S T A T E O F N E W Y O R K
________________________________________________________________________
5535
2013-2014 Regular Sessions
I N A S S E M B L Y
February 28, 2013
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Introduced by M. of A. GABRYSZAK, GUNTHER, STEVENSON, McDONOUGH, RAIA,
CERETTO, SALADINO, GRAF, CURRAN, ROBERTS, WRIGHT, BOYLAND, HOOPER,
FINCH -- Multi-Sponsored by -- M. of A. BARCLAY, COOK, McLAUGHLIN,
MOYA, THIELE -- read once and referred to the Committee on Ways and
Means
AN ACT to amend the tax law and the general business law, in relation to
suspending taxes on gasoline and similar motor fuels on certain summer
holidays
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 38 to read
as follows:
S 38. FUEL TAX HOLIDAY. (A) DEFINITIONS. FOR PURPOSES OF THIS SECTION,
(1) "APPLICABLE PERIOD" SHALL MEAN:
A. JULY THIRD, JULY FOURTH, AND JULY FIFTH;
B. MEMORIAL DAY AND THE DAYS PRECEDING AND PROCEEDING SUCH HOLIDAY;
AND
C. LABOR DAY AND THE DAYS PRECEDING AND PROCEEDING SUCH HOLIDAY.
(2) "DIESEL MOTOR FUEL" AND "MOTOR FUEL" SHALL HAVE THE SAME MEANING
AS IN SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER.
(3) "FILLING STATION" SHALL HAVE THE SAME MEANING AS IN 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 IN SECTION TWO HUNDRED
EIGHTY-TWO OF THIS CHAPTER.
(B) EXEMPTION FROM TAXATION. NOTWITHSTANDING ANY OTHER PROVISION OF
LAW, RULE OR REGULATION TO THE CONTRARY, THE TAXES IMPOSED ON RETAIL
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09181-01-3
A. 5535 2
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 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
A. 5535 3
in taxes prepaid by the distributor, CREDIT FOR THE AMOUNT OF TAXES
PREPAID BY THE RETAIL SELLER ALLOWABLE PURSUANT TO SECTION THIRTY-EIGHT
OF THE TAX LAW, EXEMPTION FROM TAXATION PURSUANT TO SECTION THIRTY-EIGHT
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 3. 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-EIGHT OF THE TAX LAW, EXEMPTION FROM TAXATION PURSUANT TO
SECTION THIRTY-EIGHT OF THE TAX LAW TO THE EXTENT THAT THE TAX THAT
WOULD HAVE BEEN OTHERWISE DUE EXCEEDS THE AMOUNT OF TAX PREPAID, or
imposed on retail customers resulting from computing sales and compen-
sating 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 4. 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 5. 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 thirteen.