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This entry was published on 2014-09-22
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SECTION 503-A
Imposition of additional tax
Tax (TAX) CHAPTER 60, ARTICLE 21
§ 503-a. Imposition of additional tax. 1. In addition to the tax
imposed by section five hundred three of this chapter, and in addition
to any other tax or fee imposed by law, there is hereby imposed on and
after July first, nineteen hundred sixty-eight and before January first,
nineteen hundred ninety-six an additional tax on highway use for the
privilege of operating any vehicular unit, other than an omnibus, upon
the public highways of this state, and on and after October first,
nineteen hundred sixty-nine and before January first, nineteen hundred
ninety-six an additional tax on highway use for the privilege of
operating upon the public highways of this state any omnibus which is a
vehicular unit as defined in subdivision eight of this section. Such
tax shall be upon the carrier except that where the carrier is not the
owner of such vehicular unit, the tax shall be a joint and several
liability upon both.

2. Such tax shall be at a composite rate determined by adding together
(i) a fuel tax component which shall be equivalent to the rate per
gallon in effect under the taxes on motor fuel and diesel motor fuel
imposed by article twelve-a of this chapter and (ii) a sales tax
component, which shall be equivalent to the rate per gallon applicable
to the receipts from the sale of a gallon of motor fuel and diesel motor
fuel in effect under the sales and compensating use taxes imposed by
sections eleven hundred five and eleven hundred ten of this chapter plus
the highest rate applicable to the receipts from the sale of a gallon of
motor fuel and diesel motor fuel in effect in any locality of this state
imposing a local sales and compensating use tax on the sale of motor
fuel and diesel motor fuel under the authority of section twelve hundred
ten of this chapter; provided, however, that the aggregate rate per
gallon applicable to the receipts from the sale of a gallon of such
fuels imposed under clause (ii) of this subdivision shall not exceed
seven percent. Such total equivalent rate per gallon under clause (ii)
of this subdivision shall be determined as provided in subdivision (d)
of section eleven hundred eleven of this chapter and the schedules
prescribed by the commissioner of taxation and finance pursuant to such
subdivision, and shall be based on the average price per gallon
(including all federal and state and any local taxes included in such
price or imposed on the use or consumption of such fuels but determined
without the inclusion of any state and local sales tax on receipts from
sales of such fuels) paid by the carrier during the return period for
all motor fuel and diesel motor fuel purchased for use in its operations
either within or without this state. Provided, however, if the
commissioner shall determine that the records of any carrier are
inadequate or incomplete for such a determination of average price, the
price for motor fuel and diesel motor fuel purchased by such carrier
shall be deemed to be the prevailing price for motor fuel and diesel
motor fuel, as established by the commissioner each calendar quarter
pursuant to this section, applicable to the return period. Each calendar
quarter, the commissioner shall for each calendar quarter establish a
prevailing price for motor fuel and diesel motor fuel based on the
prices being charged on any given day during the first fifteen days of
the previous calendar quarter at a minimum of ten selected truck stops
widely scattered throughout the state. For any return period, a carrier
may elect to use the prevailing price per gallon so established by the
commissioner. Such tax shall be computed by multiplying such composite
rate by the amount of motor fuel or diesel motor fuel, as the case may
be, used by a carrier in its operations within this state during each
calendar quarter or, where the commissioner has required or permitted a
return to be based upon a different period, during such other period.
The amount of motor fuel and diesel motor fuel used in the operations of
any carrier within this state shall be such proportion of the total
amount of such motor fuel and diesel motor fuel used in its entire
operations within and without this state as the total number of miles
traveled within this state bears to the total number of miles traveled
within and without this state. The commissioner may, by regulation,
allow use of a miles per gallon factor in computing fuel used in
operations in lieu of the above formula if evidence is presented to the
commissioner's satisfaction that no loss of revenue will result. Where
the records of any carrier are inadequate or incomplete the vehicular
units of a carrier filing returns shall be deemed to have consumed, on
the average, one gallon of diesel motor fuel for every four miles
traveled or one gallon of motor fuel for every three miles traveled
unless substantial evidence discloses that a different amount was
consumed.

