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commission's functions under such articles, and any returns, forms, statements,

documents or information to be submitted to the commission under such articles, any books and records to be kept for purposes of the taxes imposed or authorized to be imposed by such articles, any schedules of amounts to be collected under such articles, any registration required under such articles, and the payment of taxes under such articles shall be on a joint basis with respect to the taxes imposed by such articles.

§ 16. Subdivision eight of section five hundred one of such law, as amended by chapter five hundred eighty-three of the laws of nineteen hundred eighty-four, is amended to read as follows:

8. "Automotive fuel carrier" shall mean any carrier engaged in transporting automotive fuel. (For purposes of this subdivision and subdivision nine, the term "automotive fuel" shall mean automotive fuel as defined in subparagraph (ii) of paragraph four of subdivision (b) of section eleven hundred one of this chapter.]

§ 17. Section five hundred one of such law is amended by adding a new subdivision ten to read as follows:

10. "Automotive fuel" shall mean diesel motor fuel as defined in section two hundred eighty-two-a of this chapter and motor fuel as defined in subdivision two of section two hundred eighty-two of this chapter. 5

18. Subparagraph (ii) of paragraph four of subdivision (b) of section eleven hundred one of such law, as amended by chapter nine hundred thirty of the laws of nineteen hundred eighty-two, is amended to read as follows:

(ii) Notwithstanding the provisions of subparagraph (i) of this paragraph, [a sale of automotive' fuel by a distributor is deemed to be retail sale, except for a sale of automotive fuel by a distributor to a purchaser duly registered with or licensed by the taxing authorities of another state as a distributor of or dealer in automotive fuel therein, for immediate exportation from the state into such other state, provided the distributor making such sale complies with all regulations of the tax commission relating thereto] no motor fuel shall be sold in this state without payment, and inclusion in the sales price of such motor fuel, of the tax on motor fuel required to be prepaid pursuant to the provisions of subdivisions (a) and (b) of section eleven hundred two of this article except where a provision of this article relating to motor fuel specifically provides otherwise. Provided, however, except for such requirement of prepayment of tax required by such şubdivisions of such section, the provisions of this subparagraph shall not otherwise modify the meaning of the term "retail sale" as used in this article. For purposes of this subparagraph [and subparagraph (iii) of this paragraph) and sections eleven hundred two, eleven hundred eleven, [eleven hundred nineteen] eleven hundred twenty, eleven hundred thirty-two, eleven hundred thirty-four, eleven hundred thirty-five [and], eleven hundred thirty-six and eighteen hundred seventeen of this chapter, the following terms shall have the following meanings:

(A) "Automotive fuel" means diesel motor fuel as defined in section two hundred eighty-two-a of this chapter, other than kerosene or propane used for residential purposes, or motor fuel as defined in subdivision two of section two hundred eighty-two of this chapter. The phrase "used for residential purposes" shall have the same meaning as it'has for purposes of section eleven hundred five-A of this article.

(B) The term "distributor" shall have the same meaning as it has for purposes of article twelve-A of this chapter, excluding persons who not required pursuant to section two hundred eighty-two-a to pay the tax imposed thereby.

(c) The term ["automotive fuel carrier" shall mean an automotive fuel carrier as defined in article twenty-one of this chapter who or which is engaged in sales of automotive fuel in this state.

(D) The term "retail sale" shall, in addition to its meaning under this subparagraph, include the transfer of automotive fuel by a distributor' into a motor vehicle, or into a container from which automotive fuel is supplied by the distributor to a motor vehicle vehicles of the distributor or of others] "motor fuel" means motor fuel as defined in subdivision two of section two hundred eighty-two of this chapter.

(D) The term "filling station" and "owner" shall have the same meaning as they have for the purposes of article twelve-A of this chapter.

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146
LAWS OF NEW YORK, 1985

[Chap. S 19. Clause (F) of subparagraph (iii) of paragraph four of subdivision (b) of section eleven hundred one of such law is repealed.

§ 20. Such law is amended by adding a new section eleven hundred two to read as follows:

S 1102. Prepayment of sales tax on motor fuel. (a) Every distributor shall prepay, on account of the taxes imposed by this article and pursuant to the authority of article twenty-nine of this chapter, & tax on each gallon of motor fuel (i) which he imports or causes to be imported into this state for use, distribution, storage or sale in the state or produces, sefines, manufactures or compounds in this state

(ii)

if the tax has not been imposed prior to its sale in this state, which he sells (which acts shall in regard to motor fuel hereinafter in this article be encompassed by the phrase "imported, manufactured or sold"). The amount of such prepayment per gallon shall be computed pursuant to the provisions of

subdivision (e) of section eleven hundred eleven of this article. No provision of this section shall apply or be construed to apply to foreign or interstate commerce except insofar as the same may be effective pursuant to the United States constitution and to the laws of the United Stateş enacted pursuant thereto. Provided, further, no motor fuel shall be included in the measure of the tax under clause (i) of this subdivision unless it shall have previously come to rest within the meaning of federal decisional law interpreting the United States constitution.

