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This entry was published on 2014-09-22
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SECTION 1120
Refunds and credits with respect to motor fuel and diesel motor fuel
Tax (TAX) CHAPTER 60, ARTICLE 28, PART 3
§ 1120. Refunds and credits with respect to motor fuel and diesel
motor fuel. (a) Retail vendor. (1) A vendor of motor fuel or diesel
motor fuel who or which is required to collect the taxes imposed by
subdivision (a) of section eleven hundred five of this article and any
like tax imposed pursuant to the authority of article twenty-nine of
this chapter shall be allowed a refund or credit against the amount of
tax collected and required to be remitted to the commissioner pursuant
to the provisions of section eleven hundred thirty-seven of this article
upon the retail sale of motor fuel or diesel motor fuel in the amount of
the tax on such fuel prepaid by or passed through to and included in the
price paid by such vendor pursuant to the provisions of section eleven
hundred two of this article.

(2) A refund or credit shall also be allowed such vendor for the tax
prepaid by or passed through to and included in the price paid by such
vendor upon any motor fuel or diesel motor fuel pursuant to the
provisions of section eleven hundred two of this article if such fuel is
sold at retail by such vendor under circumstances where the taxes
imposed by section eleven hundred five of this article and pursuant to
the authority of article twenty-nine of this chapter are not required by
the provisions of this article to be collected and remitted upon
receipts from a retail sale thereof.

(b) Retail user. A purchaser, user or consumer of motor fuel or diesel
motor fuel at retail who or which is required to pay the tax imposed by
section eleven hundred ten of this article and any like tax imposed
pursuant to the authority of article twenty-nine of this chapter with
respect to the purchase of or the use or consumption of such fuel shall
be allowed a credit against such tax required to be paid to the
commissioner pursuant to such section and article in the amount of the
tax prepaid by or passed through to and included in the price paid by
such purchaser, user or consumer pursuant to the provisions of section
eleven hundred two of this article.

(c) Self-use of motor fuel or diesel motor fuel purchased at
wholesale. A refund or credit equal to the amount of tax prepaid by or
passed through to and included in the price paid by a purchaser, user or
consumer pursuant to the provisions of section eleven hundred two of
this article with respect to a purchase of motor fuel or diesel motor
fuel other than at retail shall be allowed such purchaser, user or
consumer upon the use or consumption of such fuel at retail if the
acquisition of such fuel by the purchaser, user or consumer would have
otherwise been exempt pursuant to section eleven hundred five-A, eleven
hundred fifteen or eleven hundred sixteen of this article but for the
provisions of the last sentence of subdivision (c) of section eleven
hundred two and subdivision (j) of section eleven hundred fifteen or of
such last sentence and paragraph five of subdivision (b) of section
eleven hundred sixteen of this article. Also, a refund or credit shall
be allowed equal to the difference between the amount of tax prepaid by
or passed through to and included in the price paid by a purchaser, user
or consumer pursuant to the provisions of section eleven hundred two of
this article with respect to a purchase of diesel motor fuel other than
at retail and the aggregate of the amount of tax that would have been
imposed if measured by the applicable rate specified in section eleven
hundred five-A of this article and the amount of tax that would have
been imposed if measured by the applicable rate specified in section
twelve hundred ten of article twenty-nine upon diesel motor fuel which
is used for residential heating purposes if the purchase, use or
consumption would have otherwise been subject to such lower rate of tax
pursuant to such section eleven hundred five-A but for the last sentence
of subdivision (a) of such section eleven hundred five-A or pursuant to
section twelve hundred ten but for the last sentence of subparagraph (i)
of paragraph three of subdivision (a) of such section twelve hundred
ten.

