N.Y. Tax Law § 524: Credits and refunds

§ 524. Credits and refunds. (a) Purchases. Every carrier subject to

the tax imposed by this article shall be entitled to a credit against

such tax determined by adding together the following components: (1) a

fuel tax component computed by multiplying the number of gallons of

motor fuel or diesel motor fuel purchased by such carrier within this

state in a return period, for use in its operations either within or

without this state, by the applicable rate per gallon imposed on such

fuel under article twelve-A of this chapter; provided, however, no

credit shall be allowed unless the tax imposed under such article

twelve-A upon such purchase of fuel has been paid by such carrier, and

(2) a sales tax component computed by multiplying the number of gallons

of motor fuel or diesel motor fuel purchased by such carrier within this

state in a return period, for use in its operations within or without

this state by the applicable rate per gallon of the sales tax component;

provided, however, such credit shall not exceed the tax imposed under

article twenty-eight or pursuant to the authority of article twenty-nine

of this chapter upon such purchase of fuel that has been paid by the

carrier. Each carrier claiming such credit components shall furnish to

the commissioner such evidence of payment of such taxes as the

commissioner may require. When the amount of the credit to which any

carrier is entitled for any return period exceeds the amount of tax for

which such carrier is liable under this article for such return period,

such excess shall be allowed as a credit against the tax for which such

carrier would otherwise be liable for the eight succeeding calendar

quarters following the end of the reporting period from which the excess

was derived or, if a claim for refund is filed on or before the last day

of the month immediately following the four-year period commencing with

the end of the reporting period for which such excess is derived, the

amount of such excess for such period shall be refunded.

(b) Transition. Every carrier subject to the tax imposed by this

article shall be entitled to a credit against the tax equal to the

credit determined under subdivision three of section five hundred

three-a of this chapter which the carrier would have been entitled to

carry forward against the tax imposed by such section but for the

termination of such tax. Such credit may be applied against the tax

imposed by this section or refunded, subject to the limitations provided

in subdivision (a) of this section. A person not subject to the tax

imposed by this article may apply for a refund of such excess credit

which such person would have been entitled to carry forward against the

tax imposed by such section five hundred three-a but for the termination

of such tax, subject to the limitations provided in subdivision (a) of

this section.

(c) Actual price. Every carrier which can substantiate that its

average price paid per gallon (including all federal and state and any

local taxes included in such price or imposed on the use or consumption

of such fuels upon which the state and local sales and compensating use

taxes are computed but determined with out the inclusion of any state or

local sales tax on receipts from sales of such fuels) during a reporting

period is less than the prevailing price determined for such period

pursuant to subdivision (b) of section five hundred twenty-three of this

article, if such calculation was based upon an amount determined under

clause (ii) of subparagraph (B) of paragraph two of subdivision (b) of

section five hundred twenty-three of this article, may apply for a

refund of the difference between the tax paid relating to the sales tax

component computed based upon such prevailing price for such period and

the tax relating to the sales tax component computed based upon the

carrier's actual average purchase price for such period. Such refund

must be applied for on or before the last day of the month immediately

following the four-year period commencing with the end of the reporting

period which gave rise to the refund.

(d) Erroneous payment. Whenever the commissioner shall determine that

any moneys received under the provisions of this article were paid in

error, he or she may cause the same to be refunded or credited. Such

moneys received under the provisions of this article which the

commissioner shall determine were paid in error, may be refunded or

credited out of funds in the custody of the comptroller to the credit of

such taxes provided an application therefor is filed with the

commissioner within four years from the time the erroneous payment was

made, except if an agreement under the provisions of section five

hundred ten of this chapter as made applicable to the tax imposed by

this article by section five hundred twenty-eight of this article

(extending the period for determination of tax imposed by this article)

is made within the four-year period for the filing of an application for

refund provided for in this subdivision, the period for filing an

application for refund shall not expire prior to six months after the

expiration of the period within which a determination may be made

pursuant to the agreement or any extension thereof.

(e) Determination and review. The commissioner shall grant or deny a

claim for refund under this section in whole or in part and shall notify

the claimant by mail of the commissioner's determination. Such

determination shall be final and irrevocable unless the claimant shall,

within thirty days after the mailing of notice of such determination,

petition the division of tax appeals for a hearing. If the commissioner

enters into a cooperative agreement pursuant to section five hundred

twenty-eight of this article, notice of a hearing shall be given and a

hearing held within any time restrictions prescribed in such agreement.

After such hearing, the division of tax appeals shall mail notice of the

determination of the administrative law judge to the claimant and to the

commissioner. Such determination may be reviewed by the tax appeals

tribunal as provided in article forty of this chapter. The decision of

the tax appeals tribunal may be reviewed as provided in section two

thousand sixteen of this chapter. However, such a proceeding may not be

commenced unless an undertaking is filed with the commissioner in such

amount and with such sureties as a justice of the supreme court shall

approve to the effect that if the proceeding be dismissed or the

decision confirmed, the petitioner will pay all costs and charges which

may accrue against him in the prosecution of the proceeding.