application for credit. However, the taking of the credit on the return shall be deemed to be part of the application for credit and shall be subject to the provisions in respect to applications for credit in section eleven hundred thirty-nine as provided in subdivision (e) of such section. With respect to a sale or use described in clause (3) above where a pre-existing lump sum or unit price construction contract was irrevocably entered into prior to the date of the enactment of this article or the bid accompanied by the performance guaranty was irrevocably submitted to the governmental agency prior to such date, the purchaser or user shall be entitled to a refund or credit only of the amount by which the tax on such sale or use imposed under this article plus any tax imposed under the authority of article twenty-nine exceeds the amount computed by applying against such sale or use the local rate of tax, if any, in effect at the time such contract was entered into or such bid was submitted. [With respect to a sale described in clause (6) above, the automotive fuel carrier shall be entitled to a refund or credit only of the amount by which the tax paid to a distributor imposed under this article plus any tax imposed pursuant to the authority of article twenty-nine exceeds such tax that would have otherwise been collected upon the sale of such automotive fuel pursuant to paragraph (1) of subdivision (e) of section eleven hundred eleven of this chapter, based upon the regional average retail sales prices for the period in which the tax was imposed upon a purchaser of such fuel, were the sale by the automotive fuel carrier a retail sale subject to the tax imposed under this article plus any tax imposed pursuant to the authority of article twenty-nine of this chapter but only if and to the extent that such automotive fuel carrier, in passing through the tax to be borne by the person who purchases from him pursuant to the provisions of paragraph (4) of subdivision (e) of such section eleven hundred eleven, passes through only the amount of tax which would be due if such sale were a retail sale subject to such taxes computed on the regional average retail sales price as provided in this paragraph. Furthermore such credit or refund shall be computed per gallon and to the nearest one-tenth of one cent.]

In the case of the enactment of a law increasing the rate of tax imposed by this article, the purchaser or user shall be entitled only to a refund or credit of the amount by which the increased tax on such sale or use imposed under this article plus any tax imposed under the authority of article twenty-nine exceeds the amount computed by applying against such sale or use the state and local rates of tax in effect at the time such contract was entered into or such bid was submitted.

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

§ 1120. Refunds and credits with respect to motor fuel. (a) (1) A vendor of motor fuel who or which is required to collect the taxes imposed by subdivision (a) of section eleven hundred five of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter shall be allowed a refund or credit against the amount of tax collected and required to be remitted to the tax commission pursuant to the provisions of section eleven hundred thirty-seven of this article upon the retail sale of motor fuel in the amount of the tax on such motor fuel prepaid by or passed through to and included in the price paid by such vendor pursuant to the provisions of section eleven hundred two of this article.

ven

(2) A refund or credit shall also be allowed such vendor for the tax prepaid by or passed through to and included in the price paid by such vendor upon any motor fuel pursuant to the provision of section eleven hundred two of this article if such fuel is sold at retail by such dor under circumstances where the taxes imposed by section cleven hundred five of this article and pursuant to the authority of article twenty-nine of this chapter are not required by the provisions of this article to be collected and remitted upon receipts from a retail sale thereof or where the tax required to be prepaid or paid pursuant to the provisions of section eleven hundred two of this article is not required by the provisions of this article to be included in the price passed through to the purchaser provided the vendor complies with such provisions in their entirety.

(b) A purchaser, user or consumer of motor fuel at retail who or which is required to pay the tax imposed by section eleven hundred ten of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter with respect to the purchase of or the use or consumption of such motor fuel shall be allowed a credit against such

tax required to be paid to the tax commission pursuant to such section and article in the amount of the tax prepaid by or passed through to and included in the price paid by such purchaser, user or consumer pursuant to the provisions of section eleven hundred two of this article.

(c) A refund or credit equal to the amount of tax (i) prepaid by or passed through to and included in the price paid by a purchaser, user or consumer pursuant to the provisions of section eleven hundred two of this article with respect to a purchase of motor fuel other than at retail shall be allowed such purchaser, user or consumer upon the use or consumption of such fuel at retail if the acquisition of such fuel by the purchaser, user or consumer would have otherwise been exempt pursuant to section eleven hundred fifteen or eleven hundred sixteen of this article but for the provisions of the last sentence of subdivision (c) of section eleven hundred two and subdivision (j) of section eleven hundred fifteen or of such last sentence and paragraph five of subdivision (b) of section eleven hundred sixteen of this article.

