S T A T E O F N E W Y O R K
________________________________________________________________________
9799--A
I N A S S E M B L Y
April 5, 2012
___________
Introduced by M. of A. McDONOUGH -- read once and referred to the
Committee on Ways and Means -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the tax law, the state finance law, and the general
business law, in relation to suspending taxes on gasoline and similar
motor fuels from Memorial Day to Labor Day
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The tax law is amended by adding a new section 37 to read
2 as follows:
3 S 37. FUEL TAX HOLIDAY. (A) DEFINITIONS. FOR PURPOSES OF THIS
4 SECTION,
5 (1) "APPLICABLE PERIOD" SHALL MEAN THE PERIOD COMMENCING ON THE LAST
6 MONDAY IN MAY, KNOWN AS MEMORIAL DAY, AND ENDING ON THE FIRST MONDAY IN
7 SEPTEMBER, KNOWN AS LABOR DAY.
8 (2) "DIESEL MOTOR FUEL" AND "MOTOR FUEL" SHALL HAVE THE SAME MEANING
9 AS SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER.
10 (3) "FILLING STATION" SHALL HAVE THE SAME MEANING AS IN SECTION TWO
11 HUNDRED EIGHTY-TWO OF THIS CHAPTER.
12 (4) "RETAIL SALE" AND "SOLD AT RETAIL" SHALL MEAN ANY SALE OF MOTOR
13 FUEL OR DIESEL MOTOR FUEL AT A FILLING STATION TO A PERSON FOR USE IN A
14 MOTOR VEHICLE.
15 (5) "RETAIL SELLER" SHALL MEAN ANY PERSON WHO SELLS MOTOR FUEL OR
16 DIESEL MOTOR FUEL AT RETAIL.
17 (6) "SALE" SHALL HAVE THE SAME MEANING AS IN SECTION TWO HUNDRED
18 EIGHTY-TWO OF THIS CHAPTER.
19 (B) EXEMPTION FROM TAXATION. NOTWITHSTANDING ANY OTHER PROVISION OF
20 LAW, RULE OR REGULATION TO THE CONTRARY, THE TAXES IMPOSED ON RETAIL
21 SALES OF MOTOR FUEL AND DIESEL MOTOR FUEL MADE DURING THE APPLICABLE
22 PERIOD SHALL BE EXEMPT FROM THE TAXES IMPOSED BY ARTICLES TWELVE-A,
23 THIRTEEN-A, AND TWENTY-EIGHT OF THIS CHAPTER. IF THE RETAIL SELLER IS
24 LOCATED WITHIN A MUNICIPALITY THAT HAS ELECTED TO ELIMINATE THE TAX
25 IMPOSED PURSUANT TO ARTICLE TWENTY-NINE OF THIS CHAPTER, SUCH TAXES
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14941-03-2
A. 9799--A 2
1 SHALL NOT BE IMPOSED ON THE RETAIL SALE OF MOTOR FUEL OR DIESEL MOTOR
2 FUEL DURING THE APPLICABLE PERIOD.
3 (C) PRICE REDUCTION. DURING THE APPLICABLE PERIOD, EACH RETAIL SELLER
4 SHALL REDUCE THE PRICE PER GALLON OF MOTOR FUEL AND DIESEL MOTOR FUEL
5 OFFERED FOR SALE BY THE AMOUNT OF THE TAXES THAT THE RETAIL SELLER
6 PREPAID ON THE GALLON OF MOTOR FUEL AND DIESEL MOTOR FUEL AND THE AMOUNT
7 OF TAX IN EXCESS OF THE PREPAID AMOUNT THAT WOULD HAVE BEEN COLLECTED
8 FROM THE CONSUMER IF THE SALE OF THE MOTOR FUEL OR DIESEL MOTOR FUEL HAD
9 NOT BEEN EXEMPT FROM TAX PURSUANT TO SUBDIVISION (B) OF THIS SECTION.
10 (D) ADVERTISING. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE
11 CONTRARY, A RETAIL SELLER MAY ADVERTISE THAT THE MOTOR FUEL AND/OR
12 DIESEL MOTOR FUEL IS BEING OR WILL BE SOLD WITHOUT THE STATE TAXES. SUCH
13 ADVERTISEMENT MAY COMMENCE NO EARLIER THAN THREE DAYS BEFORE THE APPLI-
14 CABLE PERIOD AND MUST END BY THE END OF THE APPLICABLE PERIOD.
