[ ] is old law to be omitted.
LBD12574-03-1
A. 4011--B 2
(Part I); to amend chapter 298 of the laws of 1985, amending the tax
law relating to the franchise tax on banking corporations imposed by
the tax law, authorized to be imposed by any city having a population
of one million or more by chapter 772 of the laws of 1966 and imposed
by the administrative code of the city of New York and relating to
other provisions of the tax law, chapter 883 of the laws of 1975 and
the administrative code of the city of New York which relates to such
franchise tax, to amend chapter 817 of the laws of 1987, amending the
tax law and the environmental conservation law, constituting the busi-
ness tax reform and rate reduction act of 1987, and to amend chapter
525 of the laws of 1988, amending the tax law and the administrative
code of the city of New York relating to the imposition of taxes in
the city of New York, in relation to the effectiveness of certain
provisions of such chapters; and to amend the tax law and the adminis-
trative code of the city of New York, in relation to extending transi-
tional provisions relating to the federal Gramm-Leach-Bliley act (Part
J); to amend the tax law and the criminal procedure law, in relation
to updating the tax classification of diesel motor fuel to be consist-
ent with federal laws and make the diesel tax structure consistent
with this new tax treatment; and to repeal certain provisions of the
tax law and the administrative code of the city of New York relating
thereto (Part K); to amend the tax law, in relation to making a tech-
nical correction to the E85 definition; and to amend chapter 109 of
the laws of 2006, amending the tax law relating to providing
exemptions, reimbursements and credits from various taxes for certain
alternative fuels, in relation to extending the alternative fuels tax
exemptions for one year (Part L); to amend section 11 of part EE of
chapter 63 of the laws of 2000, amending the tax law and other laws
relating to modifying the distribution of funds from the motor vehicle
fuel excise tax, in relation to the distribution of motor vehicle fees
(Part M); Intentionally omitted (Part N); to amend the tax law, in
relation to video lottery free play allowance program (Part O); to
amend the tax law, in relation to prize payout of certain instant
lottery games (Part P); Intentionally omitted (Part Q); Intentionally
omitted (Part R); to amend the racing, pari-mutuel wagering and breed-
ing law, in relation to licenses for simulcast facilities, sums relat-
ing to track simulcast, simulcast of out-of-state thoroughbred races,
simulcasting of races run by out-of-state harness tracks and distrib-
utions of wagers; to amend chapter 281 of the laws of 1994 amending
the racing, pari-mutuel wagering and breeding law and other laws
relating to simulcasting and chapter 346 of the laws of 1990 amending
the racing, pari-mutuel wagering and breeding law and other laws
relating to simulcasting and the imposition of certain taxes, in
relation to extending certain provisions thereof; and to amend the
racing, pari-mutuel wagering and breeding law, in relation to extend-
ing certain provisions thereof (Part S); and to amend the tax law, in
relation to the imposition of tax (Part T)
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act enacts into law major components of legislation
which are necessary to implement the state fiscal plan for the 2011-2012
state fiscal year. Each component is wholly contained within a Part
identified as Parts A through T. The effective date for each particular
A. 4011--B 3
provision contained within such Part is set forth in the last section of
such Part. Any provision in any section contained within a Part, includ-
ing the effective date of the Part, which makes a reference to a section
"of this act", when used in connection with that particular component,
shall be deemed to mean and refer to the corresponding section of the
Part in which it is found. Section three of this act sets forth the
general effective date of this act.
PART A
Section 1. Paragraphs (a), (b) and (k) of subdivision 1 of section 300
of the abandoned property law, paragraph (a) as amended and paragraph
(k) as relettered by chapter 15 of the laws of 1983, subparagraph (iv)
of paragraph (a) as amended and subparagraph (v) of paragraph (a) as
added by chapter 409 of the laws of 1994, paragraphs (b) and (k) as
amended by chapter 78 of the laws of 1976, are amended to read as
follows:
(a) Any amounts due on deposits or any amounts to which a shareholder
of a savings and loan association or a credit union is entitled, held or
owing by a banking organization, which shall have remained unclaimed for
[five] THREE years by the person or persons appearing to be entitled
thereto, including any interest or dividends credited thereon, excepting
(i) any such amount which has been reduced or increased, exclusive of
dividend or interest payment, within [five] THREE years, or
(ii) any such amount which is represented by a passbook not in the
possession of the banking organization, which has been presented for
entry of dividend or interest credit within [five] THREE years, or
(iii) any such amount with respect to which the banking organization
has on file written evidence received within [five] THREE years that the
person or persons appearing to be entitled to such amounts had knowledge
thereof, or
(iv) any such amount payable only at or by a branch office located in
a foreign country, or payable in currency other than United States
currency, or
(v) any such amount that is separately identifiable and has been set
aside to meet the burial and related expenses of an individual, provided
however that said amount shall be deemed abandoned property where it
remains unclaimed for [five] THREE years subsequent to the death of the
individual for whom the amount was deposited.
(b) Any amounts, together with all accumulations of interest or other
increment thereon, held or owing by a banking organization for the
payment of an interest in a bond and mortgage apportioned or transferred
by it pursuant to subdivision seven of former section one hundred eight-
y-eight of the banking law as it existed prior to July first, nineteen
hundred thirty-seven, which shall have remained unclaimed by the person
or persons appearing to be entitled thereto for [five] THREE years after
the full and final liquidation of such mortgage, excepting
(i) any such amount which has been reduced by payment to the person or
persons appearing to be entitled thereto within [five] THREE years, or
(ii) any such amount which is represented by a certificate of share
ownership not in the possession of the banking organization, which
certificate has been presented for transfer within [five] THREE years,
or
(iii) any such amount with respect to which the banking organization
has on file written evidence received within [five] THREE years that the
A. 4011--B 4
person or persons appearing to be entitled to such amount had knowledge
thereof.
(k) Lost property or instruments as defined in section two hundred
fifty-one of the personal property law which shall have been held by a
safe deposit company or bank for [five] THREE years pursuant to the
provisions of section two hundred fifty-six of the personal property
law.
S 2. Paragraphs (a) and (c) of subdivision 1 of section 600 of the
abandoned property law, paragraph (a) as amended by chapter 655 of the
laws of 1978 and paragraph (c) as amended by chapter 281 of the laws of
1980, are amended to read as follows:
(a) Any moneys including the monetary proceeds from the sale of tangi-
ble personal property and securities or other intangible property paid
into court, which, except as provided in section ten hundred OF THIS
CHAPTER, shall have remained in the hands of any county treasurer, or
the commissioner of finance of the city of New York, for [five] THREE
years, together with all accumulations of interest or other increment
thereon, less such legal fees as he may be entitled to.
(c) Any moneys paid to a support bureau of a family court, for the
support of a spouse or child, which shall have remained in the custody
of a county treasurer, or the commissioner of finance of the city of New
York, for [five] THREE years, together with any interest due thereon,
less such legal fees as he may be entitled to. For purposes of this
section, "family court" includes the domestic relations court of the
city of New York prior to the first day of September, nineteen hundred
sixty-two.
S 3. Subdivision 1 of section 1000 of the abandoned property law, as
amended by chapter 670 of the laws of 1989, is amended to read as
follows:
1. (a) Any moneys held or owing for the payment of an award made by a
court in any condemnation proceeding and payable by a public corporation
or other corporation possessing powers of condemnation, which shall have
remained unclaimed by the person or persons appearing to be entitled
thereto for [five] THREE years after confirmation by the court, together
with any interest due thereon, less, when an award is payable by a
public corporation, any amount due such public corporation at the time
of title vesting for tax, water or any other liens on the same parcel
the award was for, with any interest due thereon, and any amount due
such public corporation at the time of title vesting or at the time of
confirmation, whichever is later, for an assessment on the same parcel
the award was for, with any interest due thereon, shall be deemed aban-
doned property. In any condemnation proceedings in which the court shall
have not made an award, any moneys paid into court, including interest
thereon, shall be subject to the provisions of article six of this chap-
ter and this section shall have no application thereto.
(b) The issuance of a warrant for such an award shall not prevent an
award from being deemed abandoned property if such warrant is unclaimed
[five] THREE years after confirmation of such award by the court.
S 4. Subdivision 1 of section 1300 of the abandoned property law is
amended to read as follows:
1. Any unclaimed moneys arising from the sale of any personal property
which shall have been pledged or mortgaged as security for the loan of
money with a corporation, except a banking organization or a licensed
lender, heretofore or hereafter organized by or pursuant to a special
statute for the purpose of, and principally engaged in, giving aid to
individuals by loans of money at interest upon the pledge or mortgage of
A. 4011--B 5
personal property, and which has subjected itself to special provisions
of the banking law, after deducting the amount of the loan, the interest
then due on the same and any other lawful charges, which shall have
remained in its possession for [six] THREE years from the date of such
sale, shall be deemed abandoned property.
S 5. Subdivision 2 of section 1315 of the abandoned property law, as
amended by section 2 of part II of chapter 57 of the laws of 2010, is
amended to read as follows:
2. Except as otherwise provided by law, any amount representing
unclaimed money or securities and held in escrow or otherwise by any
corporation (other than a public corporation), joint stock company,
individual, association of two or more individuals, committee or busi-
ness trust, to ensure the performance of any duty or obligation, shall
be deemed abandoned property when:
a. such amount is held or owing in this state, and
b. such amount has remained unclaimed by the person or persons enti-
tled thereto for [five] THREE years, except
c. where the duty or obligation for which such amount was deposited
has not been performed and such performance is still required, such
amounts shall not be deemed abandoned property.
S 6. Paragraph (a) of subdivision 1 of section 1002 of the abandoned
property law is amended to read as follows:
(a) That a report of all awards in condemnation proceedings unclaimed
for more than [five] THREE years has been made to the state comptroller
and that a copy thereof is on file and open to public inspection, if a
public corporation at the office of the chief fiscal officer thereof; or
if not a public corporation at the principal office or place of business
of such corporation;
S 7. Sections 301, 401, 701 and 1001 of the abandoned property law are
REPEALED.
S 8. Subdivision 1 of section 302 of the abandoned property law is
amended to read as follows:
1. [Within thirty days after making a report of abandoned property
pursuant to the provisions of section three hundred one, such banking]
EVERY BANKING organization shall cause to be published, ON OR BEFORE THE
FIRST DAY OF SEPTEMBER IN EACH YEAR, a notice entitled: "NOTICE OF NAMES
OF PERSONS APPEARING AS OWNERS OF CERTAIN UNCLAIMED PROPERTY HELD BY
(name of banking organization)."
S 9. The opening paragraph of subdivision 3 of section 302 of the
abandoned property law, as amended by chapter 315 of the laws of 1954,
is amended to read as follows:
Such notice shall[, in accordance with the classification prescribed
by the state comptroller for the report pursuant to the provisions of
section three hundred one,] set forth:
S 10. Section 303 of the abandoned property law is amended to read as
follows:
S 303. Payment of abandoned property. 1. In such succeeding month of
November, and on or before the tenth day thereof, every banking organ-
ization shall pay or deliver to the state comptroller all [abandoned]
property [specified in such report, excepting such abandoned property as
since the date of such report shall have ceased to be abandoned] WHICH,
AS OF THE THIRTIETH DAY OF JUNE NEXT PRECEDING, WAS DEEMED ABANDONED
PURSUANT TO SECTION THREE HUNDRED OF THIS ARTICLE, HELD OR OWING BY SUCH
BANKING ORGANIZATION.
2. Such payment shall be accompanied by a [statement] TRUE AND ACCU-
RATE REPORT setting forth such information as the state comptroller may
A. 4011--B 6
require relative to such abandoned property [as shall have ceased to be
abandoned]. SUCH REPORT SHALL INCLUDE:
(A) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (A) OF SUBDIVISION
ONE OF SECTION THREE HUNDRED WHICH ARE ABANDONED PROPERTY:
(I) THE NAME AND LAST KNOWN ADDRESS OF THE PERSON OR PERSONS APPEARING
FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE THE OWNER OF ANY
SUCH ABANDONED PROPERTY;
(II) THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE SUCH PERSON OR
PERSONS;
(III) THE DATE OF THE LAST TRANSACTION WITH RESPECT TO SUCH ABANDONED
PROPERTY;
(IV) THE NATURE AND IDENTIFYING NUMBER, IF ANY, OF SUCH ABANDONED
PROPERTY; AND
(V) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
(B) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (B) OF SUBDIVISION
ONE OF SECTION THREE HUNDRED OF THIS ARTICLE WHICH ARE ABANDONED PROPER-
TY:
(I) THE NAME AND LAST KNOWN ADDRESS, IF ANY, OF THE PERSON OR PERSONS
APPEARING FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE ENTITLED
TO RECEIVE SUCH ABANDONED PROPERTY;
(II) THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE SUCH PERSON OR
PERSONS;
(III) THE AMOUNT OF ANY INTEREST OR OTHER INCREMENT DUE THEREON;
(IV) THE DATE OF THE LAST TRANSACTION WITH RESPECT TO SUCH ABANDONED
PROPERTY; AND
(V) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
(C) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (C) OF SUBDIVISION
ONE OF SECTION THREE HUNDRED OF THIS ARTICLE WHICH ARE ABANDONED PROPER-
TY:
(I) THE NAME AND LAST KNOWN ADDRESS, IF ANY, OF THE PERSON OR PERSONS
APPEARING FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE ENTITLED
TO RECEIVE SUCH ABANDONED PROPERTY;
(II) A DESCRIPTION OF SUCH ABANDONED PROPERTY INCLUDING IDENTIFYING
NUMBERS, IF ANY, AND THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE OR
PAYABLE;
(III) THE AMOUNT OF ANY INTEREST OR OTHER INCREMENT DUE THEREON;
(IV) THE DATE SUCH ABANDONED PROPERTY WAS PAYABLE OR DEMANDABLE;
(V) THE AMOUNT AND IDENTIFYING NUMBER OF ANY SUCH INSTRUMENT WHERE THE
PAYEE THEREOF IS UNKNOWN TO THE BANKING ORGANIZATION; AND
(VI) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
(D) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (D) OF SUBDIVISION
ONE OF SECTION THREE HUNDRED OF THIS ARTICLE WHICH ARE ABANDONED PROPER-
TY:
(I) THE NAME AND LAST KNOWN ADDRESS, IF ANY, OF THE PERSON OR PERSONS
APPEARING FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE THE OWNER
OF ANY SUCH ABANDONED PROPERTY; AND
(II) SUCH OTHER INFORMATION AS THE STATE COMPTROLLER MAY REASONABLY
REQUIRE.
3. SUCH REPORT SHALL BE IN SUCH FORM AS THE STATE COMPTROLLER MAY
PRESCRIBE. ALL NAMES OF PERSONS APPEARING IN THE SECTION OF SUCH REPORT
RELATING TO DEPOSITS, APPEARING TO BE THE OWNERS THEREOF, SHALL BE LIST-
ED IN ALPHABETICAL ORDER. ABANDONED PROPERTY OTHER THAN DEPOSITS LISTED
IN SUCH REPORT SHALL BE CLASSIFIED IN SUCH MANNER AS THE STATE COMP-
A. 4011--B 7
TROLLER MAY PRESCRIBE, AND NAMES OF PERSONS APPEARING TO BE ENTITLED TO
SUCH ABANDONED PROPERTY APPEARING IN SUCH REPORT SHALL BE LISTED ALPHA-
BETICALLY WITHIN EACH SUCH CLASSIFICATION.
4. NO BANKING ORGANIZATION IN THIS STATE, ORGANIZED UNDER OR SUBJECT
TO THE PROVISIONS OF SECTION SIX HUNDRED ELEVEN OF TITLE TWELVE OF THE
UNITED STATES CODE, SHALL BE REQUIRED TO FILE REPORTS OF ABANDONED PROP-
ERTY RELATING TO ANY AMOUNTS RECEIVED ON OR BEFORE THE THIRTIETH DAY OF
JUNE, NINETEEN HUNDRED SEVENTY-SEVEN, UNLESS, AS OF THE EFFECTIVE DATE
OF THIS SUBDIVISION, SUCH AMOUNTS REMAIN RECORDED AND SHOWN IN THE BOOKS
AND RECORDS OF SUCH BANKING ORGANIZATION AS AN OUTSTANDING OBLIGATION
THEREOF.
S 11. Subdivision 1 of section 402 of the abandoned property law is
amended to read as follows:
1. [Within thirty days after making a report of abandoned property
pursuant to the provisions of section four hundred one,] EVERY such
corporation shall cause to be published, ON OR BEFORE THE FIRST DAY OF
SEPTEMBER IN EACH YEAR, a notice entitled: "NOTICE OF CERTAIN UNCLAIMED
PROPERTY HELD BY (name of corporation)."
S 12. Section 403 of the abandoned property law is amended to read as
follows:
S 403. Payment of abandoned property. 1. In such succeeding month of
October, and on or before the tenth day thereof, every such corporation
shall pay to the state comptroller all [abandoned] property [specified
in the last preceding report made to the state comptroller pursuant to
section four hundred one, excepting such abandoned property as since the
date of such report shall have ceased to be abandoned] WHICH, AS OF THE
FIRST DAY OF JULY NEXT PRECEDING, WAS DEEMED ABANDONED PURSUANT TO
SECTION FOUR HUNDRED OF THIS ARTICLE, HELD OR OWING BY SUCH CORPORATION.
2. Such payment shall be accompanied by a [statement] TRUE AND ACCU-
RATE REPORT setting forth such information as the state comptroller may
require relating to such abandoned property [as shall have ceased to be
abandoned] INCLUDING:
(A) AS TO ABANDONED PROPERTY SPECIFIED IN PARAGRAPHS (A) AND (B) OF
SUBDIVISION ONE OF SECTION FOUR HUNDRED OF THIS ARTICLE:
(I) THE NAME AND LAST KNOWN ADDRESS OF EACH DEPOSITOR OR SUBSCRIBER
APPEARING FROM THE RECORDS OF SUCH CORPORATION TO BE ENTITLED TO RECEIVE
ANY SUCH ABANDONED PROPERTY;
(II) THE DATE WHEN THE DEPOSIT WAS MADE OR AMOUNT PAID;
(III) THE AMOUNT OF SUCH DEPOSIT OR PAYMENT;
(IV) THE DATE WHEN UTILITY SERVICES FURNISHED TO SUCH CONSUMER OR
SUBSCRIBER CEASED;
(V) ANY SUMS DUE AND UNPAID TO THE CORPORATION BY SUCH CONSUMER OR
SUBSCRIBER, WITH INTEREST THEREON FROM THE DATE OF TERMINATION OF
SERVICE;
(VI) THE AMOUNT OF INTEREST DUE UPON SUCH DEPOSIT OR PAYMENT ON ANY
BALANCE THEREOF THAT HAS REMAINED WITH SUCH CORPORATION AND NOT BEEN
CREDITED TO SUCH CONSUMER'S OR SUBSCRIBER'S ACCOUNT;
(VII) THE AMOUNT OF SUCH ABANDONED PROPERTY; AND
(VIII) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
(B) AS TO ABANDONED PROPERTY SPECIFIED IN PARAGRAPH (C) OF SUBDIVISION
ONE OF SECTION FOUR HUNDRED OF THIS ARTICLE:
(I) THE NAME AND LAST KNOWN ADDRESS OF EACH PERSON APPEARING FROM THE
RECORDS OF SUCH CORPORATION TO BE ENTITLED TO RECEIVE THE SAME;
(II) THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE EACH SUCH
PERSON;
A. 4011--B 8
(III) THE DATE PAYMENT BECAME DUE; AND
(IV) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
3. SUCH REPORT SHALL BE IN SUCH FORM AND THE ABANDONED PROPERTY LISTED
SHALL BE CLASSIFIED IN SUCH MANNER AS THE STATE COMPTROLLER MAY
PRESCRIBE. NAMES OF PERSONS ENTITLED TO SUCH ABANDONED PROPERTY APPEAR-
ING IN SUCH REPORT SHALL BE LISTED IN ALPHABETICAL ORDER WITHIN EACH
SUCH CLASSIFICATION.
S 13. Paragraph (b) of subdivision 1 of section 700 of the abandoned
property law, as amended by chapter 78 of the laws of 1976, is amended
to read as follows:
(b) Any moneys held or owing by any life insurance corporation which
are payable under other kinds of life insurance policies to any person
whose last-known address, according to the records of the corporation,
is within this state, where the insured, if living, would[, prior to the
thirty-first day of December next preceding the report required by
section seven hundred one,] have attained the limiting age under the
mortality table on which the reserves are based, exclusive of
(i) any policy which has within three years been assigned, readjusted,
kept in force by payment of premium, reinstated or subjected to loan, or
(ii) any policy with respect to which such corporation has on file
written evidence received within three years that the person or persons
apparently entitled to claim thereunder have knowledge thereof.
S 14. Subdivision 1 of section 702 of the abandoned property law, as
amended by chapter 497 of the laws of 1944, is amended to read as
follows:
1. [Within thirty days after making a report of abandoned property
pursuant to the provisions of section seven hundred one,] EVERY such
life insurance corporation shall cause to be published, ON OR BEFORE THE
FIRST DAY OF MAY IN EACH YEAR, a notice entitled: "NOTICE OF NAMES OF
PERSONS APPEARING AS OWNERS OF CERTAIN UNCLAIMED PROPERTY HELD BY (name
of life insurance corporation)."
S 15. The opening paragraph of subdivision 3 of section 702 of the
abandoned property law, as amended by chapter 315 of the laws of 1954,
is amended to read as follows:
Such notice shall[, in accordance with the classification prescribed
by the state comptroller for the report pursuant to the provisions of
section seven hundred one,] set forth:
S 16. Section 703 of the abandoned property law, subdivision 1 as
amended by chapter 497 of the laws of 1944, is amended to read as
follows:
S 703. Payment of abandoned property. 1. In such succeeding month of
September, and on or before the succeeding tenth day thereof, every such
life insurance corporation shall pay to the state comptroller all [aban-
doned] property [specified in such report, excepting such abandoned
property as since the date of such report shall have ceased to be aban-
doned] WHICH, AS OF THE FIRST DAY OF JANUARY NEXT PRECEDING, WAS DEEMED
ABANDONED PURSUANT TO SECTION SEVEN HUNDRED OF THIS ARTICLE, HELD OR
OWING BY SUCH LIFE INSURANCE CORPORATION.
2. Such payment shall be accompanied by a [statement] TRUE AND ACCU-
RATE REPORT setting forth such information as the state comptroller may
require relative to such abandoned property [as shall have ceased to be
abandoned] INCLUDING:
(A) THE NAME AND LAST KNOWN ADDRESS OF ANY PERSON OR PERSONS APPEARING
FROM THE RECORDS OF SUCH LIFE INSURANCE CORPORATION TO BE ENTITLED TO
RECEIVE ANY SUCH ABANDONED PROPERTY;
A. 4011--B 9
(B) THE AMOUNT APPEARING FROM THE RECORDS OF SUCH CORPORATION TO BE
DUE;
(C) THE POLICY NUMBER AND POLICY AGE OF THE INSURED;
(D) THE DATE SUCH ABANDONED PROPERTY WAS PAYABLE;
(E) THE NAMES AND LAST KNOWN ADDRESSES OF EACH BENEFICIARY APPEARING
IN THE RECORDS OF THE INSURER; AND
(F) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY
REQUIRE.
3. SUCH REPORT SHALL BE IN SUCH FORM AND THE ABANDONED PROPERTY LISTED
SHALL BE CLASSIFIED IN SUCH MANNER AS THE STATE COMPTROLLER MAY
PRESCRIBE. NAMES OF PERSONS APPEARING TO BE ENTITLED TO SUCH PROPERTY OR
OF BENEFICIARIES APPEARING IN SUCH REPORT SHALL BE LISTED IN ALPHABET-
ICAL ORDER WITHIN EACH SUCH CLASSIFICATION.
S 17. Section 1003 of the abandoned property law is amended to read as
follows:
S 1003. Payment of abandoned property. 1. In such succeeding month of
February, and on or before the tenth day thereof, every such public and
other corporation shall pay to the state comptroller all [abandoned]
property [specified in such report, excepting such abandoned property as
since the date of such report shall have ceased to be abandoned] WHICH,
AS OF THE FIRST DAY OF JULY NEXT PRECEDING, WAS DEEMED ABANDONED PURSU-
ANT TO SECTION ONE THOUSAND OF THIS ARTICLE, HELD OR OWING BY SUCH
CORPORATION.
2. Such payment shall be accompanied by a [statement] TRUE AND ACCU-
RATE REPORT setting forth such information as the state comptroller may
require in relation to such abandoned property [as shall have ceased to
be abandoned] INCLUDING THE TITLE OF THE PROCEEDING, THE NAME AND LAST
KNOWN ADDRESS OF THE AWARDEE IF SUCH AWARD IS MADE TO A KNOWN OWNER, THE
DATE OF CONFIRMATION, THE DAMAGE PARCEL NUMBER, THE AMOUNT OF THE AWARD,
AND THE AMOUNT OF ANY INTEREST DUE THEREON AND, IF A DEDUCTION IS
CLAIMED FOR LIENS BY A PUBLIC CORPORATION, THE NATURE AND AMOUNT OF SUCH
LIENS AND ANY INTEREST CLAIMED THEREON.
S 18. The opening paragraph of subdivision 1 of section 1002 of the
abandoned property law is amended to read as follows:
[Within thirty days after making a report of abandoned property pursu-
ant to the provisions of section ten hundred one,] EVERY such corpo-
ration shall cause to be published, ON OR BEFORE THE FIRST DAY OF NOVEM-
BER IN EACH YEAR, once in a newspaper of general circulation in each
county where a damaged parcel included in such report is located a
notice, approved as to form by the state comptroller, stating:
S 19. Paragraph (b) of subdivision 6 of section 1406 of the abandoned
property law, as amended by chapter 643 of the laws of 1989, is amended
to read as follows:
(b) Notwithstanding any other provision of law, payment for any aban-
doned condemnation award heretofore or hereafter paid to the state comp-
troller pursuant to sections ten hundred and ten hundred three of this
chapter for the benefit of known persons may be made by the state comp-
troller on sworn application, where the name and last known address of
the person or persons entitled to payment and any other identifying
information as appearing on the records of the court into which payment
was made is included in the report required to be filed pursuant to
section ten hundred [one] THREE of this chapter and when the identity of
the claimant as the person entitled to payment is established to the
satisfaction of the state comptroller. When, in the determination of the
state comptroller, the identifying information included in the report is
insufficient to enable the state comptroller to make a determination of
A. 4011--B 10
entitlement, such claim must be established only on order of the court
as set forth in paragraph (a) of this subdivision.
S 20. Subdivision 3 of section 1311 of the abandoned property law is
REPEALED.
S 21. Subdivision 4 of section 1311 of the abandoned property law, as
added by chapter 778 of the laws of 1956, is renumbered subdivision 3
and amended to read as follows:
3. On or before the tenth day of October in each year, every such
corporation shall pay to the state comptroller all [abandoned] property
[specified in the last preceding report made to the state comptroller
pursuant to this section, excepting such abandoned property as since the
date of the report shall have ceased to be abandoned] WHICH, AS OF THE
FIRST DAY OF JULY NEXT PRECEDING, WAS DEEMED ABANDONED PURSUANT TO THIS
SECTION, HELD OR OWING BY SUCH CORPORATION. SUCH PAYMENT SHALL BE ACCOM-
PANIED BY A TRUE AND ACCURATE REPORT CONTAINING SUCH IDENTIFYING INFOR-
MATION AS THE STATE COMPTROLLER MAY REQUIRE.
S 22. Subdivision 2 of section 1316 of the abandoned property law is
REPEALED.
S 23. Subdivisions 3 and 4 of section 1316 of the abandoned property
law, as amended by chapter 166 of the laws of 1991, are renumbered
subdivisions 2 and 3 and amended to read as follows:
2. [Within thirty days following the filing of the report of abandoned
property with the comptroller pursuant to subdivision two of this
section, the] EVERY insurer shall cause to be published, ON OR BEFORE
THE FIRST DAY OF MAY IN EACH YEAR, a list of such abandoned property in
the same manner as that prescribed for life insurance companies by
section seven hundred two of this chapter.
3. Such [abandoned] property WHICH WAS DEEMED ABANDONED PURSUANT TO
SUBDIVISION ONE OF THIS SECTION shall be paid or delivered to the comp-
troller within the first ten days of September of each year. SUCH
PAYMENT SHALL BE ACCOMPANIED BY A TRUE AND ACCURATE REPORT THAT SHALL BE
IN SUCH FORM AND MANNER AS THE STATE COMPTROLLER MAY PRESCRIBE.
S 24. Section 1408 of the abandoned property law is REPEALED.
S 25. The opening paragraph of section 503 of the abandoned property
law, as amended by chapter 815 of the laws of 1963, is amended to read
as follows:
Each payment or delivery of abandoned property pursuant to section
five hundred two shall be accompanied by a [verified] written report, in
such form as the state comptroller shall prescribe, setting forth:
S 26. The opening paragraph of section 513 of the abandoned property
law, as amended by chapter 815 of the laws of 1963, is amended to read
as follows:
A payment or delivery pursuant to section five hundred twelve shall be
accompanied by a [verified] written report, in such form as the state
comptroller may prescribe, setting forth:
S 27. Subdivision 4 of section 513 of the abandoned property law is
REPEALED.
S 28. Subdivision 5 of section 513 of the abandoned property law, as
added by chapter 617 of the laws of 1973, is renumbered subdivision 4
and amended to read as follows:
4. In case any broker or dealer determines the property which shall be
deemed abandoned property pursuant to subdivisions one and three of
section five hundred eleven by the method provided in subdivision six of
that section, the payment of such abandoned property shall be accompa-
nied by a [verified] written report, in such form as the state comp-
troller may prescribe, which, among other things, shall set forth the
A. 4011--B 11
computation of the average factor of such broker or dealer pursuant to
subdivision six of section five hundred eleven. Each [verified] written
report accompanying the payment of abandoned property determined pursu-
ant to subdivision six of section five hundred eleven shall contain an
undertaking by the broker or dealer making such payment to honor all
claims to the extent herein provided whenever made against such broker
or dealer by any person determined by him or proved to be entitled to
receive from him a stock or cash dividend received in this state during
the calendar year covered by such report as the holder of record of a
security or an interest payment on a security received in this state
during such year. Such undertaking shall obligate the broker or dealer
to honor any such claim provided that the payment of abandoned property
relating to the year in question determined pursuant to subdivision six
of section five hundred eleven made by such broker or dealer to the
state comptroller has been exhausted as a result of reimbursements by
the state comptroller to the broker or dealer or to other persons claim-
ing such abandoned property as provided in subdivision two of section
five hundred fourteen. To the extent related to any stock dividend, any
such claim shall not exceed the fair market value of such stock dividend
on the thirty-first day of December of the year in which such stock
dividend was deemed abandoned property.
S 29. The opening paragraph of section 603 of the abandoned property
law is amended to read as follows:
Each such payment of abandoned property pursuant to section six
hundred two shall be accompanied by a [verified] written report, classi-
fied as the state comptroller shall prescribe, setting forth:
S 30. Subdivision 2 of section 1304 of the abandoned property law, as
added by chapter 698 of the laws of 1943, is amended to read as follows:
2. Any such abandoned property shall be paid or delivered forthwith to
the state comptroller. Such payment shall be accompanied by a [verified]
written report setting forth such identifying information as the state
comptroller may require.
S 31. Section 1305 of the abandoned property law, as amended by chap-
ter 149 of the laws of 1977, is amended to read as follows:
S 1305. Unclaimed surplus moneys after recovery of cost of public
assistance and care.
Any amount comprising a balance credited to an estate or person pursu-
ant to sections one hundred fifty-two-b or three hundred sixty of the
social services law which, on June thirtieth in any year, has for four
years from the date of such credit remained unclaimed by the estate or
person entitled thereto shall be deemed abandoned property.
On or before the tenth day of September in each year every public
welfare official shall pay such abandoned property to the state comp-
troller. Such payment shall be accompanied by a [verified] written
report in such form as the state comptroller may prescribe.
S 32. Subdivision 3 of section 1307 of the abandoned property law, as
added by chapter 700 of the laws of 1943, is amended to read as follows:
3. Any sheriff or county treasurer holding any such abandoned proper-
ty, shall pay the same to the state comptroller immediately after such
property shall have been deemed abandoned. Each such payment shall be
accompanied by a [verified] written report which shall set forth such
information as the state comptroller may require.
S 33. Subdivision 5 of section 1313 of the abandoned property law is
REPEALED.
S 34. Subdivision 2 of section 1314 of the abandoned property law, as
added by chapter 228 of the laws of 1977, is amended to read as follows:
A. 4011--B 12
2. Such transfer of moneys shall be accompanied by a [verified] writ-
ten report, in such form as the state comptroller may prescribe.
S 35. Section 1402 of the abandoned property law is REPEALED and a new
section 1402 is added to read as follows:
S 1402. PUBLICATION OF ABANDONED PROPERTY BY STATE COMPTROLLER. 1. (A)
THE COMPTROLLER SHALL MAINTAIN ON HIS OR HER WEBSITE IN A READILY
SEARCHABLE FORMAT OR IN ANY OTHER MEDIUM AT LEAST EQUALLY ACCESSIBLE TO
THE PUBLIC, A LIST OF SUCH ABANDONED PROPERTY HELD BY THE COMPTROLLER OR
HAS BEEN PAID OR DELIVERED TO THE COMPTROLLER IN THE PREVIOUS TWELVE
MONTHS THAT HAS A VALUE EXCEEDING TWENTY DOLLARS.
(B) THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO ABANDONED
PROPERTY PAID PURSUANT TO SECTION ONE THOUSAND THREE HUNDRED OF THIS
CHAPTER OR SECTION FOUR HUNDRED TWENTY-FOUR OF THE VEHICLE AND TRAFFIC
LAW.
2. SUCH LIST SHALL BE IN SUCH FORM AND CLASSIFIED IN SUCH MANNER AS
THE STATE COMPTROLLER SHALL DETERMINE AND SHALL INCLUDE:
(A) THE NAMES AND LAST KNOWN ADDRESSES OF ALL PERSONS APPEARING FROM
THE RECORDS IN THE COMPTROLLER'S OFFICE, AS SET FORTH IN THE REPORT
FILED BY THE HOLDER, TO BE ENTITLED TO RECEIVE SUCH ABANDONED PROPERTY
EXCEEDING TWENTY DOLLARS IN VALUE; AND
(B) SUCH OTHER INFORMATION AS THE STATE COMPTROLLER MAY DETERMINE.
3. SUCH LISTING SHALL INCLUDE A STATEMENT THAT: (A) INFORMATION ABOUT
THE PROPERTY AND ITS RETURN TO THE OWNER MAY BE AVAILABLE TO A PERSON
HAVING A LEGAL OR BENEFICIAL INTEREST IN THE PROPERTY, UPON REQUEST TO
THE COMPTROLLER; AND
(B) A PUBLIC RECORD IS MAINTAINED IN THE OFFICE OF THE STATE COMP-
TROLLER OF ALL ABANDONED PROPERTY IN ACCORDANCE WITH SECTION FOURTEEN
HUNDRED ONE OF THIS ARTICLE; AND THAT A CLAIM FOR ANY SUCH ABANDONED
PROPERTY SHOULD BE FILED WITH THE STATE COMPTROLLER AT HIS OR HER OFFICE
IN THE CITY OF ALBANY.
4. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, THE STATE
COMPTROLLER MAY OMIT FROM SUCH LIST THE NAME AND LAST KNOWN ADDRESS OF
ANY PERSON WHERE SPECIAL CIRCUMSTANCES MAKE IT DESIRABLE THAT SUCH
INFORMATION BE WITHHELD.
S 36. Subdivision 12 of section 211 of the tax law is REPEALED and a
new subdivision 12 is added to read as follows:
12. (A) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION EIGHT OF THIS
SECTION, THE COMMISSIONER AND THE COMPTROLLER SHALL ENTER INTO AN AGREE-
MENT PURSUANT TO WHICH THE COMMISSIONER SHALL, UPON REQUEST, PROVIDE THE
COMPTROLLER WITH A REPORT, NOT MORE FREQUENTLY THAN ANNUALLY, WITH
RESPECT TO CORPORATIONS OR OTHER ENTITIES WHICH HAVE FILED A BUSINESS
CORPORATION FRANCHISE TAX REPORT UNDER THIS ARTICLE FOR ANY TAXABLE YEAR
WITHIN TEN CALENDAR YEARS PRIOR TO THE REPORT TO THE COMPTROLLER MADE
PURSUANT TO THIS SUBDIVISION, PROVIDING THE FOLLOWING INFORMATION, TO
THE EXTENT THAT SUCH INFORMATION IS READILY AVAILABLE FROM THE DEPART-
MENT'S SYSTEM FOR IDENTIFYING TAXPAYER INDICATIVE DATA:
(1) BUSINESS NAME AND LEGAL NAME, IF DIFFERENT;
(2) BUSINESS ADDRESS AND MAILING ADDRESS;
(3) FEDERAL EMPLOYER IDENTIFICATION NUMBER;
(4) DATE ENTERED INTO BUSINESS.
(B) EACH REPORT TO THE COMPTROLLER MADE PURSUANT TO THIS SUBDIVISION
SHALL LIST EACH CORPORATION OR OTHER ENTITY WITH RESPECT TO WHICH SUCH
REPORT IS MADE ACCORDING TO THE TOTAL ASSETS REPORTED FOR THE END OF THE
YEAR ON ITS MOST RECENT AVAILABLE BUSINESS CORPORATION FRANCHISE TAX
REPORT, IN DESCENDING ORDER. SUCH REPORTS TO THE COMPTROLLER SHALL NOT
A. 4011--B 13
DISCLOSE THE ACTUAL AMOUNT OF TOTAL ASSETS REPORTED ON SUCH BUSINESS
CORPORATION FRANCHISE TAX REPORTS.
(C) THE INFORMATION PROVIDED TO THE COMPTROLLER PURSUANT TO THIS
SUBDIVISION SHALL BE USED ONLY FOR ADMINISTRATION AND ENFORCEMENT OF THE
ABANDONED PROPERTY LAW. THE COMPTROLLER MAY REDISCLOSE THE INFORMATION
PROVIDED UNDER THIS SUBDIVISION ONLY TO THE EXTENT NECESSARY FOR
ENFORCEMENT OR ADMINISTRATION OF THE ABANDONED PROPERTY LAW.
(D) THE REPORTS TO THE COMPTROLLER REQUIRED UNDER THIS SUBDIVISION
SHALL BE SUBMITTED BY ELECTRONIC MEANS OR IN SOME OTHER FORMAT WHICH IS
MUTUALLY ACCEPTABLE TO THE COMPTROLLER AND THE COMMISSIONER. THE WRITTEN
AGREEMENT WITH THE COMPTROLLER SHALL SET FORTH THE PROCEDURES FOR
PROVIDING THE INFORMATION THE COMMISSIONER IS ALLOWED TO DISCLOSE PURSU-
ANT TO THIS SUBDIVISION.
(E) NOTWITHSTANDING ARTICLE SIX OF THE PUBLIC OFFICERS LAW OR ANY
OTHER PROVISION OF LAW, THE REPORTS TO BE FURNISHED TO THE COMPTROLLER
PURSUANT TO THIS SUBDIVISION SHALL NOT BE OPEN TO THE PUBLIC FOR
INSPECTION.
S 37. Subdivision 2 of section 95 of the state finance law, as amended
by section 10-a of part RR of chapter 57 of the laws of 2008, is amended
to read as follows:
2. Annually, the comptroller shall file with the director of the budg-
et an itemized estimate of the expenses for the administration of the
abandoned property fund for the ensuing year. The director of the budget
may revise and amend such estimate. After such revision and amendment,
if any, such director shall approve the same for inclusion in the execu-
tive budget. No moneys shall be paid out of the abandoned property fund
for [such] expenses unless expenditures therefor shall have been author-
ized by law; provided, however, that the expenses [of any audits
conducted by the state comptroller to assure compliance by holders of
unclaimed property with the provisions of the abandoned property law]
FOR THE ADMINISTRATION OF THE PROVISIONS OF THE ABANDONED PROPERTY LAW
paid by the state comptroller pursuant to an appropriation, shall be
reimbursed by a transfer of funds no more frequently than monthly, from
any balance remaining in the abandoned property fund prior to any
payment made pursuant to the provisions of subdivision three of this
section.
S 38. This act shall take effect immediately.
PART B
Section 1. Section 12 of part N of chapter 61 of the laws of 2005,
amending the tax law relating to certain transactions and related infor-
mation and relating to the voluntary compliance initiative, subdivision
(iii) as amended by section 16 of subpart J of part V-1 of chapter 57 of
the laws of 2009, is amended to read as follows:
S 12. This act shall take effect immediately; provided, however, that
(i) section one of this act shall apply to all disclosure statements
described in paragraph 1 of subdivision (a) of section 25 of the tax
law, as added by section one of this act, that were required to be filed
with the internal revenue service at any time with respect to "listed
transactions" as described in such paragraph 1, and shall apply to all
disclosure statements described in paragraph 1 of subdivision (a) of
section 25 of the tax law, as added by section one of this act, that
were required to be filed with the internal revenue service with respect
to "reportable transactions" as described in such paragraph 1, other
than "listed transactions", in which a taxpayer participated during any
A. 4011--B 14
taxable year for which the statute of limitations for assessment has not
expired as of the date this act shall take effect, and shall apply to
returns or statements described in such paragraph 1 required to be filed
by taxpayers (or persons as described in such paragraph) with the
commissioner of taxation and finance on or after the sixtieth day after
this act shall have become a law; AND
(ii) sections two through four and seven through nine of this act
shall apply to any tax liability for which the statute of limitations on
assessment has not expired as of the date this act shall take effect[;
and
(iii) provided, further, that the provisions of this act, except
section five of this act, shall expire and be deemed repealed July 1,
2011. The commissioner of taxation and finance shall cause to be
prepared a written report on the tax shelter law. Notwithstanding any
other provision of law to the contrary, such report shall include, but
not be limited to, statistical information regarding the listed and
reportable transactions and avoidance transactions under this act. A
copy of such report shall be delivered to the governor, the temporary
president of the senate, and the speaker of the assembly no later than
April 1, 2007; provided, that, such expiration and repeal shall not
affect any requirement imposed pursuant to this act].
S 2. This act shall take effect immediately.
PART C
Section 1. Paragraphs (g) and (h) of subdivision 12-B of section 210
of the tax law, as added by section 8 of part R of chapter 57 of the
laws of 2010, are amended to read as follows:
(g) Notwithstanding the expiration of the empire zones program under
article eighteen-B of the general municipal law, a taxpayer that is
certified as a qualified investment project pursuant to such article
eighteen-B on the day immediately preceding the day the empire zones
program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE
COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED
FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED
THEREUNDER, shall continue to be deemed certified under such article
eighteen-B for purposes of this subdivision for the remainder of the
taxable year in which the expiration occurred and for the next succeed-
ing nine taxable years. In addition, the areas designated as empire
zones in which the taxpayer is certified as a qualified investment
project on the day immediately preceding the day the empire zones
program expired shall continue to be deemed empire zones for purposes of
this subdivision for the remainder of the taxable year in which the
expiration occurred and for the next succeeding nine taxable years.