(b) Any purchaser who purchases or uses motor fuel in the state upon which the tax required to be prepaid under subdivision (a) of this tion not paid or passed through to him shall pay such tax directly to the tax commission and it shall be the duty of such purchaser to file

return with the tax commission in such form and containing such information as the commission may require and to pay such tax to it within twenty-four hours after the day on which such purchaser received such fuel except that, where such purchaser is a distributor registered under article twelve-A of this chapter, such distributor may report and pay, such taxes at the time otherwise limited by this article to report and pay taxes on fuel sold on that day. Such purchaser shall be subject to all provisions of this article relating to vendors, except that such person shall not be subject to the provisions of section eleven hundred thirty-four of this article if such person is not

(1) person required to collect any tax imposed by this article within the meaning of subdivision one of section eleven hundred thirtyone of this article,

(2) person purchasing or selling tangible personal property for resale, commencing business or opening a new place of business,

(3) a person described in paragraph one or two of this subdivision who takes possession of or pays for business assets under circumstances requiring notification by such person to the tax commission pursuant to subdivision (c) of section eleven hundred forty-one of this article.

(c) The taxes required to be prepaid pursuant to this section shall be administered and collected in a like manner as the taxes imposed by sections eleven hundred five and eleven hundred ten of this article. All the provisions of this article relating to or applicable to the administration, collection and disposition of the taxes imposed by such sections shall apply to the tax required to be prepaid under this section

far as such provisions can be made applicable to such prepayments of tax with such limitations as set forth in this article and such modifications may be necessary in order to adapt such language to the tax so imposed, provided, however, that the provisions of subdivision (c) of section eleven hundred thirty-seven of this article and the reference in section eleven hundred thirty-seven-A of this article to such subdivision (c) of section eleven hundred thirty-seven shall not be applicable to such tax required to be prepaid under this section. Such provisions shall apply with the same force and effect as if the language of those provisions had been set forth in full in this section except to the extent that any provision is either inconsistent with a provision of this section or is not relevant to the tax required to be prepaid by this section. For purposes of this section, any reference in this article to the tax or taxes imposed by this article shall be deemed to refer to the tax required, to be prepaid pursuant to this section unless a different meaning is clearly required. Provided, further, however, that, as provided

in subdivision (j) of section eleven hundred fifteen of this article and except as provided in paragraph five of subdivision (b) of section eleven hundred sixteen of this article, the exemptions provided in such sections (other than that provided in paragraph nine of subdivi

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sion (a) of such section eleven hundred fifteen with respect to purchases of kero- jet fuel) shall not apply to the tax required to be prepaid under this section.

(d) Nothing in this article shall be construed to require the payment of the tax required to be prepaid pursuant to this section

than upon motor fuel sold within the state. The tax required to be prepaid, though payable to the vendor or required to be paid by the purchaser directly to the commission, shall be borne by the purchaser, user or consumer and when the foregoing prepaid tax imposed pursuant to this section is paid to the vendor or paid directly to the commission by the purchaser it shall be deemed to have been so paid for the account of the vendor of the retail sale and the purchaser, user or consumer. Nothing in this section shall modify or affect the taxes imposed by sections eleven hundred five and eleven hundred ten of this article as applied to receipts from the sale or use of motor fuel.

(e) Deposit and disposition of revenue. (1) Consistent with sections eleven hundred forty-eight and twelve hundred sixty-one of this chapter, the taxes, interest and penalties imposed pursuant to this section and received by the tax commission, after deducting the amount which the commissioner of taxation and finance or his delegate shall determine to be necessary for reasonable costs of the tax commission in administering, collecting and distributing such taxes, shall be deposited daily with such responsible banks, banking houses or trust companies, may be designated by the comptroller, to the credit of the comptroller. Of the total revenue collected or received under this section, the comptroller shall retain

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his hands such amount as the commissioner of taxation and finance may determine to be necessary for refunds under this article and pursuant to the authority of article twenty-nine of this chapter.

