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SECTION 182-A
Franchise tax on certain oil companies
Tax (TAX) CHAPTER 60, ARTICLE 9
§ 182-a. Franchise tax on certain oil companies. 1. Notwithstanding
any other provision of this chapter, or of any other law, for the period
beginning with taxable years commencing on or after the first day of
July, nineteen hundred eighty-one, but including that portion of any
taxable year commencing prior thereto to the extent of that portion of
such year which includes the period which commences with the first day
of July, nineteen hundred eighty-one, and ending with but not including
taxable years commencing on or after the first day of July, nineteen
hundred eighty-three, but including that portion of any taxable year
commencing prior thereto to the extent of that portion of such year
which includes the period which terminates with the thirtieth day of
June, nineteen hundred eighty-three, an annual tax is hereby imposed
upon every oil company equal to three-quarters of one per centum of its
gross receipts from sales of petroleum, or the portion thereof allocated
within the state as hereinafter provided, for the privilege of
exercising its corporate franchise, or of doing business, or of
employing capital, or of owning or leasing property in this state in a
corporate or organized capacity, or of maintaining an office in this
state, for all or any part of each of its taxable years. In no event
shall the tax imposed by this section be less than two hundred fifty
dollars.

2. As used in this section: (a) The term "oil company" means every
corporation formed for or engaged in the business of importing or
causing to be imported (by a person other than a corporation subject to
tax under this section) into this state for sale in this state,
extracting, producing, refining, manufacturing, or compounding
petroleum. Provided, however, a corporation which is principally engaged
in selling fuel oil (excluding diesel motor fuel) used for residential
purposes shall not be considered an oil company. For purposes of this
section, petroleum shall include, but shall not be limited to, gasoline,
aviation fuel, kerosene, diesel motor fuel, benzol, distillate fuels,
residual oil, crude oil or any similar product.

(b) The term "gross receipts from sales of petroleum" means all
receipts from sales of petroleum, whether from within or without the
United States, whether in cash, credits or property of any kind or
nature, without any deduction therefrom on account of the cost of the
property sold, the cost of materials used, labor or services, or other
costs, interest or discount paid, or any other expense whatsoever.
Receipts received by reason of any sale of fuel oil (excluding diesel
motor fuel) or liquified or liquifiable gases (except when sold in
containers of less than one hundred pounds) used for residential
purposes shall not be included in gross receipts.

However, to prevent the multiple application of the tax imposed by
this section, gross receipts shall not include the receipts from any
sale for resale to a purchaser which is an oil company subject to tax
under this section. It shall be presumed that no receipts are receipts
from a sale for resale to such purchaser unless such purchaser furnishes
the oil company with a resale certificate in such form and under such
terms and conditions as the tax commission may prescribe and such
certificate is accepted in good faith by such oil company. In addition,
it shall be presumed that no receipts are receipts received by reason of
any sale of fuel oil (excluding diesel motor fuel) or liquified or
liquifiable gases (except when sold in containers of less than one
hundred pounds) used for residential purposes unless the purchaser
furnishes the oil company with a residential use certificate, in such
form, at such times and under such terms and conditions as the tax
commission may prescribe, and such certificate is accepted in good faith
by such oil company. Provided, however, where a purchaser is a consumer
of such fuel oil or liquified or liquifiable gases, such purchaser shall
not be required to furnish such certificate and the oil company making
such sale shall be required to maintain records of such transactions in
such form and manner as the tax commission may prescribe. In order to
assist the purchaser from an oil company in completing its residential
use certificate, the tax commission may require such other purchasers of
petroleum as it deems necessary to furnish their suppliers with
residential use certificates.

(c) The term "corporation" includes a corporation, joint-stock company
or association and any business conducted by a trustee or trustees
wherein interest or ownership is evidenced by certificate or other
written instrument.

(d) The term "taxable year" means the oil company's taxable year for
federal income tax purposes, or the part thereof during which such oil
company is subject to tax under this section.

(e) The term "petroleum" shall mean crude oil, plant condensate,
gasoline, aviation fuel, kerosene, diesel motor fuel, benzol,
petrochemical feedstocks, distillate fuels, residual oil, and liquified
or liquifiable gases such as butane, ethylene, or propane.

3. The portion of the gross receipts from sales of petroleum of an oil
company to be allocated within the state shall be determined by
multiplying such gross receipts by the ratio which the gross receipts
from sales of petroleum where shipments are made to points within the
state bear to the gross receipts from sales of petroleum within and
without the state. Receipts received by reason of any sale of fuel oil
or liquified or liquifiable gases used for residential purposes and
receipts received from a sale for resale as described in paragraph (b)
of subdivision two of this section shall be included as a receipt in the
computation of the allocation percentage.

4. Every oil company subject to tax under this section shall keep such
records of its business in such form as the tax commission may require,
and such records shall be preserved for a period of three years, except
that the tax commission may consent to their destruction within that
period or may require that they be kept longer.