(h) Notwithstanding the expiration of the empire zones program under
article eighteen-B of the general municipal law and except as provided
in paragraph (g) of this subdivision, a taxpayer that is certified as an
empire zone business pursuant to such article eighteen-B on the day
immediately preceding the day the empire zones program expired, AND HAS
NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVEL-
OPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC-
IPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall continue to be
deemed certified under such article eighteen-B for purposes of this
subdivision until April first, two thousand fourteen. In addition, the
areas designated as empire zones in which the taxpayer is certified as
an empire zone business on the day immediately preceding the day the
A. 4011--B 15
empire zones program expired shall continue to be deemed empire zones
for purposes of this subdivision until April first, two thousand four-
teen.
S 2. Paragraph 7 of subsection (j) of section 606 of the tax law, as
added by section 9 of part R of chapter 57 of the laws of 2010, is
amended to read as follows:
(7) Notwithstanding the expiration of the empire zones program under
article eighteen-B of the general municipal law, a taxpayer that is
certified as an empire zone business pursuant to such article eighteen-B
on the day immediately preceding the day the empire zones program
expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER
OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF
THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall
continue to be deemed certified under such article eighteen-B for
purposes of this subdivision until April first, two thousand fourteen.
In addition, the areas designated as empire zones in which the taxpayer
is certified as an empire zone business on the day immediately preceding
the day the empire zones program expired shall continue to be deemed
empire zones for purposes of this subdivision until April first, two
thousand fourteen.
S 3. Paragraphs (d) and (e) of subdivision 12-C of section 210 of the
tax law, as added by section 10 of part R of chapter 57 of the laws of
2010, are amended to read as follows:
(d) Notwithstanding the expiration of the empire zones program under
article eighteen-B of the general municipal law, a taxpayer that is
certified as a qualified investment project pursuant to such article
eighteen-B on the day immediately preceding the day the empire zones
program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE
COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED
FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED
THEREUNDER, shall continue to be deemed certified under such article
eighteen-B for purposes of this subdivision for the remainder of the
taxable year in which the expiration occurred and for the next succeed-
ing nine taxable years. In addition, the areas designated as empire
zones in which the taxpayer is certified as a qualified investment
project on the day immediately preceding the day the empire zones
program expired shall continue to be deemed empire zones for purposes of
this subdivision for the remainder of the taxable year in which the
expiration occurred and for the next succeeding nine taxable years.
(e) Notwithstanding the expiration of the empire zones program under
article eighteen-B of the general municipal law and except as provided
in paragraph (d) of this subdivision, a taxpayer that is certified as an
empire zone business pursuant to such article eighteen-B on the day
immediately preceding the day the empire zones program expired, AND HAS
NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVEL-
OPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC-
IPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall continue to be
deemed in the empire zone in which the taxpayer was certified as an
empire zone business on the day immediately preceding the day the empire
zones program expired for each of the three years next succeeding the
taxable year for which the credit under subdivision twelve-B OF THIS
SECTION is allowed.
S 4. Paragraph 4 of subsection (j-1) of section 606 of the tax law, as
added by section 11 of part R of chapter 57 of the laws of 2010, is
amended to read as follows:
A. 4011--B 16
(4) Notwithstanding the expiration of the empire zones program under
article eighteen-B of the general municipal law, a taxpayer that is
certified as an empire zone business pursuant to such article eighteen-B
on the day immediately preceding the day the empire zones program
expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER
OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF
THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall
continue to be deemed in the empire zone in which the taxpayer was
certified as an empire zone business on the day immediately preceding
the day the empire zones program expired for each of the three years
next succeeding the taxable year for which the credit under [subdivi-
sion] SUBSECTION (j) OF THIS SECTION is allowed.
S 5. Subdivision (k) of section 14 of the tax law, as amended by
section 5 of part A of chapter 63 of the laws of 2005, is amended to
read as follows:
(k) If the designation of an area as an empire zone is no longer in
effect because section nine hundred sixty-nine of the general municipal
law was not amended to extend the effective date of such designation so
that the designations of all empire zones pursuant to article eighteen-B
of the general municipal law have expired, a business enterprise that
was certified pursuant to article eighteen-B of the general municipal
law on the day immediately preceding the day on which such designation
expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER
OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF
THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall
be deemed to continue to be certified under such article eighteen-B for
purposes of this section, and sections fifteen, sixteen, section one
hundred eighty-seven-j, subdivisions twenty-seven and twenty-eight of
section two hundred ten, subsections (bb) and (cc) of section six
hundred six, [subdivision (z) of section eleven hundred fifteen,] SUBDI-
VISION (D) OF SECTION ELEVEN HUNDRED NINETEEN, subsections (o) and (p)
of section fourteen hundred fifty-six, and subdivisions (r) and (s) of
section fifteen hundred eleven of this chapter. In addition, if the
designation of an area as an empire zone is no longer in effect because
section nine hundred sixty-nine of the general municipal law was not
amended to extend the effective date of such designation so that the
designations of all empire zones pursuant to article eighteen-B of the
general municipal law have expired, all references to empire zones in
the provisions of this chapter listed in the previous sentence shall be
read as meaning areas designated as empire zones on the day immediately
preceding the day on which such designation expired.
S 6. Paragraph (f) of subdivision 20 of section 210 of the tax law, as
added by section 14 of part R of chapter 57 of the laws of 2010, is
amended to read as follows:
(f) If the designation of an area as an empire zone is no longer in
effect because the designations of all empire zones pursuant to article
eighteen-B of the general municipal law have expired, a taxpayer that
has made a contribution of money on or before the day immediately
preceding the day the empire zones expired to a community development
project approved by the commissioner of economic development shall be
deemed eligible to claim the empire zone capital credit under subpara-
graph three of paragraph (a) of this subdivision for additional contrib-
utions made prior to April first, two thousand fourteen and certified by
the commissioner of economic development to that community development
project as payment of a commitment made by the taxpayer to that communi-
ty development project before the empire zones expired, PROVIDED THAT
A. 4011--B 17
THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER
OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF
THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER.
S 7. Paragraph 5 of subsection (l) of section 606 of the tax law, as
added by section 15 of part R of chapter 57 of the laws of 2010, is
amended to read as follows:
(5) If the designation of an area as an empire zone is no longer in
effect because the designations of all empire zones pursuant to article
eighteen-B of the general municipal law have expired, a taxpayer that
has made a contribution of money on or before the day immediately
preceding the day the empire zones expired to a community development
project approved by the commissioner of economic development shall be
deemed eligible to claim the empire zone capital credit under subpara-
graph (C) of paragraph one of this subsection for additional contrib-
utions made prior to April first, two thousand fourteen and certified by
the commissioner of economic development to that community development
project as payment of a commitment made by the taxpayer to that communi-
ty development project before the empire zones expired, PROVIDED THAT
THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER
OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF
THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER.
S 8. Paragraph 5 of subsection (d) of section 1456 of the tax law, as
added by section 16 of part R of chapter 57 of the laws of 2010, is
amended to read as follows:
(5) If the designation of an area as an empire zone is no longer in
effect because the designations of all empire zones pursuant to article
eighteen-B of the general municipal law have expired, a taxpayer that
has made a contribution of money on or before the day immediately
preceding the day the empire zones expired to a community development
project approved by the commissioner of economic development shall be
deemed eligible to claim the empire zone capital credit under subpara-
graph (C) of paragraph one of this subsection for additional contrib-
utions made prior to April first, two thousand fourteen and certified by
the commissioner of economic development to that community development
project as payment of a commitment made by the taxpayer to that communi-
ty development project before the empire zones expired, PROVIDED THAT
THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER
OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF
THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER.
S 9. Paragraph 5 of subdivision (h) of section 1511 of the tax law, as
added by section 17 of part R of chapter 57 of the laws of 2010, is
amended to read as follows:
(5) If the designation of an area as an empire zone is no longer in
effect because the designations of all empire zones pursuant to article
eighteen-B of the general municipal law have expired, a taxpayer that
has made a contribution of money on or before the day immediately
preceding the day the empire zones expired to a community development
project approved by the commissioner of economic development shall be
deemed eligible to claim the empire zone capital credit under subpara-
graph (C) of paragraph one of this subdivision for additional contrib-
utions made prior to April first, two thousand fourteen and certified by
the commissioner of economic development to that community development
project as payment of a commitment made by the taxpayer to that communi-
ty development project before the empire zones expired, PROVIDED THAT
THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER
A. 4011--B 18
OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF
THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER.
S 10. This act shall take effect immediately and shall be deemed to be
in full force and effect on and after August 11, 2010.
PART D
Section 1. The tax law is amended by adding a new section 1613-c to
read as follows:
S 1613-C. CREDITING OF LOTTERY PRIZES AGAINST LIABILITIES FOR TAXES
ADMINISTERED BY THE COMMISSIONER. (1) THE DIRECTOR, ON BEHALF OF THE
DIVISION, SHALL ENTER INTO A WRITTEN AGREEMENT WITH THE COMMISSIONER, ON
BEHALF OF THE DEPARTMENT, WITHIN SIXTY DAYS OF THE EFFECTIVE DATE OF
THIS SECTION, WHICH WILL SET FORTH PROCEDURES FOR CREDITING LOTTERY
PRIZES OF MORE THAN SIX HUNDRED DOLLARS AWARDED TO HOLDERS OF WINNING
LOTTERY TICKETS, WHETHER INDIVIDUALS, CORPORATIONS, ASSOCIATIONS, COMPA-
NIES, PARTNERSHIPS, LIMITED LIABILITY PARTNERSHIPS OR COMPANIES, PART-
NERS, MEMBERS, MANAGERS, ESTATES, TRUST FIDUCIARIES OR ENTITIES, AGAINST
PAST DUE TAX LIABILITIES OWED BY SUCH HOLDERS FOR ANY TAX ADMINISTERED
BY THE COMMISSIONER, ABOUT WHICH THE DIRECTOR HAS BEEN NOTIFIED BY THE
COMMISSIONER PURSUANT TO THE PROVISIONS OF SUCH AGREEMENT.
(2) SUCH AGREEMENT SHALL APPLY TO ANY PAST DUE TAX LIABILITY WHICH
ARISES FROM (I) AN ENFORCEABLE WARRANT OR JUDGMENT, (II) AN ENFORCEABLE
DETERMINATION OF AN ADMINISTRATIVE BODY WHICH IS NO LONGER SUBJECT TO
ADMINISTRATIVE OR JUDICIAL REVIEW, OR (III) AN ASSESSMENT OR DETERMI-
NATION (INCLUDING SELF-ASSESSMENT OR SELF-ASSESSED DETERMINATION) WHICH
HAS BECOME FINAL OR FINALLY AND IRREVOCABLY FIXED AND NO LONGER SUBJECT
TO ADMINISTRATIVE OR JUDICIAL REVIEW.
(3) SUCH AGREEMENT SHALL INCLUDE:
(A) THE PROCEDURE UNDER WHICH THE DEPARTMENT WILL NOTIFY THE DIVISION
OF TAX LIABILITIES, INCLUDING WHEN THE DIVISION WILL BE NOTIFIED AND THE
CONTENT OF THAT NOTIFICATION;
(B) THE PROCEDURE FOR REIMBURSEMENT OF THE DIVISION BY THE DEPARTMENT
FOR THE COST OF CARRYING OUT THE PROCEDURES AUTHORIZED BY THIS SECTION;
AND
(C) ANY OTHER MATTERS THE PARTIES TO THE AGREEMENT DEEM NECESSARY TO
CARRY OUT THE PROVISIONS OF THIS SECTION.
(4) PRIOR TO AWARDING LOTTERY PRIZES OF MORE THAN SIX HUNDRED DOLLARS,
THE DIVISION SHALL REVIEW THE MOST RECENT NOTICE OF TAX LIABILITIES
PROVIDED BY THE COMMISSIONER. FOR HOLDERS OF WINNING LOTTERY TICKETS
IDENTIFIED ON THAT NOTICE, THE DIVISION SHALL CREDIT TO THE DEPARTMENT
THE AMOUNT OF EACH HOLDER'S PRIZE NECESSARY TO SATISFY THAT HOLDER'S TAX
LIABILITY, AND THE REMAINDER OF THE PRIZE SHALL BE AWARDED TO THE HOLDER
OF THE WINNING TICKET.
(5) IF THE DIVISION HAS ALSO RECEIVED A NOTICE OF LIABILITY OF A PRIZE
WINNER FOR PAST-DUE SUPPORT OR PUBLIC ASSISTANCE BENEFITS PURSUANT TO
SECTION SIXTEEN HUNDRED THIRTEEN-A OR SIXTEEN HUNDRED THIRTEEN-B OF THIS
ARTICLE, THEN THE AMOUNT OF ANY PRIZE SHALL BE FIRST CREDITED OR APPLIED
TO THE INCOME TAX REQUIRED TO BE WITHHELD BY LAW, THEN AS REQUIRED BY
SECTION SIXTEEN HUNDRED THIRTEEN-A OR SIXTEEN HUNDRED THIRTEEN-B OF THIS
ARTICLE, THEN TO THE PAST DUE TAX LIABILITY AS REQUIRED BY THIS SECTION.
THE BALANCE WILL THEN BE PAID TO THE HOLDER OF THE WINNING LOTTERY TICK-
ET.
(6) THE DIVISION SHALL CERTIFY TO THE COMPTROLLER THE TOTAL AMOUNT OF
THE LOTTERY PRIZE TO BE CREDITED AGAINST PAST DUE TAX LIABILITIES AND
A. 4011--B 19
THE REMAINDER OF THE PRIZE TO BE AWARDED TO THE HOLDER OF THE WINNING
LOTTERY TICKET.
(7) THE DIVISION SHALL NOTIFY THE HOLDER OF THE WINNING LOTTERY TICK-
ET, IN WRITING, OF THE TOTAL AMOUNT OF THE LOTTERY PRIZE CREDITED
AGAINST PAST DUE TAX LIABILITIES AND THE REMAINDER OF THE PRIZE TO BE
AWARDED TO THE HOLDER. THAT NOTICE MUST ALSO ADVISE THE HOLDER THAT THE
DEPARTMENT WILL PROVIDE SEPARATE NOTICE, IN WRITING, OF THE PROCEDURE
FOR AND TIME FRAME BY WHICH THE HOLDER MAY CONTEST SUCH CREDITING.
(8) THE DEPARTMENT SHALL NOTIFY THE HOLDER OF THE WINNING LOTTERY
TICKET, IN WRITING, OF THE AMOUNT OF A PRIZE TO BE CREDITED AGAINST PAST
DUE TAX LIABILITIES AND THE PROCEDURE FOR AND TIME FRAME BY WHICH THE
HOLDER MAY CONTEST THE CREDITING OF THE PRIZE.
(9) FROM THE TIME THE DIVISION IS NOTIFIED BY THE DEPARTMENT OF A PAST
DUE TAX LIABILITY OF A HOLDER OF A WINNING LOTTERY TICKET, THE DIVISION
SHALL BE RELIEVED FROM ALL LIABILITY TO THE HOLDER, AND THE HOLDER'S
HEIRS, REPRESENTATIVES, ESTATE, SUCCESSORS OR ASSIGNS FOR THE AMOUNT OF
A PRIZE CERTIFIED TO THE COMPTROLLER TO BE CREDITED AGAINST PAST DUE TAX
LIABILITIES AND THE HOLDER AND THE HOLDER'S HEIRS, REPRESENTATIVES,
ESTATE, SUCCESSOR OR ASSIGNS SHALL HAVE NO RIGHT TO COMMENCE A COURT
ACTION OR PROCEEDING OR TO ANY OTHER LEGAL RECOURSE AGAINST THE DIVISION
TO RECOVER ANY AMOUNT CERTIFIED TO THE COMPTROLLER TO BE CREDITED
AGAINST PAST DUE TAX LIABILITIES. PROVIDED HOWEVER, NOTHING HEREIN SHALL
BE CONSTRUED TO PROHIBIT A HOLDER OF A WINNING LOTTERY TICKET AND THE
HOLDER'S HEIRS, REPRESENTATIVES, ESTATE, SUCCESSORS OR ASSIGNS FROM
PROCEEDING AGAINST THE DEPARTMENT TO RECOVER THE PART OF THE PRIZE
CERTIFIED TO THE COMPTROLLER AND CREDITED TO PAST DUE TAX LIABILITIES
WHICH IS GREATER THAN THE AMOUNT OF PAST DUE TAX LIABILITIES OWED BY
THAT HOLDER ON THE DATE OF CERTIFICATION.
(10) NOTWITHSTANDING ANY LAW TO THE CONTRARY, THE DEPARTMENT AND ITS
OFFICERS AND EMPLOYEES MAY FURNISH TO THE DIVISION ANY ABSTRACT OF ANY
TAX RETURN OR REPORT, OR ANY INFORMATION CONCERNING AN ITEM CONTAINED IN
ANY SUCH RETURN OR REPORT OR DISCLOSED BY ANY INVESTIGATION OF TAX
LIABILITY UNDER THIS CHAPTER, BUT ONLY FOR THE PURPOSE OF CREDITING
LOTTERY PRIZES AGAINST PAST DUE TAX LIABILITIES DESCRIBED IN SUBDIVISION
TWO OF THIS SECTION.
S 2. This act shall take effect on the first of August next succeeding
the date on which it shall have become a law, provided that the depart-
ment of taxation and finance and the division of the lottery may take
steps to effectuate the written agreement between the director of the
division of the lottery and the commissioner of taxation and finance
prior to such effective date.
PART E
Section 1. Paragraph c of subdivision 2 of section 124 of part A of
chapter 56 of the laws of 1998, amending the tax law and other laws
relating to extending the dates of application of the investment tax
credit under articles 9-A, 22 and 32 of the tax law, as amended by
section 1 of part YY-1 of chapter 57 of the laws of 2008, is amended to
read as follows:
c. Sections fifteen through twenty-seven of this act shall apply to
property placed in service on or after October 1, 1998 and before Octo-
ber 1, [2011] 2015.
S 2. Section 2 of part L of chapter 63 of the laws of 2000, amending
the tax law and other laws relating to extending the dates of applica-
tion of the investment tax credit under article 33 of the tax law, as
A. 4011--B 20
amended by section 2 of part YY-1 of chapter 57 of the laws of 2008, is
amended to read as follows:
S 2. This act shall take effect immediately and shall apply to proper-
ty placed in service on or after January 1, 2002 and before October 1,
[2011] 2015.
S 3. This act shall take effect immediately.
PART F
Section 1. Subdivision 4 of section 22 of the public housing law, as
amended by section 1 of part P of chapter 57 of the laws of 2010, is
amended to read as follows:
4. Statewide limitation. The aggregate dollar amount of credit which
the commissioner may allocate to eligible low-income buildings under
this article shall be [twenty-eight] THIRTY-TWO million dollars. The
limitation provided by this subdivision applies only to allocation of
the aggregate dollar amount of credit by the commissioner, and does not
apply to allowance to a taxpayer of the credit with respect to an eligi-
ble low-income building for each year of the credit period.
S 2. This act shall take effect immediately.
PART G
Section 1. Subdivision 12 of section 352 of the economic development
law, as added by section 1 of part MM of chapter 59 of the laws of 2010,
is amended to read as follows:
12. "Preliminary schedule of benefits" means the maximum aggregate
amount of each component of the tax credit that a participant in the
excelsior jobs program is eligible to receive pursuant to this article.
The schedule shall indicate the annual amount of each component of the
credit a participant may claim in each of its [five] TEN years of eligi-
bility. The preliminary schedule of benefits shall be issued by the
department when the department approves the application for admission
into the program. The commissioner may amend that schedule, provided
that the commissioner complies with the credit caps in section three
hundred fifty-nine of this article.
S 2. Section 353 of the economic development law, as added by section
1 of part MM of chapter 59 of the laws of 2010, is amended to read as
follows:
S 353. Eligibility criteria. 1. To be a participant in the excelsior
jobs program, a business entity shall operate in New York state predomi-
nantly:
(a) as a financial services data center or a financial services back
office operation;
(b) in manufacturing;
(c) in software development and new media;
(d) in scientific research and development;
(e) in agriculture;
(f) in the creation or expansion of back office operations in the
state;
(g) in a distribution center; or
(h) in an industry with significant potential for private-sector
economic growth and development in this state as established by the
commissioner in regulations promulgated pursuant to this article. In
promulgating such regulations the commissioner shall include job and
investment criteria.
A. 4011--B 21
2. WHEN DETERMINING WHETHER AN APPLICANT IS OPERATING PREDOMINATELY IN
ONE OF THE INDUSTRIES LISTED IN SUBDIVISION ONE OF THIS SECTION, THE
COMMISSIONER WILL EXAMINE THE NATURE OF THE BUSINESS ACTIVITY AT THE
LOCATION FOR THE PROPOSED PROJECT AND WILL MAKE ELIGIBILITY DETERMI-
NATIONS BASED ON SUCH ACTIVITY.
3. For the purposes of this article, in order to participate in the
excelsior jobs program, a business entity operating predominantly in
manufacturing must create at least twenty-five net new jobs; a business
entity operating predominately in agriculture must create at least ten
net new jobs; a business entity operating predominantly as a financial
service data center or financial services customer back office operation
must create at least one hundred net new jobs; a business entity operat-
ing predominantly in scientific research and development must create at
least ten net new jobs; a business entity operating predominantly in
software development must create at least ten net new jobs; a business
entity creating or expanding back office operations or a distribution
center in the state must create at least one hundred fifty net new jobs,
notwithstanding subdivision [four] FIVE of this section; or a business
entity must be a regionally significant project as defined in this arti-
cle; or
[3.] 4. A business entity operating predominantly in one of the indus-
tries referenced in paragraphs (a) through (h) of subdivision one of
this section but which does not meet the job requirements of subdivision
[two] THREE of this section must have at least fifty full-time job
equivalents and must demonstrate that its benefit-cost ratio is at least
ten to one.
[4.] 5. A not-for-profit business entity, a business entity whose
primary function is the provision of services including personal
services, business services, or the provision of utilities, and a busi-
ness entity engaged predominantly in the retail or entertainment indus-
try, and a company engaged in the generation or distribution of elec-
tricity, the distribution of natural gas, or the production of steam
associated with the generation of electricity are not eligible to
receive the tax credit described in this article.
[5.] 6. A business entity must be in compliance with all worker
protection and environmental laws and regulations. In addition, a busi-
ness entity may not owe past due state taxes or local property taxes.
S 3. Section 354 of the economic development law, as added by section
1 of part MM of chapter 59 of the laws of 2010, is amended to read as
follows:
S 354. Application and approval process. 1. A business enterprise must
submit a completed application as prescribed by the commissioner. An
application may be recommended by entities, including but not limited
to, those created pursuant to subdivision (e) of section nine hundred
fifty-seven of the general municipal law.
2. As part of such application, each business enterprise must:
(a) Agree to allow the department of taxation and finance to share its
tax information with the department. However, any information shared as
a result of this agreement shall not be available for disclosure or
inspection under the state freedom of information law.
(b) Agree to allow the department of labor to share its tax and
employer information with the department. However, any information
shared as a result of this agreement shall not be available for disclo-
sure or inspection under the state freedom of information law.
(c) Allow the department and its agents access to any and all books
and records the department may require to monitor compliance.
A. 4011--B 22
(d) Agree to be permanently [decertified from the empire zones program
if admitted into the excelsior jobs program, effective for the first
taxable year that the business enterprise may claim the excelsior jobs
program credit and for all subsequent taxable years] DISQUALIFIED FOR
EMPIRE ZONE BENEFITS AT ANY LOCATION OR LOCATIONS THAT QUALIFY FOR
EXCELSIOR JOBS PROGRAM BENEFITS IF ADMITTED INTO THE EXCELSIOR JOBS
PROGRAM.
(e) Provide the following information to the department upon request:
(i) a plan outlining the schedule for meeting the job and investment
requirements as set forth in subdivisions [two] THREE and [three] FOUR
of section three hundred fifty-three of this article. Such plan must
include details on job titles and expected salaries;
(ii) the prior three years of federal and state income or franchise
tax returns, unemployment insurance quarterly returns, real property tax
bills and audited financial statements;
(iii) the amount and description of projected qualified investments
for which it plans to claim the excelsior investment tax credit;
(iv) an estimate of the portion of any federal research and develop-
ment tax credits, attributable to research and development activities
conducted in New York state, that it anticipates claiming for the years
it expects to claim the excelsior research and development credit; and
(v) the employer identification or social security numbers for all
related persons to the applicant, including those of any members of a
limited liability company or partners in a partnership.
(f) Provide a clear and detailed presentation of all related persons
to the applicant to assure the department that jobs are not being shift-
ed within the state.
(g) Certify, under penalty of perjury, that it is in substantial
compliance with all environmental, worker protection, and local, state,
and federal tax laws.
3. After reviewing a business enterprise's completed application and
determining that the business enterprise will meet the conditions set
forth in subdivisions [two] THREE and [three] FOUR of section three
hundred fifty-three of this article, the department may admit the appli-
cant into the program and provide the applicant with a certificate of
eligibility and a preliminary schedule of benefits by year based on the
applicant's projections as set forth in its application. This prelimi-
nary schedule of benefits delineates the maximum possible benefits an
applicant may receive.
4. In order to become a participant in the program, an applicant must
submit evidence [of achieving job and investment requirements] THAT IT
SATISFIES THE ELIGIBILITY CRITERIA SPECIFIED IN SECTION THREE HUNDRED
FIFTY-THREE OF THIS ARTICLE AND SUBDIVISION TWO OF THIS SECTION in such
form as the commissioner may prescribe. After reviewing such evidence
and finding it sufficient, the department shall certify the applicant as
a participant and issue to that participant a certificate of tax credit
for one taxable year. To receive a certificate of tax credit for subse-
quent taxable years, the participant must submit to the department a
performance report DEMONSTRATING THAT THE PARTICIPANT CONTINUES TO
SATISFY THE ELIGIBILITY CRITERIA SPECIFIED IN SECTION THREE HUNDRED
FIFTY-THREE OF THIS ARTICLE AND SUBDIVISION TWO OF THIS SECTION. IF SUCH
ELIGIBILITY CRITERIA IS MET, A PARTICIPANT CAN RECEIVE TAX CREDITS BASED
ON INTERIM JOB, INVESTMENT OR RESEARCH AND DEVELOPMENT MILESTONES. A
participant's increase in employment, qualified investment, or federal
research and development tax credit attributable to research and devel-
opment activities in New York state above its projections listed in its
A. 4011--B 23
application shall not result in an increase in tax benefits under this
article. However, if the participant's expenditures are less than the
estimated amounts, the credit shall be less than the estimate.
5. A participant may claim tax benefits commencing in the first taxa-
ble year that the business enterprise receives a certificate of tax
credit or the first taxable year listed on its preliminary schedule of
benefits, whichever is later. A participant may claim such benefits for
the next [four] NINE consecutive taxable years, provided that the
participant demonstrates to the department that it continues to satisfy
the eligibility criteria specified in section three hundred fifty-three
of this article and subdivision two of this section in each of those
taxable years.
S 4. Section 355 of the economic development law, as added by section
1 of part MM of chapter 59 of the laws of 2010, is amended to read as
follows:
S 355. Excelsior jobs program credit. 1. Excelsior jobs tax credit
component. A participant in the excelsior jobs program shall be eligible
to claim a credit for each net new job it creates in New York state. The
amount of such credit per job shall be equal to the [sum of the follow-
ing: five percent of the amount of remuneration equal to or less than
fifty thousand dollars; four percent of the amount of remuneration in
excess of fifty thousand dollars and equal to or less than seventy-five
thousand dollars; and 1.33 percent of the amount of remuneration in
excess of seventy-five thousand dollars. However, the amount of the
credit for each net new job shall not exceed five thousand dollars]
PRODUCT OF THE GROSS WAGES PAID AND 6.85 PERCENT.
2. Excelsior investment tax credit component. A participant in the
excelsior jobs program shall be eligible to claim a credit on qualified
investments. The credit shall be equal to two percent of the cost or
other basis for federal income tax purposes of the qualified investment.
A participant may not claim both the excelsior investment tax credit
component and the investment tax credit set forth in subdivision twelve
of section two hundred ten, subsection (a) of section six hundred six,
[or] subsection (i) of section fourteen hundred fifty-six, OR SUBDIVI-
SION (Q) OF SECTION FIFTEEN HUNDRED ELEVEN of the tax law for the same
property in any taxable year, EXCEPT THAT A PARTICIPANT MAY CLAIM BOTH
THE EXCELSIOR INVESTMENT TAX CREDIT COMPONENT AND THE INVESTMENT TAX
CREDIT FOR RESEARCH AND DEVELOPMENT PROPERTY. In addition, a taxpayer
who or which is qualified to claim the excelsior investment tax credit
component and is also qualified to claim the brownfield tangible proper-
ty credit component under section twenty-one of the tax law may claim
either the excelsior investment tax credit component or such tangible
property credit component, but not both with regard to a particular
piece of property. A credit may not be claimed until a business enter-
prise has received a certificate of tax credit, provided that qualified
investments made on or after the issuance of the certificate of eligi-
bility but before the issuance of the certificate of tax credit to the
business enterprise, may be claimed in the first taxable year for which
the business enterprise is allowed to claim the credit. Expenses
incurred prior to the date the certificate of eligibility is issued are
not eligible to be included in the calculation of the credit.
3. Excelsior research and development tax credit component. A partic-
ipant in the excelsior jobs program shall be eligible to claim a credit
equal to [ten] FIFTY percent of the portion of the participant's federal
research and development tax credit that relates to the participant's
research and development expenditures in New York state during the taxa-
A. 4011--B 24
ble year; PROVIDED HOWEVER, THE EXCELSIOR RESEARCH AND DEVELOPMENT TAX
CREDIT SHALL NOT EXCEED THREE PERCENT OF THE QUALIFIED RESEARCH AND
DEVELOPMENT EXPENDITURES ATTRIBUTABLE TO ACTIVITIES CONDUCTED IN NEW
YORK STATE. If the federal research and development credit has expired,
then the research and development expenditures relating to the federal
research and development credit shall be calculated as if the federal
research and development credit structure and definition in effect in
two thousand nine were still in effect. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS CHAPTER TO THE CONTRARY, RESEARCH AND DEVELOPMENT
EXPENDITURES IN THIS STATE, INCLUDING SALARY OR WAGE EXPENSES FOR JOBS
RELATED TO RESEARCH AND DEVELOPMENT ACTIVITIES IN THIS STATE, MAY BE
USED AS THE BASIS FOR THE EXCELSIOR RESEARCH AND DEVELOPMENT TAX CREDIT
COMPONENT AND THE QUALIFIED EMERGING TECHNOLOGY COMPANY FACILITIES,
OPERATIONS AND TRAINING CREDIT UNDER THE TAX LAW.
4. Excelsior real property tax credit COMPONENT. (A) A participant in
the excelsior jobs program who either qualified as a regionally signif-
icant project or is located in an investment zone shall be eligible to
claim a credit for a period of [five] TEN years.
(B) The credit IN YEAR ONE shall be equal to fifty percent of the
eligible real property taxes on the real property comprising the
regionally significant project or located in the investment zone [that
were assessed and paid in the year immediately prior to application]. In
the remaining years the credit shall be computed according to the
following schedule:
Year two: [forty] FORTY-FIVE percent of eligible real property taxes
on the real property comprising the regionally significant project or
located in the investment zone [that were assessed and paid in the year
immediately prior to application];
Year three: [thirty] FORTY percent of eligible real property taxes on
the real property comprising the regionally significant project or
located in the investment zone [that were assessed and paid in the year
immediately prior to application];
Year four: [twenty] THIRTY-FIVE percent of eligible real property
taxes on real property comprising the regionally significant project or
located in the investment zone [that were assessed and paid in the year
immediately prior to application]; [and]
Year five: [ten] THIRTY percent of eligible real property taxes on the
real property comprising the regionally significant project or located
in the investment zone [that were assessed and paid in the year imme-
diately prior to application];
YEAR SIX: TWENTY-FIVE PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE
REAL PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED
IN THE INVESTMENT ZONE;
YEAR SEVEN: TWENTY PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL
PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE
INVESTMENT ZONE;
YEAR EIGHT: FIFTEEN PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE
REAL PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED
IN THE INVESTMENT ZONE;
YEAR NINE: TEN PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL
PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE
INVESTMENT ZONE; AND
YEAR TEN: FIVE PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL
PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE
INVESTMENT ZONE.
A. 4011--B 25
(C) For purposes of this credit, the term "eligible real property
taxes" shall have the same meaning as in subdivision (e) of section
fifteen of the tax law, provided that such subdivision (e) shall be read
as if it specifically referenced the excelsior jobs program and partic-
ipants in that program.
(D) IN CALCULATING THE EXCELSIOR REAL PROPERTY TAX CREDIT AND DETER-
MINING THE MAXIMUM AGGREGATE AMOUNT OF SUCH CREDIT COMPONENT IN THE
PRELIMINARY SCHEDULE OF BENEFITS, THE COMMISSIONER SHALL INCLUDE ANY
IMPROVEMENTS PROJECTED TO BE MADE BY THE TAXPAYER TO THE PROPERTY
COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE INVEST-
MENT ZONE AS LISTED IN ITS APPLICATION FOR PARTICIPATION IN THE EXCELS-
IOR JOBS PROGRAM.
5. Refundability of credits. The tax credit components established in
this section shall be refundable as provided in the tax law. If a
participant fails to satisfy the eligibility criteria in any one year,
it will lose the ability to claim credit for that year. The event of
such failure shall not extend the original [five-year] TEN-YEAR eligi-
bility period.
6. Claim of tax credit. The business enterprise shall be allowed to
claim the credit as prescribed in section thirty-one of the tax law.
7. FOR AVAILABILITY OF SPECIAL EXCELSIOR JOBS PROGRAM RATES GOVERNING
THE PROVISION OF GAS OR ELECTRIC SERVICE, SEE SUBDIVISION TWELVE-D OF
SECTION SIXTY-SIX OF THE PUBLIC SERVICE LAW. SUCH SPECIAL EXCELSIOR JOBS
PROGRAM RATES MAY REMAIN AVAILABLE TO PARTICIPANTS AS DEFINED IN THIS
ARTICLE FOR A PERIOD OF UP TO TEN YEARS COMMENCING IN THE FIRST TAXABLE
YEAR THAT THE PARTICIPANT RECEIVES A CERTIFICATE OF TAX CREDIT, OR THE
FIRST TAXABLE YEAR LISTED ON ITS PRELIMINARY SCHEDULE OF BENEFITS,
WHICHEVER IS LATER. PROVIDED HOWEVER, IF A PARTICIPANT IS REMOVED FROM
THE EXCELSIOR JOBS PROGRAM PURSUANT TO THIS ARTICLE, THE EXCELSIOR JOBS
PROGRAM RATES MAY BE DENIED.
S 5. Subdivision 3 of section 356 of the economic development law, as
added by section 1 of part MM of chapter 59 of the laws of 2010, is
amended to read as follows:
3. The commissioner shall solely determine the eligibility of any
applicant applying for entry into the program and shall remove any
participant from the program for failing to meet any of the requirements
set forth in subdivision two of section three hundred fifty-four of this
article, or for failing to meet the minimum job or investment require-
ments set forth in subdivisions [two] THREE and [three] FOUR of section
three hundred fifty-three of this article.
S 6. Section 359 of the economic development law, as added by section
1 of part MM of chapter 59 of the laws of 2010, is amended to read as
follows:
S 359. Cap on tax credit. The total amount of tax credits listed on
certificates of tax credit issued by the commissioner for any taxable
year may not exceed the limitations set forth in this section. Any
amount of tax credits not awarded for a particular taxable year may not
be used by the commissioner to award tax credits in another taxable
year.
Credit components in the aggregate With respect to
shall not exceed: taxable years
beginning in:
$ 50 million 2011
$ 100 million 2012
A. 4011--B 26
$ 150 million 2013
$ 200 million 2014
$ 250 million 2015
$ 200 million 2016
$ [150] 200 million 2017
$ [100] 200 million 2018
$ [50] 200 million 2019
$ 200 MILLION 2020
$ 200 MILLION 2021
$ 150 MILLION 2022
$ 100 MILLION 2023
$ 50 MILLION 2024
Twenty-five percent of tax credits shall be allocated to businesses
accepted into the program under subdivision [three] FOUR of section
three hundred fifty-three of this article and seventy-five percent of
tax credits shall be allocated to businesses accepted into the program
under subdivision [two] THREE of section three hundred fifty-three of
this article.
Provided, however, if by September thirtieth of a calendar year, the
department has not allocated the full amount of credits available in
that year to either: (i) businesses accepted into the program under
subdivision [three] FOUR of section three hundred fifty-three of this
article or (ii) businesses accepted into the program under subdivision
[two] THREE of section three hundred fifty-three of this article, the
commissioner may allocate any remaining tax credits to businesses refer-
enced in paragraphs (i) and (ii) of this section as needed; provided,
however, that under no circumstances may the statutory cap be exceeded.
S 7. Subdivisions (a), (b) and (f) of section 31 of the tax law, as
added by section 2 of part MM of chapter 59 of the laws of 2010, are
amended to read as follows:
(a) General. A taxpayer subject to tax under article nine-A, twenty-
two, thirty-two or thirty-three of this chapter shall be allowed a cred-
it against such tax, pursuant to the provisions referenced in subdivi-
sion (g) of this section. The amount of the credit, allowable for up to
[five] TEN consecutive taxable years, is the sum of the following four
credit components:
(1) the excelsior jobs tax credit COMPONENT;
(2) the excelsior investment tax credit COMPONENT;
(3) the excelsior research and development tax credit COMPONENT; and
(4) the excelsior real property tax credit COMPONENT.
(b) To be eligible for the excelsior jobs program credit, the taxpayer
shall have been issued a "certificate of tax credit" by the department
of economic development pursuant to subdivision four of section three
hundred fifty-four of the economic development law, which certificate
shall set forth the amount of each credit component that may be claimed
for the taxable year. A taxpayer may claim such credit for [five] TEN
consecutive taxable years commencing in the first taxable year that the
taxpayer receives a certificate of tax credit or the first taxable year
listed on its preliminary schedule of benefits, whichever is later. The
taxpayer shall be allowed to claim only the amount listed on the certif-
icate of tax credit for that taxable year. Such certificate [should]
MUST be attached to the taxpayer's return. No cost or expense paid or
incurred by the taxpayer shall be the basis for more than one component
of this credit or any other tax credit, EXCEPT AS PROVIDED IN SECTION
THREE HUNDRED FIFTY-FIVE OF THE ECONOMIC DEVELOPMENT LAW.
A. 4011--B 27
(f) Credit recapture. If a certificate of eligibility or a certificate
of tax credit issued by the department of economic development under
article seventeen of the economic development law is revoked by such
department BECAUSE THE TAXPAYER DOES NOT MEET THE ELIGIBILITY REQUIRE-
MENT SET FORTH IN SUBDIVISION SIX OF SECTION THREE HUNDRED FIFTY-THREE
OF THE ECONOMIC DEVELOPMENT LAW, the amount of credit described in this
section and claimed by the taxpayer prior to that revocation shall be
added back to [income] TAX in the taxable year in which any such revoca-
tion becomes final.
S 8. Section 66 of the public service law is amended by adding a new
subdivision 12-d to read as follows:
12-D. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, UPON APPLICATION OF
A GAS OR ELECTRIC CORPORATION, THE COMMISSION SHALL AUTHORIZE SUCH
CORPORATION TO CHARGE A SPECIAL EXCELSIOR JOBS PROGRAM RATE EQUAL TO THE
INCREMENTAL COST OF PROVIDING SERVICE TO PARTICIPANTS IN THE EXCELSIOR
JOBS PROGRAM AS DEFINED IN ARTICLE SEVENTEEN OF THE ECONOMIC DEVELOPMENT
LAW.
S 9. This act shall take effect immediately.
PART H
Intentionally omitted.
PART I
Section 1. The opening paragraph of paragraph 1 of subsection (b) of
section 1101 of the insurance law, as amended by chapter 614 of the laws
of 1997, is amended to read as follows:
Except as provided in paragraph two, three [or], three-a, OR SEVEN of
this subsection, any of the following acts in this state, effected by
mail from outside this state or otherwise, by any person, firm, associ-
ation, corporation or joint-stock company shall constitute doing an
insurance business in this state and shall constitute doing business in
the state within the meaning of section three hundred two of the civil
practice law and rules:
S 2. Subparagraph (H) of paragraph 2 of subsection (b) of section 1101
of the insurance law is amended to read as follows:
(H) transactions with respect to insurance contracts negotiated or
placed pursuant to subsection (b) [or], (c), OR (J) of section two thou-
sand one hundred seventeen of this chapter;
S 3. Subsection (b) of section 1101 of the insurance law is amended by
adding a new paragraph 7 to read as follows:
(7)(A) NOTWITHSTANDING THE FOREGOING, THE MAKING OF A SWAP SHALL NOT
CONSTITUTE DOING AN INSURANCE BUSINESS IN THIS STATE.
(B) FOR THE PURPOSES OF THIS PARAGRAPH, "SWAP" SHALL HAVE THE MEANING
SET FORTH IN 7 U.S.C. S 1A.
S 4. Section 2101 of the insurance law is amended by adding two new
subsections (w) and (x) to read as follows:
(W) IN THIS ARTICLE, "STATE" MEANS THE DISTRICT OF COLUMBIA OR ANY
STATE OR TERRITORY OF THE UNITED STATES.
