1. The Laws of New York
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  4. Article 13-A: Tax On Petroleum Businesses


Section 301-E Aviation fuel business

Tax (TAX)

(a) Notwithstanding any other provision of this chapter, for taxable months commencing on and after the first day of September, nineteen hundred ninety, there is hereby imposed upon every aviation fuel business for the privilege of engaging in business, doing business, employing capital, owning or leasing property, or maintaining an office in this state, for all or any part of each of its taxable months a monthly tax equal to the sum of (1) the aviation gasoline component determined pursuant to subdivision (b) of this section and (2) the kero-jet component determined pursuant to subdivision (c) of this section. Provided, however, the commissioner may permit the tax imposed under this subdivision and returns related to such tax to be paid and filed for a period covering twelve consecutive taxable months by aviation fuel businesses which are not airlines.

  (b) Aviation gasoline component. (1) The aviation gasoline component shall be determined by multiplying the aviation gasoline rate times the number of gallons of aviation gasoline imported or caused to be imported into this state by an aviation fuel business for use, distribution, storage or sale in the state or produced, refined, manufactured or compounded in the state by an aviation fuel business. Provided that importation of aviation gasoline into the state in the fuel tanks of aircraft shall be importation for use for the purposes of this section. The basic aviation gasoline rate shall be five and one-half cents per gallon. The rate shall be adjusted at the same time as the rates of the components of the petroleum business tax imposed by section three hundred one-a of this article, and the method of making adjustments to the aviation gasoline rate shall be the same as the method used for such rates.

  (2) Partial credit or refund with respect to aviation gasoline. A distributor of motor fuel shall be entitled to a partial credit or refund of the tax paid under this section on aviation gasoline sold to a fixed base operator registered under article twelve-a of this chapter as a "retail seller of aviation gasoline" under the circumstances described in subparagraph (i) of paragraph (b) of subdivision one-a of section two hundred eighty-nine-c of this chapter. Provided, that in order to qualify for the credit or refund the amount of tax claimed as a credit or refund shall have been paid or assumed on such sale by such distributor and shall have not been passed on to such "retail seller of aviation gasoline". A distributor of motor fuel, also registered as a "retail seller of aviation gasoline", shall be entitled to a partial credit or refund for aviation gasoline delivered and stored at its fixed base operations premises in such subparagraph (i), and such credit or refund shall accrue at the time the fuel is so delivered and placed in such storage facility. An airline which is registered as a distributor of motor fuel and which imports aviation gasoline into this state for use in its airplanes, where delivery and storage take place as described in such subparagraph (i), shall also be allowed such partial credit or refund of tax on such fuel so imported and used exclusively in the operation of its airplanes. An aviation fuel business, taxed as such, by reason of importation in the fuel tank of an airplane shall also be allowed such partial credit or refund for aviation gasoline consumed in this state. The amount of the partial credit or refund allowable under this subparagraph shall be the excess of tax which exceeds five and two-tenths cents per gallon. Provided, that such five and two-tenths cents rate used to compute this partial credit and refund shall be adjusted at the same time as the rate of the aviation gasoline component imposed by paragraph one of this subdivision, and the methods of making such adjustments to this partial credit and refund shall be the same as the method used for such rates.

  (c) Kero-jet fuel component. The kero-jet fuel component shall be determined by multiplying the kero-jet fuel rate times the number of gallons of (1) kero-jet fuel imported or caused to be imported into this state by an aviation fuel business and consumed in this state by such business in the operation of its aircraft; and (2) kero-jet fuel, which has not been previously included in the measure of the tax imposed by this section, (i) which is sold in this state by an aviation fuel business to persons other than those registered under this article as aviation fuel businesses or (ii) which is consumed in this state by an aviation fuel business in the operation of its aircraft. Provided that importation of kero-jet fuel in the fuel tanks of aircraft shall be importation for the purposes of this section. The basic kero-jet fuel rate shall be six and eight-tenths cents per gallon. The rate shall be adjusted at the same time as the rates of the components of the petroleum business tax imposed by section three hundred one-a of this article, and the method of making adjustments to the kero-jet fuel rate shall be the same as the method used for such rates.

