S T A T E   O F   N E W   Y O R K
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                                  2643

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 19, 2011
                               ___________

Introduced  by  M.  of A. GABRYSZAK, BURLING, RAIA, McDONOUGH, CASTRO --
  Multi-Sponsored by -- M. of A. BARCLAY,  DESTITO,  REILLY,  THIELE  --
  read once and referred to the Committee on Ways and Means

AN ACT to amend the tax law, in relation to setting local sales tax at a
  rate  of  four  percent per gallon upon the sale of a gallon of diesel
  motor fuel

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

  Section  1.  Subdivision (b) of section 523 of the tax law, as amended
by section 7 of part M-1 of chapter 109 of the laws of 2006, is  amended
to read as follows:
  (b) Rate of tax. The tax imposed by this section shall be at a compos-
ite  rate  determined  by adding together (1) a fuel tax component which
shall be equal to the applicable rate per gallon  in  effect  under  the
taxes on motor fuel and diesel motor fuel imposed by article twelve-A of
this  chapter and (2) a sales tax component, which shall be equal to the
sum of (A) a state sales and compensating use tax subcomponent, equal to
the applicable rate per gallon in effect under the sales and  compensat-
ing  use  taxes  on motor fuel and diesel motor fuel imposed by sections
eleven hundred five and eleven hundred ten of this chapter as  described
in subdivision (m) of section eleven hundred eleven of this chapter plus
(B)  a local sales and compensating use tax subcomponent, which shall be
[the lower of (i) the lowest applicable rate per gallon in effect  under
the  sales  and  compensating  use  taxes on such fuels in effect in any
county of this state imposing a local sales and compensating use tax  on
a  cents per gallon basis pursuant to the authority of subpart B of part
one of article twenty-nine of this chapter, or (ii) the equivalent  rate
per gallon based on the highest rate applicable to the receipts from the
sale  of  a  gallon  of motor fuel or diesel motor fuel in effect in any
locality of this state imposing a local sales and compensating  use  tax
on  a  percentage  rate basis on the sale of motor fuel and diesel motor
fuel pursuant to the authority of subpart B of part one of article twen-
ty-nine of this chapter. Provided, however,  that  the  total  rate  per
gallon  applicable  to  the  receipts  from the sale of a gallon of such

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07710-01-1

A. 2643                             2

fuels imposed under clause (ii) of subparagraph (B) of paragraph two  of
this  subdivision  shall  not exceed three percent. Such equivalent rate
per gallon under clause (ii) of subparagraph B of paragraph two of  this
subdivision shall be determined as provided in subdivision (d) or (m) of
section  eleven  hundred  eleven  of  this  chapter  and  the  schedules
prescribed by the commissioner pursuant to  such  subdivision  (d),  and
shall  be  based  on the average price 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  without  the
inclusion of any state or local sales tax on receipts from sales of such
fuels)  paid  by  the  carrier during the reporting period for all motor
fuel and diesel motor fuel purchased for use in  its  operations  either
within  or  without  this state. For purposes of clause (ii) of subpara-
graph (B) of paragraph two of this subdivision, the price for motor fuel
and diesel motor fuel purchased by such carrier shall be  deemed  to  be
the  prevailing  price  for  motor fuel and diesel motor fuel, as estab-
lished by the  commissioner  each  calendar  quarter  pursuant  to  this
section,  applicable  to the reporting period] AT A RATE OF FOUR PERCENT
PER GALLON UPON THE SALE OF A GALLON OF DIESEL MOTOR  FUEL,  PAYABLE  TO
THOSE  LOCALITIES OF THE STATE WHICH IMPOSE LOCAL SALES AND COMPENSATING
USE TAXES ON A CENTS PER GALLON BASIS PURSUANT TO SUBPART B OF PART  ONE
OF  ARTICLE  TWENTY-NINE  OF  THIS CHAPTER.   SUCH UNIFORM RATE SHALL BE
SUBJECT TO ADJUSTMENT ON A QUARTERLY BASIS.  The commissioner shall  for
each  calendar  quarter  establish a prevailing price for motor fuel and
diesel motor fuel based on the prices being charged  on  any  given  day
during  the  first  fifteen  days  of the previous calendar quarter at a
minimum of ten selected truck  stops  widely  scattered  throughout  the
state.    SUCH TAX FOR DIESEL MOTOR FUEL SHALL BE COMPUTED BY TAKING THE
COMPOSITE RATE MINUS THE STATE EXCISE TAX AND MINUS THE STATE SALES TAX;
THE RESULTANT TAXABLE SALES NUMBER SHALL BE MULTIPLIED BY  FOUR  PERCENT
AND  THIS SHALL ESTABLISH THE CENTS PER GALLON STATEWIDE LOCAL SALES TAX
ON A GALLON OF DIESEL MOTOR FUEL  FOR  THE  CALENDAR  QUARTER.  The  tax
imposed  by this section shall be computed by multiplying such composite
rate by the amount of motor fuel [or diesel motor fuel, as the case  may
be],  used  by a carrier in its operations within this state during each
reporting period. The amount of motor fuel and diesel motor fuel used in
the operations of any carrier within this state shall be  determined  by
dividing the number of miles traveled in this state subject to tax under
this section by the average miles per gallon for the type of fuel. Where
the  records  of any carrier are inadequate or incomplete, the qualified
motor vehicles of a carrier filing  returns  shall  be  deemed  to  have
consumed, on the average, one gallon of diesel motor fuel for every four
miles  traveled  or one gallon of motor fuel for every three miles trav-
eled unless substantial evidence discloses that a different  amount  was
consumed;  provided,  however,  that  if  the commissioner enters into a
cooperative agreement pursuant to section five hundred  twenty-eight  of
this article and such agreement prescribes a different average miles per
gallon  deemed  to  be  consumed,  the commissioner shall prescribe such
different average.  THE COMMISSIONER SHALL BE CHARGED WITH DEVELOPING  A
MECHANISM  TO COMPENSATE THOSE COUNTIES CHARGING A RATE HIGHER THAN FOUR
PERCENT ON DIESEL MOTOR FUEL SALES FOR SUCH COUNTIES' LOSS IN TAX REVEN-
UES.
  S 2. This act shall take effect immediately and  shall  apply  to  the
next taxable year and all subsequent taxable years.