15 (E) REFUNDS AND CREDITS. (1) NOTWITHSTANDING ANY OTHER PROVISION OF
16 LAW TO THE CONTRARY, THE RETAIL SELLER SHALL BE ENTITLED TO RECEIVE A
17 CREDIT AGAINST THE TAXES DUE PURSUANT TO ARTICLE TWENTY-EIGHT OF THIS
18 CHAPTER FOR THE AMOUNT OF TAX THAT THE RETAIL SELLER PREPAID PURSUANT TO
19 ARTICLES TWELVE-A, THIRTEEN-A, TWENTY-EIGHT AND, IF APPLICABLE, TWENTY-
20 NINE OF THIS CHAPTER. IF THE RETAIL SELLER IS LOCATED WITHIN A MUNICI-
21 PALITY THAT HAS ELECTED TO ELIMINATE THE TAX IMPOSED PURSUANT TO ARTICLE
22 TWENTY-NINE OF THIS CHAPTER, THE RETAIL SELLER SHALL BE ENTITLED TO
23 CLAIM A CREDIT AGAINST THE TAXES DUE PURSUANT TO ARTICLE TWENTY-EIGHT OF
24 THIS CHAPTER FOR SUCH PREPAID TAXES. THE AMOUNT OF CREDIT SHALL EQUAL
25 THE AMOUNT OF TAX THAT WAS PREPAID PURSUANT TO ARTICLES TWELVE-A, THIR-
26 TEEN-A, TWENTY-EIGHT AND, IF APPLICABLE, TWENTY-NINE OF THIS CHAPTER FOR
27 EACH GALLON OF MOTOR FUEL AND DIESEL MOTOR FUEL SOLD AT RETAIL DURING
28 THE APPLICABLE PERIOD. SUCH CREDIT SHALL NOT BE ALLOWED FOR SALES THAT
29 WOULD HAVE OTHERWISE BEEN EXEMPT FROM TAX.
30 (2) A RETAIL SELLER MAY CLAIM THE CREDIT PRESCRIBED IN PARAGRAPH ONE
31 OF THIS SUBDIVISION WHEN THE RETAIL SELLER FILES ITS RETURN OF TAX FOR
32 THE SALES OF MOTOR FUEL AND DIESEL MOTOR FUEL FOR THE PERIOD THAT
33 INCLUDES THE APPLICABLE PERIOD. NOTWITHSTANDING THE FOREGOING, IF A
34 RETAIL SELLER IS REQUIRED TO FILE ITS RETURN MORE THAN THIRTY DAYS AFTER
35 THE CLOSE OF THE APPLICABLE PERIOD DEFINED IN PARAGRAPH ONE OF SUBDIVI-
36 SION (A) OF THIS SECTION, SUCH RETAILER SHALL BE AUTHORIZED TO FILE AN
37 AMENDMENT TO ITS MOST RECENTLY FILED RETURN TO CLAIM SUCH CREDIT. NO
38 CREDIT MAY BE CLAIMED FOR THE TAXES PREPAID PURSUANT TO ARTICLE
39 TWELVE-A, THIRTEEN-A, TWENTY-EIGHT OR, IF APPLICABLE, TWENTY-NINE OF
40 THIS CHAPTER PURSUANT TO THIS SECTION IF THE CLAIM WOULD HAVE BEEN
41 BARRED PURSUANT TO THE ARTICLE THAT REQUIRED PREPAYMENT OF SUCH TAXES.
42 NO INTEREST SHALL BE PAID ON ANY CLAIMS FOR CREDIT MADE PURSUANT TO THIS
43 SECTION.
44 S 2. Section 88-a of the state finance law is amended by adding a new
45 subdivision 10 to read as follows:
46 10. BY MARCH THIRTY-FIRST EACH YEAR, THE COMPTROLLER SHALL TRANSFER
47 FROM THE GENERAL FUND TO THE MASS TRANSPORTATION OPERATING ASSISTANCE
48 FUND AN AMOUNT NO GREATER THAN THE AMOUNT THAT WOULD HAVE OTHERWISE BEEN
49 DEPOSITED IN THE MASS TRANSPORTATION OPERATING ASSISTANCE FUND PURSUANT
50 TO THIS SECTION IF THE EXEMPTION DEFINED IN SUBDIVISION (B) OF SECTION
51 THIRTY-SEVEN OF THE TAX LAW HAD NOT BEEN AUTHORIZED; PROVIDED HOWEVER
52 THAT THE COMPTROLLER SHALL MAKE SUCH TRANSFER ONLY AFTER THE DIRECTOR OF
53 THE BUDGET HAS DETERMINED IN HIS OR HER DISCRETION THAT THE TRANSFER IS
54 NECESSARY TO ENSURE A POSITIVE FUND BALANCE OF THE MASS TRANSPORTATION
55 OPERATING ASSISTANCE FUND AT THE END OF EACH STATE FISCAL YEAR.
A. 9799--A 3
1 S 3. Subdivision 3 of section 89-b of the state finance law is amended
2 by adding a new paragraph (g) to read as follows:
