senate Bill S782A

Amended

Provides motor fuel tax exemption for sales of diesel motor fuel made to commercial fishermen

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 09 / Jan / 2013
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 30 / Apr / 2013
    • REPORTED AND COMMITTED TO FINANCE
  • 24 / May / 2013
    • AMEND AND RECOMMIT TO FINANCE
  • 24 / May / 2013
    • PRINT NUMBER 782A
  • 08 / Jan / 2014
    • REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
  • 14 / Jan / 2014
    • REPORTED AND COMMITTED TO FINANCE
  • 12 / May / 2014
    • AMEND AND RECOMMIT TO FINANCE
  • 12 / May / 2014
    • PRINT NUMBER 782B

Summary

Eliminates provisions of law that require the payment and subsequent refund of the ten cent diesel excise tax and sales tax on diesel motor fuel when sold to operators of commercial fishing vessels for use in the operation of such vessels.

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Bill Details

See Assembly Version of this Bill:
A138A
Versions:
S782
S782A
S782B
Legislative Cycle:
2013-2014
Current Committee:
Senate Finance
Law Section:
Tax Law
Laws Affected:
Amd ยงยง282-a, 301-b & 1115, Tax L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S6879A, A7271A
2009-2010: A1903A, A1903A, S6879
2007-2008: A989, A989

Votes

8
0
8
Aye
0
Nay
1
aye with reservations
0
absent
0
excused
0
abstained
show Investigations and Government Operations committee vote details

Sponsor Memo

BILL NUMBER:S782A

TITLE OF BILL: An act to amend the tax law, in relation to providing
an exemption from the payment of the motor fuels tax and the sales tax
on motor fuels used in the operation of commercial fishing vessels

PURPOSE: Provides a motor fuel tax exemption for sales of diesel
motor fuel made to commercial fishermen.

SUMMARY OF PROVISIONS: This bill amends the tax law in order to
eliminate the statute that requires the payment and subsequent refund
of the eight cent diesel excise tax and the sales tax on diesel fuel
when sold to operators of commercial fishing vessels. Under the
current law, both taxes must be paid by commercial fishermen,
notwithstanding their exempt status from these taxes. The commercial
fishermen are then allowed to file for a refund of these taxes from
the Department of Taxation and Finance.

JUSTIFICATION: The original intent of this policy, as it relates to
commercial fishing vessels, was to prevent tax evasion in the diesel
fuel industry. However, it was not intended to be burdensome to many
of the state's industries such as commercial fishermen and their fuel
distributors.

The implementation of this law has caused a great deal of hardship for
commercial fishermen. A fisherman, operating a trawler vessel burning,
85,000 gallons per year, must advance approximately $13,600 annually
in taxes to the State. The negative financial consequences of this
cash flow are a large burden for the commercial fishermen of this
state.

The negative impacts of this law have also been carried over to the
fuel distributors of the commercial fishermen. Because of the payment
requirement, many fishermen are now purchasing their fuel at ports
outside of New York. This will result in the loss of thousands of
dollars in revenue for the state's fuel distributors. This legislation
would no longer require commercial fishermen to pay any excise or
state sales taxes for the purchase of diesel motor fuel.

LEGISLATIVE HISTORY: 2012 S.6879; 2009-10 A.1903A; 2007-08 A.989;
2005-06 A.3854; 2003-04 A.1416; 2001-02 A2289; 1999-00 A2840A.