(X) IN THIS ARTICLE, WITH RESPECT TO EXCESS LINE INSURANCE AND EXCESS
LINE BROKERS:
(1) WITH RESPECT TO AN INSURED'S HOME STATE, "AFFILIATED GROUP" MEANS
ANY GROUP OF ENTITIES THAT ARE ALL AFFILIATED. FOR THE PURPOSES OF THIS
PARAGRAPH:
A. 4011--B 28
(A) "AFFILIATE" MEANS, WITH RESPECT TO AN INSURED, ANY ENTITY THAT
CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH THE INSURED;
AND
(B) AN ENTITY HAS CONTROL OVER ANOTHER ENTITY IF THE ENTITY:
(I) DIRECTLY OR INDIRECTLY OR ACTING THROUGH ONE OR MORE OTHER PERSONS
OWNS, CONTROLS, OR HAS THE POWER TO VOTE TWENTY-FIVE PERCENT OR MORE OF
ANY CLASS OF VOTING SECURITIES OF THE OTHER ENTITY; OR
(II) CONTROLS IN ANY MANNER THE ELECTION OF A MAJORITY OF THE DIREC-
TORS OR TRUSTEES OF THE OTHER ENTITY;
(2) "EXEMPT COMMERCIAL PURCHASER" MEANS ANY PERSON PURCHASING COMMER-
CIAL INSURANCE THAT, AT THE TIME OF PLACEMENT, MEETS THE FOLLOWING
REQUIREMENTS:
(A) THE PERSON EMPLOYS OR RETAINS A QUALIFIED RISK MANAGER TO NEGOTI-
ATE INSURANCE COVERAGE;
(B) THE PERSON HAS PAID AGGREGATE NATIONWIDE COMMERCIAL
PROPERTY/CASUALTY INSURANCE PREMIUMS IN EXCESS OF ONE HUNDRED THOUSAND
DOLLARS IN THE IMMEDIATELY PRECEDING TWELVE MONTHS; AND
(C) (I) THE PERSON MEETS AT LEAST ONE OF THE FOLLOWING CRITERIA:
(I) THE PERSON POSSESSES A NET WORTH IN EXCESS OF TWENTY MILLION
DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO ITEM (II) OF THIS
SUBPARAGRAPH;
(II) THE PERSON GENERATES ANNUAL REVENUES IN EXCESS OF FIFTY MILLION
DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO ITEM (II) OF THIS
SUBPARAGRAPH;
(III) THE PERSON EMPLOYS MORE THAN FIVE HUNDRED FULL-TIME OR FULL-TIME
EQUIVALENT EMPLOYEES PER INDIVIDUAL INSURED OR IS A MEMBER OF AN AFFIL-
IATED GROUP EMPLOYING MORE THAN ONE THOUSAND EMPLOYEES IN THE AGGREGATE;
(IV) THE PERSON IS A NOT-FOR-PROFIT ORGANIZATION OR PUBLIC ENTITY
GENERATING ANNUAL BUDGETED EXPENDITURES OF AT LEAST THIRTY MILLION
DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO ITEM (II) OF THIS
SUBPARAGRAPH; OR
(V) THE PERSON IS A MUNICIPALITY WITH A POPULATION IN EXCESS OF FIFTY
THOUSAND PERSONS;
(II) EFFECTIVE ON THE FIFTH JANUARY FIRST OCCURRING AFTER JULY TWEN-
TY-FIRST, TWO THOUSAND TEN AND EACH FIFTH JANUARY FIRST OCCURRING THERE-
AFTER, THE AMOUNTS IN CLAUSES (I), (II), AND (IV) OF ITEM (I) OF THIS
SUBPARAGRAPH SHALL BE ADJUSTED TO REFLECT THE PERCENTAGE CHANGE FOR SUCH
FIVE-YEAR PERIOD IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS
PUBLISHED BY THE BUREAU OF LABOR STATISTICS OF THE UNITES STATES DEPART-
MENT OF LABOR;
(3) "INSURED'S HOME STATE" MEANS:
(A) THE STATE IN WHICH AN INSURED MAINTAINS ITS PRINCIPAL PLACE OF
BUSINESS OR, IN THE CASE OF AN INDIVIDUAL, THE INDIVIDUAL'S PRINCIPAL
RESIDENCE;
(B) IF ONE HUNDRED PERCENT OF THE INSURED RISK IS LOCATED OUTSIDE OF
THE STATE REFERRED TO IN SUBPARAGRAPH (A) OF THIS PARAGRAPH, THEN THE
STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM
FOR THAT INSURANCE CONTRACT IS ALLOCATED;
(C) IF MORE THAN ONE INSURED FROM AN AFFILIATED GROUP ARE NAMED
INSUREDS ON A SINGLE INSURANCE CONTRACT, THEN THE INSURED'S HOME STATE,
AS DETERMINED PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE
MEMBER OF THE AFFILIATED GROUP THAT HAS THE LARGEST PERCENTAGE OF PREMI-
UM ATTRIBUTED TO IT UNDER SUCH INSURANCE CONTRACT; OR
(D) IN THE CASE OF A GROUP POLICY:
(I) WHEN THE GROUP POLICYHOLDER PAYS ONE HUNDRED PERCENT OF THE PREMI-
UM FROM ITS OWN FUNDS, THEN THE INSURED'S HOME STATE, AS DETERMINED
A. 4011--B 29
PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE GROUP POLICYHOLD-
ER; OR
(II) WHEN THE GROUP POLICYHOLDER DOES NOT PAY ONE HUNDRED PERCENT OF
THE PREMIUM FROM ITS OWN FUNDS, THEN THE HOME STATE, AS DETERMINED
PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE GROUP MEMBER;
(4) WITH RESPECT TO DETERMINING AN INSURED'S HOME STATE, "PRINCIPAL
PLACE OF BUSINESS" MEANS THE STATE WHERE:
(A) THE INSURED MAINTAINS ITS HEADQUARTERS AND WHERE THE INSURED'S
HIGH-LEVEL OFFICERS DIRECT, CONTROL, AND COORDINATE THE BUSINESS ACTIV-
ITIES; OR
(B) IF THE INSURED'S HIGH-LEVEL OFFICERS DIRECT, CONTROL, AND COORDI-
NATE THE BUSINESS ACTIVITIES IN MORE THAN ONE STATE, OR IF THE INSURED'S
PRINCIPAL PLACE OF BUSINESS IS LOCATED OUTSIDE ANY STATE, THEN THE STATE
TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR
THAT INSURANCE CONTRACT IS ALLOCATED;
(5) WITH RESPECT TO DETERMINING AN INSURED'S HOME STATE, "PRINCIPAL
RESIDENCE" MEANS THE STATE:
(A) WHERE THE INDIVIDUAL RESIDES FOR THE GREATEST NUMBER OF DAYS
DURING A CALENDAR YEAR; OR
(B) IF THE INSURED'S PRINCIPAL RESIDENCE IS LOCATED OUTSIDE ANY STATE,
THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE
PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED;
(6) "PROPERTY/CASUALTY INSURANCE" MEANS ANY KIND OF INSURANCE AS SPEC-
IFIED IN SUBSECTION (A) OF SECTION ONE THOUSAND ONE HUNDRED THIRTEEN OF
THIS CHAPTER, EXCEPT INSURANCE ISSUED PURSUANT TO PARAGRAPH ONE, TWO,
THREE, FIFTEEN, EIGHTEEN OR THIRTY-ONE OF SUBSECTION (A) OF SECTION ONE
THOUSAND ONE HUNDRED THIRTEEN OF THIS CHAPTER OR INSURANCE SUBSTANTIALLY
SIMILAR THERETO; AND
(7) WITH RESPECT TO AN EXEMPT COMMERCIAL PURCHASER, "QUALIFIED RISK
MANAGER" MEANS, WITH RESPECT TO A POLICYHOLDER OF COMMERCIAL INSURANCE,
A PERSON WHO MEETS ALL OF THE FOLLOWING REQUIREMENTS:
(A) THE PERSON IS AN EMPLOYEE OF, OR THIRD-PARTY CONSULTANT RETAINED
BY, THE COMMERCIAL POLICYHOLDER;
(B) THE PERSON PROVIDES SKILLED SERVICES IN LOSS PREVENTION, LOSS
REDUCTION, OR RISK AND INSURANCE COVERAGE ANALYSIS, AND PURCHASE OF
INSURANCE;
(C) THE PERSON:
(I)(I) HAS A BACHELOR'S DEGREE OR HIGHER FROM AN ACCREDITED COLLEGE OR
UNIVERSITY IN RISK MANAGEMENT, BUSINESS ADMINISTRATION, FINANCE, ECONOM-
ICS, OR ANY OTHER FIELD DETERMINED BY THE SUPERINTENDENT TO DEMONSTRATE
MINIMUM COMPETENCE IN RISK MANAGEMENT; AND
(II)(AA) HAS THREE YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS
ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE ANALYSIS, OR
PURCHASING COMMERCIAL LINES OF INSURANCE; OR
(BB) HAS:
(AAA) A DESIGNATION AS A CHARTERED PROPERTY AND CASUALTY UNDERWRITER
(IN THIS CLAUSE REFERRED TO AS A "CPCU") ISSUED BY THE AMERICAN INSTI-
TUTE FOR CPCU/INSURANCE INSTITUTE OF AMERICA;
(BBB) A DESIGNATION AS AN ASSOCIATE IN RISK MANAGEMENT (ARM) ISSUED BY
THE AMERICAN INSTITUTE FOR CPCU/INSURANCE INSTITUTE OF AMERICA;
(CCC) A DESIGNATION AS CERTIFIED RISK MANAGER (CRM) ISSUED BY THE
NATIONAL ALLIANCE FOR INSURANCE EDUCATION & RESEARCH;
(DDD) A DESIGNATION AS A RISK AND INSURANCE MANAGEMENT SOCIETY (RIMS)
FELLOW (RF) ISSUED BY THE GLOBAL RISK MANAGEMENT INSTITUTE; OR
(EEE) ANY OTHER DESIGNATION, CERTIFICATION, OR LICENSE DETERMINED BY
THE SUPERINTENDENT TO DEMONSTRATE MINIMUM COMPETENCY IN RISK MANAGEMENT;
A. 4011--B 30
(II) (I) HAS AT LEAST SEVEN YEARS OF EXPERIENCE IN RISK FINANCING,
CLAIMS ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE COVERAGE
ANALYSIS, OR PURCHASING COMMERCIAL LINES OF INSURANCE; AND
(II) HAS ANY ONE OF THE DESIGNATIONS SPECIFIED IN SUBCLAUSES (AAA)
THROUGH (EEE) OF SUBITEM (BB) OF CLAUSE (II) OF ITEM (I) OF THIS SUBPAR-
AGRAPH;
(III) HAS AT LEAST TEN YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS
ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE COVERAGE ANALYSIS,
OR PURCHASING COMMERCIAL LINES OF INSURANCE; OR
(IV) HAS A GRADUATE DEGREE FROM AN ACCREDITED COLLEGE OR UNIVERSITY IN
RISK MANAGEMENT, BUSINESS ADMINISTRATION, FINANCE, ECONOMICS, OR ANY
OTHER FIELD DETERMINED BY THE SUPERINTENDENT TO DEMONSTRATE MINIMUM
COMPETENCE IN RISK MANAGEMENT.
S 5. Paragraphs 7 and 8 of subsection (c) of section 2101 of the
insurance law, as added by chapter 687 of the laws of 2003, are amended
and a new paragraph 9 is added to read as follows:
(7) a person whose activities in this state are limited to advertising
without the intent to solicit insurance in this state through communi-
cations in printed publications or other forms of electronic mass media
whose distribution is not limited to residents of the state, provided
that the person does not sell, solicit or negotiate insurance that would
insure risks residing, located or to be performed in this state; [or]
(8) a person who is not a resident of this state who sells, solicits
or negotiates a contract for commercial property/casualty risks to an
insured with risks located in more than one state insured under that
contract, provided that such person is otherwise licensed as an insur-
ance producer to sell, solicit or negotiate that insurance in the state
where the insured maintains its principal place of business and the
contract of insurance insures risks located in that state[.]; OR
(9) A PERSON WHO IS NOT A RESIDENT OF THIS STATE WHO SELLS, SOLICITS
OR NEGOTIATES A CONTRACT OF PROPERTY/CASUALTY INSURANCE, AS DEFINED IN
PARAGRAPH SIX OF SUBSECTION (X) OF THIS SECTION, TO OR FOR AN INSURED,
WITH REGARD TO AN UNAUTHORIZED INSURER, PROVIDED THAT: (A) THE INSURED'S
HOME STATE IS A STATE OTHER THAN THIS STATE; (B) SUCH PERSON IS OTHER-
WISE LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE IN THE
INSURED'S HOME STATE; AND (C) THE PERSON DOES NOT PERFORM THE DILIGENT
SEARCH REQUIRED BY SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THIS
ARTICLE.
S 6. Paragraphs 9 and 10 of subsection (k) of section 2101 of the
insurance law, as added by chapter 687 of the laws of 2003, are amended
and a new paragraph 11 is added to read as follows:
(9) a person who is not a resident of this state who sells, solicits
or negotiates a contract of insurance for commercial property/casualty
risks to an insured with risks located in more than one state insured
under that contract, provided that such person is otherwise licensed as
an insurance producer to sell, solicit or negotiate that insurance in
the state where the insured maintains its principal place of business
and the contract of insurance insures risks located in that state; [or]
(10) any salaried full-time employee who counsels or advises his or
her employer relative to the insurance interests of the employer or of
the subsidiaries or business affiliates of the employer, provided that
the employee does not sell or solicit insurance or receive a commis-
sion[.]; OR
(11) A PERSON WHO IS NOT A RESIDENT OF THIS STATE WHO SELLS, SOLICITS
OR NEGOTIATES A CONTRACT OF PROPERTY/CASUALTY INSURANCE, AS DEFINED IN
PARAGRAPH SIX OF SUBSECTION (X) OF THIS SECTION, TO OR FOR AN INSURED,
A. 4011--B 31
WITH REGARD TO AN UNAUTHORIZED INSURER, PROVIDED THAT: (A) THE INSURED'S
HOME STATE IS A STATE OTHER THAN THIS STATE; (B) SUCH PERSON IS OTHER-
WISE LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE IN THE
INSURED'S HOME STATE; AND (C) THE PERSON DOES NOT PERFORM THE DILIGENT
SEARCH REQUIRED BY SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THIS
ARTICLE.
S 7. Paragraph 1 of subsection (a) of section 2102 of the insurance
law, as amended by chapter 499 of the laws of 2009, is amended to read
as follows:
(1) (A) No person, firm, association or corporation shall act as an
insurance producer, insurance adjuster or life settlement broker in this
state without having authority to do so by virtue of a license issued
and in force pursuant to the provisions of this chapter.
(B) NO PERSON, FIRM, ASSOCIATION OR CORPORATION SHALL ACT AS AN EXCESS
LINE BROKER IN THIS STATE WITHOUT HAVING AUTHORITY TO DO SO BY VIRTUE OF
A LICENSE ISSUED AND IN FORCE PURSUANT TO SECTION TWO THOUSAND ONE
HUNDRED FIVE OF THIS ARTICLE, PROVIDED, HOWEVER, THAT SUCH PERSON, FIRM,
ASSOCIATION OR CORPORATION SHALL NOT BE REQUIRED TO BE LICENSED TO ACT
AS AN EXCESS LINE BROKER WHERE THE INSURED'S HOME STATE IS A STATE OTHER
THAN THIS STATE AND SUCH PERSON, FIRM, ASSOCIATION OR CORPORATION IS
OTHERWISE LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE
IN THE INSURED'S HOME STATE.
S 8. Subsection (a) of section 2105 of the insurance law, as amended
by chapter 626 of the laws of 2006, is amended to read as follows:
(a) The superintendent may issue an excess line broker's license to
any person, firm, association or corporation who or which [is domiciled
or maintains an office in this state and] is licensed as an insurance
broker under section two thousand one hundred four of this article, or
who or which is licensed as an excess line broker in the licensee's home
state, provided, however, that the applicant's home state grants non-re-
sident licenses to residents of this state on the same basis, except
that reciprocity is not required in regard to the placement of liability
insurance on behalf of a purchasing group or any of its members; author-
izing such person, firm, association or corporation to procure, subject
to the restrictions herein provided, policies of insurance from insurers
which are not authorized to transact business in this state of the kind
or kinds of insurance specified in paragraphs four through fourteen,
sixteen, seventeen, nineteen, twenty, twenty-two, twenty-seven, twenty-
eight and thirty-one of subsection (a) of section one thousand one
hundred thirteen of this chapter and in subsection (h) of this section,
provided, however, that the provisions of this section and section two
thousand one hundred eighteen of this article shall not apply to ocean
marine insurance and other contracts of insurance enumerated in
subsections (b) and (c) of section two thousand one hundred seventeen of
this article. Such license may be suspended or revoked by the super-
intendent whenever in his OR HER judgment such suspension or revocation
will best promote the interests of the people of this state.
S 9. Section 2117 of the insurance law is amended by adding a new
subsection (j) to read as follows:
(J) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, A PERSON WHO IS
NOT A RESIDENT OF THIS STATE MAY SELL, SOLICIT OR NEGOTIATE A CONTRACT
OF PROPERTY/CASUALTY INSURANCE TO OR FOR AN INSURED, WITH REGARD TO AN
UNAUTHORIZED INSURER, PROVIDED THAT: (1) THE INSURED'S HOME STATE IS A
STATE OTHER THAN THIS STATE; (2) THE PERSON IS LICENSED TO SELL, SOLICIT
OR NEGOTIATE EXCESS LINE INSURANCE IN THE INSURED'S HOME STATE; AND (3)
EITHER THE PERSON IS LICENSED AS AN INSURANCE BROKER IN THIS STATE OR
A. 4011--B 32
THE PERSON DOES NOT PERFORM THE DILIGENT SEARCH REQUIRED BY SECTION TWO
THOUSAND ONE HUNDRED EIGHTEEN OF THIS ARTICLE.
S 10. Paragraph 1 of subsection (b) of section 2118 of the insurance
law, as amended by chapter 630 of the laws of 1988, is amended to read
as follows:
(1) Within [forty-five] THIRTY days after a policy is procured, a
licensee shall submit the declarations page or cover note of every poli-
cy procured under his or her license to the excess line association
established pursuant to section two thousand one hundred thirty of this
article for recording and stamping. In the event that no declarations
page or cover note is available to the licensee, within [forty-five]
THIRTY days after the policy is procured, the licensee shall submit a
binder to the excess line association in lieu of such declarations page
or cover note. In the event that a binder is submitted to the excess
line association, the licensee shall submit the declarations page or
cover note to the excess line association promptly upon receipt. Every
insurance document submitted to the excess line association pursuant to
this subsection shall set forth:
(A) the name and address of the insured;
(B) the gross premium charged;
(C) the name of the unauthorized insurer; and
(D) the kind of insurance procured.
S 10-a. Paragraphs 8 and 9 of subsection (b) of section 2118 of the
insurance law are REPEALED.
S 11. Subparagraph (A) of paragraph 3 of subsection (b) of section
2118 of the insurance law, as amended by chapter 498 of the laws of
1996, is amended and a new subparagraph (F) is added to read as follows:
(A) [The] EXCEPT AS PROVIDED IN SUBPARAGRAPH (F) OF THIS PARAGRAPH,
submission of insurance documents to the excess line association shall
be accompanied by a statement subscribed to, and affirmed by, the licen-
see or sublicensee as true under the penalties of perjury that, after
diligent effort, the full amount of insurance required could not be
procured, from authorized insurers, each of which is authorized to write
insurance of the kind requested and which the licensee has reason to
believe might consider writing the type of coverage or class of insur-
ance involved, and further showing that the amount of insurance procured
from an unauthorized insurer is only the excess over the amount procura-
ble from an authorized insurer. The licensee, however, shall be excused
from affirming that a diligent effort, as defined above, was made to
procure the coverage from authorized insurers if the licensee's affida-
vit is accompanied by the affidavit of another broker involved in the
placement affirming as true under the penalties of perjury that, after
diligent effort by the affirming broker, the required insurance could
not be procured from an authorized insurer which the affirming broker
had reason to believe might consider writing the type of coverage or
class of insurance involved. The licensee and the affirming broker shall
be excused from affirming that a diligent effort was made if the super-
intendent determines, pursuant to paragraph four of this subsection,
that no declinations are required.
(F) A LICENSEE SEEKING TO PROCURE OR PLACE INSURANCE IN THIS STATE FOR
AN EXEMPT COMMERCIAL PURCHASER SHALL NOT BE REQUIRED TO SATISFY ANY
REQUIREMENT OF THIS STATE TO MAKE A DUE DILIGENCE SEARCH TO DETERMINE
WHETHER THE FULL AMOUNT OR TYPE OF INSURANCE SOUGHT BY THE EXEMPT
COMMERCIAL PURCHASER CAN BE OBTAINED FROM AUTHORIZED INSURERS IF:
(I) THE LICENSEE PROCURING OR PLACING THE EXCESS LINE INSURANCE HAS
DISCLOSED TO THE EXEMPT COMMERCIAL PURCHASER THAT THE INSURANCE MAY OR
A. 4011--B 33
MAY NOT BE AVAILABLE FROM THE AUTHORIZED MARKET THAT MAY PROVIDE GREATER
PROTECTION WITH MORE REGULATORY OVERSIGHT; AND
(II) THE EXEMPT COMMERCIAL PURCHASER HAS SUBSEQUENTLY REQUESTED IN
WRITING THAT THE LICENSEE PROCURE OR PLACE THE INSURANCE FROM AN UNAU-
THORIZED INSURER.
S 12. Subsection (d) of section 2118 of the insurance law, as amended
by chapter 220 of the laws of 1986, paragraph 1 as amended by chapter
190 of the laws of 1990, is amended to read as follows:
(d) (1) [Every] WHERE THIS STATE IS THE INSURED'S HOME STATE, A
person, firm, association or corporation licensed pursuant to the
provisions of section two thousand one hundred five of this article
shall pay to the superintendent a sum equal to three and six-tenths
percent of the gross premiums charged the insureds by the insurers for
insurance procured by such licensee pursuant to such license, less the
amount of such premiums returned to such insureds. [Where the insurance
covers property or risks located or resident both in and out of this
state, the sum payable shall be computed on that portion of the gross
premiums allocated to this state pursuant to subsection (b) of section
nine thousand one hundred two of this chapter less the amount of gross
premiums allocated to this state and returned to the insured.]
(2) The amount of such payments which represents a sum equal to three
percent of fire insurance premiums shall be distributed by the super-
intendent as prescribed in section nine thousand one hundred five of
this chapter, and the balance thereof shall be paid over by the super-
intendent to the state treasurer.
(3) Such licensee shall be required to make such payments to the
superintendent QUARTERLY on the fifteenth day of [March of each year]:
(A) FEBRUARY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY OF
DECEMBER; (B) MAY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY
OF MARCH; (C) AUGUST FOR THE QUARTER ENDING THE PRECEDING THIRTIETH DAY
OF JUNE; AND (D) NOVEMBER FOR THE QUARTER ENDING THE PRECEDING THIRTIETH
DAY OF SEPTEMBER, for the taxes on all policies procured by such licen-
see, pursuant to such license, during the next preceding [calendar year]
QUARTER, and on EACH such PAYMENT date such licensee shall also file
with the superintendent a return in the form prescribed by the super-
intendent, showing such information as may be necessary for the proper
distribution of such payments.
S 13. Paragraph 5 of subsection (a) of section 2130 of the insurance
law, as added by chapter 630 of the laws of 1988, is amended to read as
follows:
(5) prepare and deliver to each licensee and to the superintendent
[annually] the reports of excess line business ON THE SEVENTH DAY OF:
(A) FEBRUARY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY OF
DECEMBER; (B) MAY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY
OF MARCH; (C) AUGUST FOR THE QUARTER ENDING THE PRECEDING THIRTIETH DAY
OF JUNE; AND (D) NOVEMBER FOR THE QUARTER ENDING THE PRECEDING THIRTIETH
DAY OF SEPTEMBER, which reports shall include a delineation of the
classes and kinds of business procured during the preceding calendar
year in such form as the superintendent may prescribe;
S 14. Section 9102 of the insurance law, as amended by chapter 190 of
the laws of 1990, subsection (c) as amended by chapter 73 of the laws of
1991, is amended to read as follows:
S 9102. Allocation of premiums. [(a)] In determining the amount of
direct premiums taxable in this state, all such premiums written,
procured, or received in this state shall be deemed written on property
A. 4011--B 34
or risks located or resident in this state except such premiums properly
allocated and reported as taxable premiums of any other state or states.
[(b) (1) In determining the amount of gross premiums taxable in this
state pursuant to paragraph one of subsection (d) of section two thou-
sand one hundred eighteen of this chapter, where a placement of excess
line insurance covers property or risks located or resident both in and
out of this state, the sum paid to the superintendent shall be computed
on that portion of the policy premium that is attributable to property
or risks located or resident in this state, as determined by reference
to an allocation schedule prescribed by the superintendent in a regu-
lation.
(2) If the allocation schedule does not identify a classification
appropriate to the property or risk being insured, an alternative method
of equitable allocation shall be used for such coverage. In that circum-
stance, documented evidence of the underwriting bases and other criteria
used by the insurer shall be given significant weight by the superinten-
dent.
(3) The licensee shall report the method of allocation utilized in a
form and in a manner prescribed by the superintendent in a regulation.
Where the licensee bases the allocation on an alternative method of
equitable allocation, such licensee shall provide additional information
in support of the allocation as the superintendent may require.
(4) If the superintendent reasonably determines that the information
provided is insufficient to substantiate the method of allocation or
that the method used is incorrect, the superintendent shall determine
the sum to be paid in accordance with the method prescribed by the
superintendent in the regulation. The superintendent's determination of
the sum to be paid shall finally and irrevocably fix the tax unless,
within thirty days of notification of the superintendent's determi-
nation, the licensee requests a hearing to dispute such determination.
(c) (1) Any licensee who allocated the premium tax for any of the six
years prior to the effective date of this subsection shall not be liable
for the payment of any additional premium tax that would have been due
had the licensee not allocated, unless the superintendent determines
that the method of allocation was inequitable.
(2) The superintendent's determination under this subsection shall be
in accordance with the procedures in paragraph four of subsection (b) of
this section. Documented evidence of the underwriting bases and other
criteria used by the insurer shall be given significant weight by the
superintendent.
(3) Nothing in this subsection shall entitle a licensee to a refund of
taxes previously paid.]
S 15. The general municipal law is amended by adding a new section 25
to read as follows:
S 25. PROCUREMENT OF EXCESS LINE INSURANCE. NOTWITHSTANDING SUBPARA-
GRAPH (F) OF PARAGRAPH THREE OF SUBSECTION (B) OF SECTION TWO THOUSAND
ONE HUNDRED EIGHTEEN OF THE INSURANCE LAW, A MUNICIPALITY WITH A POPU-
LATION OF LESS THAN ONE HUNDRED THOUSAND PERSONS MAY NOT REQUEST THAT AN
EXCESS LINE BROKER PROCURE OR PLACE INSURANCE FROM AN UNAUTHORIZED
INSURER UNLESS THE EXCESS LINE BROKER OBTAINS THE DECLINATIONS REQUIRED
BY SUBSECTION (B) OF SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THE
INSURANCE LAW.
S 16. Subdivision 1 of section 171-a of the tax law, as amended by
section 1 of part R of chapter 60 of the laws of 2004, is amended to
read as follows:
A. 4011--B 35
1. All taxes, interest, penalties and fees collected or received by
the commissioner or the commissioner's duly authorized agent under arti-
cles nine (except section one hundred eighty-two-a thereof and except as
otherwise provided in section two hundred five thereof), nine-A,
twelve-A (except as otherwise provided in section two hundred eighty-
four-d thereof), thirteen, thirteen-A (except as otherwise provided in
section three hundred twelve thereof), eighteen, nineteen, twenty
(except as otherwise provided in section four hundred eighty-two there-
of), twenty-one, twenty-two, twenty-six, twenty-six-B, twenty-eight
(except as otherwise provided in section eleven hundred two or eleven
hundred three thereof), twenty-eight-A, thirty-one (except as otherwise
provided in section fourteen hundred twenty-one thereof), thirty-two,
thirty-three and thirty-three-A of this chapter shall be deposited daily
in one account with such responsible banks, banking houses or trust
companies as may be designated by the comptroller, to the credit of the
comptroller. Such an account may be established in one or more of such
depositories. Such deposits shall be kept separate and apart from all
other money in the possession of the comptroller. The comptroller shall
require adequate security from all such depositories. Of the total
revenue collected or received under such articles of this chapter, the
comptroller shall retain in the comptroller's hands such amount as the
commissioner may determine to be necessary for refunds or reimbursements
under such articles of this chapter [and article ten thereof] out of
which amount the comptroller shall pay any refunds or reimbursements to
which taxpayers shall be entitled under the provisions of such articles
of this chapter [and article ten thereof]. The commissioner and the
comptroller shall maintain a system of accounts showing the amount of
revenue collected or received from each of the taxes imposed by such
articles. The comptroller, after reserving the amount to pay such
refunds or reimbursements, shall, on or before the tenth day of each
month, pay into the state treasury to the credit of the general fund all
revenue deposited under this section during the preceding calendar month
and remaining to the comptroller's credit on the last day of such
preceding month, (i) except that the comptroller shall pay to the state
department of social services that amount of overpayments of tax imposed
by article twenty-two of this chapter and the interest on such amount
which is certified to the comptroller by the commissioner as the amount
to be credited against past-due support pursuant to subdivision six of
section one hundred seventy-one-c of this [chapter] ARTICLE, (ii) and
except that the comptroller shall pay to the New York state higher
education services corporation and the state university of New York or
the city university of New York respectively that amount of overpayments
of tax imposed by article twenty-two of this chapter and the interest on
such amount which is certified to the comptroller by the commissioner as
the amount to be credited against the amount of defaults in repayment of
guaranteed student loans and state university loans or city university
loans pursuant to subdivision five of section one hundred seventy-one-d
and subdivision six of section one hundred seventy-one-e of this [chap-
ter] ARTICLE, (iii) and except further that, notwithstanding any law,
the comptroller shall credit to the revenue arrearage account, pursuant
to section ninety-one-a of the state finance law, that amount of over-
payment of tax imposed by article nine, nine-A, twenty-two, thirty,
thirty-A, thirty-B, thirty-two or thirty-three of this chapter, and any
interest thereon, which is certified to the comptroller by the commis-
sioner as the amount to be credited against a past-due legally enforcea-
ble debt owed to a state agency pursuant to paragraph (a) of subdivision
A. 4011--B 36
six of section one hundred seventy-one-f of this article, provided,
however, he shall credit to the special offset fiduciary account, pursu-
ant to section ninety-one-c of the state finance law, any such amount
creditable as a liability as set forth in paragraph (b) of subdivision
six of section one hundred seventy-one-f of this article, (iv) and
except further that the comptroller shall pay to the city of New York
that amount of overpayment of tax imposed by article nine, nine-A, twen-
ty-two, thirty, thirty-A, thirty-B, thirty-two, or thirty-three of this
chapter and any interest thereon that is certified to the comptroller by
the commissioner as the amount to be credited against city of New York
tax warrant judgment debt pursuant to section one hundred seventy-one-l
of this article, (v) and except further that the comptroller shall pay
to a non-obligated spouse that amount of overpayment of tax imposed by
article twenty-two of this chapter and the interest on such amount which
has been credited pursuant to section one hundred seventy-one-c, one
hundred seventy-one-d, one hundred seventy-one-e, one hundred seventy-
one-f or one hundred seventy-one-l of this article and which is certi-
fied to the comptroller by the commissioner as the amount due such non-
obligated spouse pursuant to paragraph six of subsection (b) of section
six hundred fifty-one of this chapter; and (vi) the comptroller shall
deduct a like amount which the comptroller shall pay into the treasury
to the credit of the general fund from amounts subsequently payable to
the department of social services, the state university of New York, the
city university of New York, or the higher education services corpo-
ration, or the revenue arrearage account or special offset fiduciary
account pursuant to section ninety-one-a or ninety-one-c of the state
finance law, as the case may be, whichever had been credited the amount
originally withheld from such overpayment, and (vii) with respect to
amounts originally withheld from such overpayment pursuant to section
one hundred seventy-one-l of this article and paid to the city of New
York, the comptroller shall collect a like amount from the city of New
York.
S 17. Subdivision (c) of section 1550 of the tax law, as added by
chapter 190 of the laws of 1990, is amended to read as follows:
(c) The term "taxable insurance contract" means a contract of insur-
ance of the [type] KIND described in [paragraphs four through fourteen,
sixteen, seventeen, nineteen, twenty and twenty-two of] subsection (a)
of section [one thousand one hundred thirteen] TWO THOUSAND ONE HUNDRED
FIVE of the insurance law [that covers risks located or resident within
this state].
S 18. Section 1550 of the tax law is amended by adding a new subdivi-
sion (d) to read as follows:
(D) THE TERM "HOME STATE" MEANS:
(1) IN GENERAL. EXCEPT AS PROVIDED IN PARAGRAPHS TWO AND THREE OF THIS
SUBDIVISION, THE TERM "HOME STATE" MEANS, WITH RESPECT TO AN INSURED:
(A) THE STATE IN WHICH AN INSURED MAINTAINS ITS PRINCIPAL PLACE OF
BUSINESS OR, IN THE CASE OF AN INDIVIDUAL, THE INDIVIDUAL'S PRINCIPAL
RESIDENCE;
(B) IF ONE HUNDRED PERCENT OF THE INSURED RISK IS LOCATED OUT OF THE
STATE REFERRED TO IN SUBPARAGRAPH (A) OF THIS PARAGRAPH, THE STATE TO
WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT
INSURANCE CONTRACT IS ALLOCATED;
(C) IF MORE THAN ONE INSURED FROM AN AFFILIATED GROUP, AS DEFINED IN
SECTION TWO THOUSAND ONE HUNDRED ONE OF THE INSURANCE LAW, ARE NAMED
INSUREDS ON A SINGLE INSURANCE CONTRACT, THE HOME STATE OF THE MEMBER OF
A. 4011--B 37
THE AFFILIATED GROUP THAT HAS THE LARGEST PERCENTAGE OF PREMIUM ATTRI-
BUTED TO IT UNDER SUCH INSURANCE CONTRACT; OR
(D) IN THE CASE OF A GROUP POLICY:
(I) IF THE GROUP POLICYHOLDER PAYS ONE HUNDRED PERCENT OF THE PREMIUM
FROM ITS OWN FUNDS, THE HOME STATE, AS DETERMINED PURSUANT TO SUBPARA-
GRAPH (A) OF THIS PARAGRAPH, OF THE GROUP POLICYHOLDER; OR
(II) IF THE GROUP POLICYHOLDER DOES NOT PAY ONE HUNDRED PERCENT OF THE
PREMIUM FROM ITS OWN FUNDS, THE HOME STATE, AS DETERMINED PURSUANT TO
SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE GROUP MEMBER;
(2) "PRINCIPAL PLACE OF BUSINESS" MEANS, WITH RESPECT TO DETERMINING
THE HOME STATE OF THE INSURED, THE STATE WHERE:
(A) THE INSURED MAINTAINS ITS HEADQUARTERS AND WHERE THE INSURED'S
HIGH-LEVEL OFFICERS DIRECT, CONTROL AND COORDINATE THE BUSINESS ACTIV-
ITIES; OR
(B) IF THE INSURED'S HIGH-LEVEL OFFICERS DIRECT, CONTROL AND COORDI-
NATE THE BUSINESS ACTIVITIES IN MORE THAN ONE STATE, OR IF THE INSURED'S
PRINCIPAL PLACE OF BUSINESS IS LOCATED OUTSIDE ANY STATE, THE STATE TO
WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT
INSURANCE CONTRACT IS ALLOCATED.
(3) "PRINCIPAL RESIDENCE" MEANS, WITH RESPECT TO DETERMINING THE HOME
STATE OF THE INSURED, THE STATE WHERE:
(A) THE INSURED RESIDES FOR THE GREATEST NUMBER OF DAYS DURING A
CALENDAR YEAR; OR
(B) IF THE INSURED'S PRINCIPAL RESIDENCE IS LOCATED OUTSIDE ANY STATE,
THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE
PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED.
S 19. Section 1551 of the tax law, as amended by chapter 73 of the
laws of 1991, is amended to read as follows:
S 1551. Imposition of tax. There is hereby imposed on any person
WHOSE HOME STATE IS NEW YORK AND who purchases or renews a taxable
insurance contract from an insurer not authorized to transact business
in this state under a certificate of authority from the superintendent
of insurance a tax at the rate of three and six-tenths percent of the
premiums paid or to be paid, less returns thereon, for such insurance.
Nothing in this article modifies or abrogates any provision of the
insurance law.
S 20. Section 1552 of the tax law, as added by chapter 190 of the laws
of 1990, is amended to read as follows:
S 1552. Allocation. Where the taxable insurance contract covers risks
located or resident both within and without this state[, the amount of
premiums allocable to risks resident or located within this state shall
be determined pursuant to rules and regulations of the commissioner of
taxation and finance. In promulgating such rules and regulations, the
commissioner of taxation and finance shall give due consideration to the
rules and regulations promulgated by the superintendent of insurance
pursuant to subsection (b) of section nine thousand one hundred two of
the insurance law] AND THE TAXPAYER'S HOME STATE IS NEW YORK, ONE
HUNDRED PERCENT OF PREMIUMS SHALL BE ALLOCABLE TO THIS STATE.
S 21. This act shall take effect July 21, 2011; provided, however,
that:
(1) sections one, two and three of this act shall take effect July 16,
2011;
(2) the amendments to subsection (b) of section 2118 of the insurance
law made by sections ten and eleven of this act shall not affect the
expiration and reversion of such subsection and shall be deemed to
expire therewith;
A. 4011--B 38
(3) the amendments to paragraph 5 of subsection (a) of section 2130 of
the insurance law made by section thirteen of this act shall not affect
the expiration of such section and shall be deemed to expire therewith;
(4) a person, firm, association or corporation licensed pursuant to
the provisions of section 2105 of the insurance law shall make the
payments required by subsection (d) of section 2118 of the insurance law
to the superintendent of insurance on or before September 19, 2011 for
the taxes on the policies procured by such licensee, pursuant to such
license, between January 1, 2011 and July 20, 2011; and
(5) effective immediately, the addition, amendment, or repeal of any
rules and regulations necessary for the implementation of this act on
its effective date are authorized and directed to be made and completed
on or before such effective date.
PART J
Section 1. Section 51 of chapter 298 of the laws of 1985, amending the
tax law relating to the franchise tax on banking corporations imposed by
the tax law, authorized to be imposed by any city having a population of
one million or more by chapter 772 of the laws of 1966 and imposed by
the administrative code of the city of New York and relating to other
provisions of the tax law, chapter 883 of the laws of 1975 and the
administrative code of the city of New York which relates to such fran-
chise tax, as amended by chapter 67 of the laws of 2010, is amended to
read as follows:
S 51. This act shall take effect immediately and shall apply to taxa-
ble years beginning on or after January 1, 1985[, except that:
(a) sections one through eight shall not apply to taxable years begin-
ning on or after January 1, 2011;
(b) sections nine, twelve, the amendment made to paragraph 9 of
subsection (a) of section 1452 of the tax law by section thirteen,
sections fifteen, sixteen, eighteen, nineteen, twenty, twenty-three,
twenty-seven, thirty and thirty-two, the amendment made to paragraph 9
of subdivision (a) of section 11-640 of the administrative code of the
city of New York by section thirty-three, sections thirty-five, thirty-
six, thirty-eight, thirty-nine, forty, and forty-five shall not apply to
corporations other than savings banks and savings and loan associations
for taxable years beginning on or after January 1, 2011.
(c) sections twenty-one, twenty-two, twenty-four, forty-one and
forty-two shall not apply to corporations other than savings banks and
savings and loan associations for taxable years beginning on or after
January 1, 2011, provided, however, that the provisions of such sections
which relate to the alternative minimum tax measured by taxable assets
shall continue to apply to all taxpayers for taxable years beginning on
or after January 1, 2011;
(d) the amendment to the section heading and the opening paragraph of
section 11-643.3 of the administrative code of the city of New York made
by section forty-three shall not apply to corporations other than
savings banks and savings and loan associations for taxable years begin-
ning on or after January 1, 2011 with respect to those provisions of
such section 11-643.3 which relate to the basic tax measured by entire
net income; and
(e) section twenty-eight, and the addition of new section 11-643.5 of
the administrative code of the city of New York made by section forty-
four shall not apply to corporations other than savings banks and
savings and loan associations for taxable years beginning on or after
A. 4011--B 39
January 1, 2011, provided, however, that the provisions of such sections
which relate to the alternative minimum taxes measured by assets, issued
capital stock and one hundred twenty-five dollars shall continue to
apply to all taxpayers for taxable years beginning on or after January
1, 2011].
S 2. Subdivisions (d) and (f) of section 110 of chapter 817 of the
laws of 1987, amending the tax law and the environmental conservation
law, constituting the business tax reform and rate reduction act of
1987, as amended by chapter 67 of the laws of 2010, are amended to read
as follows:
(d) The provisions of section sixty-seven of this act except insofar
as it amends paragraph 10 of subsection (b) of section 1453 of the tax
law, seventy-one and seventy-four shall apply to taxable years beginning
after December 31, 1986[, provided, however, that new paragraphs 11 and
12 of subsection (b) of section 1453 of the tax law as added by section
sixty-seven of this act, the amendments made by section seventy-one of
this act, and new subsection (i) of section 1453 of the tax law as added
by section seventy-four of this act shall not apply to taxable years
beginning on or after January 1, 2011];
(f) The provisions of section one hundred four of this act shall apply
to taxable years beginning after December 31, 1986[, and shall not apply
to corporations other than savings banks and savings and loan associ-
ations for taxable years beginning on or after January 1, 2011,
provided, however, that the provisions of such section which relate to
the alternative minimum tax measured by taxable assets shall continue to
apply to all taxpayers for taxable years beginning on or after January
1, 2011].
S 3. Subdivisions (c) and (d) of section 68 of chapter 525 of the
laws of 1988, amending the tax law and the administrative code of the
city of New York relating to the imposition of taxes in the city of New
York, as amended by chapter 67 of the laws of 2010, are amended to read
as follows:
(c) The provisions of sections one, thirty-one, thirty-two, thirty-
three, thirty-six, thirty-seven, forty through forty-five, forty-seven
and forty-eight of this act shall apply to taxable years beginning after
December 31, 1986[, provided, however, that the amendments made by
sections thirty-six and forty-one of this act, and new subdivision (i)
of section 11-641 of the administrative code of the city of New York as
added by section forty-four of this act shall not apply to taxable years
beginning on or after January 1, 2011];
(d) The provisions of section forty-six of this act shall apply to
taxable years beginning after December 31, 1986[, and shall not apply to
corporations other than savings banks and savings and loan associations
for taxable years beginning on or after January 1, 2011, provided,
however, that the provisions of such section which relate to the alter-
native minimum tax measured by taxable assets shall continue to apply to
all taxpayers for taxable years beginning on or after January 1, 2011];
S 4. Paragraphs 1 and 2 of subsection (m) of section 1452 of the tax
law, as amended by chapter 24 of the laws of 2010, are amended to read
as follows:
(1) Notwithstanding anything to the contrary contained in this section
other than subsection (n) of this section, a corporation that was in
existence before January first, two thousand [ten] ELEVEN and was
subject to tax under article nine-A of this chapter for its last taxable
year beginning before January first, two thousand [ten] ELEVEN, shall
continue to be taxable under such article for all taxable years begin-
A. 4011--B 40
ning on or after January first, two thousand [ten] ELEVEN and before
January first, two thousand [eleven] THIRTEEN. The preceding sentence
shall not apply to any taxable year during which such corporation is a
banking corporation described in paragraphs one through eight of
subsection (a) of this section. Notwithstanding anything to the contrary
contained in this section other than subsection (n) of this section, a
banking corporation or corporation that was in existence before January
first, two thousand [ten] ELEVEN and was subject to tax under this arti-
cle for its last taxable year beginning before January first, two thou-
sand [ten] ELEVEN, shall continue to be taxable under this article for
all taxable years beginning on or after January first, two thousand
[ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN or
in which the corporation satisfies the requirements for a corporation to
elect to be taxable under this article. Provided further, that nothing
in this subsection shall prohibit a corporation that elected pursuant to
subsection (d) of this section to be taxable under article nine-A of
this chapter from revoking that election in accordance with such
subsection (d).
