N.Y. Tax Law 1120 – Refunds and credits with respect to motor fuel and diesel motor fuel
§ 1120. Refunds and credits with respect to motor fuel and diesel motor fuel. (a) Retail vendor. (1) A vendor of motor fuel or diesel motor fuel who or which is required to collect the taxes imposed by subdivision (a) of section eleven hundred five of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter shall be allowed a refund or credit against the amount of tax collected and required to be remitted to the commissioner pursuant to the provisions of section eleven hundred thirty-seven of this article upon the retail sale of motor fuel or diesel motor fuel in the amount of the tax on such fuel prepaid by or passed through to and included in the price paid by such vendor pursuant to the provisions of section eleven hundred two of this article.
Terms Used In N.Y. Tax Law 1120
- Article: means a prose composition, including commentaries, reviews, editorials, op-eds, letters to the editor, and reader comments on articles. See N.Y. Tax Law 1101
- diesel motor fuel: means diesel motor fuel as defined in subdivision fourteen of section two hundred eighty-two of this chapter. See N.Y. Tax Law 1101
- motor fuel: means motor fuel as defined in subdivision two of section two hundred eighty-two of this chapter. See N.Y. Tax Law 1101
- person: includes an individual, partnership, limited liability company, society, association, joint stock company, corporation, estate, receiver, trustee, assignee, referee, and any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise, and any combination of the foregoing. See N.Y. Tax Law 1101
- vendor: includes :
(A) A person making sales of tangible personal property or services, the receipts from which are taxed by this article;
(B) A person maintaining a place of business in the state and making sales, whether at such place of business or elsewhere, to persons within the state of tangible personal property or services, the use of which is taxed by this article;
(C) A person who solicits business either:
(I) by employees, independent contractors, agents or other representatives; or
(II) by distribution of catalogs or other advertising matter, without regard to whether such distribution is the result of regular or systematic solicitation, if such person has some additional connection with the state which satisfies the nexus requirement of the United States constitution; and by reason thereof makes sales to persons within the state of tangible personal property or services, the use of which is taxed by this article;
(D) A person who makes sales of tangible personal property or services, the use of which is taxed by this article, and who regularly or systematically delivers such property or services in this state by means other than the United States mail or common carrier;
(E) A person who regularly or systematically solicits business in this state by the distribution, without regard to the location from which such distribution originated, of catalogs, advertising flyers or letters, or by any other means of solicitation of business, to persons in this state and by reason thereof makes sales to persons within the state of tangible personal property, the use of which is taxed by this article, if such solicitation satisfies the nexus requirement of the United States constitution;
(F) A person making sales of tangible personal property, the use of which is taxed by this article, where such person retains an ownership interest in such property and where such property is brought into this state by the person to whom such property is sold and the person to whom such property is sold becomes or is a resident or uses such property in any manner in carrying on in this state any employment, trade, business or profession;
(G) Any other person making sales to persons within the state of tangible personal property or services, the use of which is taxed by this article, who may be authorized by the commissioner of taxation and finance to collect such tax by part IV of this article;
(H) The state of New York, any of its agencies, instrumentalities, public corporations (including a public corporation created pursuant to agreement or compact with another state or Canada) or political subdivisions when such entity sells services or property of a kind ordinarily sold by private persons; and
(I) A seller of tangible personal property or services, the use of which is taxed by this article if either (I) an affiliated person that is a vendor as otherwise defined in this paragraph uses in the state trademarks, service marks, or trade names that are the same as those the seller uses; or (II) an affiliated person engages in activities in the state that inure to the benefit of the seller, in its development or maintenance of a market for its goods or services in the state, to the extent that those activities of the affiliate are sufficient to satisfy the nexus requirement of the United States constitution. See N.Y. Tax Law 1101
(2) A refund or credit shall also be allowed such vendor for the tax prepaid by or passed through to and included in the price paid by such vendor upon any motor fuel or diesel motor fuel pursuant to the provisions of section eleven hundred two of this article if such fuel is sold at retail by such vendor under circumstances where the taxes imposed by section eleven hundred five of this article and pursuant to the authority of article twenty-nine of this chapter are not required by the provisions of this article to be collected and remitted upon receipts from a retail sale thereof.
(b) Retail user. A purchaser, user or consumer of motor fuel or diesel motor fuel at retail who or which is required to pay the tax imposed by section eleven hundred ten of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter with respect to the purchase of or the use or consumption of such fuel shall be allowed a credit against such tax required to be paid to the commissioner pursuant to such section and article in the amount of the tax prepaid by or passed through to and included in the price paid by such purchaser, user or consumer pursuant to the provisions of section eleven hundred two of this article.