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: This act shall take effect on the first day of a
sales tax quarterly period, as described in subdivision (b) of Section
1136 of the tax law, next commencing at least ninety days after this
act shall have become law, sections four and five of this act shall
apply to sales made under and uses occurring on or after the dates
such sections four and five shall have taken effect, respectively,
although made or occurring under a prior contract; and provided
further that the amendments made by section four of this act shall be
subject to the expiration and reversion of such subdivision pursuant
to Section 19 of part W-1 of Chapter 109 of the laws of 2006, as
amended, when upon such date the provisions of section five of this
act shall take effect.


view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 782--A                                              A. 138--A

                       2013-2014 Regular Sessions

                      S E N A T E - A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
  ed,  and  when  printed  to  be committed to the Committee on Investi-
  gations and Government Operations  --  reported  favorably  from  said
  committee  and  committed  to  the  Committee  on Finance -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

IN ASSEMBLY -- Introduced by M. of A. THIELE -- read once  and  referred
  to  the  Committee  on  Ways  and  Means -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT to amend the tax law, in relation to providing an exemption from
  the payment of the motor fuels tax and the sales tax  on  motor  fuels
  used in the operation of commercial fishing vessels

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Paragraph (b) of subdivision 3 of section 282-a of the tax
law, as amended by section 2 of part E of chapter  59  of  the  laws  of
2012, is amended to read as follows:
  (b) The tax on the incidence of sale or use imposed by subdivision one
of  this  section shall not apply to: (i) the sale or use of non-highway
Diesel motor fuel, but only if all of such fuel is consumed  other  than
on  the  public highways of this state (except for the use of the public
highway by farmers to reach adjacent farmlands); provided, however, this
exemption shall in no event apply to a sale of non-highway Diesel  motor
fuel which involves a delivery at a filling station or into a repository
which  is equipped with a hose or other apparatus by which such fuel can
be dispensed into the fuel tank of a motor vehicle (except for  delivery
at  a  farm site which qualifies for the exemption under subdivision (g)
of section three hundred one-b of this chapter); or (ii) a sale  to  the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03501-02-3

S. 782--A                           2                          A. 138--A

consumer consisting of not more than twenty gallons of water-white kero-
sene  to be used and consumed exclusively for heating purposes; or (iii)
the sale to or delivery at a filling station or other retail  vendor  of
water-white  kerosene  provided  such  filling  station  or other retail
vendor only sells such  water-white  kerosene  exclusively  for  heating
purposes in containers of no more than twenty gallons; or (iv) a sale of
kero-jet  fuel  to an airline for use in its airplanes or a use of kero-
jet fuel by an airline in its airplanes; or (v) a sale of kero-jet  fuel