For purposes of this paragraph, a corporation shall be considered to
be subject to tax under article nine-A of this chapter for a taxable
year if such corporation was not a taxpayer but was properly included in
a combined report filed pursuant to section two hundred eleven of this
chapter for such taxable year and a corporation shall be considered to
be subject to tax under this article for a taxable year if such corpo-
ration was not a taxpayer but was properly included in a combined return
filed pursuant to subsection (f) or (g) of section fourteen hundred
sixty-two of this article for such taxable year. A corporation that was
in existence before January first, two thousand [ten] ELEVEN but first
becomes a taxpayer in a taxable year beginning on or after January
first, two thousand [ten] ELEVEN and before January first, two thousand
[eleven] THIRTEEN, shall be considered for purposes of this paragraph to
have been subject to tax under article nine-A of this chapter for its
last taxable year beginning before January first, two thousand [ten]
ELEVEN if such corporation would have been subject to tax under such
article for such taxable year if it had been a taxpayer during such
taxable year. A corporation that was in existence before January first,
two thousand [ten] ELEVEN but first becomes a taxpayer in a taxable year
beginning on or after January first, two thousand [ten] ELEVEN and
before January first, two thousand [eleven] THIRTEEN, shall be consid-
ered for purposes of this paragraph to have been subject to tax under
this article for its last taxable year beginning before January first,
two thousand [ten] ELEVEN if such corporation would have been subject to
tax under this article for such taxable year if it had been a taxpayer
during such taxable year.
(2) Notwithstanding anything to the contrary contained in this section
other than subsection (n) of this section, a corporation formed on or
after January first, two thousand [ten] ELEVEN and before January first,
two thousand [eleven] THIRTEEN may elect to be subject to tax under this
article or under article nine-A of this chapter for its first taxable
year beginning on or after January first, two thousand [ten] ELEVEN and
before January first, two thousand [eleven] THIRTEEN in which either (i)
sixty-five percent or more of its voting stock is owned or controlled,
directly or indirectly by a financial holding company, provided the
corporation whose voting stock is so owned or controlled is principally
engaged in activities that are described in section 4(k)(4) or 4(k)(5)
of the federal bank holding company act of nineteen hundred fifty-six,
A. 4011--B 41
as amended and the regulations promulgated pursuant to the authority of
such section, or (ii) it is a financial subsidiary. An election under
this paragraph may not be made by a corporation described in paragraphs
one through eight of subsection (a) of this section or in subsection (e)
of this section. In addition, an election under this paragraph may not
be made by a corporation that is a party to a reorganization, as defined
in subsection (a) of section 368 of the internal revenue code of 1986,
as amended, of a corporation described in paragraph one of this
subsection if both corporations were sixty-five percent or more owned or
controlled, directly or indirectly, by the same interests at the time of
the reorganization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return (determined with regard to
extensions of time for filing) for the applicable taxable year. The
election to be taxed under article nine-A of this chapter shall be made
by the taxpayer by filing the report required pursuant to section two
hundred eleven of this chapter and the election to be taxed under this
article shall be made by the taxpayer by filing the return required
pursuant to section fourteen hundred sixty-two of this article. Any
election made pursuant to this paragraph shall be irrevocable and shall
apply to each subsequent taxable year beginning on or after January
first, two thousand [ten] ELEVEN and before January first, two thousand
[eleven] THIRTEEN, provided that the stock ownership and activities
requirements described in subparagraph (i) of this paragraph are met or
such corporation described in subparagraph (ii) of this paragraph
continues as a financial subsidiary.
S 5. Paragraphs 1 and 2 of subdivision (l) of section 11-640 of the
administrative code of the city of New York, as amended by chapter 24 of
the laws of 2010, are amended to read as follows:
(1) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation that was in
existence before January first, two thousand [ten] ELEVEN and was
subject to tax under subchapter two of this chapter for its last taxable
year beginning before January first, two thousand [ten] ELEVEN, shall
continue to be taxable under such subchapter for all taxable years
beginning on or after January first, two thousand [ten] ELEVEN and
before January first, two thousand [eleven] THIRTEEN. The preceding
sentence shall not apply to any taxable year during which such corpo-
ration is a banking corporation described in paragraphs one through
eight of subdivision (a) of this section. Notwithstanding anything to
the contrary contained in this section other than subdivision (m) of
this section, a banking corporation or corporation that was in existence
before January first, two thousand [ten] ELEVEN and was subject to tax
under this subchapter for its last taxable year beginning before January
first, two thousand [ten] ELEVEN, shall continue to be taxable under
this subchapter for all taxable years beginning on or after January
first, two thousand [ten] ELEVEN and before January first, two thousand
[eleven] THIRTEEN or in which the corporation satisfies the requirements
for a corporation to elect to be taxable under this subchapter. Provided
further, that nothing in this subdivision shall prohibit a corporation
that elected pursuant to subdivision (d) of this section to be taxable
under subchapter two of this chapter from revoking that election in
accordance with subdivision (d) of this section. For purposes of this
paragraph, a corporation shall be considered to be subject to tax under
subchapter two of this chapter for a taxable year if such corporation
was not a taxpayer but was properly included in a combined report filed
A. 4011--B 42
pursuant to subdivision four of section 11-605 of this chapter for such
taxable year and a corporation shall be considered to be subject to tax
under this subchapter for a taxable year if such corporation was not a
taxpayer but was properly included in a combined report filed pursuant
to subdivision (f) or (g) of section 11-646 of this part for such taxa-
ble year. A corporation that was in existence before January first, two
thousand [ten] ELEVEN but first becomes a taxpayer in a taxable year
beginning on or after January first, two thousand [ten] ELEVEN and
before January first, two thousand [eleven] THIRTEEN, shall be consid-
ered for purposes of this paragraph to have been subject to tax under
subchapter two of this chapter for its last taxable year beginning
before January first, two thousand [ten] ELEVEN if such corporation
would have been subject to tax under such subchapter for such taxable
year if it had been a taxpayer during such taxable year. A corporation
that was in existence before January first, two thousand [ten] ELEVEN
but first becomes a taxpayer in a taxable year beginning on or after
January first, two thousand [ten] ELEVEN and before January first, two
thousand [eleven] THIRTEEN, shall be considered for purposes of this
paragraph to have been subject to tax under this subchapter for its last
taxable year beginning before January first, two thousand [ten] ELEVEN
if such corporation would have been subject to tax under this subchapter
for such taxable year if it had been a taxpayer during such taxable
year.
(2) Notwithstanding anything to the contrary contained in this section
other than subdivision (m) of this section, a corporation formed on or
after January first, two thousand [ten] ELEVEN and before January first,
two thousand [eleven] THIRTEEN may elect to be subject to tax under this
subchapter or under subchapter two of this chapter for its first taxable
year beginning on or after January first, two thousand [ten] ELEVEN and
before January first, two thousand [eleven] THIRTEEN in which either (i)
sixty-five percent or more of its voting stock is owned or controlled,
directly or indirectly by a financial holding company, provided the
corporation whose voting stock is so owned or controlled is principally
engaged in activities that are described in section 4(k)(4) or 4(k)(5)
of the federal bank holding company act of nineteen hundred fifty-six,
as amended and the regulations promulgated pursuant to the authority of
such section or (ii) it is a financial subsidiary. An election under
this paragraph may not be made by a corporation described in paragraphs
one through eight of subdivision (a) of this section or in subdivision
(e) of this section. In addition, an election under this paragraph may
not be made by a corporation that is a party to a reorganization, as
defined in subsection (a) of section 368 of the internal revenue code of
1986, as amended, of a corporation described in paragraph one of this
subdivision if both corporations were sixty-five percent or more owned
or controlled, directly or indirectly by the same interests at the time
of the reorganization.
An election under this paragraph must be made by the taxpayer on or
before the due date for filing its return (determined with regard to
extensions of time for filing) for the applicable taxable year. The
election to be taxed under subchapter two of this chapter shall be made
by the taxpayer by filing the return required pursuant to subdivision
one of section 11-605 of this chapter and the election to be taxed under
this subchapter shall be made by the taxpayer by filing the return
required pursuant to subdivision (a) of section 11-646 of this part. Any
election made pursuant to this paragraph shall be irrevocable and shall
apply to each subsequent taxable year beginning on or after January
A. 4011--B 43
first, two thousand [ten] ELEVEN and before January first, two thousand
[eleven] THIRTEEN, provided that the stock ownership and activities
requirements described in subparagraph (i) of this paragraph are met or
such corporation described in subparagraph (ii) of this paragraph
continues as a financial subsidiary.
S 6. Subparagraph (iv) of paragraph 2 of subdivision (f) of section
1462 of the tax law, as amended by chapter 24 of the laws of 2010, is
amended to read as follows:
(iv) (A) Notwithstanding any provision of this paragraph, any bank
holding company exercising its corporate franchise or doing business in
the state may make a return on a combined basis without seeking the
permission of the commissioner with any banking corporation exercising
its corporate franchise or doing business in the state in a corporate or
organized capacity sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly, by such bank holding compa-
ny, for the first taxable year beginning on or after January first, two
thousand and before January first, two thousand [eleven] THIRTEEN during
which such bank holding company registers for the first time under the
federal bank holding company act, as amended, and also elects to be a
financial holding company. In addition, for each subsequent taxable year
beginning after January first, two thousand and before January first,
two thousand [eleven] THIRTEEN, any such bank holding company may file
on a combined basis without seeking the permission of the commissioner
with any banking corporation that is exercising its corporate franchise
or doing business in the state and sixty-five percent or more of whose
voting stock is owned or controlled, directly or indirectly, by such
bank holding company if either such banking corporation is exercising
its corporate franchise or doing business in the state in a corporate or
organized capacity for the first time during such subsequent taxable
year, or sixty-five percent or more of the voting stock of such banking
corporation is owned or controlled, directly or indirectly, by such bank
holding company for the first time during such subsequent taxable year.
Provided however, for each subsequent taxable year beginning after Janu-
ary first, two thousand and before January first, two thousand [eleven]
THIRTEEN, a banking corporation described in either of the two preceding
sentences which filed on a combined basis with any such bank holding
company in a previous taxable year, must continue to file on a combined
basis with such bank holding company if such banking corporation, during
such subsequent taxable year, continues to exercise its corporate fran-
chise or do business in the state in a corporate or organized capacity
and sixty-five percent or more of such banking corporation's voting
stock continues to be owned or controlled, directly or indirectly, by
such bank holding company, unless the permission of the commissioner has
been obtained to file on a separate basis for such subsequent taxable
year. Provided further, however, for each subsequent taxable year begin-
ning after January first, two thousand and before January first, two
thousand [eleven] THIRTEEN, a banking corporation described in either of
the first two sentences of this clause which did not file on a combined
basis with any such bank holding company in a previous taxable year, may
not file on a combined basis with such bank holding company during any
such subsequent taxable year unless the permission of the commissioner
has been obtained to file on a combined basis for such subsequent taxa-
ble year.
(B) Notwithstanding any provision of this paragraph other than clause
(A) of this subparagraph, the commissioner may not require a bank hold-
ing company which, during a taxable year beginning on or after January
A. 4011--B 44
first, two thousand and before January first, two thousand [eleven]
THIRTEEN, registers for the first time during such taxable year under
the federal bank holding company act, as amended, and also elects to be
a financial holding company, to make a return on a combined basis for
any taxable year beginning on or after January first, two thousand and
before January first, two thousand [eleven] THIRTEEN with a banking
corporation sixty-five percent or more of whose voting stock is owned or
controlled, directly or indirectly, by such bank holding company.
S 7. Subparagraph (iv) of paragraph 2 of subdivision (f) of section
11-646 of the administrative code of the city of New York, as amended by
chapter 24 of the laws of 2010, is amended to read as follows:
(iv) (A) Notwithstanding any provision of this paragraph, any bank
holding company exercising its corporate franchise or doing business in
the city may make a return on a combined basis without seeking the
permission of the commissioner with any banking corporation exercising
its corporate franchise or doing business in the city in a corporate or
organized capacity sixty-five percent or more of whose voting stock is
owned or controlled, directly or indirectly, by such bank holding compa-
ny, for the first taxable year beginning on or after January first, two
thousand and before January first, two thousand [eleven] THIRTEEN during
which such bank holding company registers for the first time under the
federal bank holding company act, as amended, and also elects to be a
financial holding company. In addition, for each subsequent taxable year
beginning after January first, two thousand and before January first,
two thousand [eleven] THIRTEEN, any such bank holding company may file
on a combined basis without seeking the permission of the commissioner
with any banking corporation that is exercising its corporate franchise
or doing business in the city and sixty-five percent or more of whose
voting stock is owned or controlled, directly or indirectly, by such
bank holding company if either such banking corporation is exercising
its corporate franchise or doing business in the city in a corporate or
organized capacity for the first time during such subsequent taxable
year, or sixty-five percent or more of the voting stock of such banking
corporation is owned or controlled, directly or indirectly, by such bank
holding company for the first time during such subsequent taxable year.
Provided however, for each subsequent taxable year beginning after Janu-
ary first, two thousand and before January first, two thousand [eleven]
THIRTEEN, a banking corporation described in either of the two preceding
sentences which filed on a combined basis with any such bank holding
company in a previous taxable year, must continue to file on a combined
basis with such bank holding company if such banking corporation, during
such subsequent taxable year, continues to exercise its corporate fran-
chise or do business in the city in a corporate or organized capacity
and sixty-five percent or more of such banking corporation's voting
stock continues to be owned or controlled, directly or indirectly, by
such bank holding company, unless the permission of the commissioner has
been obtained to file on a separate basis for such subsequent taxable
year. Provided further, however, for each subsequent taxable year begin-
ning after January first, two thousand and before January first, two
thousand [eleven] THIRTEEN, a banking corporation described in either of
the first two sentences of this clause which did not file on a combined
basis with any such bank holding company in a previous taxable year, may
not file on a combined basis with such bank holding company during any
such subsequent taxable year unless the permission of the commissioner
has been obtained to file on a combined basis for such subsequent taxa-
ble year.
A. 4011--B 45
(B) Notwithstanding any provision of this paragraph other than clause
(A) of this subparagraph, the commissioner may not require a bank hold-
ing company which, during a taxable year beginning on or after January
first, two thousand and before January first, two thousand [eleven]
THIRTEEN, registers for the first time during such taxable year under
the federal bank holding company act, as amended, and also elects to be
a financial holding company, to make a return on a combined basis for
any taxable year beginning on or after January first, two thousand and
before January first, two thousand [eleven] THIRTEEN with a banking
corporation sixty-five percent or more of whose voting stock is owned or
controlled, directly or indirectly, by such bank holding company.
S 8. This act shall take effect immediately.
PART K
Section 1. Paragraph b of subdivision 1, subdivisions 2, 6, 14, 22 and
23 of section 282 of the tax law, paragraph b of subdivision 1 and
subdivision 14 as amended by chapter 245 of the laws of 1989, subdivi-
sion 2 as amended by chapter 509 of the laws of 1937, subdivision 6 as
amended by chapter 261 of the laws of 1988 and subdivisions 22 and 23 as
added by section 1 of part W-1 of chapter 109 of the laws of 2006, are
amended to read as follows:
b. With respect to Diesel motor fuel, "distributor" means any person,
firm, association or corporation (i) who or which imports or causes to
be imported into the state, for use, distribution, storage or sale with-
in the state, any Diesel motor fuel; (ii) who or which produces,
refines, manufactures or compounds Diesel motor fuel within the state;
(iii) [who or which engages in the enhancement of Diesel motor fuel in
this state; (iv)] who or which makes a sale or use of Diesel motor fuel
in this state other than: (A) a retail sale not in bulk or (B) the self-
use of Diesel motor fuel which has been the subject of a retail sale to
such person; [(v)] (IV) who or which is registered by the department [of
taxation and finance] as a distributor of kero-jet fuel pursuant to the
provisions of subdivision two of section two hundred eighty-two-a of
this article. For the purposes of this article when used with respect to
Diesel motor fuel, a "retail sale not in bulk" means the making or
offering to make any sale of Diesel motor fuel to a consumer of such
fuel which is delivered directly into a motor vehicle for use in the
operation of such vehicle. A "retail sale in bulk" means the making or
offering to make any sale of Diesel motor fuel to a consumer which is
other than a "retail sale not in bulk". Motor fuel or Diesel motor fuel
brought into the state in the ordinary fuel tank connecting with the
engine of a motor vehicle, aeroplane, motor boat or other conveyance
propelled by the use of such motor fuel or Diesel motor fuel, and to be
used only in the operation thereof, shall not be deemed imported within
the meaning of this article, if not removed from such tank except as
used in the propulsion of such engine.
2. "Motor fuel" means gasoline, benzol, REFORMULATED BLEND STOCK FOR
OXYGENATE BLENDING, CONVENTIONAL BLEND STOCK FOR OXYGENATE BLENDING,
E85, FUEL GRADE ETHANOL THAT MEETS THE ASTM INTERNATIONAL ACTIVE STAND-
ARDS SPECIFICATIONS D4806 OR D4814 or other product[, except kerosene
and crude oil,] which is suitable for use in operation of a motor vehi-
cle engine[, but if kerosene or crude oil is compounded or mixed with
any other product or products, and the resulting compound or mixture is
suitable for use in the operation of any such motor vehicle engine, such
resulting compound or mixture in its entirety shall be a "motor fuel."].
A. 4011--B 46
6. "Filling station" shall include any place, location or station
where motor fuel [or], HIGHWAY Diesel motor fuel OR WATER-WHITE KEROSENE
(EXCLUSIVELY FOR HEATING PURPOSES IN CONTAINERS OF NO MORE THAN TWENTY
GALLONS), is offered for sale at retail.
14. "Diesel motor fuel" shall mean NO. 1 DIESEL FUEL, NO. 2 DIESEL
FUEL, BIODIESEL, kerosene, crude oil, fuel oil or other middle distil-
late and also motor fuel suitable for use in the operation of an engine
of the diesel type, excluding, however, any product specifically desig-
nated "No. 4 Diesel fuel" and not suitable as a fuel used in the opera-
tion of a motor vehicle engine.
22. "E85" means a [mixture consisting by volume of eighty-five
percent] FUEL BLEND CONSISTING OF ethanol and [the remainder of which
is] motor fuel, WHICH MEETS THE ASTM INTERNATIONAL ACTIVE STANDARD D5798
FOR FUEL ETHANOL.
23. "B20" means a mixture consisting by volume of twenty percent biod-
iesel and the remainder of which is diesel motor fuel. [For purposes of
this subdivision "biodiesel"] "BIODIESEL" shall mean EITHER "QUALIFIED
BIODIESEL" OR "UNQUALIFIED BIODIESEL." "QUALIFIED BIODIESEL" MEANS a
diesel motor fuel substitute produced from nonpetroleum renewable
resources that meets the registration requirements for fuels and fuel
additives established by the Environmental Protection Agency under
section 211 of the Clean Air Act (42 U.S.C. 7545) and that meets the
[American Society for Testing and Materials D6751-02a Standard Specifi-
cation for Biodiesel Fuel (B100) Blend Stock for Distillate Fuels] ASTM
INTERNATIONAL ACTIVE STANDARD D6751 FOR BIODIESEL FUEL. "UNQUALIFIED
BIODIESEL" MEANS A DIESEL MOTOR FUEL SUBSTITUTE PRODUCED FROM NONPETRO-
LEUM RENEWABLE RESOURCES THAT DOES NOT MEET THE ASTM INTERNATIONAL
ACTIVE STANDARD D6751 FOR BIODIESEL FUEL.
S 1-a. Subdivision 15 of section 282 of the tax law is REPEALED.
S 2. Subdivision 16 of section 282 of the tax law is REPEALED and two
new subdivisions 16 and 16-a are added to read as follows:
16. "NON-HIGHWAY DIESEL MOTOR FUEL" MEANS ANY DIESEL MOTOR FUEL THAT
IS DESIGNATED FOR USE OTHER THAN ON A PUBLIC HIGHWAY (EXCEPT FOR THE USE
OF THE PUBLIC HIGHWAY BY FARMERS TO REACH ADJACENT LANDS), AND IS DYED
DIESEL MOTOR FUEL AS DEFINED IN SUBDIVISION EIGHTEEN-A OF THIS SECTION.
16-A. "HIGHWAY DIESEL MOTOR FUEL" MEANS ANY DIESEL MOTOR FUEL WHICH IS
NOT NON-HIGHWAY DIESEL MOTOR FUEL.
S 3. Subdivision 18 of section 282 of the tax law, as added by chapter
302 of the laws of 2006, is renumbered subdivision 18-a and is amended
to read as follows:
18-a. "Dyed Diesel motor fuel" means Diesel motor fuel which [is
enhanced Diesel motor fuel and which] has been dyed in accordance with
and for the purpose of complying with the provisions of 26 USC S4082(a)
and the regulations thereunder, as may be amended from time to time.
S 4. Section 282 of the tax law is amended by adding a new subdivision
26 to read as follows:
26. "PUBLIC HIGHWAY" MEANS PUBLIC HIGHWAY AS DEFINED IN SUBDIVISION
SIX OF SECTION FIVE HUNDRED ONE OF THIS CHAPTER.
S 5. Subdivisions 2, 3, 4 and 5 of section 282-a of the tax law,
subdivision 2 and paragraph (b) of subdivision 3 as amended by chapter
245 of the laws of 1989, subdivisions 3, 4 and 5 as added by chapter 261
of the laws of 1988 and paragraph (c) of subdivision 3 as added by chap-
ter 302 of the laws of 2006, are amended to read as follows:
2. No person shall [engage] SELL OR USE DIESEL MOTOR FUEL within this
state [in the enhancement of Diesel motor fuel, make a sale or use of
Diesel motor fuel] (other than a retail sale not in bulk or self-use of
A. 4011--B 47
Diesel motor fuel which has been the subject of a retail sale), import
or cause the importation of Diesel motor fuel into the state or produce,
refine, manufacture or compound Diesel motor fuel within the state
unless such person shall be registered by the department [of taxation
and finance] as a distributor of Diesel motor fuel. Provided, the
commissioner [of taxation and finance] shall not register as a distribu-
tor of Diesel motor fuel any person who is engaged solely in one or both
of the following: (i) any person who makes or offers to make a retail
sale not in bulk of such fuel or (ii) any person who purchases Diesel
motor fuel in bulk in this state for the sole purpose of self-use. The
commissioner may, however, register as a distributor of kero-jet fuel
only a fixed base operator who makes no sales of kero-jet fuel other
than retail sales not in bulk delivered directly into the fuel tank of
an airplane for use in the operation of such airplane and who makes no
other sales of diesel motor fuel. Such registration shall apply only to
the wholesale purchase of kero-jet fuel and the retail sale of such fuel
not in bulk for delivery directly into the fuel tank of an airplane for
use in the operation thereof. Provided, further, that if the commission-
er is satisfied that full registration is not necessary in order to
protect tax revenues, the commissioner may limit or modify the require-
ment of registration as a distributor with respect to any person other-
wise required to register solely because such person engages in the sale
of NON-HIGHWAY Diesel motor fuel where such person makes sales of
NON-HIGHWAY Diesel motor fuel to the consumer solely for the purposes
described in subparagraph (i) of paragraph (b) of subdivision three of
this section, provided that if the commissioner so limits or modifies
such registration requirement with respect to such person, then such
registration shall apply only to the importation, sale and distribution
of SUCH NON-HIGHWAY Diesel motor fuel [for the purposes described in
such subparagraph (i)]. The commissioner [of taxation and finance] may
also waive any other requirement imposed by this article on such a
distributor. All the provisions of section two hundred eighty-three of
this article shall apply to applicants for registration and registrants
with respect to Diesel motor fuel, and, in addition, distributors with
respect to Diesel motor fuel shall be subject to all other provisions of
this article relating to distributors of motor fuel, including but not
limited to, the keeping of records, the fixing, determination and
payment of tax and filing of returns. PROVIDED, FURTHER, THE COMMISSION-
ER MAY LIMIT OR MODIFY THE REQUIREMENT OF REGISTRATION AS A DISTRIBUTOR
WITH RESPECT TO ANY PERSON WHO PRODUCES FOR SELF USE "UNQUALIFIED BIOD-
IESEL."
3. (a) The tax imposed by this section shall not apply to the sale of
untaxed Diesel motor fuel to or the use of such fuel by an organization
described in paragraph one or two of subdivision (a) of section eleven
hundred sixteen of this chapter where such Diesel motor fuel is used by
such organization for its own use or consumption.
(b) The tax on the [incident] INCIDENCE of sale or use imposed by
subdivision one of this section shall not apply to: (i) the sale [to] or
use [by the consumer of previously untaxed Diesel motor fuel which is
not enhanced Diesel motor fuel and which is used exclusively for heating
purposes or for the purpose of use or consumption directly and exclu-
sively in the production of tangible personal property, gas, electric-
ity, refrigeration or steam, for sale,] 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
A. 4011--B 48
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) [the sale of
previously untaxed Diesel motor fuel which is not enhanced Diesel motor
fuel 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 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;
or (iii) a sale or use of enhanced Diesel motor fuel to or by a consumer
exclusively for the purposes of heating specified in subparagraph (i) of
this paragraph but only if such enhanced Diesel motor fuel is delivered
into a storage tank which is not equipped with a hose or other apparatus
by which such fuel can be dispensed into the fuel tank of a motor vehi-
cle and such storage tank is attached to the heating unit burning such
fuel, provided that each delivery of such fuel of over four thousand
five hundred gallons shall be evidenced by a certificate signed by the
purchaser stating that the product will be used exclusively for heating
purposes; or (iv) a sale or use consisting of no more than four thousand
five hundred gallons of Diesel motor fuel in a thirty-day period to or
by a consumer who purchases or uses such fuel for use or consumption
directly and exclusively in the production for sale of tangible personal
property by farming but only if all of such fuel is delivered on the
farm site and is consumed other than on the highways of this state
(except for the use of the highway to reach adjacent farmlands)
provided, however, a farmer may purchase more than four thousand five
hundred gallons of Diesel motor fuel in a thirty-day period for such use
or consumption exempt from the tax in accordance with prior clearance
given by the commissioner of taxation and finance; or (v)] 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 [(vi)]
(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 [(vii)]
(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 [(viii)] (V) a
sale of kero-jet fuel by a registered distributor of Diesel motor fuel
to a fixed base operator 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 [(ix)] (VI) a retail sale not in bulk of kero-jet fuel
by a fixed base operator 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.
(c) [Limited exemptions for dyed Diesel motor fuel. (i) The tax
imposed by this section shall not apply to: (A) the sale of dyed Diesel
motor fuel by the importer to a purchaser under the circumstances and
subject to the terms and conditions as follows: (1) the importer and
purchaser are each registered under this article as a full Diesel motor
fuel distributor; (2) such importer has imported the enhanced Diesel
motor fuel, which is the subject of the sale, into the state and has
A. 4011--B 49
dyed such fuel to comply with the provisions of 26 USC S 4082(a) and the
regulations thereunder, as may be amended from time to time; (3) the
purchaser is a holder of a currently valid direct payment permit issued
pursuant to section two hundred eighty-three-d of this article; and (4)
such purchaser is primarily engaged in the retail heating oil business
and such dyed Diesel motor fuel will be sold by such purchaser in a
retail sale to a consumer for use solely as residential or commercial
heating oil; (B) a first sale of the dyed Diesel motor fuel, which as
the subject of an exempt sale described in clause (A) of this subpara-
graph, by the purchaser described therein to a purchaser likewise hold-
ing a currently valid direct pay permit under the circumstances and
subject to the terms and conditions as follows: (1) the sale of such
second purchaser by such first purchaser is the first and only sale of
such dyed Diesel motor fuel by such first purchaser; (2) such second
purchaser is primarily engaged in the retail heating oil business and
such dyed Diesel motor fuel will be sold by such second purchaser in a
retail sale to a consumer for use solely as residential or commercial
heating oil; (3) on the sale to the second purchaser, such first
purchaser described in such clause (A) attaches to the invoice a copy of
the invoice given by the importer on the exempt sale described in such
clause (A), so as to identify the origin of the dyed Diesel fuel which
is the subject of the sale to such second purchaser; and (4) such second
purchaser certifies that such dyed Diesel motor fuel is to be sold by it
only to a consumer for use solely as residential or commercial heating
oil. (ii) Prior to, or at the time of, such sale of such dyed Diesel
motor fuel described in clause (A) or (B) of subparagraph (i) of this
paragraph, the purchaser shall give a certificate to the seller setting
forth the intended use of the dyed Diesel motor fuel which is sought to
be qualified for exemption under this paragraph, that the purchaser has
been issued a direct payment permit which is currently valid, that such
permit has not been suspended or revoked and that the purchaser other-
wise meets the qualifications of this paragraph. (iii) The limited
exemptions allowed under this paragraph shall in no event apply to any
dyed Diesel motor fuel which is delivered into a repository equipped
with hose or other apparatus capable of being used to dispense fuel into
the fuel tank of a motor vehicle, or where the purchaser's direct
payment permit has been suspended or revoked and the commissioner has
made generally available the identity of those persons whose direct
payment permits have been suspended or revoked.] NOTHING IN THIS ARTICLE
SHALL EXEMPT NON-HIGHWAY DIESEL MOTOR FUEL FROM THE IMPOSITION OF THE
TAX UNDER THIS SECTION, IF SUCH NON-HIGHWAY DIESEL MOTOR FUEL IS
INTENDED FOR USE ON THE WATERWAYS OF THE STATE INCLUDING ANY OTHER
WATERWAYS BORDERING ON THE STATE, FOR OPERATING PLEASURE OR RECREATIONAL
MOTOR BOATS THEREON.
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 [enhanced]
NON-HIGHWAY Diesel motor fuel is made to a consumer [exclusively for the
purposes of heating specified in subparagraph (i) of paragraph (b) of
subdivision three of this section] but only if such [enhanced] NON-HIGH-
WAY Diesel motor fuel is NOT DELIVERED TO A FILLING STATION, NOR deliv-
ered into a storage tank which is [not] equipped with a hose or other
A. 4011--B 50
apparatus by which such fuel can be dispensed into the fuel tank of a
motor vehicle [and such storage tank is attached to the heating unit
burning such fuel, provided that each delivery of such fuel of over four
thousand five hundred gallons shall be evidenced by a certificate signed
by the purchaser stating that the product will be used exclusively for
heating purposes; (iii) a sale is made consisting of no more than four
thousand five hundred gallons (or a greater amount which has been given
prior clearance by the commissioner of taxation and finance) of Diesel
motor fuel in a thirty-day period to a consumer who purchases such fuel
for use or consumption directly and exclusively in the production for
sale of tangible personal property by farming but only if all of such
fuel is consumed other than on the highways or waterways of this state];
or [(iv)] (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 [(v)]
(IV) a sale of kero-jet fuel is made to an airline for use in its
airplanes.
5. All the provisions of this article relating to the administration
and collection of the taxes on motor fuel, except sections two hundred
eighty-three-a and two hundred eighty-three-b of this article, shall be
applicable to the tax imposed by this section with such limitation as
specifically provided for in this article with respect to Diesel motor
fuel and with such modification as may be necessary to adapt the
language of such provisions to the tax imposed by this section. With
respect to the bond or other security required by subdivision three of
section two hundred eighty-three of this article, the commissioner [of
taxation and finance], in determining the amount of bond or other secu-
rity required for the purpose of securing tax payments, shall take into
account the volume of [heating fuel] NON-HIGHWAY DIESEL MOTOR FUEL and
other Diesel motor fuel sold for exempt purposes by a distributor of
Diesel motor fuel during prior periods as a factor reducing potential
tax liability along with any other relevant factors in determining the
amount of security required. With respect to the bond required to be
filed prior to registration as a Diesel motor fuel distributor, no bond
shall be required of an applicant upon a finding of the applicant's
fiscal responsibility, as reflected by such factors as net worth,
current assets and liabilities, and tax reporting and payment history,
and the department shall not provide for a minimum bond of every appli-
cant.
S 6. Subdivision 7 of section 283 of the tax law, as amended by chap-
ter 261 of the laws of 1988, is amended to read as follows:
7. Temporary restraining order and permanent [injuction] INJUNCTION
against unlawful importation and forfeiture of unlawfully imported or
produced [automotive] MOTOR FUEL OR DIESEL MOTOR fuel. (a) Whenever
evidence is furnished by the commissioner [of taxation and finance] to
any justice of the supreme court, in court or at chambers, showing that
any person not registered as a distributor as required by this article
has imported [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL into this
state or caused [automotive] MOTOR FUEL OR DIESEL MOTOR fuel to be
imported into this state or has produced, refined, manufactured or
compounded [automotive fuel or has subjected diesel motor fuel to the
process of enhancement within this state] MOTOR FUEL OR DIESEL MOTOR
FUEL, such justice may make a temporary order without notice prohibiting
such person and his agents from selling, transferring or otherwise
disposing of any such fuel or any fuel and also prohibiting all other
A. 4011--B 51
persons in possession of or having control over the same from selling,
releasing, transferring or otherwise disposing of any [automotive fuel]
MOTOR FUEL OR DIESEL MOTOR FUEL imported, produced, refined, manufac-
tured, compounded, [enhanced,] sold or transferred by such person not so
registered pending a hearing for a preliminary injunction.
(b) Upon granting a temporary order, the court shall direct that a
hearing be held at the earliest possible time upon such notice and
service as the court shall direct and at the same time, if such action
has not yet been commenced, the commissioner [of taxation and finance]
shall commence an action in supreme court for a permanent injunction and
forfeiture of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL pursuant
to paragraph (c) of this subdivision. Where, after such opportunity for
a hearing, the court determines that there is a substantial probability
that the commissioner will prevail in such action, the court shall grant
a preliminary injunction restraining the sale, release, transfer or
other disposition of fuel subject to the temporary order.
(c) (1) If it is established by clear and convincing evidence that
[automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL was imported, caused
to be imported, produced, refined, manufactured or compounded [or diesel
motor fuel was subjected to the process of enhancement] by any person
not registered as a distributor as required by this article, the court
shall grant a judgment (i) permanently enjoining such person and his
agents from selling, transferring or otherwise disposing of any such
fuel or any fuel within this state and (ii) declaring the forfeiture of
any fuel that was so imported, caused to be imported, produced, refined,
manufactured, OR compounded [or enhanced] by such person.
(2) With respect to [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL
that was imported, caused to be imported, produced, refined, manufac-
tured or compounded, [or diesel motor fuel that was subjected to the
process of enhancement] by a person not registered as a distributor as
required by this article or that was unlawfully sold or transferred by
such person, if it is established by clear and convincing evidence that
any other person in possession of or having control over such fuel was
not a purchaser or transferee in good faith of such fuel with respect to
the fact that such fuel was so imported, caused to be imported,
produced, refined, manufactured, OR compounded [or enhanced] by a person
not registered as a distributor as required by this article or that such
fuel was so unlawfully sold or transferred by such person, the court
shall grant a judgment (i) permanently enjoining such other person and
his OR HER agents from selling, releasing, transferring or otherwise
disposing of any such fuel and (ii) declaring the forfeiture of such
fuel in the possession or under the control of such other person.
(d) The commissioner may, at any time subsequent to the granting of
the temporary order pursuant to paragraph (a) of this subdivision, in
his OR HER sole discretion consent to a sale of [automotive fuel] MOTOR
FUEL OR DIESEL MOTOR FUEL subject to such temporary order which is in
the possession or under the control of a person other than the person or
the agent of the person who imported, caused to be imported, produced,
refined, manufactured, compounded [or enhanced] or unlawfully sold or
transferred such fuel. As a condition of granting permission to a sale
of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL pursuant to this
subdivision, the commissioner shall require the payment of all taxes,
penalties and interest imposed by and pursuant to the authority of this
chapter with respect to such fuel.
(e) (1) At any time during the pendency of an action under this
section, the [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL subject
A. 4011--B 52
to a temporary, preliminary or permanent order hereunder may be released
from the scope of such order if there is given an undertaking, in an
amount equal to the market value of such fuel plus state excise and
sales taxes and federal excise taxes, to the effect that there will be
paid to the commissioner the amount of the market value of such fuel and
such taxes in the event that such fuel is adjudged forfeited.
(2) Any person enjoined by a temporary order or a preliminary injunc-
tion issued pursuant to this subdivision may move at any time, on
notice, to vacate or modify it.
(f) The procedures of the civil practice law and rules applicable to
temporary restraining orders, preliminary injunctions and permanent
injunctions not inconsistent with this subdivision shall apply to tempo-
rary orders, preliminary injunctions and permanent injunctions issued
under this subdivision and any provision of this subdivision which is
not in accord with the constitutional mandate of such procedures of the
civil practice law and rules shall be deemed to be modified as necessary
to accord with such a mandate. The procedural provisions set forth in
paragraph three of subdivision (d) and in subdivision (j) of section
eighteen hundred forty-eight of this chapter shall apply to the forfei-
ture proceedings under this subdivision and, in respect to a declaration
of forfeiture under this subdivision, the court shall direct the commis-
sioner to sell or otherwise dispose of such forfeited [automotive fuel]
MOTOR FUEL OR DIESEL MOTOR FUEL on such conditions the commissioner
deems most advantageous and just under the circumstances. The commis-
sioner shall not be required to file any undertaking in connection with
an action pursuant to this subdivision.
S 7. Sections 283-d and 284-b of the tax law are REPEALED.
S 8. Subdivision 3 of section 285-b of the tax law, as amended by
chapter 245 of the laws of 1989, is amended to read as follows:
3. (a) The claim for or exemption from tax provided for in subpara-
graphs (i), (II), (iii), (iv), [(v),] AND (vi)[, (vii) and (ix)] of
paragraph (b) of subdivision three of section two hundred eighty-two-a
of this article shall be established by means of an exempt transaction
certificate. If any such exemption is applicable, such certificate shall
be provided by the purchaser to the seller at the time of or prior to
delivery of the Diesel motor fuel. Such exempt transaction certificate
shall set forth the name and address of the purchaser and the basis of
the exemption and shall be signed by such purchaser and by the seller.
Such certificate shall be in such form and contain such other informa-
tion as the commissioner [of taxation and finance] shall require. Where
a proper and complete exempt transaction certificate has been furnished
and accepted by the seller in good faith, such certificate under such
circumstance shall relieve the seller of the burden of proving that the
Diesel motor fuel covered by such certificate is exempt from tax by
reason of subparagraph (i), (II), (iii), (iv), [(v),] OR (vi)[, (vii) or
(ix)] of paragraph (b) of subdivision three of such section two hundred
eighty-two-a. Any purchaser who furnishes to his seller a false or frau-
dulent exempt transaction certificate for the purpose of establishing an
exemption from the tax imposed by section two hundred eighty-two-a of
this article shall be jointly and severally liable for the tax imposed
by such section. In lieu of an exempt transaction certificate, the
commissioner [of taxation and finance] may provide for the establishment
of such exemption by means of a procedure or other document which he OR
SHE deems appropriate so as to secure the revenues from the excise tax
on Diesel motor fuel. Provided, further, in the case of the exemption
provided by subparagraph (i) of paragraph (b) of subdivision three of
A. 4011--B 53
section two hundred eighty-two-a of this article, the commissioner shall
provide for an alternative procedure or other document signed only by
the seller, such as a metered delivery ticket, for the establishment of
such exemption in those cases where such commissioner is satisfied that
the use of such alternative procedure or other document will not jeop-
ardize the revenues from the excise tax on Diesel motor fuel.
(b) A claim for the exemption from tax provided for in subparagraph
[(ii) or (viii)] (V) of paragraph (b) of subdivision three of section
two hundred eighty-two-a of this article shall be established by means
of an interdistributor sale certificate. If such exemption is applica-
ble, such certificate shall be provided by the purchaser to the seller
at the time of or prior to delivery of the Diesel motor fuel. Such
certificate shall set forth the name and address of the purchaser, the
purchaser's registration number, an affirmation by such purchaser that
the purchaser is registered as a distributor and that such registration
has not been suspended or cancelled and shall be signed by such purchas-
er and by the seller. Such certificate shall be in such form and contain
such other information as the commissioner [of taxation and finance]
shall require. Where a proper and complete interdistributor sale certif-
icate has been furnished and accepted by the seller in good faith, such
certificate under such circumstance shall relieve the seller of the
burden of proving that the Diesel motor fuel covered by such certificate
is exempt from tax by reason of subparagraph [(ii) or (viii)] (V) of
paragraph (b) of subdivision three of such section two hundred eighty-
two-a. For purposes of this paragraph, a seller shall not have accepted
such certificate in good faith if the purchaser's registration is inval-
id because it has been suspended or cancelled, or if the purchaser is
not registered, and the commissioner [of taxation and finance] has
furnished registered distributors with information identifying all those
persons then validly registered as distributors of Diesel motor fuel and
those persons whose registrations have been suspended or cancelled. Any
purchaser who furnishes to his seller a false or fraudulent interdis-
tributor sale certificate for the purpose of establishing an exemption
from the tax imposed by section two hundred eighty-two-a of this article
shall be jointly and severally liable for the tax imposed by such
section.
S 9. Subdivision 1 of section 286 of the tax law, as amended by chap-
ter 302 of the laws of 2006, is amended to read as follows:
1. Every person who imports or causes to be imported into this state,
or who produces, refines, manufactures or compounds within this state,
or who purchases or sells in this state motor fuel or diesel motor fuel
or ingredients which may be manufactured or compounded into motor fuel
or diesel motor fuel, [or engages in the enhancement of diesel motor
fuel,] shall keep a complete and accurate record of all purchases and
sales, uses or other dispositions thereof and a complete and accurate
record of the number of gallons of motor fuel or diesel motor fuel or
such ingredients so imported, produced, refined, manufactured[,] OR
compounded [or enhanced]. Every person who stores motor fuel or diesel
motor fuel shall keep a complete and accurate record of the identity of
the person for whom such fuel is stored, the quantity and type of fuel
so stored, the identity of the person to whom such fuel is released from
storage and the quantity and type of fuel so released. Such records
shall be in such form and contain such other information as the commis-
sioner shall prescribe. Said commissioner, by rule or regulation, also
may require the delivery of statements to purchasers with consignments
of motor fuel or diesel motor fuel or such ingredients, and prescribe
A. 4011--B 54
the matters to be contained therein. Such records and statements, unless
required by the commissioner to be preserved for a longer period, shall
be preserved for a period of three years and shall be offered for
inspection at any time upon oral or written demand by such commissioner
or the commissioner's duly authorized agents. The commissioner is hereby
further authorized to examine the equipment of any such person pertain-
ing to the storage, sale or delivery of such fuels, as well as the stock
of such fuels in the possession or control of such person. To verify the
amount of tax due under this article, each such person is hereby
directed and required to give to the commissioner or the commissioner's
duly authorized representatives, the means, facilities and opportunity
for such examinations as are herein provided for and required. Nothing
CONTAINED in this section [contained] shall be construed to require the
keeping for purposes of this article of a record of purchases or sales
of motor fuel or diesel motor fuel or such ingredients at retail in
small quantities (less than thirty gallons) or of motor fuel or diesel
motor fuel imported into this state in the tank of a motor vehicle which
supplies the fuel for its operation.
