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

                                  3620

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2015
                               ___________

Introduced  by  M.  of  A. LALOR, NOJAY -- read once and referred to the
  Committee on Ways and Means

AN ACT to amend the tax law, the public authorities law and the  highway
  law,  in  relation  to limiting the tax on motor fuels to the national
  average; and to repeal sections 282-b, 282-c, 284-a and 284-c  of  the
  tax law relating to additional and supplemental fuel taxes

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

  Section 1. Subdivision 1 of section 284 of the tax law, as amended  by
chapter  276  of the laws of 1986, is amended and a new subdivision 3 is
added to read as follows:
  1. There is hereby levied and imposed an excise tax [of four cents per
gallon] AS DETERMINED ANNUALLY BY A MAJORITY OF THE LEGISLATURE NO LATER
THAN APRIL FIRST, NOT TO EXCEED THE NATIONAL AVERAGE OF TAXES  ON  MOTOR
FUEL  BY  STATES  AND  THE DISTRICT OF COLUMBIA, INCLUDING ANY TAXES AND
FEES IMPOSED BY LOCAL GOVERNMENTS, AS COMPILED ANNUALLY BY  THE  DEPART-
MENT,  upon  motor  fuel (a) imported into or caused to be imported into
the state by a distributor for use, distribution, storage or sale in the
state or upon motor fuel which is  produced,  refined,  manufactured  or
compounded  by  a distributor in the state (which acts shall hereinafter
in this subdivision be encompassed by the phrase "imported  or  manufac-
tured") or (b) if the tax has not been imposed prior to its sale in this
state,  which  is  sold by a distributor (which act, in conjunction with
the acts described in paragraph (a) of this subdivision,  shall  herein-
after  in  this article be encompassed by the phrase "imported, manufac-
tured or sold"),  except  when  imported,  manufactured  or  sold  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 or when imported or  manufactured  by  an  organization
described  in  paragraph one or two of subdivision (a) of section eleven
hundred sixteen of this chapter or a hospital included in the  organiza-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00771-01-5
              

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tions described in paragraph four of such subdivision for its own use or
consumption and except kero-jet fuel when imported or manufactured by an
airline for use in its airplanes. Provided, further, 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 decisional  law  interpreting
the  United  States  constitution.  All  tax  for the period for which a
return is required to be filed shall be due on the date limited for  the
filing  of the return for such period, regardless of whether a return is
filed by such distributor as required by this  article  or  whether  the
return which is filed correctly shows the amount of tax due.
  3. THE METHODOLOGY BY WHICH THE DEPARTMENT COMPUTES THE NATIONAL AVER-
AGE  OF  SALES TAXES IMPOSED ON MOTOR FUEL BY STATES AND THE DISTRICT OF
COLUMBIA FOR THE PURPOSES OF LIMITING THE ANNUAL EXCISE TAX  IMPOSED  BY
SUBDIVISION  ONE  OF  THIS  SECTION  SHALL  BE SUBJECT TO THE REVIEW AND
APPROVAL OF A MAJORITY OF THE LEGISLATURE EVERY FOUR YEARS NO LATER THAN
APRIL FIRST.
  S 2. Subdivision 1 of section 282-a of the  tax  law,  as  amended  by
section  2 of part W of chapter 59 of the laws of 2013, is amended and a
new subdivision 1-a is added to read as follows:
  1. There is hereby levied and imposed with  respect  to  Diesel  motor
fuel  an excise tax [of four cents per gallon] AS DETERMINED ANNUALLY BY
A MAJORITY OF THE LEGISLATURE NO LATER THAN APRIL FIRST, NOT  TO  EXCEED
THE  NATIONAL AVERAGE OF TAXES ON DIESEL FUEL BY STATES AND THE DISTRICT
OF COLUMBIA INCLUDING ANY TAXES AND FEES IMPOSED BY LOCAL GOVERNMENTS AS
COMPILED ANNUALLY BY THE DEPARTMENT, upon the  sale  or  use  of  Diesel
motor fuel in this state.
  The  excise  tax  is  imposed on the first sale or use of Diesel motor
fuel to occur which is not exempt from tax under this article. Provided,
however, if the tax has not been imposed  prior  thereto,  it  shall  be
imposed  on  the  removal  of highway Diesel motor fuel from a terminal,
other than by pipeline, barge, tanker or other vessel, or  the  delivery
of Diesel motor fuel to a filling station or into the fuel tank connect-
ing  with the engine of a motor vehicle for use in the operation thereof
whichever event shall be first to occur. The tax shall be computed based
upon the number of gallons of Diesel motor fuel sold, removed or used or
the number of gallons of Diesel fuel delivered into the fuel tank  of  a
motor  vehicle,  as  the  case  may be. Nothing in this article shall be
construed to require the payment of such excise tax more than once  upon
the same Diesel motor fuel. Nor shall the collection of such tax 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.
Provided, further, no Diesel motor fuel shall be included in the measure
of the tax unless it shall have previously come to rest within the mean-
ing  of  federal decisional law interpreting the United States constitu-
tion. All tax for the period for which a return is required to be  filed
shall  be  due on the date limited for the filing of the return for such
period, regardless of whether a return is  filed  as  required  by  this
article  or whether the return which is filed correctly shows the amount
of tax due.
  1-A. THE METHODOLOGY BY WHICH THE  DEPARTMENT  COMPUTES  THE  NATIONAL
AVERAGE OF SALES TAXES IMPOSED ON DIESEL FUEL BY STATES AND THE DISTRICT
OF  COLUMBIA  FOR THE PURPOSES OF LIMITING THE ANNUAL EXCISE TAX IMPOSED
BY SUBDIVISION ONE OF THIS SECTION SHALL BE SUBJECT TO  THE  REVIEW  AND
APPROVAL OF A MAJORITY OF THE LEGISLATURE EVERY FOUR YEARS NO LATER THAN
APRIL FIRST.

