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

                                 7297--A

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                             April 28, 2011
                               ___________

Introduced  by  M. of A. TEDISCO, McLAUGHLIN, CASTELLI, D. MILLER, McDO-
  NOUGH, SMARDZ, GIGLIO, THIELE, MONTESANO, BLANKENBUSH, CERETTO, TOBAC-
  CO, MALLIOTAKIS, RABBITT, RAIA, MURRAY -- Multi-Sponsored by -- M.  of
  A.  CROUCH,  HAYES  -- read once and referred to the Committee on Ways
  and Means -- committee discharged, bill amended, ordered reprinted  as
  amended and recommitted to said committee

AN  ACT  to  amend  the  tax law, the state finance law, and the general
  business law, in relation to suspending taxes on gasoline and  similar
  motor fuels on certain summer holiday weekends in 2011

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

  Section 1. The tax law is amended by adding a new section 36  to  read
as follows:
  S  36.    FUEL  TAX  HOLIDAY.  (A)  DEFINITIONS.  FOR PURPOSES OF THIS
SECTION,
  (1) "APPLICABLE PERIOD" SHALL  MEAN  (A)  FRIDAY,  MAY  TWENTY-SEVENTH
THROUGH  MONDAY,  MAY  THIRTIETH,  TWO THOUSAND ELEVEN, (B) FRIDAY, JULY
FIRST, THROUGH MONDAY, JULY FOURTH, TWO THOUSAND ELEVEN, AND (C) FRIDAY,
SEPTEMBER SECOND THROUGH MONDAY, SEPTEMBER FIFTH, TWO THOUSAND ELEVEN.
  (2) "DIESEL MOTOR FUEL" AND "MOTOR FUEL" SHALL HAVE THE  SAME  MEANING
AS SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER.
  (3)  "FILLING  STATION"  SHALL  HAVE  THE  SAME MEANING AS SECTION TWO
HUNDRED EIGHTY-TWO OF THIS CHAPTER.
  (4) "RETAIL SALE" AND "SOLD AT RETAIL" SHALL MEAN ANY  SALE  OF  MOTOR
FUEL  OR DIESEL MOTOR FUEL AT A FILLING STATION TO A PERSON FOR USE IN A
MOTOR VEHICLE.
  (5) "RETAIL SELLER" SHALL MEAN ANY PERSON  WHO  SELLS  MOTOR  FUEL  OR
DIESEL MOTOR FUEL AT RETAIL.
  (6)  "SALE" SHALL HAVE THE SAME MEANING AS SECTION TWO HUNDRED EIGHTY-
TWO OF THIS CHAPTER.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11057-09-1

              

