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This entry was published on 2014-09-22
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SECTION 285-A
Presumption of taxability
Tax (TAX) CHAPTER 60, ARTICLE 12-A
§ 285-a. Presumption of taxability. 1. No person shall purchase motor
fuel in this state, excluding a purchase at retail, unless the taxes
imposed by this article have been assumed by a distributor registered
under this article in accordance with a certification under subdivision
three of this section or paid by such distributor, and, in each of such
instances, are passed through to such purchaser. In addition to any
other civil and criminal penalties which may apply, any person who
purchases motor fuel without having received a certification from the
seller in accordance with subdivision three of this section shall be
jointly and severally liable to pay the taxes imposed by this article
with respect to such motor fuel.

2. For the purpose of the proper administration of this article and to
prevent evasion of the tax on motor fuel imposed by and pursuant to this
article, it shall be presumed that all motor fuel imported, manufactured
or sold, received or possessed in the state is intended for use,
distribution, storage or sale in the state and subject to the taxes
imposed by this article until the contrary is established. It shall be
further presumed that all motor fuel so imported, manufactured or sold,
received or possessed in the state by any person, other than motor fuel
delivered into the ordinary fuel tank connected with the engine of a
means of conveyance in order to propel it, or in small drums or similar
containers, which such person cannot otherwise account for, is subject
to the taxes imposed by this article and such person is responsible for
payment of such taxes. Provided, however, a distributor of motor fuel
who imports, manufactures or sells and stores in the state or who
purchases and stores motor fuel in the state on which he has paid the
taxes imposed by this article shall be allowed an adjustment in arriving
at the gallons subject to the taxes imposed by such section on account
of the gallons the distributor establishes were lost due to shrinkage,
evaporation and handling; provided, however, such allowance shall not
exceed two percent of the fuel stored. Provided, further, that in
arriving at the gallons of motor fuel subject to the taxes imposed by
this article, there shall be allowed an adjustment on account of gallons
lost or destroyed due to an accident, such as fire, and at the time of
such loss or destruction were being held or transported for sale other
than at retail. The burden of proving that any motor fuel is not so
subject shall be upon the person so responsible for such payment with
respect to such fuel.

3. (a) Upon each sale of motor fuel, other than a sale at retail, the
seller must give to the purchaser and the purchaser shall receive at the
time of delivery of such motor fuel, a certification containing such
information as the tax commission shall require which shall include a
statement to the effect: (i) if such seller is a distributor registered
under this article, that he assumed the payment of or paid the taxes
imposed by this article and, in each case, is passing through such
taxes; or (ii) that such seller is passing through such taxes which were
so previously assumed or paid by an identified distributor registered
under this article, and passed through to him.

(b) If the certification required by this subdivision has been
furnished to the purchaser at delivery and accepted in good faith, the
burden of proving that the taxes imposed by this article were assumed or
paid by a distributor registered as such under this article and passed
through shall be solely on the seller.

(c) Where the certification required under this paragraph is not
furnished by the seller at delivery of motor fuel, it shall be presumed
that the taxes imposed by this article have not been assumed or paid by
a distributor registered as such under this article and that the
purchaser in such case is jointly and severally liable for such taxes.

(d) If, due to the circumstances of delivery, it is not possible to
issue a certification required under this subdivision at the time of
delivery of motor fuel, the tax commission may authorize the delivery of
the certification required under this paragraph at a time after the
delivery of the motor fuel which is the subject of the sale under the
limited circumstances it shall prescribe and upon such terms and
conditions it shall deem necessary to ensure collection of the taxes
imposed by this article and the tax imposed by section eleven hundred
two of this chapter.