This bill has been amended

Bill S2811-2011

Enacts into law major components of legislation which are necessary to implement the state fiscal plan for the 2011-2012 state fiscal year

Relates to the dormancy period of miscellaneous unclaimed property, payment of abandoned property, publication of notices of abandoned property, and written reports pertaining to payment of abandoned property; relates to reports by the commissioner regarding abandoned property; relates to payments from the abandoned property fund; relates to extending the disclosure and penalty provisions for transactions that present the potential for tax avoidance; directs the crediting of lottery prizes of more than six hundred dollars against liability for any tax administered by the commissioner of taxation and finance; extends certain provisions relating to extending dates of application of investment tax credit; provides a credit against income tax for persons or entities investing in low-income housing; relates to the excelsior jobs program; conforms laws to the federal Dodd-Frank Wall Street Reform and Consumer Protection Act; extends certain provisions of laws relating to franchise tax; updates the tax classification of diesel motor fuel to be consistent with federal laws and makes the diesel tax structure consistent with this new tax treatment; makes a technical correction to the E85 definition; extends effectiveness related to alternative fuels tax exemptions; relates to the distribution of motor vehicle fees; relates to video lottery free play allowance program; relates to prize payout of certain instant lottery games; relates to prize payout for certain multi-jurisdictional lottery games; relates to multi-jurisdictional video lottery gaming; relates to licenses for simulcast facilities, sums relating to track simulcast, simulcast out-of-state thoroughbred races, simulcasting of races run by out-of-state harness tracks and distributions of wagers; extends related provisions; relates to application fees owed by retail dealers of businesses that sell tobacco products and owners of cigarette vending machines; establishes standards for electronic real property tax administration, allows the department of taxation and finance to use electronic communication means to furnish tax notices and other documents, mandatory electronic filing of tax documents, debit cards issued for tax refunds, and improves sales tax compliance; establishes the economic transformation and facility redevelopment program and providing tax benefits under that program.

Details

Actions

  • Feb 1, 2011: REFERRED TO FINANCE

Memo

BILL NUMBER:S2811

TITLE OF BILL:

An act to amend the abandoned property law, in relation to the dormancy period of miscellaneous unclaimed property (Part A); to amend part N of chapter 61 of the laws of 2005 amending the tax law relating to certain transactions and related information and relating to the voluntary compliance initiative; in relation to making permanent the disclosure and penalty provisions for transactions that present the potential for tax avoidance (Part B); to amend the tax law, in relation to the empire zones program (Part C); to amend the tax law, in relation to directing the crediting of lottery prizes of more than six hundred dollars against liability for any tax administered by the commissioner of taxation and finance (Part D); to amend chapter 56 of the laws of 1998, amending the tax law and other laws relating to extending the dates of application of the investment tax credit under articles 9-A, 22 and 32 of the tax law and to amend chapter 63 of the laws of 2000, amending the tax law and other laws relating to extending the dates of application of the investment tax credit under article 33 of the tax law, in relation to extending the effectiveness thereof (Part E); to amend the public housing law, in relation to providing a credit against income tax for persons or entities investing in low-income housing (Part F); to amend the economic development law, the tax law and the public service law, in relation to the excelsior jobs program (Part G); to amend the tax law, in relation to the exemption from the franchise tax on insurance corporations under article thirty-three of such law for town or county cooperative insurance corporations (Part H); to amend the insurance law, the general municipal law and the tax law, in relation to conforming to the federal Dodd-Frank Wall Street Reform and Consumer Protection Act; and to repeal paragraphs 8 and 9 of subsection (b) of section 2118 of the insurance law, relating thereto (Part I); to amend chapter 298 of the laws of 1985, amending the tax law relating to the franchise tax on banking corporations imposed by the tax law, authorized to be imposed by any city having a population of one million or more by chapter 772 of the laws of 1966 and imposed by the administrative code of the city of New York and relating to other provisions of the tax law, chapter 883 of the laws of 1975 and the administrative code of the city of New York which relates to such franchise tax, to amend chapter 817 of the laws of 1987, amending the tax law and the environmental conservation law, constituting the business tax reform and rate reduction act of 1987, and to amend chapter 525 of the laws of 1988, amending the tax law and the administrative code of the city of New York relating to the imposition of taxes in the city of New York, in relation to the effectiveness of certain provisions of such chapters; and to amend the tax law and the administrative code of the city of New York, in relation to extending transitional provisions relating to the federal Gramm-Leach-Bliley act (Part J); to amend the tax law and the criminal procedure law, in relation to updating the tax classification of diesel motor fuel to be consistent with federal laws and make the diesel tax structure consistent with this

new tax treatment; and to repeal certain provisions of the tax law and the administrative code of the city of New York relating thereto (Part K); to amend the tax law, in relation to making a technical correction to the E85 definition; and to amend chapter 109 of the laws of 2006, amending the tax law relating to providing exemptions, reimbursements and credits from various taxes for certain alternative fuels, in relation to extending the alternative fuels tax exemptions for one year (Part L); to amend section 11 of part EE of chapter 63 of the laws of 2000, amending the tax law and other laws relating to modifying the distribution of funds from the motor vehicle fuel excise tax, in relation to the distribution of motor vehicle fees (Part M); to amend the tax law, in relation to restrictions on certain keno style lottery games (Part N); to amend the tax law, in relation to video lottery free play allowance program (Part O); to amend the tax law, in relation to prize payout of certain instant lottery games (Part P); to amend the tax law, in relation to prize payout in certain multi-jurisdictional lottery games (Part Q); to amend the tax law, in relation to multi-jurisdictional video lottery gaming (Part R); and to amend the racing, pari-mutuel wagering and breeding law, in relation to licenses for simulcast facilities, sums relating to track simulcast, simulcast of out-of-state thoroughbred races, simulcasting of races run by out-of-state harness tracks and distributions of wagers; to amend chapter 281 of the laws of 1994 amending the racing, pari-mutuel wagering and breeding law and other laws relating to simulcasting and chapter 346 of the laws of 1990 amending the racing, pari-mutuel wagering and breeding law and other laws relating to simulcasting and the imposition of certain taxes, in relation to extending certain provisions thereof; and to amend the racing, pari-mutuel wagering and breeding law, in relation to extending certain provisions thereof (Part S)

PURPOSE:

This bill contains provisions needed to implement the Revenue portion of the 2011-12 Executive Budget.

This memorandum describes Parts A through S of the 2010-11 Article VII Revenue bill which are described wholly within the parts listed below.

Part A - Reduce the dormancy period of miscellaneous abandoned property.

Purpose:

This bill reduces the dormancy period of miscellaneous abandoned property from either five or six years to three years.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

This bill reduces the dormancy period from five years to three years on condemnation awards, credit balances arising from loans, bank accounts (demand deposit, savings, time deposit, deposit and suspense). lost cash, money on deposit to secure funds, unredeemed gift certificates, and various other types of funds such as bail, certain trusts, escrow accounts. and child or spousal support which is held by the court because it has not been claimed.

The bill also reduces the dormancy period from six years to three years on surplus from the sale of pledged property.

These funds will be deposited with the comptroller and can be claimed by the owner of the funds or the representative of his or her estate at any time.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget because it generates $55 million in 2011-12 revenue and $70 million in 2012-13 revenue.

Effective Date:

This bill takes effect immediately.

Part B - Make tax shelter reporting provisions permanent.

Purpose:

This bill makes permanent disclosure and penalty provisions relating to transactions that present the potential for tax avoidance in order to deter the use of tax shelters.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

The bill amends Section 12 of Part N of Chapter 61 of the Laws of 2005 relating to the effective dates of tax shelter disclosure and penalty provisions added to the Tax Law by Part N. The proposed amendment to section 12 makes these tax shelter provisions permanent by removing the sunset date in that provision, which is set to expire on July 1, 2011. The amendment would also remove the requirement for the Commissioner of Taxation and Finance to prepare a report on the tax shelter law by April 1, 2007, since that report has already been prepared and submitted.

In 2005, the Tax Law was amended to provide new reporting requirements with respect to the disclosure of information relating to transactions that present the potential for tax avoidance (tax shelters). These reporting requirements are similar to the tax shelter disclosure requirements for federal income tax purposes.

Separate reporting requirements are imposed on those who utilize tax shelters and those who promote the use of tax shelters. The amendments also imposed penalties for nondisclosure, extended the statute, of limitations for assessments relating to these transactions, and created a Voluntary Compliance Initiative to allow taxpayers to report and pay under reported tax liabilities and interest attributable to these transactions with a waiver of penalties. The authority for the Department to require the reporting and disclosure of Federal and New York reportable and listed transactions was originally scheduled to expire on July 1, 2007. but was extended by chapter 60 of the laws of 2007 and chapter 57 of the laws of 2008, so that it now expires on July 1, 2011.

In December 2006, the Department of Taxation and Finance adopted regulations that define a New York reportable transaction for purposes of Articles 9, 9-A, 22, 32, and 33 of the Tax Law and set forth the disclosure requirements for participants in a New York reportable transaction. In addition, in a memorandum dated June 13, 2007, the Tax Department identified a specific New York Listed Transaction concerning certain charitable contribution deductions.

Significant Voluntary Compliance Initiative participation from taxpayers acknowledging participation in abusive tax shelters, together with the ongoing discovery of new shelter schemes on both the Federal and the State levels, shows a clear need to continue requiring disclosure by New York taxpayers of that participation.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget, because it preserves $5 million in annual revenue currently in the State Financial plan.

Effective Date:

This bill takes effect immediately.

Part C - Provide the Department of Economic Development with continuing authority to monitor Empire Zone Program compliance and to decertify non-complying businesses.

Purpose:

This bill amends the Tax Law to make clear that firms that are decertified by the Department of Economic Development after July 1, 2010 shall be denied tax credits.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

The Department of Economic Development (DED) is responsible for the continued administration and performance monitoring of businesses for taxable years succeeding the Empire Zone sunset of June 30, 2010. This bill clarifies that if DED decertifies a business, the business would not continue to qualify for Empire Zone benefits under the Tax Law.

Under the law in effect prior to June 30, 2010 DED had the authority to monitor the performance of businesses and decertify businesses that failed to report or meet its performance objectives. This bill continues that authority beyond the Program sunset of June 30, 2010.

This bill makes clear that DED is able to effectively decertify a business that failed to report or meet the performance objectives stated in its application, and upon which its certification was based.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget as it preserves current revenue by ensuring the continued performance monitoring of the over 7,500 businesses that remain in the Empire Zone Program.

Effective Date:

This bill takes effect immediately.

Part D - Authorize an offset of lottery winnings with outstanding State tax liabilities.

Purpose:

This bill permits the crediting of lottery prizes exceeding six hundred dollars against prize winners' liabilities for taxes owed to New York.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

Lottery winners should not be expected to take their winnings without settling past-due debts, including tax liabilities, owed New York State. This bill provides a simple and cost-effective method of collecting tax liabilities from lottery prizes. The names of tax debtors submitted to the Division of the Lottery (Lottery) would include those against whom a warrant, a public record serving as a judgment, had been filed, as well as those whose tax liabilities have not yet been warranted but are legally fixed, final and not subject to further administrative or legal review.

This bill adds a new Tax Law § 1613-c to authorize offsets of lottery prizes exceeding six hundred dollars against past due tax liabilities of those prize winners. Where Lottery has been notified of a prize winner's liability for past-due support or for public assistance benefits under Tax Law §§ 1613-a and 1613-b, offsets for support or recovery of public assistance would be accorded priority over a tax liability.

The bill's provisions would be implemented by an agreement between the Director of the Lottery and the Commissioner of Taxation and Finance which would detail procedures for effecting offsets through computerized matching of tax liabilities against the names of prize winners as well as provide reimbursement to Lottery for the cost of carrying out such procedures.

The bill authorizes the Tax Department to disclose to Lottery the names of tax debtors whose liabilities are fixed, final, not subject to further administrative or legal review, but which have not yet been publicly revealed in a filed tax warrant, which is a public document serving as a judgment.

Current law does not specifically require the crediting of past due tax liabilities against Lottery prizes. Although a division of the Department of Taxation and Finance, the Division of the Lottery is nonetheless separately administered. Its officers and employees are not part of the Department of Taxation and Finance's payroll, and therefore, under the Tax Law's secrecy provision, (e.g., Tax Law 697[e], 1146) the Tax Department, is not permitted to disclose names of those whose tax debts have not yet been warranted to Lottery personnel.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget because it would increase tax collections by $5 million in fiscal year 2011-12, and $10 million annually thereafter.

Effective Date:

This bill takes effect on the first day of August next succeeding the date on which it becomes a law.

Part E - Extend the financial services investment tax credit to certain broker dealers for four years from October 1, 2011 to October 1, 2015.

Purpose:

This bill extends for four years the investment tax credit for certain financial services taxpayers.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

The financial services investment tax credit provisions have encouraged taxpayers in the financial services industry to make investments in qualifying property, including buildings, in New York State. Thus, an extension of the credit for four years is appropriate.

Section 1 of the bill extends the end date of the period during which qualifying property may be placed in service to qualify for the investment tax credits applicable to financial services taxpayers under Tax Law Articles 9-A, 22 and 32 from October 1, 2011 to October 1, 2015.

Section 2 of the bill extends the end date for the period during which qualifying property may be placed in service to qualify for the investment tax credit applicable to financial services taxpayers under Tax Law Article 33 from October 1, 2011 to October 1, 2015.

First enacted in 1998 for Articles 9-A, 22 and 32, and in 2000 for Article 33, the financial services investment tax credit is provided to taxpayers for qualifying property that is principally used in the ordinary course of the taxpayer's trade or business as a broker or dealer in connection with the purchase or sale of stocks, bonds or other securities.

These provisions also allow an investment tax credit for property that is principally used in the ordinary course of the taxpayer's trade or business of providing investment advisory services for a regulated investment company (ie., a mutual fund) or lending, loan arrangement or loan origination services to customers in connection with the purchase or sale of securities. Taxpayers do not qualify for the credit unless all or a substantial portion of the employees performing the administrative or support functions related to the use of the property (ie., the back office personnel) are located in the State. The credit has always been temporary. It was last extended in 2008 to provide that the property must be placed in service before October 1, 2011 to qualify for the investment tax credit.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget. The annual revenue foregone due to the extension of this tax credit is already included in the State Financial Plan.

Effective Date:

This bill takes effect immediately and would apply to property placed in service before October 1, 2015.

Part F - Authorize additional credits of $4 million for the Low-Income Housing Credit.

Purpose:

This bill increases the aggregate amount of low-income housing tax credit the Commissioner of Housing and Community Renewal may allocate.

Summary of Provisions, Existing Law, Prior Legislative History, and Statement in Support:

The bill amends Public Housing Law § 22 to increase the aggregate amount of low income housing tax credit the Commissioner may allocate from $28 million to $32 million. Current statute provides for total allocation authority of $28 million.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget. However, the annual revenue foregone due to the increase in credit is already included in the State Financial Plan.

Effective Date:

This bill takes effect immediately.

Part G -Improve the effectiveness of the Excelsior Jobs Program.

Purpose:

This bill improves the effectiveness of the Excelsior Jobs Program (the Program) by enhancing the existing tax credits available to applicants and adding an energy incentive to the program.

Statement in Support, Summary of Provisions, Existing Law and Prior Legislative History:

To increase incentivizes for the creation of new jobs and investments in New York, this bill strengthens the Excelsior Jobs program by extending the current tax benefit period from five to ten years and offering an enhanced package of tax credits by:

1) Revising the formula for the Excelsior Jobs Tax Credit to be based upon the projected income tax receipts to New York State for each net new hire, and basing the jobs credit on the product of the gross wages paid and 6.85 percent (the State's highest income tax rate after 2011);

2) Providing that, under the revised formula, the jobs credit will not be lower than current law at any salary level;

3) Removing the $5,000 cap on the jobs credit;

4) Increasing the Excelsior Research & Development (R&D) Tax Credit to be equal to 50 percent of the taxpayer's actual federal research and development credit and capping the credit at three percent of R&D expenditures;

5) Basing the Excelsior Real property Tax Credit on the value of a property after improvements have been made in order to increase the incentive for businesses to invest in property, plant and equipment;

6) Allowing participants in the Program to access existing New York State research and development tax credits in addition to the Excelsior tax credits; and

7) Authorizing utilities to offer discounted gas or electric rates to participants in the Program.

The bill also makes various administrative changes that make the program more responsive to eligible firms, in particular ensuring that applicants may receive benefits upon reaching interim milestones.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-12 Executive Budget. There is no change to the Financial Plan from this bill through SFY 2016-17. The Financial Plan impact of the extension of the benefit period from five years to ten years begins in SFY 2017-18.

Effective Date:

This bill takes effect immediately.

Part H - Limit the exemption provided for town or county cooperative insurance corporations under the Insurance Franchise Tax.

Purpose:

This bill limits the exemption from the franchise tax on insurance corporations for certain town or county cooperative insurance corporations in order to prevent unfair competition.

Statement in Support, Summary of Provisions, Existing Law and Prior Legislative History:

The Tax Law currently exempts from taxation town and county co-operative insurance companies that were in existence before 1937. These companies originally were formed by persons desiring to provide insurance on a co-operative basis in a specified geographic area (e.g" one or more towns, or one to three adjoining counties) in order to provide only certain types of insurance, such as fire insurance. However, over the years, their authorization has been enveloped into broader authority under the Insurance Law, enabling these companies to expand both their geographic reach and the types of insurance they offer. As a result, some of the town and county co-operative insurance companies currently exempt from taxation have expanded their business significantly beyond what was originally contemplated when the exemption was enacted. These companies are competing with other property and casualty companies doing business in New York State, yet they have an unfair advantage because they pay no State franchise tax. This bill is intended to level the playing field for large cooperative insurance corporations and other property and casualty companies, and limit the exemption to those companies whose operations are more closely aligned with the original intent of the exemption.

The bill amends the exemption for town and county co-operative insurance corporations In Tax Law § 1512(a)(7) to provide that the exemption will apply only to corporations that properly reported direct written premiums to the Superintendent of Insurance of $25 million or less for the taxable year.

Tax Law § 1512(a)(7) now provides an exemption to a town or county co-operative insurance corporation "as heretofore contemplated" by Tax Law § 187 in effect immediately before January 1, 1974. The legislative history of this exemption shows that it applied only to town and county cooperative insurance companies in existence prior to 1937 (which is when the "heretofore contemplated" language was added to the statute).

Budget Implications:

Enactment of this bill is necessary to implement the 2011-12 Executive Budget as it would increase revenue by $22 million in SFY 2011-12 and $16 million annually thereafter.

Effective Date:

This bill takes effect immediately and applies to taxable years beginning on or after January 1, 2011.

Part 1- Conform the New York State Insurance and Tax laws to the Federal Dodd-Frank Act excess lines tax provisions and authorize New York State to participate in a national compact that collects and remits excess lines taxes to the states.

Purpose:

This bill brings New York's excess line premium tax and tax on independently procured insurance into conformance with the Federal Dodd-Frank Wall Street Reform and Consumer Protection Act, including the Nonadmitted and Reinsurance Reform Act of 2010, and allows New York to enter into the Nonadmitted Insurance Multi-State Agreement (NIMA) prepared by the National Association of Insurance Commissioners.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

The Federal Dodd-Frank Wall Street Reform and Consumer Protection Act, including the Nonadmitted and Reinsurance Reform Act of 2010 (NRRA) contained in that Act, changes our current taxation of surplus lines (or excess lines) and independently procured insurance by giving the "home state" of the insured the sole authority to regulate and collect taxes on these transactions. NRRA also gives states the ability to enter into a compact to allocate among the compact member states premium taxes on surplus lines and independently procured insurance.

Section 1 of the bill a mends Insurance Law § 1101 (b)(1) to make a conforming change to match the revisions provided for in section 3 of the bill.

Section 2 of the bill amends Insurance Law § 1101 (b)(2)(H) to include section 2117(j) as a section under which transactions with respect to insurance contracts negotiated or placed shall not constitute the doing of an insurance business if effected by mail from outside New York by an unauthorized foreign or alien insurer.

Section 3 of the bill amends Insurance Law § 1101(b) by adding a new paragraph (6) that states that the making of a swap shall not constitute the doing of an insurance business in New York, and that "swap" has the meaning as set forth in 7 U.S.C. § 1a.

Section 4 of the bill amends Insurance Law § 2101 by adding a new subsection (w), which sets forth the definition of "state," and a new subsection (x), which sets forth certain definitions with respect to excess line insurance and excess line brokers.

Section 5 of the bill amends Insurance Law § 2101(c) by adding a new paragraph (9) that excludes from the definition of "insurance broker" a person who is not a resident of New York who sells, solicits, or negotiates a property/casualty insurance contract to or for an insured, with regard to an unauthorized insurer, provided that (1) the insured's home state is a state other than New York; (2) the person is otherwise licensed to sell, solicit, or negotiate excess

line insurance in the insured's home state; and (3) the person does not perform the diligent search required by Insurance Law § 2118.

Section 6 of the bill amends Insurance Law § 2101 to change the definition of "insurance producer" set forth in Insurance Law § 2101 (k) in the same manner as the amendments to the definition of "insurance broker" in section 5 of the bill.

Section 7 of the bill amends Insurance Law § 2102(a)(1) by adding a new subparagraph (8) to prohibit a person, firm, association, or corporation from acting as an excess line broker in New York without having authority to do so by virtue of a license issued and in force pursuant to Insurance Law § 2105, provided, however, that a person shall not be required to be licensed to act as an excess line broker when the insured's home state is a state other than New York and such person is otherwise licensed to sell, solicit or negotiate excess line Insurance in the insured's home state.

Section 8 of the bill amends Insurance Law § 2105(a) to remove the reference to being domiciled or maintaining an office in New York, with respect to the issuance of an excess line broker license.

Section 9 of the bill amends Insurance Law § 2117 by adding a new subsection (j) which states that notwithstanding section 2117(a), a person who is not a New York resident may sell, solicit or negotiate a property/casualty insurance contract to or for an insured, with respect to an unauthorized insurer, provided that (1) the insured's home state is a state other than New York; (2) the person is licensed to sell, solicit, or negotiate excess line insurance in the insured's home state; and (3) either the person is licensed as an insurance broker in New York or the person does not perform the diligent search required by Insurance Law § 2118.

Section 10 of the bill amends Insurance Law § 2118(b)(1) to reduce from 45 to 30 the number of days within which an excess line broker must submit the declarations page or cover note of an excess line policy after the policy is procured.

Section 11 of the bill amends Insurance Law § 2118(b)(3) by adding a new subparagraph (F), which states that an excess line broker seeking to procure or place insurance in New York for an exempt commercial purchaser is not required to satisfy any New York requirement to make a due diligence search to determine whether the full amount or type of insurance sought by the exempt commercial purchaser can be obtained from authorized insurers if: (1) the excess line broker procuring or placing the excess line insurance has disclosed to the exempt commercial purchaser that the insurance mayor may not be available from the authorized market that may provide greater protection with more regulatory oversight; and (2) the exempt commercial purchaser has subsequently requested in writing that the licensee procure or place the insurance from an unauthorized insurer.

Section 12 of the bill amends Insurance Law § 2118(d)(1) to remove language providing for allocation of premium tax, and to add new language that sets forth the premium tax that an excess line broker must pay if the Superintendent of Insurance ("Superintendent") enters into a nonadmitted insurance multi-state agreement ("NIMA").

Section 12 of the bill also amends Insurance Law § 2118(d)(3) to change the date by which premium taxes are due from March 15 of each year, to quarterly on February 15, May 15, August 15, and November 15 of each year.

Section 13 of the bill amends Insurance Law § 2130(a)(5) to change the date by which the Excess Line Association of New York ("ELANY") must prepare and deliver to each excess line broker and to the Superintendent the reports of excess line business from annually to quarterly on February 7, May 7, August 7, and November 7 of each year.

Section 14 of the bill adds a new § 2138 to the Insurance Law granting the Superintendent the authority to enter into NIMA on behalf of New York, in consultation with the Commissioner of Taxation and Finance (the "Commissioner"); adopt by regulation the premium tax allocation schedule set forth in NIMA if the Superintendent enters into NIMA; and withdraw from NIMA if the Superintendent, in consultation with the Commissioner, determines that NIMA is no longer in the best interests of the people of New York.

Section 15 of the bill amends Insurance Law § 9102 by repealing subsections (b) and (c) to remove a provision regarding premium tax allocation.

Section 16 of the bill adds a new General Municipal Law § 25, which states that notwithstanding Insurance Law § 2118(b)(3)(F), a municipality with a population of less than 100,000 persons may not request that an excess line broker procure or place insurance from an unauthorized insurer unless the excess line broker obtains the declinations required by Insurance Law § 2118(b).

Section 17 of the bill amends Tax Law § 171-a(1) to allow the Commissioner to deviate from standard procedure in collecting and depositing taxes on independently procured insurance, so that this tax can be paid to the clearinghouse contemplated by NIMA. The portion owing to New York would thereafter be remitted by the clearinghouse to the State.

Section 18 of the bill updates the definition of the term "taxable insurance contract" in Tax Law § 1550(c) to correspond with NRRA so that the tax on independently procured insurance is no longer restricted to policies that cover risks in New York.

Section 19 of the bill amends the definitions in Tax Law § 1550 to include the definition of "home state" used in NIMA.

Section 20 of the bill amends Tax Law § 1551 to limit the imposition of the tax on independently procured insurance to persons whose home state is New York, and allows for New York to tax risks located in other states at the other states' tax rates under the terms of a multi-state agreement.

Section 21 of the bill amends Tax Law § 1552 to provide that if New York enters into NIMA that premiums for risks both within and without the state will be allocated in accordance with NIMA's formula, and specifies that taxes collected on behalf of states which have not entered into a multi-state agreement will be retained by New York if

New York is the home state. This would also mean that if New York has not entered into any multi-state agreement, all taxes would be retained by New York if it is the home state.

Section 22 of the bill amends Tax Law § 1554 to allow for an exception to the normal requirements for filing returns if New York enters into a cooperative agreement under the NRRA.

Section 23 of the bill amends Tax Law § 1555 to allow information to be shared under any cooperative agreement New York enters into with other states.

Section 24 of the bill amends Tax Law § 1556 to grant the Superintendent the authority to enter into NIMA on behalf of New York in consultation with the Commissioner; adopt by regulation the premium tax allocation schedule set forth in NIMA if the Superintendent enters into NIMA; and withdraw from NIMA if the Superintendent, in consultation with the Commissioner, determines that NIMA is no longer in the best interests of the people of New York.

Section 25 of the bill amends Tax Law § 1557 to allow for deposits of taxes on independently procured insurance to be made according to the cooperative agreement.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget as it preserves current revenue. Failure to enact this legislation will result in a decrease in New York State's tax receipts.

Effective Date:

Section 26 of the bill states that the bill takes effect on July 21, 2011, except that sections 1, 2, and 3 of the bill take effect on July 16, 2011 and sections 14 and 24 take effect immediately. It further requires that excess line brokers make the payments required by Insurance Law § 2118(d) to the Superintendent on or before September 19, 2011 for the taxes on the policies procured by the excess line brokers between January 1, 2011 and July 20, 2011.

Part J - Extend Gramm-Leach-Bliley provisions for two years and make Bank Tax Extender permanent.

Purpose:

This bill makes the provisions of the New York State and New York City bank taxes dealing with the taxation of commercial banks permanent and extends the transitional provisions concerning the enactment and implementation of the federal Gramm-Leach-Bliley Act for two years.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

This bill makes permanent the provisions concerning the New York State and New York City taxation of commercial banks which were first added to the bank tax in 1985. In addition, the bill makes permanent the

provisions concerning the bad debt deduction and the allocation of net gains and other income from trading and investment activities for commercial banks for New York State and New York City franchise tax purposes which were added in 1987 and 1988, respectively.

Further, the bill extends the transitional provisions in the State and City bank taxes relating to the enactment and implementation of the federal Gramm-Leach-Bliley Act for two additional years through and including 2012. This federal act eliminated many of the prohibitions against the affiliation of banks, insurance companies and securities firms.

In 1985, significant changes were made to the franchise tax on banking corporations under the Tax Law and the Administrative Code of the City of New York. Many of those amendments, however, were made subject to a sunset provision providing that they would no longer be effective as to commercial banks for taxable years beginning on or after January 1, 1990. This sunset provision has been extended numerous times since 1990, and currently these provisions are set to expire for taxable years beginning on or after January 1, 2011. In addition, in order to prevent a windfall to New York, New York State as part of the Business Tax Reform and Rate Reduction Act of 1987 decoupled from the changes made by the Federal Tax Reform Act of 1986 with regard to the bad debt deduction. The Act also clarified how the portion of net gains and 'other income from trading and investment entities are allocated to New York. Both of these changes were also made to the New York City Administrative Code in 1988. These amendments were subject to the same sunset as the 1985 amendments and are currently scheduled to expire on January 1, 2011.