3. Every carrier subject to the tax imposed by this section shall be
entitled to a credit against such tax determined by adding together the
following components: (i) a fuel tax component computed by multiplying
the number of gallons of motor fuel or diesel motor fuel purchased by
such carrier within this state in a return period, for use in its
operations either within or without this state, by the applicable rate
per gallon imposed on such fuel under article twelve-A of this chapter,
provided, however, no credit shall be allowed unless the tax imposed
under such article twelve-A upon such purchase of fuel has been paid by
such carrier, and (ii) a sales tax component computed by multiplying the
number of gallons of motor fuel or diesel motor fuel purchased by such
carrier within this state in a return period, for use in its operations
either within or without this state (as determined in a manner similar
to the method for determining the use of fuel in the state as provided
for under subdivision two of this section), by the applicable equivalent
rate per gallon of the sales tax component of the tax rate (as
determined under subdivision two of this section), provided, however, no
credit shall be allowed unless the tax imposed under article
twenty-eight of this chapter upon such purchase of fuel has been paid by
the carrier. Each carrier claiming such credit components shall furnish
to the commissioner such evidence of payment of such taxes as the
commissioner may require. When the amount of the credit to which any
carrier is entitled for any return period with respect to gallonage
purchased in such return period exceeds the amount of tax for which such
carrier is liable under this section for such return period, such excess
shall be allowed as a credit against the tax or which such carrier would
otherwise be liable for those succeeding periods (after application of
any credits derived with respect to gallonage purchased in each such
succeeding period) which fall wholly within the twenty-four month period
commencing with the end of the return period from which the excess was
derived or, if a claim for refund is filed on or before the last day of
the month immediately following the forty-eight month period commencing
with the end of the return period which gave rise to the refund, the
amount of such excess for such period shall be refunded; but, such a
claim for refund may be filed no more frequently than quarterly, with
respect to the calendar quarters: January through March, April through
June, July through September and October through December. The
commissioner shall grant or deny any such claim for refund in whole or
in part and shall notify the claimant by mail of the commissioner's
determination. Such determination shall be final and irrevocable unless
the claimant shall, within thirty days after the mailing of notice of
such determination, petition the division of tax appeals for a hearing.
After such hearing, the division of tax appeals shall mail notice of the
determination of the administrative law judge to the claimant and to the
commissioner. Such determination may be reviewed by the tax appeals
tribunal as provided in article forty of this chapter. The decision of
the tax appeals tribunal may be reviewed as provided in section two
thousand sixteen of this chapter. However, such a proceeding may not be
commenced unless an undertaking is filed with the commissioner in such
amount and with such sureties as a justice of the supreme court shall
approve to the effect that if the proceeding be dismissed or the
decision confirmed, the petitioner will pay all costs and charges which
may accrue against him in the prosecution of the proceeding.

4. Except as otherwise provided in this subdivision, every carrier
subject to the tax imposed by this section shall file returns reporting
its operations pursuant to the provisions of section five hundred five
of this article for the reporting periods provided pursuant thereto. If
the commissioner of taxation and finance finds that the enforcement of
the tax imposed by this section would not be adversely affected, the
commissioner may provide, by regulation, that a carrier operating
primarily within this state may file an information return, rather than
the aforementioned returns, provided the carrier has purchased in this
state all the motor fuel and diesel motor fuel used in its operations
during the period covered by such return and pays the taxes imposed
under articles twelve-a and twenty-eight and pursuant to the authority
of article twenty-nine of this chapter on such fuels in the manner
required by such articles. An election to file an information return
shall be made in such form, for such time and upon such terms as the
commissioner shall require.

5. At the time of filing its return, as required pursuant to the
preceding subdivision, each carrier shall pay the tax imposed by this
section calculated upon the amount of motor fuel and Diesel motor fuel
used in its operations within this state during the period covered by
the return filed.

6. For purposes of this section, the definition of "motor fuel" in
subdivision two of section two hundred eighty-two and the definition of
"Diesel motor fuel" in subdivision fourteen of section two hundred
eighty-two of this chapter shall apply.

7. For purposes of this section, the term "operations" means
operations of all vehicular units, whether loaded or empty, whether or
not for compensation and whether owned by or leased to the carrier which
operates them or causes them to be operated.

8. For purposes of this section only, (a) the term "vehicular unit"
shall include an omnibus engaged in the interstate or foreign
transportation of passengers and subject to the jurisdiction of the
interstate commerce commission, or any agency successor thereto, or one
or more state regulatory agencies concerned with the regulation of
passenger transport, having a seating capacity of more than seven
persons in addition to the driver; and (b) the term "carrier" shall
include any person having the lawful use or control, or the right to the
use or control of any such omnibus.

9. The rest of the provisions of this article shall be applicable to
the tax imposed by this section except to the extent such provisions are
inconsistent with a provision in this section.