5. Every oil company subject to tax hereunder shall annually file on
or before the fifteenth day of the third month following the close of
its taxable year a return which shall state the gross receipts from
sales of petroleum for the period covered by such return. Returns shall
be filed with the tax commission in a form prescribed by it setting
forth such information as the tax commission may prescribe. Every oil
company subject to tax hereunder which ceases to exercise its franchise
or to be subject to the tax imposed by this section shall transmit to
the tax commission a return on the date of such cessation or at such
other time as the tax commission may require covering each year or
period for which no return was theretofore filed. Notwithstanding the
foregoing provisions of this subdivision, the tax commission may require
any oil company to file an annual return, which shall contain any data
specified by it, regardless of whether the oil company is subject to tax
under this section.

6. If any provision of this section conflicts with any other provision
contained in this article, the provisions of this section shall control,
but the provisions of this article which do not conflict with the
provisions of this section shall apply with respect to the taxes under
this section, insofar as they are, or may be made, applicable.

7. Any corporation which is subject to tax under section one hundred
eighty-three, one hundred eighty-four, one hundred eighty-five or one
hundred eighty-six of this article shall not be subject to tax under
this section.

8. An oil company which is not incorporated or organized under the
laws of this state shall not be deemed to be doing business, employing
capital, owning or leasing property, or maintaining an office in this
state, for the purposes of this section, by reason of (a) the
maintenance of cash balances with banks or trusts companies in this
state, or (b) the ownership of shares of stock or securities kept in
this state, if kept in a safe deposit box, safe, vault or other
receptacle rented for the purpose, or if pledged as collateral security,
or if deposited with one of banks or trust companies, or brokers who are
members of a recognized security exchange, in safekeeping or custody
accounts, or (c) the taking of any action by any such bank or trust
company or broker, which is incidental to the rendering of safekeeping
or custodian service to such oil company, or (d) the maintenance of an
office in this state by one or more officers or directors of the oil
company who are not employees of the oil company if the company
otherwise is not doing business in this state, and does not employ
capital or own or lease property in this state, or (e) the keeping of
books or records of an oil company in this state if such books or
records are not kept by employees of such oil company and such oil
company does not otherwise do business, employ capital, own or lease
property or maintain an office in this state, or (f) any combination of
the foregoing activities.

9. Any receiver, referee, trustee, assignee or other fiduciary, or any
officer or agent appointed by any court, who conducts the business of
any oil company shall be subject to the tax imposed by this section in
the same manner and to the same extent as if the business were conducted
by the agents or officers of such oil company. A dissolved oil company
which continues to conduct business shall also be subject to the tax
imposed by this section.

10. (a) Where a false or fraudulent resale certificate or residential
use certificate has been furnished to an oil company or to any other
person, the corporation or person furnishing such certificate shall be
subject to a penalty equal to three per centum of the gross receipts
which would have otherwise been taxable to such oil company if such
certificate had not been furnished to such company or to such other
person. Such penalty shall be assessed, collected and paid in the same
manner as the addition to tax with respect to a deficiency due to fraud
provided for in subsection (e) of section one thousand eighty-five of
this chapter is assessed, collected and paid.

(b) If a purchaser which is required by paragraph (b) of subdivision
two of section one hundred eighty-two-a to provide an oil company or
other supplier with a residential use certificate fails to provide such
certificate or provides a certificate which understates the amount of
fuel oil (excluding diesel motor fuel) or liquified or liquifiable gases
(except when sold in containers of less than one hundred pounds) used
for residential purposes, unless it is shown that such failure or
understatement is due to reasonable cause and not to willful neglect,
there shall, upon notice and demand by the tax commission and in the
same manner as tax, be paid by such purchaser a penalty of one hundred
dollars for each such failure or for each certificate containing such
understatement; provided, however, in no event may more than five
thousand dollars in such penalties be imposed against such purchaser in
any calendar year.

11. All taxes, interest and penalties collected or received by the
commissioner under the taxes and penalties imposed by this section shall
be deposited daily in one account with such responsible banks, banking
houses or trust companies as may be designated by the comptroller, to
the credit of the comptroller. Such an account may be established in one
or more of such depositories. Such deposits shall be kept separate and
apart from all other money in the possession of the comptroller. The
comptroller shall require adequate security from all such depositories.
Of the total revenue collected or received under this section, the
comptroller shall retain in his hands such amount as the commissioner
may determine to be necessary for refunds under this section, out of
which amount the comptroller shall pay any refunds to which oil
companies shall be entitled under the provisions of this section. After
reserving the amount required to pay such refunds, the comptroller shall
prior to April first, nineteen hundred ninety-four, deposit weekly
forty-five percent of all remaining revenue in the mass transportation
operating assistance fund to the credit of the public transportation
systems operating assistance account therein, and fifty-five percent of
such revenue in such fund to the credit of the metropolitan mass
transportation operating assistance account therein, established by
section eighty-eight-a of the state finance law, and on and after April
first, nineteen hundred ninety-four, after reserving the amount to pay
such refunds, the comptroller shall deposit weekly all the revenues
remaining in such mass transportation operating assistance fund to the
credit of such public transportation systems operating assistance
account therein. After reserving the amount to pay such refunds, the
comptroller shall on and after April first, nineteen hundred ninety-six,
deposit weekly forty-five percent of all remaining revenue in such mass
transportation operating assistance fund to the credit of such public
transportation systems operating assistance account therein, and
fifty-five percent of such revenue in such fund to the credit of such
metropolitan mass transportation operating assistance account therein.