by  a registered distributor of Diesel motor fuel to a fixed base opera-
tor registered under this article as a distributor of kero-jet fuel only
where such fixed base operator is engaged solely in making  or  offering
to make retail sales not in bulk of kero-jet fuel directly into the fuel
tank  of  an airplane for the purpose of operating such airplane; (vi) a
retail sale not in bulk of kero-jet fuel by a fixed base operator regis-
tered under this article as a distributor of kero-jet  fuel  only  where
such  fuel  is  delivered directly into the fuel tank of an airplane for
use in the operation of such airplane; or (vii) the sale  of  previously
untaxed qualified biodiesel to a person registered under this article as
a  distributor of Diesel motor fuel other than (A) a retail sale to such
person or (B) a sale to such person which involves a delivery at a fill-
ing station or into a repository which is equipped with a hose or  other
apparatus  by  which  such qualified biodiesel can be dispensed into the
fuel tank of a motor vehicle; OR (VIII) A SALE OF DIESEL MOTOR FUEL TO A
"COMMERCIAL FISHERMAN", AS SUCH TERM IS DEFINED IN  SUBDIVISION  (I)  OF
SECTION THREE HUNDRED OF THIS CHAPTER, AT RETAIL UNDER THE CIRCUMSTANCES
SET  FORTH  IN PARAGRAPH ONE OF SUBDIVISION (G) OF SECTION THREE HUNDRED
ONE-C OF THIS CHAPTER, AND WHERE SUCH COMMERCIAL FISHING VESSEL IS OPER-
ATED BY A COMMERCIAL FISHERMAN.
  S 2. Paragraph (b) of subdivision 3 of section 282-a of the  tax  law,
as  amended by section 3 of part W of chapter 59 of the laws of 2013, is
amended to read as follows:
  (b) The tax on the incidence of sale or use imposed by subdivision one
of this section shall not apply to: (i) the sale or use  of  non-highway
Diesel  motor  fuel, but only if all of such fuel is consumed other than
on the public highways of this state (except for the use of  the  public
highway by farmers to reach adjacent farmlands); provided, however, this
exemption  shall in no event apply to a sale of non-highway Diesel motor
fuel which involves a delivery at a filling station or into a repository
which is equipped with a hose or other apparatus by which such fuel  can
be  dispensed into the fuel tank of a motor vehicle (except for delivery
at a farm site which qualifies for the exemption under  subdivision  (g)
of  section  three hundred one-b of this chapter); or (ii) a sale to the
consumer consisting of not more than twenty gallons of water-white kero-
sene to be used and consumed exclusively for heating purposes; or  (iii)
the  sale  to or delivery at a filling station or other retail vendor of
water-white kerosene provided  such  filling  station  or  other  retail
vendor  only  sells  such  water-white  kerosene exclusively for heating
purposes in containers of no more than twenty gallons; or (iv) a sale of
kero-jet fuel to an airline for use in its airplanes or a use  of  kero-
jet  fuel by an airline in its airplanes; or (v) a sale of kero-jet fuel
by a registered distributor of Diesel motor fuel to a fixed base  opera-
tor registered under this article as a distributor of kero-jet fuel only
where  such  fixed base operator is engaged solely in making or offering
to make retail sales not in bulk of kero-jet fuel directly into the fuel
tank of an airplane for the purpose of operating such airplane; or  (vi)
a  retail  sale  not  in  bulk of kero-jet fuel by a fixed base operator