S 10. Section 286-a of the tax law, as amended by chapter 261 of the
laws of 1988, is amended to read as follows:
S 286-a. Records and reports of transportation of [automotive] MOTOR
FUEL AND DIESEL MOTOR fuel. Every person transporting [automotive] MOTOR
FUEL OR DIESEL MOTOR fuel within this state, whether such transportation
originates within or without this state, when required by the [tax
commission] COMMISSIONER, shall keep a true and accurate record of all
[automotive] MOTOR FUEL AND DIESEL MOTOR fuel so transported, including
ingredients which may be manufactured or compounded into [automotive]
MOTOR FUEL OR DIESEL MOTOR fuel, showing such facts with relation to
such [automotive] fuel and ingredients and their transportation as the
[tax commission] COMMISSIONER may require. Such record shall be open to
inspection by the representatives of the department [of taxation and
finance] at any time and the [tax commission] COMMISSIONER may require
from any such person sworn returns of all or any part of the information
shown by such records.
S 11. Section 286-b of the tax law, as amended by chapter 261 of the
laws of 1988, is amended to read as follows:
S 286-b. Transportation of [automotive] MOTOR FUEL OR DIESEL MOTOR
fuel; manifest required. 1. The master or other person in charge of any
barge, tanker or other vessel in which [automotive] MOTOR FUEL OR DIESEL
MOTOR fuel is being transported over any of the navigable waters of this
state, the operator of a motor vehicle in which [automotive] MOTOR FUEL
OR DIESEL MOTOR fuel is being transported in this state, or the operator
of a pipeline through which [automotive] MOTOR FUEL OR DIESEL MOTOR fuel
is being transported in this state, other than [automotive] MOTOR FUEL
OR DIESEL MOTOR fuel being transported for use in operating the engine
which propels such vessel or motor vehicle, as the case may be, must
have in his OR HER possession a manifest which shows the name and
address of the person from whom such [automotive] fuel was received by
him OR HER and the place of receipt of such fuel and the name and
address of every person to whom he OR SHE is to make delivery of the
same and the place of delivery, together with the number of gallons to
be delivered to each such person, and, if such [automotive] fuel is
being imported into the state in such vessel, motor vehicle or pipeline
for use, storage, distribution or sale in the state, the name of the
distributor importing or causing such fuel to be imported into the state
and such other information as the [tax commission] COMMISSIONER may
A. 4011--B 55
require pursuant to rule or regulation, and shall at the request of a
peace officer, acting pursuant to his OR HER special duties, a police
officer, any representative of the department [of taxation and finance]
or any other person authorized by law to inquire into or investigate the
transportation of such [automotive] fuel, produce such manifest for
inspection. The person causing the operation of such vessel, motor vehi-
cle or pipeline shall be responsible to cause the operator of such
vessel, motor vehicle or pipeline to keep in his OR HER possession on
such vessel, in such motor vehicle or in the main control building of
such pipeline in this state the manifest required by this section. The
absence of the manifest required by this section shall give rise to a
presumption that the [automotive] MOTOR FUEL OR DIESEL MOTOR fuel being
transported is intended for sale, use, distribution or storage in this
state and is being imported or caused to be imported by other than a
registered distributor. Moreover, the absence of (1) the place of deliv-
ery of motor fuel OR DIESEL MOTOR FUEL on the manifest with respect to
[automotive] MOTOR FUEL OR DIESEL MOTOR fuel being imported into the
state shall give rise to a presumption that such fuel is being imported
into the state for use, distribution, storage or sale in the state and
(2) the name of a registered distributor on the manifest with respect to
[automotive] MOTOR FUEL OR DIESEL MOTOR fuel being imported into the
state for use, distribution, storage or sale in the state shall give
rise to a presumption that such fuel is being so imported or caused to
be imported by other than a registered distributor. Every barge, tanker
or other vessel so used for the transportation of motor fuel must be
plainly and visibly marked on both sides thereof and above the water
line with the word "Gasoline," or other name of the motor fuel being
transported, in letters at least eight inches high and of corresponding
appropriate width, or must be identified as prescribed by the [tax
commission] COMMISSIONER pursuant to rule or regulation. The master or
person in charge of such barge, tanker or other vessel, as well as the
owners thereof, shall be guilty of a violation of this section if such
barge, tanker or other vessel is not so marked.
2. The commissioner may, by regulation provide for the form and
content of the manifest required for [automotive] MOTOR AND DIESEL MOTOR
fuel and for the filing of monthly information returns by every person
required to maintain records, described in subdivision one of this
section, which shall in all material respects reflect the information
required to be contained in such records. Such returns shall be in such
form and contain such other information as the commissioner shall
require.
S 12. Subdivision 1 of section 287 of the tax law, as amended by chap-
ter 261 of the laws of 1988, is amended to read as follows:
1. Every distributor shall, on or before the twentieth day of each
month, file with the department [of taxation and finance] a return, on
forms to be prescribed by the commissioner and furnished by such depart-
ment, stating the number of gallons of motor fuel imported, manufactured
or sold by such distributor in the state during the preceding calendar
month and in the case of Diesel motor fuel, the number of gallons of
[enhanced] Diesel motor fuel imported[, the number of gallons enhanced]
and the number of gallons which have been sold or used. Provided, howev-
er, the commissioner may, if he OR SHE deems it necessary in order to
[insure] ENSURE the payment of the taxes imposed by this article,
require returns to be made at such times and covering such periods as he
OR SHE may deem necessary, and, by regulation, may permit the filing of
returns by distributors of Diesel motor fuel on a quarterly, semi-annual
A. 4011--B 56
or annual basis, or may waive the filing of returns by a distributor of
Diesel motor fuel for such time and upon such terms as he OR SHE may
deem proper if satisfied that no tax imposed by this article with
respect to Diesel motor fuel is or will be payable by him OR HER during
the time for which returns are waived. Such returns shall contain such
further information as the commissioner shall require. The fact that a
distributor's name is signed to a filed return shall be prima facie
evidence for all purposes that the return was actually signed by such
distributor. Each such distributor shall, with respect to motor fuel,
pay to the department with the filing of such return, the taxes imposed
by this article on each gallon of motor fuel imported, manufactured or
sold by such distributor in the state, and so reported, during the peri-
od covered by such return. Each distributor shall, with respect to
Diesel motor fuel, pay to the department with the filing of the return
the taxes imposed by this article on the number of gallons of Diesel
motor fuel sold or used or delivered to a filling station or delivered
into the fuel tank of a motor vehicle during the period covered by the
return. Provided, however, that where a distributor has purchased [auto-
motive] MOTOR FUEL OR DIESEL MOTOR fuel upon which the taxes imposed by
this article have been paid or paid over and in each instance the tax is
included in the price, a credit shall be allowed for the amount of such
taxes upon the subsequent sale of such fuel to the extent that such
taxes are so paid and included in the price.
S 13. Paragraphs (a) and (c) of subdivision 3 of section 289-c of the
tax law, paragraph (a) as amended by chapter 558 of the laws of 1965 and
paragraph (c) as amended by chapter 302 of the laws of 2006, are amended
to read as follows:
(a) Except as otherwise provided in paragraph (b) of this section, any
person who shall buy any motor fuel or diesel motor fuel, on which the
tax imposed by this article shall have been paid, and shall consume the
same in any manner except in the operation of a motor vehicle upon or
over the PUBLIC highways of this state, or in the operation of a pleas-
ure or recreational motor boat upon or over the waterways of the state
including waterways bordering on the state, shall be reimbursed the
amount of such tax in the manner and subject to the conditions herein
provided except that there shall be no reimbursement of tax paid on
motor fuel or diesel motor fuel taken out of this state in a fuel tank
connected with the engine of a motor vehicle and consumed outside of
this state.
(c) All claims for reimbursement shall be in such form and contain
such information as the commissioner shall prescribe and shall be filed
within three years from (i) the date of the purchase, in the case of the
purchaser; or (ii) the date of the sale, in the case of the seller, of
the motor fuel so subject to reimbursement. Every such claim shall
include a certificate by or on behalf of the party presenting the same
to the effect that it is just, true and correct, that no part thereof
has been paid, except as stated therein, and that the balance therein
stated is actually due and owing. The claimant shall satisfy the depart-
ment that the claimant has borne the tax and that the motor fuel has
been consumed by the claimant in a manner other than the operation of a
motor vehicle upon or over the PUBLIC highways of this state, the opera-
tion of a pleasure or recreational motorboat upon or over the waterways
of the state including waterways bordering on the state or, in the case
of an omnibus carrier, taxicab licensee, nonpublic school operator or
volunteer ambulance service, that the claimant has borne the tax and
that the amount claimed is the amount of such tax reimbursable under
A. 4011--B 57
paragraph (b), (d), (e) or (f) of THIS subdivision [three of this
section]. The department may require such further information or proof
as it shall deem necessary for the administration of such claim. Claims
for reimbursement approved by the department shall be paid from revenues
collected under this article and deposited to the credit of the comp-
troller as hereinafter provided; but no such claims shall be paid unless
the department is satisfied that the amount of the tax for which the
reimbursement is claimed has actually been collected by the state. The
amount of any erroneous or excessive payment to a claimant for
reimbursement may be determined by the department and may be recovered
from such claimant in the same manner as a tax imposed by this article,
provided, however, that any such determination shall be made within
three years after the date of such erroneous or excessive payment.
S 14. Subdivision 4 of sections 289-c of the tax law is REPEALED.
S 15. Subdivision 1 of section 289-e of the tax law, as amended by
section 5 of part EE of chapter 63 of the laws of 2000, is amended to
read as follows:
1. All taxes, interest, penalties and fees collected or received by
the commissioner under the taxes imposed by this article, except as
provided otherwise in subdivision two and subdivision three of this
section and sections two hundred eighty-two-b, two hundred eighty-two-c,
two hundred eighty-four-a and two hundred eighty-four-c, other than
[those imposed by section two hundred eighty-four-b and] the fee imposed
by section two hundred eighty-four-d and penalties and interest on such
fee, shall be deposited and disposed of pursuant to the provisions of
section one hundred seventy-one-a of this chapter; provided that an
amount equal to thirty-seven and one-half per centum of the moneys
collected under section two hundred eighty-four of this chapter shall be
appropriated and used for the acquisition of property necessary for the
construction and reconstruction of highways and bridges or culverts on
the state highway system, and for the construction, maintenance and
repair of such highways and bridges or culverts, all under the direction
of the commissioner of transportation.
S 16. Section 289-f of the tax law, as added by chapter 44 of the laws
of 1985, is amended to read as follows:
S 289-f. Joint administration of taxes. In addition to the powers
granted to the [tax commission] COMMISSIONER in this chapter, the
[commission] COMMISSIONER is hereby authorized to make provisions pursu-
ant to rules and regulations for the joint administration, in whole or
in part, of the state and local taxes imposed by article twenty-eight
and authorized to be imposed by article twenty-nine of this chapter upon
the sale of [automotive] MOTOR FUEL OR DIESEL MOTOR fuel and the taxes
imposed and authorized to be imposed by this article, including the
joint reporting, assessment, collection, determination and refund of
such taxes, and for that purpose to prescribe that any of the [commis-
sion's] COMMISSIONER'S functions under such articles, and any returns,
forms, statements, documents or information to be submitted to the
[commission] COMMISSIONER 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 arti-
cles, 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.
S 17. Paragraph 2 of subdivision (b) and subdivisions (c), (k), (l)
and (m) of section 300 of the tax law, paragraph 2 of subdivision (b) as
amended by chapter 170 of the laws of 1994, subdivision (c) as added by
A. 4011--B 58
chapter 190 of the laws of 1990, subdivision (k) as amended by section 1
of part H of chapter 407 of the laws of 1999 and subdivisions (l) and
(m) as added by chapter 309 of the laws of 1996, are amended to read as
follows:
(2) With respect to diesel motor fuel, every corporation and unincor-
porated business (i) importing diesel motor fuel or causing diesel motor
fuel to be imported into the state for use, distribution, storage or
sale in the state, (ii) producing, refining, manufacturing or compound-
ing diesel motor fuel within the state, (iii) [engaging in the enhance-
ment of diesel motor fuel within the state, (iv)] making a sale or use
of diesel motor fuel in the state, other than a retail sale not in bulk
or self-use of diesel motor fuel which has been the subject of a retail
sale to such corporation or unincorporated business, or [(v)] (IV)
registered by the department [of taxation and finance] as a "distributor
of kero-jet fuel only" pursuant to the provisions of subdivision two of
section two hundred eighty-two-a of this chapter. Diesel motor fuel
brought into this state in the ordinary fuel tank connecting with the
engine of a motor vehicle, airplane or other conveyance, but not a
vessel (other than a recreational motor boat or a commercial fishing
vessel as defined in subdivision (j) of this section if the diesel motor
fuel imported into and consumed in this state is used to operate such
vessel while it is engaged in the harvesting of fish for sale),
propelled by the use of such diesel motor fuel and to be used only in
the operation thereof, shall not be deemed imported within the meaning
of this article, if not removed from such tank except as used in the
propulsion of such engine.
(c) [(1)] The [term (A)] TERMS (1) "diesel motor fuel" means such term
as defined in subdivision fourteen of section two hundred eighty-two of
this chapter [and regulations thereunder including any regulations
relating to product specifically designated "No. 4 diesel fuel" and not
suitable as a fuel used in the operation of a motor vehicle engine], and
[(B) "enhanced] (2) "HIGHWAY diesel motor fuel" means such term as
defined in subdivision [sixteen] SIXTEEN-A of section two hundred eight-
y-two of this chapter, and
[(C)(i) "nonautomotive type diesel motor fuel" as used in relation to
the rates of the tax imposed by section three hundred one-a of this
article means any diesel motor fuel, as described in subparagraph (A) of
this paragraph, which would be excluded from the diesel motor fuel
excise tax imposed by section two hundred eighty-two-a of this chapter
solely by reason of the enumerated exclusions based on ultimate use of
the product set forth in paragraph (b) of subdivision three of such
section, and (ii) "automotive-type diesel motor fuel" as used in
relation to the rates of tax imposed by such section three hundred one-a
means diesel motor fuel which is not nonautomotive-type diesel motor
fuel.]
(3) "NON-HIGHWAY DIESEL MOTOR FUEL" MEANS SUCH TERM AS DEFINED IN
SUBDIVISION SIXTEEN OF SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER.
[(2)] (4) As used in this article, references to persons or petroleum
businesses registered under article twelve-A of this chapter as distrib-
utors of diesel motor fuel shall include all such persons or petroleum
businesses registered under such article as distributors of diesel motor
fuel and persons or petroleum businesses operating under valid limited
registrations relating to persons or petroleum businesses making retail
sales of diesel motor fuel to consumers solely for the purposes
described in subparagraph (i) of paragraph (b) of subdivision three of
section two hundred eighty-two-a of this chapter, but such references
A. 4011--B 59
shall not include persons and petroleum businesses registered as
"distributors of kero-jet fuel only" pursuant to the provisions of
subdivision two of section two hundred eighty-two-a of this chapter.
(k) "Commercial gallonage" means gallonage (1) which is [nonautomo-
tive-type] NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel
motor fuel)] or residual petroleum product, (2) which is included in the
full measure of the [nonautomotive-type] NON-HIGHWAY diesel motor fuel
component or the residual petroleum product component of the tax imposed
under section three hundred one-a of this article, [and] (3) which does
not (and will not) qualify (A) for the utility credit or reimbursement
provided for in section three hundred one-d of this article, (B) as
"manufacturing gallonage", as such term is defined in subdivision (m) of
this section, (C) for the not-for-profit organization exemption provided
for in subdivision (h) of section three hundred one-b of this article,
or (D) for the heating exemption provided for in paragraph two of subdi-
vision (d) of section three hundred one-b of this article or the heating
reimbursement provided for in paragraph two of subdivision (a) of
section three hundred one-c of this article, AND (4) WHICH WILL NOT BE
USED NOR HAS BEEN USED IN THE FUEL TANK CONNECTING WITH THE ENGINE OF A
VESSEL. No gallonage shall qualify as "commercial gallonage" where such
gallonage is eligible for the (i) utility credit or reimbursement under
such section three hundred one-d of this article, (ii) [if before Janu-
ary first, nineteen hundred ninety-eight, the manufacturing exemption or
reimbursement under paragraph one of subdivision (b) of section three
hundred one-j of this article and, if on or after January first, nine-
teen hundred ninety-eight, the] "manufacturing exemption" under para-
graph [four] THREE of subdivision (f) of section three hundred one-a of
this article, (iii) [the] not-for-profit organization exemption under
subdivision (h) of section three hundred one-b of this article, or (iv)
heating exemption provided for in paragraph two of subdivision (d) of
section three hundred one-b of this article or the heating reimbursement
provided for in paragraph two of subdivision (a) of section three
hundred one-c of this article. The commissioner shall require such docu-
mentary proof to substantiate the classification of product as "commer-
cial gallonage" as the commissioner deems appropriate.
(l) "Railroad diesel" means NON-HIGHWAY diesel motor fuel for use and
consumption directly and exclusively in the operation of a locomotive or
a self-propelled vehicle run only on rails or tracks, but only if either
(1) all such fuel is delivered into a storage facility which is not
equipped with a hose or other apparatus by which such fuel can be
dispensed into the fuel tank of a motor vehicle and such facility is
used only to fuel such locomotives or such self-propelled vehicles, or
(2) in accordance with the terms of sale, all such fuel is delivered
directly into the tank of a locomotive or self-propelled vehicle.
Provided, however, that a sale to a purchaser who will use such
NON-HIGHWAY diesel motor fuel as "railroad diesel" shall be evidenced by
a certificate signed by the purchaser stating that such diesel motor
fuel will be used and consumed as prescribed in this subdivision and the
commissioner may require such other information as the commissioner
deems appropriate.
(m) "Manufacturing gallonage" means residual petroleum product or
NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor
fuel)] used and consumed directly and exclusively in the production of
tangible personal property for sale by manufacturing, processing or
assembly, but only if (I) all of such fuel or product is delivered on
the manufacturing site [and is consumed other than on the highways of
A. 4011--B 60
this state], OR (II) THE PURCHASER CAUSES SUCH FUEL OR PRODUCT TO BE
DELIVERED TO ITS MANUFACTURING SITE. "Manufacturing gallonage" shall in
no event [include diesel motor fuel] BE CONSUMED ON THE PUBLIC HIGHWAYS
OF THIS STATE OR delivered 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. The commissioner
shall require such documentary proof to substantiate the classification
of product as "manufacturing gallonage" as the commissioner deems appro-
priate.
S 18. Section 301 of the tax law is REPEALED.
S 19. Subdivision (a), paragraph 1 of subdivision (b) and subdivisions
(c), (e), (f) and (h) of section 301-a of the tax law, subdivision (a)
as amended by section 1 of part U of chapter 63 of the laws of 2000,
paragraph 1 of subdivision (b) and paragraph 1 of subdivision (c) as
amended by section 154 of part A of chapter 389 of the laws of 1997,
subdivisions (c), (e), (f) and (h) as added by chapter 190 of the laws
of 1990, paragraph 3 of subdivision (e) and paragraph 3 of subdivision
(f) as amended by chapter 170 of the laws of 1994 and paragraph 4 of
subdivision (e) and paragraph 4 of subdivision (f) as added by chapter
309 of the laws of 1996, are amended to read as follows:
(a) General. Notwithstanding any other provision of this chapter, or
of any other law, [for taxable months commencing on or after the first
day of September, nineteen hundred ninety,] there is hereby imposed upon
every petroleum business for the privilege of engaging in business,
doing business, employing capital, owning or leasing property, or main-
taining an office in this state, a monthly tax for each or any part of a
taxable month equal to the sum of the motor fuel component determined
pursuant to subdivision (b) of this section, the [automotive-type] HIGH-
WAY diesel motor fuel component determined pursuant to paragraph one of
subdivision (c) of this section, the [nonautomotive-type] NON-HIGHWAY
diesel motor fuel component determined pursuant to paragraph two of
subdivision (c) of this section and the residual petroleum product
component determined pursuant to subdivision (d) of this section.
(1) The motor fuel component shall be determined by multiplying the
motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate times
the number of gallons of (1) motor fuel imported or caused to be
imported into this state by the petroleum business for use, distrib-
ution, storage or sale in the state or (2) produced, refined, manufac-
tured or compounded in the state by the petroleum business during the
month covered by the return under this article. Provided, however, that
no motor fuel shall be included in the measure of the tax unless it
shall have previously come to rest within the meaning of federal deci-
sional law interpreting the United States constitution, nor shall any
motor fuel be included in the measure of the tax imposed by this article
more than once.
(c) (1) [Automotive-type] HIGHWAY Diesel motor fuel component. (A) The
[automotive-type] HIGHWAY diesel motor fuel component shall be deter-
mined by multiplying the motor fuel and [automotive-type] HIGHWAY diesel
motor fuel rate times (1) the number of gallons of [automotive-type]
HIGHWAY diesel motor fuel sold or used by a petroleum business in this
state during the month covered by the return under this article and (2)
with respect to any gallonage which prior thereto has not been included
in the measure of the tax imposed by this article, times the number of
gallons of HIGHWAY diesel motor fuel delivered (i) to a filling station
or (ii) into the fuel tank connecting with the engine of a motor vehicle
for use in the operation thereof, whichever of the latter two events
A. 4011--B 61
shall be the first to occur. Provided, however, that no HIGHWAY diesel
motor fuel shall be included in the measure of the tax unless it shall
have previously come to rest within the meaning of federal decisional
law interpreting the United States constitution, nor decisional law, nor
shall any HIGHWAY diesel motor fuel be included in the measure of the
tax imposed by this article more than once.
(B) [Diesel] HIGHWAY DIESEL motor fuel brought into this state in the
fuel tank connecting with the engine of a vessel propelled by the use of
such diesel motor fuel shall be deemed to constitute a taxable use of
diesel motor fuel for the purpose of this paragraph to the extent of the
fuel that is consumed in the operation of the vessel in this state.
Provided, however, this paragraph shall not apply to (i) a recreational
motor boat or (ii) [subsequent to August thirty-first, nineteen hundred
ninety-four,] a commercial fishing vessel (as defined in subdivision (j)
of section three hundred of this article) if the HIGHWAY diesel motor
fuel imported into and consumed in this state is used to operate such
commercial fishing vessel while it is engaged in the harvesting of fish
for sale. Provided, further, that tax liability for gallonage that a
vessel consumes in this state shall be the tax liability with respect to
the positive difference between the gallonage consumed in this state
during the reporting period and the gallonage purchased in this state
(upon which the tax imposed by this section has been paid) during such
period. A credit or refund shall be available for any excess of tax
liability for gallonage purchased in this state during the period over
tax liability on gallonage so consumed in this state during such period,
which excess shall be presumed to have been used outside this state.
(2) [Nonautomotive-type] NON-HIGHWAY diesel motor fuel component. The
[nonautomotive-type] NON-HIGHWAY diesel fuel component shall be deter-
mined by multiplying the [nonautomotive-type] NON-HIGHWAY diesel motor
fuel rate times the number of gallons of [nonautomotive-type] NON-HIGH-
WAY diesel motor fuel sold or used by a petroleum business in this state
during the month covered by the return under this section. Provided,
however, that no NON-HIGHWAY diesel motor fuel shall be included in the
measure of the tax unless it shall have previously come to rest within
the meaning of federal decisional law interpreting the United States
constitution, nor shall any [nonautomotive-type] NON-HIGHWAY diesel
motor fuel be included in the measure of the tax imposed by this article
more than once.
(e) Motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate.
(1) The basic motor fuel and HIGHWAY diesel [automotive-type] motor fuel
rate shall be [five and one-half] TEN AND TWO-TENTHS cents per gallon.
(2) [Commencing April first, nineteen hundred ninety-one, the motor
fuel and automotive-type diesel motor fuel rate shall be the product of
the basic rate set forth in paragraph one of this subdivision multiplied
by a fraction, the numerator of which is the sum of the monthly producer
price index (unadjusted) published by the bureau of labor statistics of
the United States department of labor for the category of commodities
designated "refined petroleum products" for the twelve consecutive
months ending with the month of November, nineteen hundred ninety, and
the denominator of which is the sum of the monthly producer price index
(unadjusted) published by the bureau of labor statistics of the United
States department of labor for the category of commodities designated
"refined petroleum products" for the twelve consecutive months ending
with the month of November, nineteen hundred eighty-nine.
(3) Commencing on the first day of January, nineteen hundred ninety-
two, the motor fuel and automotive-type diesel motor fuel rate then in
A. 4011--B 62
effect on the immediately preceding December thirty-first shall be
adjusted as follows: such rate shall be multiplied by a fraction the
numerator of which is the sum of the monthly producer price index (unad-
justed) published by the bureau of labor statistics of the United States
department of labor for the category of commodities designated "refined
petroleum products" for the twelve consecutive months ending with the
month of August, nineteen hundred ninety-one and the denominator of
which is the sum of the monthly producer price index (unadjusted)
published by the bureau of labor statistics of the United States depart-
ment of labor for the category of commodities designated "refined petro-
leum products" for the twelve consecutive months ending with the month
of August, nineteen hundred ninety. Commencing on the first day of Janu-
ary of nineteen hundred ninety-six and every] EVERY year [thereafter] AS
OF JANUARY FIRST, the motor fuel and [automotive-type] HIGHWAY diesel
motor fuel rate then in effect on the immediately preceding December
thirty-first shall be adjusted as follows: such rate shall be multiplied
by a fraction the numerator of which is the sum of the monthly producer
price index (unadjusted) published by the bureau of labor statistics of
the United States department of labor for the category of commodities
designated "refined petroleum products" for the twelve consecutive
months ending with the month of August of the immediately preceding year
and the denominator of which is the sum of the monthly producer price
index (unadjusted) published by the bureau of labor statistics of the
United States department of labor for the category of commodities desig-
nated "refined petroleum products" for the twelve consecutive months
ending with the month of August in the year prior to such immediately
preceding year, provided, however, that the adjusted rate [to take
effect on January first, nineteen hundred ninety-six and each January
first thereafter] shall not increase above or decrease below the rate in
effect on the immediately preceding December thirty-first by more than
five percent.
[(4)] (3) Notwithstanding any other provision of this article,
[commencing January first, nineteen hundred ninety-seven,] the per
gallon rate with respect to "railroad diesel" shall be the adjusted
motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate under
paragraphs one [through three] AND TWO of this subdivision [for the
period commencing such January first, nineteen hundred ninety-seven,]
minus one and three tenths cents per gallon. [Commencing on the first
day of January each year thereafter, the per gallon rate with respect to
"railroad diesel" shall be determined by taking the then motor fuel and
automotive-type diesel motor fuel rate under paragraphs one through
three of this subdivision which commences on such first day of January
and subtracting one and three tenths cents per gallon.]
(f) [Nonautomotive-type] NON-HIGHWAY diesel motor fuel rate.
(1) The basic [nonautomotive-type] NON-HIGHWAY diesel motor fuel rate
shall be [five] NINE AND THREE-TENTHS cents per gallon.
(2) [Commencing April first, nineteen hundred ninety-one, the nonauto-
motive-type diesel motor fuel rate shall be the product of the basic
rate set forth in paragraph one of this subdivision multiplied by a
fraction the numerator of which is the sum of the monthly producer price
index (unadjusted) published by the bureau of labor statistics of the
United States department of labor for the category of commodities desig-
nated "refined petroleum products" for the twelve consecutive months
ending with the month of November, nineteen hundred ninety, and the
denominator of which is the sum of the monthly producer price index
(unadjusted) published by the bureau of the labor statistics of the
A. 4011--B 63
United States department of labor for the category of commodities desig-
nated "refined petroleum products" for the twelve consecutive months
ending with the month of November, nineteen hundred eighty-nine.
(3) Commencing on the first day of January, nineteen hundred ninety-
two, the nonautomotive-type diesel motor fuel rate then in effect on the
immediately preceding December thirty-first shall be adjusted as
follows: Such rate shall be multiplied by a fraction the numerator of
which is the sum of the monthly producer price index (unadjusted)
published by the bureau of labor statistics of the United States depart-
ment of labor for the category of commodities designated "refined petro-
leum products" for the twelve consecutive months ending with the month
of August, nineteen hundred ninety-one and the denominator of which is
the sum of the monthly producer price index (unadjusted) published by
the bureau of labor statistics of the United States department of labor
for the category of commodities designated "refined petroleum products"
for the twelve consecutive months ending with the month of August, nine-
teen hundred ninety. Commencing on the first day of January of nineteen
hundred ninety-six and every] EVERY year [thereafter,] AS OF JANUARY
FIRST the [nonautomotive-type] NON-HIGHWAY diesel motor fuel rate then
in effect on the immediately preceding December thirty-first shall be
adjusted as follows: Such rate shall be multiplied by a fraction the
numerator of which is the sum of the monthly producer price index (unad-
justed) published by the bureau of labor statistics of the United States
department of labor for the category of commodities designated "refined
petroleum products" for the twelve consecutive months ending with the
month of August of the immediately preceding year and the denominator of
which is the sum of the monthly producer price index (unadjusted)
published by the bureau of labor statistics of the United States depart-
ment of labor for the category of commodities designated "refined petro-
leum products" for the twelve consecutive months ending with the month
of August in the year prior to such immediately preceding year,
provided, however, that the adjusted rate [to take effect on January
first, nineteen hundred ninety-six and each January first thereafter]
shall not increase above or decrease below the rate in effect on the
immediately preceding December thirty-first by more than five percent.
[(4)] (3) Notwithstanding any other provision of this article,
[commencing January first, nineteen hundred ninety-eight, nonautomo-
tive-type] NON-HIGHWAY diesel motor fuel which is "manufacturing gallo-
nage," as such term is defined in subdivision (m) of section three
hundred of this article, shall be exempt from the measure of the [nonau-
tomotive-type] NON-HIGHWAY diesel motor fuel component of the tax
imposed under this section.
(h) Publication and rounding of rate. (1) The commissioner [of taxa-
tion and finance] shall cause to be published in the section for miscel-
laneous notices in the state register, and give other appropriate gener-
al notice of, the rate adjustment calculation and the resulting motor
fuel and [automotive-type] HIGHWAY diesel motor fuel rate, [nonautomo-
tive-type] NON-HIGHWAY diesel motor fuel rate and residual petroleum
product rate fixed by this section for the period commencing on [April
first, nineteen hundred ninety-one, no later than the immediately
preceding first day of March] JANUARY FIRST, TWO THOUSAND TWELVE, and
for each calendar year thereafter, no later than the immediately preced-
ing first day of December. The calculation and publication of the rates
of tax so fixed by provisions of this section shall not be included
within paragraph (a) of subdivision two of section one hundred two of
A. 4011--B 64
the state administrative procedure act relating to the definition of a
rule.
(2) The rates determined pursuant to this section shall be rounded to
the nearest one-tenth of one cent.
S 19-a. Subdivision (k) of section 301-a of the tax law is REPEALED.
S 20. Section 301-a of the tax law is amended by adding a new subdivi-
sion (m) to read as follows:
(M) SPECIAL RATE ADJUSTMENT FOR CERTAIN VESSELS. NOTWITHSTANDING ANY
PROVISION OF THIS SECTION TO THE CONTRARY, THE USE OF NON-HIGHWAY DIESEL
MOTOR FUEL IN THE ENGINE OF A VESSEL TO PROPEL SUCH VESSEL SHALL BE
SUBJECT TO TAX AT THE MOTOR FUEL AND HIGHWAY DIESEL MOTOR FUEL RATE
PROVIDED FOR IN THIS SECTION, AND SHALL BE SUBJECT TO THE PROVISIONS OF
SECTION THREE HUNDRED ONE-J OF THIS ARTICLE, INCLUDING THE ADJUSTMENT
SET FORTH IN PARAGRAPH FOUR OF SUBDIVISION (A) OF SUCH SECTION THREE
HUNDRED ONE-J. A CREDIT OR REFUND SHALL BE AVAILABLE TO THE EXTENT TAX
PAID ON GALLONAGE USED TO PROPEL ANY SUCH VESSEL EXCEEDS THE AMOUNT OF
TAX DUE BASED ON THE TAX RATE SET FORTH HEREIN. PROVIDED, HOWEVER, THAT
THE COMMISSIONER SHALL REQUIRE SUCH DOCUMENTARY PROOF TO QUALIFY FOR ANY
CREDIT OR REIMBURSEMENT PROVIDED HEREUNDER AS THE COMMISSIONER DEEMS
APPROPRIATE.
S 21. Paragraph 2 of subdivision (b), paragraphs 2 and 3 of subdivi-
sion (c), subdivisions (d) and (e), paragraph 1 of subdivision (f) and
subdivisions (g), (h) and (i) of section 301-b of the tax law, paragraph
2 of subdivision (b) and paragraphs 2 and 3 of subdivision (c) and
subdivision (e) as added by chapter 190 of the laws of 1990, the opening
paragraph of paragraph 2 of subdivision (b) as amended by section 155 of
part A of chapter 389 of the laws of 1997, subdivision (d) as amended by
section 2 of part H of chapter 407 of the laws of 1999 and subparagraph
(C) of paragraph 2 of subdivision (d) as amended by section 1 of part X
of chapter 63 of the laws of 2000, paragraph 1 of subdivision (f) as
added by chapter 166 of the laws of 1991, subdivision (g) as added by
chapter 170 of the laws of 1994, subdivision (h) as amended by chapter
302 of the laws of 2006 and subdivision (i) as added by chapter 468 of
the laws of 2000, are amended to read as follows:
(2) [Enhanced] HIGHWAY diesel motor fuel imported or caused to be
imported into this state or produced, refined, manufactured or
compounded in this state by a petroleum business registered under arti-
cle twelve-A of this chapter, as a distributor of diesel motor fuel,
which is sold by such petroleum business to a purchaser who then exports
such HIGHWAY diesel motor fuel from this state for sale or use outside
the state where
(A) such purchaser exporting such fuel is duly registered with or
licensed by the taxing authorities of the state to which such fuel is
exported as a distributor or a dealer in the product being so exported,
(B) in connection with the exportation, such fuel was immediately
shipped to an identified facility in the state to which such fuel is
exported, and
(C) the rules and regulations of the commissioner [of taxation and
finance] relating to evidentiary requirements are complied with.
(2) [Enhanced] HIGHWAY diesel motor fuel imported or caused to be
imported into this state or produced, refined, manufactured or
compounded by a petroleum business registered under article twelve-A of
this chapter, as a distributor of diesel motor fuel, and then sold by
such petroleum business to an organization described in paragraph one or
two of subdivision (a) of section eleven hundred sixteen of this chapter
A. 4011--B 65
where such HIGHWAY DIESEL motor fuel is used by such organization for
its own use or consumption.
(3) NON-HIGHWAY Diesel motor fuel[, which is not enhanced diesel motor
fuel,] sold by a petroleum business registered under article twelve-A of
this chapter as a distributor of diesel motor fuel to an organization
described in paragraph one or two of subdivision (a) of section eleven
hundred sixteen of this chapter where such NON-HIGHWAY diesel motor fuel
is used by such organization for its own use or consumption.
(d) Sales to consumers for heating purposes. (1) Total residential
heating exemption. [(A) Unenhanced] NON-HIGHWAY diesel motor fuel sold
by a petroleum business registered under article twelve-A of this chap-
ter as a distributor of diesel motor fuel or residual petroleum product
sold by a petroleum business registered under this article as a residual
petroleum product business to the consumer exclusively for residential
heating purposes[.
(B) Enhanced diesel motor fuel sold by a petroleum business registered
under article twelve-A of this chapter as a distributor of diesel motor
fuel to the consumer exclusively for residential heating purposes but]
only if such [enhanced] NON-HIGHWAY diesel motor fuel is delivered into
a storage tank which is not equipped with a hose or other apparatus by
which such fuel can be dispensed into the fuel tank of a motor vehicle
and such storage tank is attached to the heating unit burning such
fuel[, provided, that with respect to each delivery of such fuel over
four thousand five hundred gallons, to obtain this exemption there shall
be required a certificate signed by the purchaser stating that the prod-
uct will be used exclusively for residential heating purposes].
(2) Partial non-residential heating exemption. (A) [Unenhanced]
NON-HIGHWAY diesel motor fuel sold by a petroleum business registered
under article twelve-A of this chapter as a distributor of diesel motor
fuel or residual petroleum product sold by a petroleum business regis-
tered under this article as a residual petroleum product business to the
consumer exclusively for heating, other than residential heating
purposes[.
(B) Enhanced diesel motor fuel sold by a petroleum business registered
under article twelve-A of this chapter as a distributor of diesel motor
fuel to the consumer exclusively for heating, other than residential
heating purposes, but] only if such [enhanced] NON-HIGHWAY diesel motor
fuel is delivered into a storage tank which is not equipped with a hose
or other apparatus by which such fuel can be dispensed into the fuel
tank of a motor vehicle and such storage tank is attached to the heating
unit burning such fuel[, provided, that with respect to each delivery of
such fuel over four thousand five hundred gallons, to obtain this
exemption there shall be required a certificate signed by the purchaser
stating that the product will be used exclusively for heating, other
than residential heating purposes.
(C)] (B) Calculation of partial exemption. [Notwithstanding any other
provision of this article, commencing April first, two thousand one and
ending August thirty-first, two thousand two, the amount of the partial
exemption under this paragraph shall be determined by multiplying the
quantity of diesel motor fuel and residual petroleum product eligible
for the exemption times the sum of the then current rate of the supple-
mental tax imposed by section three hundred one-j of this article and
twenty percent of the then current rate of the tax imposed by section
three hundred one-a of this article, with respect to the specific diesel
motor fuel or residual petroleum product rate, as the case may be, and
commencing September first, two thousand two, the amount of the] THE
A. 4011--B 66
partial exemption under this paragraph shall be determined by multiply-
ing the quantity of NON-HIGHWAY diesel motor fuel and residual petroleum
product eligible for the exemption times the sum of the then current
rate of the supplemental tax imposed by section three hundred one-j of
this article and forty-six percent of the then current rate of the tax
imposed by section three hundred one-a of this article, with respect to
the specific NON-HIGHWAY diesel motor fuel or residual petroleum product
rate, as the case may be.
(e) Sales of NON-HIGHWAY diesel motor fuel and residual petroleum
product to registered distributors of diesel motor fuel and registered
residual petroleum product businesses.
(1) NON-HIGHWAY Diesel motor fuel[, which is not enhanced diesel motor
fuel,] sold by a person registered under article twelve-A of this chap-
ter as a distributor of diesel motor fuel to a person registered under
such article twelve-A as a distributor of diesel motor fuel where such
sale is not a retail sale or a sale that involves a delivery at a fill-
ing station or into a repository equipped with a hose or other apparatus
by which such NON-HIGHWAY DIESEL MOTOR fuel can be dispensed into the
fuel tank of a motor vehicle.
(2) Residual petroleum product sold by a person registered under this
article as a residual petroleum product business to a person registered
under this article as a residual petroleum product business where such
sale is not a retail sale. Provided, however, that the commissioner [of
taxation and finance] may require such documentary proof to qualify for
any exemption provided in this section as the commissioner deems appro-
priate, including the expansion of any certifications required pursuant
to section two hundred eighty-five-a or two hundred eighty-five-b of
this chapter to cover the taxes imposed by this article.
(1) Residual petroleum product and NON-HIGHWAY diesel motor fuel
[(which is not enhanced diesel motor fuel)] sold to an electric corpo-
ration, as described in subdivision (a) of section three hundred one-d
of this article, which is registered with the department [of taxation
and finance] as a petroleum business tax direct pay permittee, and used
by such electric corporation to fuel generators for the purpose of manu-
facturing or producing electricity where such electric corporation
provides a copy of a direct pay permit authorized and issued by the
commissioner [of taxation and finance], to the petroleum business making
such sale. If so registered, such corporation shall be a taxpayer under
this article and (i) such electric corporation shall file a return
monthly and pay the applicable tax under this article, after the appli-
cation of allowable credits, on all such purchases directly to the
commissioner, (ii) such electric corporation shall be subject to all of
the provisions of this article relating to the responsibilities and
liabilities of taxpayers under this article with respect to such resi-
dual petroleum product and NON-HIGHWAY diesel motor fuel.
(g) Sales or uses of NON-HIGHWAY diesel motor fuel and residual petro-
leum product for farm production. NON-HIGHWAY Diesel motor fuel or resi-
dual petroleum product sold to or used by a consumer who purchases or
uses such NON-HIGHWAY DIESEL MOTOR fuel or product for use or consump-
tion directly and exclusively in the production for sale of tangible
personal property by farming, but only if all such NON-HIGHWAY DIESEL
MOTOR fuel or product is delivered on the farm site and is consumed
other than on the PUBLIC highways of this state (except for the use of
the PUBLIC highway to reach adjacent farmlands)[; provided, however,
that a farmer may purchase no more than four thousand five hundred
gallons of diesel motor fuel in a thirty-day period for such use or
A. 4011--B 67
consumption exempt from the measure of the tax imposed by section three
hundred one-a of this article, except in accordance with prior clearance
given by the commissioner].
(h) Exemption for certain not-for-profit organizations. There shall be
exempt from the measure of the petroleum business tax imposed by section
three hundred one-a of this article a sale or use of residual petroleum
product, OR NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel
motor fuel) or dyed diesel motor fuel,] to or by an organization which
has qualified under paragraph four or five of subdivision (a) of section
eleven hundred sixteen of this chapter where such NON-HIGHWAY diesel
motor fuel or residual petroleum product is exclusively for use and
consumption by such organization, but only if all of such NON-HIGHWAY
diesel motor fuel or product is consumed other than on the PUBLIC high-
ways of this state. Provided, however, this exemption shall in no event
apply to a sale of NON-HIGHWAY diesel motor fuel 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 NON-HIGHWAY DIESEL MOTOR fuel can
be dispensed into the fuel tank of a motor vehicle and all deliveries
hereunder shall be made to the premises occupied by the qualifying
organization and used by such organization in furtherance of the exempt
purposes of such organization. Provided, however, that the commissioner
shall require such documentary proof to qualify for any exemption
provided herein as the commissioner deems appropriate. Provided,
further, the distributor selling such NON-HIGHWAY DIESEL MOTOR fuel and
product shall separately report on its return the gallonage sold during
the reporting period exempt from tax under the provisions of this subdi-
vision and provide such other information with respect to such sales as
the commissioner deems appropriate to prevent evasion. [The term "dyed
diesel motor fuel" as used in this subdivision shall have the same mean-
ing it has in subdivision eighteen of section two hundred eighty-two of
this chapter.]
