fuel tanks which connect to the engines propelling

such aircraft.

(2) kero-jet fuel and aviation gasoline consumed in this state shall

be presumed to mean all such fuel consumed during takeoffs from points

in this state;

(3) where the commissioner of taxation and finance decides that with

respect to a certain petroleum business any of the methods prescribed in

paragraph two of this subdivision do not fairly and equitably reflect

fuel consumed in this state, the commissioner shall prescribe methods of

attribution which fairly and equitably reflect fuel consumed in this

state.

(4) "aviation fuel" means kero-jet fuel and aviation gasoline (as

described in paragraph three of subdivision (a) of section three hundred

one-b of this article). Provided, further the term kero-jet shall not

include naphtha based aviation fuel refined and used solely for

propelling military jet airplanes of the United States Armed Forces.

(f) An aviation fuel business, which services four or more cities in

the state with non-stop flights between such cities, shall be exempt

from the tax imposed by this section and any surcharge imposed on such

tax.