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  S  3.  Sections  282-b,  282-c,  284-a  and  284-c  of the tax law are
REPEALED.
  S  4.  Subdivision  1  of  section 289-e of the tax law, as amended by
section 15 of part K of chapter 61 of the laws of 2011,  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 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]  ARTICLE shall be appropriated and used for the acquisi-
tion 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 5. Paragraphs (b), (d) and (e) of subdivision 3 of section 289-c  of
the  tax  law,  paragraph  (b)  as amended by chapter 411 of the laws of
1971, paragraph (d) as amended by chapter 836 of the laws  of  1974  and
paragraph  (e)  as added by chapter 756 of the laws of 1974, are amended
to read as follows:
  (b) Any omnibus carrier which shall buy any motor fuel  on  which  the
[aggregate]  tax imposed by section two hundred eighty-four [and section
two hundred eighty-four-a] of this  [chapter]  ARTICLE,  or  any  diesel
motor  fuel  on which the [aggregate] tax imposed by section two hundred
eighty-two-a [and section two hundred eighty-two-b]  of  this  [chapter]
ARTICLE,  shall have been paid, shall be reimbursed, in the case of such
motor fuel, the amount paid pursuant  to  such  [sections]  SECTION  two
hundred  eighty-four  [and  two hundred eighty-four-a] in excess of four
cents per gallon, and in the case of diesel motor fuel, the amount  paid
pursuant  to  such  [sections] SECTION two hundred eighty-two-a [and two
hundred eighty-two-b] in excess of six cents per gallon,  provided  such
motor fuel or diesel motor fuel has been consumed by such carrier in the
operation  of an omnibus in this state. Any taxicab licensee, as defined
by subdivision ten of section two hundred eighty-two of  this  [chapter]
ARTICLE,  who or which shall buy any motor fuel on which the [aggregate]
tax imposed by section two hundred eighty-four [and section two  hundred
eighty-four-a]  of  this  [chapter]  ARTICLE or any diesel motor fuel on
which the [aggregate] tax imposed by section  two  hundred  eighty-two-a
[and  section two hundred eighty-two-b] of this [chapter] ARTICLE, shall
have been paid, shall be reimbursed, in the case of such motor fuel, the
amount paid pursuant to such [sections] SECTION two hundred  eighty-four
[and  two hundred eighty-four-a] in excess of four cents per gallon, and
in the case of diesel motor fuel,  the  amount  paid  pursuant  to  such
[sections]   SECTION   two   hundred   eighty-two-a   [and  two  hundred
eighty-two-b] in excess of six cents per  gallon,  provided  such  motor
fuel  or diesel fuel has been consumed by such licensee in the operation
of a taxicab in this state.
  (d) Any omnibus carrier which  shall  buy  motor  fuel  on  which  the
[aggregate] tax imposed by section two hundred eighty-four[, section two
hundred  eighty-four-a  and  section  two hundred eighty-four-c] of this
[chapter] ARTICLE or any diesel motor fuel on which the [aggregate]  tax