(2) On or before the twelfth day of each month, after reserving such amount for such refunds and such costs, the commissioner of taxation and finance his delegate shall certify to the comptroller the amount of all revenues so received during the prior month

result of the taxes, interest and penalties so imposed and, in addition, on or before the last day of June and December the commissioner delegate shall certify the amount of such moneys received during and including the first twenty-five days of said months. At the time he prepares such certification, the commissioner of taxation and finance or his delegate shall determine the receipts attributable to the amount of motor fuel sold at retail in each county and city and in the metropolitan commuter transportation district subject to the taxes imposed by sections eleven hundred five and eleven hundred ten of this article and the like taxes imposed pursuant to the authority of article twenty-nine of this chapter and he shall certify the portion of such receipts from payments of prepayment of tax on account of the taxes imposed by this article and pursuant to the authority of

of article 'twenty-nine of this chapter (determined without regard to the taxes imposed by this section and any like

taxes imposed pursuant to the authority of article twenty-nine of this chapter) based upon the retail sales or uses of such fuel in such jurisdiction or district. The amount of revenues so certified shall be deposited and distributed by the comptroller in accordance therewith. Where the amount so certified in any distribution is more or less than the amount due, the amount of the overpayment or under payment shall be determined

after the discovery of the over payment or underpayment as is reasonably possible and subsequent certifications to the compt roller shall be

be adjusted by subtracting the amount of any such overpayment from or by adding the amount of any such under payment to such number of subsequent payments as the comptroller and the commissioner of taxation and finance shall consider reasonable in view of the amount of the overpayment or under payment and all other pertinent facts and circumstances.

§ 21. Subdivision (d) of section eleven hundred eleven of such law, as amended by chapter nine hundred thirty of the laws of nineteen hundred eighty-two, is amended to read as follows:

Pd) The tax commission is authorized and empowered to prescribe and, from time to time, to amend schedules of the amount of tax to be collected upon each gallon of automotive fuel sold [by distributors,) at retail and upon each gallon of motor fuel subject to the tax required to be prepaid pursuant to section eleven hundred two of this article or EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

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upon each pack of cigarettes, as it shall determine is approximately equal to the average rate otherwise applicable, considering the regional average retail sales prices and classes of such fuel and in the case of a sale at retail, the ordinary price ranges for such automotive fuel and cigarettes, in lieu of the regular schedule based total receipts. Such rates shall be uniform in each county but may vary as between counties, depending on the general price ranges in effect in each

county, but counties wholly within a city shall have a uniform rate. If a political subdivision of a county imposes a retail sales and

tax, separate rates may be prescribed for it. Such schedules with reference to [automotive fuel sold by distributors] the tax required to be prepaid on motor fuel pursuant to section eleven hundred two of this article may fix the rate per gallon in multiples of one-tenth of one cent depending on the regional average retail sales prices where such fuel is imported, manufactured or sold. Such schedules with reference to automotive sold at retail may fix the rate per gallon in multiples of one-tenth of one cent depending on the price at which such fuel is sold. Where schedules fixing the rate per gallon in multiples of one-tenth of one cent have been promulgated, the price shown on any metered

pump or other dispensing device from which such fuel is sold to a purchaser of such fuel, to be delivered directly to a vehicle propelled by any power other than muscular, shall include the tax at the rate so fixed, and the tax commission may by regulation prescribe the manner in which the amount of tax shall be shown for the information of customers by signs or placards on the premises where such fuel is sold. When determining tax required to be collected on the retail sale of motor fuel, the receipts on which tax is computed shall not include the amount of tax required to be prepaid pursuant to section eleven hundred two of this article with respect to such fuel.

S 22. Subdivision (e) of section eleven hundred eleven of such law is repealed and a new subdivision (e) is added to read as follows:

(e) (1) There are hereby created and established within the state two regions for purposes of the payment of the tax imposed by section eleven hundred two of this article. (i) One region shall consist of the localities included in the metropolitan commuter transportation district created and established pursuant to section twelve hundred sixty-two of the public authorities law. (ii) The other region shall consist of the area of the state outside the region referred to in subparagraph (i) of this paragraph.

(2) (i) where the motor fuel is imported, manufactured or sold in the region referred to in subparagraph (i) of paragraph one of this subdivi. sion, the tax required to be prepaid pursuant to section eleven hundred two of this article on each gallon of such motor fuel shall be computed by multiplying the regional average retail sales price for such region for the applicable class of fuel by a tax rate of seven percent:

(ii) Where motor fuel is imported, manufactured or sold in the region referred to in subparagraph (ii) of paragraph one of this subdivision, the tax required to be prepaid pursuant to section eleven hundred two of this article on each gallon of such motor fuel shall be computed by multiplying the regional average retail sales price for such region for the applicable class of fuel by the tax rate of six percent.

(3) for purposes of this section, the regional average retail sales, price shall mean the regional average retail sales price

prescribed by the energy commissioner pursuant to section 9-125 of the energy law.