A. 7297--A                          2

  (B) EXEMPTION FROM TAXATION. NOTWITHSTANDING ANY  OTHER  PROVISION  OF
LAW,  RULE  OR  REGULATION  TO THE CONTRARY, THE TAXES IMPOSED ON RETAIL
SALES OF MOTOR FUEL AND DIESEL MOTOR FUEL  MADE  DURING  THE  APPLICABLE
PERIOD  SHALL  BE  EXEMPT  FROM  THE TAXES IMPOSED BY ARTICLES TWELVE-A,
THIRTEEN-A,  AND  TWENTY-EIGHT  OF THIS CHAPTER. IF THE RETAIL SELLER IS
LOCATED WITHIN A MUNICIPALITY THAT HAS  ELECTED  TO  ELIMINATE  THE  TAX
IMPOSED  PURSUANT  TO  ARTICLE  TWENTY-NINE  OF THIS CHAPTER, SUCH TAXES
SHALL NOT BE IMPOSED ON THE RETAIL SALE OF MOTOR FUEL  OR  DIESEL  MOTOR
FUEL DURING THE APPLICABLE PERIOD.
  (C)  PRICE REDUCTION. DURING THE APPLICABLE PERIOD, EACH RETAIL SELLER
SHALL REDUCE THE PRICE PER GALLON OF MOTOR FUEL AND  DIESEL  MOTOR  FUEL
OFFERED  FOR  SALE  BY  THE  AMOUNT  OF THE TAXES THAT THE RETAIL SELLER
PREPAID ON THE GALLON OF MOTOR FUEL AND DIESEL MOTOR FUEL AND THE AMOUNT
OF TAX IN EXCESS OF THE PREPAID AMOUNT THAT WOULD  HAVE  BEEN  COLLECTED
FROM THE CONSUMER IF THE SALE OF THE MOTOR FUEL OR DIESEL MOTOR FUEL HAD
NOT BEEN EXEMPT FROM TAX PURSUANT TO SUBDIVISION (B) OF THIS SECTION.
  (D)  ADVERTISING.  NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW TO THE
CONTRARY, A RETAIL SELLER MAY  ADVERTISE  THAT  THE  MOTOR  FUEL  AND/OR
DIESEL MOTOR FUEL IS BEING OR WILL BE SOLD WITHOUT THE STATE TAXES. SUCH
ADVERTISEMENT  MAY COMMENCE NO EARLIER THAN THREE DAYS BEFORE THE APPLI-
CABLE PERIOD AND MUST END BY THE END OF THE APPLICABLE PERIOD.
  (E) REFUNDS AND CREDITS. (1) NOTWITHSTANDING ANY  OTHER  PROVISION  OF
LAW  TO  THE  CONTRARY, THE RETAIL SELLER SHALL BE ENTITLED TO RECEIVE A
CREDIT AGAINST THE TAXES DUE PURSUANT TO ARTICLE  TWENTY-EIGHT  OF  THIS
CHAPTER FOR THE AMOUNT OF TAX THAT THE RETAIL SELLER PREPAID PURSUANT TO
ARTICLES  TWELVE-A, THIRTEEN-A, TWENTY-EIGHT AND, IF APPLICABLE, TWENTY-
NINE OF THIS CHAPTER. IF THE RETAIL SELLER IS LOCATED WITHIN  A  MUNICI-
PALITY THAT HAS ELECTED TO ELIMINATE THE TAX IMPOSED PURSUANT TO ARTICLE
TWENTY-NINE  OF  THIS  CHAPTER,  THE  RETAIL SELLER SHALL BE ENTITLED TO
CLAIM A CREDIT AGAINST THE TAXES DUE PURSUANT TO ARTICLE TWENTY-EIGHT OF
THIS CHAPTER FOR SUCH PREPAID TAXES. THE AMOUNT OF  CREDIT  SHALL  EQUAL
THE  AMOUNT OF TAX THAT WAS PREPAID PURSUANT TO ARTICLES TWELVE-A, THIR-
TEEN-A, TWENTY-EIGHT AND, IF APPLICABLE, TWENTY-NINE OF THIS CHAPTER FOR
EACH GALLON OF MOTOR FUEL AND DIESEL MOTOR FUEL SOLD  AT  RETAIL  DURING
THE  APPLICABLE  PERIOD. SUCH CREDIT SHALL NOT BE ALLOWED FOR SALES THAT
WOULD HAVE OTHERWISE BEEN EXEMPT FROM TAX.
  (2) A RETAIL SELLER MAY CLAIM THE CREDIT PRESCRIBED IN  PARAGRAPH  ONE
OF  THIS  SUBDIVISION WHEN THE RETAIL SELLER FILES ITS RETURN OF TAX FOR
THE SALES OF MOTOR FUEL AND  DIESEL  MOTOR  FUEL  FOR  THE  PERIOD  THAT
INCLUDES  THE  APPLICABLE  PERIOD.  NOTWITHSTANDING  THE FOREGOING, IF A
RETAILER SELLER IS REQUIRED TO FILE ITS RETURN  MORE  THAN  THIRTY  DAYS
AFTER  THE  CLOSE  OF THE APPLICABLE PERIOD DEFINED IN SUBPARAGRAPH (A),
(B), OR (C) OF PARAGRAPH ONE OF SUBDIVISION (A) OF  THIS  SECTION,  SUCH
RETAILER  SHALL  BE AUTHORIZED TO FILE AN AMENDMENT TO ITS MOST RECENTLY
FILED RETURN TO CLAIM SUCH CREDIT. NO CREDIT  MAY  BE  CLAIMED  FOR  THE
TAXES PREPAID PURSUANT TO ARTICLE TWELVE-A, THIRTEEN-A, TWENTY-EIGHT OR,
IF  APPLICABLE,  TWENTY-NINE OF THIS CHAPTER PURSUANT TO THIS SECTION IF
THE CLAIM WOULD HAVE BEEN BARRED PURSUANT TO THE ARTICLE  THAT  REQUIRED
PREPAYMENT  OF  SUCH  TAXES. NO INTEREST SHALL BE PAID ON ANY CLAIMS FOR
CREDIT MADE PURSUANT TO THIS SECTION.
  S 2. Section 88-a of the state finance law is amended by adding a  new
subdivision 10 to read as follows:
  10.  BY MARCH THIRTY-FIRST, TWO THOUSAND TWELVE, THE COMPTROLLER SHALL
TRANSFER FROM THE GENERAL FUND  TO  THE  MASS  TRANSPORTATION  OPERATING
ASSISTANCE  FUND  AN  AMOUNT  NO GREATER THAN THE AMOUNT THAT WOULD HAVE
OTHERWISE BEEN DEPOSITED IN THE MASS TRANSPORTATION OPERATING ASSISTANCE