Starting in 2000, transitional provisions were added to both the Tax Law and the New York City Administrative Code relating to the Federal Gramm-Leach-Bliley Act which removed the prohibition against the affiliation of banks, securities firms and insurance companies. These transitional provisions were intended to provide some certainty to banks and securities firms in relation to their taxable status under the New York State and New York City taxes as they exercised the expanded powers provided at the federal level. They are also currently set to expire for taxable years beginning on or after January 1, 2011.

Making permanent the bank tax provisions and providing a two-year extender for the Gramm-Leach-Bliley Act transitional provisions provides filing and accounting continuity for business taxpayers, while allowing for the potential introduction of more comprehensive corporate tax reform in the future.

Budget Implications:

Enactment of this bill is necessary, to implement the 2011-2012 Executive Budget as it preserves current revenue.

Effective Date:

This bill takes effect immediately.

Part K - Modernize certain fuel definitions.

Purpose:

This bill updates the manner in which diesel motor fuel is classified for purposes of the taxes imposed on diesel motor fuel under the Tax Law.

Statement in Support, Summary of Provisions, Existing Law and Prior Legislative History:

Presently, the taxation of diesel motor fuel is dependent upon whether it is considered "enhanced" or how it is labeled. Under current law, "enhanced" diesel motor fuel is taxed on its "first sale" in the State. As the "enhanced" diesel product moves down the distribution chain the taxes are embedded in the price paid by subsequent purchasers. The final consumer bears the statutory incidence of the tax. The purpose of this taxation method is to minimize the risk of tax evasion by collecting the tax at the top of the distribution chain in the State.

However, changes to the federal government's fuel tax structure, including a fuel terminal based tax with dyed diesel fuel rules, and EPA regulations limiting sulfur content in diesel fuels, have driven changes in the petroleum marketplace regarding the labeling and invoicing for sale of diesel fuel product. In addition, and most significantly, a new State law (Chapter 203 of Laws of 2010), requires that all heating oil sold in this State, effective July 1, 2012, contain no more than 15 parts per million (PPM) in sulfur content. This is the same low sulfur standard required by federal rules for highway diesel fuel and current New York requirements for "enhanced" diesel motor fuel.

Currently, New York State Tax Law does not acknowledge these marketplace changes. The industry labeling of fuel as "diesel fuel" or "number 1 diesel fuel" or "number 2 diesel fuel" applies to almost all diesel entering the State, with the exception of heating oil. The above diesel labels are used in New York State's current statutory definition for highway destined fuel, but these terms are no longer useful in delineating differences between diesel fuel used in highway vehicles and fuel used for manufacturing, farming, electric generation, and construction purposes.

In fact, the only delineator between highway and off-highway uses of diesel fuel in either chemical composition or sales invoice labeling is the injection of red dye into the fuel as, it leaves the fuel terminal to be delivered for retail sale. This dyeing requirement, imposed under the federal taxing system, is now the sole distinction between intended highway and non-highway uses for diesel fuel in the fuels marketplace. Because New York State does not piggyback on the federal dyed fuel taxing system, the injection of red dye does not change the tax treatment of the fuel under State law. This situation is causing numerous problems for the petroleum industry, their customers, and the Tax Department, because the State's motor fuel tax, petroleum business tax (PBT) and pre-paid sales taxes are now being applied to diesel fuel intended for non-highway

uses that paid sales taxes are now being applied to diesel fuel intended for non-highway uses that are either fully or partially exempt from tax.

For example, manufacturers and electric generators who purchase diesel fuel are no longer eligible for PST exemptions under the current definitions. Also, due to outdated statutory definitions related to the taxation of diesel motor fuel, New York farmers are facing tax-induced "cash flow: problems because they must pay the State's highway fuel taxes when they purchase diesel fuel for farm use, a tax-exempt purpose. New York farmers must then apply to the Department for a refund. The time for which they must await such a refund can exceed two months.

Moreover, if no action is taken to change New York's diesel fuel tax definitions before July 2012, the recently enacted 15 PPM sulfur content requirement for all heating oil sold in the state, roughly 1.4 billion gallons of number two heating oil sold in the State annually, would initially be subject to the State's highway diesel fuel taxes, even though residential heating fuel is exempt from State taxes. Because this diesel fuel used for heating will initially be taxed, under the new law many consumers will likely find themselves in the same position farmers are in now, facing tax-induced "cash flow" problems. That is, homeowners will have to pay the State's highway fuel taxes when they purchase diesel fuel for heating use, an exempt purpose, and then apply to the Department for a refund. On average, the heating oil bill for two million households would be increased by approximately $160 when the highway fuel taxes are embedded in the price.

This bill changes the statutory definitions related to taxation of diesel motor fuel. As noted above, taxation of diesel motor fuel is currently based upon whether the diesel motor fuel is "enhanced." It removes the concept of "enhancement" from the Tax Law, and amends the Tax Law to incorporate the federal dyeing rules. This bill creates two categories of diesel motor fuel: non-highway diesel motor fuel and highway diesel motor fuel. Non-highway diesel motor fuel would be defined as any diesel motor fuel that is designated for use other than on a public highway and dyed in accordance with the federal regulation for dyeing diesel motor fuel. Highway diesel motor fuel would be defined as any diesel motor fuel that is not non-highway diesel motor fuel. The definition of automotive fuel is repealed in Article 12-A because Articles 12-A and 13-A now use the terms "motor fuel" and "highway diesel motor fuel" in place of the term "automotive fuel" to simplify the terms being used and to eliminate confusion with other articles of the Tax Law.

The bill amends the definition of motor fuel to include E85 and fuel grade ethanol. The definition of E85 is amended to more appropriately describe it as a fuel blend consisting of ethanol that meets the ASTM International active standard D5798 for fuel ethanol. This would allow all motor fuel that was intended to receive tax exemptions to qualify regardless of the technical aspects of the fuel definition. Existing law defines E85 as consisting of 85 percent ethanol and the remainder of which is motor fuel. However, E85 producers adjust the distribution based upon seasonal temperature

changes, which may cause the ethanol percentage to fall below 85 percent. This causes ambiguity about whether the exemption applies. The amended definition eliminates this ambiguity.

The definitional changes noted above result in a change in how diesel motor fuel is taxed. As a result, amendments to the Tax Law with respect to the Department's administration of the diesel motor fuel tax are necessary. For instance, amendments to registration, record keeping and penalties are necessary to incorporate the new defined terms.

Accordingly, Article 12-A related to taxation of automotive fuels, and Article 13-A related to taxation of petroleum products are amended to update the tax structure therein in accordance with the new definitions.

Article 21, related to the highway use tax, is amended to make a conforming change in order to continue to register all fuel carriers including carriers of non-highway diesel motor fuel.

Article 28, the sales and compensating use tax, is amended to change the references to automotive fuel to petroleum product to avoid confusion with the use of that term as defined in Article 12-A and 13-A and in order to avoid the unintended consequence of changing the sales tax base.

Article 37, related to crimes and other offenses as well as seizures and forfeitures, is amended to conform to the definitional changes made to the diesel fuel tax structure and to add a seizure provision for diesel motor fuel which would parallel the existing seizure provisions that already exist for motor fuel.

Conforming changes are made to sections of the Criminal Procedure Law that were necessitated by the definitional changes made in Article 28. Also, various provisions of the Tax Law and the New York City Administrative Code are repealed because they are either outdated or have expired.

Finally, the current tax rates are codified into statute as a starting point for indexing these rates.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget because it prevents an unintended tax increase.

Effective Date:

This bill takes effect September 1, 2011, and applies to sales made and uses occurring on and after that date in accordance with the applicable transitional provisions in sections 1106 and 1217 of the Tax Law.

Part L - Extend the alternative fuels tax exemptions for one year.

Purpose:

This bill clarifies the definition of E85 and extends the sunset for the tax exemptions for alternative fuels, including E85, compressed natural gas (CNG), hydrogen, and B20 from September 1, 2011 to September 1, 2012.

Statement in Support, Summary of Provisions. Existing Law and Prior Legislative History:

Extending the exemptions for alternative fuel continues to provide an incentive for the use of these products.

This bill amends the definition of E85 to more appropriately describe it as a fuel blend consisting of ethanol and motor fuel, which meets the American Society for Testing and Materials (ASTM) International active standard 05798 for fuel ethanol. This allows all motor fuel that was intended to receive the tax exemptions to qualify regardless of technical aspects of the fuel definition.

Additionally, this bill extends the sunset date for the exemptions in the Tax Law for alternative fuels from September 1, 2011 to September 1, 2012. Unless this sunset date is extended, the Tax Law will no longer allow full exemptions for E85, CNG, and hydrogen, and partial exemptions for B20 from the motor fuel taxes (Article 12-A), the petroleum business taxes (Article 13-A), fuel use taxes (Article 21-A) and State and local sales and compensating use taxes (Articles 28 and 29).

Existing law defines E85 as consisting of 85 percent ethanol, the remainder of which is motor fuel. Although commonly known as E85, the ethanol percentage can fall below 85 percent due to seasonal temperature changes that necessitate different blends. The amended definition clarifies that the exemption is intended to accommodate the industry practice just described.

Existing law includes an exemption for E85, CNG and hydrogen, and a partial exemption for B20. This exemption is set to sunset on September 1, 2011.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget because it would provide tax relief of $1.5 million in 2011-12 and 2012-13.

Effective Date:

This bill takes effect immediately.

Part M - Simplify the distribution of Motor Vehicle fees.

Purpose:

This bill simplifies the distribution of motor vehicle receipts by clarifying that all "taxes and fees now deposited into the general fund" include fines, assessments and other monies received pursuant to the Vehicle and Traffic Law.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

Since 2006, $169.4 million of non-dedicated motor vehicle taxes and fees have been directed to the Dedicated Funds Pool. If there is a surplus, the remainder is directed to the General Fund. If there is a shortfall, revenues from the General Fund are transferred to the Dedicated Funds P601 to cover this shortfall. Currently, the Office of the State Comptroller attributes some non-dedicated motor vehicle receipts, such as fines and assessments, into the General Fund. These non-dedicated receipts are distinct from the taxes and fees categories covered by the current distribution statute.

This bill provides that funds now collected pursuant to the Vehicle and Traffic law, and not otherwise dedicated to another fund, shall be directed towards the Dedicated Funds Pool created by this statute. This would not have a net impact on the General Fund or the Dedicated Funds Pool because the fund will be maintained at $169.4 million and any monies over that amount in the Dedicated Funds Pool will still be transferred to the General Fund and any shortfall in the Dedicated Funds Pool will be covered by the General Fund. This bill would only simplify the current motor vehicle receipt distribution, eliminate cash-flow complexities caused by current law and streamline the accounting process associated with this Dedicated Funds Pool.

This bill amends section 11 of part EE of Chapter 63 of the laws of 2000 by removing the language "taxes and fees" and replacing it with "all motor vehicle receipts."

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget, as it increases General Fund motor vehicle revenues by $78.1 million and decreases General Fund miscellaneous licenses and fees by an equal amount.

Effective Date:

This bill takes effect April 1, 2011.

Part N - Eliminate restrictions on the operation of Quick Draw.

Purpose:

This bill removes Quick Draw restrictions: (1) limiting ticket sales to bars and taverns where at least twenty-five (25) percent of gross sales are from food; (2) that require a minimum of 2,500-square-feet for establishments that do not serve alcohol; and (3) that require that a person must be twenty-one years of age to play Quick Draw at bars and taverns.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

This bill amends Tax law §1612(a)(1) to remove restrictions on the locations that can offer the Quick Draw lottery game or other keno-style games and a restriction requiring that a person must be

twenty-one years of age to play Quick Draw at bars and taverns. This bill seeks to increase Quick Draw earnings by removing these operational restrictions limiting the locations at which Quick Draw may be offered. The restrictions Imposed on Quick Draw by the 1995 authorizing legislation were experimental. In practice, these restrictions have proved cumbersome and unnecessary, and have substantially reduced the amount of earnings otherwise available from the game. New York is the only state with these limitations on keno-style games.

The 25 percent food sales requirement for businesses serving alcohol is similar to a policy that previously was applied to those same businesses under the Alcoholic Beverage Control Law but which has long since been abandoned as unworkable. The 2,500-square-foot limitation also has the effect of arbitrarily restraining Quick Draw sales. Eliminating these restrictions will strengthen the game's ability to produce sales and earnings.

The Quick Draw restrictions were intended to protect against the possibility that Quick Draw would be abused by players. However, after the initial excitement that accompanied introduction of the game, Quick Draw has proved to be no more attractive than other lottery games. Following the enactment of Quick Draw in 1995, the State authorized video lottery gaming, which offers a much faster paced form of gaming Therefore, the limitations applicable to Quick Draw are no longer necessary.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget as it would increase revenue by $10.0 million in SFY 2011-12 and $44.0 million annually thereafter.

Effective Date:

This bill takes effect immediately.

Part 0 - Authorize a Free Play Allowance Program.

Purpose:

The bill authorizes the Division of the (Lottery) to administer a free play allowance credit program at video gaming (VLG) facilities, capped at ten percent of net machine income.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

This bill amends Tax Law § 1612(b)(1)(ii) by adding a new subdivision (I) to clarify that free play allowance credits are not included in the calculation of net machine income (NMI) or any distribution of net machine income.

Additionally, the bill adds a new subdivision f to Tax Law . 1617-a to authorize Lottery to administer a free-play allowance credit program capped at ten percent of NMI at each VLG facility in the State. Free play allows a player to play a video lottery game for a specified

dollar amount without paying any other consideration. For each facility, Lottery shall authorize the use of free play allowance credits if the VLG agent of such facility submits a written plan for the use of free-play credits that Lottery determines is designed to increase revenue for education. Lottery, in conjunction with the Director of the Budget, may suspend the use of free-play allowance credits if it is jointly determined that the use of the program has not been effective in increasing revenue for education.

Free-play is an accepted promotional tool in the gaming industry. New York's VLG facilities face competition from gaming facilities in other jurisdictions that offer greater levels of free-play either because they have free-play programs, or retain larger percentages of gaming revenue. Pilot free-play allowance credit programs conducted at Tioga Downs and Monticello Gaming and Raceway have been successful at increasing NMI.

Budget Implication:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget because it increases revenue by $38 million annually beginning in 2011-12.

Effective Date:

This bill takes effect immediately.

Part P - Allow two additional 75 percent Instant Lottery Games.

Purpose:

This bill allows the Lottery Division to offer an additional two instant games with a 75 percent prize payout annually.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

This bill amends Tax Law § 1612(a)(2) to allow the Lottery Division to offer as many as five instant games in which up to 75 percent of ticket sales receipts may be used for payment of prizes.

Under current law, the Lottery Division may offer as many as three instant games during the fiscal year in which up to 75 percent of ticket sales receipts may be used for payment of prizes.

By permitting the introduction of two additional instant games with such prize payouts, the Lottery Division can further develop the segment of instant gaming that is marketed at a higher price-point (e.g., $30 tickets). This bill will increase the frequency of higher price-point instant game launches to capitalize on the generally greater interest and sales following the introduction of a new game.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget, as the bill increases revenue by an estimated $4 million in SFY 2011-12 and $4 million annually thereafter.

Effective Date:

This bill takes effect immediately.

Part Q - Allow for a higher prize pay-out on multi-jurisdictional Lottery Games.

Purpose:

This bill permits the Lottery Division ("the Lottery") to continue participating in joint, multi-jurisdiction and out-of-state lottery gaming consortiums in the event these entities increase prize payout percentages higher than the amount allowable under existing State law.

Statement in Support, Summary of Provisions, Existing Law, and Prior Legislative History:

This bill amends Tax Law § 1612(a)(3) to allow the Lottery to use a percentage of ticket sales receipts exceeding 50% for payment of prizes of any joint, multi-jurisdiction and out-of-state lottery if at least two-thirds of the lottery jurisdictions participating in such. lottery agree to a prize payout percentage that exceeds 50% of ticket sales.

Existing law limits the amount that the Lottery may use for prize payments for any joint, multi-jurisdiction and out-of-state lottery games to 50% of ticket sales for such games.

Experience indicates that ticket sales increase substantially when jackpots in the Mega Millions and powerball multi-jurisdiction lottery games reach elevated levels. For example, recent industry-wide game development discussions, for Mega Millions and powerball specifically, have explored prize structure options that could occasionally raise payouts into the 52-53% range. Currently, only New York has a payout limitation lower than this range, which means the Lottery is forced to veto improved game design options that could increase profits. The proposed amendment is expected to result in higher jackpots, which will lead to increased sales and greater profits for aid to education.

Increasing prize payouts for Mega Millions and powerball when the consortium of states involved in these games agree, will preserve the State's revenue from multi-jurisdiction lottery games, because New York may no longer be able to participate in Mega Millions or powerball absent the ability to raise payout percentages as agreed to by other lottery jurisdictions.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget, as it preserves revenue contained in the State's Financial Plan.

Effective Date:

This bill takes effect immediately.

Part R - Authorize multi-jurisdictional Video Lottery gaming.

Purpose:

This bill permits the introduction of joint, multi-jurisdiction and out-of-state video lottery gaming with the same prize payout percentages as existing video lottery gaming.

Statement in Support, Summary of Provisions, Existing Law and Prior Legislative History:

This bill amends Tax Law § 1612 to permit the introduction of joint, multi-jurisdiction and out-of-state video lottery gaming with the same prize payout percentages as existing video lottery gaming.

Authorizing the Lottery Division to offer joint, multi-jurisdiction and out-of-state video lottery gaming will allow the Lottery Division to introduce multi-jurisdiction, wide-area progressive video lottery terminals with higher prize payouts.

It is expected that multi-jurisdiction video lottery games will increase revenue to education because of the growing popularity of progressive jackpot games. A multi-jurisdiction video lottery game will allow for higher jackpot amounts while maintaining the standard prize payout for video lottery games expected by its players.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget as the bill increases revenue by an estimated $2 million in SFY 2011-12 and $3 million annually thereafter.

Effective Date:

This bill takes effect immediately.

Part S - Extend for one year lower Pari-Mutuel tax rates and rules governing simulcasting of out-of-state races.

Purpose:

This bill extends, for a period of one year, various provisions of the Racing, Pari-Mutuel Wagering and Breeding (Racing) Law which expire during the 2011-12 fiscal year.

Summary of Provisions, Existing Law, Prior Legislative History, and Statement in Support:

Section 1 of the bill amends Racing Law § 1003(a) to extend in-home simulcasting from June 30, 2011 to June 30, 2012.

Section 2 of the bill amends Racing Law § 1007(3)(d)(iii) to extend the current percentage of total pools allocated to purses that a track located in Westchester County receives from a franchised corporation from June 30, 2011 to June 30,2012.

Section 3 of the bill amends the opening paragraph of Racing Law § 1014(1) to continue the provisions allowing simulcasting of out-of-state thoroughbred races on any day the Saratoga thoroughbred track is operating from June 30, 2011 to June 30, 2012, and to delay the operation of these provisions in regard to the simulcasting of out-of-state thoroughbred races on all days whether or not the Saratoga thoroughbred track is operating until June 30, 2012.

Section 4 of the bill amends Racing Law § 1015(1) to extend the provisions governing the simulcasting of races conducted at out-of-state harness tracks from June 30, 2011 to June 30, 2012.

Section 5 of the bill amends the opening paragraph of Racing Law § 10 16(1) to extend the provisions governing the simulcasting of out-of-state thoroughbred races on any day the Saratoga thoroughbred track is closed from June 30, 2011 to June 30, 2012.

Section 6 of the bill amends the opening paragraph of Racing Law §1018 to extend the current distribution of revenue from out-of-state simulcasting during the Saratoga meet through September 8, 2011.

Section 7 of the bill amends § 32 of Chapter 281 of the Laws of 1994 to extend the current amount of off-track betting wagers on New York Racing Association, Inc. (NYRA) pools dedicated to purse enhancement from July 1, 2011 to July 1, 2012.

Section 8 of the bill amends § 54 of Chapter 346 of the Laws of 1990 to extend binding arbitration for disagreements from July 1, 2011 to July 1, 2012.

Section 9 of the bill amends Racing Law § 238(1)(a) to extend the current distribution of revenue from on-track wagering on NYRA races.

Section 10 of the bill amends Racing Law § 10 12(5) to extend the authorization for account wagering from June 30, 2011 to June 30, 2012.

The extension of these provisions will maintain the pari-mutuel betting and simulcasting structure that is currently in place in New York State. These provisions were most recently extended in 2010.

Budget Implications:

Enactment of this bill is necessary to implement the 2011-2012 Executive Budget because it maintains the current pari-mutuel betting structure in New York State.

Effective Date:

This bill takes effect immediately.

The provisions of this act shall take effect immediately, provided, however, that the applicable effective date of each part of this act shall be as specifically set forth in the last section of such part.