S. 782--A                           3                          A. 138--A

registered under this article as a distributor  of  kero-jet  fuel  only
where  such fuel is delivered directly into the fuel tank of an airplane
for use in the operation of such airplane; or (vii) the sale  of  previ-
ously  untaxed  qualified  biodiesel  to  a person registered under this
article as a distributor of Diesel motor fuel other than  (A)  a  retail
sale to such person or (B) a sale to such person which involves a deliv-
ery  at  a filling station or into a repository which is equipped with a
hose or other  apparatus  by  which  such  qualified  biodiesel  can  be
dispensed  into  the fuel tank of a motor vehicle; or (viii) the sale of
previously untaxed highway Diesel motor  fuel  by  a  person  registered
under  this  article  as  a distributor of Diesel motor fuel to a person
registered under this article as a  distributor  of  Diesel  motor  fuel
where  the  highway  Diesel motor fuel is either: (A) being delivered by
pipeline, railcar, barge, tanker or other  vessel  to  a  terminal,  the
operator  of  which  terminal  is  registered  under section two hundred
eighty-three-b of this article, or (B) within such a terminal  where  it
has  been  so delivered. Provided, however, that the exemption set forth
in this subparagraph shall not apply to any highway Diesel motor fuel if
it is removed from a terminal, other than by pipeline, barge, tanker  or
other vessel; OR (IX) A SALE OF DIESEL MOTOR FUEL TO A "COMMERCIAL FISH-
ERMAN",  AS  SUCH  TERM  IS  DEFINED IN SUBDIVISION (I) OF SECTION THREE
HUNDRED OF THIS CHAPTER, AT RETAIL UNDER THE CIRCUMSTANCES SET FORTH  IN
PARAGRAPH  ONE OF SUBDIVISION (G) OF SECTION THREE HUNDRED ONE-C OF THIS
CHAPTER, AND WHERE SUCH COMMERCIAL  FISHING  VESSEL  IS  OPERATED  BY  A
COMMERCIAL FISHERMAN.
  S  3.  Subdivision  4  of  section 282-a of the tax law, as amended by
section 5 of part K of chapter 61 of the laws of  2011,  is  amended  to
read as follows:
  4.  The  tax  imposed  by  this  section on Diesel motor fuel shall be
passed through by the seller and included as part of the  selling  price
to each purchaser of such fuel. Provided, however, the amount of the tax
imposed by this section may be excluded from the selling price of Diesel
motor fuel where (i) a sale of Diesel motor fuel is made to an organiza-
tion  described  in  paragraph  (a) of subdivision three of this section
solely for the purpose stated therein; (ii) a sale of non-highway Diesel
motor fuel is made to a consumer but only  if  such  non-highway  Diesel
motor  fuel  is not delivered to a filling station, nor delivered into a
storage tank which is equipped with a hose or other apparatus  by  which
such  fuel  can  be  dispensed into the fuel tank of a motor vehicle; or
(iii) the sale to or delivery at  a  filling  station  or  other  retail
vendor  of  water-white  kerosene provided such filling station or other
retail vendor only sells such water-white kerosene exclusively for heat-
ing purposes in containers of no more than twenty  gallons;  or  (iv)  a
sale of kero-jet fuel is made to an airline for use in its airplanes; OR
(V)  A SALE OF DIESEL MOTOR FUEL IS MADE TO A "COMMERCIAL FISHERMAN", AS
SUCH TERM IS DEFINED IN SUBDIVISION (I) OF SECTION THREE HUNDRED OF THIS
CHAPTER, AT RETAIL UNDER THE CIRCUMSTANCES SET FORTH IN PARAGRAPH ONE OF
SUBDIVISION (G) OF SECTION THREE HUNDRED  ONE-C  OF  THIS  CHAPTER,  AND
WHERE SUCH COMMERCIAL FISHING VESSEL IS OPERATED BY A COMMERCIAL FISHER-
MAN.
  S  4. Section 301-b of the tax law is amended by adding a new subdivi-
sion (j) to read as follows:
  (J) SALES OR USES OF DIESEL MOTOR FUEL AND RESIDUAL PETROLEUM  PRODUCT
FOR  COMMERCIAL FISHING. DIESEL MOTOR FUEL OR RESIDUAL PETROLEUM PRODUCT
SOLD TO OR USED BY A "COMMERCIAL FISHERMAN", AS SUCH TERM IS DEFINED  IN
SUBDIVISION  (I)  OF  SECTION  THREE  HUNDRED OF THIS ARTICLE, AT RETAIL