A. 3620                             4

imposed by section two hundred eighty-two-a[, section two hundred eight-
y-two-b  and section two hundred eighty-two-c] of this [chapter] ARTICLE
shall have been paid, shall be reimbursed the amount paid provided  such
motor fuel or diesel motor fuel has been consumed by such carrier in the
operation  of an omnibus in local transit service in this state pursuant
to a certificate of convenience and necessity issued by the commissioner
of transportation of this state or by the interstate commerce commission
of the United States or pursuant to a  contract,  franchise  or  consent
between  such  carrier  and  a city having a population of more than one
million inhabitants, or any agency of such city.
  (e) Any nonpublic school operator which shall buy motor fuel on  which
the [aggregate] tax imposed by section two hundred eighty-four[, section
two hundred eighty-four-a and section two hundred eighty-four-c] of this
[chapter]  ARTICLE or any diesel motor fuel on which the [aggregate] tax
imposed by section two hundred eighty-two-a[, section two hundred eight-
y-two-b and section two hundred eighty-two-c] of this [chapter]  ARTICLE
shall  have been paid, shall be reimbursed the amount paid provided such
motor fuel or diesel motor fuel has  been  consumed  by  such  nonpublic
school operator exclusively in educational related activities.
  S  6.  Paragraph  (b)  of  subdivision  5 of section 376 of the public
authorities law, as amended by chapter  55  of  the  laws  of  1992,  is
amended to read as follows:
  (b)  To  assure  the continued operation and solvency of the authority
for the carrying out of the purposes relating to this section, provision
is made in this section for the accumulation in the debt service reserve
fund of an amount equal to the maximum amount of principal and  interest
maturing  and  becoming due in any succeeding calendar year on all bonds
of the authority then outstanding and  secured  by  such  reserve  fund;
provided  however  for  such  bonds  issued by the authority after April
first, nineteen hundred ninety-two, such debt service reserve  fund  may
in  the  discretion  of  the authority and consistent with any covenants
with any existing bondholders and without impairing the  rights  of  any
existing  bondholders  be sized in an amount equal to not less than one-
half of the maximum amount of principal and interest maturing and becom-
ing due in any succeeding calendar year on such bonds of  the  authority
then outstanding and secured by such debt service reserve fund. In order
to  further  assure  the  maintenance of such debt service reserve fund,
with respect to bonds of the authority issued pursuant  to  subdivisions
two-a,  two-b  and  two-c  of  this  section after April first, nineteen
hundred ninety, the authority shall create a special subaccount in  each
revenue  fund  established  pursuant  to  any  resolution or resolutions
authorizing such bonds. [Such subaccounts shall consist  of  the  moneys
available  after  April  first,  nineteen  hundred  ninety,  pursuant to
sections two hundred eighty-two-b, two hundred eighty-two-c, two hundred
eighty-four-a and two hundred eighty-four-c of the tax law,  respective-
ly,  in  the  emergency  highway  reconditioning  and  preservation fund
reserve account established pursuant to paragraph (b) of subdivision two
of section eighty-nine of the state finance law  and  in  the  emergency
highway construction and reconstruction fund reserve account established
pursuant to paragraph (b) of subdivision two of section eighty-nine-a of
the state finance law, apportioned and paid to the authority for deposit
in such subaccount of the revenue fund.] Amounts in each such subaccount
shall be kept separate and shall not be commingled with any other moneys
in  the custody of the authority.  Amounts in each such subaccount shall
be applied solely to pay such sum, if any, as shall  semi-annually,  (on
such dates as are established under the terms of any cooperative highway