  (d) (1) An aviation fuel business shall be entitled to reimbursement of the tax imposed by this section, less any credit allowed or refund granted, with respect to aviation gasoline purchased in this state and consumed by such business exclusively as aviation fuel in the operation of its aircraft where such aviation gasoline is not consumed in this state, provided that the amount of such tax, less any credit or refund, has been absorbed by such aviation fuel business. Provided, further, an aviation fuel business which has imported aviation gasoline into this state and consumed such aviation gasoline in the operation of its aircraft where a portion of such aviation gasoline is not consumed in this state shall be allowed a credit for such gallonage not consumed in this state in computing the tax imposed by such section.

  (2) An aviation fuel business shall be entitled to reimbursement of the tax imposed by this section with respect to kero-jet fuel purchased in this state and consumed by such business exclusively as aviation fuel in the operation of its aircraft where such kero-jet fuel is not consumed in this state, provided that the entire amount of such tax has been absorbed by such aviation fuel business.

  (3) Any purchaser of aviation gasoline in this state who consumes such aviation gasoline exclusively as aviation fuel in the operation of its aircraft shall be entitled to a partial reimbursement of the tax imposed by this section with respect to aviation gasoline which was purchased by such purchaser and upon which such purchaser paid or absorbed the full amount of the tax imposed by this section (where no partial credit or refund under paragraph two of subdivision (b) of this section was provided with respect to such aviation gasoline) where: (i) such purchaser purchases the aviation gasoline from a fixed base operator which qualifies as a retail seller of aviation gasoline but is not so registered under article twelve-A of this chapter, or (ii) such purchaser purchases the aviation gasoline in bulk from a distributor of motor fuel registered under article twelve-A of this chapter where such distributor delivers such aviation gasoline directly into a bulk storage facility of the purchaser which is at a fixed and permanent place at an airport within this state and is used solely to fill the fuel tanks of its aircraft for use in the operations thereof. The amount of the reimbursement allowable under this paragraph shall be equal to the amount of the partial credit or refund allowable under paragraph two of subdivision (b) of this section.

  (4) The commissioner shall require such documentary proof to qualify for any credit, refund or reimbursement of tax provided under this subdivision as the commissioner deems appropriate.

  (e) All the provisions of this article relating to the administration, collection and disposition of the tax imposed on petroleum businesses, including the registration provisions of section three hundred two of this article applicable to residual petroleum product businesses, shall apply to the tax imposed by this section and the registration under this article of aviation fuel businesses with such modification as may be necessary in order to adapt the language of such provisions to the tax imposed by this section. When reference in this article is made to "the tax imposed under this article" or where words of similar import are used, unless the context indicates otherwise, such reference shall be to the tax imposed under section three hundred one-a of this article and this section. The tax imposed by this section shall be administered jointly in conjunction with, and as a part of, the tax imposed on petroleum businesses as if the provisions of subdivision (a) of this section, imposing the tax under this section, were made a part of the imposition provisions of section three hundred one-a, except where contrary or not applicable to or inconsistent with the provisions of this section. Provided, further, for the purpose of this section:

  (1) the term "aviation fuel business" shall mean a "petroleum business" as described in paragraph one or paragraph two of subdivision (b) of section three hundred of this article except that the activities described therein shall separately relate to aviation gasoline (such paragraph one) and kero-jet fuel (such paragraph two) and such term shall also include every corporation or unincorporated business importing or causing to be imported aviation fuel into this state for consumption by it in this state by bringing such aviation fuel into this state in aircraft fuel tanks which connect to the engines propelling such aircraft.

  (2) kero-jet fuel and aviation gasoline consumed in this state shall be presumed to mean all such fuel consumed during takeoffs from points in this state;

  (3) where the commissioner of taxation and finance decides that with respect to a certain petroleum business any of the methods prescribed in paragraph two of this subdivision do not fairly and equitably reflect fuel consumed in this state, the commissioner shall prescribe methods of attribution which fairly and equitably reflect fuel consumed in this state.

  (4) "aviation fuel" means kero-jet fuel and aviation gasoline (as described in paragraph three of subdivision (a) of section three hundred one-b of this article). Provided, further the term kero-jet shall not include naphtha based aviation fuel refined and used solely for propelling military jet airplanes of the United States Armed Forces.

  (f) An aviation fuel business, which services four or more cities in the state with non-stop flights between such cities, shall be exempt from the tax imposed by this section and any surcharge imposed on such tax.