(i) Exemption for passenger commuter ferries. A use by a passenger
commuter ferry of NON-HIGHWAY diesel motor fuel or residual petroleum
product where such NON-HIGHWAY diesel motor fuel or residual petroleum
product was used and consumed by a passenger commuter ferry exclusively
in providing mass transportation service. Provided, that the commission-
er shall require such documentary proof to qualify for any exemption
provided hereunder as the commissioner deems appropriate.
S 22. Subdivision (j) of section 301-b of the tax law is REPEALED.
S 23. Subdivisions (a), (e), (f), (h), (i), (j), (k), (l) and (m) of
section 301-c of the tax law, subdivision (a) as amended by section 4
and subdivision (l) as added by section 5 of part H of chapter 407 of
the laws of 1999, subparagraph (B) of paragraph 2 of subdivision (a) as
amended by section 2 of part X of chapter 63 of the laws of 2000, subdi-
visions (e) and (f) as added by chapter 170 of the laws of 1994, subdi-
vision (h) as amended by chapter 302 of the laws of 2006, subdivisions
(i), (j) and (k) as added by chapter 309 of the laws of 1996, and subdi-
vision (m) as added by chapter 468 of the laws of 2000, are amended to
read as follows:
(a) NON-HIGHWAY Diesel motor fuel used for heating purposes. (1) Total
residential heating reimbursement. NON-HIGHWAY Diesel motor fuel
purchased in this state and sold by such purchaser to a consumer for use
exclusively for residential heating purposes but only where (i) such
NON-HIGHWAY diesel motor fuel is delivered into a storage tank which is
not equipped with a hose or other apparatus by which such NON-HIGHWAY
DIESEL MOTOR fuel can be dispensed into the fuel tank of a motor vehicle
A. 4011--B 68
and such storage tank is attached to the heating unit burning such NON-
HIGHWAY DIESEL MOTOR fuel, (ii) the tax imposed pursuant to this article
has been paid with respect to such NON-HIGHWAY diesel motor fuel and the
entire amount of such tax has been absorbed by such purchaser, and (iii)
such purchaser possesses documentary proof satisfactory to the commis-
sioner evidencing the absorption by it of the entire amount of the tax
imposed pursuant to this article. Provided, however, that the commis-
sioner is authorized, in the event that the commissioner determines that
it would not threaten the integrity of the administration and enforce-
ment of the tax imposed by this article, to provide a reimbursement with
respect to a retail sale to a consumer for residential heating purposes
of less than ten gallons of NON-HIGHWAY diesel motor fuel provided such
fuel is not dispensed into the tank of a motor vehicle. [Provided,
further, that with respect to each delivery of enhanced diesel motor
fuel of over four thousand five hundred gallons, to obtain this
reimbursement there shall be required a certificate signed by the
consumer stating that the product will be used exclusively for residen-
tial heating purposes.]
(2) Partial non-residential heating reimbursement. (A) NON-HIGHWAY
Diesel motor fuel purchased in this state and sold by such purchaser to
a consumer for use exclusively for heating, other than for residential
heating purposes, but only where (i) such NON-HIGHWAY diesel motor fuel
is delivered into a storage tank which is not equipped with a hose or
other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can be
dispensed into the fuel tank of a motor vehicle and such storage tank is
attached to the heating unit burning such NON-HIGHWAY DIESEL MOTOR fuel,
(ii) the tax imposed pursuant to this article has been paid with respect
to such NON-HIGHWAY diesel motor fuel and the entire amount of such tax
has been absorbed by such purchaser, and (iii) such purchaser possesses
documentary proof satisfactory to the commissioner evidencing the
absorption by it of the entire amount of the tax imposed pursuant to
this article. [Provided, however, that with respect to each delivery of
enhanced diesel motor fuel of over four thousand five hundred gallons,
to obtain this reimbursement there shall be required a certificate
signed by the consumer stating that the product will be used exclusively
for heating, other than for residential heating purposes.]
(B) Calculation of partial reimbursement. Notwithstanding any other
provision of this article, [commencing April first, two thousand one and
ending August thirty-first, two thousand two, the amount of the
reimbursement under this paragraph shall be determined by multiplying
the quantity of diesel motor fuel eligible for the reimbursement times
the sum of the then current rate of the supplemental tax imposed by
section three hundred one-j of this article and twenty percent of the
then current rate of the tax imposed by section three hundred one-a of
this article, with respect to the specific diesel motor fuel rate, as
the case may be, and commencing September first, two thousand two,] the
amount of the reimbursement under this paragraph shall be determined by
multiplying the quantity of NON-HIGHWAY diesel motor fuel eligible for
the reimbursement times the sum of the then current rate of the supple-
mental tax imposed by section three hundred one-j of this article and
forty-six percent of the then current rate of the tax imposed by section
three hundred one-a of this article, with respect to the [specific]
NON-HIGHWAY diesel motor fuel rate, as the case may be.
(e) NON-HIGHWAY Diesel motor fuel and residual petroleum product used
for farm production. NON-HIGHWAY Diesel motor fuel or residual petroleum
product purchased in this state and sold by such purchaser to a consumer
A. 4011--B 69
for use or consumption directly and exclusively in the production for
sale of tangible personal property by farming, but only if all of such
NON-HIGHWAY DIESEL MOTOR fuel or product is delivered on the farm site
and is consumed other than on the PUBLIC highways of this state (except
for the use of the PUBLIC highway to reach adjacent farmlands)[;
provided, however, that a subsequent purchaser shall be eligible for
this reimbursement with respect to no more than four thousand five
hundred gallons of diesel motor fuel sold to a consumer in a thirty-day
period for such use or consumption, except in accordance with prior
clearance given by the commissioner]. This reimbursement may be claimed
only where (i) the tax imposed pursuant to this article has been paid
with respect to such NON-HIGHWAY diesel motor fuel or residual petroleum
product and the entire amount of such tax has been absorbed by such
purchaser, and (ii) such purchaser possesses documentary proof satisfac-
tory to the commissioner evidencing the absorption by it of the entire
amount of the tax imposed pursuant to this article. Provided, however,
that the commissioner shall require such documentary proof to qualify
for any reimbursement of tax provided by this section as the commission-
er deems appropriate[, including any certification required pursuant to
section two hundred eighty-five-b of this chapter and any such prior
clearance described in the first sentence of this subdivision].
(f) Motor fuel used for farm production. No more than one thousand
five hundred gallons of motor fuel purchased in this state in a thirty-
day period or a greater amount which has been given prior clearance by
the commissioner, by a consumer for use or consumption directly and
exclusively in the production for sale of tangible personal property by
farming, but only if all of such fuel is delivered on the farm site and
is consumed other than on the PUBLIC highways of this state (except for
the use of the PUBLIC highway to reach adjacent farmlands). This
reimbursement to such purchaser who used such motor fuel in the manner
specified in this subdivision may be claimed only where, (i) the tax
imposed pursuant to this article has been paid with respect to such
motor fuel and the entire amount of such tax has been absorbed by such
purchaser, and (ii) such purchaser possesses documentary proof satisfac-
tory to the commissioner evidencing the absorption by it of the entire
amount of the tax imposed pursuant to this article. Provided, however,
that the commissioner shall require such documentary proof to qualify
for any reimbursement of tax provided by this subdivision as the commis-
sioner deems appropriate. The commissioner is hereby empowered to make
such provisions as deemed necessary to define the procedures for grant-
ing prior clearance for purchases of more than one thousand five hundred
gallons in a thirty-day period.
(h) A subsequent purchaser which is registered as a distributor of
diesel motor fuel shall be eligible for reimbursement of the tax imposed
by section three hundred one-a of this article with respect to gallonage
of residual petroleum product[,] AND NON-HIGHWAY diesel motor fuel
[(which is not enhanced diesel motor fuel) and dyed diesel motor fuel,]
subsequently sold by such purchaser to an organization which has quali-
fied under paragraph four or five of subdivision (a) of section eleven
hundred sixteen of this chapter for the exclusive use and consumption by
such organization. Provided, however, this exemption shall in no event
apply to a sale of NON-HIGHWAY diesel motor fuel 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 NON-HIGHWAY DIESEL MOTOR fuel can
be dispensed into the fuel tank of a motor vehicle and all deliveries
hereunder shall be made to the premises occupied by the qualifying
A. 4011--B 70
organization and used by such organization in furtherance of the exempt
purposes of such organization. This reimbursement may be claimed only
where (i) the tax imposed pursuant to this article has been paid with
respect to such NON-HIGHWAY diesel motor fuel or residual petroleum
product and the entire amount of such tax has been absorbed by such
purchaser, and (ii) such purchaser possesses documentary proof satisfac-
tory to the commissioner evidencing the absorption by it of the entire
amount of the tax imposed pursuant to this article. Provided, further,
that the commissioner shall require such other documentary proof to
qualify for any reimbursement of tax provided by this section as the
commissioner deems appropriate. [The term "dyed diesel motor fuel" as
used in this subdivision shall have the same meaning it has in subdivi-
sion eighteen of section two hundred eighty-two of this chapter.]
(i) Reimbursement for commercial gallonage. (1) [Commencing March
first, nineteen hundred ninety-seven, a] A reimbursement shall be
allowed to a consumer with respect to gallonage of [nonautomotive-type]
NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor
fuel)] or residual petroleum product (i) which was purchased by such
consumer and where the supplemental tax imposed by section three hundred
one-j of this article with respect to such gallonage was paid by a
petroleum business and passed through to such consumer, (ii) such
consumer absorbed the entirety of such tax in the purchase price of such
gallonage, and (iii) such gallonage was used and consumed by such
consumer exclusively as "commercial gallonage". Provided, however, that
the commissioner shall require such documentary proof to qualify for any
reimbursement of tax provided by this subdivision as the commissioner
deems appropriate, including a certification by the consumer that the
product was used and consumed exclusively as "commercial gallonage" by
such consumer.
(2) Calculation. The amount of the reimbursement shall be determined
by multiplying the quantity of "commercial gallonage" eligible for
reimbursement times the then current rate of the supplemental tax
imposed by section three hundred one-j of this article with respect to
[nonautomotive-type] NON-HIGHWAY diesel motor fuel or residual petroleum
product, as the case may be. Any reimbursement of tax may be applied for
not more often than monthly.
(j) Reimbursement for manufacturing gallonage. [Commencing January
first, nineteen hundred ninety-eight, a] A subsequent purchaser shall be
eligible for reimbursement of any taxes imposed under this article with
respect to gallonage of residual petroleum product and NON-HIGHWAY
diesel motor fuel [(which is not enhanced diesel motor fuel),] subse-
quently sold by such purchaser to a consumer as "manufacturing gallo-
nage." This reimbursement may be claimed only where (1) any tax imposed
pursuant to this article has been paid with respect to such gallonage
and the entire amount of such tax has been absorbed by such purchaser,
and (2) such purchaser possesses documentary proof satisfactory to the
commissioner evidencing the absorption by it of the entire amount of
such tax. Provided, however, that the commissioner shall require such
documentary proof to qualify for any reimbursement of tax provided by
this subdivision as the commissioner deems appropriate including a
certificate by the consumer that such product is to be used and consumed
exclusively as "manufacturing gallonage".
(k) Reimbursement for railroad gallonage. (1) [Commencing January
first, nineteen hundred ninety-seven, a] A subsequent purchaser, which
is registered as a distributor of diesel motor fuel, shall be eligible
for a reimbursement in accordance with this subdivision with respect to
A. 4011--B 71
NON-HIGHWAY diesel motor fuel subsequently sold by such purchaser to a
consumer as "railroad diesel".
(2) The amount of the reimbursement with respect to such product shall
be equal to the difference between (i) the tax actually paid under this
article by a petroleum business with respect to such product and subse-
quently passed through to and absorbed by such purchaser, and (ii) the
tax under this article that would have been paid with respect to such
product had an importing distributor sold such product directly to a
purchaser as "railroad diesel". Provided that the commissioner shall
require such documentary proof as the commissioner deems necessary to
substantiate a reimbursement claim under this subdivision. Any
reimbursement of tax may be applied for not more often than monthly.
(l) Reimbursement for mining and extraction. A purchaser shall be
eligible for reimbursement of the tax imposed by section three hundred
one-a of this article with respect to gallonage of residual petroleum
product and NON-HIGHWAY diesel motor fuel, purchased for use and
consumption directly and exclusively in the production of tangible
personal property for sale by mining or extracting, but only if all of
such fuel or product is delivered at the mining or extracting site and
is consumed other than on the PUBLIC highways of this state; provided,
however, this reimbursement shall in no event apply to a sale of
NON-HIGHWAY diesel motor fuel which involves a delivery at a filling
station. This reimbursement may be claimed only where (i) the tax
imposed pursuant to this article has been paid with respect to such
NON-HIGHWAY diesel motor fuel or residual petroleum product and the
entire amount of such tax has been absorbed by such purchaser, and (ii)
such purchaser possesses documentary proof satisfactory to the commis-
sioner evidencing the absorption by it of the entire amount of the tax
imposed pursuant to this article. Provided, however, that the commis-
sioner shall require such documentary proof to qualify for any
reimbursement of tax provided by this section as the commissioner deems
appropriate.
(m) Reimbursement for passenger commuter ferries. A use by a passenger
commuter ferry of NON-HIGHWAY diesel motor fuel or residual petroleum
product where such NON-HIGHWAY diesel motor fuel or residual petroleum
product was used and consumed by a passenger commuter ferry exclusively
in providing mass transportation service. This reimbursement may be
claimed only where (1) any tax imposed pursuant to this article has been
paid with respect to such gallonage and the entire amount of such tax
has been absorbed by such purchaser, and (2) such ferry possesses docu-
mentary proof satisfactory to the commissioner evidencing the absorption
by it of the entire amount of such tax. Provided, that the commissioner
shall require such documentary proof to qualify for any reimbursement
provided hereunder as the commissioner deems appropriate.
S 24. Paragraphs 1 and 2 of subdivision (a) of section 301-d of the
tax law, as amended by chapter 410 of the laws of 1991, are amended to
read as follows:
(1) Credit. Residual petroleum product and NON-HIGHWAY diesel motor
fuel [(which is not enhanced diesel motor fuel)] (i) imported into this
state by such electric corporation which is a petroleum business where
the tax liability under section three hundred one-a of this article is
imposed on such electric corporation and where the residual petroleum or
NON-HIGHWAY diesel product so imported is used by such electric corpo-
ration to fuel generators for the purpose of manufacturing or producing
electricity or (ii) purchased in this state by such electric corporation
by the use of a valid direct payment permit whereby such electric corpo-
A. 4011--B 72
ration assumed full liability for tax with respect to such product where
such product so purchased is used by such electric corporation to fuel
generators for the purpose of manufacturing or producing electricity.
(2) Reimbursement. Residual petroleum product and NON-HIGHWAY diesel
motor fuel [(which is not enhanced diesel motor fuel)] purchased in this
state by such electric corporation where the tax imposed by section
three hundred one-a of this article with respect to such residual petro-
leum or diesel product was paid and the utility absorbed such tax in the
purchase price of such fuel and where such product is used by such elec-
tric corporation to fuel generators for the purpose of manufacturing or
producing electricity.
S 25. Subdivision (c) of section 301-e of the tax law, as amended by
chapter 2 of the laws of 1995, is amended to read as follows:
(c) Kero-jet fuel component. The kero-jet fuel component shall be
determined by multiplying the kero-jet fuel rate times the number of
gallons of (1) kero-jet fuel imported or caused to be imported into this
state by an aviation fuel business and consumed in this state by such
business in the operation of its aircraft; and (2) kero-jet fuel, which
has not been previously included in the measure of the tax imposed by
this section, (i) which is sold in this state by an aviation fuel busi-
ness to persons other than those registered under this article as
aviation fuel businesses or (ii) which is consumed in this state by an
aviation fuel business in the operation of its aircraft. Provided that
importation of kero-jet fuel in the fuel tanks of aircraft shall be
importation for the purposes of this section. The basic kero-jet fuel
rate shall be [one and nine-tenths] SIX AND EIGHT-TENTHS cents per
gallon. The rate shall be adjusted at the same time as the rates of the
components of the petroleum business tax imposed by section three
hundred one-a of this article, and the method of making adjustments to
the kero-jet fuel rate shall be the same as the method used for such
rates. [Provided, however, that commencing July first, nineteen hundred
ninety-one, the kero-jet fuel rate shall be equal to the motor fuel and
automotive-type diesel motor fuel rate set by subdivision (e) of section
three hundred one-a of this article as such rate may be adjusted as
provided in such subdivision. Provided, further, that commencing Septem-
ber first, nineteen hundred ninety-five, the kero-jet fuel rate shall be
five and two-tenths cents per gallon. The rate shall be adjusted at the
same time as the rates of the components of the petroleum business tax
imposed by section three hundred one-a of this article, and the method
of making adjustments to the kero-jet fuel rate shall be the same as the
method used for such rates.]
S 26. Sections 301-f and 301-g of the tax law are REPEALED.
S 27. Paragraph 2 of subdivision (a) of section 301-h of the tax law,
as amended by chapter 170 of the laws of 1994, is amended to read as
follows:
(2) The rate of the tax imposed by this section shall be equal to the
motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate set by
subdivision (e) of section three hundred one-a plus the rate of the
supplemental tax imposed by section three hundred one-j of this article
as such rates are specified therein and as they may be adjusted as
provided in such provisions. [In addition, the tax surcharge imposed by
section three hundred-one-g of this article shall be imposed with
respect to the tax imposed by this section as if the tax imposed here-
under were imposed by section three hundred-one-a of this article.]
S 28. Section 301-i of the tax law is REPEALED.
A. 4011--B 73
S 29. Paragraphs 1, 2, 3 and 4 of subdivision (a) and subdivision (c)
of section 301-j of the tax law, paragraph 1 of subdivision (a) as
amended and paragraphs 2, 3 and 4 of subdivision (a) as added by chapter
309 of the laws of 1996 and subdivision (c) as amended by chapter 410 of
the laws of 1991, are amended to read as follows:
(1) In addition to the taxes imposed by sections three hundred one-a
and three hundred one-e of this article, [for taxable months commencing
on or after July first, nineteen hundred ninety-one] there is hereby
imposed upon every petroleum business subject to tax imposed under
section three hundred one-a of this article and every aviation fuel
business subject to the aviation gasoline component of the tax imposed
under section three hundred one-e of this article, a supplemental month-
ly tax for each or any part of a taxable month at a rate of [four and
one-half] SIX AND EIGHT-TENTHS cents per gallon with respect to the
products included in each component of the taxes imposed by such
[sections] SECTION three hundred one-a and the aviation gasoline compo-
nent of the tax imposed by such section three hundred one-e of this
article.
(2) Provided, however, [commencing March first, nineteen hundred nine-
ty-seven,] "commercial gallonage," as such term is defined in subdivi-
sion (k) of section three hundred of this article, shall be exempt from
the measure of the tax imposed under this section.
(3) Provided, further, [commencing January first, nineteen hundred
ninety-seven,] "railroad diesel," as such term is defined in subdivision
(l) of section three hundred of this article, shall be exempt from the
measure of the tax imposed under this section.
(4) Provided, further, [commencing January first, nineteen hundred
ninety-eight,] a separate per gallon rate shall apply with respect to
[automotive-type] HIGHWAY diesel motor fuel. Such rate shall be deter-
mined by taking the adjusted rate per gallon of tax imposed under para-
graph one of this subdivision as adjusted in accordance with paragraph
five of this subdivision [which commences on such date] and subtracting
therefrom [three-quarters of one cent. On January first, nineteen
hundred ninety-nine, the automotive-type diesel motor fuel rate shall be
determined by taking the adjusted rate per gallon of tax imposed under
paragraph one of this subdivision, as adjusted in accordance with para-
graph five of this subdivision which commences on such date and
subtracting therefrom three-quarters of one cent. On April first, nine-
teen hundred ninety-nine, there shall be a new rate applicable to such
fuel which shall be such adjusted rate of tax per gallon under such
paragraph one of this subdivision, as adjusted in accordance with para-
graph five of this subdivision then in effect, minus] one and three-
quarters cents. Commencing January first, two thousand TWELVE, and each
January thereafter, the per gallon rate applicable to [automotive-type]
HIGHWAY diesel motor fuel shall be the adjusted rate under paragraph one
of this subdivision as adjusted in accordance with paragraph five of
this subdivision which commences on such date minus one and three-quar-
ters cents. The resulting rate under this paragraph shall be expressed
in hundredths of a cent.
(c) Rate adjustment [and surcharge]. [Commencing January first, nine-
teen hundred ninety-two and on the first day of January every year ther-
eafter, the] THE rate of the supplemental tax shall be adjusted at the
same time as the rates of the components of the taxes imposed by
sections three hundred one-a and three hundred one-e of this article,
and the method of making adjustments to the rate of the supplemental tax
shall be the same as the method used for such rates.
A. 4011--B 74
S 30. The opening paragraph and subdivisions (a) and (c) of section
301-1 of the tax law, as added by chapter 170 of the laws of 1994, are
amended to read as follows:
There shall be allowed to a registered petroleum business or aviation
fuel business a refund under this section for the taxes [and tax
surcharge] imposed by sections three hundred one-a, three hundred one-e,
[three hundred one-g] and three hundred one-j of this article for the
tax paid under such sections with respect to gallonage which is repres-
ented by a worthless debt as follows:
(a) The refund shall be allowed to a registered petroleum business or
aviation fuel business for gallonage with respect to which tax liability
for the taxes under this article is imposed on such petroleum business
or aviation fuel business where (i) such gallonage has been included in
the reports filed by such petroleum business or aviation fuel business
and all the taxes under this article with respect to such gallonage have
been paid by such business, (ii) such gallonage was sold in-bulk by such
petroleum or aviation fuel business to a purchaser for such purchaser's
own use and consumption and (iii) such sale gave rise to a debt which
became worthless, as that term is used for federal income tax purposes,
and where such debt is deducted as a worthless debt for federal income
tax purposes for the taxable year covering the month in which such
refund claim relating to such debt is filed. Provided, however, for the
purposes of this section, a sale of motor fuel and [enhanced] HIGHWAY
diesel motor fuel to a filling station shall be deemed to be a sale
in-bulk for such filling station's own use and consumption and,
provided, further, in no event shall a worthless debt qualify with
respect to the refund hereunder where such debt arises from a retail
sale at a filling station or sale wherein product is delivered directly
into the fuel tank of a motor vehicle, airplane or other conveyance.
(c) Upon receipt of a claim for refund in processible form, interest
shall be allowed and paid at the overpayment rate set by the commission-
er pursuant to subdivision twenty-sixth of section one hundred seventy-
one of this chapter from the date of the receipt of the refund claim to
the date immediately preceding the date of the refund check except no
such interest shall be allowed or paid if the refund check is mailed
within ninety days of such receipt and except no interest shall be
allowed or paid if the amount thereof would be less than one dollar.
Provided, further, the refund shall be granted pro rata against sections
three hundred one-a, three hundred one-e, [three hundred one-g] and
three hundred one-j of this article, as the case may be, to the same
extent as represented by the remittance of the petroleum business or
aviation fuel business with respect to the gallonage represented by the
worthless debt.
S 31. Subdivision (b) of section 302 of the tax law, as added by chap-
ter 190 of the laws of 1990, is amended to read as follows:
(b) Residual petroleum product business. The department [of taxation
and finance], upon the application of a corporation or unincorporated
business, shall register such corporation or unincorporated business as
a residual petroleum product business except that the commissioner [of
taxation and finance] may refuse to register an applicant for any of the
grounds specified in subdivision two or five of section two hundred
eighty-three of this chapter or in subdivision (d) of this section. The
application shall be in such form and contain such information as the
commissioner shall prescribe. All of the provisions of subdivisions two,
four, five, six, seven, eight, nine and ten of section two hundred
eighty-three of this chapter relating to registration of distributors
A. 4011--B 75
shall be applicable to the registration of residual petroleum product
businesses under this section with the same force and effect as if the
language of those subdivisions had been incorporated in full in this
section and had expressly referred to the registration of residual
petroleum product businesses and the tax imposed by this article, with
such modification as may be necessary in order to adapt the language of
such provisions to the provisions of this article, provided, specif-
ically, that the term "distributor" shall be read as "residual petroleum
product business" and the [terms] TERM "motor fuel" [and "automotive
fuel"] shall be read as "residual petroleum product". Provided, however,
that if the commissioner is satisfied that the requirements of such
provisions for registration are not necessary in order to protect tax
revenues, the commissioner may limit or modify such requirements with
respect to corporations or unincorporated businesses not required to be
registered as distributors of motor fuel or diesel motor fuel.
S 32. Section 312 of the tax law, as amended by chapter 166 of the
laws of 1991 and subdivision (b) as amended by section 8 of part EE of
chapter 63 of the laws of 2000, is amended to read as follows:
S 312. Deposit and disposition of revenue.--[(a) Except as provided in
sections three hundred one-f and three hundred one-g of this chapter, of
all of the taxes, interest and penalties collected or received by the
commissioner of taxation and finance under section three hundred one of
this article with respect to any taxable year commencing on or after
April first, nineteen hundred eighty-four and to that portion of any
taxable year commencing prior thereto to the extent of that portion of
such year which includes the period which commences with April first,
nineteen hundred eighty-four, seventy-two and seven-tenths percent shall
be deposited and disposed of pursuant to the provisions of section one
hundred seventy-one-a of this chapter and the balance thereof shall be
deposited in the mass transportation operating assistance fund to the
credit of the metropolitan mass transportation operating assistance
account and the public transportation systems operating assistance
account thereof in the manner provided by subdivision eleven of section
one hundred eighty-two-a of this chapter. Provided, however, that the
actual amount of such taxes, interest and penalties which shall be
deposited in such mass transportation operating assistance fund pursuant
to this section during the twelve-month period from April first, nine-
teen hundred eighty-four to and including March thirty-first, nineteen
hundred eighty-five shall not be less than an amount which, when added
to the actual amount that is deposited in such fund during such twelve-
month period and that is attributable to the taxes, interest and penal-
ties collected and received under section one hundred eighty-two-a of
this chapter, yields the sum of seventy-nine million five hundred thou-
sand dollars and provided further that of such actual amounts deposited
in such fund pursuant to this section and to section one hundred eight-
y-two-a of this chapter during the twelve-month period from April first,
nineteen hundred eighty-five to March thirty-first, nineteen hundred
eighty-six and during the twelve-month period from April first, nineteen
hundred eighty-six to March thirty-first, nineteen hundred eighty-seven,
the amount which shall be deposited to the credit of the public trans-
portation systems operating assistance account thereof during each such
period shall be not less than thirty-six million dollars. Provided
further that if the total amount deposited in the mass transportation
operating assistance fund during the twelve month period commencing
April first, nineteen hundred eighty-five pursuant to this section and
to section one hundred eighty-two-a of this chapter is less than eighty
A. 4011--B 76
million dollars, the comptroller shall deposit to the credit of the
metropolitan mass transportation operating assistance account on or
after April first, nineteen hundred eighty-six and on or before June
thirtieth, nineteen hundred eighty-six from any taxes, interest, and
penalties collected or received by the commissioner of taxation and
finance under this article in addition to amounts which would otherwise
be deposited to the credit of the mass transportation operating assist-
ance fund, an amount equal to the difference between eighty million
dollars and the amounts actually deposited in the mass transportation
operating assistance fund during such twelve-month period pursuant to
this section and to section one hundred eighty-two-a of this chapter.
Provided further that if the total amount deposited in the mass trans-
portation operating assistance fund during the twelve month period
commencing April first, nineteen hundred eighty-six pursuant to this
section and to section one hundred eighty-two-a of this chapter, exclu-
sive of the amount deposited in such fund to the credit of the metropol-
itan mass transportation operating assistance account on or after April
first, nineteen hundred eighty-six and on or before June thirtieth,
nineteen hundred eighty-six pursuant to the preceding sentence, is less
than eighty million dollars, the comptroller shall deposit to the credit
of the metropolitan mass transportation operating assistance account on
or after April first, nineteen hundred eighty-seven and on or before
June thirtieth, nineteen hundred eighty-seven from any taxes, interest,
and penalties collected or received by the commissioner of taxation and
finance under this article in addition to amounts which would otherwise
be deposited to the credit of the mass transportation operating assist-
ance fund, an amount equal to the difference between eighty million
dollars and the amounts actually deposited in the mass transportation
operating assistance fund during such twelve-month period pursuant to
this section and to section one hundred eighty-two-a of this chapter,
exclusive of the amount deposited in such fund to the credit of the
metropolitan mass transportation operating assistance account on or
after April first, nineteen hundred eighty-six and on or before June
thirtieth, nineteen hundred eighty-six pursuant to the preceding
sentence. Provided, further, however, with respect to all taxes, and
interest and penalties relating thereto, collected or received by the
commissioner of taxation and finance under the tax imposed by section
three hundred one of this article with respect to any taxable year
commencing on and after June first, nineteen hundred ninety and to that
portion of any taxable year commencing prior thereto to the extent of
that portion of such year which includes the period which commences June
first, nineteen hundred ninety, eighty-nine and one-half percent of such
collections shall be deposited and disposed of pursuant to the
provisions of section one hundred seventy-one-a of this chapter and the
balance thereof shall be deposited in the mass transportation operating
assistance fund to the credit of the metropolitan mass transportation
operating assistance account and the public transportation systems oper-
ating assistance account thereof in the manner provided by subdivision
eleven of section one hundred eighty-two-a of this chapter.
(b) Of all of the taxes collected or received by the commissioner on
or before March thirty-first, nineteen hundred ninety-one under the
taxes imposed by sections three hundred one-a and three hundred one-e of
this article, and all interest and penalties relating thereto, eighty-
seven and five-hundredths percent of such collections shall be deposited
and disposed of pursuant to the provisions of section one hundred seven-
ty-one-a of this chapter and the balance thereof shall be deposited in
A. 4011--B 77
the mass transportation operating assistance fund to the credit of the
metropolitan mass transportation operating assistance account and the
public transportation systems operating assistance account thereof in
the manner provided by subdivision eleven of section one hundred eight-
y-two-a of this chapter. Of all taxes, interest and penalties collected
or received after March thirty-first, nineteen hundred ninety-one, and
before April first, nineteen hundred ninety-three, from the taxes
imposed by sections three hundred one-a and three hundred one-e of this
article, initially thirty-five percent shall be deposited and disposed
of pursuant to such section one hundred seventy-one-a. The balance ther-
eof shall then be disposed of as follows: seventy-two and seven-tenths
percent shall be deposited and disposed of pursuant to such section one
hundred seventy-one-a and twenty-seven and three-tenths percent shall be
deposited in such mass transportation operating assistance fund as
prescribed in the aforestated manner. Except as otherwise provided, of
all taxes, interest and penalties collected or received after March
thirty-first, nineteen hundred ninety-three, and before April first,
nineteen hundred ninety-four, from the taxes imposed by sections three
hundred one-a and three hundred one-e of this article, (i) initially
fifty-four percent shall be deposited, as prescribed by subdivision (d)
of section three hundred one-j of this chapter, (ii) twenty-eight and
three-tenths percent shall be deposited and disposed of pursuant to such
section one hundred seventy-one-a of this chapter in the general fund
and (iii) seventeen and seven-tenths percent shall be deposited in such
mass transportation operating assistance fund as prescribed in the
aforestated manner. Provided, however, that, prior to such deposit, from
the amounts so collected or received during the period commencing on
January first, nineteen hundred ninety-four and ending on March thirty-
first, nineteen hundred ninety-four, an amount equal to the portion of
the taxes, interest and penalties so received or collected resulting
from the amendments made by sections forty-two, forty-three and forty-
four of chapter fifty-seven of the laws of nineteen hundred ninety-three
shall be deposited and disposed of pursuant to the provisions of subdi-
vision one of section one hundred seventy-one-a of this chapter. Except
as otherwise provided, of all taxes, interest and penalties collected or
received on or after April first, nineteen hundred ninety-four, from the
taxes imposed by sections three hundred one-a and three hundred one-e of
this article, (i) initially fifty-four percent shall be deposited, as
prescribed by subdivision (d) of section three hundred one-j of this
article, (ii) twenty-eight and three-tenths percent shall be deposited
and disposed of pursuant to such section one hundred seventy-one-a of
this chapter in the general fund, (iii) seven and nine hundred sixty-
five thousandths percent shall be deposited in such mass transportation
operating assistance fund as prescribed in the aforestated manner and
(iv) nine and seven hundred thirty-five thousandths percent shall be
deposited in the revenue accumulation fund. Except as otherwise
provided, of all taxes, interest and penalties collected or received on
or after September first, nineteen hundred ninety-four and before
September first, nineteen hundred ninety-five, from the taxes imposed by
sections three hundred one-a and three hundred one-e of this article,
(i) initially fifty-nine percent shall be deposited, as prescribed by
subdivision (d) of section three hundred one-j of this article, (ii)
twenty-two and four-tenths percent shall be deposited and disposed of
pursuant to such section one hundred seventy-one-a of this chapter in
the general fund, (iii) eight and three hundred seventy thousandths
percent shall be deposited in such mass transportation operating assist-
A. 4011--B 78
ance fund as prescribed in the aforestated manner and (iv) ten and two
hundred thirty thousandths percent shall be deposited in the revenue
accumulation fund. Except as otherwise provided, of all taxes, interest
and penalties, collected or received on or after September first, nine-
teen hundred ninety-five and before April first, nineteen hundred nine-
ty-six from the taxes imposed by sections three hundred one-a and three
hundred one-e of this article, (i) initially sixty-two and eight-tenths
percent shall be deposited as prescribed by subdivision (d) of section
three hundred one-j of this article, (ii) eighteen percent shall be
deposited and disposed of pursuant to section one hundred seventy-one-a
of this chapter in the general fund, (iii) eight and six hundred forty
thousandths percent shall be deposited in such mass transportation oper-
ating assistance fund as prescribed in the aforestated manner and (iv)
ten and five hundred sixty thousandths percent shall be deposited in the
revenue accumulation fund. Except as otherwise provided, of all taxes,
interest and penalties collected or received on or after April first,
nineteen hundred ninety-six, and before January first, nineteen hundred
ninety-seven from the taxes imposed by sections three hundred one-a and
three hundred one-e of this article, (i) initially sixty-three and
three-tenths percent shall be deposited, as prescribed by subdivision
(d) of section three hundred one-j of this article, (ii) seventeen and
four-tenths percent shall be deposited and disposed of pursuant to such
section one hundred seventy-one-a of this chapter in the general fund
and (iii) nineteen and three-tenths percent shall be deposited in such
mass transportation operating assistance fund as prescribed in the
aforestated manner. Except as otherwise provided, of all taxes, inter-
est and penalties collected or received on or after January first, nine-
teen hundred ninety-seven and before January first, nineteen hundred
ninety-eight from the taxes imposed by sections three hundred one-a and
three hundred one-e of this article, (i) initially sixty-six and two-
tenths percent shall be deposited, as prescribed by subdivision (d) of
section three hundred one-j of this article, (ii) fourteen and one-half
percent shall be deposited and disposed of pursuant to such section one
hundred seventy-one-a of this chapter in the general fund and (iii)
nineteen and three-tenths percent shall be deposited in such mass trans-
portation operating assistance fund as prescribed in the aforestated
manner. Except as otherwise provided, of all taxes, interest and penal-
ties collected or received on or after January first, nineteen hundred
ninety-eight and before April first, nineteen hundred ninety-nine from
the taxes imposed by sections three hundred one-a and three hundred
one-e of this article, (i) initially sixty-eight and one-tenth percent
shall be deposited, as prescribed by subdivision (d) of section three
hundred one-j of this article, (ii) twelve and four-tenths percent shall
be deposited and disposed of pursuant to such section one hundred seven-
ty-one-a of this chapter in the general fund and (iii) nineteen and
one-half percent shall be deposited in such mass transportation operat-
ing assistance fund as prescribed in the aforestated manner. Except as
otherwise provided, of all taxes, interest and penalties collected or
received on or after April first, nineteen hundred ninety-nine, from the
taxes imposed by sections three hundred one-a and three hundred one-e of
this article, (i) initially sixty-nine and eight-tenths percent shall be
deposited, as prescribed by subdivision (d) of section three hundred
one-j of this article, (ii) ten and seven-tenths percent shall be depos-
ited and disposed of pursuant to such section one hundred seventy-one-a
of this chapter in the general fund and (iii) nineteen and one-half
percent shall be deposited in such mass transportation operating assist-
A. 4011--B 79
ance fund as prescribed in the aforestated manner.] Except as otherwise
provided, of all taxes, interest and penalties collected or received on
or after April first, two thousand one, from the taxes imposed by
sections three hundred one-a and three hundred one-e of this article,
(i) initially eighty and three-tenths percent shall be deposited, as
prescribed by subdivision (d) of section three hundred one-j of this
article and (ii) nineteen and seven-tenths percent shall be deposited in
such mass transportation operating assistance fund [as prescribed in the
aforestated manner] TO THE CREDIT OF THE METROPOLITAN MASS TRANSPORTA-
TION OPERATING ASSISTANCE ACCOUNT AND THE PUBLIC TRANSPORTATION SYSTEMS
OPERATING ASSISTANCE ACCOUNT THEREOF IN THE MANNER PROVIDED BY SUBDIVI-
SION ELEVEN OF SECTION ONE HUNDRED EIGHTY-TWO-A OF THIS CHAPTER.
[Provided, further, that on or before the twenty-fifth day of each month
commencing with October, nineteen hundred ninety and terminating with
the month of March, two thousand one, the comptroller shall deduct the
amount of six hundred twenty-five thousand dollars prior to any deposit
or disposition of the taxes, interest and penalties collected or
received pursuant to such sections three hundred one-a and three hundred
one-e and shall pay such amount to the state treasury to the credit of
the general fund.] Provided, further that on or before the twenty-fifth
day of each month commencing with April, two thousand one, the comp-
troller shall deduct the amount of six hundred twenty-five thousand
dollars prior to any deposit or disposition of the taxes, interest, and
penalties collected or received pursuant to such sections three hundred
one-a and three hundred one-e and shall deposit such amount in the dedi-
cated fund accounts pursuant to subdivision (d) of section three hundred
one-j of this article. Provided, further, that commencing January
fifteenth, nineteen hundred ninety-one, and on or before the tenth day
of March and the fifteenth day of June and September of such year, the
commissioner shall, based on information supplied by taxpayers and other
appropriate sources, estimate the amount of the utility credit author-
ized by section three hundred one-d of this article which has been
accrued to reduce tax liability under section one hundred eighty-six-a
of this chapter during the period covered by such estimate and certify
to the state comptroller such estimated amount. The comptroller shall
forthwith, after receiving such certificate, deduct the amount of such
credit so certified by the commissioner prior to any deposit or disposi-
tion of the taxes, interest and penalties collected or received pursuant
to such sections three hundred one-a and three hundred one-e and shall
pay such amount so certified and deducted into the state treasury to the
credit of the general fund. [As soon as practicable after April first,
nineteen hundred ninety-one, nineteen hundred ninety-two and nineteen
hundred ninety-three, but before June fifteenth of each such year, the
commissioner shall determine the amount of the utility tax credit which
has been actually used to reduce tax liability under such section one
hundred eighty-six-a and shall certify the difference between such actu-
al amount and the earlier estimated amount.] Also, subsequently, during
the fiscal year when the commissioner becomes aware of changes or
modifications with respect to actual credit usage, the commissioner
shall, as soon as practicable, issue a certification setting forth the
amount of any required adjustment to the amount of actual credit usage
previously certified. After receiving the certificate of the commission-
er with respect to actual credit usage or modification of the same, the
comptroller shall forthwith adjust general fund receipts and the reven-
ues to be deposited or disposed of under this article to reflect the
difference so certified by the commissioner. The commissioner shall not
A. 4011--B 80
be liable for any overestimate or underestimate of the amount of the
utility credit which has been accrued to reduce tax liability under such
section one hundred eighty-six-a. Nor shall the commissioner be liable
for any inaccuracy in any certificate with respect to the amount of such
credit actually used or any required adjustment with respect to actual
credit usage, but the commissioner shall as soon as practicable after
discovery of any error adjust the next certification under this section
to reflect any such error.
[On or before July thirty-first, nineteen hundred ninety-two and on or
before July thirty-first, nineteen hundred ninety-three, the commission-
er shall conduct the following reconciliation with respect to the
preceding fiscal year: he shall multiply the total of all taxes, penal-
ties and interest, after refunds and reimbursements, which are derived
from the motor fuel component, the automotive-type diesel motor fuel
component and the aviation gasoline component by twenty fifty-fifths;
the total of all taxes, penalties and interest, after refunds and
reimbursements, which are derived from the nonautomotive-type diesel
motor fuel component (excluding taxes, penalties and interest which are
derived from product with respect to which the credit or reimbursement
provided by section three hundred one-d is taken) by twenty-fiftieths;
and all taxes, penalties and interest, after refunds and reimbursements,
which are derived from the residual petroleum product component (exclud-
ing taxes, penalties and interest which are derived from product with
respect to which the credit or reimbursement provided by section three
hundred one-d is taken) by twenty-fortieths. The products of the forego-
ing multiplications shall be added together and the resulting sum of
such products shall be compared with the total of the amounts initially
distributed during such fiscal year with respect to such components
(excluding receipts derived from product with respect to which the cred-
it or reimbursement provided by section three hundred one-d is taken and
excluding any amount which represents a reconciliation adjustment pursu-
ant to this paragraph) pursuant to section one hundred seventy-one-a of
this chapter which represented thirty-five percent of the total, after
refunds and reimbursements, of all taxes, penalties and interest
collected or received during such fiscal year under sections three
hundred one-a and three hundred one-e during the months of such fiscal
year with respect to such components. The commissioner shall then certi-
fy the amount of such difference to the comptroller. If the amounts
initially distributed in such fiscal year are greater than the sum of
such products, the comptroller shall withhold an amount equal to twen-
ty-seven and three-tenths percent of such difference from the first
moneys otherwise payable to the general fund pursuant to this subdivi-
sion and shall pay such amount to the mass transportation operating
assistance fund to the credit of the metropolitan mass transportation
operating assistance account and the public transportation systems oper-
ating assistance account thereof in the aforestated manner. If the
amounts initially distributed in such fiscal year are less than the sum
of such products, the comptroller shall withhold an amount equal to
twenty-seven and three-tenths percent of such difference from the first
moneys otherwise payable to the mass transportation operating assistance
fund pursuant to this subdivision and shall pay such amount to the
general fund.
