S T A T E O F N E W Y O R K
________________________________________________________________________
4880--B
2011-2012 Regular Sessions
I N S E N A T E
April 28, 2011
___________
Introduced by Sens. BALL, LARKIN, NOZZOLIO, ROBACH -- read twice and
ordered printed, and when printed to be committed to the Committee on
Investigations and Government Operations -- reported favorably from
said committee and committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- 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.
LBD11057-08-1
S. 4880--B 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
S. 4880--B 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
S. 4880--B 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.