Text

STATE OF NEW YORK ________________________________________________________________________ S. 2811 A. 4011 S E N A T E - A S S E M B L Y February 1, 2011 ___________
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti- cle seven of the Constitution -- read twice and ordered printed, and when printed to be committed to the Committee on Finance IN ASSEMBLY -- A BUDGET BILL, submitted by the Governor pursuant to article seven of the Constitution -- read once and referred to the Committee on Ways and Means AN ACT to amend the abandoned property law, in relation to the dormancy period of miscellaneous unclaimed property (Part A); to amend part N of chapter 61 of the laws of 2005 amending the tax law relating to certain transactions and related information and relating to the voluntary compliance initiative; in relation to making permanent the disclosure and penalty provisions for transactions that present the potential for tax avoidance (Part B); to amend the tax law, in relation to the empire zones program (Part C); to amend the tax law, in relation to directing the crediting of lottery prizes of more than six hundred dollars against liability for any tax administered by the commissioner of taxation and finance (Part D); to amend chapter 56 of the laws of 1998, amending the tax law and other laws relating to extending the dates of application of the investment tax credit under articles 9-A, 22 and 32 of the tax law and to amend chapter 63 of the laws of 2000, amending the tax law and other laws relating to extend- ing the dates of application of the investment tax credit under arti- cle 33 of the tax law, in relation to extending the effectiveness thereof (Part E); to amend the public housing law, in relation to providing a credit against income tax for persons or entities invest- ing in low-income housing (Part F); to amend the economic development law, the tax law and the public service law, in relation to the excelsior jobs program (Part G); to amend the tax law, in relation to the exemption from the franchise tax on insurance corporations under article thirty-three of such law for town or county cooperative insur- ance corporations (Part H); to amend the insurance law, the general municipal law and the tax law, in relation to conforming to the feder- al Dodd-Frank Wall Street Reform and Consumer Protection Act; and to repeal paragraphs 8 and 9 of subsection (b) of section 2118 of the insurance law, relating thereto (Part I); to amend chapter 298 of the laws of 1985, amending the tax law relating to the franchise tax on EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD12574-01-1 S. 2811 2 A. 4011 banking corporations imposed by the tax law, authorized to be imposed by any city having a population of one million or more by chapter 772 of the laws of 1966 and imposed by the administrative code of the city of New York and relating to other provisions of the tax law, chapter 883 of the laws of 1975 and the administrative code of the city of New York which relates to such franchise tax, to amend chapter 817 of the laws of 1987, amending the tax law and the environmental conservation law, constituting the business tax reform and rate reduction act of 1987, and to amend chapter 525 of the laws of 1988, amending the tax law and the administrative code of the city of New York relating to the imposition of taxes in the city of New York, in relation to the effectiveness of certain provisions of such chapters; and to amend the tax law and the administrative code of the city of New York, in relation to extending transitional provisions relating to the federal Gramm-Leach-Bliley act (Part J); to amend the tax law and the criminal procedure law, in relation to updating the tax classification of diesel motor fuel to be consistent with federal laws and make the diesel tax structure consistent with this new tax treatment; and to repeal certain provisions of the tax law and the administrative code of the city of New York relating thereto (Part K); to amend the tax law, in relation to making a technical correction to the E85 defi- nition; and to amend chapter 109 of the laws of 2006, amending the tax law relating to providing exemptions, reimbursements and credits from various taxes for certain alternative fuels, in relation to extending the alternative fuels tax exemptions for one year (Part L); to amend section 11 of part EE of chapter 63 of the laws of 2000, amending the tax law and other laws relating to modifying the distribution of funds from the motor vehicle fuel excise tax, in relation to the distrib- ution of motor vehicle fees (Part M); to amend the tax law, in relation to restrictions on certain keno style lottery games (Part N); to amend the tax law, in relation to video lottery free play allowance program (Part O); to amend the tax law, in relation to prize payout of certain instant lottery games (Part P); to amend the tax law, in relation to prize payout in certain multi-jurisdictional lottery games (Part Q); to amend the tax law, in relation to multi-jurisdictional video lottery gaming (Part R); and to amend the racing, pari-mutuel wagering and breeding law, in relation to licenses for simulcast facilities, sums relating to track simulcast, simulcast of out-of- state thoroughbred races, simulcasting of races run by out-of-state harness tracks and distributions of wagers; to amend chapter 281 of the laws of 1994 amending the racing, pari-mutuel wagering and breed- ing law and other laws relating to simulcasting and chapter 346 of the laws of 1990 amending the racing, pari-mutuel wagering and breeding law and other laws relating to simulcasting and the imposition of certain taxes, in relation to extending certain provisions thereof; and to amend the racing, pari-mutuel wagering and breeding law, in relation to extending certain provisions thereof (Part S) THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. This act enacts into law major components of legislation which are necessary to implement the state fiscal plan for the 2011-2012 state fiscal year. Each component is wholly contained within a Part identified as Parts A through S. The effective date for each particular
provision contained within such Part is set forth in the last section of such Part. Any provision in any section contained within a Part, includ- ing the effective date of the Part, which makes a reference to a section "of this act", when used in connection with that particular component, shall be deemed to mean and refer to the corresponding section of the Part in which it is found. Section three of this act sets forth the general effective date of this act. PART A Section 1. Paragraphs (a), (b) and (k) of subdivision 1 of section 300 of the abandoned property law, paragraph (a) as amended and paragraph (k) as relettered by chapter 15 of the laws of 1983, subparagraph (iv) of paragraph (a) as amended and subparagraph (v) of paragraph (a) as added by chapter 409 of the laws of 1994, paragraph (b) as amended by chapter 881 of the laws of 1945 and paragraph (k) as amended by chapter 78 of the laws of 1976, are amended to read as follows: (a) Any amounts due on deposits or any amounts to which a shareholder of a savings and loan association or a credit union is entitled, held or owing by a banking organization, which shall have remained unclaimed for [five] THREE years by the person or persons appearing to be entitled thereto, including any interest or dividends credited thereon, excepting (i) any such amount which has been reduced or increased, exclusive of dividend or interest payment, within [five] THREE years, or (ii) any such amount which is represented by a passbook not in the possession of the banking organization, which has been presented for entry of dividend or interest credit within [five] THREE years, or (iii) any such amount with respect to which the banking organization has on file written evidence received within [five] THREE years that the person or persons appearing to be entitled to such amounts had knowledge thereof, or (iv) any such amount payable only at or by a branch office located in a foreign country, or payable in currency other than United States currency, or (v) any such amount that is separately identifiable and has been set aside to meet the burial and related expenses of an individual, provided however that said amount shall be deemed abandoned property where it remains unclaimed for [five] THREE years subsequent to the death of the individual for whom the amount was deposited. (b) Any amounts, together with all accumulations of interest or other increment thereon, held or owing by a banking organization for the payment of an interest in a bond and mortgage apportioned or transferred by it pursuant to subdivision seven of former section one hundred eight- y-eight of the banking law as it existed prior to July first, nineteen hundred thirty-seven, which shall have remained unclaimed by the person or persons appearing to be entitled thereto for [five] THREE years after the full and final liquidation of such mortgage, excepting (i) any such amount which has been reduced by payment to the person or persons appearing to be entitled thereto within [five] THREE years, or (ii) any such amount which is represented by a certificate of share ownership not in the possession of the banking organization, which certificate has been presented for transfer within [five] THREE years, or (iii) any such amount with respect to which the banking organization has on file written evidence received within [five] THREE years that the
person or persons appearing to be entitled to such amount had knowledge thereof. (k) Lost property or instruments as defined in section two hundred fifty-one of the personal property law which shall have been held by a safe deposit company or bank for [five] THREE years pursuant to the provisions of section two hundred fifty-six of the personal property law. S 2. Paragraphs (a) and (c) of subdivision 1 of section 600 of the abandoned property law, paragraph (a) as amended by chapter 655 of the laws of 1978 and paragraph (c) as amended by chapter 281 of the laws of 1980, are amended to read as follows: (a) Any moneys including the monetary proceeds from the sale of tangi- ble personal property and securities or other intangible property paid into court, which, except as provided in section ten hundred OF THIS CHAPTER, shall have remained in the hands of any county treasurer, or the commissioner of finance of the city of New York, for [five] THREE years, together with all accumulations of interest or other increment thereon, less such legal fees as he may be entitled to. (c) Any moneys paid to a support bureau of a family court, for the support of a spouse or child, which shall have remained in the custody of a county treasurer, or the commissioner of finance of the city of New York, for [five] THREE years, together with any interest due thereon, less such legal fees as he may be entitled to. For purposes of this section, "family court" includes the domestic relations court of the city of New York prior to the first day of September, nineteen hundred sixty-two. S 3. Subdivision 1 of section 1000 of the abandoned property law, as amended by chapter 670 of the laws of 1989, is amended to read as follows: 1. (a) Any moneys held or owing for the payment of an award made by a court in any condemnation proceeding and payable by a public corporation or other corporation possessing powers of condemnation, which shall have remained unclaimed by the person or persons appearing to be entitled thereto for [five] THREE years after confirmation by the court, together with any interest due thereon, less, when an award is payable by a public corporation, any amount due such public corporation at the time of title vesting for tax, water or any other liens on the same parcel the award was for, with any interest due thereon, and any amount due such public corporation at the time of title vesting or at the time of confirmation, whichever is later, for an assessment on the same parcel the award was for, with any interest due thereon, shall be deemed aban- doned property. In any condemnation proceedings in which the court shall have not made an award, any moneys paid into court, including interest thereon, shall be subject to the provisions of article six of this chap- ter and this section shall have no application thereto. (b) The issuance of a warrant for such an award shall not prevent an award from being deemed abandoned property if such warrant is unclaimed [five] THREE years after confirmation of such award by the court. S 4. Subdivision 1 of section 1300 of the abandoned property law is amended to read as follows: 1. Any unclaimed moneys arising from the sale of any personal property which shall have been pledged or mortgaged as security for the loan of money with a corporation, except a banking organization or a licensed lender, heretofore or hereafter organized by or pursuant to a special statute for the purpose of, and principally engaged in, giving aid to individuals by loans of money at interest upon the pledge or mortgage of
personal property, and which has subjected itself to special provisions of the banking law, after deducting the amount of the loan, the interest then due on the same and any other lawful charges, which shall have remained in its possession for [six] THREE years from the date of such sale, shall be deemed abandoned property. S 5. Subdivisions 1 and 2 of section 1315 of the abandoned property law, as amended by section 2 of part II of chapter 57 of the laws of 2010, are amended to read as follows: 1. Any unclaimed amount representing unredeemed gift certificates sold after December thirty-first, nineteen hundred eighty-three, including gift certificates for merchandise only in which case the face value of such certificate shall be deemed the amount deemed abandoned, and owing in this state, or held by any corporation (other than a public corpo- ration), joint stock company, individual, association of two or more individuals, committee or business trust in this state, and which has remained unclaimed by the owner of such amount for [five] THREE years, shall be deemed abandoned property. 2. Except as otherwise provided by law, any amount representing unclaimed money or securities and held in escrow or otherwise by any corporation (other than a public corporation), joint stock company, individual, association of two or more individuals, committee or busi- ness trust, to ensure the performance of any duty or obligation, shall be deemed abandoned property when: a. such amount is held or owing in this state, and b. such amount has remained unclaimed by the person or persons enti- tled thereto for [five] THREE years, except c. where the duty or obligation for which such amount was deposited has not been performed and such performance is still required, such amounts shall not be deemed abandoned property. S 6. This act shall take effect immediately. PART B Section 1. Section 12 of part N of chapter 61 of the laws of 2005, amending the tax law relating to certain transactions and related infor- mation and relating to the voluntary compliance initiative, subdivision (iii) as amended by section 16 of subpart J of part V-1 of chapter 57 of the laws of 2009, is amended to read as follows: S 12. This act shall take effect immediately; provided, however, that (i) section one of this act shall apply to all disclosure statements described in paragraph 1 of subdivision (a) of section 25 of the tax law, as added by section one of this act, that were required to be filed with the internal revenue service at any time with respect to "listed transactions" as described in such paragraph 1, and shall apply to all disclosure statements described in paragraph 1 of subdivision (a) of section 25 of the tax law, as added by section one of this act, that were required to be filed with the internal revenue service with respect to "reportable transactions" as described in such paragraph 1, other than "listed transactions", in which a taxpayer participated during any taxable year for which the statute of limitations for assessment has not expired as of the date this act shall take effect, and shall apply to returns or statements described in such paragraph 1 required to be filed by taxpayers (or persons as described in such paragraph) with the commissioner of taxation and finance on or after the sixtieth day after this act shall have become a law; AND
(ii) sections two through four and seven through nine of this act shall apply to any tax liability for which the statute of limitations on assessment has not expired as of the date this act shall take effect[; and (iii) provided, further, that the provisions of this act, except section five of this act, shall expire and be deemed repealed July 1, 2011. The commissioner of taxation and finance shall cause to be prepared a written report on the tax shelter law. Notwithstanding any other provision of law to the contrary, such report shall include, but not be limited to, statistical information regarding the listed and reportable transactions and avoidance transactions under this act. A copy of such report shall be delivered to the governor, the temporary president of the senate, and the speaker of the assembly no later than April 1, 2007; provided, that, such expiration and repeal shall not affect any requirement imposed pursuant to this act]. S 2. This act shall take effect immediately. PART C Section 1. Paragraphs (g) and (h) of subdivision 12-B of section 210 of the tax law, as added by section 8 of part R of chapter 57 of the laws of 2010, are amended to read as follows: (g) Notwithstanding the expiration of the empire zones program under article eighteen-B of the general municipal law, a taxpayer that is certified as a qualified investment project pursuant to such article eighteen-B on the day immediately preceding the day the empire zones program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall continue to be deemed certified under such article eighteen-B for purposes of this subdivision for the remainder of the taxable year in which the expiration occurred and for the next succeed- ing nine taxable years. In addition, the areas designated as empire zones in which the taxpayer is certified as a qualified investment project on the day immediately preceding the day the empire zones program expired shall continue to be deemed empire zones for purposes of this subdivision for the remainder of the taxable year in which the expiration occurred and for the next succeeding nine taxable years. (h) Notwithstanding the expiration of the empire zones program under article eighteen-B of the general municipal law and except as provided in paragraph (g) of this subdivision, a taxpayer that is certified as an empire zone business pursuant to such article eighteen-B on the day immediately preceding the day the empire zones program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVEL- OPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC- IPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall continue to be deemed certified under such article eighteen-B for purposes of this subdivision until April first, two thousand fourteen. In addition, the areas designated as empire zones in which the taxpayer is certified as an empire zone business on the day immediately preceding the day the empire zones program expired shall continue to be deemed empire zones for purposes of this subdivision until April first, two thousand four- teen. S 2. Paragraph 7 of subsection (j) of section 606 of the tax law, as added by section 9 of part R of chapter 57 of the laws of 2010, is amended to read as follows:
(7) Notwithstanding the expiration of the empire zones program under article eighteen-B of the general municipal law, a taxpayer that is certified as an empire zone business pursuant to such article eighteen-B on the day immediately preceding the day the empire zones program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall continue to be deemed certified under such article eighteen-B for purposes of this subdivision until April first, two thousand fourteen. In addition, the areas designated as empire zones in which the taxpayer is certified as an empire zone business on the day immediately preceding the day the empire zones program expired shall continue to be deemed empire zones for purposes of this subdivision until April first, two thousand fourteen. S 3. Paragraphs (d) and (e) of subdivision 12-C of section 210 of the tax law, as added by section 10 of part R of chapter 57 of the laws of 2010, are amended to read as follows: (d) Notwithstanding the expiration of the empire zones program under article eighteen-B of the general municipal law, a taxpayer that is certified as a qualified investment project pursuant to such article eighteen-B on the day immediately preceding the day the empire zones program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall continue to be deemed certified under such article eighteen-B for purposes of this subdivision for the remainder of the taxable year in which the expiration occurred and for the next succeed- ing nine taxable years. In addition, the areas designated as empire zones in which the taxpayer is certified as a qualified investment project on the day immediately preceding the day the empire zones program expired shall continue to be deemed empire zones for purposes of this subdivision for the remainder of the taxable year in which the expiration occurred and for the next succeeding nine taxable years. (e) Notwithstanding the expiration of the empire zones program under article eighteen-B of the general municipal law and except as provided in paragraph (d) of this subdivision, a taxpayer that is certified as an empire zone business pursuant to such article eighteen-B on the day immediately preceding the day the empire zones program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVEL- OPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC- IPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall continue to be deemed in the empire zone in which the taxpayer was certified as an empire zone business on the day immediately preceding the day the empire zones program expired for each of the three years next succeeding the taxable year for which the credit under subdivision twelve-B OF THIS SECTION is allowed. S 4. Paragraph 4 of subsection (j-1) of section 606 of the tax law, as added by section 11 of part R of chapter 57 of the laws of 2010, is amended to read as follows: (4) Notwithstanding the expiration of the empire zones program under article eighteen-B of the general municipal law, a taxpayer that is certified as an empire zone business pursuant to such article eighteen-B on the day immediately preceding the day the empire zones program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall
continue to be deemed in the empire zone in which the taxpayer was certified as an empire zone business on the day immediately preceding the day the empire zones program expired for each of the three years next succeeding the taxable year for which the credit under [subdivi- sion] SUBSECTION (j) OF THIS SECTION is allowed. S 5. Subdivision (k) of section 14 of the tax law, as amended by section 5 of part A of chapter 63 of the laws of 2005, is amended to read as follows: (k) If the designation of an area as an empire zone is no longer in effect because section nine hundred sixty-nine of the general municipal law was not amended to extend the effective date of such designation so that the designations of all empire zones pursuant to article eighteen-B of the general municipal law have expired, a business enterprise that was certified pursuant to article eighteen-B of the general municipal law on the day immediately preceding the day on which such designation expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall be deemed to continue to be certified under such article eighteen-B for purposes of this section, and sections fifteen, sixteen, section one hundred eighty-seven-j, subdivisions twenty-seven and twenty-eight of section two hundred ten, subsections (bb) and (cc) of section six hundred six, [subdivision (z) of section eleven hundred fifteen,] SUBDI- VISION (D) OF SECTION ELEVEN HUNDRED NINETEEN, subsections (o) and (p) of section fourteen hundred fifty-six, and subdivisions (r) and (s) of section fifteen hundred eleven of this chapter. In addition, if the designation of an area as an empire zone is no longer in effect because section nine hundred sixty-nine of the general municipal law was not amended to extend the effective date of such designation so that the designations of all empire zones pursuant to article eighteen-B of the general municipal law have expired, all references to empire zones in the provisions of this chapter listed in the previous sentence shall be read as meaning areas designated as empire zones on the day immediately preceding the day on which such designation expired. S 6. Paragraph (f) of subdivision 20 of section 210 of the tax law, as added by section 14 of part R of chapter 57 of the laws of 2010, is amended to read as follows: (f) If the designation of an area as an empire zone is no longer in effect because the designations of all empire zones pursuant to article eighteen-B of the general municipal law have expired, a taxpayer that has made a contribution of money on or before the day immediately preceding the day the empire zones expired to a community development project approved by the commissioner of economic development shall be deemed eligible to claim the empire zone capital credit under subpara- graph three of paragraph (a) of this subdivision for additional contrib- utions made prior to April first, two thousand fourteen and certified by the commissioner of economic development to that community development project as payment of a commitment made by the taxpayer to that communi- ty development project before the empire zones expired, PROVIDED THAT THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER. S 7. Paragraph 5 of subsection (l) of section 606 of the tax law, as added by section 15 of part R of chapter 57 of the laws of 2010, is amended to read as follows:
(5) If the designation of an area as an empire zone is no longer in effect because the designations of all empire zones pursuant to article eighteen-B of the general municipal law have expired, a taxpayer that has made a contribution of money on or before the day immediately preceding the day the empire zones expired to a community development project approved by the commissioner of economic development shall be deemed eligible to claim the empire zone capital credit under subpara- graph (C) of paragraph one of this subsection for additional contrib- utions made prior to April first, two thousand fourteen and certified by the commissioner of economic development to that community development project as payment of a commitment made by the taxpayer to that communi- ty development project before the empire zones expired, PROVIDED THAT THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER. S 8. Paragraph 5 of subsection (d) of section 1456 of the tax law, as added by section 16 of part R of chapter 57 of the laws of 2010, is amended to read as follows: (5) If the designation of an area as an empire zone is no longer in effect because the designations of all empire zones pursuant to article eighteen-B of the general municipal law have expired, a taxpayer that has made a contribution of money on or before the day immediately preceding the day the empire zones expired to a community development project approved by the commissioner of economic development shall be deemed eligible to claim the empire zone capital credit under subpara- graph (C) of paragraph one of this subsection for additional contrib- utions made prior to April first, two thousand fourteen and certified by the commissioner of economic development to that community development project as payment of a commitment made by the taxpayer to that communi- ty development project before the empire zones expired, PROVIDED THAT THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER. S 9. Paragraph 5 of subdivision (h) of section 1511 of the tax law, as added by section 17 of part R of chapter 57 of the laws of 2010, is amended to read as follows: (5) If the designation of an area as an empire zone is no longer in effect because the designations of all empire zones pursuant to article eighteen-B of the general municipal law have expired, a taxpayer that has made a contribution of money on or before the day immediately preceding the day the empire zones expired to a community development project approved by the commissioner of economic development shall be deemed eligible to claim the empire zone capital credit under subpara- graph (C) of paragraph one of this subdivision for additional contrib- utions made prior to April first, two thousand fourteen and certified by the commissioner of economic development to that community development project as payment of a commitment made by the taxpayer to that communi- ty development project before the empire zones expired, PROVIDED THAT THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER. S 10. This act shall take effect immediately and shall be deemed to be in full force and effect on and after August 11, 2010. PART D
Section 1. The tax law is amended by adding a new section 1613-c to read as follows: S 1613-C. CREDITING OF LOTTERY PRIZES AGAINST LIABILITIES FOR TAXES ADMINISTERED BY THE COMMISSIONER. (1) THE DIRECTOR, ON BEHALF OF THE DIVISION, SHALL ENTER INTO A WRITTEN AGREEMENT WITH THE COMMISSIONER, ON BEHALF OF THE DEPARTMENT, WITHIN SIXTY DAYS OF THE EFFECTIVE DATE OF THIS SECTION, WHICH WILL SET FORTH PROCEDURES FOR CREDITING LOTTERY PRIZES OF MORE THAN SIX HUNDRED DOLLARS AWARDED TO HOLDERS OF WINNING LOTTERY TICKETS, WHETHER INDIVIDUALS, CORPORATIONS, ASSOCIATIONS, COMPA- NIES, PARTNERSHIPS, LIMITED LIABILITY PARTNERSHIPS OR COMPANIES, PART- NERS, MEMBERS, MANAGERS, ESTATES, TRUST FIDUCIARIES OR ENTITIES, AGAINST PAST DUE TAX LIABILITIES OWED BY SUCH HOLDERS FOR ANY TAX ADMINISTERED BY THE COMMISSIONER, ABOUT WHICH THE DIRECTOR HAS BEEN NOTIFIED BY THE COMMISSIONER PURSUANT TO THE PROVISIONS OF SUCH AGREEMENT. (2) SUCH AGREEMENT SHALL APPLY TO ANY PAST DUE TAX LIABILITY WHICH ARISES FROM (I) AN ENFORCEABLE WARRANT OR JUDGMENT, (II) AN ENFORCEABLE DETERMINATION OF AN ADMINISTRATIVE BODY WHICH IS NO LONGER SUBJECT TO ADMINISTRATIVE OR JUDICIAL REVIEW, OR (III) AN ASSESSMENT OR DETERMI- NATION (INCLUDING SELF-ASSESSMENT OR SELF-ASSESSED DETERMINATION) WHICH HAS BECOME FINAL OR FINALLY AND IRREVOCABLY FIXED AND NO LONGER SUBJECT TO ADMINISTRATIVE OR JUDICIAL REVIEW. (3) SUCH AGREEMENT SHALL INCLUDE: (A) THE PROCEDURE UNDER WHICH THE DEPARTMENT WILL NOTIFY THE DIVISION OF TAX LIABILITIES, INCLUDING WHEN THE DIVISION WILL BE NOTIFIED AND THE CONTENT OF THAT NOTIFICATION; (B) THE PROCEDURE FOR REIMBURSEMENT OF THE DIVISION BY THE DEPARTMENT FOR THE COST OF CARRYING OUT THE PROCEDURES AUTHORIZED BY THIS SECTION; AND (C) ANY OTHER MATTERS THE PARTIES TO THE AGREEMENT DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SECTION. (4) PRIOR TO AWARDING LOTTERY PRIZES OF MORE THAN SIX HUNDRED DOLLARS, THE DIVISION SHALL REVIEW THE MOST RECENT NOTICE OF TAX LIABILITIES PROVIDED BY THE COMMISSIONER. FOR HOLDERS OF WINNING LOTTERY TICKETS IDENTIFIED ON THAT NOTICE, THE DIVISION SHALL CREDIT TO THE DEPARTMENT THE AMOUNT OF EACH HOLDER'S PRIZE NECESSARY TO SATISFY THAT HOLDER'S TAX LIABILITY, AND THE REMAINDER OF THE PRIZE SHALL BE AWARDED TO THE HOLDER OF THE WINNING TICKET. (5) IF THE DIVISION HAS ALSO RECEIVED A NOTICE OF LIABILITY OF A PRIZE WINNER FOR PAST-DUE SUPPORT OR PUBLIC ASSISTANCE BENEFITS PURSUANT TO SECTION SIXTEEN HUNDRED THIRTEEN-A OR SIXTEEN HUNDRED THIRTEEN-B OF THIS ARTICLE, THEN THE AMOUNT OF ANY PRIZE SHALL BE FIRST CREDITED OR APPLIED TO THE INCOME TAX REQUIRED TO BE WITHHELD BY LAW, THEN AS REQUIRED BY SECTION SIXTEEN HUNDRED THIRTEEN-A OR SIXTEEN HUNDRED THIRTEEN-B OF THIS ARTICLE, THEN TO THE PAST DUE TAX LIABILITY AS REQUIRED BY THIS SECTION. THE BALANCE WILL THEN BE PAID TO THE HOLDER OF THE WINNING LOTTERY TICK- ET. (6) THE DIVISION SHALL CERTIFY TO THE COMPTROLLER THE TOTAL AMOUNT OF THE LOTTERY PRIZE TO BE CREDITED AGAINST PAST DUE TAX LIABILITIES AND THE REMAINDER OF THE PRIZE TO BE AWARDED TO THE HOLDER OF THE WINNING LOTTERY TICKET. (7) THE DIVISION SHALL NOTIFY THE HOLDER OF THE WINNING LOTTERY TICK- ET, IN WRITING, OF THE TOTAL AMOUNT OF THE LOTTERY PRIZE CREDITED AGAINST PAST DUE TAX LIABILITIES AND THE REMAINDER OF THE PRIZE TO BE AWARDED TO THE HOLDER. THAT NOTICE MUST ALSO ADVISE THE HOLDER THAT THE DEPARTMENT WILL PROVIDE SEPARATE NOTICE, IN WRITING, OF THE PROCEDURE FOR AND TIME FRAME BY WHICH THE HOLDER MAY CONTEST SUCH CREDITING.