When the commissioner becomes aware of changes or modifications with
respect to the distribution of revenue under this article, the commis-
sioner shall, as soon as practicable, issue a certification setting
forth the amount of any required adjustment. After receiving the certif-
A. 4011--B 81
icate of the commissioner with respect to any adjustments, the comp-
troller shall forthwith adjust general fund receipts and the revenues to
be deposited or disposed of under this article to reflect the difference
so certified by the commissioner. The commissioner shall not be liable
for any overestimate or underestimate of the amount of the distribution.
Nor shall the commissioner be liable for any inaccuracy in any certif-
icate with respect to the amount of the distribution or any required
adjustment with respect to the distribution, but the commissioner shall
as soon as practicable after discovery of any error adjust the next
certification under this section to reflect any such error.] Prior to
making deposits as provided in this [subdivision] SECTION, the comp-
troller shall retain such amount as the commissioner may determine to be
necessary, subject to the approval of the director of the budget, for
reasonable costs of the department in administering and collecting the
taxes deposited pursuant to this [subdivision] SECTION and for refunds
and reimbursements with respect to such taxes, out of which the comp-
troller shall pay any refunds or reimbursements of such taxes to which
taxpayers shall be entitled.
S 33. Subdivision (b) of section 315 of the tax law, as amended by
section 156 of part A of chapter 389 of the laws of 1997, is amended to
read as follows:
(b) Joint administration of taxes. In addition to the powers granted
to the commissioner in this chapter, the commissioner is hereby author-
ized to make provisions for the joint administration, in whole or in
part, of the taxes imposed by articles twelve-A and twenty-eight and
pursuant to the authority of article twenty-nine of this chapter upon
[automotive fuel] MOTOR FUEL AND DIESEL MOTOR FUEL and the taxes imposed
by this article, including the joint reporting, assessment, collection,
determination and refund of such taxes, and for that purpose to
prescribe that any of the commissioner's functions under such articles,
and any returns, forms, statements, documents or information to be
submitted to the commissioner 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 or pursuant to such articles. Provided, notwith-
standing any provision of this article to the contrary, in the further-
ance of joint administration, the provisions of subdivision one of
section two hundred eighty-five-a and subdivision one of section two
hundred eighty-nine-c of this chapter shall apply to the taxes imposed
under this article with the same force and effect as if those provisions
specifically referred to the taxes imposed hereunder and all the
products with respect to which the taxes are imposed under this article.
Provided, further, a reimbursement (or credit) of taxes imposed under
this article shall be available to subsequent purchasers of motor fuel,
diesel motor fuel or residual petroleum product under the circumstances
specified in subdivision eight of section two hundred eighty-nine-c of
this chapter with respect to the export of such products. In addition,
all the provisions of subdivision one of section two hundred eighty-six
of this chapter shall be applicable to all of the products included in
the measure of the tax imposed by this article and the powers of the
commissioner in administering the tax imposed by this article shall
include these set forth in such subdivision. Moreover, the commission-
er, in order to preserve the revenue from the tax imposed by this arti-
cle, shall, by regulation, require that the movement of residual petro-
A. 4011--B 82
leum product into or in this state be accompanied by a tracking
document. [Such manifest or other tracking document shall be prescribed
only after consultation with the state motor fuels taxation advisory
council (created by section forty-one of chapter forty-four of the laws
of nineteen hundred eighty-five) as to its form and content and as to
whether an existing industry document (or a modified version thereof)
may adequately serve the tracking purpose so that such existing industry
document may be prescribed as the tracking document.] Also, the commis-
sioner may require (i) that any returns, forms, statements or other
document with respect to motor fuel or diesel motor fuel required of
transporters or terminal operators under such article twelve-A of this
chapter apply with the same force and effect to persons transporting or
storing residual petroleum product, (ii) a certification that particular
gallonage of motor fuel, diesel motor fuel or residual petroleum product
has been included in the measure of the tax imposed by this article and
such tax has been paid, and (iii) that the certification required pursu-
ant to section two hundred eighty-five-a or two hundred eighty-five-b of
this chapter be expanded to include the tax imposed by this article.
S 34. Subdivision 10 of section 501 of the tax law, as amended by
chapter 407 of the laws of 1990, is amended to read as follows:
10. "Automotive fuel" shall mean, SOLELY FOR PURPOSES OF THIS ARTICLE,
diesel motor fuel as defined in subdivision fourteen of section two
hundred eighty-two of this chapter and motor fuel as defined in subdivi-
sion two of section two hundred eighty-two of this chapter.
S 35. Subdivision (b) of section 528 of the tax law, as added by chap-
ter 170 of the laws of 1994, is amended to read as follows:
(b) Cooperative agreements. Notwithstanding any inconsistent provision
of law, the commissioner is authorized to enter into a cooperative
agreement with other states, the District of Columbia or provinces or
territories of Canada for the administration of the tax imposed by this
article and similar taxes imposed by other member jurisdictions and for
the reporting and payment of tax to a single base state and a propor-
tional sharing of revenue of taxes relating to fuel use among the juris-
dictions where a qualified motor vehicle is operated. The agreement may
provide for determining the base state for carriers, carriers records
requirements, audit procedures, exchange of information, persons eligi-
ble for tax licensing, defining qualified motor vehicles, determining if
bonding is required and requiring bonds to secure the tax imposed by
this article and similar taxes imposed by other member jurisdictions,
specifying reporting requirements and periods including defining uniform
penalty and interest rates for late reporting, determining methods for
collecting and forwarding of taxes, interest and penalties to another
jurisdiction, notice and timing of hearings and other provisions as will
facilitate the administration of the agreement. The commissioner may,
pursuant to the terms of the agreement, forward to the proper officers
of another member jurisdiction any information in the commissioner's
possession relating to the manufacture, receipt, sale, use, transporta-
tion or shipment of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL by
any person and may share any information relating to the administration
of taxes pursuant to the agreement with such officers. The commissioner
may disclose to the proper officers of another member jurisdiction the
location of offices, motor vehicles and other real and personal property
of carriers. The agreement may provide for each member jurisdiction to
audit the records of persons based in the member jurisdiction and deter-
mine taxes due each member jurisdiction. The commissioner may adopt
rules and regulations for the administration and enforcement of the
A. 4011--B 83
agreement. In connection with the administration of taxes under such a
cooperative agreement, the commissioner may enter into an agreement with
other member jurisdictions and any banks, banking houses, trust compa-
nies or other similar institutions with respect to the payment of any
tax, fees, penalty or interest to such banks, banking houses, trust
companies or similar institutions and the filing of returns and reports
with such banks, banking houses, trust companies or similar institutions
as agent of the commissioner and such other member jurisdictions. Pursu-
ant to a written agreement made with one or more of the appropriate
departments, agencies, officers or instrumentalities of other jurisdic-
tions, the commissioner may let contracts for provision of such services
to the department and to one or more of such entities of other jurisdic-
tions; provided, that provisions shall be made in all such agreements
with the participating governmental entities and in all such contracts
let by the commissioner for the assumption by each of the participating
governmental entities of sole responsibility for its proportionate share
of the costs under the terms of such contract. The commissioner may
contract for such services jointly with and pursuant to a contract let
by the appropriate department, agency, officer or instrumentality of
another jurisdiction; provided that (1) the commissioner shall approve
the proposed terms and conditions of all such joint governmental
contracts, (2) the letting of such joint governmental contract shall be
based on invitation of competitive bids or proposals, and (3) the
participation by the department in any such joint contract shall be
preceded by an evaluation and finding in writing by the commissioner
that a reasonable potential exists for the saving of costs by the state,
by means of such joint governmental contract.
S 36. The opening paragraph of subparagraph (ii) of paragraph 4 of
subdivision (b) of section 1101 of the tax law, as amended by chapter
261 of the laws of 1988, is amended to read as follows:
Notwithstanding the provisions of subparagraph (i) of this paragraph,
no motor fuel or diesel motor fuel shall be sold or used 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 section eleven hundred two of this article except where a provision
of this article relating to motor fuel or diesel motor fuel specifically
provides otherwise and except in the case of a sale or use subject to
tax under section eleven hundred five or eleven hundred ten, respective-
ly, of this article. Provided, however, except for such requirement of
prepayment of tax required by section eleven hundred two of this arti-
cle, 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 sections eleven hundred two, eleven hundred
eleven, eleven hundred twenty, eleven hundred thirty-two, eleven hundred
thirty-four, eleven hundred thirty-five, eleven hundred thirty-six,
ELEVEN HUNDRED FORTY-TWO, ELEVEN HUNDRED FORTY-FIVE and eighteen hundred
seventeen of this chapter, the following terms shall have the following
meanings:
S 37. Clause (A) of subparagraph (ii) of paragraph 4 of subdivision
(b) of section 1101 of the tax law, as amended by chapter 261 of the
laws of 1988, is amended to read as follows:
(A) "[Automotive fuel"] PETROLEUM PRODUCTS" means diesel motor fuel as
defined in subdivision fourteen of section two hundred eighty-two 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
A. 4011--B 84
purposes" shall have the same meaning as it has for purposes of section
eleven hundred five-A of this article.
S 38. Clause (F) of subparagraph (ii) of paragraph 4 of subdivision
(b) of section 1101 of the tax law is REPEALED and a new clause (F) is
added to read as follows:
(F) THE TERMS "HIGHWAY DIESEL MOTOR FUEL" AND "NON-HIGHWAY DIESEL
MOTOR FUEL" SHALL HAVE THE SAME MEANING AS THEY HAVE FOR PURPOSES OF
ARTICLE TWELVE-A OF THIS CHAPTER.
S 39. Paragraph 2 of subdivision (a) of section 1102 of the tax law,
as separately amended by section 9 of part W-1 of chapter 109 and chap-
ter 302 of the laws of 2006, is amended to read as follows:
(2) Every distributor of diesel motor fuel shall pay, as a prepayment
on account of the taxes imposed by this article and pursuant to the
authority of article twenty-nine of this chapter, a tax upon the sale or
use of diesel motor fuel in this state. The tax shall be computed based
upon the number of gallons of diesel motor fuel sold or used. Provided,
however, if the tax has not been imposed prior thereto, it shall be
imposed on the delivery of diesel motor fuel to a retail service
station. The collection of such tax shall not be made applicable to the
sale or use of diesel motor fuel under circumstances which preclude the
collection of such tax by reason of the United States constitution and
of laws of the United States enacted pursuant thereto. The prepaid tax
on diesel motor fuel shall not apply to (i) the sale of previously
untaxed [diesel motor fuel which is not enhanced] NON-HIGHWAY Diesel
motor fuel to a person registered as a distributor of Diesel motor fuel
other than a sale to such person 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, OR (ii) 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 to the sale of CNG or hydrogen [or (iii) the sale of dyed
diesel motor fuel as set forth in clause (A) or (B) of subparagraph (i)
of paragraph (c) of subdivision three of section two hundred
eighty-two-a of this chapter].
S 39-a. Paragraph 2 of subdivision (a) of section 1102 of the tax law,
as amended by chapter 302 of the laws of 2006, is amended to read as
follows:
(2) Every distributor of diesel motor fuel shall pay, as a prepayment
on account of the taxes imposed by this article and pursuant to the
authority of article twenty-nine of this chapter, a tax upon the sale or
use of diesel motor fuel in this state. The tax shall be computed based
upon the number of gallons of diesel motor fuel sold or used. Provided,
however, if the tax has not been imposed prior thereto, it shall be
imposed on the delivery of diesel motor fuel to a retail service
station. The collection of such tax shall not be made applicable to the
sale or use of diesel motor fuel under circumstances which preclude the
collection of such tax by reason of the United States constitution and
of laws of the United States enacted pursuant thereto. The prepaid tax
on diesel motor fuel shall not apply to (i) the sale of previously
untaxed [diesel motor fuel which is not enhanced] NON-HIGHWAY Diesel
motor fuel to a person registered as a distributor of Diesel motor fuel
other than a sale to such person 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
A. 4011--B 85
motor vehicle, OR (ii) 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 (iii) the sale of dyed diesel motor fuel as set forth in
clause (A) or (B) of subparagraph (i) of paragraph (c) of subdivision
three of section two hundred eighty-two-a of this chapter].
S 40. Subsection (a) of section 1105-A of the tax law, as amended by
section 1 of part B of chapter 35 of the laws of 2006, is amended to
read as follows:
(a) Notwithstanding any other provisions of this article, but not for
purposes of the taxes imposed by section eleven hundred eight of this
part or authorized pursuant to the authority of article twenty-nine of
this chapter, the taxes imposed by subdivision (a) or (b) of section
eleven hundred five OF THIS PART on the receipts from the retail sale of
fuel oil and coal used for residential purposes; the receipts from the
retail sale of wood used for residential heating purposes; and the
receipts from every sale, other than for resale, of propane (except when
sold in containers of less than one hundred pounds), natural gas, elec-
tricity, steam and gas, electric and steam services used for residential
purposes shall be paid at the rate of three percent for the period
commencing January first, nineteen hundred seventy-nine and ending
December thirty-first, nineteen hundred seventy-nine; at the rate of two
and one-half percent for the period commencing January first, nineteen
hundred eighty and ending September thirtieth, nineteen hundred eighty,
and at the rate of zero percent on and after October first, nineteen
hundred eighty. The provisions of this subsection shall not apply to a
sale of [(i)] 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 [and (ii) enhanced diesel motor fuel except in the case of
a sale of such enhanced diesel motor fuel used exclusively for residen-
tial purposes which is delivered into a storage tank which is not
equipped with a hose or other apparatus by which such fuel can be
dispensed into the fuel tank of a motor vehicle and such storage tank is
attached to the heating unit burning such fuel, provided that each
delivery of such fuel of over four thousand five hundred gallons shall
be evidenced by a certificate signed by the purchaser stating that the
product will be used exclusively for residential purposes].
S 41. Subdivision (j) of section 1115 of the tax law, as amended by
section 12 of part W-1 of chapter 109 of the laws of 2006, 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. The
exemption provided in subdivision (c) of this section shall apply to
A. 4011--B 86
sales and uses of NON-HIGHWAY diesel motor fuel [which is not enhanced
diesel motor fuel] but only if all of such fuel is consumed other than
on the PUBLIC highways of this state[, provided, however, this exemption
shall in no event apply to a sale of 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]. The exemption provided in subdivision
(c) of this section shall apply to sales and uses of [no more than four
thousand five hundred gallons of] NON-HIGHWAY diesel motor fuel [in a
thirty-day period] 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)[, provided, however,
such exemption shall be applicable to the sale or use of more than four
thousand five hundred gallons of diesel motor fuel in a thirty-day peri-
od for such use or consumption in accordance with a prior clearance
given by the commissioner].
S 41-a. Subdivision (j) of section 1115 of the tax law, as amended by
section 8 of part B of chapter 63 of the laws of 2000, 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. The
exemption provided in subdivision (c) of this section shall apply to
sales and uses of NON-HIGHWAY diesel motor fuel [which is not enhanced
diesel motor fuel] but only if all of such fuel is consumed other than
on the PUBLIC highways of this state[, provided, however, this exemption
shall in no event apply to a sale of 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]. The exemption provided in subdivision
(c) of this section shall apply to sales and uses of [no more than four
thousand five hundred gallons of] NON-HIGHWAY diesel motor fuel [in a
thirty-day period] 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)[, provided, however,
such exemption shall be applicable to the sale or use of more than four
thousand five hundred gallons of diesel motor fuel in a thirty-day peri-
od for such use or consumption in accordance with a prior clearance
given by the commissioner].
S 42. Subdivision (e) of section 1120 of the tax law, as amended by
chapter 2 of the laws of 1995, is amended to read as follows:
(e) Immediate export. With respect to (i) motor fuel imported, manu-
factured or sold or purchased in this state, and (ii) [enhanced] HIGHWAY
A. 4011--B 87
diesel motor fuel, a refund or credit shall be allowed a registered
distributor of this state or a purchaser 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 distribu-
tor or such purchaser if such fuel was exported from this state for sale
outside this state, such distributor or such purchaser, as the case may
be, exporting such fuel is duly registered with or licensed by the
taxing authorities of the state to which such fuel is exported as a
distributor or a dealer in the fuel being so exported, and in connection
with such exportation such fuel was immediately shipped to an identified
facility in the state to which such fuel is exported, and provided the
applicant complies with all requirements and rules and regulations of
the commissioner, including evidentiary requirements, relating thereto.
S 43. Subparagraph (i) of paragraph 3 of subdivision (h) of section
1132 of the tax law, as amended by chapter 261 of the laws of 1988, is
amended to read as follows:
(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 or diesel 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 or diesel motor fuel imported,
manufactured, [subjected to enhancement,] sold, 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
or diesel 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 any sale is not so subject shall be upon the
person required to collect such tax and the purchaser of such fuel.
S 44. Subparagraph (iii) of paragraph 1 of subdivision (a) of section
1134 of the tax law, as amended by section 160 of part A of chapter 389
of the laws of 1997, is amended to read as follows:
(iii) every person selling [automotive fuel] PETROLEUM PRODUCTS
including persons who or which are not distributors,
S 45. Subdivision (d) of section 1135 of the tax law, as amended by
chapter 44 of the laws of 1985 and as relettered by chapter 61 of the
laws of 1989, is amended to read as follows:
(d) Every person selling or holding large volumes of [automotive fuel]
PETROLEUM PRODUCTS shall keep records for such periods and in the manner
prescribed by the [tax commission] COMMISSIONER pursuant to rules and
regulations. Such records shall show (1) the number of gallons of [auto-
motive fuel] PETROLEUM PRODUCTS purchased, the price paid therefor, the
amount of tax paid pursuant to the provisions of section eleven hundred
two of this article [and the regional average retail sales price appli-
cable thereto] and (2) the number of gallons sold, and the price paid by
the purchaser to whom such person sells the [automotive fuel] PETROLEUM
PRODUCTS, 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
A. 4011--B 88
five of this article applicable to such sale together with such addi-
tional information as the [tax commission] COMMISSIONER shall require.
The [regional average retail sales price, and the] amount of tax shall
be calculated in the manner set forth in section eleven hundred eleven
of this article.
S 46. Subdivision (a) of section 1136 of the tax law, as amended by
chapter 89 of the laws of 1976, paragraphs 1, 2, 3 and 5 as amended and
paragraph 6 as added by chapter 2 of the laws of 1995 and paragraphs 4
and 7 as amended by section 2-e of part M-1 of chapter 106 of the laws
of 2006, is amended to read as follows:
(a) (1) Every person required to register with the commissioner as
provided in section eleven hundred thirty-four OF THIS PART whose taxa-
ble receipts, amusement charges and rents total less than three hundred
thousand dollars, or in the case of any such person who is a distributor
whose sales of [automotive fuel] PETROLEUM PRODUCTS total less than one
hundred thousand gallons, in every quarter of the preceding four quar-
ters, shall only file a return quarterly with the commissioner.
(2) Every person required to register with the commissioner as
provided in section eleven hundred thirty-four OF THIS PART whose taxa-
ble receipts, amusement charges and rents total three hundred thousand
dollars or more, or in the case of any such person who is a distributor
whose sales of [automotive fuel] PETROLEUM PRODUCTS total one hundred
thousand gallons or more, in any quarter of the preceding four quarters,
shall, in addition to filing a quarterly return described in paragraph
one of this subdivision, and except as otherwise provided in section
eleven hundred two or eleven hundred three of this article, file either
a long-form or short-form part-quarterly return monthly with the commis-
sioner.
(3) However, a person required to register with the commissioner as
provided in section eleven hundred thirty-four OF THIS PART only because
such person 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 commissioner under this article, shall file an informa-
tion return annually in such form as the commissioner may prescribe.
Likewise, a person, who is required to register and who is selling
[automotive fuel] PETROLEUM PRODUCTS who is not a distributor of motor
fuel, shall file an information return quarterly or, if the commissioner
deems necessary, monthly, in such form as the commissioner shall
prescribe.
(4) The return of a vendor of tangible personal property or services
shall show such vendor's receipts from sales and the number of gallons
of any motor fuel or diesel motor fuel sold and also the aggregate value
of tangible personal property and services and number of gallons of such
fuels sold by the vendor, 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 of this part. The
return of a recipient of amusement charges shall show all such charges
and the amount of tax thereon, and the return of an operator required to
collect tax on rents shall show all rents received or charged and the
amount of tax thereon.
(5) The returns of any seller of [automotive fuel] PETROLEUM PRODUCTS
shall show the number of gallons of [automotive fuel] PETROLEUM PRODUCTS
sold, together with such additional information as the commissioner
shall require in order to certify the amount of taxes, penalties and
interest payable to local taxing jurisdictions imposed on the sale or
A. 4011--B 89
use of [automotive fuel] PETROLEUM PRODUCTS pursuant to the provisions
of section twelve hundred sixty-one of this chapter.
(6) The returns of any seller of cigarettes shall show the amount of
prepaid tax assumed or paid thereon and passed through, together with
such additional information as the commissioner shall require.
(7) Taxable receipts as used in this section shall include taxable
receipts from the sale of [automotive fuel] PETROLEUM PRODUCTS and ciga-
rettes and any receipts from the sale of motor fuel or diesel motor fuel
or cigarettes in this state whether or not such receipts are subject to
the taxes imposed by section eleven hundred two, eleven hundred three,
eleven hundred five or eleven hundred ten of this article and regardless
of whether the provisions of section eleven hundred twenty or eleven
hundred twenty-one of this article are applicable to the taxes imposed
in respect of such receipts or numbers of gallons of motor fuel or
diesel motor fuel sold.
[(i)] (8) For purposes of this article the term "long-form, part-quar-
terly return" shall mean a return in a form determined by the [tax
commission] COMMISSIONER providing for the calculation of the actual
sales and compensating use taxes for the preceding month in the manner
set forth in subdivisions (a) and (b) of section eleven hundred thirty-
seven OF THIS PART. A person filing a long-form, part-quarterly return
for each of the months contained in a quarter shall also be required to
file a quarterly return for such quarter.
[(ii)] (9) For purposes of this article the term "short-form, part-
quarterly return" shall mean a return which shall be available for use
in filing as a return for the first two months of any quarter and only
by a person required to file a return monthly who has had at least four
successive quarterly tax periods immediately preceding the month for
which the return is to be filed and who elects such use, and is in a
form determined by the [tax commission] COMMISSIONER and providing for
the calculation of one-third of the total state and local sales and
compensating use taxes paid by the person to the [tax commission]
COMMISSIONER in the comparable quarter of the immediately preceding year
under this article and as taxes imposed pursuant to the authority of
article twenty-nine with respect to all receipts, amusement charges and
rents.
S 47. Subdivision 11 of section 1142 of the tax law, as added by chap-
ter 930 of the laws of 1982, is amended to read as follows:
11. To make such provision pursuant to rules and regulations for the
joint administration, in whole or in part, of the state and local taxes
imposed by this article and authorized by article twenty-nine of this
chapter upon the sale of [automotive fuel] PETROLEUM PRODUCTS and the
taxes imposed by article twelve-A of this chapter and authorized to be
imposed by such article, including the joint reporting, assessment,
collection, determination and refund of such taxes, and for that purpose
to prescribe that any of the [commission's] COMMISSIONER'S functions
under said articles, and any returns, forms, statements, documents or
information to be submitted to the [commission] COMMISSIONER under said
articles, any books and records to be kept for purposes of the taxes
imposed or authorized by said articles, any schedules of amounts to be
collected under said articles, any registration required under said
articles, and the payment of taxes under said articles shall be on a
joint basis with respect to the taxes imposed by said articles.
S 48. Subparagraph (i) of paragraph 3 of subdivision (a) of section
1145 of the tax law, as amended by chapter 2 of the laws of 1995, is
amended to read as follows:
A. 4011--B 90
(i) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four OF THIS PART who, without possessing
a valid certificate of authority, (A) sells tangible personal property
or services subject to tax, receives amusement charges or operates a
hotel, (B) purchases or sells tangible personal property for resale, (C)
sells [automotive fuel] PETROLEUM PRODUCTS, or (D) sells cigarettes
shall, in addition to any other penalty imposed by this chapter, be
subject to a penalty in an amount not exceeding five hundred dollars for
the first day on which such sales or purchases are made, plus an amount
not exceeding two hundred dollars for each subsequent day on which such
sales or purchases are made, not to exceed ten thousand dollars in the
aggregate.
S 49. Subparagraph (i) of paragraph 3 of subdivision (a) of section
1210 of the tax law, as amended by section 2 of part B of chapter 35 of
the laws of 2006, is amended to read as follows:
(i) Notwithstanding any other provision of law to the contrary but not
with respect to cities subject to the provisions of section eleven
hundred eight of this [article] CHAPTER, any city or county, except a
county wholly contained within a city, may provide that the taxes
imposed, pursuant to this subdivision, by such city or county on the
retail sale or use of fuel oil and coal used for residential purposes,
the retail sale or use of wood used for residential heating purposes,
the sale, other than for resale, of propane (except when sold in
containers of less than one hundred pounds), natural gas, electricity,
steam and gas, electric and steam services used for residential purposes
and the use of gas or electricity used for residential purposes may be
imposed at a lower rate than the uniform local rate imposed pursuant to
the opening paragraph of this section, as long as such rate is one of
the rates authorized by such paragraph or such sale or use may be
exempted from such taxes. Provided, however, such lower rate must apply
to all such energy sources and services and at the same rate and no such
exemption may be enacted unless such exemption applies to all such ener-
gy sources and services. The provisions of this subparagraph shall not
apply to a sale or use of [(i)] 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 [and (ii) enhanced diesel motor fuel
except in the case of a sale or use of such enhanced diesel motor fuel
used exclusively for residential purposes which is delivered into a
storage tank which is not equipped with a hose or other apparatus by
which such fuel can be dispensed into the fuel tank of a motor vehicle
and such storage tank is attached to the heating unit burning such fuel,
provided that each delivery of such fuel of over four thousand five
hundred gallons shall be evidenced by a certificate signed by the
purchaser stating that the product will be used exclusively for residen-
tial purposes].
S 50. Subdivision (c) of section 1812 of the tax law, as amended by
section 25 of subpart I of part V-1 of chapter 57 of the laws of 2009,
is amended to read as follows:
(c) Any owner of a filling station who shall willfully and knowingly
have in his OR HER custody, possession or under his OR HER control any
motor fuel or Diesel motor fuel [on which] (1) ON WHICH the taxes
imposed by or pursuant to the authority of such article have not been
assumed or paid by a distributor registered as such under such article
[or], (2) ON WHICH the taxes imposed by or pursuant to the authority of
such article have not been included in the cost to him OR HER of such
A. 4011--B 91
fuel where such taxes were required to have been passed through to him
OR HER and included in the cost to him OR HER of such fuel, OR (3)
WHICH IS DYED DIESEL MOTOR FUEL AS DEFINED BY SUBDIVISION EIGHTEEN-A OF
SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER (EXCEPT FOR WATER-WHITE
KEROSENE), shall [in either case,] be guilty of a class E felony. For
purposes of this subdivision, such owner shall willfully and knowingly
have in his OR HER custody, possession or under his OR HER control any
motor fuel or Diesel motor fuel on which such taxes have not been
assumed or paid by a distributor registered as such where such owner has
knowledge of the requirement that such taxes be paid and where, to his
OR HER knowledge, such taxes have not been assumed or paid by a regis-
tered distributor on such motor fuel or Diesel motor fuel. Such owner
shall willfully and knowingly have in his OR HER custody, possession or
under his OR HER control any motor fuel or Diesel motor fuel on which
such taxes are required to have been passed through to him OR HER and
have not been included in his OR HER cost where such owner has knowledge
of the requirement that such taxes be passed through and where to his
knowledge such taxes have not been so included. SUCH OWNER SHALL WILL-
FULLY AND KNOWINGLY HAVE IN HIS OR HER CUSTODY, POSSESSION OR UNDER HIS
OR HER CONTROL ANY DYED DIESEL MOTOR FUEL (EXCEPT WATER-WHITE KEROSENE)
WHERE SUCH OWNER HAS KNOWLEDGE OF THE REQUIREMENT THAT DYED DIESEL MOTOR
FUEL (EXCEPT WATER-WHITE KEROSENE) MAY NOT BE IN HIS OR HER CUSTODY,
POSSESSION OR UNDER HIS OR HER CONTROL.
S 51. Subdivision (e) of section 1812 of the tax law is REPEALED and
subdivision (f) is relettered subdivision (e).
S 52. Section 1812-a of the tax law, as added by chapter 261 of the
laws of 1988, is amended to read as follows:
S 1812-a. Person not registered as distributor of Diesel motor fuel.
(a) Any person who, while not registered as a distributor of Diesel
motor fuel pursuant to the provisions of article twelve-A of this chap-
ter, [engages in the enhancement,] makes a sale or use within the state
of Diesel motor fuel (other than a retail sale not in bulk or the self-
use of Diesel motor fuel which has been the subject of a retail sale),
imports or causes Diesel motor fuel to be imported into the state or
produces, refines, manufactures or compounds Diesel motor fuel within
the state shall be guilty of a misdemeanor. If, within any ninety day
period, two thousand nine hundred gallons or more of Diesel motor fuel
are subjected to [enhancement or] sale or use (other than a retail sale
not in bulk or the self-use of Diesel motor fuel which has been the
subject of a retail sale) within the state or are imported or caused to
be imported by any person while not so registered as a distributor of
Diesel motor fuel, such person shall be guilty of a class E felony.
(b) Any person whose registration under article twelve-A of this chap-
ter applies only to the importation, sale and distribution of Diesel
motor fuel for [the purposes] USE OTHER THAN ON A PUBLIC HIGHWAY AS
described in subparagraph (i) of paragraph (b) of subdivision three of
section two hundred eighty-two-a of this chapter who delivers NON-HIGH-
WAY Diesel motor fuel at a filling station [other than for the sole
purpose of heating such station] or into a repository equipped with a
hose or other apparatus by which NON-HIGHWAY Diesel motor fuel can be
dispensed into the fuel tank of a motor vehicle, other than such a
repository which is located on the premises of such registrant where the
Diesel motor fuel delivered therein is used exclusively for the purpose
of fueling motor vehicles operated by registrant for the purpose of
distributing Diesel motor fuel for the purposes described in such
subparagraph (i), shall be guilty of a misdemeanor. If, within any nine-
A. 4011--B 92
ty day period, any such person whose registration under article twelve-A
of this chapter applies only to the importation, sale and distribution
of NON-HIGHWAY Diesel motor fuel for the purposes described in subpara-
graph (i) of paragraph (b) of subdivision three of section two hundred
eighty-two-a of this chapter so unlawfully delivers a total of one thou-
sand gallons or more of Diesel motor fuel at such filling station or
stations or into such repository or repositories (or a combination of
both such filling stations and repositories), then, such person shall be
guilty of a class E felony.
(c) Any person who has twice been convicted under this section shall
be guilty of a class E felony for any subsequent violation of this
section, regardless of the amount of Diesel motor fuel involved in such
violation. For purposes of this section, the terms ["enhancement"]
"NON-HIGHWAY DIESEL MOTOR FUEL" and "retail sale not in bulk" shall have
the same meaning they have for purposes of article twelve-A of this
chapter.
S 53. Subdivisions (a) and (b) of section 1817 of the tax law, as
amended by section 30 of subpart I of part V-1 of chapter 57 of the laws
of 2009, is amended to read as follows:
(a) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four of this chapter who, without possess-
ing a valid certificate of authority, willfully (1) sells tangible
personal property or services subject to tax, receives amusement charges
or operates a hotel, (2) purchases or sells tangible personal property
for resale, or (3) sells [automotive fuel] PETROLEUM PRODUCTS; and any
person who fails to surrender a certificate of authority as required by
such article shall be guilty of a misdemeanor.
(b) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four of this chapter who within five years
after a determination by the [tax commission] COMMISSIONER, pursuant to
such section, to suspend, revoke or refuse to issue a certificate of
authority has become final, and without possession of a valid certif-
icate of authority (1) sells tangible personal property or services
subject to tax, receives amusement charges or operates a hotel, (2)
purchases or sells tangible personal property for resale, or (3) sells
[automotive fuel] PETROLEUM PRODUCTS, shall be guilty of a misdemeanor.
It shall be an affirmative defense that such person performed the acts
described in this subdivision without knowledge of such determination.
Any person who violates a provision of this subdivision, upon
conviction, shall be subject to a fine in any amount authorized by this
article, but not less than five hundred dollars, in addition to any
other penalty provided by law.
S 54. The section heading, subdivisions (a), (b) and (c), paragraph 3,
subparagraph (D) of paragraph 4 and paragraph 6 of subdivision (d) and
subdivisions (e) and (g) of section 1848 of the tax law, as added by
chapter 276 of the laws of 1986 and subparagraph (D) of paragraph 4 and
paragraph 6 of subdivision (d) as amended by chapter 190 of the laws of
1990, are amended to read as follows:
Forfeiture action with respect to motor fuel and DIESEL MOTOR FUEL AND
vehicle carrying such fuel. (a) Temporary seizure. Whenever a police
officer designated in section 1.20 of the criminal procedure law or a
peace officer designated in subdivision four of section 2.10 of such
law, acting pursuant to his special duties, shall discover any motor
fuel OR DIESEL MOTOR FUEL which is being imported for use, distribution,
storage or sale in the state where the person importing or causing such
motor fuel OR DIESEL MOTOR FUEL to be imported is not registered as a
A. 4011--B 93
distributor under section two hundred eighty-three OR SECTION TWO
HUNDRED EIGHTY-TWO-A, of this chapter, AS THE CASE MAY BE, such police
officer or peace officer is hereby authorized to seize and take
possession of such motor fuel OR DIESEL MOTOR FUEL, together with the
vehicle or other means of transportation used to transport such motor
fuel.
(b) Retention of property. The department [of taxation and finance]
shall hold and safely keep such motor fuel, DIESEL MOTOR FUEL, vehicle
or other means of transportation seized pursuant to subdivision (a) of
this section. Seized motor fuel OR DIESEL MOTOR FUEL may be deposited
to the credit of the department [of taxation and finance] at a terminal
or other storage facility within the state or may be sold by the depart-
ment on the open market.
(c) Confirmation of temporary seizure. Within five business days after
the temporary seizure of motor fuel, DIESEL MOTOR FUEL, vehicle or other
means of transportation pursuant to subdivision (a) of this section, the
department [of taxation and finance] shall move in supreme court in any
county, on such notice as the court shall direct to the owners of the
property, to confirm the temporary seizure. If the department [of taxa-
tion and finance] fails to make such motion within the required period,
such seized property shall be restored to the owners thereof as provided
in subdivision (e) of this section. On a motion for an order confirming
the seizure, the department [of taxation and finance] shall show, by
affidavit and such other written evidence as may be submitted, that
there is a cause of action for forfeiture under subdivision (d) of this
section and that there are grounds for confirmation of the seizure. The
department shall include, in its motion papers, an inventory of all
seized property. The court shall grant an application for an order
confirming the seizure when it determines that there is a substantial
probability that the department [of taxation and finance] will prevail
on the issue of forfeiture.
(3) Forfeiture of motor fuel OR DIESEL MOTOR FUEL together with the
vehicle or other means of transportation used to transport such motor
fuel OR DIESEL MOTOR FUEL shall be adjudged where the department [of
taxation and finance] proves, by clear and convincing evidence, that the
person importing or causing such motor fuel OR DIESEL MOTOR FUEL to be
imported was not registered as a distributor under section two hundred
eighty-three OR SECTION TWO HUNDRED EIGHTY-TWO-A of this chapter, AS THE
CASE MAY BE. All defendants in a forfeiture action brought pursuant to
this article shall have the right to trial by jury on any issue of fact.
(D) The court may grant the relief provided in subparagraph (A) [here-
of] OF THIS PARAGRAPH if it finds that such relief is warranted by the
existence of some compelling factor, consideration or circumstance
demonstrating that forfeiture of the property or any part thereof, would
not serve the ends of justice. Reporting and payment of the tax imposed
pursuant to article twelve-A or article twenty-eight of this chapter
with respect to such motor fuel OR DIESEL MOTOR FUEL subsequent to the
seizure of such fuel shall not constitute a compelling factor, consider-
ation or circumstance warranting the granting of the relief provided for
in subparagraph (A) [hereof] of this paragraph. In determining whether
such relief is warranted by the existence of some compelling factor,
consideration or circumstances pursuant to this paragraph, the court
may, however, take into account the fact that such taxes with respect to
the seized fuel have been reported and remitted to the state prior to
the temporary seizure of such fuel if the unregistered importation into
the state was effected in good faith and without knowledge of the
A. 4011--B 94
requirement of registration and without intent to evade tax. The court
must issue a written decision, stating the basis for an order issued
pursuant to this paragraph.
(6) The total that may be recovered shall not exceed the value of the
motor fuel OR DIESEL MOTOR FUEL seized and, in addition, either the
value of the vehicle or other means of transportation used to transport
such fuel or three times the amount of the tax and penalty under arti-
cles twelve-A, thirteen-A and twenty-eight and pursuant to the authority
of article twenty-nine of this chapter with respect to the motor fuel OR
DIESEL MOTOR FUEL, whichever is less.
(e) Return of property. If (1) the department [of taxation and
finance] fails to move for confirmation of the seizure pursuant to
subdivision (c) of this section or (2) a court denies an application for
an order confirming the seizure or (3) judgment is entered against the
department in the forfeiture action and that judgment is affirmed after
all appeals are exhausted, then the department shall restore such seized
motor fuel OR DIESEL MOTOR FUEL, or motor fuel OR DIESEL MOTOR FUEL of a
like quantity and type, or such seized vehicle or other means of trans-
portation to the owners thereof. Alternatively, if such seized motor
fuel OR DIESEL MOTOR FUEL has been sold as provided in subdivision (b)
of this section, the department shall pay to the owners of such motor
fuel OR DIESEL MOTOR FUEL the proceeds of such sale or, if greater, an
amount of money representing the fair market value of the motor fuel OR
DIESEL MOTOR FUEL at the time of the seizure.
(g) Disposal of property. The department [of taxation and finance],
after a judicial determination of forfeiture, shall, in its discretion,
either retain such seized property for its official use or sell such
forfeited property at public sale. The net proceeds of any such sale, or
of any sale of seized motor fuel OR DIESEL MOTOR FUEL as provided in
subdivision (b) of this section, after deduction of the lawful expenses
incurred, shall be deposited and disposed of pursuant to the provisions
of section one hundred seventy-one-a of this chapter with respect to
deposit and disposition of revenue.
S 55. Paragraph (q) of subdivision 34 of section 1.20 of the criminal
procedure law, as amended by chapter 318 of the laws of 2002, is amended
to read as follows:
(q) An employee of the department of taxation and finance (i) assigned
to enforcement of the taxes imposed under or pursuant to the authority
of article twelve-A of the tax law and administered by the commissioner
of taxation and finance, taxes imposed under or pursuant to the authori-
ty of article eighteen of the tax law and administered by the commis-
sioner, taxes imposed under article twenty of the tax law, or sales or
compensating use taxes relating to [automotive fuel] PETROLEUM PRODUCTS
or cigarettes imposed under article twenty-eight or pursuant to the
authority of article twenty-nine of the tax law and administered by the
commissioner or (ii) designated as a revenue crimes specialist and
assigned to the enforcement of the taxes described in paragraph (c) of
subdivision four of section 2.10 of this title, for the purpose of
applying for and executing search warrants under article six hundred
ninety of this chapter, for the purpose of acting as a claiming agent
under article thirteen-A of the civil practice law and rules in
connection with the enforcement of the taxes referred to above and for
the purpose of executing warrants of arrest relating to the respective
crimes specified in subdivision four of section 2.10 of this title.
A. 4011--B 95
S 56. Paragraph (a) of subdivision 4 of section 2.10 of the criminal
procedure law, as amended by chapter 2 of the laws of 1995, is amended
to read as follows:
(a) to the enforcement of any of the criminal or seizure and forfei-
ture provisions of the tax law relating to (i) taxes imposed under or
pursuant to the authority of article twelve-A of the tax law and admin-
istered by the commissioner, (ii) taxes imposed under or pursuant to the
authority of article eighteen of the tax law and administered by the
commissioner, (iii) taxes imposed under article twenty of the tax law,
or (iv) sales or compensating use taxes relating to [automotive fuel]
PETROLEUM PRODUCTS or cigarettes imposed under article twenty-eight or
pursuant to the authority of article twenty-nine of the tax law and
administered by the commissioner or
S 57. Sections 11-2033, 11-2034, 11-2035, 11-2036, 11-2037 and 11-2038
of the administrative code of the city of New York are REPEALED.
S 58. This act shall take effect September 1, 2011 and shall apply to
sales or uses occurring on or after such date in accordance with the
applicable transitional provisions in sections 1106 and 1217 of the tax
law; provided, however, that:
(a) the amendments to subdivisions 22 and 23 of section 282 of the tax
law, made by section one of this act shall not affect the repeal of such
subdivisions and shall be deemed repealed therewith;
(b) the amendments to paragraph 2 of subdivision (a) of section 1102
of the tax law made by section thirty-nine of this act shall be subject
to the expiration and reversion of such paragraph 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 thirty-nine-a of this act shall take
effect; and
(c) the amendments to subdivision (j) of section 1115 of the tax law
made by section forty-one 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 forty-one-a of this act shall take effect.
PART L
Section 1. Subdivision 22 of section 282 of the tax law, as added by
section 1 of part W-1 of chapter 109 of the laws of 2006, is amended to
read as follows:
22. "E85" means a [mixture consisting by volume of eighty-five
percent] FUEL BLEND CONSISTING OF ethanol and [the remainder of which
is] motor fuel, WHICH MEETS THE ASTM INTERNATIONAL ACTIVE STANDARD D5798
FOR FUEL ETHANOL.
S 2. Section 19 of part W-1 of chapter 109 of the laws of 2006, amend-
ing the tax law relating to providing exemptions, reimbursements and
credits from various taxes for certain alternative fuels, is amended to
read as follows:
S 19. This act shall take effect immediately; provided, however, that
sections one through thirteen of this act shall take effect September 1,
2006 and shall be deemed repealed on September 1, [2011] 2012 and such
repeal shall apply in accordance with the applicable transitional
provisions of sections 1106 and 1217 of the tax law, and shall apply to
sales made, fuel compounded or manufactured, and uses occurring on or
after such date, and with respect to sections seven through eleven of
this act, in accordance with applicable transitional provisions of
sections 1106 and 1217 of the tax law; provided, however, that the
A. 4011--B 96
commissioner of taxation and finance shall be authorized on and after
the date this act shall have become a law to adopt and amend any rules
or regulations and to take any steps necessary to implement the
provisions of this act; provided further that sections fourteen through
sixteen of this act shall take effect immediately and shall apply to
taxable years beginning on or after January 1, 2006.
