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SECTION 285-B
Presumption of taxability--Diesel motor fuel
Tax (TAX) CHAPTER 60, ARTICLE 12-A
§ 285-b. Presumption of taxability--Diesel motor fuel. 1. Except with
respect to the exemptions from the excise tax on Diesel motor fuel set
forth in subdivision three of section two hundred eighty-two-a of this
article, no person shall purchase Diesel motor fuel in this state unless
the taxes imposed by this article have been assumed by a registered
distributor of Diesel motor fuel in accordance with a certification
under subdivision four of this section or paid by such distributor and,
in each of such instances, except in the case of an exemption from the
pass through of such tax authorized in subdivision four of such section
two hundred eighty-two-a, are passed through to such purchaser. In
addition to any other civil and criminal penalties which may apply, any
person who purchases Diesel motor fuel without having received a
certification from the seller in accordance with subdivision four of
this section shall be jointly and severally liable to pay the taxes
imposed by this article with respect to such Diesel motor fuel.

2. For purposes of the proper administration of this article and to
prevent evasion of the taxes imposed on Diesel motor fuel by this
article, it shall be presumed that all Diesel motor fuel sold, received
or possessed in the state is subject to the taxes imposed by this
article until the contrary is established. It shall be further presumed
that any person so selling, receiving or possessing such Diesel motor
fuel is responsible for payment of the excise taxes on such fuel.

3. (a) The claim for or exemption from tax provided for in
subparagraphs (i), (ii), (iii), (iv), and (vi) of paragraph (b) of
subdivision three of section two hundred eighty-two-a of this article
shall be established by means of an exempt transaction certificate. If
any such exemption is applicable, such certificate shall be provided by
the purchaser to the seller at the time of or prior to delivery of the
Diesel motor fuel. Such exempt transaction certificate shall set forth
the name and address of the purchaser and the basis of the exemption and
shall be signed by such purchaser and by the seller. Such certificate
shall be in such form and contain such other information as the
commissioner shall require. Where a proper and complete exempt
transaction certificate has been furnished and accepted by the seller in
good faith, such certificate under such circumstance shall relieve the
seller of the burden of proving that the Diesel motor fuel covered by
such certificate is exempt from tax by reason of subparagraph (i), (ii),
(iii), (iv), or (vi) of paragraph (b) of subdivision three of such
section two hundred eighty-two-a. Any purchaser who furnishes to his
seller a false or fraudulent exempt transaction certificate for the
purpose of establishing an exemption from the tax imposed by section two
hundred eighty-two-a of this article shall be jointly and severally
liable for the tax imposed by such section. In lieu of an exempt
transaction certificate, the commissioner may provide for the
establishment of such exemption by means of a procedure or other
document which he or she deems appropriate so as to secure the revenues
from the excise tax on Diesel motor fuel. Provided, further, in the case
of the exemption provided by subparagraph (i) of paragraph (b) of
subdivision three of section two hundred eighty-two-a of this article,
the commissioner shall provide for an alternative procedure or other
document signed only by the seller, such as a metered delivery ticket,
for the establishment of such exemption in those cases where such
commissioner is satisfied that the use of such alternative procedure or
other document will not jeopardize the revenues from the excise tax on
Diesel motor fuel.

(b) A claim for the exemption from tax provided for in subparagraph
(v) of paragraph (b) of subdivision three of section two hundred
eighty-two-a of this article shall be established by means of an
interdistributor sale certificate. If such exemption is applicable, such
certificate shall be provided by the purchaser to the seller at the time
of or prior to delivery of the Diesel motor fuel. Such certificate shall
set forth the name and address of the purchaser, the purchaser's
registration number, an affirmation by such purchaser that the purchaser
is registered as a distributor and that such registration has not been
suspended or cancelled and shall be signed by such purchaser and by the
seller. Such certificate shall be in such form and contain such other
information as the commissioner shall require. Where a proper and
complete interdistributor sale certificate has been furnished and
accepted by the seller in good faith, such certificate under such
circumstance shall relieve the seller of the burden of proving that the
Diesel motor fuel covered by such certificate is exempt from tax by
reason of subparagraph (v) of paragraph (b) of subdivision three of such
section two hundred eighty-two-a. For purposes of this paragraph, a
seller shall not have accepted such certificate in good faith if the
purchaser's registration is invalid because it has been suspended or
cancelled, or if the purchaser is not registered, and the commissioner
has furnished registered distributors with information identifying all
those persons then validly registered as distributors of Diesel motor
fuel and those persons whose registrations have been suspended or
cancelled. Any purchaser who furnishes to his seller a false or
fraudulent interdistributor sale certificate for the purpose of
establishing an exemption from the tax imposed by section two hundred
eighty-two-a of this article shall be jointly and severally liable for
the tax imposed by such section.

4. (a) Upon each sale, other than a retail sale not in bulk, the
seller must give to the purchaser and the purchaser shall receive at the
time of delivery of such Diesel motor fuel, a certification containing
such information as the commissioner of taxation and finance shall
require which, unless otherwise provided in this paragraph, shall
include a statement to the effect: (i) if such seller is a distributor
registered under this article, that he has 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. In
the case of a transaction described in paragraph (a) or (b) of
subdivision three of section two hundred eighty-two-a of this article
which is exempt from the imposition of the taxes imposed on Diesel motor
fuel or where the seller, pursuant to and in accordance with subdivision
four of such section, has not passed through such taxes to the
purchaser, the certificate, in lieu of either of the foregoing
statements, shall state that, based upon good faith reliance on an
exempt transaction certificate (or such other similar document or
procedure prescribed by the commissioner of taxation and finance), an
interdistributor sales certificate or the exemption document provided by
an organization described in paragraph one or two of subdivision (a) of
section eleven hundred sixteen of this chapter, as the case may be, such
motor fuel is being sold under the circumstances described in such
paragraph (a) or (b) of subdivision three of section two hundred
eighty-two-a or, in the case of the exemption from the pass through, is
being sold under the circumstances specified in subdivision four of such
section and that the taxes imposed by this article are not applicable or
are not being passed through, as the case may be.

(b) In the case of a sale of Diesel motor fuel subject to the excise
taxes and in all cases where the excise taxes are required to be passed
through, if the certification required by this subdivision has been
furnished to the purchaser at the time of delivery of such fuel 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 subdivision is not
furnished by the seller at the time of delivery of the Diesel motor
fuel, it shall be presumed that the taxes imposed by this article are
due and owing and 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 Diesel motor fuel, the commissioner of taxation and finance
may authorize the delivery of the certification required under this
subdivision at a time after the delivery of the Diesel 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 three of this chapter.