(8) THE DEPARTMENT SHALL NOTIFY THE HOLDER OF THE WINNING LOTTERY TICKET, IN WRITING, OF THE AMOUNT OF A PRIZE TO BE CREDITED AGAINST PAST DUE TAX LIABILITIES AND THE PROCEDURE FOR AND TIME FRAME BY WHICH THE HOLDER MAY CONTEST THE CREDITING OF THE PRIZE. (9) FROM THE TIME THE DIVISION IS NOTIFIED BY THE DEPARTMENT OF A PAST DUE TAX LIABILITY OF A HOLDER OF A WINNING LOTTERY TICKET, THE DIVISION SHALL BE RELIEVED FROM ALL LIABILITY TO THE HOLDER, AND THE HOLDER'S HEIRS, REPRESENTATIVES, ESTATE, SUCCESSORS OR ASSIGNS FOR THE AMOUNT OF A PRIZE CERTIFIED TO THE COMPTROLLER TO BE CREDITED AGAINST PAST DUE TAX LIABILITIES AND THE HOLDER AND THE HOLDER'S HEIRS, REPRESENTATIVES, ESTATE, SUCCESSOR OR ASSIGNS SHALL HAVE NO RIGHT TO COMMENCE A COURT ACTION OR PROCEEDING OR TO ANY OTHER LEGAL RECOURSE AGAINST THE DIVISION TO RECOVER ANY AMOUNT CERTIFIED TO THE COMPTROLLER TO BE CREDITED AGAINST PAST DUE TAX LIABILITIES. PROVIDED HOWEVER, NOTHING HEREIN SHALL BE CONSTRUED TO PROHIBIT A HOLDER OF A WINNING LOTTERY TICKET AND THE HOLDER'S HEIRS, REPRESENTATIVES, ESTATE, SUCCESSORS OR ASSIGNS FROM PROCEEDING AGAINST THE DEPARTMENT TO RECOVER THE PART OF THE PRIZE CERTIFIED TO THE COMPTROLLER AND CREDITED TO PAST DUE TAX LIABILITIES WHICH IS GREATER THAN THE AMOUNT OF PAST DUE TAX LIABILITIES OWED BY THAT HOLDER ON THE DATE OF CERTIFICATION. (10) NOTWITHSTANDING ANY LAW TO THE CONTRARY, THE DEPARTMENT AND ITS OFFICERS AND EMPLOYEES MAY FURNISH TO THE DIVISION ANY ABSTRACT OF ANY TAX RETURN OR REPORT, OR ANY INFORMATION CONCERNING AN ITEM CONTAINED IN ANY SUCH RETURN OR REPORT OR DISCLOSED BY ANY INVESTIGATION OF TAX LIABILITY UNDER THIS CHAPTER, BUT ONLY FOR THE PURPOSE OF CREDITING LOTTERY PRIZES AGAINST PAST DUE TAX LIABILITIES DESCRIBED IN SUBDIVISION TWO OF THIS SECTION. S 2. This act shall take effect on the first of August next succeeding the date on which it shall have become a law, provided that the depart- ment of taxation and finance and the division of the lottery may take steps to effectuate the written agreement between the director of the division of the lottery and the commissioner of taxation and finance prior to such effective date. PART E Section 1. Paragraph c of subdivision 2 of section 124 of part A of chapter 56 of the laws of 1998, amending the tax law and other laws relating to extending the dates of application of the investment tax credit under articles 9-A, 22 and 32 of the tax law, as amended by section 1 of part YY-1 of chapter 57 of the laws of 2008, is amended to read as follows: c. Sections fifteen through twenty-seven of this act shall apply to property placed in service on or after October 1, 1998 and before Octo- ber 1, [2011] 2015. S 2. Section 2 of part L of chapter 63 of the laws of 2000, amending the tax law and other laws relating to extending the dates of applica- tion of the investment tax credit under article 33 of the tax law, as amended by section 2 of part YY-1 of chapter 57 of the laws of 2008, is amended to read as follows: S 2. This act shall take effect immediately and shall apply to proper- ty placed in service on or after January 1, 2002 and before October 1, [2011] 2015. S 3. This act shall take effect immediately. PART F
Section 1. Subdivision 4 of section 22 of the public housing law, as amended by section 1 of part P of chapter 57 of the laws of 2010, is amended to read as follows: 4. Statewide limitation. The aggregate dollar amount of credit which the commissioner may allocate to eligible low-income buildings under this article shall be [twenty-eight] THIRTY-TWO million dollars. The limitation provided by this subdivision applies only to allocation of the aggregate dollar amount of credit by the commissioner, and does not apply to allowance to a taxpayer of the credit with respect to an eligi- ble low-income building for each year of the credit period. S 2. This act shall take effect immediately. PART G Section 1. Subdivision 12 of section 352 of the economic development law, as added by section 1 of part MM of chapter 59 of the laws of 2010, is amended to read as follows: 12. "Preliminary schedule of benefits" means the maximum aggregate amount of each component of the tax credit that a participant in the excelsior jobs program is eligible to receive pursuant to this article. The schedule shall indicate the annual amount of each component of the credit a participant may claim in each of its [five] TEN years of eligi- bility. The preliminary schedule of benefits shall be issued by the department when the department approves the application for admission into the program. The commissioner may amend that schedule, provided that the commissioner complies with the credit caps in section three hundred fifty-nine of this article. S 2. Section 353 of the economic development law, as added by section 1 of part MM of chapter 59 of the laws of 2010, is amended to read as follows: S 353. Eligibility criteria. 1. To be a participant in the excelsior jobs program, a business entity shall operate in New York state predomi- nantly: (a) as a financial services data center or a financial services back office operation; (b) in manufacturing; (c) in software development and new media; (d) in scientific research and development; (e) in agriculture; (f) in the creation or expansion of back office operations in the state; (g) in a distribution center; or (h) in an industry with significant potential for private-sector economic growth and development in this state as established by the commissioner in regulations promulgated pursuant to this article. In promulgating such regulations the commissioner shall include job and investment criteria. 2. WHEN DETERMINING WHETHER AN APPLICANT IS OPERATING PREDOMINATELY IN ONE OF THE INDUSTRIES LISTED IN SUBDIVISION ONE OF THIS SECTION, THE COMMISSIONER WILL EXAMINE THE NATURE OF THE BUSINESS ACTIVITY AT THE LOCATION FOR THE PROPOSED PROJECT AND WILL MAKE ELIGIBILITY DETERMI- NATIONS BASED ON SUCH ACTIVITY. 3. For the purposes of this article, in order to participate in the excelsior jobs program, a business entity operating predominantly in manufacturing must create at least twenty-five net new jobs; a business entity operating predominately in agriculture must create at least ten
net new jobs; a business entity operating predominantly as a financial service data center or financial services customer back office operation must create at least one hundred net new jobs; a business entity operat- ing predominantly in scientific research and development must create at least ten net new jobs; a business entity operating predominantly in software development must create at least ten net new jobs; a business entity creating or expanding back office operations or a distribution center in the state must create at least one hundred fifty net new jobs, notwithstanding subdivision [four] FIVE of this section; or a business entity must be a regionally significant project as defined in this arti- cle; or [3.] 4. A business entity operating predominantly in one of the indus- tries referenced in paragraphs (a) through (h) of subdivision one of this section but which does not meet the job requirements of subdivision [two] THREE of this section must have at least fifty full-time job equivalents and must demonstrate that its benefit-cost ratio is at least ten to one. [4.] 5. A not-for-profit business entity, a business entity whose primary function is the provision of services including personal services, business services, or the provision of utilities, and a busi- ness entity engaged predominantly in the retail or entertainment indus- try, and a company engaged in the generation or distribution of elec- tricity, the distribution of natural gas, or the production of steam associated with the generation of electricity are not eligible to receive the tax credit described in this article. [5.] 6. A business entity must be in compliance with all worker protection and environmental laws and regulations. In addition, a busi- ness entity may not owe past due state taxes or local property taxes. S 3. Section 354 of the economic development law, as added by section 1 of part MM of chapter 59 of the laws of 2010, is amended to read as follows: S 354. Application and approval process. 1. A business enterprise must submit a completed application as prescribed by the commissioner. An application may be recommended by entities, including but not limited to, those created pursuant to subdivision (e) of section nine hundred fifty-seven of the general municipal law. 2. As part of such application, each business enterprise must: (a) Agree to allow the department of taxation and finance to share its tax information with the department. However, any information shared as a result of this agreement shall not be available for disclosure or inspection under the state freedom of information law. (b) Agree to allow the department of labor to share its tax and employer information with the department. However, any information shared as a result of this agreement shall not be available for disclo- sure or inspection under the state freedom of information law. (c) Allow the department and its agents access to any and all books and records the department may require to monitor compliance. (d) Agree to be permanently [decertified from the empire zones program if admitted into the excelsior jobs program, effective for the first taxable year that the business enterprise may claim the excelsior jobs program credit and for all subsequent taxable years] DISQUALIFIED FOR EMPIRE ZONE BENEFITS AT ANY LOCATION OR LOCATIONS THAT QUALIFY FOR EXCELSIOR JOBS PROGRAM BENEFITS IF ADMITTED INTO THE EXCELSIOR JOBS PROGRAM. (e) Provide the following information to the department upon request:
(i) a plan outlining the schedule for meeting the job and investment requirements as set forth in subdivisions [two] THREE and [three] FOUR of section three hundred fifty-three of this article. Such plan must include details on job titles and expected salaries; (ii) the prior three years of federal and state income or franchise tax returns, unemployment insurance quarterly returns, real property tax bills and audited financial statements; (iii) the amount and description of projected qualified investments for which it plans to claim the excelsior investment tax credit; (iv) an estimate of the portion of any federal research and develop- ment tax credits, attributable to research and development activities conducted in New York state, that it anticipates claiming for the years it expects to claim the excelsior research and development credit; and (v) the employer identification or social security numbers for all related persons to the applicant, including those of any members of a limited liability company or partners in a partnership. (f) Provide a clear and detailed presentation of all related persons to the applicant to assure the department that jobs are not being shift- ed within the state. (g) Certify, under penalty of perjury, that it is in substantial compliance with all environmental, worker protection, and local, state, and federal tax laws. 3. After reviewing a business enterprise's completed application and determining that the business enterprise will meet the conditions set forth in subdivisions [two] THREE and [three] FOUR of section three hundred fifty-three of this article, the department may admit the appli- cant into the program and provide the applicant with a certificate of eligibility and a preliminary schedule of benefits by year based on the applicant's projections as set forth in its application. This prelimi- nary schedule of benefits delineates the maximum possible benefits an applicant may receive. 4. In order to become a participant in the program, an applicant must submit evidence [of achieving job and investment requirements] THAT IT SATISFIES THE ELIGIBILITY CRITERIA SPECIFIED IN SECTION THREE HUNDRED FIFTY-THREE OF THIS ARTICLE AND SUBDIVISION TWO OF THIS SECTION in such form as the commissioner may prescribe. After reviewing such evidence and finding it sufficient, the department shall certify the applicant as a participant and issue to that participant a certificate of tax credit for one taxable year. To receive a certificate of tax credit for subse- quent taxable years, the participant must submit to the department a performance report DEMONSTRATING THAT THE PARTICIPANT CONTINUES TO SATISFY THE ELIGIBILITY CRITERIA SPECIFIED IN SECTION THREE HUNDRED FIFTY-THREE OF THIS ARTICLE AND SUBDIVISION TWO OF THIS SECTION. IF SUCH ELIGIBILITY CRITERIA IS MET, A PARTICIPANT CAN RECEIVE TAX CREDITS BASED ON INTERIM JOB, INVESTMENT OR RESEARCH AND DEVELOPMENT MILESTONES. A participant's increase in employment, qualified investment, or federal research and development tax credit attributable to research and devel- opment activities in New York state above its projections listed in its application shall not result in an increase in tax benefits under this article. However, if the participant's expenditures are less than the estimated amounts, the credit shall be less than the estimate. 5. A participant may claim tax benefits commencing in the first taxa- ble year that the business enterprise receives a certificate of tax credit or the first taxable year listed on its preliminary schedule of benefits, whichever is later. A participant may claim such benefits for the next [four] NINE consecutive taxable years, provided that the
participant demonstrates to the department that it continues to satisfy the eligibility criteria specified in section three hundred fifty-three of this article and subdivision two of this section in each of those taxable years. S 4. Section 355 of the economic development law, as added by section 1 of part MM of chapter 59 of the laws of 2010, is amended to read as follows: S 355. Excelsior jobs program credit. 1. Excelsior jobs tax credit component. A participant in the excelsior jobs program shall be eligible to claim a credit for each net new job it creates in New York state. The amount of such credit per job shall be equal to the [sum of the follow- ing: five percent of the amount of remuneration equal to or less than fifty thousand dollars; four percent of the amount of remuneration in excess of fifty thousand dollars and equal to or less than seventy-five thousand dollars; and 1.33 percent of the amount of remuneration in excess of seventy-five thousand dollars. However, the amount of the credit for each net new job shall not exceed five thousand dollars] PRODUCT OF THE GROSS WAGES PAID AND 6.85 PERCENT. 2. Excelsior investment tax credit component. A participant in the excelsior jobs program shall be eligible to claim a credit on qualified investments. The credit shall be equal to two percent of the cost or other basis for federal income tax purposes of the qualified investment. A participant may not claim both the excelsior investment tax credit component and the investment tax credit set forth in subdivision twelve of section two hundred ten, subsection (a) of section six hundred six, [or] subsection (i) of section fourteen hundred fifty-six, OR SUBDIVI- SION (Q) OF SECTION FIFTEEN HUNDRED ELEVEN of the tax law for the same property in any taxable year, EXCEPT THAT A PARTICIPANT MAY CLAIM BOTH THE EXCELSIOR INVESTMENT TAX CREDIT COMPONENT AND THE INVESTMENT TAX CREDIT FOR RESEARCH AND DEVELOPMENT PROPERTY. In addition, a taxpayer who or which is qualified to claim the excelsior investment tax credit component and is also qualified to claim the brownfield tangible proper- ty credit component under section twenty-one of the tax law may claim either the excelsior investment tax credit component or such tangible property credit component, but not both with regard to a particular piece of property. A credit may not be claimed until a business enter- prise has received a certificate of tax credit, provided that qualified investments made on or after the issuance of the certificate of eligi- bility but before the issuance of the certificate of tax credit to the business enterprise, may be claimed in the first taxable year for which the business enterprise is allowed to claim the credit. Expenses incurred prior to the date the certificate of eligibility is issued are not eligible to be included in the calculation of the credit. 3. Excelsior research and development tax credit component. A partic- ipant in the excelsior jobs program shall be eligible to claim a credit equal to [ten] FIFTY percent of the portion of the participant's federal research and development tax credit that relates to the participant's research and development expenditures in New York state during the taxa- ble year; PROVIDED HOWEVER, THE EXCELSIOR RESEARCH AND DEVELOPMENT TAX CREDIT SHALL NOT EXCEED THREE PERCENT OF THE QUALIFIED RESEARCH AND DEVELOPMENT EXPENDITURES ATTRIBUTABLE TO ACTIVITIES CONDUCTED IN NEW YORK STATE. If the federal research and development credit has expired, then the research and development expenditures relating to the federal research and development credit shall be calculated as if the federal research and development credit structure and definition in effect in two thousand nine were still in effect. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS CHAPTER TO THE CONTRARY, RESEARCH AND DEVELOPMENT EXPENDITURES IN THIS STATE, INCLUDING SALARY OR WAGE EXPENSES FOR JOBS RELATED TO RESEARCH AND DEVELOPMENT ACTIVITIES IN THIS STATE, MAY BE USED AS THE BASIS FOR THE EXCELSIOR RESEARCH AND DEVELOPMENT TAX CREDIT COMPONENT AND THE QUALIFIED EMERGING TECHNOLOGY COMPANY FACILITIES, OPERATIONS AND TRAINING CREDIT UNDER THE TAX LAW. 4. Excelsior real property tax credit COMPONENT. (A) A participant in the excelsior jobs program who either qualified as a regionally signif- icant project or is located in an investment zone shall be eligible to claim a credit for a period of [five] TEN years. (B) The credit IN YEAR ONE shall be equal to fifty percent of the eligible real property taxes on the real property comprising the regionally significant project or located in the investment zone [that were assessed and paid in the year immediately prior to application]. In the remaining years the credit shall be computed according to the following schedule: Year two: [forty] FORTY-FIVE percent of eligible real property taxes on the real property comprising the regionally significant project or located in the investment zone [that were assessed and paid in the year immediately prior to application]; Year three: [thirty] FORTY percent of eligible real property taxes on the real property comprising the regionally significant project or located in the investment zone [that were assessed and paid in the year immediately prior to application]; Year four: [twenty] THIRTY-FIVE percent of eligible real property taxes on real property comprising the regionally significant project or located in the investment zone [that were assessed and paid in the year immediately prior to application]; [and] Year five: [ten] THIRTY percent of eligible real property taxes on the real property comprising the regionally significant project or located in the investment zone [that were assessed and paid in the year imme- diately prior to application]; YEAR SIX: TWENTY-FIVE PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE INVESTMENT ZONE; YEAR SEVEN: TWENTY PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE INVESTMENT ZONE; YEAR EIGHT: FIFTEEN PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE INVESTMENT ZONE; YEAR NINE: TEN PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE INVESTMENT ZONE; AND YEAR TEN: FIVE PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE INVESTMENT ZONE. (C) For purposes of this credit, the term "eligible real property taxes" shall have the same meaning as in subdivision (e) of section fifteen of the tax law, provided that such subdivision (e) shall be read as if it specifically referenced the excelsior jobs program and partic- ipants in that program. (D) IN CALCULATING THE EXCELSIOR REAL PROPERTY TAX CREDIT AND DETER- MINING THE MAXIMUM AGGREGATE AMOUNT OF SUCH CREDIT COMPONENT IN THE PRELIMINARY SCHEDULE OF BENEFITS, THE COMMISSIONER SHALL INCLUDE ANY IMPROVEMENTS PROJECTED TO BE MADE BY THE TAXPAYER TO THE PROPERTY
COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE INVEST- MENT ZONE AS LISTED IN ITS APPLICATION FOR PARTICIPATION IN THE EXCELS- IOR JOBS PROGRAM. 5. Refundability of credits. The tax credit components established in this section shall be refundable as provided in the tax law. If a participant fails to satisfy the eligibility criteria in any one year, it will lose the ability to claim credit for that year. The event of such failure shall not extend the original [five-year] TEN-YEAR eligi- bility period. 6. Claim of tax credit. The business enterprise shall be allowed to claim the credit as prescribed in section thirty-one of the tax law. 7. FOR AVAILABILITY OF SPECIAL EXCELSIOR JOBS PROGRAM RATES GOVERNING THE PROVISION OF GAS OR ELECTRIC SERVICE, SEE SUBDIVISION TWELVE-D OF SECTION SIXTY-SIX OF THE PUBLIC SERVICE LAW. SUCH SPECIAL EXCELSIOR JOBS PROGRAM RATES MAY REMAIN AVAILABLE TO PARTICIPANTS AS DEFINED IN THIS ARTICLE FOR A PERIOD OF UP TO TEN YEARS COMMENCING IN THE FIRST TAXABLE YEAR THAT THE PARTICIPANT RECEIVES A CERTIFICATE OF TAX CREDIT, OR THE FIRST TAXABLE YEAR LISTED ON ITS PRELIMINARY SCHEDULE OF BENEFITS, WHICHEVER IS LATER. PROVIDED HOWEVER, IF A PARTICIPANT IS REMOVED FROM THE EXCELSIOR JOBS PROGRAM PURSUANT TO THIS ARTICLE, THE EXCELSIOR JOBS PROGRAM RATES MAY BE DENIED. S 5. Subdivision 3 of section 356 of the economic development law, as added by section 1 of part MM of chapter 59 of the laws of 2010, is amended to read as follows: 3. The commissioner shall solely determine the eligibility of any applicant applying for entry into the program and shall remove any participant from the program for failing to meet any of the requirements set forth in subdivision two of section three hundred fifty-four of this article, or for failing to meet the minimum job or investment require- ments set forth in subdivisions [two] THREE and [three] FOUR of section three hundred fifty-three of this article. S 6. Section 359 of the economic development law, as added by section 1 of part MM of chapter 59 of the laws of 2010, is amended to read as follows: S 359. Cap on tax credit. The total amount of tax credits listed on certificates of tax credit issued by the commissioner for any taxable year may not exceed the limitations set forth in this section. Any amount of tax credits not awarded for a particular taxable year may not be used by the commissioner to award tax credits in another taxable year. Credit components in the aggregate With respect to shall not exceed: taxable years beginning in: $ 50 million 2011 $ 100 million 2012 $ 150 million 2013 $ 200 million 2014 $ 250 million 2015 $ [200] 250 million 2016 $ [150] 250 million 2017 $ [100] 250 million 2018 $ [50] 250 million 2019 $ 250 MILLION 2020 $ 200 MILLION 2021
$ 150 MILLION 2022 $ 100 MILLION 2023 $ 50 MILLION 2024 Twenty-five percent of tax credits shall be allocated to businesses accepted into the program under subdivision [three] FOUR of section three hundred fifty-three of this article and seventy-five percent of tax credits shall be allocated to businesses accepted into the program under subdivision [two] THREE of section three hundred fifty-three of this article. Provided, however, if by September thirtieth of a calendar year, the department has not allocated the full amount of credits available in that year to either: (i) businesses accepted into the program under subdivision [three] FOUR of section three hundred fifty-three of this article or (ii) businesses accepted into the program under subdivision [two] THREE of section three hundred fifty-three of this article, the commissioner may allocate any remaining tax credits to businesses refer- enced in paragraphs (i) and (ii) of this section as needed; provided, however, that under no circumstances may the statutory cap be exceeded. S 7. Subdivisions (a), (b) and (f) of section 31 of the tax law, as added by section 2 of part MM of chapter 59 of the laws of 2010, are amended to read as follows: (a) General. A taxpayer subject to tax under article nine-A, twenty- two, thirty-two or thirty-three of this chapter shall be allowed a cred- it against such tax, pursuant to the provisions referenced in subdivi- sion (g) of this section. The amount of the credit, allowable for up to [five] TEN consecutive taxable years, is the sum of the following four credit components: (1) the excelsior jobs tax credit COMPONENT; (2) the excelsior investment tax credit COMPONENT; (3) the excelsior research and development tax credit COMPONENT; and (4) the excelsior real property tax credit COMPONENT. (b) To be eligible for the excelsior jobs program credit, the taxpayer shall have been issued a "certificate of tax credit" by the department of economic development pursuant to subdivision four of section three hundred fifty-four of the economic development law, which certificate shall set forth the amount of each credit component that may be claimed for the taxable year. A taxpayer may claim such credit for [five] TEN consecutive taxable years commencing in the first taxable year that the taxpayer receives a certificate of tax credit or the first taxable year listed on its preliminary schedule of benefits, whichever is later. The taxpayer shall be allowed to claim only the amount listed on the certif- icate of tax credit for that taxable year. Such certificate [should] MUST be attached to the taxpayer's return. No cost or expense paid or incurred by the taxpayer shall be the basis for more than one component of this credit or any other tax credit, EXCEPT AS PROVIDED IN SECTION THREE HUNDRED FIFTY-FIVE OF THE ECONOMIC DEVELOPMENT LAW. (f) Credit recapture. If a certificate of eligibility or a certificate of tax credit issued by the department of economic development under article seventeen of the economic development law is revoked by such department BECAUSE THE TAXPAYER DOES NOT MEET THE ELIGIBILITY REQUIRE- MENT SET FORTH IN SUBDIVISION SIX OF SECTION THREE HUNDRED FIFTY-THREE OF THE ECONOMIC DEVELOPMENT LAW, the amount of credit described in this section and claimed by the taxpayer prior to that revocation shall be added back to income in the taxable year in which any such revocation becomes final.
S 8. Section 66 of the public service law is amended by adding a new subdivision 12-d to read as follows: 12-D. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, UPON APPLICATION OF A GAS OR ELECTRIC CORPORATION, THE COMMISSION SHALL AUTHORIZE SUCH CORPORATION TO CHARGE A SPECIAL EXCELSIOR JOBS PROGRAM RATE EQUAL TO THE INCREMENTAL COST OF PROVIDING SERVICE TO PARTICIPANTS IN THE EXCELSIOR JOBS PROGRAM AS DEFINED IN ARTICLE SEVENTEEN OF THE ECONOMIC DEVELOPMENT LAW. S 9. This act shall take effect immediately. PART H Section 1. Paragraph 7 of subdivision (a) of section 1512 of the tax law, as amended by chapter 817 of the laws of 1987, is amended to read as follows: (7) a town or county cooperative insurance corporation as heretofore contemplated by section one hundred eighty-seven of this chapter in effect immediately prior to January first, nineteen hundred seventy-four, THAT ACCURATELY AND IN ACCORDANCE WITH LAW REPORTED TO THE SUPERINTENDENT OF INSURANCE TOTAL DIRECT PREMIUMS WRITTEN FOR THE TAXA- BLE YEAR OF TWENTY-FIVE MILLION DOLLARS OR LESS. S 2. This act shall take effect immediately and apply to taxable years beginning on or after January 1, 2011. PART I Section 1. The opening paragraph of paragraph 1 of subsection (b) of section 1101 of the insurance law, as amended by chapter 614 of the laws of 1997, is amended to read as follows: Except as provided in paragraph two, three [or], three-a, OR SEVEN of this subsection, any of the following acts in this state, effected by mail from outside this state or otherwise, by any person, firm, associ- ation, corporation or joint-stock company shall constitute doing an insurance business in this state and shall constitute doing business in the state within the meaning of section three hundred two of the civil practice law and rules: S 2. Subparagraph (H) of paragraph 2 of subsection (b) of section 1101 of the insurance law is amended to read as follows: (H) transactions with respect to insurance contracts negotiated or placed pursuant to subsection (b) [or], (c), OR (J) of section two thou- sand one hundred seventeen of this chapter; S 3. Subsection (b) of section 1101 of the insurance law is amended by adding a new paragraph 7 to read as follows: (7)(A) NOTWITHSTANDING THE FOREGOING, THE MAKING OF A SWAP SHALL NOT CONSTITUTE DOING AN INSURANCE BUSINESS IN THIS STATE. (B) FOR THE PURPOSES OF THIS PARAGRAPH, "SWAP" SHALL HAVE THE MEANING SET FORTH IN 7 U.S.C. S 1A. S 4. Section 2101 of the insurance law is amended by adding two new subsections (w) and (x) to read as follows: (W) IN THIS ARTICLE, "STATE" MEANS THE DISTRICT OF COLUMBIA OR ANY STATE OR TERRITORY OF THE UNITED STATES. (X) IN THIS ARTICLE, WITH RESPECT TO EXCESS LINE INSURANCE AND EXCESS LINE BROKERS: (1) WITH RESPECT TO AN INSURED'S HOME STATE, "AFFILIATED GROUP" MEANS ANY GROUP OF ENTITIES THAT ARE ALL AFFILIATED. FOR THE PURPOSES OF THIS PARAGRAPH:
(A) "AFFILIATE" MEANS, WITH RESPECT TO AN INSURED, ANY ENTITY THAT CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH THE INSURED; AND (B) AN ENTITY HAS CONTROL OVER ANOTHER ENTITY IF THE ENTITY: (I) DIRECTLY OR INDIRECTLY OR ACTING THROUGH ONE OR MORE OTHER PERSONS OWNS, CONTROLS, OR HAS THE POWER TO VOTE TWENTY-FIVE PERCENT OR MORE OF ANY CLASS OF VOTING SECURITIES OF THE OTHER ENTITY; OR (II) CONTROLS IN ANY MANNER THE ELECTION OF A MAJORITY OF THE DIREC- TORS OR TRUSTEES OF THE OTHER ENTITY; (2) "EXEMPT COMMERCIAL PURCHASER" MEANS ANY PERSON PURCHASING COMMER- CIAL INSURANCE THAT, AT THE TIME OF PLACEMENT, MEETS THE FOLLOWING REQUIREMENTS: (A) THE PERSON EMPLOYS OR RETAINS A QUALIFIED RISK MANAGER TO NEGOTI- ATE INSURANCE COVERAGE; (B) THE PERSON HAS PAID AGGREGATE NATIONWIDE COMMERCIAL PROPERTY/CASUALTY INSURANCE PREMIUMS IN EXCESS OF ONE HUNDRED THOUSAND DOLLARS IN THE IMMEDIATELY PRECEDING TWELVE MONTHS; AND (C) (I) THE PERSON MEETS AT LEAST ONE OF THE FOLLOWING CRITERIA: (I) THE PERSON POSSESSES A NET WORTH IN EXCESS OF TWENTY MILLION DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO ITEM (II) OF THIS SUBPARAGRAPH; (II) THE PERSON GENERATES ANNUAL REVENUES IN EXCESS OF FIFTY MILLION DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO ITEM (II) OF THIS SUBPARAGRAPH; (III) THE PERSON EMPLOYS MORE THAN FIVE HUNDRED FULL-TIME OR FULL-TIME EQUIVALENT EMPLOYEES PER INDIVIDUAL INSURED OR IS A MEMBER OF AN AFFIL- IATED GROUP EMPLOYING MORE THAN ONE THOUSAND EMPLOYEES IN THE AGGREGATE; (IV) THE PERSON IS A NOT-FOR-PROFIT ORGANIZATION OR PUBLIC ENTITY GENERATING ANNUAL BUDGETED EXPENDITURES OF AT LEAST THIRTY MILLION DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO ITEM (II) OF THIS SUBPARAGRAPH; OR (V) THE PERSON IS A MUNICIPALITY WITH A POPULATION IN EXCESS OF FIFTY THOUSAND PERSONS; (II) EFFECTIVE ON THE FIFTH JANUARY FIRST OCCURRING AFTER JULY TWEN- TY-FIRST, TWO THOUSAND TEN AND EACH FIFTH JANUARY FIRST OCCURRING THERE- AFTER, THE AMOUNTS IN CLAUSES (I), (II), AND (IV) OF ITEM (I) OF THIS SUBPARAGRAPH SHALL BE ADJUSTED TO REFLECT THE PERCENTAGE CHANGE FOR SUCH FIVE-YEAR PERIOD IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS PUBLISHED BY THE BUREAU OF LABOR STATISTICS OF THE UNITES STATES DEPART- MENT OF LABOR; (3) "INSURED'S HOME STATE" MEANS: (A) THE STATE IN WHICH AN INSURED MAINTAINS ITS PRINCIPAL PLACE OF BUSINESS OR, IN THE CASE OF AN INDIVIDUAL, THE INDIVIDUAL'S PRINCIPAL RESIDENCE; (B) IF ONE HUNDRED PERCENT OF THE INSURED RISK IS LOCATED OUTSIDE OF THE STATE REFERRED TO IN SUBPARAGRAPH (A) OF THIS PARAGRAPH, THEN THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED; (C) IF MORE THAN ONE INSURED FROM AN AFFILIATED GROUP ARE NAMED INSUREDS ON A SINGLE INSURANCE CONTRACT, THEN THE INSURED'S HOME STATE, AS DETERMINED PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE MEMBER OF THE AFFILIATED GROUP THAT HAS THE LARGEST PERCENTAGE OF PREMI- UM ATTRIBUTED TO IT UNDER SUCH INSURANCE CONTRACT; OR (D) IN THE CASE OF A GROUP POLICY: (I) WHEN THE GROUP POLICYHOLDER PAYS ONE HUNDRED PERCENT OF THE PREMI- UM FROM ITS OWN FUNDS, THEN THE INSURED'S HOME STATE, AS DETERMINED
PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE GROUP POLICYHOLD- ER; OR (II) WHEN THE GROUP POLICYHOLDER DOES NOT PAY ONE HUNDRED PERCENT OF THE PREMIUM FROM ITS OWN FUNDS, THEN THE HOME STATE, AS DETERMINED PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE GROUP MEMBER; (4) WITH RESPECT TO DETERMINING AN INSURED'S HOME STATE, "PRINCIPAL PLACE OF BUSINESS" MEANS THE STATE WHERE: (A) THE INSURED MAINTAINS ITS HEADQUARTERS AND WHERE THE INSURED'S HIGH-LEVEL OFFICERS DIRECT, CONTROL, AND COORDINATE THE BUSINESS ACTIV- ITIES; OR (B) IF THE INSURED'S HIGH-LEVEL OFFICERS DIRECT, CONTROL, AND COORDI- NATE THE BUSINESS ACTIVITIES IN MORE THAN ONE STATE, OR IF THE INSURED'S PRINCIPAL PLACE OF BUSINESS IS LOCATED OUTSIDE ANY STATE, THEN THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED; (5) WITH RESPECT TO DETERMINING AN INSURED'S HOME STATE, "PRINCIPAL RESIDENCE" MEANS THE STATE: (A) WHERE THE INDIVIDUAL RESIDES FOR THE GREATEST NUMBER OF DAYS DURING A CALENDAR YEAR; OR (B) IF THE INSURED'S PRINCIPAL RESIDENCE IS LOCATED OUTSIDE ANY STATE, THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED; (6) "PROPERTY/CASUALTY INSURANCE" MEANS ANY KIND OF INSURANCE AS SPEC- IFIED IN SUBSECTION (A) OF SECTION ONE THOUSAND ONE HUNDRED THIRTEEN OF THIS CHAPTER, EXCEPT INSURANCE ISSUED PURSUANT TO PARAGRAPH ONE, TWO, THREE, FIFTEEN, EIGHTEEN OR THIRTY-ONE OF SUBSECTION (A) OF SECTION ONE THOUSAND ONE HUNDRED THIRTEEN OF THIS CHAPTER OR INSURANCE SUBSTANTIALLY SIMILAR THERETO; AND (7) WITH RESPECT TO AN EXEMPT COMMERCIAL PURCHASER, "QUALIFIED RISK MANAGER" MEANS, WITH RESPECT TO A POLICYHOLDER OF COMMERCIAL INSURANCE, A PERSON WHO MEETS ALL OF THE FOLLOWING REQUIREMENTS: (A) THE PERSON IS AN EMPLOYEE OF, OR THIRD-PARTY CONSULTANT RETAINED BY, THE COMMERCIAL POLICYHOLDER; (B) THE PERSON PROVIDES SKILLED SERVICES IN LOSS PREVENTION, LOSS REDUCTION, OR RISK AND INSURANCE COVERAGE ANALYSIS, AND PURCHASE OF INSURANCE; (C) THE PERSON: (I)(I) HAS A BACHELOR'S DEGREE OR HIGHER FROM AN ACCREDITED COLLEGE OR UNIVERSITY IN RISK MANAGEMENT, BUSINESS ADMINISTRATION, FINANCE, ECONOM- ICS, OR ANY OTHER FIELD DETERMINED BY THE SUPERINTENDENT TO DEMONSTRATE MINIMUM COMPETENCE IN RISK MANAGEMENT; AND (II)(AA) HAS THREE YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE ANALYSIS, OR PURCHASING COMMERCIAL LINES OF INSURANCE; OR (BB) HAS: (AAA) A DESIGNATION AS A CHARTERED PROPERTY AND CASUALTY UNDERWRITER (IN THIS CLAUSE REFERRED TO AS A "CPCU") ISSUED BY THE AMERICAN INSTI- TUTE FOR CPCU/INSURANCE INSTITUTE OF AMERICA; (BBB) A DESIGNATION AS AN ASSOCIATE IN RISK MANAGEMENT (ARM) ISSUED BY THE AMERICAN INSTITUTE FOR CPCU/INSURANCE INSTITUTE OF AMERICA; (CCC) A DESIGNATION AS CERTIFIED RISK MANAGER (CRM) ISSUED BY THE NATIONAL ALLIANCE FOR INSURANCE EDUCATION & RESEARCH; (DDD) A DESIGNATION AS A RISK AND INSURANCE MANAGEMENT SOCIETY (RIMS) FELLOW (RF) ISSUED BY THE GLOBAL RISK MANAGEMENT INSTITUTE; OR (EEE) ANY OTHER DESIGNATION, CERTIFICATION, OR LICENSE DETERMINED BY THE SUPERINTENDENT TO DEMONSTRATE MINIMUM COMPETENCY IN RISK MANAGEMENT;