S. 782--A                           4                          A. 138--A

UNDER THE CIRCUMSTANCES SET FORTH IN PARAGRAPH ONE OF SUBDIVISION (G) OF
SECTION THREE HUNDRED ONE-C OF THIS ARTICLE, AND WHERE  SUCH  COMMERCIAL
FISHING VESSEL IS OPERATED BY A COMMERCIAL FISHERMAN.
  S  5.  Subdivision  (j)  of section 1115 of the tax law, as amended by
section 41 of part K of chapter 61 of the laws of 2011,  is  amended  to
read as follows:
  (j) The exemptions provided in 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 motor fuel or diesel motor fuel,  except
that  the exemptions provided in paragraphs nine and forty-two of subdi-
vision (a) of this section shall apply to the tax required to be prepaid
pursuant to the provisions of section eleven hundred two of this article
and to the taxes imposed by sections  eleven  hundred  five  and  eleven
hundred  ten  of this article with respect to sales and uses of kero-jet
fuel, CNG, hydrogen and E85, provided, however,  the  exemption  allowed
for  E85  shall  be  subject  to the additional requirements provided in
section eleven hundred two of this  article  with  respect  to  E85  AND
EXCEPT  THAT THE EXEMPTION PROVIDED IN PARAGRAPH TWENTY-FOUR OF SUBDIVI-
SION (A) OF THIS SECTION SHALL APPLY TO THE TAXES  IMPOSED  BY  SECTIONS
ELEVEN  HUNDRED FIVE AND ELEVEN HUNDRED TEN OF THIS ARTICLE WITH RESPECT
TO SALES AND USES OF DIESEL MOTOR FUEL USED IN THE OPERATION OF A  FISH-
ING  VESSEL  AS DESCRIBED IN PARAGRAPH TWENTY-FOUR OF SUBDIVISION (A) OF
THIS SECTION.  The exemption provided in subdivision (c) of this section
shall apply to sales and uses of non-highway diesel motor fuel but  only
if  all  of  such  fuel is consumed other than on the public highways of
this state.  The exemption provided in subdivision (c) of  this  section
shall  apply  to sales and uses of non-highway diesel motor fuel for use
or consumption either in the production for sale  of  tangible  personal
property  by  farming or in a commercial horse boarding operation, or in
both but only if all of such fuel is consumed other than on  the  public
highways  of  this  state  (except for the use of the public highways to
reach adjacent farmlands or adjacent lands used in  a  commercial  horse
boarding operation, or both).
  S  6.  Subdivision  (j)  of section 1115 of the tax law, as amended by
section 41-a of part K of chapter 61 of the laws of 2011, is amended  to
read as follows:
  (j) The exemptions provided in 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 motor fuel or diesel motor fuel,  except
that the exemption provided in paragraph nine of subdivision (a) of this
section  shall  apply  to the tax required to be prepaid pursuant to the
provisions of section eleven hundred two of  this  article  and  to  the
taxes  imposed by sections eleven hundred five and eleven hundred ten of
this article with respect to sales and uses of kero-jet fuel AND  EXCEPT
THAT  THE EXEMPTION PROVIDED IN PARAGRAPH TWENTY-FOUR OF SUBDIVISION (A)
OF THIS SECTION SHALL APPLY TO THE  TAXES  IMPOSED  BY  SECTIONS  ELEVEN
HUNDRED  FIVE  AND  ELEVEN  HUNDRED  TEN OF THIS ARTICLE WITH RESPECT TO
SALES AND USES OF DIESEL MOTOR FUEL USED IN THE OPERATION OF  A  FISHING
VESSEL  AS DESCRIBED IN PARAGRAPH TWENTY-FOUR OF SUBDIVISION (A) OF THIS
SECTION.   The exemption provided in subdivision  (c)  of  this  section
shall  apply to sales and uses of non-highway diesel motor fuel but only
if all of such fuel is consumed other than on  the  public  highways  of

S. 782--A                           5                          A. 138--A

this  state.  The  exemption provided in subdivision (c) of this section
shall apply to sales and uses of non-highway diesel motor fuel  for  use
or  consumption  either  in the production for sale of tangible personal
property  by  farming or in a commercial horse boarding operation, or in
both but only if all of such fuel is consumed other than on  the  public
highways  of  this  state  (except for the use of the public highways to
reach adjacent farmlands or adjacent lands used in  a  commercial  horse
boarding operation, or both).
  S 7.  This act shall take effect on the first day of a sales tax quar-
terly period, as described in subdivision (b) of section 1136 of the tax
law,  next  commencing  at  least  ninety days after this act shall have
become a law; provided however that, if section 3 of part W  of  chapter
59  of the laws of 2013 is not in effect as of such date then the amend-
ments to paragraph (b) of subdivision 3 of section 282-a of the tax  law
made  by  section two of this act shall take effect on the same date and
in the same manner as such section 3 of part W of chapter 59 of the laws
of 2013 takes effect, as amended; sections five  and  six  of  this  act
shall apply to sales made under and uses occurring on or after the dates
such  sections  five  and  six  shall  have  taken effect, respectively,
although made or occurring under a prior contract; and provided  further
that  such  amendments made by section five of this act shall be subject
to the expiration and reversion of such subdivision pursuant to  section
19 of part W-1 of chapter 109 of the laws of 2006, as amended, when upon
such date the provisions of section six of this act shall take effect.

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