(d) A refund or credit equal to the amount of tax imposed pursuant to section eleven hundred five of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter upon the sale of motor fuel and paid by a purchaser shall be allowed such purchaser if the purchase, use or consumption of such fuel would have otherwise been exempt pursuant to section eleven hundred fifteen eleven hundred sixteen of this article but for the provisions of subdivision (j) of section eleven hundred fifteen or paragraph five of subdivision (b) of section eleven hundred sixteen of this article.

or

(e) With respect to motor fuel imported, manufactured or sold or purchased in this state, a refund or credit shall be allowed a distributor or 8 purchaser duly registered with or licensed by the taxing authorities of another state as a distributor of or a dealer in motor fuel therein, of the tax required to be prepaid pursuant to section eleven hundred two of this article in the amount of such tax paid by or included in the price paid by a distributor or such purchaser if such fuel was exported from this state and in connection with such exportation such fuel was immediately shipped to an identified facility outside this state provided the applicant complies with all requirements and rules and regulations of the tax commission, including evidentiary requirements, relating thereto.

(f) Refunds of the tax required to be prepaid pursuant to the provisions of section eleven hundred two of this article shall be allowed only to the extent such tax paid by or passed through to the retail vendor, or the purchaser, consumer or user exceeds the amount of tax required to be collected from such person or required to be remitted by the provisions of this article and pursuant to the authority of article twenty-nine of this chapter.

(8) Such credit shall be allowed only to the extent that the tax required to be prepaid pursuant to section eleven hundred two of this article is prepaid by such vendor, purchaser, user or consumer (i) upon its importation, manufacture or sale or directly to the tax commission, as the case may be, and (ii) with respect to the identified motor fuel for which such credit is claimed upon its use or consumption thereof, but only to the extent that the tax imposed by section eleven hundred five of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter together with the tax imposed by section eleven hundred ten of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter required to be paid, collected and remitted has been paid, collected and

remitted.

(h) Such refunds and credits shall be subject to the provisions of sections eleven hundred nineteen and eleven hundred thirty-nine of this article as if such sections were incorporated in full into this section and had expressly referred to the refunds and credits authorized by this section including the periods of limitations on payments and applications to the tax commission provided, however, that as provided in subdivision (e) of section eleven hundred thirty-nine of this article no interest shall be allowed or paid upon any refund made or credit allowed pursuant to subdivisions (a) and (b) of this section and provided_further, however, that as provided in subdivision (d) of section eleven hundred thirty-nine of this article, interest shall be allowed or paid

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law to be omitted.

upon any refund made or credit allowed pursuant to subdivision (e) of this section.

§ 27. Subdivision (c) of section eleven hundred thirty-two of such law, as amended by chapter eight hundred thirty-six of the laws of nineteen hundred seventy-four, is amended to read as follows:

(c) For the purpose of the proper administration of this article and to prevent evasion of the tax hereby imposed, it shall be presumed that all receipts for property or services of any type mentioned in subdivisions (a), (b), (c) and (d) of section eleven hundred five, all rents for occupancy of the type mentioned in subdivision (e) of said section, and all amusement charges of any type mentioned in subdivision (f) of said section, are subject to tax until the contrary is established, and the burden of proving that any receipt, amusement charge or rent is not taxable hereunder shall be upon the person required to collect tax or the customer. [Unless] Except as provided in subdivision (h) of this section, unless (1) a vendor shall have taken from the purchaser a certificate in such form as the tax commission may prescribe, signed by the purchaser and setting forth his name and address and, except as otherwise provided by regulation of the tax commission, the number of his registration certificate, together with such other information as said commission may require, to the effect that the property or service was purchased for resale or for some use by reason of which the sale is exempt from tax under the provisions of section eleven hundred fifteen, or (2) the purchaser prior to taking delivery, furnishes to the vendor: any affidavit, statement or additional evidence, documentary or otherwise, which the tax commission may require demonstrating that the purchaser is an exempt organization described in section eleven hundred sixteen, the sale shall be deemed a taxable sale at retail. Where such a certificate or statement has been furnished to the vendor, the burden of proving that the receipt, amusement charge or rent is not taxable hereunder shall be solely upon the customer. The vendor shall not be required to collect tax from purchasers who furnish a certificate of resale or an exempt organization statement in proper form. Provided however, the tax commission may authorize a purchaser, who acquires tangible personal property or services under circumstances which make it possible at the time of acquisition to determine the manner in which the tangible personal property or services will be used, to pay the tax directly to the tax commission and waive the collection of the tax by the vendor. Subject to such reasonable conditions as the tax commission may require, the tax commission shall authorize an omnibus carrier described in subdivision (b) of section eleven hundred nineteen to pay the tax on the purchase or use of an omnibus directly to the tax commission and waive the collection of the tax by the vendor. No such authority shall be granted or exercised except upon application to the tax commission, and the issuance by the tax commission, in its discretion, of a direct payment permit. If a direct payment permit is granted, its use shall be subject to conditions specified by the tax commission, and the payment of tax on all acquisitions pursuant to the permit shall be made directly to the tax commission by the permit holder.