(II) (I) HAS AT LEAST SEVEN YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE COVERAGE ANALYSIS, OR PURCHASING COMMERCIAL LINES OF INSURANCE; AND (II) HAS ANY ONE OF THE DESIGNATIONS SPECIFIED IN SUBCLAUSES (AAA) THROUGH (EEE) OF SUBITEM (BB) OF CLAUSE (II) OF ITEM (I) OF THIS SUBPAR- AGRAPH; (III) HAS AT LEAST TEN YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE COVERAGE ANALYSIS, OR PURCHASING COMMERCIAL LINES OF INSURANCE; OR (IV) HAS A GRADUATE DEGREE FROM AN ACCREDITED COLLEGE OR UNIVERSITY IN RISK MANAGEMENT, BUSINESS ADMINISTRATION, FINANCE, ECONOMICS, OR ANY OTHER FIELD DETERMINED BY THE SUPERINTENDENT TO DEMONSTRATE MINIMUM COMPETENCE IN RISK MANAGEMENT. S 5. Paragraphs 7 and 8 of subsection (c) of section 2101 of the insurance law, as added by chapter 687 of the laws of 2003, are amended and a new paragraph 9 is added to read as follows: (7) a person whose activities in this state are limited to advertising without the intent to solicit insurance in this state through communi- cations in printed publications or other forms of electronic mass media whose distribution is not limited to residents of the state, provided that the person does not sell, solicit or negotiate insurance that would insure risks residing, located or to be performed in this state; [or] (8) a person who is not a resident of this state who sells, solicits or negotiates a contract for commercial property/casualty risks to an insured with risks located in more than one state insured under that contract, provided that such person is otherwise licensed as an insur- ance producer to sell, solicit or negotiate that insurance in the state where the insured maintains its principal place of business and the contract of insurance insures risks located in that state[.]; OR (9) A PERSON WHO IS NOT A RESIDENT OF THIS STATE WHO SELLS, SOLICITS OR NEGOTIATES A CONTRACT OF PROPERTY/CASUALTY INSURANCE, AS DEFINED IN PARAGRAPH SIX OF SUBSECTION (X) OF THIS SECTION, TO OR FOR AN INSURED, WITH REGARD TO AN UNAUTHORIZED INSURER, PROVIDED THAT: (A) THE INSURED'S HOME STATE IS A STATE OTHER THAN THIS STATE; (B) SUCH PERSON IS OTHER- WISE LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE IN THE INSURED'S HOME STATE; AND (C) THE PERSON DOES NOT PERFORM THE DILIGENT SEARCH REQUIRED BY SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THIS ARTICLE. S 6. Paragraphs 9 and 10 of subsection (k) of section 2101 of the insurance law, as added by chapter 687 of the laws of 2003, are amended and a new paragraph 11 is added to read as follows: (9) a person who is not a resident of this state who sells, solicits or negotiates a contract of insurance for commercial property/casualty risks to an insured with risks located in more than one state insured under that contract, provided that such person is otherwise licensed as an insurance producer to sell, solicit or negotiate that insurance in the state where the insured maintains its principal place of business and the contract of insurance insures risks located in that state; [or] (10) any salaried full-time employee who counsels or advises his or her employer relative to the insurance interests of the employer or of the subsidiaries or business affiliates of the employer, provided that the employee does not sell or solicit insurance or receive a commis- sion[.]; OR (11) A PERSON WHO IS NOT A RESIDENT OF THIS STATE WHO SELLS, SOLICITS OR NEGOTIATES A CONTRACT OF PROPERTY/CASUALTY INSURANCE, AS DEFINED IN PARAGRAPH SIX OF SUBSECTION (X) OF THIS SECTION, TO OR FOR AN INSURED,
WITH REGARD TO AN UNAUTHORIZED INSURER, PROVIDED THAT: (A) THE INSURED'S HOME STATE IS A STATE OTHER THAN THIS STATE; (B) SUCH PERSON IS OTHER- WISE LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE IN THE INSURED'S HOME STATE; AND (C) THE PERSON DOES NOT PERFORM THE DILIGENT SEARCH REQUIRED BY SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THIS ARTICLE. S 7. Paragraph 1 of subsection (a) of section 2102 of the insurance law, as amended by chapter 499 of the laws of 2009, is amended to read as follows: (1) (A) No person, firm, association or corporation shall act as an insurance producer, insurance adjuster or life settlement broker in this state without having authority to do so by virtue of a license issued and in force pursuant to the provisions of this chapter. (B) NO PERSON, FIRM, ASSOCIATION OR CORPORATION SHALL ACT AS AN EXCESS LINE BROKER IN THIS STATE WITHOUT HAVING AUTHORITY TO DO SO BY VIRTUE OF A LICENSE ISSUED AND IN FORCE PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED FIVE OF THIS ARTICLE, PROVIDED, HOWEVER, THAT SUCH PERSON, FIRM, ASSOCIATION OR CORPORATION SHALL NOT BE REQUIRED TO BE LICENSED TO ACT AS AN EXCESS LINE BROKER WHERE THE INSURED'S HOME STATE IS A STATE OTHER THAN THIS STATE AND SUCH PERSON, FIRM, ASSOCIATION OR CORPORATION IS OTHERWISE LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE IN THE INSURED'S HOME STATE. S 8. Subsection (a) of section 2105 of the insurance law, as amended by chapter 626 of the laws of 2006, is amended to read as follows: (a) The superintendent may issue an excess line broker's license to any person, firm, association or corporation who or which [is domiciled or maintains an office in this state and] is licensed as an insurance broker under section two thousand one hundred four of this article, or who or which is licensed as an excess line broker in the licensee's home state, provided, however, that the applicant's home state grants non-re- sident licenses to residents of this state on the same basis, except that reciprocity is not required in regard to the placement of liability insurance on behalf of a purchasing group or any of its members; author- izing such person, firm, association or corporation to procure, subject to the restrictions herein provided, policies of insurance from insurers which are not authorized to transact business in this state of the kind or kinds of insurance specified in paragraphs four through fourteen, sixteen, seventeen, nineteen, twenty, twenty-two, twenty-seven, twenty- eight and thirty-one of subsection (a) of section one thousand one hundred thirteen of this chapter and in subsection (h) of this section, provided, however, that the provisions of this section and section two thousand one hundred eighteen of this article shall not apply to ocean marine insurance and other contracts of insurance enumerated in subsections (b) and (c) of section two thousand one hundred seventeen of this article. Such license may be suspended or revoked by the super- intendent whenever in his OR HER judgment such suspension or revocation will best promote the interests of the people of this state. S 9. Section 2117 of the insurance law is amended by adding a new subsection (j) to read as follows: (J) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, A PERSON WHO IS NOT A RESIDENT OF THIS STATE MAY SELL, SOLICIT OR NEGOTIATE A CONTRACT OF PROPERTY/CASUALTY INSURANCE TO OR FOR AN INSURED, WITH REGARD TO AN UNAUTHORIZED INSURER, PROVIDED THAT: (1) THE INSURED'S HOME STATE IS A STATE OTHER THAN THIS STATE; (2) THE PERSON IS LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE IN THE INSURED'S HOME STATE; AND (3) EITHER THE PERSON IS LICENSED AS AN INSURANCE BROKER IN THIS STATE OR
THE PERSON DOES NOT PERFORM THE DILIGENT SEARCH REQUIRED BY SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THIS ARTICLE. S 10. Paragraph 1 of subsection (b) of section 2118 of the insurance law, as amended by chapter 630 of the laws of 1988, is amended to read as follows: (1) Within [forty-five] THIRTY days after a policy is procured, a licensee shall submit the declarations page or cover note of every poli- cy procured under his or her license to the excess line association established pursuant to section two thousand one hundred thirty of this article for recording and stamping. In the event that no declarations page or cover note is available to the licensee, within [forty-five] THIRTY days after the policy is procured, the licensee shall submit a binder to the excess line association in lieu of such declarations page or cover note. In the event that a binder is submitted to the excess line association, the licensee shall submit the declarations page or cover note to the excess line association promptly upon receipt. Every insurance document submitted to the excess line association pursuant to this subsection shall set forth: (A) the name and address of the insured; (B) the gross premium charged; (C) the name of the unauthorized insurer; and (D) the kind of insurance procured. S 10-a. Paragraphs 8 and 9 of subsection (b) of section 2118 of the insurance law are REPEALED. S 11. Subparagraph (A) of paragraph 3 of subsection (b) of section 2118 of the insurance law, as amended by chapter 498 of the laws of 1996, is amended and a new subparagraph (F) is added to read as follows: (A) [The] EXCEPT AS PROVIDED IN SUBPARAGRAPH (F) OF THIS PARAGRAPH, submission of insurance documents to the excess line association shall be accompanied by a statement subscribed to, and affirmed by, the licen- see or sublicensee as true under the penalties of perjury that, after diligent effort, the full amount of insurance required could not be procured, from authorized insurers, each of which is authorized to write insurance of the kind requested and which the licensee has reason to believe might consider writing the type of coverage or class of insur- ance involved, and further showing that the amount of insurance procured from an unauthorized insurer is only the excess over the amount procura- ble from an authorized insurer. The licensee, however, shall be excused from affirming that a diligent effort, as defined above, was made to procure the coverage from authorized insurers if the licensee's affida- vit is accompanied by the affidavit of another broker involved in the placement affirming as true under the penalties of perjury that, after diligent effort by the affirming broker, the required insurance could not be procured from an authorized insurer which the affirming broker had reason to believe might consider writing the type of coverage or class of insurance involved. The licensee and the affirming broker shall be excused from affirming that a diligent effort was made if the super- intendent determines, pursuant to paragraph four of this subsection, that no declinations are required. (F) A LICENSEE SEEKING TO PROCURE OR PLACE INSURANCE IN THIS STATE FOR AN EXEMPT COMMERCIAL PURCHASER SHALL NOT BE REQUIRED TO SATISFY ANY REQUIREMENT OF THIS STATE TO MAKE A DUE DILIGENCE SEARCH TO DETERMINE WHETHER THE FULL AMOUNT OR TYPE OF INSURANCE SOUGHT BY THE EXEMPT COMMERCIAL PURCHASER CAN BE OBTAINED FROM AUTHORIZED INSURERS IF: (I) THE LICENSEE PROCURING OR PLACING THE EXCESS LINE INSURANCE HAS DISCLOSED TO THE EXEMPT COMMERCIAL PURCHASER THAT THE INSURANCE MAY OR
MAY NOT BE AVAILABLE FROM THE AUTHORIZED MARKET THAT MAY PROVIDE GREATER PROTECTION WITH MORE REGULATORY OVERSIGHT; AND (II) THE EXEMPT COMMERCIAL PURCHASER HAS SUBSEQUENTLY REQUESTED IN WRITING THAT THE LICENSEE PROCURE OR PLACE THE INSURANCE FROM AN UNAU- THORIZED INSURER. S 12. Subsection (d) of section 2118 of the insurance law, as amended by chapter 220 of the laws of 1986, paragraph 1 as amended by chapter 190 of the laws of 1990, is amended to read as follows: (d) (1) [Every] (A) WHERE THIS STATE IS THE INSURED'S HOME STATE, A person, firm, association or corporation licensed pursuant to the provisions of section two thousand one hundred five of this article shall pay to the superintendent a sum equal to three and six-tenths percent of the gross premiums charged the insureds by the insurers for insurance procured by such licensee pursuant to such license, less the amount of such premiums returned to such insureds. [Where the insurance covers property or risks located or resident both in and out of this state, the sum payable shall be computed on that portion of the gross premiums allocated to this state pursuant to subsection (b) of section nine thousand one hundred two of this chapter less the amount of gross premiums allocated to this state and returned to the insured.] (B) NOTWITHSTANDING SUBPARAGRAPH (A) OF THIS PARAGRAPH, IF THE SUPER- INTENDENT ENTERS INTO A NONADMITTED INSURANCE MULTI-STATE AGREEMENT ON BEHALF OF THIS STATE PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED THIR- TY-EIGHT OF THIS ARTICLE, THEN, WHERE THIS STATE IS THE INSURED'S HOME STATE, A PERSON, FIRM, ASSOCIATION OR CORPORATION LICENSED PURSUANT TO THE PROVISIONS OF SECTION TWO THOUSAND ONE HUNDRED FIVE OF THIS ARTICLE SHALL PAY TO THE SUPERINTENDENT, OR A CLEARINGHOUSE DESIGNATED BY THE SUPERINTENDENT, A SUM EQUAL TO: (I) THREE AND SIX-TENTHS PERCENT OF THE GROSS PREMIUMS ALLOCATED TO THIS STATE BASED ON THE ALLOCATION SCHEDULE SET FORTH IN THE NONADMITTED INSURANCE MULTI-STATE AGREEMENT AND ADOPTED BY THE SUPERINTENDENT PURSU- ANT TO A REGULATION; (II) THE PERCENTAGE SPECIFIED BY EACH OTHER STATE, WHICH HAS EXECUTED THE NONADMITTED INSURANCE MULTI-STATE AGREEMENT AND HAS NOT WITHDRAWN OR DEFAULTED, ON THE PORTION OF THE PREMIUM ALLOCATED TO THAT OTHER STATE BASED ON THE ALLOCATION SCHEDULE SET FORTH IN THE NONADMITTED INSURANCE MULTI-STATE AGREEMENT AND ADOPTED BY THE SUPERINTENDENT PURSUANT TO A REGULATION; AND (III) THREE AND SIX-TENTHS PERCENT OF THE GROSS PREMIUMS ON ANY PORTION OF THE PREMIUM NOT ALLOCATED UNDER ITEMS (I) AND (II) OF THIS SUBPARAGRAPH. (2) The amount of such payments which represents a sum equal to three percent of fire insurance premiums shall be distributed by the super- intendent as prescribed in section nine thousand one hundred five of this chapter, and the balance thereof shall be paid over by the super- intendent to the state treasurer. (3) Such licensee shall be required to make such payments to the superintendent QUARTERLY on the fifteenth day of [March of each year]: (A) FEBRUARY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY OF DECEMBER; (B) MAY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY OF MARCH; (C) AUGUST FOR THE QUARTER ENDING THE PRECEDING THIRTIETH DAY OF JUNE; AND (D) NOVEMBER FOR THE QUARTER ENDING THE PRECEDING THIRTIETH DAY OF SEPTEMBER, for the taxes on all policies procured by such licen- see, pursuant to such license, during the next preceding [calendar year] QUARTER, and on EACH such PAYMENT date such licensee shall also file with the superintendent a return in the form prescribed by the super-
intendent, showing such information as may be necessary for the proper distribution of such payments. S 13. Paragraph 5 of subsection (a) of section 2130 of the insurance law, as added by chapter 630 of the laws of 1988, is amended to read as follows: (5) prepare and deliver to each licensee and to the superintendent [annually] the reports of excess line business ON THE SEVENTH DAY OF: (A) FEBRUARY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY OF DECEMBER; (B) MAY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY OF MARCH; (C) AUGUST FOR THE QUARTER ENDING THE PRECEDING THIRTIETH DAY OF JUNE; AND (D) NOVEMBER FOR THE QUARTER ENDING THE PRECEDING THIRTIETH DAY OF SEPTEMBER, which reports shall include a delineation of the classes and kinds of business procured during the preceding calendar year in such form as the superintendent may prescribe; S 14. The insurance law is amended by adding a new section 2138 to read as follows: S 2138. NONADMITTED INSURANCE MULTI-STATE AGREEMENT. (A) FOR THE PURPOSES OF IMPLEMENTING THE FEDERAL NONADMITTED AND REINSURANCE REFORM ACT OF 2010, THE SUPERINTENDENT, IN CONSULTATION WITH THE COMMISSIONER OF TAXATION AND FINANCE, MAY ENTER INTO A NONADMITTED INSURANCE MULTI-STATE AGREEMENT ON BEHALF OF THIS STATE IN ORDER TO: (1) FACILITATE THE PAYMENT AND ALLOCATION AMONGST STATES OF EXCESS LINE PREMIUM TAXES AND TAXES ON INDEPENDENTLY PROCURED INSURANCE ATTRIB- UTABLE TO THE PLACEMENT OF INSURANCE WITH UNAUTHORIZED INSURERS IN ACCORDANCE WITH THE PREMIUM TAX ALLOCATION SCHEDULE AND ALLOCATION FORMULA SET FORTH IN A NONADMITTED INSURANCE MULTI-STATE AGREEMENT AND BASED ON RATES ESTABLISHED BY EACH STATE; (2) ADOPT NATIONWIDE UNIFORM REQUIREMENTS, FORMS, AND PROCEDURES THAT FACILITATE THE REPORTING, PAYMENT, COLLECTION, AND ALLOCATION OF EXCESS LINE PREMIUM TAXES AND TAXES ON INDEPENDENTLY PROCURED INSURANCE WITH REGARD TO INSURANCE PLACED WITH AN UNAUTHORIZED INSURER; AND (3) COORDINATE REPORTING OF EXCESS LINE PREMIUM TAXES AND TAXES ON INDEPENDENTLY PROCURED INSURANCE AND TRANSACTION DATA AMONG STATES. (B) THE SUPERINTENDENT MAY PARTICIPATE IN THE CLEARINGHOUSE DESIGNATED PURSUANT TO A NONADMITTED INSURANCE MULTI-STATE AGREEMENT THAT THE SUPERINTENDENT HAS ENTERED INTO ON BEHALF OF THIS STATE FOR THE PURPOSE OF COLLECTING AND ALLOCATING TO STATES EXCESS LINE PREMIUM TAXES AND TAXES ON INDEPENDENTLY PROCURED INSURANCE WITH REGARD TO INSURANCE PLACED WITH AN UNAUTHORIZED INSURER. (C) IF THE SUPERINTENDENT ENTERS INTO A NONADMITTED INSURANCE MULTI-STATE AGREEMENT ON BEHALF OF THIS STATE, THEN THE SUPERINTENDENT SHALL ADOPT BY REGULATION THE PREMIUM TAX ALLOCATION SCHEDULE SET FORTH IN THE NONADMITTED INSURANCE MULTI-STATE AGREEMENT AND ANY AMENDMENTS THERETO. (D) THE SUPERINTENDENT MAY WITHDRAW THIS STATE FROM PARTICIPATION IN A NONADMITTED INSURANCE MULTI-STATE AGREEMENT BY PROVIDING SIXTY DAYS WRITTEN NOTICE TO THE CLEARINGHOUSE DESIGNATED BY THE NONADMITTED INSUR- ANCE MULTI-STATE AGREEMENT IF THE SUPERINTENDENT, IN CONSULTATION WITH THE COMMISSIONER OF TAXATION AND FINANCE, DETERMINES THAT THIS STATE'S PARTICIPATION IN THE NONADMITTED INSURANCE MULTI-STATE AGREEMENT IS NO LONGER IN THE BEST INTERESTS OF THE PEOPLE OF THIS STATE. S 15. Section 9102 of the insurance law, as amended by chapter 190 of the laws of 1990, subsection (c) as amended by chapter 73 of the laws of 1991, is amended to read as follows: S 9102. Allocation of premiums. [(a)] In determining the amount of direct premiums taxable in this state, all such premiums written,
procured, or received in this state shall be deemed written on property or risks located or resident in this state except such premiums properly allocated and reported as taxable premiums of any other state or states. [(b) (1) In determining the amount of gross premiums taxable in this state pursuant to paragraph one of subsection (d) of section two thou- sand one hundred eighteen of this chapter, where a placement of excess line insurance covers property or risks located or resident both in and out of this state, the sum paid to the superintendent shall be computed on that portion of the policy premium that is attributable to property or risks located or resident in this state, as determined by reference to an allocation schedule prescribed by the superintendent in a regu- lation. (2) If the allocation schedule does not identify a classification appropriate to the property or risk being insured, an alternative method of equitable allocation shall be used for such coverage. In that circum- stance, documented evidence of the underwriting bases and other criteria used by the insurer shall be given significant weight by the superinten- dent. (3) The licensee shall report the method of allocation utilized in a form and in a manner prescribed by the superintendent in a regulation. Where the licensee bases the allocation on an alternative method of equitable allocation, such licensee shall provide additional information in support of the allocation as the superintendent may require. (4) If the superintendent reasonably determines that the information provided is insufficient to substantiate the method of allocation or that the method used is incorrect, the superintendent shall determine the sum to be paid in accordance with the method prescribed by the superintendent in the regulation. The superintendent's determination of the sum to be paid shall finally and irrevocably fix the tax unless, within thirty days of notification of the superintendent's determi- nation, the licensee requests a hearing to dispute such determination. (c) (1) Any licensee who allocated the premium tax for any of the six years prior to the effective date of this subsection shall not be liable for the payment of any additional premium tax that would have been due had the licensee not allocated, unless the superintendent determines that the method of allocation was inequitable. (2) The superintendent's determination under this subsection shall be in accordance with the procedures in paragraph four of subsection (b) of this section. Documented evidence of the underwriting bases and other criteria used by the insurer shall be given significant weight by the superintendent. (3) Nothing in this subsection shall entitle a licensee to a refund of taxes previously paid.] S 16. The general municipal law is amended by adding a new section 25 to read as follows: S 25. PROCUREMENT OF EXCESS LINE INSURANCE. NOTWITHSTANDING SUBPARA- GRAPH (F) OF PARAGRAPH THREE OF SUBSECTION (B) OF SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THE INSURANCE LAW, A MUNICIPALITY WITH A POPU- LATION OF LESS THAN ONE HUNDRED THOUSAND PERSONS MAY NOT REQUEST THAT AN EXCESS LINE BROKER PROCURE OR PLACE INSURANCE FROM AN UNAUTHORIZED INSURER UNLESS THE EXCESS LINE BROKER OBTAINS THE DECLINATIONS REQUIRED BY SUBSECTION (B) OF SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THE INSURANCE LAW. S 17. Subdivision 1 of section 171-a of the tax law, as amended by section 1 of part R of chapter 60 of the laws of 2004, is amended to read as follows:
1. All taxes, interest, penalties and fees collected or received by the commissioner or the commissioner's duly authorized agent under arti- cles nine (except section one hundred eighty-two-a thereof and except as otherwise provided in section two hundred five thereof), nine-A, twelve-A (except as otherwise provided in section two hundred eighty- four-d thereof), thirteen, thirteen-A (except as otherwise provided in section three hundred twelve thereof), eighteen, nineteen, twenty (except as otherwise provided in section four hundred eighty-two there- of), twenty-one, twenty-two, twenty-six, twenty-six-B, twenty-eight (except as otherwise provided in section eleven hundred two or eleven hundred three thereof), twenty-eight-A, thirty-one (except as otherwise provided in section fourteen hundred twenty-one thereof), thirty-two, thirty-three and thirty-three-A (EXCEPT AS OTHERWISE PROVIDED IN SECTION FIFTEEN HUNDRED FIFTY-SEVEN THEREOF) of this chapter shall be deposited daily in one account with such responsible banks, banking houses or trust companies as may be designated by the comptroller, to the credit of the comptroller. Such an account may be established in one or more of such depositories. Such deposits shall be kept separate and apart from all other money in the possession of the comptroller. The comptroller shall require adequate security from all such depositories. Of the total revenue collected or received under such articles of this chapter, the comptroller shall retain in the comptroller's hands such amount as the commissioner may determine to be necessary for refunds or reimbursements under such articles of this chapter [and article ten thereof] out of which amount the comptroller shall pay any refunds or reimbursements to which taxpayers shall be entitled under the provisions of such articles of this chapter [and article ten thereof]. The commissioner and the comptroller shall maintain a system of accounts showing the amount of revenue collected or received from each of the taxes imposed by such articles. The comptroller, after reserving the amount to pay such refunds or reimbursements, shall, on or before the tenth day of each month, pay into the state treasury to the credit of the general fund all revenue deposited under this section during the preceding calendar month and remaining to the comptroller's credit on the last day of such preceding month, (i) except that the comptroller shall pay to the state department of social services that amount of overpayments of tax imposed by article twenty-two of this chapter and the interest on such amount which is certified to the comptroller by the commissioner as the amount to be credited against past-due support pursuant to subdivision six of section one hundred seventy-one-c of this [chapter] ARTICLE, (ii) and except that the comptroller shall pay to the New York state higher education services corporation and the state university of New York or the city university of New York respectively that amount of overpayments of tax imposed by article twenty-two of this chapter and the interest on such amount which is certified to the comptroller by the commissioner as the amount to be credited against the amount of defaults in repayment of guaranteed student loans and state university loans or city university loans pursuant to subdivision five of section one hundred seventy-one-d and subdivision six of section one hundred seventy-one-e of this [chap- ter] ARTICLE, (iii) and except further that, notwithstanding any law, the comptroller shall credit to the revenue arrearage account, pursuant to section ninety-one-a of the state finance law, that amount of over- payment of tax imposed by article nine, nine-A, twenty-two, thirty, thirty-A, thirty-B, thirty-two or thirty-three of this chapter, and any interest thereon, which is certified to the comptroller by the commis- sioner as the amount to be credited against a past-due legally enforcea-
ble debt owed to a state agency pursuant to paragraph (a) of subdivision six of section one hundred seventy-one-f of this article, provided, however, he shall credit to the special offset fiduciary account, pursu- ant to section ninety-one-c of the state finance law, any such amount creditable as a liability as set forth in paragraph (b) of subdivision six of section one hundred seventy-one-f of this article, (iv) and except further that the comptroller shall pay to the city of New York that amount of overpayment of tax imposed by article nine, nine-A, twen- ty-two, thirty, thirty-A, thirty-B, thirty-two, or thirty-three of this chapter and any interest thereon that is certified to the comptroller by the commissioner as the amount to be credited against city of New York tax warrant judgment debt pursuant to section one hundred seventy-one-l of this article, (v) and except further that the comptroller shall pay to a non-obligated spouse that amount of overpayment of tax imposed by article twenty-two of this chapter and the interest on such amount which has been credited pursuant to section one hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy-one-e, one hundred seventy- one-f or one hundred seventy-one-l of this article and which is certi- fied to the comptroller by the commissioner as the amount due such non- obligated spouse pursuant to paragraph six of subsection (b) of section six hundred fifty-one of this chapter; and (vi) the comptroller shall deduct a like amount which the comptroller shall pay into the treasury to the credit of the general fund from amounts subsequently payable to the department of social services, the state university of New York, the city university of New York, or the higher education services corpo- ration, or the revenue arrearage account or special offset fiduciary account pursuant to section ninety-one-a or ninety-one-c of the state finance law, as the case may be, whichever had been credited the amount originally withheld from such overpayment, and (vii) with respect to amounts originally withheld from such overpayment pursuant to section one hundred seventy-one-l of this article and paid to the city of New York, the comptroller shall collect a like amount from the city of New York. S 18. Subdivision (c) of section 1550 of the tax law, as added by chapter 190 of the laws of 1990, is amended to read as follows: (c) The term "taxable insurance contract" means a contract of insur- ance of the [type] KIND described in [paragraphs four through fourteen, sixteen, seventeen, nineteen, twenty and twenty-two of] subsection (a) of section [one thousand one hundred thirteen] TWO THOUSAND ONE HUNDRED FIVE of the insurance law [that covers risks located or resident within this state]. S 19. Section 1550 of the tax law is amended by adding a new subdivi- sion (d) to read as follows: (D) THE TERM "HOME STATE" MEANS: (1) IN GENERAL. EXCEPT AS PROVIDED IN PARAGRAPHS TWO AND THREE OF THIS SUBDIVISION, THE TERM "HOME STATE" MEANS, WITH RESPECT TO AN INSURED: (A) THE STATE IN WHICH AN INSURED MAINTAINS ITS PRINCIPAL PLACE OF BUSINESS OR, IN THE CASE OF AN INDIVIDUAL, THE INDIVIDUAL'S PRINCIPAL RESIDENCE; (B) IF ONE HUNDRED PERCENT OF THE INSURED RISK IS LOCATED OUT OF THE STATE REFERRED TO IN SUBPARAGRAPH (A) OF THIS PARAGRAPH, THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED; (C) IF MORE THAN ONE INSURED FROM AN AFFILIATED GROUP, AS DEFINED IN SECTION TWO THOUSAND ONE HUNDRED ONE OF THE INSURANCE LAW, ARE NAMED INSUREDS ON A SINGLE INSURANCE CONTRACT, THE HOME STATE OF THE MEMBER OF
THE AFFILIATED GROUP THAT HAS THE LARGEST PERCENTAGE OF PREMIUM ATTRI- BUTED TO IT UNDER SUCH INSURANCE CONTRACT; OR (D) IN THE CASE OF A GROUP POLICY: (I) IF THE GROUP POLICYHOLDER PAYS ONE HUNDRED PERCENT OF THE PREMIUM FROM ITS OWN FUNDS, THE HOME STATE, AS DETERMINED PURSUANT TO SUBPARA- GRAPH (A) OF THIS PARAGRAPH, OF THE GROUP POLICYHOLDER; OR (II) IF THE GROUP POLICYHOLDER DOES NOT PAY ONE HUNDRED PERCENT OF THE PREMIUM FROM ITS OWN FUNDS, THE HOME STATE, AS DETERMINED PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE GROUP MEMBER; (2) "PRINCIPAL PLACE OF BUSINESS" MEANS, WITH RESPECT TO DETERMINING THE HOME STATE OF THE INSURED, THE STATE WHERE: (A) THE INSURED MAINTAINS ITS HEADQUARTERS AND WHERE THE INSURED'S HIGH-LEVEL OFFICERS DIRECT, CONTROL AND COORDINATE THE BUSINESS ACTIV- ITIES; OR (B) IF THE INSURED'S HIGH-LEVEL OFFICERS DIRECT, CONTROL AND COORDI- NATE THE BUSINESS ACTIVITIES IN MORE THAN ONE STATE, OR IF THE INSURED'S PRINCIPAL PLACE OF BUSINESS IS LOCATED OUTSIDE ANY STATE, THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED. (3) "PRINCIPAL RESIDENCE" MEANS, WITH RESPECT TO DETERMINING THE HOME STATE OF THE INSURED, THE STATE WHERE: (A) THE INSURED RESIDES FOR THE GREATEST NUMBER OF DAYS DURING A CALENDAR YEAR; OR (B) IF THE INSURED'S PRINCIPAL RESIDENCE IS LOCATED OUTSIDE ANY STATE, THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED. S 20. Section 1551 of the tax law, as amended by chapter 73 of the laws of 1991, is amended to read as follows: S 1551. Imposition of tax. (A) There is hereby imposed on any person WHOSE HOME STATE IS NEW YORK AND who purchases or renews a taxable insurance contract from an insurer not authorized to transact business in this state under a certificate of authority from the superintendent of insurance a tax at the rate of three and six-tenths percent of the premiums paid or to be paid, less returns thereon, for such insurance. Nothing in this article modifies or abrogates any provision of the insurance law. (B) NOTWITHSTANDING SUBDIVISION (A) OF THIS SECTION, IF THE SUPER- INTENDENT OF INSURANCE ENTERS INTO A NONADMITTED INSURANCE MULTI-STATE AGREEMENT PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED THIRTY-EIGHT OF THE INSURANCE LAW, THERE IS HEREBY IMPOSED ON ANY PERSON WHOSE HOME STATE IS NEW YORK AND WHO PURCHASES OR RENEWS A TAXABLE INSURANCE CONTRACT FROM AN INSURER NOT AUTHORIZED TO TRANSACT BUSINESS IN THIS STATE UNDER A CERTIFICATE OF AUTHORITY FROM THE SUPERINTENDENT OF INSUR- ANCE A TAX AT A RATE EQUAL TO: (1) THREE AND SIX-TENTHS PERCENT OF THE GROSS PREMIUMS ALLOCATED TO THIS STATE BASED ON THE ALLOCATION SCHEDULE SET FORTH IN THE NONADMITTED INSURANCE MULTI-STATE AGREEMENT AND ADOPTED BY THE SUPERINTENDENT OF INSURANCE PURSUANT TO A REGULATION; (2) THE PERCENTAGE SPECIFIED BY EACH OTHER STATE THAT HAS EXECUTED THE NONADMITTED INSURANCE MULTI-STATE AGREEMENT AND HAS NOT WITHDRAWN OR DEFAULTED, ON THE PORTION OF THE PREMIUM ALLOCATED TO THAT OTHER STATE BASED ON THE ALLOCATION SCHEDULE SET FORTH IN THE NONADMITTED INSURANCE MULTI-STATE AGREEMENT AND ADOPTED BY THE SUPERINTENDENT OF INSURANCE PURSUANT TO A REGULATION;