A. 7297--A                          3

FUND PURSUANT TO THIS SECTION IF THE EXEMPTION  DEFINED  IN  SUBDIVISION
(B)  OF  SECTION  THIRTY-SIX  OF  THE  TAX  LAW HAD NOT BEEN AUTHORIZED;
PROVIDED HOWEVER THAT THE COMPTROLLER  SHALL  MAKE  SUCH  TRANSFER  ONLY
AFTER THE DIRECTOR OF THE BUDGET HAS DETERMINED IN HIS OR HER DISCRETION
THAT  THE TRANSFER IS NECESSARY TO ENSURE A POSITIVE FUND BALANCE OF THE
MASS TRANSPORTATION OPERATING ASSISTANCE FUND AT  THE  END  OF  THE  TWO
THOUSAND ELEVEN-TWO THOUSAND TWELVE STATE FISCAL YEAR.
  S 3. Subdivision 3 of section 89-b of the state finance law is amended
by adding a new paragraph (g) to read as follows:
  (G)  WITHIN  FORTY-FIVE  DAYS AFTER AN APPLICABLE PERIOD AS DEFINED BY
SUBDIVISION (A) OF SECTION THIRTY-SIX OF THE TAX LAW,  THE  COMPTROLLER,
IN  CONSULTATION  WITH THE DIRECTOR OF THE DIVISION OF THE BUDGET, SHALL
TRANSFER FROM THE GENERAL FUND TO THE  SPECIAL  OBLIGATION  RESERVE  AND
PAYMENT  ACCOUNT AN AMOUNT EQUAL TO THE AMOUNT THAT WOULD HAVE OTHERWISE
BEEN DEPOSITED IN THE SPECIAL OBLIGATION  RESERVE  AND  PAYMENT  ACCOUNT
PURSUANT  TO THIS SECTION IF THE EXEMPTION DEFINED IN SUBDIVISION (B) OF
SECTION THIRTY-SIX OF THE TAX LAW HAD NOT BEEN AUTHORIZED.
  S 4. Section 89-c of the state finance law is amended by adding a  new
subdivision 4 to read as follows:
  4.  WITHIN  FORTY-FIVE  DAYS  AFTER AN APPLICABLE PERIOD AS DEFINED BY
SUBDIVISION (A) OF SECTION THIRTY-SIX OF THE TAX LAW,  THE  COMPTROLLER,
IN  CONSULTATION  WITH THE DIRECTOR OF THE DIVISION OF THE BUDGET, SHALL
TRANSFER FROM THE GENERAL FUND  TO  THE  DEDICATED  MASS  TRANSPORTATION
TRUST  FUND AN AMOUNT EQUAL TO THE AMOUNT THAT WOULD HAVE OTHERWISE BEEN
DEPOSITED IN THE DEDICATED MASS TRANSPORTATION TRUST  FUND  PURSUANT  TO
THIS  SECTION  IF  THE  EXEMPTION  DEFINED IN SUBDIVISION (B) OF SECTION
THIRTY-SIX OF THE TAX LAW HAD NOT BEEN AUTHORIZED.
  S 5. Section 392-i of the general business law, as amended by  section
5  of part M-1 of chapter 109 of the laws of 2006, is amended to read as
follows:
  S 392-i. Prices reduced to reflect change in  sales  tax  computation.
Every  person  engaged  in  the  retail sale of motor fuel and/or diesel
motor fuel or a  distributor  of  such  fuels,  as  defined  in  article
twelve-A  of the tax law, shall reduce the price such person charges for
motor fuel and/or diesel motor fuel in an amount equal to any  reduction
in  taxes  prepaid  by  the  distributor, CREDIT FOR THE AMOUNT OF TAXES
PREPAID BY THE RETAIL SELLER ALLOWABLE PURSUANT TO SECTION THIRTY-SIX OF
THE TAX LAW, EXEMPTION FROM TAXATION PURSUANT TO SECTION  THIRTY-SIX  OF
THE  TAX  LAW  TO THE EXTENT THAT THE TAX THAT WOULD HAVE BEEN OTHERWISE
DUE EXCEEDS THE AMOUNT OF TAX  PREPAID,  or  paid  by  retail  customers
resulting from computing sales and compensating use AND OTHER taxes at a
cents  per  gallon  rate  pursuant to the provisions of paragraph two of
subdivision (e) and subdivision (m) of section eleven hundred eleven  of
the tax law.
  S 6. Paragraph 1 of subdivision (n) 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:
  (1)  Every  person  engaged  in  the  retail sale of motor fuel and/or
diesel motor fuel or a distributor of such fuels, as defined in  article
twelve-A  of  this  chapter, shall comply with the provisions of section
three hundred ninety-two-i of the general business law by  reducing  the
prices  charged  for motor fuel and diesel motor fuel in an amount equal
to any reduction in taxes prepaid by the  distributor,  CREDIT  FOR  THE
AMOUNT  OF  TAXES  PREPAID  BY  THE  RETAIL SELLER ALLOWABLE PURSUANT TO
SECTION THIRTY-SIX OF THE TAX LAW, EXEMPTION FROM TAXATION  PURSUANT  TO
SECTION  THIRTY-SIX OF THE TAX LAW TO THE EXTENT THAT THE TAX THAT WOULD