3 (G) WITHIN FORTY-FIVE DAYS AFTER AN APPLICABLE PERIOD AS DEFINED BY
4 SUBDIVISION (A) OF SECTION THIRTY-SEVEN OF THE TAX LAW, THE COMPTROLLER,
5 IN CONSULTATION WITH THE DIRECTOR OF THE DIVISION OF THE BUDGET, SHALL
6 TRANSFER FROM THE GENERAL FUND TO THE SPECIAL OBLIGATION RESERVE AND
7 PAYMENT ACCOUNT AN AMOUNT EQUAL TO THE AMOUNT THAT WOULD HAVE OTHERWISE
8 BEEN DEPOSITED IN THE SPECIAL OBLIGATION RESERVE AND PAYMENT ACCOUNT
9 PURSUANT TO THIS SECTION IF THE EXEMPTION DEFINED IN SUBDIVISION (B) OF
10 SECTION THIRTY-SEVEN OF THE TAX LAW HAD NOT BEEN AUTHORIZED.
11 S 4. Section 89-c of the state finance law is amended by adding a new
12 subdivision 4 to read as follows:
13 4. WITHIN FORTY-FIVE DAYS AFTER AN APPLICABLE PERIOD AS DEFINED BY
14 SUBDIVISION (A) OF SECTION THIRTY-SEVEN OF THE TAX LAW, THE COMPTROLLER,
15 IN CONSULTATION WITH THE DIRECTOR OF THE DIVISION OF THE BUDGET, SHALL
16 TRANSFER FROM THE GENERAL FUND TO THE DEDICATED MASS TRANSPORTATION
17 TRUST FUND AN AMOUNT EQUAL TO THE AMOUNT THAT WOULD HAVE OTHERWISE BEEN
18 DEPOSITED IN THE DEDICATED MASS TRANSPORTATION TRUST FUND PURSUANT TO
19 THIS SECTION IF THE EXEMPTION DEFINED IN SUBDIVISION (B) OF SECTION
20 THIRTY-SEVEN OF THE TAX LAW HAD NOT BEEN AUTHORIZED.
21 S 5. Section 392-i of the general business law, as amended by section
22 5 of part M-1 of chapter 109 of the laws of 2006, is amended to read as
23 follows:
24 S 392-i. Prices reduced to reflect change in sales tax computation.
25 Every person engaged in the retail sale of motor fuel and/or diesel
26 motor fuel or a distributor of such fuels, as defined in article
27 twelve-A of the tax law, shall reduce the price such person charges for
28 motor fuel and/or diesel motor fuel in an amount equal to any reduction
29 in taxes prepaid by the distributor, CREDIT FOR THE AMOUNT OF TAXES
30 PREPAID BY THE RETAIL SELLER ALLOWABLE PURSUANT TO SECTION THIRTY-SEVEN
31 OF THE TAX LAW, EXEMPTION FROM TAXATION PURSUANT TO SECTION THIRTY-SEVEN
32 OF THE TAX LAW TO THE EXTENT THAT THE TAX THAT WOULD HAVE BEEN OTHERWISE
33 DUE EXCEEDS THE AMOUNT OF TAX PREPAID, or paid by retail customers
34 resulting from computing sales and compensating use AND OTHER taxes at a
35 cents per gallon rate pursuant to the provisions of paragraph two of
36 subdivision (e) and subdivision (m) of section eleven hundred eleven of
37 the tax law.
38 S 6. Paragraph 1 of subdivision (n) of section 1817 of the tax law, as
39 amended by section 30 of subpart I of part V-1 of chapter 57 of the laws
40 of 2009, is amended to read as follows:
41 (1) Every person engaged in the retail sale of motor fuel and/or
42 diesel motor fuel or a distributor of such fuels, as defined in article
43 twelve-A of this chapter, shall comply with the provisions of section
44 three hundred ninety-two-i of the general business law by reducing the
45 prices charged for motor fuel and diesel motor fuel in an amount equal
46 to any reduction in taxes prepaid by the distributor, CREDIT FOR THE
47 AMOUNT OF TAXES PREPAID BY THE RETAIL SELLER ALLOWABLE PURSUANT TO
48 SECTION THIRTY-SEVEN OF THE TAX LAW, EXEMPTION FROM TAXATION PURSUANT TO
49 SECTION THIRTY-SEVEN OF THE TAX LAW TO THE EXTENT THAT THE TAX THAT
50 WOULD HAVE BEEN OTHERWISE DUE EXCEEDS THE AMOUNT OF TAX PREPAID, or
51 imposed on retail customers resulting from computing sales and compen-
52 sating use taxes at a cents per gallon rate pursuant to the provisions
53 of paragraph two of subdivision (e) and subdivision (m) of section one
54 thousand one hundred eleven of this chapter.
55 S 7. Notwithstanding any law to the contrary, a municipality may make
56 the election to eliminate all taxes on motor fuel and diesel motor fuel
A. 9799--A 4
1 pursuant to sections 1107 and 1108 of the tax law or article 29 of the
2 tax law from the period commencing on the last Monday in May, known as
3 Memorial Day, and ending on the first Monday in September, known as
4 Labor Day, by local law, ordinance or resolution, if such municipality
5 mails, by certified or registered mail, a certified copy of such local
6 law, ordinance or resolution to the commissioner of taxation and finance
7 at his or her office in Albany no later than the Wednesday immediately
8 preceding the one hundred eightieth day after this act shall have become
9 a law.
10 S 8. The commissioner of taxation and finance shall, on an emergency
11 basis, promulgate and/or amend any rules and regulations necessary to
12 provide for the tax free sales of motor fuel and diesel motor fuel and
13 refunds of prepaid tax to retail sellers.
14 S 9. This act shall take effect on the one hundred eightieth day after
15 it shall have become a law.