S 3. This act shall take effect immediately; provided, however, that
the amendments made to subdivision 22 of section 282 of the tax law made
by section one of this act shall not affect the repeal of such subdivi-
sion and shall be deemed repealed therewith.
PART M
Section 1. Section 11 of part EE of chapter 63 of the laws of 2000,
amending the tax law and other laws relating to modifying the distrib-
ution of funds from the motor vehicle fuel excise tax, as amended by
section 1-b of part A of chapter 63 of the laws of 2005, is amended to
read as follows:
S 11. Notwithstanding any other law, rule or regulation to the contra-
ry, the comptroller is hereby authorized and directed to deposit in
equal monthly installments and distribute pursuant to the provisions of
subdivision (d) of section 301-j of the tax law amounts listed below to
the credit of the dedicated highway and bridge trust fund and the dedi-
cated mass transportation trust fund from [taxes and fees] ALL MOTOR
VEHICLE RECEIPTS now deposited into the general fund pursuant to
provisions of the vehicle and traffic law: twenty-eight million four
hundred thousand dollars from April 1, 2002 through March 31, 2003,
sixty-seven million nine hundred thousand dollars from April 1, 2003
through March 31, 2004, one hundred seventy million one hundred thousand
dollars from April 1, 2004 through March 31, 2005, and one hundred
percent of all [taxes and fees] MOTOR VEHICLE RECEIPTS pursuant to
provisions of the vehicle and traffic law that are not otherwise
directed to be deposited in a fund other than the general fund from
April 1, 2005 through March 31, 2006, and the same amount each year
thereafter.
S 2. This act shall take effect April 1, 2011.
PART N
Intentionally omitted.
PART O
Section 1. Subparagraph (ii) of paragraph 1 of subdivision b of
section 1612 of the tax law is amended by adding a new clause (I) to
read as follows:
(I) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, FREE PLAY
ALLOWANCE CREDITS AUTHORIZED BY THE DIVISION PURSUANT TO SUBDIVISION F
OF SECTION SIXTEEN HUNDRED SEVENTEEN-A OF THIS ARTICLE SHALL NOT BE
INCLUDED IN THE CALCULATION OF THE TOTAL AMOUNT WAGERED ON VIDEO LOTTERY
GAMES, THE TOTAL AMOUNT WAGERED AFTER PAYOUT OF PRIZES, THE VENDOR FEES
PAYABLE TO THE OPERATORS OF VIDEO LOTTERY FACILITIES, VENDOR'S CAPITAL
AWARDS, FEES PAYABLE TO THE DIVISION'S VIDEO LOTTERY GAMING EQUIPMENT
CONTRACTORS, OR RACING SUPPORT PAYMENTS.
S 2. Section 1617-a of the tax law is amended by adding a new subdivi-
sion f to read as follows:
A. 4011--B 97
F. (1) THE DIVISION MAY ADMINISTER A FREE PLAY ALLOWANCE PROGRAM TO
OFFER PLAYERS OR PROSPECTIVE PLAYERS OF VIDEO LOTTERY GAMES FREE PLAY
CREDITS FOR THE PURPOSE OF INCREASING REVENUES EARNED BY THE VIDEO
LOTTERY PROGRAM FOR THE SUPPORT OF EDUCATION. FOR THE PURPOSES OF THIS
SUBDIVISION, "FREE PLAY ALLOWANCE CREDIT" MEANS A SPECIFIED DOLLAR
AMOUNT THAT (I) MAY BE USED BY A PLAYER TO PLAY A VIDEO LOTTERY GAME
WITHOUT PAYING ANY OTHER CONSIDERATION, AND (II) IS NOT USED IN THE
CALCULATION OF TOTAL REVENUE WAGERED AFTER PAYOUT OF PRIZES.
(2) FOR EACH VIDEO LOTTERY FACILITY, THE DIVISION SHALL AUTHORIZE THE
USE OF FREE PLAY ALLOWANCE CREDITS IF THE OPERATOR OF SUCH FACILITY
SUBMITS A WRITTEN PLAN FOR THE USE OF THE FREE PLAY ALLOWANCE THAT THE
DIVISION DETERMINES IS DESIGNED TO INCREASE THE AMOUNT OF REVENUE EARNED
BY VIDEO LOTTERY GAMING AT SUCH FACILITY FOR THE SUPPORT OF EDUCATION.
(3) FOR EACH VIDEO LOTTERY FACILITY, THE ANNUAL VALUE OF THE FREE PLAY
ALLOWANCE CREDITS AUTHORIZED FOR USE BY THE OPERATOR PURSUANT TO THIS
SUBDIVISION SHALL NOT EXCEED AN AMOUNT EQUAL TO TEN PERCENT OF THE TOTAL
AMOUNT WAGERED ON VIDEO LOTTERY GAMES AFTER PAYOUT OF PRIZES. THE DIVI-
SION SHALL ESTABLISH PROCEDURES TO ASSURE THAT FREE PLAY ALLOWANCE CRED-
ITS DO NOT EXCEED SUCH AMOUNT.
(4) THE DIVISION, IN CONJUNCTION WITH THE DIRECTOR OF THE BUDGET, MAY
SUSPEND THE USE OF FREE PLAY ALLOWANCE CREDITS AUTHORIZED PURSUANT TO
THIS SUBDIVISION WHENEVER THEY JOINTLY DETERMINE THAT THE USE OF FREE
PLAY ALLOWANCE CREDITS ARE NOT EFFECTIVE IN INCREASING THE AMOUNT OF
REVENUE EARNED FOR THE SUPPORT OF EDUCATION, AND SUCH USE MAY NOT BE
RESUMED UNLESS THE OPERATOR OF SUCH FACILITY SUBMITS A NEW OR REVISED
WRITTEN PLAN FOR THE USE OF THE FREE PLAY ALLOWANCE THAT THE DIVISION
DETERMINES IS DESIGNED MORE EFFECTIVELY TO PRODUCE AN INCREASE IN THE
AMOUNT OF REVENUE EARNED BY VIDEO LOTTERY GAMING AT SUCH FACILITY FOR
THE SUPPORT OF EDUCATION.
(5) NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO PROHIBIT THE OPERA-
TOR OF A VIDEO LOTTERY FACILITY FROM OFFERING FREE PLAY CREDITS TO PLAY-
ERS OR PROSPECTIVE PLAYERS OF VIDEO LOTTERY GAMES WHEN THE VALUE OF SUCH
FREE PLAY CREDITS IS INCLUDED IN THE CALCULATION OF THE TOTAL AMOUNT
WAGERED ON VIDEO LOTTERY GAMES AND THE TOTAL AMOUNT WAGERED AFTER PAYOUT
OF PRIZES, AND THE OPERATOR OF SUCH FACILITY PAYS THE DIVISION THE FULL
AMOUNT DUE AS THE RESULT OF SUCH CALCULATIONS.
(6) THE DIVISION MAY AMEND THE CONTRACT WITH THE PROVIDER OF THE
CENTRAL COMPUTER SYSTEM THAT CONTROLS THE VIDEO LOTTERY NETWORK DURING
THE TERM OF SUCH CONTRACT IN EFFECT ON THE EFFECTIVE DATE OF THIS SUBDI-
VISION TO PROVIDE ADDITIONAL CONSIDERATION TO SUCH PROVIDER IN AN AMOUNT
DETERMINED BY THE DIVISION TO BE NECESSARY TO COMPENSATE FOR (I) PROC-
ESSING FREE PLAY ALLOWANCE TRANSACTIONS AND (II) SYSTEM UPDATES AND
MODIFICATIONS OTHERWISE NEEDED AS OF SUCH EFFECTIVE DATE.
S 3. This act shall take effect immediately.
PART P
Section 1. Paragraph 2 of subdivision a of section 1612 of the tax
law, as amended by section 1 of part P of chapter 85 of the laws of
2002, is amended to read as follows:
(2) sixty-five percent of the total amount for which tickets have been
sold for the "Instant Cash" game in which the participant purchases a
preprinted ticket on which dollar amounts or symbols are concealed on
the face or the back of such ticket, provided however up to [three such]
FIVE NEW games may be offered during the fiscal year, seventy-five
percent of the total amount for which tickets have been sold for such
A. 4011--B 98
[three] FIVE games in which the participant purchases a preprinted tick-
et on which dollar amounts or symbols are concealed on the face or the
back of such ticket; or
S 2. This act shall take effect immediately.
PART Q
Intentionally omitted.
PART R
Intentionally omitted.
PART S
Section 1. Paragraph (a) of subdivision 1 of section 1003 of the
racing, pari-mutuel wagering and breeding law, as amended by section 1
of part C of chapter 134 of the laws of 2010, is amended to read as
follows:
(a) Any racing association or corporation or regional off-track
betting corporation, authorized to conduct pari-mutuel wagering under
this chapter, desiring to display the simulcast of horse races on which
pari-mutuel betting shall be permitted in the manner and subject to the
conditions provided for in this article may apply to the board for a
license so to do. Applications for licenses shall be in such form as may
be prescribed by the board and shall contain such information or other
material or evidence as the board may require. No license shall be
issued by the board authorizing the simulcast transmission of thorough-
bred races from a track located in Suffolk county. The fee for such
licenses shall be five hundred dollars per simulcast facility per year
payable by the licensee to the board for deposit into the general fund.
Except as provided herein, the board shall not approve any application
to conduct simulcasting into individual or group residences, homes or
other areas for the purposes of or in connection with pari-mutuel wager-
ing. The board may approve simulcasting into residences, homes or other
areas to be conducted jointly by one or more regional off-track betting
corporations and one or more of the following: a franchised corporation,
thoroughbred racing corporation or a harness racing corporation or asso-
ciation; provided (i) the simulcasting consists only of those races on
which pari-mutuel betting is authorized by this chapter at one or more
simulcast facilities for each of the contracting off-track betting
corporations which shall include wagers made in accordance with section
one thousand fifteen, one thousand sixteen and one thousand seventeen of
this article; provided further that the contract provisions or other
simulcast arrangements for such simulcast facility shall be no less
favorable than those in effect on January first, two thousand five; (ii)
that each off-track betting corporation having within its geographic
boundaries such residences, homes or other areas technically capable of
receiving the simulcast signal shall be a contracting party; (iii) the
distribution of revenues shall be subject to contractual agreement of
the parties except that statutory payments to non-contracting parties,
if any, may not be reduced; provided, however, that nothing herein to
the contrary shall prevent a track from televising its races on an
irregular basis primarily for promotional or marketing purposes as found
by the board. For purposes of this paragraph, the provisions of section
one thousand thirteen of this article shall not apply. Any agreement
A. 4011--B 99
authorizing an in-home simulcasting experiment commencing prior to May
fifteenth, nineteen hundred ninety-five, may, and all its terms, be
extended until June thirtieth, two thousand [eleven] TWELVE; provided,
however, that any party to such agreement may elect to terminate such
agreement upon conveying written notice to all other parties of such
agreement at least forty-five days prior to the effective date of the
termination, via registered mail. Any party to an agreement receiving
such notice of an intent to terminate, may request the board to mediate
between the parties new terms and conditions in a replacement agreement
between the parties as will permit continuation of an in-home experiment
until June thirtieth, two thousand [eleven] TWELVE; and (iv) no in-home
simulcasting in the thoroughbred special betting district shall occur
without the approval of the regional thoroughbred track.
S 2. Subparagraph (iii) of paragraph d of subdivision 3 of section
1007 of the racing, pari-mutuel wagering and breeding law, as amended by
section 2 of part C of chapter 134 of the laws of 2010, is amended to
read as follows:
(iii) Of the sums retained by a receiving track located in Westchester
county on races received from a franchised corporation, for the period
commencing January first, two thousand eight and continuing through June
thirtieth, two thousand [eleven] TWELVE, the amount used exclusively for
purses to be awarded at races conducted by such receiving track shall be
computed as follows: of the sums so retained, two and one-half percent
of the total pools. Such amount shall be increased or decreased in the
amount of fifty percent of the difference in total commissions deter-
mined by comparing the total commissions available after July twenty-
first, nineteen hundred ninety-five to the total commissions that would
have been available to such track prior to July twenty-first, nineteen
hundred ninety-five.
S 3. The opening paragraph of subdivision 1 of section 1014 of the
racing, pari-mutuel wagering and breeding law, as amended by section 3
of part C of chapter 134 of the laws of 2010, is amended to read as
follows:
The provisions of this section shall govern the simulcasting of races
conducted at thoroughbred tracks located in another state or country on
any day during which a franchised corporation is conducting a race meet-
ing in Saratoga county at Saratoga thoroughbred racetrack until June
thirtieth, two thousand [eleven] TWELVE and on any day regardless of
whether or not a franchised corporation is conducting a race meeting in
Saratoga county at Saratoga thoroughbred racetrack after June thirtieth,
two thousand [eleven] TWELVE. On any day on which a franchised corpo-
ration has not scheduled a racing program but a thoroughbred racing
corporation located within the state is conducting racing, every off-
track betting corporation branch office and every simulcasting facility
licensed in accordance with section one thousand seven (that have
entered into a written agreement with such facility's representative
horsemen's organization, as approved by the board), one thousand eight,
or one thousand nine of this article shall be authorized to accept
wagers and display the live simulcast signal from thoroughbred tracks
located in another state or foreign country subject to the following
provisions:
S 4. Subdivision 1 of section 1015 of the racing, pari-mutuel wagering
and breeding law, as amended by section 4 of part C of chapter 134 of
the laws of 2010, is amended to read as follows:
1. The provisions of this section shall govern the simulcasting of
races conducted at harness tracks located in another state or country
A. 4011--B 100
during the period July first, nineteen hundred ninety-four through June
thirtieth, two thousand [eleven] TWELVE. This section shall supersede
all inconsistent provisions of this chapter.
S 5. The opening paragraph of subdivision 1 of section 1016 of the
racing, pari-mutuel wagering and breeding law, as amended by section 5
of part C of chapter 134 of the laws of 2010, is amended to read as
follows:
The provisions of this section shall govern the simulcasting of races
conducted at thoroughbred tracks located in another state or country on
any day during which a franchised corporation is not conducting a race
meeting in Saratoga county at Saratoga thoroughbred racetrack until June
thirtieth, two thousand [eleven] TWELVE. Every off-track betting corpo-
ration branch office and every simulcasting facility licensed in accord-
ance with section one thousand seven that have entered into a written
agreement with such facility's representative horsemen's organization as
approved by the board, one thousand eight or one thousand nine of this
article shall be authorized to accept wagers and display the live full-
card simulcast signal of thoroughbred tracks (which may include quarter
horse or mixed meetings provided that all such wagering on such races
shall be construed to be thoroughbred races) located in another state or
foreign country, subject to the following provisions; provided, however,
no such written agreement shall be required of a franchised corporation
licensed in accordance with section one thousand seven of this article:
S 6. The opening paragraph of section 1018 of the racing, pari-mutuel
wagering and breeding law, as amended by section 6 of part C of chapter
134 of the laws of 2010, is amended to read as follows:
Notwithstanding any other provision of this chapter, for the period
July twenty-fifth, two thousand one through September eighth, two thou-
sand [ten] ELEVEN, when a franchised corporation is conducting a race
meeting within the state at Saratoga Race Course, every off-track
betting corporation branch office and every simulcasting facility
licensed in accordance with section one thousand seven (that has entered
into a written agreement with such facility's representative horsemen's
organization as approved by the board), one thousand eight or one thou-
sand nine of this article shall be authorized to accept wagers and
display the live simulcast signal from thoroughbred tracks located in
another state, provided that such facility shall accept wagers on races
run at all in-state thoroughbred tracks which are conducting racing
programs subject to the following provisions; provided, however, no such
written agreement shall be required of a franchised corporation licensed
in accordance with section one thousand seven of this article.
S 7. Section 32 of chapter 281 of the laws of 1994, amending the
racing, pari-mutuel wagering and breeding law and other laws relating to
simulcasting, as amended by section 7 of part C of chapter 134 of the
laws of 2010, is amended to read as follows:
S 32. This act shall take effect immediately and the pari-mutuel tax
reductions in section six of this act shall expire and be deemed
repealed on July 1, [2011] 2012; provided, however, that nothing
contained herein shall be deemed to affect the application, qualifica-
tion, expiration, or repeal of any provision of law amended by any
section of this act, and such provisions shall be applied or qualified
or shall expire or be deemed repealed in the same manner, to the same
extent and on the same date as the case may be as otherwise provided by
law; provided further, however, that sections twenty-three and twenty-
five of this act shall remain in full force and effect only until May 1,
1997 and at such time shall be deemed to be repealed.
A. 4011--B 101
S 8. Section 54 of chapter 346 of the laws of 1990, amending the
racing, pari-mutuel wagering and breeding law and other laws relating to
simulcasting and the imposition of certain taxes, as amended by section
8 of part C of chapter 134 of the laws of 2010, is amended to read as
follows:
S 54. This act shall take effect immediately; provided, however,
sections three through twelve of this act shall take effect on January
1, 1991, and section 1013 of the racing, pari-mutuel wagering and breed-
ing law, as added by section thirty-eight of this act, shall expire and
be deemed repealed on July 1, [2011] 2012; and section eighteen of this
act shall take effect on July 1, 2008 and sections fifty-one and fifty-
two of this act shall take effect as of the same date as chapter 772 of
the laws of 1989 took effect.
S 9. Paragraph (a) of subdivision 1 of section 238 of the racing,
pari-mutuel wagering and breeding law, as amended by section 10 of part
C of chapter 134 of the laws of 2010, is amended to read as follows:
(a) The franchised corporation authorized under this chapter to
conduct pari-mutuel betting at a race meeting or races run thereat shall
distribute all sums deposited in any pari-mutuel pool to the holders of
winning tickets therein, provided such tickets be presented for payment
before April first of the year following the year of their purchase,
less an amount which shall be established and retained by such fran-
chised corporation of between twelve to seventeen per centum of the
total deposits in pools resulting from on-track regular bets, and four-
teen to twenty-one per centum of the total deposits in pools resulting
from on-track multiple bets and fifteen to twenty-five per centum of the
total deposits in pools resulting from on-track exotic bets and fifteen
to thirty-six per centum of the total deposits in pools resulting from
on-track super exotic bets, plus the breaks. The retention rate to be
established is subject to the prior approval of the racing and wagering
board. Such rate may not be changed more than once per calendar quarter
to be effective on the first day of the calendar quarter. "Exotic bets"
and "multiple bets" shall have the meanings set forth in section five
hundred nineteen of this chapter. "Super exotic bets" shall have the
meaning set forth in section three hundred one of this chapter. For
purposes of this section, a "pick six bet" shall mean a single bet or
wager on the outcomes of six races. The breaks are hereby defined as the
odd cents over any multiple of five for payoffs greater than one dollar
five cents but less than five dollars, over any multiple of ten for
payoffs greater than five dollars but less than twenty-five dollars,
over any multiple of twenty-five for payoffs greater than twenty-five
dollars but less than two hundred fifty dollars, or over any multiple of
fifty for payoffs over two hundred fifty dollars. Out of the amount so
retained there shall be paid by such franchised corporation to the
commissioner of taxation and finance, as a reasonable tax by the state
for the privilege of conducting pari-mutuel betting on the races run at
the race meetings held by such franchised corporation, the following
percentages of the total pool for regular and multiple bets five per
centum of regular bets and four per centum of multiple bets plus twenty
per centum of the breaks; for exotic wagers seven and one-half per
centum plus twenty per centum of the breaks, and for super exotic bets
seven and one-half per centum plus fifty per centum of the breaks. For
the period June first, nineteen hundred ninety-five through September
ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be
three per centum and such tax on multiple wagers shall be two and one-
half per centum, plus twenty per centum of the breaks. For the period
A. 4011--B 102
September tenth, nineteen hundred ninety-nine through March thirty-
first, two thousand one, such tax on all wagers shall be two and six-
tenths per centum and for the period April first, two thousand one
through December thirty-first, two thousand [eleven] TWELVE, such tax on
all wagers shall be one and six-tenths per centum, plus, in each such
period, twenty per centum of the breaks. Payment to the New York state
thoroughbred breeding and development fund by such franchised corpo-
ration shall be one-half of one per centum of total daily on-track pari-
mutuel pools resulting from regular, multiple and exotic bets and three
per centum of super exotic bets provided, however, that for the period
September tenth, nineteen hundred ninety-nine through March thirty-
first, two thousand one, such payment shall be six-tenths of one per
centum of regular, multiple and exotic pools and for the period April
first, two thousand one through December thirty-first, two thousand
[eleven] TWELVE, such payment shall be seven-tenths of one per centum of
such pools.
S 10. Subdivision 5 of section 1012 of the racing, pari-mutuel wager-
ing and breeding law, as amended by section 11 of part C of chapter 134
of the laws of 2010, is amended to read as follows:
5. The provisions of this section shall expire and be of no further
force and effect after June thirtieth, two thousand [eleven] TWELVE.
S 11. This act shall take effect immediately.
PART T
Section 1. Subsections (a), (b), and (c) of section 601 of the tax
law, as amended by section 1 of part Z-1 of chapter 57 of the laws of
2009, are amended to read as follows:
(a) Resident married individuals filing joint returns and resident
surviving spouses. There is hereby imposed for each taxable year on the
New York taxable income of every resident married individual who makes a
single return jointly with his spouse under subsection (b) of section
six hundred fifty-one and on the New York taxable income of every resi-
dent surviving spouse a tax determined in accordance with the following
tables:
(1) FOR TAXABLE YEARS BEGINNING AFTER TWO THOUSAND ELEVEN AND BEFORE
TWO THOUSAND THIRTEEN:
IF THE NEW YORK TAXABLE INCOME IS: THE TAX IS:
NOT OVER $16,000 4% OF THE NEW YORK TAXABLE INCOME
OVER $16,000 BUT NOT OVER $22,000 $640 PLUS 4.5% OF EXCESS OVER
$16,000
OVER $22,000 BUT NOT OVER $26,000 $910 PLUS 5.25% OF EXCESS OVER
$22,000
OVER $26,000 BUT NOT OVER $40,000 $1,120 PLUS 5.9% OF EXCESS OVER
$26,000
OVER $40,000 BUT NOT OVER $1,000,000 $1,946 PLUS 6.85% OF EXCESS OVER
OVER $40,000
OVER $1,000,000 $67,706 PLUS 8.97% OF EXCESS
OVER $1,000,000
(2) For taxable years beginning after two thousand eight and before
two thousand twelve:
If the New York taxable income is: The tax is:
Not over $16,000 4% of the New York taxable
A. 4011--B 103
income
Over $16,000 but not over $22,000 $640 plus 4.5% of excess over
$16,000
Over $22,000 but not over $26,000 $910 plus 5.25% of excess over
$22,000
Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over
$26,000
Over $40,000 but not over $300,000 $1,946 plus 6.85% of excess over
$40,000
Over $300,000 but not over $500,000 $19,756 plus 7.85% of excess over
$300,000
Over $500,000 $35,456 plus 8.97% of excess over
$500,000
[(2)] (3) For taxable years beginning after two thousand five and
before two thousand nine and after two thousand [eleven] TWELVE:
If the New York taxable income is: The tax is:
Not over $16,000 4% of the New York taxable
income
Over $16,000 but not over $22,000 $640 plus 4.5% of excess over
$16,000
Over $22,000 but not over $26,000 $910 plus 5.25% of excess over
$22,000
Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over
$26,000
Over $40,000 $1,946 plus 6.85% of excess over
$40,000
[(3)] (4) For taxable years beginning in two thousand five:
If the New York taxable income is: The tax is:
Not over $16,000 4% of the New York taxable
income
Over $16,000 but not over $22,000 $640 plus 4.5% of excess over
$16,000
Over $22,000 but not over $26,000 $910 plus 5.25% of excess over
$22,000
Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over
$26,000
Over $40,000 but not over $150,000 $1,946 plus 6.85% of excess over
$40,000
Over $150,000 but not over $500,000 $9,481 plus 7.25% of excess over
$150,000
Over $500,000 $34,856 plus 7.7% of excess over
$500,000
[(4)] (5) For taxable years beginning in two thousand four:
If the New York taxable income is: The tax is:
Not over $16,000 4% of the New York taxable
income
Over $16,000 but not over $22,000 $640 plus 4.5% of excess over
$16,000
Over $22,000 but not over $26,000 $910 plus 5.25% of excess over
A. 4011--B 104
$22,000
Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over
$26,000
Over $40,000 but not over $150,000 $1,946 plus 6.85% of excess over
$40,000
Over $150,000 but not over $500,000 $9,481 plus 7.375% of excess over
$150,000
Over $500,000 $35,294 plus 7.7% of excess over
$500,000
[(5)] (6) For taxable years beginning in two thousand three:
If the New York taxable income is: The tax is:
Not over $16,000 4% of the New York taxable
income
Over $16,000 but not over $22,000 $640 plus 4.5% of excess over
$16,000
Over $22,000 but not over $26,000 $910 plus 5.25% of excess over
$22,000
Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over
$26,000
Over $40,000 but not over $150,000 $1,946 plus 6.85% of excess over
$40,000
Over $150,000 but not over $500,000 $9,481 plus 7.5% of excess over
$150,000
Over $500,000 $35,731 plus 7.7% of excess over
$500,000
[(6)] (7) For taxable years beginning after nineteen hundred ninety-
six and before two thousand three:
If the New York taxable income is: The tax is:
Not over $16,000 4% of the New York taxable
income
Over $16,000 but not over $22,000 $640 plus 4.5% of excess over
$16,000
Over $22,000 but not over $26,000 $910 plus 5.25% of excess over
$22,000
Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over
$26,000
Over $40,000 $1,946 plus 6.85% of excess over
$40,000
[(7)] (8) For taxable years beginning in nineteen hundred ninety-six:
If the New York taxable income is: The tax is:
Not over $11,000 4% of the New York taxable
income
Over $11,000 but not over $16,000 $440 plus 5% of excess over
$11,000
Over $16,000 but not over $22,000 $690 plus 6% of excess over
$16,000
Over $22,000 $1,050 plus 7% of excess over
$22,000
[(8)] (9) For taxable years beginning in nineteen hundred ninety-five:
A. 4011--B 105
If the New York taxable income is: The tax is:
Not over $13,000 4.55% of the New York taxable
income
Over $13,000 but not over $19,000 $592 plus 5.55% of excess over
$13,000
Over $19,000 but not over $25,000 $925 plus 6.55% of excess over
$19,000
Over $25,000 $1,318 plus 7.5% of excess over
$25,000
[(9)] (10) For taxable years beginning after nineteen hundred eighty-
nine and before nineteen hundred ninety-five:
If the New York taxable income is: The tax is:
Not over $11,000 4% of the New York taxable
income
Over $11,000 but not over $16,000 $440 plus 5% of excess over
$11,000
Over $16,000 but not over $22,000 $690 plus 6% of excess over
$16,000
Over $22,000 but not over $26,000 $1,050 plus 7% of excess over
$22,000
Over $26,000 $1,330 plus 7.875% of excess over
$26,000
(b) Resident heads of households. There is hereby imposed for each
taxable year on the New York taxable income of every resident head of a
household a tax determined in accordance with the following tables:
(1) FOR TAXABLE YEARS BEGINNING AFTER TWO THOUSAND ELEVEN AND BEFORE
TWO THOUSAND THIRTEEN:
IF THE NEW YORK TAXABLE INCOME IS: THE TAX IS:
NOT OVER $11,000 4% OF THE NEW YORK TAXABLE
INCOME
OVER $11,000 BUT NOT OVER $15,000 $440 PLUS 4.5% OF EXCESS OVER
$11,000
OVER $15,000 BUT NOT OVER $17,000 $620 PLUS 5.25% OF EXCESS OVER
$15,000
OVER $17,000 BUT NOT OVER $30,000 $725 PLUS 5.9% OF EXCESS OVER
$17,000
OVER $30,000 BUT NOT OVER $1,000,000 $1,492 PLUS 6.85% OF EXCESS OVER
$30,000
OVER $1,000,000 $67,937 PLUS 8.97% OF EXCESS OVER
$1,000,000
(2) For taxable years beginning after two thousand eight and before
two thousand twelve:
If the New York taxable income is: The tax is:
Not over $11,000 4% of the New York taxable
income
Over $11,000 but not over $15,000 $440 plus 4.5% of excess over
$11,000
Over $15,000 but not over $17,000 $620 plus 5.25% of excess over
$15,000
Over $17,000 but not over $30,000 $725 plus 5.9% of excess over
A. 4011--B 106
$17,000
Over $30,000 but not over $250,000 $1,492 plus 6.85% of excess over
$30,000
Over $250,000 but not over $500,000 $16,562 plus 7.85% of excess over
$250,000
Over $500,000 $36,187 plus 8.97% of excess over
$500,000
[(2)] (3) For taxable years beginning after two thousand five and
before two thousand nine and after two thousand [eleven] TWELVE:
If the New York taxable income is: The tax is:
Not over $11,000 4% of the New York taxable
income
Over $11,000 but not over $15,000 $440 plus 4.5% of excess over
$11,000
Over $15,000 but not over $17,000 $620 plus 5.25% of excess over
$15,000
Over $17,000 but not over $30,000 $725 plus 5.9% of excess over
$17,000
Over $30,000 $1,492 plus 6.85% of excess over
$30,000
[(3)] (4) For taxable years beginning in two thousand five:
If the New York taxable income is: The tax is:
Not over $11,000 4% of the New York taxable
income
Over $11,000 but not over $15,000 $440 plus 4.5% of excess over
$11,000
Over $15,000 but not over $17,000 $620 plus 5.25% of excess over
$15,000
Over $17,000 but not over $30,000 $725 plus 5.9% of excess over
$17,000
Over $30,000 but not over $125,000 $1,492 plus 6.85% of excess over
$30,000
Over $125,000 but not over $500,000 $8,000 plus 7.25% of excess over
$125,000
Over $500,000 $35,187 plus 7.7% of excess over
$500,000
[(4)] (5) For taxable years beginning in two thousand four:
If the New York taxable income is: The tax is:
Not over $11,000 4% of the New York taxable
income
Over $11,000 but not over $15,000 $440 plus 4.5% of excess over
$11,000
Over $15,000 but not over $17,000 $620 plus 5.25% of excess over
$15,000
Over $17,000 but not over $30,000 $725 plus 5.9% of excess over
$17,000
Over $30,000 but not over $125,000 $1,492 plus 6.85% of excess over
$30,000
Over $125,000 but not over $500,000 $8,000 plus 7.375% of excess over
A. 4011--B 107
$125,000
Over $500,000 $35,656 plus 7.7% of excess over
$500,000
[(5)] (6) For taxable years beginning in two thousand three:
If the New York taxable income is: The tax is:
Not over $11,000 4% of the New York taxable
income
Over $11,000 but not over $15,000 $440 plus 4.5% of excess over
$11,000
Over $15,000 but not over $17,000 $620 plus 5.25% of excess over
$15,000
Over $17,000 but not over $30,000 $725 plus 5.9% of excess over
$17,000
Over $30,000 but not over $125,000 $1,492 plus 6.85% of excess over
$30,000
Over $125,000 but not over $500,000 $8,000 plus 7.5% of excess over
$125,000
Over $500,000 $36,125 plus 7.7% of excess over
$500,000
[(6)] (7) For taxable years beginning after nineteen hundred ninety-
six and before two thousand three:
If the New York taxable income is: The tax is:
Not over $11,000 4% of the New York taxable
income
Over $11,000 but not over $15,000 $440 plus 4.5% of excess over
$11,000
Over $15,000 but not over $17,000 $620 plus 5.25% of excess over
$15,000
Over $17,000 but not over $30,000 $725 plus 5.9% of excess over
$17,000
Over $30,000 $1,492 plus 6.85% of excess over
$30,000
[(7)] (8) For taxable years beginning in nineteen hundred ninety-six:
If the New York taxable income is: The tax is:
Not over $7,500 4% of the New York taxable
income
Over $7,500 but not over $11,000 $300 plus 5% of excess over
$7,500
Over $11,000 but not over $15,000 $475 plus 6% of excess over
$11,000
Over $15,000 $ 715 plus 7% of excess over
$15,000
[(8)] (9) For taxable years beginning in nineteen hundred ninety-five:
If the New York taxable income is: The tax is:
Not over $9,000 4.55% of the New York taxable
income
Over $9,000 but not over $14,000 $410 plus 5.55% of excess over
A. 4011--B 108
$9,000
Over $14,000 but not over $19,000 $687 plus 6.55% of excess over
$14,000
Over $19,000 $1,015 plus 7.5% of excess over
$19,000
[(9)] (10) For taxable years beginning after nineteen hundred eighty-
nine and before nineteen hundred ninety-five:
If the New York taxable income is: The tax is:
Not over $7,500 4% of the New York taxable
income
Over $7,500 but not over $11,000 $300 plus 5% of excess over
$7,500
Over $11,000 but not over $15,000 $475 plus 6% of excess over
$11,000
Over $15,000 but not over $17,000 $715 plus 7% of excess over
$15,000
Over $17,000 $855 plus 7.875% of excess over
$17,000
(c) Resident unmarried individuals, resident married individuals
filing separate returns and resident estates and trusts. There is hereby
imposed for each taxable year on the New York taxable income of every
resident individual who is not a married individual who makes a single
return jointly with his spouse under subsection (b) of section six
hundred fifty-one or a resident head of a household or a resident
surviving spouse, and on the New York taxable income of every resident
estate and trust a tax determined in accordance with the following
tables:
(1) FOR TAXABLE YEARS BEGINNING AFTER TWO THOUSAND ELEVEN AND BEFORE
TWO THOUSAND THIRTEEN:
IF THE NEW YORK TAXABLE INCOME IS: THE TAX IS:
NOT OVER $8,000 4% OF THE NEW YORK TAXABLE
INCOME
OVER $8,000 BUT NOT OVER $11,000 $320 PLUS 4.5% OF EXCESS OVER
$8,000
OVER $11,000 BUT NOT OVER $13,000 $455 PLUS 5.25% OF EXCESS OVER
$11,000
OVER $13,000 BUT NOT OVER $20,000 $560 PLUS 5.9% OF EXCESS OVER
$13,000
OVER $20,000 BUT NOT OVER $1,000,000 $973 PLUS 6.85% OF EXCESS OVER
$20,000
OVER $1,000,000 $68,103 PLUS 8.97% OF EXCESS OVER
$1,000,000
(2) For taxable years beginning after two thousand eight and before
two thousand twelve:
If the New York taxable income is: The tax is:
Not over $8,000 4% of the New York taxable
income
Over $8,000 but not over $11,000 $320 plus 4.5% of excess over
$8,000
Over $11,000 but not over $13,000 $455 plus 5.25% of excess over
A. 4011--B 109
$11,000
Over $13,000 but not over $20,000 $560 plus 5.9% of excess over
$13,000
Over $20,000 but not over $200,000 $973 plus 6.85% of excess over
$20,000
Over $200,000 but not over $500,000 $13,303 plus 7.85% of excess over
$200,000
Over $500,000 $36,853 plus 8.97% of excess over
$500,000
[(2)] (3) For taxable years beginning after two thousand five and
before two thousand nine and after two thousand [eleven] TWELVE:
If the New York taxable income is: The tax is:
Not over $8,000 4% of the New York taxable
income
Over $8,000 but not over $11,000 $320 plus 4.5% of excess over
$8,000
Over $11,000 but not over $13,000 $455 plus 5.25% of excess over
$11,000
Over $13,000 but not over $20,000 $560 plus 5.9% of excess over
$13,000
Over $20,000 $973 plus 6.85% of excess over
$20,000
[(3)] (4) For taxable years beginning in two thousand five:
If the New York taxable income is: The tax is:
Not over $8,000 4% of the New York taxable
income
Over $8,000 but not over $11,000 $320 plus 4.5% of excess over
$8,000
Over $11,000 but not over $13,000 $455 plus 5.25% of excess over
$11,000
Over $13,000 but not over $20,000 $560 plus 5.9% of excess over
$13,000
Over $20,000 but not over $100,000 $973 plus 6.85% of excess over
$20,000
Over $100,000 but not over $500,000 $6,453 plus 7.25% of excess over
$100,000
Over $500,000 $35,453 plus 7.7% of excess over
$500,000
[(4)] (5) For taxable years beginning in two thousand four:
If the New York taxable income is: The tax is:
Not over $8,000 4% of the New York taxable
income
Over $8,000 but not over $11,000 $320 plus 4.5% of excess over
$8,000
Over $11,000 but not over $13,000 $455 plus 5.25% of excess over
$11,000
Over $13,000 but not over $20,000 $560 plus 5.9% of excess over
$13,000
Over $20,000 but not over $100,000 $973 plus 6.85% of excess over
A. 4011--B 110
$20,000
Over $100,000 but not over $500,000 $6,453 plus 7.375% of excess over
$100,000
Over $500,000 $35,953 plus 7.7% of excess over
$500,000
[(5)] (6) For taxable years beginning in two thousand three:
If the New York taxable income is: The tax is:
Not over $8,000 4% of the New York taxable
income
Over $8,000 but not over $11,000 $320 plus 4.5% of excess over
$8,000
Over $11,000 but not over $13,000 $455 plus 5.25% of excess over
$11,000
Over $13,000 but not over $20,000 $560 plus 5.9% of excess over
$13,000
Over $20,000 but not over $100,000 $973 plus 6.85% of excess over
$20,000
Over $100,000 but not over $500,000 $6,453 plus 7.5% of excess over
$100,000
Over $500,000 $36,453 plus 7.7% of excess over
$500,000
[(6)] (7) For taxable years beginning after nineteen hundred ninety-
six and before two thousand three:
If the New York taxable income is: The tax is:
Not over $8,000 4% of the New York taxable
income
Over $8,000 but not over $11,000 $320 plus 4.5% of excess over
$8,000
Over $11,000 but not over $13,000 $455 plus 5.25% of excess over
$11,000
Over $13,000 but not over $20,000 $560 plus 5.9% of excess over
$13,000
Over $20,000 $973 plus 6.85% of excess over
$20,000
[(7)] (8) For taxable years beginning in nineteen hundred ninety-six:
If the New York taxable income is: The tax is:
Not over $5,500 4% of the New York taxable
income
Over $5,500 but not over $8,000 $220 plus 5% of excess over
$5,500
Over $8,000 but not over $11,000 $345 plus 6% of excess over
$8,000
Over $11,000 $525 plus 7% of excess over
$11,000
[(8)] (9) For taxable years beginning in nineteen hundred ninety-five:
If the New York taxable income is: The tax is:
Not over $6,500 4.55% of the New York taxable
A. 4011--B 111
income
Over $6,500 but not over $9,500 $296 plus 5.55% of excess over
$6,500
Over $9,500 but not over $12,500 $462 plus 6.55% of excess over
$9,500
Over $12,500 $659 plus 7.5% of excess over
$12,500
[(9)] (10) For taxable years beginning after nineteen hundred eighty-
nine and before nineteen hundred ninety-five:
If the New York taxable
income is: The tax is:
Not over $5,500 4% of the New York taxable
income
Over $5,500 but not over $8,000 $220 plus 5% of excess over
$5,500
Over $8,000 but not over $11,000 $345 plus 6% of excess over
$8,000
Over $11,000 but not over $13,000 $525 plus 7% of excess over
$11,000
Over $13,000 $665 plus 7.875% of excess over
$13,000
S 2. Subparagraph (B) of paragraph 3 of subsection (d) of section 601
of the tax law, as amended by section 3 of part Z-1 of chapter 57 of the
laws of 2009, is amended to read as follows:
(B) For such taxpayers with adjusted gross income over five hundred
thousand dollars, for taxable years beginning after two thousand eight
and before two thousand twelve, the fraction is computed as follows: the
numerator is the lesser of fifty thousand dollars or the excess of New
York adjusted gross income for the taxable year over five hundred thou-
sand dollars and the denominator is fifty thousand dollars. FOR TAXABLE
YEARS BEGINNING AFTER TWO THOUSAND ELEVEN AND BEFORE TWO THOUSAND THIR-
TEEN, THE FRACTION IS COMPUTED AS FOLLOWS: THE NUMERATOR IS THE LESSER
OF FIFTY THOUSAND DOLLARS OR THE EXCESS OF NEW YORK ADJUSTED GROSS
INCOME FOR THE TAXABLE YEAR OVER ONE MILLION DOLLARS AND THE DENOMINATOR
IS FIFTY THOUSAND DOLLARS. Provided, however, that the total tax prior
to the application of any tax credits shall not exceed the highest rate
of tax set forth in the tax table in subsection (a) of this section
multiplied by the taxpayer's taxable income.
S 3. Clause (ii) of subparagraph (B) of paragraph 3 of subsection (c)
of section 685 of the tax law is amended by adding a new undesignated
paragraph to read as follows:
FURTHER PROVIDED THAT THE TAX SHOWN ON SUCH RETURN FOR TAXABLE YEAR
BEGINNING IN TWO THOUSAND ELEVEN SHALL BE CALCULATED AS IF SUCH YEAR
BEGAN IN TWO THOUSAND TWELVE.
S 4. Notwithstanding any provision of law to the contrary, the method
of determining the amount to be deducted and withheld from wages on
account of taxes imposed by or pursuant to the authority of article 22
of the tax law in connection with the implementation of the provisions
of this act shall be prescribed by regulations of the commissioner of
taxation and finance with due consideration to the effect such withhold-
ing tables and methods would have on the receipt and amount of revenue.
The commissioner of taxation and finance shall adjust such withholding
tables and methods in regard to taxable years beginning in 2012 and
A. 4011--B 112
after in such manner as to result, so far as practicable, in withholding
from an employee's wages an amount substantially equivalent to the tax
reasonably estimated to be due for such taxable years as a result of the
provisions of this act. Provided, however, for tax year 2012 the with-
holding tables shall reflect as accurately as practicable the full
amount of tax year 2012 liability so that such amount is withheld by
December 31, 2012. Any such regulations to implement a change in with-
holding tables and methods for tax year 2012 shall be adopted and effec-
tive as soon as practicable and the commissioner of taxation and finance
may adopt such regulations on an emergency basis notwithstanding
anything to the contrary in section 202 of the state administrative
procedure act. In carrying out his or her duties and responsibilities
under this section, the commissioner of taxation and finance may accom-
pany such a rule making procedure with a similar procedure with respect
to the taxes required to be deducted and withheld by local laws imposing
taxes pursuant to the authority of articles 30, 30-A and 30-B of the tax
law, the provisions of any other law in relation to such a procedure to
the contrary notwithstanding.
S 5. The commissioner of taxation and finance shall take steps to
publicize the necessary adjustments to estimated tax and, to the extent
reasonably possible, to inform the taxpayer of the tax liability changes
made by this act.
S 6. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2012.
S 2. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provisions had not been included herein.
S 3. This act shall take effect immediately provided, however, that
the applicable effective date of Parts A through T of this act shall be
as specifically set forth in the last section of such Parts.