A. 7297--A                          4

HAVE BEEN OTHERWISE DUE EXCEEDS THE AMOUNT OF TAX PREPAID, or imposed on
retail customers resulting from computing  sales  and  compensating  use
taxes at a cents per gallon rate pursuant to the provisions of paragraph
two  of  subdivision (e) and subdivision (m) of section one thousand one
hundred eleven of this chapter.
  S 7. Notwithstanding any law to the contrary, a municipality may  make
the  election to eliminate all taxes on motor fuel and diesel motor fuel
pursuant to sections eleven hundred seven and eleven  hundred  eight  of
the tax law or article twenty-nine of the tax law from Friday, May twen-
ty-seventh  through  Monday,  May  thirtieth,  two thousand eleven, from
Friday, July first, through Monday, July fourth, two thousand eleven and
from Friday, September second through Monday, September fifth, two thou-
sand eleven, by local law, ordinance or resolution, if such municipality
mails, by certified or registered mail, a certified copy of  such  local
law, ordinance or resolution to the commissioner of taxation and finance
at  his  or her office in Albany no later than the Wednesday immediately
preceding the first date listed in subparagraph (A), (B) or (C) of para-
graph one of subdivision (a) of  section  thirty-six  of  the  tax  law,
provided,  however,  that  a municipality may adopt one local law, ordi-
nance or resolution that will apply to all or some of the  dates  listed
in  paragraph  one  of  subdivision (a) of section thirty-six of the tax
law.
  S 8. The commissioner of taxation and finance shall, on  an  emergency
basis,  promulgate  and/or  amend any rules and regulations necessary to
provide for the tax free sales of motor fuel and diesel motor  fuel  and
refunds of prepaid tax to retail sellers.
  S 9. This act shall take effect immediately, provided however that the
commissioner  of  taxation  and  finance shall make provision for retail
sellers to apply for credit for the taxes prepaid pursuant  to  articles
twelve-A,  thirteen-A,  twenty-eight, and, if applicable, twenty-nine of
the tax law, no later than the tenth day of June, two thousand eleven.