(c) Self-use of motor fuel or diesel motor fuel purchased at wholesale. A refund or credit equal to the amount of tax prepaid by or passed through to and included in the price paid by a purchaser, user or consumer pursuant to the provisions of section eleven hundred two of this article with respect to a purchase of motor fuel or diesel motor fuel other than at retail shall be allowed such purchaser, user or consumer upon the use or consumption of such fuel at retail if the acquisition of such fuel by the purchaser, user or consumer would have otherwise been exempt pursuant to section eleven hundred five-A, eleven hundred fifteen or eleven hundred sixteen of this article but for the provisions of the last sentence of subdivision (c) of section eleven hundred two and subdivision (j) of section eleven hundred fifteen or of such last sentence and paragraph five of subdivision (b) of section eleven hundred sixteen of this article. Also, a refund or credit shall be allowed equal to the difference between the amount of tax prepaid by or passed through to and included in the price paid by a purchaser, user or consumer pursuant to the provisions of section eleven hundred two of this article with respect to a purchase of diesel motor fuel other than at retail and the aggregate of the amount of tax that would have been imposed if measured by the applicable rate specified in section eleven hundred five-A of this article and the amount of tax that would have been imposed if measured by the applicable rate specified in section twelve hundred ten of article twenty-nine upon diesel motor fuel which is used for residential heating purposes if the purchase, use or consumption would have otherwise been subject to such lower rate of tax pursuant to such section eleven hundred five-A but for the last sentence of subdivision (a) of such section eleven hundred five-A or pursuant to section twelve hundred ten but for the last sentence of subparagraph (i) of paragraph three of subdivision (a) of such section twelve hundred ten.
(d) Purchase of motor fuel or diesel motor fuel at retail by an exempt organization. A refund or credit equal to the amount of tax imposed pursuant to section eleven hundred five of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter upon the sale of motor fuel or diesel motor fuel and paid by a purchaser shall be allowed such purchaser if the purchase, use or consumption of such fuel would have otherwise been exempt pursuant to section eleven hundred fifteen or eleven hundred sixteen of this article but for the provisions of subdivision (j) of section eleven hundred fifteen or paragraph five of subdivision (b) of section eleven hundred sixteen of this article. Also, there shall be allowed a refund or credit equal to the difference between the amount of tax actually imposed pursuant to section eleven hundred five of this article and the amount of tax that would have been imposed as measured by the applicable rate specified in section eleven hundred five-A of this article and a refund or credit equal to the difference between the tax actually imposed pursuant to the authority of article twenty-nine of this chapter and the amount of tax that would have been imposed if measured by the applicable rate specified in section twelve hundred ten of article twenty-nine upon diesel motor fuel which is used for residential heating purposes if the purchase, use or consumption would have otherwise been subject to such lower rate of tax pursuant to such section eleven hundred five-A but for the last sentence of subdivision (a) of such section eleven hundred five-A or pursuant to section twelve hundred ten but for the last sentence of subparagraph (i) of paragraph three of subdivision (a) of such section twelve hundred ten.
(e) Immediate export. With respect to (i) motor fuel imported, manufactured or sold or purchased in this state, and (ii) highway diesel motor fuel, a refund or credit shall be allowed a registered distributor of this state or a purchaser of the tax required to be prepaid pursuant to section eleven hundred two of this article in the amount of such tax paid by or included in the price paid by a distributor or such purchaser if such fuel was exported from this state for sale outside this state, such distributor or such purchaser, as the case may be, exporting such fuel is duly registered with or licensed by the taxing authorities of the state to which such fuel is exported as a distributor or a dealer in the fuel being so exported, and in connection with such exportation such fuel was immediately shipped to an identified facility in the state to which such fuel is exported, and provided the applicant complies with all requirements and rules and regulations of the commissioner, including evidentiary requirements, relating thereto.
(f) Refunds of the tax required to be prepaid pursuant to the provisions of section eleven hundred two of this article shall be allowed only to the extent such tax paid by or passed through to the retail vendor, or the purchaser, consumer or user exceeds the amount of tax required to be collected from such person or required to be remitted by the provisions of this article and pursuant to the authority of article twenty-nine of this chapter.
(g) Such credit shall be allowed only to the extent that the tax required to be prepaid pursuant to section eleven hundred two of this article is prepaid by such vendor, purchaser, user or consumer (i) upon importation, manufacture, sale or use, as the case may be, and (ii) with respect to the identified motor fuel or diesel motor fuel for which such credit is claimed upon the use or consumption thereof, but only to the extent that the tax imposed by section eleven hundred five of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter together with the tax imposed by section eleven hundred ten of this article and any like tax imposed pursuant to the authority of article twenty-nine of this chapter required to be paid, collected and remitted has been paid, collected and remitted.
(h) Such refunds and credits shall be subject to the provisions of sections eleven hundred nineteen and eleven hundred thirty-nine of this article as if such sections were incorporated in full into this section and had expressly referred to the refunds and credits authorized by this section including the periods of limitations on payments and applications to the commissioner; provided, however, that as provided in subdivision (e) of section eleven hundred thirty-nine of this article no interest shall be allowed or paid upon any refund made or credit allowed pursuant to subdivisions (a) and (b) of this section; and provided, further, that, with respect to refunds or credits pursuant to subdivision (d) of this section with respect to organizations described in paragraph four of subdivision (a) of section eleven hundred sixteen of this chapter and subdivision (e) of this section, upon receipt of a claim for refund in processible form, interest shall be allowed or paid at the overpayment rate set by the commissioner pursuant to section eleven hundred forty-two of this article, or if no rate is set, at the rate of six percent per annum, from the due date of the return or the actual filing date of the return, whichever is later, to the date immediately preceding the date of the refund check except no interest shall be allowed or paid if the refund check is mailed within thirty days of such receipt (except in case of organizations described in paragraph four of subdivision (a) of section eleven hundred sixteen of this chapter, the relevant period of time shall be forty-five days from the date the application for refund is received in processible form and interest, if allowable, shall apply from the date such application is received in processible form) and no interest shall be allowed or paid upon a credit pursuant to such subdivision and except no interest shall be allowed or paid if the amount thereof would be less than one dollar. Provided, however, the department shall process applications for refund as expeditiously as possible.