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contractual  agreement  of the department of transportation with the New
York state thruway authority entered into on or after April first, nine-
teen hundred ninety which is then in effect), be certified by the chair-
man of the authority to the governor and state director of the budget as
necessary  to  provide funds in an amount sufficient together with other
moneys available to the authority for such purpose, to pay  one-half  of
the total annual principal and interest maturing and becoming due during
the next succeeding twelve calendar months on all bonds of the authority
issued  pursuant  to subdivisions two-a, two-b and two-c of this section
after April first, nineteen hundred ninety and  maintaining  or  funding
debt  service reserve funds therefor. [Any surplus of funds in excess of
such certified amounts remaining in  each  such  subaccount  after  such
payments,  if  any,  have been made shall on the dates established under
the terms of such cooperative  highway  agreements,  be  paid  over  for
deposit, respectively, in the emergency highway reconditioning and pres-
ervation  fund  reserve account established pursuant to paragraph (b) of
subdivision two of section eighty-nine of the state finance law  and  in
the  emergency  highway  construction  and  reconstruction  fund reserve
account established pursuant to paragraph  (b)  of  subdivision  two  of
section eighty-nine-a of the state finance law.]
  S  7.  Subdivision 5 of section 10-c of the highway law, as amended by
chapter 20 of the laws of 1983, is amended to read as follows:
  5. For amounts to be distributed pursuant to this  section  above  the
funding  level,  as defined in this subdivision, received by any munici-
pality, such municipality shall use at  least  seventy-five  percent  of
such apportioned moneys for the construction, reconstruction or improve-
ment  of  local  highways,  bridges  and/or  highway-railroad crossings,
including  right  of  way  acquisition,  preliminary  engineering,   and
construction  supervision  and inspection, where the service life of the
project is at least ten years. Such moneys made available may be used to
match other state and federal funds made  available  for  such  projects
under  federal-aid highway acts. The remainder of the apportionment, may
be used for any highway purposes, except debt service, including but not
limited to, the acquisition of materials and equipment devoted to opera-
tion and maintenance of local highways, bridges and/or  highway-railroad
crossings  and  the payment of any costs directly attributable to opera-
tion and maintenance of local highways, bridges and/or  highway-railroad
crossings. At the discretion of the commissioner, the requirement speci-
fied  in  this  subdivision  may  be  waived  for assistance payments in
amounts of less than five thousand dollars. For purposes of this section
"funding level" shall mean the  average  amounts,  calculated  for  each
municipality,  received  over two years ending March thirty-first, nine-
teen hundred eighty-two from the provisions of the town highway improve-
ment program, the distribution made by former section one hundred twelve
of this chapter, as repealed by section twenty-one of the transportation
systems assistance and financing act of 1981 of amounts  collected  from
taxes  on  motor  fuel imposed by [sections] SECTION two hundred eighty-
four [and two hundred eighty-four-a] of the tax law and on Diesel  motor
fuel  imposed  by  [sections]  SECTION two hundred eighty-two-a [and two
hundred eighty-two-b] of the  tax  law,  and  from  motor  vehicle  fees
collected  from residents pursuant to the vehicle and traffic law, [and]
the distribution made by former section two hundred seventy-nine of this
chapter, as repealed by section twenty-one of the transportation systems
assistance and financing act of 1981,  AND  THE  DISTRIBUTIONS  MADE  BY
FORMER SECTIONS TWO HUNDRED EIGHTY-TWO-B AND TWO HUNDRED EIGHT-FOUR-A OF

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THE  TAX  LAW,  AS  REPEALED  BY  A  CHAPTER OF THE LAWS OF TWO THOUSAND
FIFTEEN WHICH AMENDED THIS SUBDIVISION.
  S  8.  This  act shall take effect on the ninetieth day after it shall
have become a law.