(3) THREE AND SIX-TENTHS PERCENT OF THE GROSS PREMIUMS ON ANY PORTION OF THE PREMIUM NOT ALLOCATED UNDER PARAGRAPHS ONE AND TWO OF THIS SUBDI- VISION. S 21. Section 1552 of the tax law, as added by chapter 190 of the laws of 1990, is amended to read as follows: S 1552. Allocation. (A) Where the taxable insurance contract covers risks located or resident both within and without this state[, the amount of premiums allocable to risks resident or located within this state shall be determined pursuant to rules and regulations of the commissioner of taxation and finance. In promulgating such rules and regulations, the commissioner of taxation and finance shall give due consideration to the rules and regulations promulgated by the super- intendent of insurance pursuant to subsection (b) of section nine thou- sand one hundred two of the insurance law] AND THE TAXPAYER'S HOME STATE IS NEW YORK, ONE HUNDRED PERCENT OF PREMIUMS SHALL BE ALLOCABLE TO THIS STATE. (B) NOTWITHSTANDING SUBDIVISION (A) OF THIS SECTION, IF THE SUPER- INTENDENT OF INSURANCE ENTERS INTO A NONADMITTED INSURANCE MULTI-STATE AGREEMENT PURSUANT TO SECTION TWO THOUSAND ONE HUNDRED THIRTY-EIGHT OF THE INSURANCE LAW, THE COMMISSIONER IS AUTHORIZED TO ADOPT THE ALLO- CATION SCHEDULE INCLUDED IN SUCH AGREEMENT FOR THE PURPOSE OF ALLOCATING RISK AND COMPUTING THE TAX DUE ON THE PORTION OF PREMIUM ATTRIBUTABLE TO EACH RISK CLASSIFICATION AND TO EACH STATE WHERE PROPERTIES, RISKS OR EXPOSURES ARE LOCATED. (C) IF THE SUPERINTENDENT OF INSURANCE HAS ENTERED INTO THE NONADMIT- TED INSURANCE MULTI-STATE AGREEMENT, TO THE EXTENT THAT OTHER STATES WHERE PORTIONS OF THE PROPERTIES, RISKS OR EXPOSURES RESIDE HAVE NOT ENTERED INTO SUCH A MULTI-STATE AGREEMENT WITH THIS STATE, THE NET PREMIUM TAX IMPOSED SHALL BE RETAINED BY THIS STATE IF THIS STATE IS THE HOME STATE OF THE INSURED. S 22. Section 1554 of the tax law is amended by adding a new subdivi- sion (e) to read as follows: (E) NOTWITHSTANDING ANY PROVISIONS OF THIS SECTION, THE COMMISSIONER, IN CONSULTATION WITH THE SUPERINTENDENT OF INSURANCE, MAY PERMIT ANY OR ALL PERSONS LIABLE FOR ANY TAX IMPOSED BY THIS ARTICLE TO FILE A RETURN WITH A CLEARINGHOUSE OR OTHER ENTITY DESIGNATED BY A NONADMITTED INSUR- ANCE MULTI-STATE AGREEMENT IN ACCORDANCE WITH ADMINISTRATIVE PROVISIONS CONTAINED WITHIN SUCH AN AGREEMENT. S 23. Section 1555 of the tax law is amended by adding a new subdivi- sion (f) to read as follows: (F) NOTWITHSTANDING ANY PROVISIONS OF THIS SECTION, THE COMMISSIONER MAY PERMIT OTHER PERSONS OR ENTITIES TO INSPECT THE RETURNS FILED UNDER THIS ARTICLE, OR MAY FURNISH TO SUCH PERSONS OR ENTITIES AN ABSTRACT OF ANY RETURN OR SUPPLY INFORMATION CONCERNING AN ITEM CONTAINED IN ANY SUCH RETURN, OR DISCLOSED BY AN INVESTIGATION OF TAX LIABILITY UNDER THIS ARTICLE, IF THE PERSONS OR ENTITIES ARE ENTITLED TO HAVE SUCH INFORMATION UNDER THE TERMS OF A NONADMITTED INSURANCE MULTI-STATE AGREEMENT ENTERED INTO BY THE SUPERINTENDENT OF INSURANCE. THE COMMISSIONER MAY, PURSUANT TO THE TERMS OF SUCH AN AGREEMENT, FORWARD TO THE PROPER OFFICERS OF ANOTHER MEMBER JURISDICTION ANY INFOR- MATION IN THE COMMISSIONER'S POSSESSION RELATING TO NONADMITTED INSUR- ANCE PREMIUM TAXES AND MAY SHARE ANY INFORMATION RELATING TO THE ADMIN- ISTRATION OF TAXES PURSUANT TO THE AGREEMENT WITH SUCH OFFICERS. THE AGREEMENT MAY PROVIDE FOR EACH MEMBER JURISDICTION TO AUDIT THE RECORDS OF PERSONS BASED IN THE MEMBER JURISDICTION AND DETERMINE TAXES DUE EACH MEMBER JURISDICTION.
S 24. Section 1556 of the tax law, as added by chapter 190 of the laws of 1990, is amended to read as follows: S 1556. Procedural provisions. (A) The provisions of article twenty- seven of this chapter shall apply to the provisions of this article in the same manner and with the same force and effect as if the language of such article twenty-seven had been incorporated in full into this arti- cle and had expressly referred to the tax under this article, except to the extent that any such provision is either inconsistent with a provision of this article or is not relevant to this article. (B) NONADMITTED INSURANCE MULTI-STATE AGREEMENT. IF THE SUPERINTEN- DENT OF INSURANCE HAS ENTERED INTO A NONADMITTED INSURANCE MULTI-STATE AGREEMENT, THE COMMISSIONER MAY PARTICIPATE IN THE CLEARINGHOUSE DESIG- NATED PURSUANT TO SUCH AGREEMENT FOR THE PURPOSE OF COLLECTING AND ALLO- CATING TO STATES EXCESS LINE PREMIUM TAXES AND TAXES ON INDEPENDENTLY PROCURED INSURANCE, WITH REGARD TO INSURANCE PLACED WITH AN UNAUTHORIZED INSURER. S 25. Section 1557 of the tax law, as added by chapter 190 of the laws of 1990, is amended to read as follows: S 1557. Deposit and disposition of revenue. All taxes, interest and penalties collected or received by the commissioner of taxation and finance under this article shall be deposited and disposed of pursuant to the provisions of section one hundred seventy-one-a of this chapter, EXCEPT AS PROVIDED FOR BY SUBDIVISION (B) OF SECTION FIFTEEN HUNDRED FIFTY-SIX OF THIS ARTICLE. S 26. This act shall take effect July 21, 2011; provided, however, that: (1) sections one, two and three of this act shall take effect July 16, 2011; (2) sections fourteen and twenty-four of this act shall take effect immediately; (3) the amendments to subsection (b) of section 2118 of the insurance law made by sections ten and eleven of this act shall not affect the expiration and reversion of such subsection and shall be deemed to expire therewith; (4) the amendments to paragraph 5 of subsection (a) of section 2130 of the insurance law made by section thirteen of this act shall not affect the expiration of such section and shall be deemed to expire therewith; (5) a person, firm, association or corporation licensed pursuant to the provisions of section 2105 of the insurance law shall make the payments required by subsection (d) of section 2118 of the insurance law to the superintendent of insurance on or before September 19, 2011 for the taxes on the policies procured by such licensee, pursuant to such license, between January 1, 2011 and July 20, 2011; and (6) effective immediately, the addition, amendment, or repeal of any rules and regulations necessary for the implementation of this act on its effective date are authorized and directed to be made and completed on or before such effective date. PART J Section 1. Section 51 of chapter 298 of the laws of 1985, amending the tax law relating to the franchise tax on banking corporations imposed by the tax law, authorized to be imposed by any city having a population of one million or more by chapter 772 of the laws of 1966 and imposed by the administrative code of the city of New York and relating to other provisions of the tax law, chapter 883 of the laws of 1975 and the
administrative code of the city of New York which relates to such fran- chise tax, as amended by chapter 67 of the laws of 2010, is amended to read as follows: S 51. This act shall take effect immediately and shall apply to taxa- ble years beginning on or after January 1, 1985[, except that: (a) sections one through eight shall not apply to taxable years begin- ning on or after January 1, 2011; (b) sections nine, twelve, the amendment made to paragraph 9 of subsection (a) of section 1452 of the tax law by section thirteen, sections fifteen, sixteen, eighteen, nineteen, twenty, twenty-three, twenty-seven, thirty and thirty-two, the amendment made to paragraph 9 of subdivision (a) of section 11-640 of the administrative code of the city of New York by section thirty-three, sections thirty-five, thirty- six, thirty-eight, thirty-nine, forty, and forty-five shall not apply to corporations other than savings banks and savings and loan associations for taxable years beginning on or after January 1, 2011. (c) sections twenty-one, twenty-two, twenty-four, forty-one and forty-two shall not apply to corporations other than savings banks and savings and loan associations for taxable years beginning on or after January 1, 2011, provided, however, that the provisions of such sections which relate to the alternative minimum tax measured by taxable assets shall continue to apply to all taxpayers for taxable years beginning on or after January 1, 2011; (d) the amendment to the section heading and the opening paragraph of section 11-643.3 of the administrative code of the city of New York made by section forty-three shall not apply to corporations other than savings banks and savings and loan associations for taxable years begin- ning on or after January 1, 2011 with respect to those provisions of such section 11-643.3 which relate to the basic tax measured by entire net income; and (e) section twenty-eight, and the addition of new section 11-643.5 of the administrative code of the city of New York made by section forty- four shall not apply to corporations other than savings banks and savings and loan associations for taxable years beginning on or after January 1, 2011, provided, however, that the provisions of such sections which relate to the alternative minimum taxes measured by assets, issued capital stock and one hundred twenty-five dollars shall continue to apply to all taxpayers for taxable years beginning on or after January 1, 2011]. S 2. Subdivisions (d) and (f) of section 110 of chapter 817 of the laws of 1987, amending the tax law and the environmental conservation law, constituting the business tax reform and rate reduction act of 1987, as amended by chapter 67 of the laws of 2010, are amended to read as follows: (d) The provisions of section sixty-seven of this act except insofar as it amends paragraph 10 of subsection (b) of section 1453 of the tax law, seventy-one and seventy-four shall apply to taxable years beginning after December 31, 1986[, provided, however, that new paragraphs 11 and 12 of subsection (b) of section 1453 of the tax law as added by section sixty-seven of this act, the amendments made by section seventy-one of this act, and new subsection (i) of section 1453 of the tax law as added by section seventy-four of this act shall not apply to taxable years beginning on or after January 1, 2011]; (f) The provisions of section one hundred four of this act shall apply to taxable years beginning after December 31, 1986[, and shall not apply to corporations other than savings banks and savings and loan associ-
ations for taxable years beginning on or after January 1, 2011, provided, however, that the provisions of such section which relate to the alternative minimum tax measured by taxable assets shall continue to apply to all taxpayers for taxable years beginning on or after January 1, 2011]
. S 3. Subdivisions (c) and (d) of section 68 of chapter 525 of the laws of 1988, amending the tax law and the administrative code of the city of New York relating to the imposition of taxes in the city of New York, as amended by chapter 67 of the laws of 2010, are amended to read as follows: (c) The provisions of sections one, thirty-one, thirty-two, thirty- three, thirty-six, thirty-seven, forty through forty-five, forty-seven and forty-eight of this act shall apply to taxable years beginning after December 31, 1986[, provided, however, that the amendments made by sections thirty-six and forty-one of this act, and new subdivision (i) of section 11-641 of the administrative code of the city of New York as added by section forty-four of this act shall not apply to taxable years beginning on or after January 1, 2011]; (d) The provisions of section forty-six of this act shall apply to taxable years beginning after December 31, 1986[, and shall not apply to corporations other than savings banks and savings and loan associations for taxable years beginning on or after January 1, 2011, provided, however, that the provisions of such section which relate to the alter- native minimum tax measured by taxable assets shall continue to apply to all taxpayers for taxable years beginning on or after January 1, 2011]; S 4. Paragraphs 1 and 2 of subsection (m) of section 1452 of the tax law, as amended by chapter 24 of the laws of 2010, are amended to read as follows: (1) Notwithstanding anything to the contrary contained in this section other than subsection (n) of this section, a corporation that was in existence before January first, two thousand [ten] ELEVEN and was subject to tax under article nine-A of this chapter for its last taxable year beginning before January first, two thousand [ten] ELEVEN, shall continue to be taxable under such article for all taxable years begin- ning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN. The preceding sentence shall not apply to any taxable year during which such corporation is a banking corporation described in paragraphs one through eight of subsection (a) of this section. Notwithstanding anything to the contrary contained in this section other than subsection (n) of this section, a banking corporation or corporation that was in existence before January first, two thousand [ten] ELEVEN and was subject to tax under this arti- cle for its last taxable year beginning before January first, two thou- sand [ten] ELEVEN, shall continue to be taxable under this article for all taxable years beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN or in which the corporation satisfies the requirements for a corporation to elect to be taxable under this article. Provided further, that nothing in this subsection shall prohibit a corporation that elected pursuant to subsection (d) of this section to be taxable under article nine-A of this chapter from revoking that election in accordance with such subsection (d). For purposes of this paragraph, a corporation shall be considered to be subject to tax under article nine-A of this chapter for a taxable year if such corporation was not a taxpayer but was properly included in a combined report filed pursuant to section two hundred eleven of this
chapter for such taxable year and a corporation shall be considered to be subject to tax under this article for a taxable year if such corpo- ration was not a taxpayer but was properly included in a combined return filed pursuant to subsection (f) or (g) of section fourteen hundred sixty-two of this article for such taxable year. A corporation that was in existence before January first, two thousand [ten] ELEVEN but first becomes a taxpayer in a taxable year beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN, shall be considered for purposes of this paragraph to have been subject to tax under article nine-A of this chapter for its last taxable year beginning before January first, two thousand [ten] ELEVEN if such corporation would have been subject to tax under such article for such taxable year if it had been a taxpayer during such taxable year. A corporation that was in existence before January first, two thousand [ten] ELEVEN but first becomes a taxpayer in a taxable year beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN, shall be consid- ered for purposes of this paragraph to have been subject to tax under this article for its last taxable year beginning before January first, two thousand [ten] ELEVEN if such corporation would have been subject to tax under this article for such taxable year if it had been a taxpayer during such taxable year. (2) Notwithstanding anything to the contrary contained in this section other than subsection (n) of this section, a corporation formed on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN may elect to be subject to tax under this article or under article nine-A of this chapter for its first taxable year beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN in which either (i) sixty-five percent or more of its voting stock is owned or controlled, directly or indirectly by a financial holding company, provided the corporation whose voting stock is so owned or controlled is principally engaged in activities that are described in section 4(k)(4) or 4(k)(5) of the federal bank holding company act of nineteen hundred fifty-six, as amended and the regulations promulgated pursuant to the authority of such section, or (ii) it is a financial subsidiary. An election under this paragraph may not be made by a corporation described in paragraphs one through eight of subsection (a) of this section or in subsection (e) of this section. In addition, an election under this paragraph may not be made by a corporation that is a party to a reorganization, as defined in subsection (a) of section 368 of the internal revenue code of 1986, as amended, of a corporation described in paragraph one of this subsection if both corporations were sixty-five percent or more owned or controlled, directly or indirectly, by the same interests at the time of the reorganization. An election under this paragraph must be made by the taxpayer on or before the due date for filing its return (determined with regard to extensions of time for filing) for the applicable taxable year. The election to be taxed under article nine-A of this chapter shall be made by the taxpayer by filing the report required pursuant to section two hundred eleven of this chapter and the election to be taxed under this article shall be made by the taxpayer by filing the return required pursuant to section fourteen hundred sixty-two of this article. Any election made pursuant to this paragraph shall be irrevocable and shall apply to each subsequent taxable year beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand
[eleven] THIRTEEN, provided that the stock ownership and activities requirements described in subparagraph (i) of this paragraph are met or such corporation described in subparagraph (ii) of this paragraph continues as a financial subsidiary. S 5. Paragraphs 1 and 2 of subdivision (l) of section 11-640 of the administrative code of the city of New York, as amended by chapter 24 of the laws of 2010, are amended to read as follows: (1) Notwithstanding anything to the contrary contained in this section other than subdivision (m) of this section, a corporation that was in existence before January first, two thousand [ten] ELEVEN and was subject to tax under subchapter two of this chapter for its last taxable year beginning before January first, two thousand [ten] ELEVEN, shall continue to be taxable under such subchapter for all taxable years beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN. The preceding sentence shall not apply to any taxable year during which such corpo- ration is a banking corporation described in paragraphs one through eight of subdivision (a) of this section. Notwithstanding anything to the contrary contained in this section other than subdivision (m) of this section, a banking corporation or corporation that was in existence before January first, two thousand [ten] ELEVEN and was subject to tax under this subchapter for its last taxable year beginning before January first, two thousand [ten] ELEVEN, shall continue to be taxable under this subchapter for all taxable years beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN or in which the corporation satisfies the requirements for a corporation to elect to be taxable under this subchapter. Provided further, that nothing in this subdivision shall prohibit a corporation that elected pursuant to subdivision (d) of this section to be taxable under subchapter two of this chapter from revoking that election in accordance with subdivision (d) of this section. For purposes of this paragraph, a corporation shall be considered to be subject to tax under subchapter two of this chapter for a taxable year if such corporation was not a taxpayer but was properly included in a combined report filed pursuant to subdivision four of section 11-605 of this chapter for such taxable year and a corporation shall be considered to be subject to tax under this subchapter for a taxable year if such corporation was not a taxpayer but was properly included in a combined report filed pursuant to subdivision (f) or (g) of section 11-646 of this part for such taxa- ble year. A corporation that was in existence before January first, two thousand [ten] ELEVEN but first becomes a taxpayer in a taxable year beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN, shall be consid- ered for purposes of this paragraph to have been subject to tax under subchapter two of this chapter for its last taxable year beginning before January first, two thousand [ten] ELEVEN if such corporation would have been subject to tax under such subchapter for such taxable year if it had been a taxpayer during such taxable year. A corporation that was in existence before January first, two thousand [ten] ELEVEN but first becomes a taxpayer in a taxable year beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN, shall be considered for purposes of this paragraph to have been subject to tax under this subchapter for its last taxable year beginning before January first, two thousand [ten] ELEVEN if such corporation would have been subject to tax under this subchapter
for such taxable year if it had been a taxpayer during such taxable year. (2) Notwithstanding anything to the contrary contained in this section other than subdivision (m) of this section, a corporation formed on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN may elect to be subject to tax under this subchapter or under subchapter two of this chapter for its first taxable year beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN in which either (i) sixty-five percent or more of its voting stock is owned or controlled, directly or indirectly by a financial holding company, provided the corporation whose voting stock is so owned or controlled is principally engaged in activities that are described in section 4(k)(4) or 4(k)(5) of the federal bank holding company act of nineteen hundred fifty-six, as amended and the regulations promulgated pursuant to the authority of such section or (ii) it is a financial subsidiary. An election under this paragraph may not be made by a corporation described in paragraphs one through eight of subdivision (a) of this section or in subdivision (e) of this section. In addition, an election under this paragraph may not be made by a corporation that is a party to a reorganization, as defined in subsection (a) of section 368 of the internal revenue code of 1986, as amended, of a corporation described in paragraph one of this subdivision if both corporations were sixty-five percent or more owned or controlled, directly or indirectly by the same interests at the time of the reorganization. An election under this paragraph must be made by the taxpayer on or before the due date for filing its return (determined with regard to extensions of time for filing) for the applicable taxable year. The election to be taxed under subchapter two of this chapter shall be made by the taxpayer by filing the return required pursuant to subdivision one of section 11-605 of this chapter and the election to be taxed under this subchapter shall be made by the taxpayer by filing the return required pursuant to subdivision (a) of section 11-646 of this part. Any election made pursuant to this paragraph shall be irrevocable and shall apply to each subsequent taxable year beginning on or after January first, two thousand [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN, provided that the stock ownership and activities requirements described in subparagraph (i) of this paragraph are met or such corporation described in subparagraph (ii) of this paragraph continues as a financial subsidiary. S 6. Subparagraph (iv) of paragraph 2 of subdivision (f) of section 1462 of the tax law, as amended by chapter 24 of the laws of 2010, is amended to read as follows: (iv) (A) Notwithstanding any provision of this paragraph, any bank holding company exercising its corporate franchise or doing business in the state may make a return on a combined basis without seeking the permission of the commissioner with any banking corporation exercising its corporate franchise or doing business in the state in a corporate or organized capacity sixty-five percent or more of whose voting stock is owned or controlled, directly or indirectly, by such bank holding compa- ny, for the first taxable year beginning on or after January first, two thousand and before January first, two thousand [eleven] THIRTEEN during which such bank holding company registers for the first time under the federal bank holding company act, as amended, and also elects to be a financial holding company. In addition, for each subsequent taxable year beginning after January first, two thousand and before January first,
two thousand [eleven] THIRTEEN, any such bank holding company may file on a combined basis without seeking the permission of the commissioner with any banking corporation that is exercising its corporate franchise or doing business in the state and sixty-five percent or more of whose voting stock is owned or controlled, directly or indirectly, by such bank holding company if either such banking corporation is exercising its corporate franchise or doing business in the state in a corporate or organized capacity for the first time during such subsequent taxable year, or sixty-five percent or more of the voting stock of such banking corporation is owned or controlled, directly or indirectly, by such bank holding company for the first time during such subsequent taxable year. Provided however, for each subsequent taxable year beginning after Janu- ary first, two thousand and before January first, two thousand [eleven] THIRTEEN, a banking corporation described in either of the two preceding sentences which filed on a combined basis with any such bank holding company in a previous taxable year, must continue to file on a combined basis with such bank holding company if such banking corporation, during such subsequent taxable year, continues to exercise its corporate fran- chise or do business in the state in a corporate or organized capacity and sixty-five percent or more of such banking corporation's voting stock continues to be owned or controlled, directly or indirectly, by such bank holding company, unless the permission of the commissioner has been obtained to file on a separate basis for such subsequent taxable year. Provided further, however, for each subsequent taxable year begin- ning after January first, two thousand and before January first, two thousand [eleven] THIRTEEN, a banking corporation described in either of the first two sentences of this clause which did not file on a combined basis with any such bank holding company in a previous taxable year, may not file on a combined basis with such bank holding company during any such subsequent taxable year unless the permission of the commissioner has been obtained to file on a combined basis for such subsequent taxa- ble year. (B) Notwithstanding any provision of this paragraph other than clause (A) of this subparagraph, the commissioner may not require a bank hold- ing company which, during a taxable year beginning on or after January first, two thousand and before January first, two thousand [eleven] THIRTEEN, registers for the first time during such taxable year under the federal bank holding company act, as amended, and also elects to be a financial holding company, to make a return on a combined basis for any taxable year beginning on or after January first, two thousand and before January first, two thousand [eleven] THIRTEEN with a banking corporation sixty-five percent or more of whose voting stock is owned or controlled, directly or indirectly, by such bank holding company. S 7. Subparagraph (iv) of paragraph 2 of subdivision (f) of section 11-646 of the administrative code of the city of New York, as amended by chapter 24 of the laws of 2010, is amended to read as follows: (iv) (A) Notwithstanding any provision of this paragraph, any bank holding company exercising its corporate franchise or doing business in the city may make a return on a combined basis without seeking the permission of the commissioner with any banking corporation exercising its corporate franchise or doing business in the city in a corporate or organized capacity sixty-five percent or more of whose voting stock is owned or controlled, directly or indirectly, by such bank holding compa- ny, for the first taxable year beginning on or after January first, two thousand and before January first, two thousand [eleven] THIRTEEN during which such bank holding company registers for the first time under the
federal bank holding company act, as amended, and also elects to be a financial holding company. In addition, for each subsequent taxable year beginning after January first, two thousand and before January first, two thousand [eleven] THIRTEEN, any such bank holding company may file on a combined basis without seeking the permission of the commissioner with any banking corporation that is exercising its corporate franchise or doing business in the city and sixty-five percent or more of whose voting stock is owned or controlled, directly or indirectly, by such bank holding company if either such banking corporation is exercising its corporate franchise or doing business in the city in a corporate or organized capacity for the first time during such subsequent taxable year, or sixty-five percent or more of the voting stock of such banking corporation is owned or controlled, directly or indirectly, by such bank holding company for the first time during such subsequent taxable year. Provided however, for each subsequent taxable year beginning after Janu- ary first, two thousand and before January first, two thousand [eleven] THIRTEEN, a banking corporation described in either of the two preceding sentences which filed on a combined basis with any such bank holding company in a previous taxable year, must continue to file on a combined basis with such bank holding company if such banking corporation, during such subsequent taxable year, continues to exercise its corporate fran- chise or do business in the city in a corporate or organized capacity and sixty-five percent or more of such banking corporation's voting stock continues to be owned or controlled, directly or indirectly, by such bank holding company, unless the permission of the commissioner has been obtained to file on a separate basis for such subsequent taxable year. Provided further, however, for each subsequent taxable year begin- ning after January first, two thousand and before January first, two thousand [eleven] THIRTEEN, a banking corporation described in either of the first two sentences of this clause which did not file on a combined basis with any such bank holding company in a previous taxable year, may not file on a combined basis with such bank holding company during any such subsequent taxable year unless the permission of the commissioner has been obtained to file on a combined basis for such subsequent taxa- ble year. (B) Notwithstanding any provision of this paragraph other than clause (A) of this subparagraph, the commissioner may not require a bank hold- ing company which, during a taxable year beginning on or after January first, two thousand and before January first, two thousand [eleven] THIRTEEN, registers for the first time during such taxable year under the federal bank holding company act, as amended, and also elects to be a financial holding company, to make a return on a combined basis for any taxable year beginning on or after January first, two thousand and before January first, two thousand [eleven] THIRTEEN with a banking corporation sixty-five percent or more of whose voting stock is owned or controlled, directly or indirectly, by such bank holding company. S 8. This act shall take effect immediately. PART K Section 1. Paragraph b of subdivision 1, subdivisions 2, 6, 14, 22 and 23 of section 282 of the tax law, paragraph b of subdivision 1 and subdivision 14 as amended by chapter 245 of the laws of 1989, subdivi- sion 2 as amended by chapter 509 of the laws of 1937, subdivision 6 as amended by chapter 261 of the laws of 1988 and subdivisions 22 and 23 as
added by section 1 of part W-1 of chapter 109 of the laws of 2006, are amended to read as follows: b. With respect to Diesel motor fuel, "distributor" means any person, firm, association or corporation (i) who or which imports or causes to be imported into the state, for use, distribution, storage or sale with- in the state, any Diesel motor fuel; (ii) who or which produces, refines, manufactures or compounds Diesel motor fuel within the state; (iii) [who or which engages in the enhancement of Diesel motor fuel in this state; (iv)] who or which makes a sale or use of Diesel motor fuel in this state other than: (A) a retail sale not in bulk or (B) the self- use of Diesel motor fuel which has been the subject of a retail sale to such person; [(v)] (IV) who or which is registered by the department [of taxation and finance] as a distributor of kero-jet fuel pursuant to the provisions of subdivision two of section two hundred eighty-two-a of this article. For the purposes of this article when used with respect to Diesel motor fuel, a "retail sale not in bulk" means the making or offering to make any sale of Diesel motor fuel to a consumer of such fuel which is delivered directly into a motor vehicle for use in the operation of such vehicle. A "retail sale in bulk" means the making or offering to make any sale of Diesel motor fuel to a consumer which is other than a "retail sale not in bulk". Motor fuel or Diesel motor fuel brought into the state in the ordinary fuel tank connecting with the engine of a motor vehicle, aeroplane, motor boat or other conveyance propelled by the use of such motor fuel or Diesel motor fuel, and to be used only in the operation thereof, shall not be deemed imported within the meaning of this article, if not removed from such tank except as used in the propulsion of such engine. 2. "Motor fuel" means gasoline, benzol, E85, FUEL GRADE ETHANOL THAT MEETS THE ASTM INTERNATIONAL ACTIVE STANDARDS SPECIFICATIONS D4806 OR D4814 or other product[, except kerosene and crude oil,] which is suit- able for use in operation of a motor vehicle engine[, but if kerosene or crude oil is compounded or mixed with any other product or products, and the resulting compound or mixture is suitable for use in the operation of any such motor vehicle engine, such resulting compound or mixture in its entirety shall be a "motor fuel."]. 6. "Filling station" shall include any place, location or station where motor fuel [or], HIGHWAY Diesel motor fuel OR WATER-WHITE KEROSENE (EXCLUSIVELY FOR HEATING PURPOSES IN CONTAINERS OF NO MORE THAN TWENTY GALLONS), is offered for sale at retail. 14. "Diesel motor fuel" shall mean NO. 1 DIESEL FUEL, NO. 2 DIESEL FUEL, BIODIESEL, kerosene, crude oil, fuel oil or other middle distil- late and also motor fuel suitable for use in the operation of an engine of the diesel type, excluding, however, any product specifically desig- nated "No. 4 Diesel fuel" and not suitable as a fuel used in the opera- tion of a motor vehicle engine. 22. "E85" means a [mixture consisting by volume of eighty-five percent] FUEL BLEND CONSISTING OF ethanol and [the remainder of which is] motor fuel, WHICH MEETS THE ASTM INTERNATIONAL ACTIVE STANDARD D5798 FOR FUEL ETHANOL. 23. "B20" means a mixture consisting by volume of twenty percent biod- iesel and the remainder of which is diesel motor fuel. [For purposes of this subdivision "biodiesel"] "BIODIESEL" shall mean EITHER "QUALIFIED BIODIESEL" OR "UNQUALIFIED BIODIESEL." "QUALIFIED BIODIESEL" MEANS a diesel motor fuel substitute produced from nonpetroleum renewable resources that meets the registration requirements for fuels and fuel additives established by the Environmental Protection Agency under