(d) Purchase of motor fuel or diesel motor fuel at retail by an exempt
organization. A refund or credit equal to the amount of tax imposed
pursuant to section eleven hundred five of this article and any like tax
imposed pursuant to the authority of article twenty-nine of this chapter
upon the sale of motor fuel or diesel motor fuel and paid by a purchaser
shall be allowed such purchaser if the purchase, use or consumption of
such fuel would have otherwise been exempt pursuant to section eleven
hundred fifteen or eleven hundred sixteen of this article but for the
provisions of subdivision (j) of section eleven hundred fifteen or
paragraph five of subdivision (b) of section eleven hundred sixteen of
this article. Also, there shall be allowed a refund or credit equal to
the difference between the amount of tax actually imposed pursuant to
section eleven hundred five of this article and the amount of tax that
would have been imposed as measured by the applicable rate specified in
section eleven hundred five-A of this article and a refund or credit
equal to the difference between the tax actually imposed pursuant to the
authority of article twenty-nine of this chapter and the amount of tax
that would have been imposed if measured by the applicable rate
specified in section twelve hundred ten of article twenty-nine upon
diesel motor fuel which is used for residential heating purposes if the
purchase, use or consumption would have otherwise been subject to such
lower rate of tax pursuant to such section eleven hundred five-A but for
the last sentence of subdivision (a) of such section eleven hundred
five-A or pursuant to section twelve hundred ten but for the last
sentence of subparagraph (i) of paragraph three of subdivision (a) of
such section twelve hundred ten.

(e) Immediate export. With respect to (i) motor fuel imported,
manufactured or sold or purchased in this state, and (ii) highway 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 distributor 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.

(f) Refunds of the tax required to be prepaid pursuant to the
provisions of section eleven hundred two of this article shall be
allowed only to the extent such tax paid by or passed through to the
retail vendor, or the purchaser, consumer or user exceeds the amount of
tax required to be collected from such person or required to be remitted
by the provisions of this article and pursuant to the authority of
article twenty-nine of this chapter.

(g) Such credit shall be allowed only to the extent that the tax
required to be prepaid pursuant to section eleven hundred two of this
article is prepaid by such vendor, purchaser, user or consumer (i) upon
importation, manufacture, sale or use, as the case may be, and (ii) with
respect to the identified motor fuel or diesel motor fuel for which such
credit is claimed upon the use or consumption thereof, but only to the
extent that the tax imposed by section eleven hundred five of this
article and any like tax imposed pursuant to the authority of article
twenty-nine of this chapter together with the tax imposed by section
eleven hundred ten of this article and any like tax imposed pursuant to
the authority of article twenty-nine of this chapter required to be
paid, collected and remitted has been paid, collected and remitted.

(h) Such refunds and credits shall be subject to the provisions of
sections eleven hundred nineteen and eleven hundred thirty-nine of this
article as if such sections were incorporated in full into this section
and had expressly referred to the refunds and credits authorized by this
section including the periods of limitations on payments and
applications to the commissioner; provided, however, that as provided in
subdivision (e) of section eleven hundred thirty-nine of this article no
interest shall be allowed or paid upon any refund made or credit allowed
pursuant to subdivisions (a) and (b) of this section; and provided,
further, that, with respect to refunds or credits pursuant to
subdivision (d) of this section with respect to organizations described
in paragraph four of subdivision (a) of section eleven hundred sixteen
of this chapter and subdivision (e) of this section, upon receipt of a
claim for refund in processible form, interest shall be allowed or paid
at the overpayment rate set by the commissioner pursuant to section
eleven hundred forty-two of this article, or if no rate is set, at the
rate of six percent per annum, from the due date of the return or the
actual filing date of the return, whichever is later, to the date
immediately preceding the date of the refund check except no interest
shall be allowed or paid if the refund check is mailed within thirty
days of such receipt (except in case of organizations described in
paragraph four of subdivision (a) of section eleven hundred sixteen of
this chapter, the relevant period of time shall be forty-five days from
the date the application for refund is received in processible form and
interest, if allowable, shall apply from the date such application is
received in processible form) and no interest shall be allowed or paid
upon a credit pursuant to such subdivision and except no interest shall
be allowed or paid if the amount thereof would be less than one dollar.
Provided, however, the department shall process applications for refund
as expeditiously as possible.