im

pur

§ 28. Subdivision (h) of section eleven hundred thirty-two of such law is repealed and a new subdivision (h) is added to read as follows: (h) (1) (1) For the purpose of the proper administration of this article and to prevent evasion of the tax on motor fuel imposed by and suant to this article, it shall be presumed that all motor fuel imported, manufactured, sold, received or possessed in the state, other than motor fuel which is in interstate or foreign commerce, is intended for use, distribution or sale in the state and subject to the tax required to be prepaid by section eleven hundred two of this article until the contrary is established. It shall be further presumed that all motor fuel so imported, manufactured, sold, received or possessed in the state by any person, other than motor fuel delivered into the ordinary fuel tank connected with the engine of a means of conveyance in order to propel it, or in small drums or similar containers, which such person cannot otherwise account for, is subject to the tax required to be prepaid under section eleven hundred two of this article and such person is responsible for such prepayment. Provided, however, a distributor of motor fuel who imports, manufactures or sells and stores in the state or who purchases and stores motor fuel in the state on which he has prepaid the tax required to be prepaid pursuant to section eleven hundred two of this article shall be allowed an adjustment in arriving at the gallons subject to the taxes imposed by such section on account of the gallons the distributor establishes were lost due to shrinkage, evaporation and

handling; provided, however, such allowance shall not exceed two percent of the fuel stored. The burden of proving that any motor fuel is not so subject shall be upon the person so responsible for such prepayment with respect to such fuel.

(ii) Unless a purchaser receiving motor fuel shall have received with the delivery of such fuel a statement containing such information as the tax commission shall require from the seller to the effect (A) that such seller has prepaid or is prepaying the tax required to be prepaid by section eleven hundred two of this article and is passing through such tax or (B) that such seller is passing through such tax which was previously passed through to him, such motor fuel shall be deemed to be subject to the provisions of subdivision (b) of section eleven hundred two of this article, and such purchaser shall pay such tax, notwithstanding any provision of subdivision (c) of this section.

(iii) If any certificate or statement required under this paragraph has been furnished to the purchaser by the seller and accepted in good faith, the burden of proving that the tax required to be prepaid under this paragraph was prepaid or passed through, as the case may be, shall be solely on the seller.

(2) (i) For the purpose of the proper administration of this article and to prevent evasion of the tax hereby imposed, it shall be presumed that all retail sales of motor fuel are subject to the tax required to be collected by subdivision (a) of section eleven hundred five of this article or paid by the provisions of section eleven hundred ten of this article until the contrary is established, and it shall be presumed that all motor fuel imported, manufactured, received or possessed by any person in this state, which such person cannot otherwise account for as having been sold subject to the tax required to be collected by subdivision (a) of section eleven hundred five or paid by the provisions of section eleven hundred ten of this article, has been sold subject to the tax required to be collected by subdivision (a) of section eleven hundred five or paid by the provisions of section eleven hundred ten except that no such presumption shall apply with respect to motor fuel in the fuel tank of a motor vehicle used to propel such vehicle or to motor fuel in small drums or similar containers. The burden of proving that sale is not so subject shall be upon the person required to collect such tax and the purchaser of such fuel.

any

(ii) Unless the vendor has received from the purchaser a statement or certificate in such form as the commission may require, that the purchaser pursuant to the provisions of subdivision (b) of section eleven hundred sixteen of this article is not subject to the provisions of this paragraph, such sale shall be deemed a sale subject to the provisions of sections eleven hundred five and eleven hundred ten of this article notwithstanding any provision of subdivision (c) of this section.

(iii) Where any certificate or statement required under this paragraph has been furnished to the vendor and accepted in good faith, the burden of proving that the receipt is not taxable hereunder shall be solely upon the purchaser. The vendor shall not be required to collect such taxes from purchasers who furnish such certificates or statements in proper form.