section 211 of the Clean Air Act (42 U.S.C. 7545) and that meets the [American Society for Testing and Materials D6751-02a Standard Specifi- cation for Biodiesel Fuel (B100) Blend Stock for Distillate Fuels] ASTM INTERNATIONAL ACTIVE STANDARD D6751 FOR BIODIESEL FUEL. "UNQUALIFIED BIODIESEL" MEANS A DIESEL MOTOR FUEL SUBSTITUTE PRODUCED FROM NONPETRO- LEUM RENEWABLE RESOURCES THAT DOES NOT MEET THE ASTM INTERNATIONAL ACTIVE STANDARD D6751 FOR BIODIESEL FUEL. S 1-a. Subdivision 15 of section 282 of the tax law is REPEALED. S 2. Subdivision 16 of section 282 of the tax law is REPEALED and two new subdivisions 16 and 16-a are added to read as follows: 16. "NON-HIGHWAY DIESEL MOTOR FUEL" MEANS ANY DIESEL MOTOR FUEL THAT IS DESIGNATED FOR USE OTHER THAN ON A PUBLIC HIGHWAY, AND IS DYED DIESEL MOTOR FUEL AS DEFINED IN SUBDIVISION EIGHTEEN-A OF THIS SECTION. 16-A. "HIGHWAY DIESEL MOTOR FUEL" MEANS ANY DIESEL MOTOR FUEL WHICH IS NOT NON-HIGHWAY DIESEL MOTOR FUEL. S 3. Subdivision 18 of section 282 of the tax law, as added by chapter 302 of the laws of 2006, is renumbered subdivision 18-a and is amended to read as follows: 18-a. "Dyed Diesel motor fuel" means Diesel motor fuel which [is enhanced Diesel motor fuel and which] has been dyed in accordance with and for the purpose of complying with the provisions of 26 USC S4082(a) and the regulations thereunder, as may be amended from time to time. S 4. Section 282 of the tax law is amended by adding a new subdivision 26 to read as follows: 26. "PUBLIC HIGHWAY" MEANS PUBLIC HIGHWAY AS DEFINED IN SUBDIVISION SIX OF SECTION FIVE HUNDRED ONE OF THIS CHAPTER. S 5. Subdivisions 2, 3, 4 and 5 of section 282-a of the tax law, subdivision 2 and paragraph (b) of subdivision 3 as amended by chapter 245 of the laws of 1989, subdivisions 3, 4 and 5 as added by chapter 261 of the laws of 1988 and paragraph (c) of subdivision 3 as added by chap- ter 302 of the laws of 2006, are amended to read as follows: 2. No person shall [engage] SELL OR USE DIESEL MOTOR FUEL within this state [in the enhancement of Diesel motor fuel, make a sale or use of Diesel motor fuel] (other than a retail sale not in bulk or self-use of Diesel motor fuel which has been the subject of a retail sale), import or cause the importation of Diesel motor fuel into the state or produce, refine, manufacture or compound Diesel motor fuel within the state unless such person shall be registered by the department [of taxation and finance] as a distributor of Diesel motor fuel. Provided, the commissioner [of taxation and finance] shall not register as a distribu- tor of Diesel motor fuel any person who is engaged solely in one or both of the following: (i) any person who makes or offers to make a retail sale not in bulk of such fuel or (ii) any person who purchases Diesel motor fuel in bulk in this state for the sole purpose of self-use. The commissioner may, however, register as a distributor of kero-jet fuel only a fixed base operator who makes no sales of kero-jet fuel other than retail sales not in bulk delivered directly into the fuel tank of an airplane for use in the operation of such airplane and who makes no other sales of diesel motor fuel. Such registration shall apply only to the wholesale purchase of kero-jet fuel and the retail sale of such fuel not in bulk for delivery directly into the fuel tank of an airplane for use in the operation thereof. Provided, further, that if the commission- er is satisfied that full registration is not necessary in order to protect tax revenues, the commissioner may limit or modify the require- ment of registration as a distributor with respect to any person other- wise required to register solely because such person engages in the sale
of NON-HIGHWAY Diesel motor fuel where such person makes sales of NON-HIGHWAY Diesel motor fuel to the consumer solely for [the purposes described in subparagraph (i) of paragraph (b) of subdivision three of this section] USE OTHER THAN ON A PUBLIC HIGHWAY, provided that if the commissioner so limits or modifies such registration requirement with respect to such person, then such registration shall apply only to the importation, sale and distribution of SUCH NON-HIGHWAY Diesel motor fuel [for the purposes described in such subparagraph (i)]. The commissioner [of taxation and finance] may also waive any other requirement imposed by this article on such a distributor. All the provisions of section two hundred eighty-three of this article shall apply to applicants for registration and registrants with respect to Diesel motor fuel, and, in addition, distributors with respect to Diesel motor fuel shall be subject to all other provisions of this article relating to distributors of motor fuel, including but not limited to, the keeping of records, the fixing, determination and payment of tax and filing of returns. PROVIDED, FURTHER, THE COMMISSIONER MAY LIMIT OR MODIFY THE REQUIREMENT OF REGISTRATION AS A DISTRIBUTOR WITH RESPECT TO ANY PERSON WHO PRODUCES FOR SELF USE "UNQUALIFIED BIODIESEL." 3. (a) The tax imposed by this section shall not apply to the sale of untaxed Diesel motor fuel to or the use of such fuel by an organization described in paragraph one or two of subdivision (a) of section eleven hundred sixteen of this chapter where such Diesel motor fuel is used by such organization for its own use or consumption. (b) The tax on the [incident] INCIDENCE of sale or use imposed by subdivision one of this section shall not apply to: (i) the sale [to] or use [by the consumer of previously untaxed Diesel motor fuel which is not enhanced Diesel motor fuel and which is used exclusively for heating purposes or for the purpose of use or consumption directly and exclu- sively in the production of tangible personal property, gas, electric- ity, refrigeration or steam, for sale,] OF NON-HIGHWAY DIESEL MOTOR FUEL, but only if all of such fuel is consumed other than on the PUBLIC highways of this state (EXCEPT FOR THE USE OF THE PUBLIC HIGHWAY BY FARMERS TO REACH ADJACENT FARMLANDS); provided, however, this exemption shall in no event apply to a sale of NON-HIGHWAY Diesel motor fuel which involves a delivery at a filling station or into a repository which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle; or (ii) [the sale of previously untaxed Diesel motor fuel which is not enhanced Diesel motor fuel to a person registered under this article as a distributor of Diesel motor fuel other than (A) a retail sale to such person or (B) a sale to such person which involves a delivery at a filling station or into a repository which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle; or (iii) a sale or use of enhanced Diesel motor fuel to or by a consumer exclusively for the purposes of heating specified in subparagraph (i) of this paragraph but only if such enhanced Diesel motor fuel is delivered into a storage tank which is not equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehi- cle and such storage tank is attached to the heating unit burning such fuel, provided that each delivery of such fuel of over four thousand five hundred gallons shall be evidenced by a certificate signed by the purchaser stating that the product will be used exclusively for heating purposes; or (iv) a sale or use consisting of no more than four thousand five hundred gallons of Diesel motor fuel in a thirty-day period to or by a consumer who purchases or uses such fuel for use or consumption
directly and exclusively in the production for sale of tangible personal property by farming but only if all of such fuel is delivered on the farm site and is consumed other than on the highways of this state (except for the use of the highway to reach adjacent farmlands) provided, however, a farmer may purchase more than four thousand five hundred gallons of Diesel motor fuel in a thirty-day period for such use or consumption exempt from the tax in accordance with prior clearance given by the commissioner of taxation and finance; or (v)]
a sale to the consumer consisting of not more than twenty gallons of water-white kero- sene to be used and consumed exclusively for heating purposes; or [(vi)] (III) the sale to or delivery at a filling station or other retail vendor of water-white kerosene provided such filling station or other retail vendor only sells such water-white kerosene exclusively for heat- ing purposes in containers of no more than twenty gallons; or [(vii)] (IV) a sale of kero-jet fuel to an airline for use in its airplanes or a use of kero-jet fuel by an airline in its airplanes; or [(viii)] (V) a sale of kero-jet fuel by a registered distributor of Diesel motor fuel to a fixed base operator registered under this article as a distributor of kero-jet fuel only where such fixed base operator is engaged solely in making or offering to make retail sales not in bulk of kero-jet fuel directly into the fuel tank of an airplane for the purpose of operating such airplane; or [(ix)] (VI) a retail sale not in bulk of kero-jet fuel by a fixed base operator registered under this article as a distributor of kero-jet fuel only where such fuel is delivered directly into the fuel tank of an airplane for use in the operation of such airplane. (c) [Limited exemptions for dyed Diesel motor fuel. (i) The tax imposed by this section shall not apply to: (A) the sale of dyed Diesel motor fuel by the importer to a purchaser under the circumstances and subject to the terms and conditions as follows: (1) the importer and purchaser are each registered under this article as a full Diesel motor fuel distributor; (2) such importer has imported the enhanced Diesel motor fuel, which is the subject of the sale, into the state and has dyed such fuel to comply with the provisions of 26 USC S 4082(a) and the regulations thereunder, as may be amended from time to time; (3) the purchaser is a holder of a currently valid direct payment permit issued pursuant to section two hundred eighty-three-d of this article; and (4) such purchaser is primarily engaged in the retail heating oil business and such dyed Diesel motor fuel will be sold by such purchaser in a retail sale to a consumer for use solely as residential or commercial heating oil; (B) a first sale of the dyed Diesel motor fuel, which as the subject of an exempt sale described in clause (A) of this subpara- graph, by the purchaser described therein to a purchaser likewise hold- ing a currently valid direct pay permit under the circumstances and subject to the terms and conditions as follows: (1) the sale of such second purchaser by such first purchaser is the first and only sale of such dyed Diesel motor fuel by such first purchaser; (2) such second purchaser is primarily engaged in the retail heating oil business and such dyed Diesel motor fuel will be sold by such second purchaser in a retail sale to a consumer for use solely as residential or commercial heating oil; (3) on the sale to the second purchaser, such first purchaser described in such clause (A) attaches to the invoice a copy of the invoice given by the importer on the exempt sale described in such clause (A), so as to identify the origin of the dyed Diesel fuel which is the subject of the sale to such second purchaser; and (4) such second purchaser certifies that such dyed Diesel motor fuel is to be sold by it only to a consumer for use solely as residential or commercial heating
oil. (ii) Prior to, or at the time of, such sale of such dyed Diesel motor fuel described in clause (A) or (B) of subparagraph (i) of this paragraph, the purchaser shall give a certificate to the seller setting forth the intended use of the dyed Diesel motor fuel which is sought to be qualified for exemption under this paragraph, that the purchaser has been issued a direct payment permit which is currently valid, that such permit has not been suspended or revoked and that the purchaser other- wise meets the qualifications of this paragraph. (iii) The limited exemptions allowed under this paragraph shall in no event apply to any dyed Diesel motor fuel which is delivered into a repository equipped with hose or other apparatus capable of being used to dispense fuel into the fuel tank of a motor vehicle, or where the purchaser's direct payment permit has been suspended or revoked and the commissioner has made generally available the identity of those persons whose direct payment permits have been suspended or revoked.]
NOTHING IN THIS ARTICLE SHALL EXEMPT NON-HIGHWAY DIESEL MOTOR FUEL FROM THE IMPOSITION OF THE TAX UNDER THIS SECTION, IF SUCH NON-HIGHWAY DIESEL MOTOR FUEL IS INTENDED FOR USE ON THE WATERWAYS OF THE STATE INCLUDING ANY OTHER WATERWAYS BORDERING ON THE STATE, FOR OPERATING PLEASURE OR RECREATIONAL MOTOR BOATS THEREON. 4. The tax imposed by this section on Diesel motor fuel shall be passed through by the seller and included as part of the selling price to each purchaser of such fuel. Provided, however, the amount of the tax imposed by this section may be excluded from the selling price of Diesel motor fuel where (i) a sale of Diesel motor fuel is made to an organiza- tion described in paragraph (a) of subdivision three of this section solely for the purpose stated therein; (ii) a sale of [enhanced] NON-HIGHWAY Diesel motor fuel is made to a consumer [exclusively for the purposes of heating specified in subparagraph (i) of paragraph (b) of subdivision three of this section] but only if such [enhanced] NON-HIGH- WAY Diesel motor fuel is NOT DELIVERED TO A FILLING STATION, NOR deliv- ered into a storage tank which is [not] equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle [and such storage tank is attached to the heating unit burning such fuel, provided that each delivery of such fuel of over four thousand five hundred gallons shall be evidenced by a certificate signed by the purchaser stating that the product will be used exclusively for heating purposes; (iii) a sale is made consisting of no more than four thousand five hundred gallons (or a greater amount which has been given prior clearance by the commissioner of taxation and finance) of Diesel motor fuel in a thirty-day period to a consumer who purchases such fuel for use or consumption directly and exclusively in the production for sale of tangible personal property by farming but only if all of such fuel is consumed other than on the highways or waterways of this state]; or [(iv)] (III) the sale to or delivery at a filling station or other retail vendor of water-white kerosene provided such filling station or other retail vendor only sells such water-white kerosene exclusively for heating purposes in containers of no more than twenty gallons; or [(v)] (IV) a sale of kero-jet fuel is made to an airline for use in its airplanes. 5. All the provisions of this article relating to the administration and collection of the taxes on motor fuel, except sections two hundred eighty-three-a and two hundred eighty-three-b of this article, shall be applicable to the tax imposed by this section with such limitation as specifically provided for in this article with respect to Diesel motor fuel and with such modification as may be necessary to adapt the
language of such provisions to the tax imposed by this section. With respect to the bond or other security required by subdivision three of section two hundred eighty-three of this article, the commissioner [of taxation and finance], in determining the amount of bond or other secu- rity required for the purpose of securing tax payments, shall take into account the volume of [heating fuel] NON-HIGHWAY DIESEL MOTOR FUEL and other Diesel motor fuel sold for exempt purposes by a distributor of Diesel motor fuel during prior periods as a factor reducing potential tax liability along with any other relevant factors in determining the amount of security required. With respect to the bond required to be filed prior to registration as a Diesel motor fuel distributor, no bond shall be required of an applicant upon a finding of the applicant's fiscal responsibility, as reflected by such factors as net worth, current assets and liabilities, and tax reporting and payment history, and the department shall not provide for a minimum bond of every appli- cant. S 6. Subdivision 7 of section 283 of the tax law, as amended by chap- ter 261 of the laws of 1988, is amended to read as follows: 7. Temporary restraining order and permanent [injuction] INJUNCTION against unlawful importation and forfeiture of unlawfully imported or produced [automotive] MOTOR FUEL OR DIESEL MOTOR fuel. (a) Whenever evidence is furnished by the commissioner [of taxation and finance] to any justice of the supreme court, in court or at chambers, showing that any person not registered as a distributor as required by this article has imported [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL into this state or caused [automotive] MOTOR FUEL OR DIESEL MOTOR fuel to be imported into this state or has produced, refined, manufactured or compounded [automotive fuel or has subjected diesel motor fuel to the process of enhancement within this state] MOTOR FUEL OR DIESEL MOTOR FUEL, such justice may make a temporary order without notice prohibiting such person and his agents from selling, transferring or otherwise disposing of any such fuel or any fuel and also prohibiting all other persons in possession of or having control over the same from selling, releasing, transferring or otherwise disposing of any [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL imported, produced, refined, manufac- tured, compounded, [enhanced,] sold or transferred by such person not so registered pending a hearing for a preliminary injunction. (b) Upon granting a temporary order, the court shall direct that a hearing be held at the earliest possible time upon such notice and service as the court shall direct and at the same time, if such action has not yet been commenced, the commissioner [of taxation and finance] shall commence an action in supreme court for a permanent injunction and forfeiture of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL pursuant to paragraph (c) of this subdivision. Where, after such opportunity for a hearing, the court determines that there is a substantial probability that the commissioner will prevail in such action, the court shall grant a preliminary injunction restraining the sale, release, transfer or other disposition of fuel subject to the temporary order. (c) (1) If it is established by clear and convincing evidence that [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL was imported, caused to be imported, produced, refined, manufactured or compounded [or diesel motor fuel was subjected to the process of enhancement] by any person not registered as a distributor as required by this article, the court shall grant a judgment (i) permanently enjoining such person and his agents from selling, transferring or otherwise disposing of any such fuel or any fuel within this state and (ii) declaring the forfeiture of
any fuel that was so imported, caused to be imported, produced, refined, manufactured, OR compounded [or enhanced] by such person. (2) With respect to [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL that was imported, caused to be imported, produced, refined, manufac- tured or compounded, [or diesel motor fuel that was subjected to the process of enhancement] by a person not registered as a distributor as required by this article or that was unlawfully sold or transferred by such person, if it is established by clear and convincing evidence that any other person in possession of or having control over such fuel was not a purchaser or transferee in good faith of such fuel with respect to the fact that such fuel was so imported, caused to be imported, produced, refined, manufactured, OR compounded [or enhanced] by a person not registered as a distributor as required by this article or that such fuel was so unlawfully sold or transferred by such person, the court shall grant a judgment (i) permanently enjoining such other person and his OR HER agents from selling, releasing, transferring or otherwise disposing of any such fuel and (ii) declaring the forfeiture of such fuel in the possession or under the control of such other person. (d) The commissioner may, at any time subsequent to the granting of the temporary order pursuant to paragraph (a) of this subdivision, in his OR HER sole discretion consent to a sale of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL subject to such temporary order which is in the possession or under the control of a person other than the person or the agent of the person who imported, caused to be imported, produced, refined, manufactured, compounded [or enhanced] or unlawfully sold or transferred such fuel. As a condition of granting permission to a sale of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL pursuant to this subdivision, the commissioner shall require the payment of all taxes, penalties and interest imposed by and pursuant to the authority of this chapter with respect to such fuel. (e) (1) At any time during the pendency of an action under this section, the [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL subject to a temporary, preliminary or permanent order hereunder may be released from the scope of such order if there is given an undertaking, in an amount equal to the market value of such fuel plus state excise and sales taxes and federal excise taxes, to the effect that there will be paid to the commissioner the amount of the market value of such fuel and such taxes in the event that such fuel is adjudged forfeited. (2) Any person enjoined by a temporary order or a preliminary injunc- tion issued pursuant to this subdivision may move at any time, on notice, to vacate or modify it. (f) The procedures of the civil practice law and rules applicable to temporary restraining orders, preliminary injunctions and permanent injunctions not inconsistent with this subdivision shall apply to tempo- rary orders, preliminary injunctions and permanent injunctions issued under this subdivision and any provision of this subdivision which is not in accord with the constitutional mandate of such procedures of the civil practice law and rules shall be deemed to be modified as necessary to accord with such a mandate. The procedural provisions set forth in paragraph three of subdivision (d) and in subdivision (j) of section eighteen hundred forty-eight of this chapter shall apply to the forfei- ture proceedings under this subdivision and, in respect to a declaration of forfeiture under this subdivision, the court shall direct the commis- sioner to sell or otherwise dispose of such forfeited [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL on such conditions the commissioner deems most advantageous and just under the circumstances. The commis-
sioner shall not be required to file any undertaking in connection with an action pursuant to this subdivision. S 7. Sections 283-d and 284-b of the tax law are REPEALED. S 8. Subdivision 3 of section 285-b of the tax law, as amended by chapter 245 of the laws of 1989, is amended to read as follows: 3. (a) The claim for or exemption from tax provided for in subpara- graphs (i), (II), (iii), (iv), [(v),] AND (vi)[, (vii) and (ix)] 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 informa- tion as the commissioner [of taxation and finance] 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), [(v),] OR (vi)[, (vii) or (ix)] of paragraph (b) of subdivision three of such section two hundred eighty-two-a. Any purchaser who furnishes to his seller a false or frau- dulent 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 [of taxation and finance] 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 jeop- ardize the revenues from the excise tax on Diesel motor fuel. (b) A claim for the exemption from tax provided for in subparagraph [(ii) or (viii)] (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 applica- ble, 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 purchas- er and by the seller. Such certificate shall be in such form and contain such other information as the commissioner [of taxation and finance] shall require. Where a proper and complete interdistributor sale certif- icate 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 [(ii) or (viii)] (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 inval- id because it has been suspended or cancelled, or if the purchaser is not registered, and the commissioner [of taxation and finance] 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 interdis- tributor 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. S 9. Subdivision 1 of section 286 of the tax law, as amended by chap- ter 302 of the laws of 2006, is amended to read as follows: 1. Every person who imports or causes to be imported into this state, or who produces, refines, manufactures or compounds within this state, or who purchases or sells in this state motor fuel or diesel motor fuel or ingredients which may be manufactured or compounded into motor fuel or diesel motor fuel, [or engages in the enhancement of diesel motor fuel,] shall keep a complete and accurate record of all purchases and sales, uses or other dispositions thereof and a complete and accurate record of the number of gallons of motor fuel or diesel motor fuel or such ingredients so imported, produced, refined, manufactured[,] OR compounded [or enhanced]. Every person who stores motor fuel or diesel motor fuel shall keep a complete and accurate record of the identity of the person for whom such fuel is stored, the quantity and type of fuel so stored, the identity of the person to whom such fuel is released from storage and the quantity and type of fuel so released. Such records shall be in such form and contain such other information as the commis- sioner shall prescribe. Said commissioner, by rule or regulation, also may require the delivery of statements to purchasers with consignments of motor fuel or diesel motor fuel or such ingredients, and prescribe the matters to be contained therein. Such records and statements, unless required by the commissioner to be preserved for a longer period, shall be preserved for a period of three years and shall be offered for inspection at any time upon oral or written demand by such commissioner or the commissioner's duly authorized agents. The commissioner is hereby further authorized to examine the equipment of any such person pertain- ing to the storage, sale or delivery of such fuels, as well as the stock of such fuels in the possession or control of such person. To verify the amount of tax due under this article, each such person is hereby directed and required to give to the commissioner or the commissioner's duly authorized representatives, the means, facilities and opportunity for such examinations as are herein provided for and required. Nothing CONTAINED in this section [contained] shall be construed to require the keeping for purposes of this article of a record of purchases or sales of motor fuel or diesel motor fuel or such ingredients at retail in small quantities (less than thirty gallons) or of motor fuel or diesel motor fuel imported into this state in the tank of a motor vehicle which supplies the fuel for its operation. S 10. Section 286-a of the tax law, as amended by chapter 261 of the laws of 1988, is amended to read as follows: S 286-a. Records and reports of transportation of [automotive] MOTOR FUEL AND DIESEL MOTOR fuel. Every person transporting [automotive] MOTOR FUEL OR DIESEL MOTOR fuel within this state, whether such transportation originates within or without this state, when required by the [tax
commission]
COMMISSIONER, shall keep a true and accurate record of all [automotive] MOTOR FUEL AND DIESEL MOTOR fuel so transported, including ingredients which may be manufactured or compounded into [automotive] MOTOR FUEL OR DIESEL MOTOR fuel, showing such facts with relation to such [automotive] fuel and ingredients and their transportation as the [tax commission] COMMISSIONER may require. Such record shall be open to inspection by the representatives of the department [of taxation and finance] at any time and the [tax commission] COMMISSIONER may require from any such person sworn returns of all or any part of the information shown by such records. S 11. Section 286-b of the tax law, as amended by chapter 261 of the laws of 1988, is amended to read as follows: S 286-b. Transportation of [automotive] MOTOR FUEL OR DIESEL MOTOR fuel; manifest required. 1. The master or other person in charge of any barge, tanker or other vessel in which [automotive] MOTOR FUEL OR DIESEL MOTOR fuel is being transported over any of the navigable waters of this state, the operator of a motor vehicle in which [automotive] MOTOR FUEL OR DIESEL MOTOR fuel is being transported in this state, or the operator of a pipeline through which [automotive] MOTOR FUEL OR DIESEL MOTOR fuel is being transported in this state, other than [automotive] MOTOR FUEL OR DIESEL MOTOR fuel being transported for use in operating the engine which propels such vessel or motor vehicle, as the case may be, must have in his OR HER possession a manifest which shows the name and address of the person from whom such [automotive] fuel was received by him OR HER and the place of receipt of such fuel and the name and address of every person to whom he OR SHE is to make delivery of the same and the place of delivery, together with the number of gallons to be delivered to each such person, and, if such [automotive] fuel is being imported into the state in such vessel, motor vehicle or pipeline for use, storage, distribution or sale in the state, the name of the distributor importing or causing such fuel to be imported into the state and such other information as the [tax commission] COMMISSIONER may require pursuant to rule or regulation, and shall at the request of a peace officer, acting pursuant to his OR HER special duties, a police officer, any representative of the department [of taxation and finance] or any other person authorized by law to inquire into or investigate the transportation of such [automotive] fuel, produce such manifest for inspection. The person causing the operation of such vessel, motor vehi- cle or pipeline shall be responsible to cause the operator of such vessel, motor vehicle or pipeline to keep in his OR HER possession on such vessel, in such motor vehicle or in the main control building of such pipeline in this state the manifest required by this section. The absence of the manifest required by this section shall give rise to a presumption that the [automotive] MOTOR FUEL OR DIESEL MOTOR fuel being transported is intended for sale, use, distribution or storage in this state and is being imported or caused to be imported by other than a registered distributor. Moreover, the absence of (1) the place of deliv- ery of motor fuel OR DIESEL MOTOR FUEL on the manifest with respect to [automotive] MOTOR FUEL OR DIESEL MOTOR fuel being imported into the state shall give rise to a presumption that such fuel is being imported into the state for use, distribution, storage or sale in the state and (2) the name of a registered distributor on the manifest with respect to [automotive] MOTOR FUEL OR DIESEL MOTOR fuel being imported into the state for use, distribution, storage or sale in the state shall give rise to a presumption that such fuel is being so imported or caused to be imported by other than a registered distributor. Every barge, tanker
or other vessel so used for the transportation of motor fuel must be plainly and visibly marked on both sides thereof and above the water line with the word "Gasoline," or other name of the motor fuel being transported, in letters at least eight inches high and of corresponding appropriate width, or must be identified as prescribed by the [tax commission] COMMISSIONER pursuant to rule or regulation. The master or person in charge of such barge, tanker or other vessel, as well as the owners thereof, shall be guilty of a violation of this section if such barge, tanker or other vessel is not so marked. 2. The commissioner may, by regulation provide for the form and content of the manifest required for [automotive] MOTOR AND DIESEL MOTOR fuel and for the filing of monthly information returns by every person required to maintain records, described in subdivision one of this section, which shall in all material respects reflect the information required to be contained in such records. Such returns shall be in such form and contain such other information as the commissioner shall require. S 12. Subdivision 1 of section 287 of the tax law, as amended by chap- ter 261 of the laws of 1988, is amended to read as follows: 1. Every distributor shall, on or before the twentieth day of each month, file with the department [of taxation and finance] a return, on forms to be prescribed by the commissioner and furnished by such depart- ment, stating the number of gallons of motor fuel imported, manufactured or sold by such distributor in the state during the preceding calendar month and in the case of Diesel motor fuel, the number of gallons of [enhanced] Diesel motor fuel imported[, the number of gallons enhanced] and the number of gallons which have been sold or used. Provided, howev- er, the commissioner may, if he OR SHE deems it necessary in order to [insure] ENSURE the payment of the taxes imposed by this article, require returns to be made at such times and covering such periods as he OR SHE may deem necessary, and, by regulation, may permit the filing of returns by distributors of Diesel motor fuel on a quarterly, semi-annual or annual basis, or may waive the filing of returns by a distributor of Diesel motor fuel for such time and upon such terms as he OR SHE may deem proper if satisfied that no tax imposed by this article with respect to Diesel motor fuel is or will be payable by him OR HER during the time for which returns are waived. Such returns shall contain such further information as the commissioner shall require. The fact that a distributor's name is signed to a filed return shall be prima facie evidence for all purposes that the return was actually signed by such distributor. Each such distributor shall, with respect to motor fuel, pay to the department with the filing of such return, the taxes imposed by this article on each gallon of motor fuel imported, manufactured or sold by such distributor in the state, and so reported, during the peri- od covered by such return. Each distributor shall, with respect to Diesel motor fuel, pay to the department with the filing of the return the taxes imposed by this article on the number of gallons of Diesel motor fuel sold or used or delivered to a filling station or delivered into the fuel tank of a motor vehicle during the period covered by the return. Provided, however, that where a distributor has purchased [auto- motive] MOTOR FUEL OR DIESEL MOTOR fuel upon which the taxes imposed by this article have been paid or paid over and in each instance the tax is included in the price, a credit shall be allowed for the amount of such taxes upon the subsequent sale of such fuel to the extent that such taxes are so paid and included in the price.