5 23. Section eleven hundred fifteen of such law is amended by adding a new subdivision (j) to read as follows:

(j) Except as provided in section eleven hundred twenty of this article, the provisions of this section shall not apply to the tax required to be prepaid pursuant to the provisions of section eleven hundred two of this article nor to the taxes imposed by sections eleven hundred five and eleven hundred ten of this article with respect to receipts from sales and uses of niotor fuel at retail.

§ 24. Subdivision (b) of section eleven hundred sixteen of such law is amended by adding a new paragraph five to read as follows:

(5) purchases of motor fuel from the tax required to be prepaid pursuant to section eleven hundred two of this article and retail sales of motor fuel subject to the tax imposed by sections eleven hundred five and eleven hundred ten of this article, except that this paragraph shall not apply purchases of such fuel by an organization described in paragraph one or two of subdivision (a) of this section a hospital included in the organizations described in paragraph four of such subdivision.

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§ 25. Subdivision (a) of section eleven hundred nineteen of such law, as amended by chapter nine hundred thirty of the laws of nineteen hundred eighty-two, is amended to read as follows:

(a) [Refunds' or credits based on proof of certain uses. ] Subject to the conditions and limitations provided for herein, a refund credit shall be allowed for a tax paid pursuant to subdivision (a) of section eleven hundred five or section eleven hundred ten (1) on the sale or use of tangible personal property if the purchaser of user, in the performance of a contract, later incorporates that tangible personal property into real property located outside this state, (2) on the sale or use of tangible personal property purchased in bulk, or any portion thereof, which is stored and not used by the purchaser or user within this state if that property is subsequently reshipped by such purchaser or user to a point outside this state for use outside this state, (3) on the sale to or use by a contractor or subcontractor of tangible personal property if that property is used by him solely in the performance of a preexisting lump sum or unit price construction contract, (4) on the sale or use within this state of tangible personal property, not purchased for resale, if the use of such property in this state is restricted to fabricating such property (including incorporating it into or assembling it with other tangible personal property), processing, printing or imprinting such property and such property is then shipped to a point outside this state for use outside this state or (5), on the sale to or by a veterinarian of drugs or medicine if such drugs or medicine are used by such veterinarian in rendering services, which are exempt pursuant to subdivision (f) of section eleven hundred fifteen of this chapter, to livestock or poultry used in the production for sale of tangible personal property by farming or if such drugs or medicine are sold to a person qualifying for the exemption provided for in paragraph (6) of subdivision (a) of section éleven hundred fifteen of this chapter for use by such person on such livestock or poultry[, (6), on the sale of automotive fuel to an automotive fuel carrier where such fuel is resold by him or it, or (7) on the sale of automotive fuel, where such fuel is purchased' or used by the purchaser or user in a manner which would exempt its purchase or use from tax under this article). (For the purpose of clause (3) of the preceding sentence, the term "pre-existing lump sum or unit price construction contract" shall mean a contract for the construction of improvements to real property under which the amount payable to the contractor or subcontractor is fixed without regard to the costs incurred by him in the performance thereof, and which (i) was irrevocably entered into prior to the date of the enactment of this ticle or the enactment of a law increasing the rate of tax imposed under this article, or (ii) resulted from the acceptance by

governmental agency of a bid accompanied by a bond or other performance guaranty which was irrevocably submitted prior to such date. ). Where the tax the sale or use of such tangible personal property has been paid to the vendor, to qualify for such refund or credit, such tangible personal property must bé incorporated into real property as required in clause (1) above, reshipped as required in clause (2) above[,) or used in the manner described in clauses (3), (4) and (5) above Çor resold as described in clause (6) above, or is used by the purchaser in the manner described in clause (7) above] within three years after the date such tax was payable to the tax commission by the vendor pursuant to section eleven hundred thirty-seven. Where the tax on the sale or use of such tangible personal property was paid by the applicant for the credit refund directly to the tax commission, to qualify for such refund or credit, such tangible personal property must be incorporated into real property as required in clause (1) above, reshipped as required in clause (2) abovel,] or used in the manner described in clauses (3), (4) and (5) above for resold as described in clause (6) above or used by the purchaser in the manner described in clause (7) above] within three years after the date such tax was payable to the tax commission by such applicant pursuant to this article. An application for a refund or credit pursuant to this section must be filed with such commission within the time provided by subdivision (a) of section eleven hundred thirty-nine. Such application shall be in such form as the tax commission may prescribe. where an application for credit has been filed, the applicant may immediately take such credit on the return which is due coincident with or immediately subsequent to the time that he files his EXPLANATION—Matter in italics is new; matter in brackets [ ] is old law

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