ૐ 29. Subdivision (i) of section eleven hundred thirty-two of such law, as added by chapter nine hundred thirty of the laws of nineteen hundred eighty-two, is amended to read as follows:

(i) The tax commission shall, by regulation, provide for a certificate which must be furnished by a purchaser of a large volume of [automotive] motor fuel who or which is commonly referred to as a commercial account [of a large volume of automotive fuel from a distributor] where such purchase is for consumption by such purchaser and is not resold in order for the sales tax on such sale to be based on the actual [receipt as provided for in paragraph six of subdivision (e) of section eleven hundred eleven of this chapter. No such certificate may be used unless such purchaser has first obtained the approval of the tax commission for such use. The application for permission to use such certificate and such certificate shall be in such form and contain such information as the tax commission shall prescribe] receipts therefor.

30. Subdivision (c) of section eleven hundred thirty-four of such law is repealed.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law to be omitted.

§ 31. Subdivisions (c) and (d) of section eleven hundred thirty-five of such law, as amended by chapter nine hundred thirty of the laws of nineteen hundred eighty-two, are amended to read as follows:

au

(c) Every person selling or holding large volumes of automotive fuel [who or which is not a distributor,] shall keep records for such periods and in the manner prescribed by the tax commission pursuant to rules and regulations. Such records shall show (1) the number of gallons of tomotive fuel purchased, the price paid [to the distributor] therefor, [the rate of tax and] the amount of tax paid [to such distributor,] pursuant to the provisions of section eleven hundred two of this article and the regional average retail sales price applicable thereto and (2) the number of gallons sold, and the price paid by the purchaser to whom such person sells the automotive fuel, [the rate of tax] and the amount of tax included in such price pursuant to the provisions of section eleven hundred two of this article and the regional average retail sales price or the amount of tax collected pursuant to the provisions of subdivision (a) of section eleven hundred five of this article applicable to such sale together with such additional information as the tax commission shall require. The regional average retail sales price, [the rate of tax] and the amount of tax shall be calculated in the manner set forth in section eleven hundred eleven of this article.

and

[(d) Every distributor shall keep records in the manner prescribed by the tax commission pursuant to rules and regulations, which records shall show the number of gallons of automotive fuel sold, the purchaser thereof, the price paid therefor by the purchaser, the rate of tax, the amount of tax collected thereon, and the regional average retail sales price applicable thereto together with such additional information as the tax commission shall require. The regional average retail sales price, the rate of tax, and the amount of tax collected shall be calculated in the manner set forth in section eleven hundred eleven of this article. Such records shall be available for inspection and examination at any time upon demand by the tax commission or its duly authorized agent or employee and shall be preserved for a period of three years, except that the tax commission may consent to their_destruction within that period or may require that they be kept longer. Such records may be kept within the meaning of this section when reproduced on any photographic, photostatic, microfilm, micro-card, miniature photographic other process which actually reproduced the original record.

or

§ 32. The opening paragraph of subdivision (a) of section eleven hundred thirty-six 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

Every person required to register with the tax commission as provided in section eleven hundred thirty-four whose taxable receipts amusement charges and rents total less than three hundred thousand dollars, or in the case of any such person [who is a distributor, every such distributor] whose [taxable] sales of automotive fuel total less than one hundred thousand gallons, in every quarter of the preceding four quarters shall only file a return quarterly with the tax commission and every person required to so register whose taxable receipts, amusement charges and rents total three hundred thousand dollars or more, or in the case of any such person [who is a distributor, every such distributor] whose [taxable] sales of automotive fuel total one hundred thousand gallons or more in any quarter of the preceding four quarters shall, in addition to filing a quarterly return, and except as otherwise provided in section eleven hundred two of this article, file either, long-form or short-form, part-quarterly return monthly with the tax commission. However, a person required to register only because he is purchasing or selling tangible personal property for resale, and who is not required to collect any tax or pay any tax directly to the tax commission under this article, shall file an information return annually in such form as the tax commission may prescribe, or in the case of a person, who or which is not a distributor, required to register because he is selling automotive fuel, shall file an information return quarterly or, if the tax commission deems necessary, monthly, in such form as the tax commission shall prescribe. The return of a vendor of tangible personal property or services shall show his receipts from sales and also the aggregate value of tangible personal property and services sold by him, the use of which is subject to tax under this article, and the amount of tax payable thereon pursuant to the provisions of section eleven hundred thirty-seven. The return of a recipient of amusement charges shall show all such charges and the amount of tax thereon, and