S 13. Paragraphs (a) and (c) of subdivision 3 of section 289-c of the tax law, paragraph (a) as amended by chapter 558 of the laws of 1965 and paragraph (c) as amended by chapter 302 of the laws of 2006, are amended to read as follows: (a) Except as otherwise provided in paragraph (b) of this section, any person who shall buy any motor fuel or diesel motor fuel, on which the tax imposed by this article shall have been paid, and shall consume the same in any manner except in the operation of a motor vehicle upon or over the PUBLIC highways of this state, or in the operation of a pleas- ure or recreational motor boat upon or over the waterways of the state including waterways bordering on the state, shall be reimbursed the amount of such tax in the manner and subject to the conditions herein provided except that there shall be no reimbursement of tax paid on motor fuel or diesel motor fuel taken out of this state in a fuel tank connected with the engine of a motor vehicle and consumed outside of this state. (c) All claims for reimbursement shall be in such form and contain such information as the commissioner shall prescribe and shall be filed within three years from (i) the date of the purchase, in the case of the purchaser; or (ii) the date of the sale, in the case of the seller, of the motor fuel so subject to reimbursement. Every such claim shall include a certificate by or on behalf of the party presenting the same to the effect that it is just, true and correct, that no part thereof has been paid, except as stated therein, and that the balance therein stated is actually due and owing. The claimant shall satisfy the depart- ment that the claimant has borne the tax and that the motor fuel has been consumed by the claimant in a manner other than the operation of a motor vehicle upon or over the PUBLIC highways of this state, the opera- tion of a pleasure or recreational motorboat upon or over the waterways of the state including waterways bordering on the state or, in the case of an omnibus carrier, taxicab licensee, nonpublic school operator or volunteer ambulance service, that the claimant has borne the tax and that the amount claimed is the amount of such tax reimbursable under paragraph (b), (d), (e) or (f) of THIS subdivision [three of this section]. The department may require such further information or proof as it shall deem necessary for the administration of such claim. Claims for reimbursement approved by the department shall be paid from revenues collected under this article and deposited to the credit of the comp- troller as hereinafter provided; but no such claims shall be paid unless the department is satisfied that the amount of the tax for which the reimbursement is claimed has actually been collected by the state. The amount of any erroneous or excessive payment to a claimant for reimbursement may be determined by the department and may be recovered from such claimant in the same manner as a tax imposed by this article, provided, however, that any such determination shall be made within three years after the date of such erroneous or excessive payment. S 14. Subdivision 4 of sections 289-c of the tax law is REPEALED. S 15. Subdivision 1 of section 289-e of the tax law, as amended by section 5 of part EE of chapter 63 of the laws of 2000, is amended to read as follows: 1. All taxes, interest, penalties and fees collected or received by the commissioner under the taxes imposed by this article, except as provided otherwise in subdivision two and subdivision three of this section and sections two hundred eighty-two-b, two hundred eighty-two-c, two hundred eighty-four-a and two hundred eighty-four-c, other than [those imposed by section two hundred eighty-four-b and] the fee imposed
by section two hundred eighty-four-d and penalties and interest on such fee, shall be deposited and disposed of pursuant to the provisions of section one hundred seventy-one-a of this chapter; provided that an amount equal to thirty-seven and one-half per centum of the moneys collected under section two hundred eighty-four of this chapter shall be appropriated and used for the acquisition of property necessary for the construction and reconstruction of highways and bridges or culverts on the state highway system, and for the construction, maintenance and repair of such highways and bridges or culverts, all under the direction of the commissioner of transportation. S 16. Section 289-f of the tax law, as added by chapter 44 of the laws of 1985, is amended to read as follows: S 289-f. Joint administration of taxes. In addition to the powers granted to the [tax commission] COMMISSIONER in this chapter, the [commission] COMMISSIONER is hereby authorized to make provisions pursu- ant to rules and regulations for the joint administration, in whole or in part, of the state and local taxes imposed by article twenty-eight and authorized to be imposed by article twenty-nine of this chapter upon the sale of [automotive] MOTOR FUEL OR DIESEL MOTOR fuel and the taxes imposed and authorized to be imposed by this article, including the joint reporting, assessment, collection, determination and refund of such taxes, and for that purpose to prescribe that any of the [commis- sion's] COMMISSIONER'S functions under such articles, and any returns, forms, statements, documents or information to be submitted to the [commission] COMMISSIONER under such articles, any books and records to be kept for purposes of the taxes imposed or authorized to be imposed by such articles, any schedules of amounts to be collected under such arti- cles, any registration required under such articles, and the payment of taxes under such articles shall be on a joint basis with respect to the taxes imposed by such articles. S 17. Paragraph 2 of subdivision (b) and subdivisions (c), (k), (l) and (m) of section 300 of the tax law, paragraph 2 of subdivision (b) as amended by chapter 170 of the laws of 1994, subdivision (c) as added by chapter 190 of the laws of 1990, subdivision (k) as amended by section 1 of part H of chapter 407 of the laws of 1999 and subdivisions (l) and (m) as added by chapter 309 of the laws of 1996, are amended to read as follows: (2) With respect to diesel motor fuel, every corporation and unincor- porated business (i) importing diesel motor fuel or causing diesel motor fuel to be imported into the state for use, distribution, storage or sale in the state, (ii) producing, refining, manufacturing or compound- ing diesel motor fuel within the state, (iii) [engaging in the enhance- ment of diesel motor fuel within the state, (iv)] making a sale or use of diesel motor fuel in the state, other than a retail sale not in bulk or self-use of diesel motor fuel which has been the subject of a retail sale to such corporation or unincorporated business, or [(v)] (IV) registered by the department [of taxation and finance] as a "distributor of kero-jet fuel only" pursuant to the provisions of subdivision two of section two hundred eighty-two-a of this chapter. Diesel motor fuel brought into this state in the ordinary fuel tank connecting with the engine of a motor vehicle, airplane or other conveyance, but not a vessel (other than a recreational motor boat or a commercial fishing vessel as defined in subdivision (j) of this section if the diesel motor fuel imported into and consumed in this state is used to operate such vessel while it is engaged in the harvesting of fish for sale), propelled by the use of such diesel motor fuel and to be used only in
the operation thereof, shall not be deemed imported within the meaning of this article, if not removed from such tank except as used in the propulsion of such engine. (c) [(1)] The [term (A)] TERMS (1) "diesel motor fuel" means such term as defined in subdivision fourteen of section two hundred eighty-two of this chapter [and regulations thereunder including any regulations relating to product specifically designated "No. 4 diesel fuel" and not suitable as a fuel used in the operation of a motor vehicle engine], and [(B) "enhanced] (2) "HIGHWAY diesel motor fuel" means such term as defined in subdivision [sixteen] SIXTEEN-A of section two hundred eight- y-two of this chapter, and [(C)(i) "nonautomotive type diesel motor fuel" as used in relation to the rates of the tax imposed by section three hundred one-a of this article means any diesel motor fuel, as described in subparagraph (A) of this paragraph, which would be excluded from the diesel motor fuel excise tax imposed by section two hundred eighty-two-a of this chapter solely by reason of the enumerated exclusions based on ultimate use of the product set forth in paragraph (b) of subdivision three of such section, and (ii) "automotive-type diesel motor fuel" as used in relation to the rates of tax imposed by such section three hundred one-a means diesel motor fuel which is not nonautomotive-type diesel motor fuel.] (3) "NON-HIGHWAY DIESEL MOTOR FUEL" MEANS SUCH TERM AS DEFINED IN SUBDIVISION SIXTEEN OF SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER. [(2)] (4) As used in this article, references to persons or petroleum businesses registered under article twelve-A of this chapter as distrib- utors of diesel motor fuel shall include all such persons or petroleum businesses registered under such article as distributors of diesel motor fuel and persons or petroleum businesses operating under valid limited registrations relating to persons or petroleum businesses making retail sales of diesel motor fuel to consumers solely for the purposes described in subparagraph (i) of paragraph (b) of subdivision three of section two hundred eighty-two-a of this chapter, but such references shall not include persons and petroleum businesses registered as "distributors of kero-jet fuel only" pursuant to the provisions of subdivision two of section two hundred eighty-two-a of this chapter. (k) "Commercial gallonage" means gallonage (1) which is [nonautomo- tive-type] NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor fuel)] or residual petroleum product, (2) which is included in the full measure of the [nonautomotive-type] NON-HIGHWAY diesel motor fuel component or the residual petroleum product component of the tax imposed under section three hundred one-a of this article, [and] (3) which does not (and will not) qualify (A) for the utility credit or reimbursement provided for in section three hundred one-d of this article, (B) as "manufacturing gallonage", as such term is defined in subdivision (m) of this section, (C) for the not-for-profit organization exemption provided for in subdivision (h) of section three hundred one-b of this article, or (D) for the heating exemption provided for in paragraph two of subdi- vision (d) of section three hundred one-b of this article or the heating reimbursement provided for in paragraph two of subdivision (a) of section three hundred one-c of this article, AND (4) WHICH WILL NOT BE USED NOR HAS BEEN USED IN THE FUEL TANK CONNECTING WITH THE ENGINE OF A VESSEL. No gallonage shall qualify as "commercial gallonage" where such gallonage is eligible for the (i) utility credit or reimbursement under such section three hundred one-d of this article, (ii) [if before Janu- ary first, nineteen hundred ninety-eight, the manufacturing exemption or
reimbursement under paragraph one of subdivision (b) of section three hundred one-j of this article and, if on or after January first, nine- teen hundred ninety-eight, the]
"manufacturing exemption" under para- graph [four] THREE of subdivision (f) of section three hundred one-a of this article, (iii) [the] not-for-profit organization exemption under subdivision (h) of section three hundred one-b of this article, or (iv) heating exemption provided for in paragraph two of subdivision (d) of section three hundred one-b of this article or the heating reimbursement provided for in paragraph two of subdivision (a) of section three hundred one-c of this article. The commissioner shall require such docu- mentary proof to substantiate the classification of product as "commer- cial gallonage" as the commissioner deems appropriate. (l) "Railroad diesel" means NON-HIGHWAY diesel motor fuel for use and consumption directly and exclusively in the operation of a locomotive or a self-propelled vehicle run only on rails or tracks, but only if either (1) all such fuel is delivered into a storage facility which is not equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle and such facility is used only to fuel such locomotives or such self-propelled vehicles, or (2) in accordance with the terms of sale, all such fuel is delivered directly into the tank of a locomotive or self-propelled vehicle. Provided, however, that a sale to a purchaser who will use such NON-HIGHWAY diesel motor fuel as "railroad diesel" shall be evidenced by a certificate signed by the purchaser stating that such diesel motor fuel will be used and consumed as prescribed in this subdivision and the commissioner may require such other information as the commissioner deems appropriate. (m) "Manufacturing gallonage" means residual petroleum product or NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor fuel)] used and consumed directly and exclusively in the production of tangible personal property for sale by manufacturing, processing or assembly, but only if (I) all of such fuel or product is delivered on the manufacturing site [and is consumed other than on the highways of this state], OR (II) THE PURCHASER CAUSES SUCH FUEL OR PRODUCT TO BE DELIVERED TO ITS MANUFACTURING SITE. "Manufacturing gallonage" shall in no event [include diesel motor fuel] BE CONSUMED ON THE PUBLIC HIGHWAYS OF THIS STATE OR delivered at a filling station or into a repository which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle. The commissioner shall require such documentary proof to substantiate the classification of product as "manufacturing gallonage" as the commissioner deems appro- priate. S 18. Section 301 of the tax law is REPEALED. S 19. Subdivision (a), paragraph 1 of subdivision (b) and subdivisions (c), (e), (f) and (h) of section 301-a of the tax law, subdivision (a) as amended by section 1 of part U of chapter 63 of the laws of 2000, paragraph 1 of subdivision (b) and paragraph 1 of subdivision (c) as amended by section 154 of part A of chapter 389 of the laws of 1997, subdivisions (c), (e), (f) and (h) as added by chapter 190 of the laws of 1990, paragraph 3 of subdivision (e) and paragraph 3 of subdivision (f) as amended by chapter 170 of the laws of 1994 and paragraph 4 of subdivision (e) and paragraph 4 of subdivision (f) as added by chapter 309 of the laws of 1996, are amended to read as follows: (a) General. Notwithstanding any other provision of this chapter, or of any other law, [for taxable months commencing on or after the first day of September, nineteen hundred ninety,] there is hereby imposed upon
every petroleum business for the privilege of engaging in business, doing business, employing capital, owning or leasing property, or main- taining an office in this state, a monthly tax for each or any part of a taxable month equal to the sum of the motor fuel component determined pursuant to subdivision (b) of this section, the [automotive-type] HIGH- WAY diesel motor fuel component determined pursuant to paragraph one of subdivision (c) of this section, the [nonautomotive-type] NON-HIGHWAY diesel motor fuel component determined pursuant to paragraph two of subdivision (c) of this section and the residual petroleum product component determined pursuant to subdivision (d) of this section. (1) The motor fuel component shall be determined by multiplying the motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate times the number of gallons of (1) motor fuel imported or caused to be imported into this state by the petroleum business for use, distrib- ution, storage or sale in the state or (2) produced, refined, manufac- tured or compounded in the state by the petroleum business during the month covered by the return under this article. Provided, however, that no motor fuel shall be included in the measure of the tax unless it shall have previously come to rest within the meaning of federal deci- sional law interpreting the United States constitution, nor shall any motor fuel be included in the measure of the tax imposed by this article more than once. (c) (1) [Automotive-type] HIGHWAY Diesel motor fuel component. (A) The [automotive-type] HIGHWAY diesel motor fuel component shall be deter- mined by multiplying the motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate times (1) the number of gallons of [automotive-type] HIGHWAY diesel motor fuel sold or used by a petroleum business in this state during the month covered by the return under this article and (2) with respect to any gallonage which prior thereto has not been included in the measure of the tax imposed by this article, times the number of gallons of HIGHWAY diesel motor fuel delivered (i) to a filling station or (ii) into the fuel tank connecting with the engine of a motor vehicle for use in the operation thereof, whichever of the latter two events shall be the first to occur. Provided, however, that no HIGHWAY diesel motor fuel shall be included in the measure of the tax unless it shall have previously come to rest within the meaning of federal decisional law interpreting the United States constitution, nor decisional law, nor shall any HIGHWAY diesel motor fuel be included in the measure of the tax imposed by this article more than once. (B) [Diesel] HIGHWAY DIESEL motor fuel brought into this state in the fuel tank connecting with the engine of a vessel propelled by the use of such diesel motor fuel shall be deemed to constitute a taxable use of diesel motor fuel for the purpose of this paragraph to the extent of the fuel that is consumed in the operation of the vessel in this state. Provided, however, this paragraph shall not apply to (i) a recreational motor boat or (ii) [subsequent to August thirty-first, nineteen hundred ninety-four,] a commercial fishing vessel (as defined in subdivision (j) of section three hundred of this article) if the diesel motor fuel imported into and consumed in this state is used to operate such commer- cial fishing vessel while it is engaged in the harvesting of fish for sale. Provided, further, that tax liability for gallonage that a vessel consumes in this state shall be the tax liability with respect to the positive difference between the gallonage consumed in this state during the reporting period and the gallonage purchased in this state (upon which the tax imposed by this section has been paid) during such period. A credit or refund shall be available for any excess of tax liability
for gallonage purchased in this state during the period over tax liabil- ity on gallonage so consumed in this state during such period, which excess shall be presumed to have been used outside this state. (2) [Nonautomotive-type] NON-HIGHWAY diesel motor fuel component. The [nonautomotive-type] NON-HIGHWAY diesel fuel component shall be deter- mined by multiplying the [nonautomotive-type] NON-HIGHWAY diesel motor fuel rate times the number of gallons of [nonautomotive-type] NON-HIGH- WAY diesel motor fuel sold or used by a petroleum business in this state during the month covered by the return under this section. Provided, however, that no NON-HIGHWAY diesel motor fuel shall be included in the measure of the tax unless it shall have previously come to rest within the meaning of federal decisional law interpreting the United States constitution, nor shall any [nonautomotive-type] NON-HIGHWAY diesel motor fuel be included in the measure of the tax imposed by this article more than once. (e) Motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate. (1) The basic motor fuel and HIGHWAY diesel [automotive-type] motor fuel rate shall be [five and one-half] TEN AND TWO-TENTHS cents per gallon. (2) [Commencing April first, nineteen hundred ninety-one, the motor fuel and automotive-type diesel motor fuel rate shall be the product of the basic rate set forth in paragraph one of this subdivision multiplied by a fraction, the numerator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the United States department of labor for the category of commodities designated "refined petroleum products" for the twelve consecutive months ending with the month of November, nineteen hundred ninety, and the denominator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the United States department of labor for the category of commodities designated "refined petroleum products" for the twelve consecutive months ending with the month of November, nineteen hundred eighty-nine. (3) Commencing on the first day of January, nineteen hundred ninety- two, the motor fuel and automotive-type diesel motor fuel rate then in effect on the immediately preceding December thirty-first shall be adjusted as follows: such rate shall be multiplied by a fraction the numerator of which is the sum of the monthly producer price index (unad- justed) published by the bureau of labor statistics of the United States department of labor for the category of commodities designated "refined petroleum products" for the twelve consecutive months ending with the month of August, nineteen hundred ninety-one and the denominator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the United States depart- ment of labor for the category of commodities designated "refined petro- leum products" for the twelve consecutive months ending with the month of August, nineteen hundred ninety. Commencing on the first day of Janu- ary of nineteen hundred ninety-six and every] EVERY year [thereafter] AS OF JANUARY FIRST, the motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate then in effect on the immediately preceding December thirty-first shall be adjusted as follows: such rate shall be multiplied by a fraction the numerator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the United States department of labor for the category of commodities designated "refined petroleum products" for the twelve consecutive months ending with the month of August of the immediately preceding year and the denominator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the
United States department of labor for the category of commodities desig- nated "refined petroleum products" for the twelve consecutive months ending with the month of August in the year prior to such immediately preceding year, provided, however, that the adjusted rate [to take effect on January first, nineteen hundred ninety-six and each January first thereafter] shall not increase above or decrease below the rate in effect on the immediately preceding December thirty-first by more than five percent. [(4)] (3) Notwithstanding any other provision of this article, [commencing January first, nineteen hundred ninety-seven,] the per gallon rate with respect to "railroad diesel" shall be the adjusted motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate under paragraphs one [through three] AND TWO of this subdivision [for the period commencing such January first, nineteen hundred ninety-seven,] minus one and three tenths cents per gallon. [Commencing on the first day of January each year thereafter, the per gallon rate with respect to "railroad diesel" shall be determined by taking the then motor fuel and automotive-type diesel motor fuel rate under paragraphs one through three of this subdivision which commences on such first day of January and subtracting one and three tenths cents per gallon.] (f) [Nonautomotive-type] NON-HIGHWAY diesel motor fuel rate. (1) The basic [nonautomotive-type] NON-HIGHWAY diesel motor fuel rate shall be [five] NINE AND THREE-TENTHS cents per gallon. (2) [Commencing April first, nineteen hundred ninety-one, the nonauto- motive-type diesel motor fuel rate shall be the product of the basic rate set forth in paragraph one of this subdivision multiplied by a fraction the numerator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the United States department of labor for the category of commodities desig- nated "refined petroleum products" for the twelve consecutive months ending with the month of November, nineteen hundred ninety, and the denominator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of the labor statistics of the United States department of labor for the category of commodities desig- nated "refined petroleum products" for the twelve consecutive months ending with the month of November, nineteen hundred eighty-nine. (3) Commencing on the first day of January, nineteen hundred ninety- two, the nonautomotive-type diesel motor fuel rate then in effect on the immediately preceding December thirty-first shall be adjusted as follows: Such rate shall be multiplied by a fraction the numerator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the United States depart- ment of labor for the category of commodities designated "refined petro- leum products" for the twelve consecutive months ending with the month of August, nineteen hundred ninety-one and the denominator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the United States department of labor for the category of commodities designated "refined petroleum products" for the twelve consecutive months ending with the month of August, nine- teen hundred ninety. Commencing on the first day of January of nineteen hundred ninety-six and every] EVERY year [thereafter,] AS OF JANUARY FIRST the [nonautomotive-type] NON-HIGHWAY diesel motor fuel rate then in effect on the immediately preceding December thirty-first shall be adjusted as follows: Such rate shall be multiplied by a fraction the numerator of which is the sum of the monthly producer price index (unad- justed) published by the bureau of labor statistics of the United States
department of labor for the category of commodities designated "refined petroleum products" for the twelve consecutive months ending with the month of August of the immediately preceding year and the denominator of which is the sum of the monthly producer price index (unadjusted) published by the bureau of labor statistics of the United States depart- ment of labor for the category of commodities designated "refined petro- leum products" for the twelve consecutive months ending with the month of August in the year prior to such immediately preceding year, provided, however, that the adjusted rate [to take effect on January first, nineteen hundred ninety-six and each January first thereafter] shall not increase above or decrease below the rate in effect on the immediately preceding December thirty-first by more than five percent. [(4)] (3) Notwithstanding any other provision of this article, [commencing January first, nineteen hundred ninety-eight, nonautomo- tive-type] NON-HIGHWAY diesel motor fuel which is "manufacturing gallo- nage," as such term is defined in subdivision (m) of section three hundred of this article, shall be exempt from the measure of the [nonau- tomotive-type] NON-HIGHWAY diesel motor fuel component of the tax imposed under this section. (h) Publication and rounding of rate. (1) The commissioner [of taxa- tion and finance] shall cause to be published in the section for miscel- laneous notices in the state register, and give other appropriate gener- al notice of, the rate adjustment calculation and the resulting motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate, [nonautomo- tive-type] NON-HIGHWAY diesel motor fuel rate and residual petroleum product rate fixed by this section for the period commencing on [April first, nineteen hundred ninety-one, no later than the immediately preceding first day of March] JANUARY FIRST, TWO THOUSAND TWELVE, and for each calendar year thereafter, no later than the immediately preced- ing first day of December. The calculation and publication of the rates of tax so fixed by provisions of this section shall not be included within paragraph (a) of subdivision two of section one hundred two of the state administrative procedure act relating to the definition of a rule. (2) The rates determined pursuant to this section shall be rounded to the nearest one-tenth of one cent. S 19-a. Subdivision (k) of section 301-a of the tax law is REPEALED. S 20. Section 301-a of the tax law is amended by adding a new subdivi- sion (m) to read as follows: (M) SPECIAL PROVISION RELATING TO VESSELS. NOTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE CONTRARY, THE USE OF NON-HIGHWAY DIESEL MOTOR FUEL IN THE ENGINE OF A VESSEL TO PROPEL SUCH VESSEL SHALL BE SUBJECT TO TAX AT THE MOTOR FUEL AND HIGHWAY DIESEL MOTOR FUEL RATE PROVIDED FOR IN THIS SECTION, AND SHALL BE SUBJECT TO THE PROVISIONS OF SECTION THREE HUNDRED ONE-J OF THIS ARTICLE, INCLUDING THE ADJUSTMENT SET FORTH IN PARAGRAPH FOUR OF SUBDIVISION (A) OF SUCH SECTION THREE HUNDRED ONE-J. A CREDIT OR REFUND SHALL BE AVAILABLE TO THE EXTENT TAX PAID ON GALLONAGE USED TO PROPEL ANY SUCH VESSEL EXCEEDS THE AMOUNT OF TAX DUE BASED ON THE TAX RATE SET FORTH HEREIN. PROVIDED, THIS SUBDIVI- SION SHALL NOT APPLY TO (A) A RECREATIONAL MOTOR BOAT, OR (B) A COMMER- CIAL FISHING VESSEL (AS DEFINED IN SUBDIVISION (J) OF SECTION THREE HUNDRED OF THIS ARTICLE) IF THE NON-HIGHWAY DIESEL MOTOR FUEL IS USED TO OPERATE SUCH COMMERCIAL FISHING VESSEL WHILE IT IS ENGAGED IN THE HARVESTING OF FISH FOR SALE. PROVIDED, HOWEVER, THAT THE COMMISSIONER SHALL REQUIRE SUCH DOCUMENTARY PROOF TO QUALIFY FOR ANY CREDIT OR REIMBURSEMENT PROVIDED HEREUNDER AS THE COMMISSIONER DEEMS APPROPRIATE.
S 21. Paragraph 2 of subdivision (b), paragraphs 2 and 3 of subdivi- sion (c), subdivisions (d) and (e), paragraph 1 of subdivision (f) and subdivisions (g), (h) and (i) of section 301-b of the tax law, paragraph 2 of subdivision (b) and paragraphs 2 and 3 of subdivision (c) and subdivision (e) as added by chapter 190 of the laws of 1990, the opening paragraph of paragraph 2 of subdivision (b) as amended by section 155 of part A of chapter 389 of the laws of 1997, subdivision (d) as amended by section 2 of part H of chapter 407 of the laws of 1999 and subparagraph (C) of paragraph 2 of subdivision (d) as amended by section 1 of part X of chapter 63 of the laws of 2000, paragraph 1 of subdivision (f) as added by chapter 166 of the laws of 1991, subdivision (g) as added by chapter 170 of the laws of 1994, subdivision (h) as amended by chapter 302 of the laws of 2006 and subdivision (i) as added by chapter 468 of the laws of 2000, are amended to read as follows: (2) [Enhanced] HIGHWAY diesel motor fuel imported or caused to be imported into this state or produced, refined, manufactured or compounded in this state by a petroleum business registered under arti- cle twelve-A of this chapter, as a distributor of diesel motor fuel, which is sold by such petroleum business to a purchaser who then exports such HIGHWAY diesel motor fuel from this state for sale or use outside the state where (A) such purchaser 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 product being so exported, (B) in connection with the exportation, such fuel was immediately shipped to an identified facility in the state to which such fuel is exported, and (C) the rules and regulations of the commissioner [of taxation and finance] relating to evidentiary requirements are complied with. (2) [Enhanced] HIGHWAY diesel motor fuel imported or caused to be imported into this state or produced, refined, manufactured or compounded by a petroleum business registered under article twelve-A of this chapter, as a distributor of diesel motor fuel, and then sold by such petroleum business to an organization described in paragraph one or two of subdivision (a) of section eleven hundred sixteen of this chapter where such HIGHWAY DIESEL motor fuel is used by such organization for its own use or consumption. (3) NON-HIGHWAY Diesel motor fuel[, which is not enhanced diesel motor fuel,] sold by a petroleum business registered under article twelve-A of this chapter as a distributor of diesel motor fuel to an organization described in paragraph one or two of subdivision (a) of section eleven hundred sixteen of this chapter where such NON-HIGHWAY diesel motor fuel is used by such organization for its own use or consumption. (d) Sales to consumers for heating purposes. (1) Total residential heating exemption. [(A) Unenhanced] NON-HIGHWAY diesel motor fuel sold by a petroleum business registered under article twelve-A of this chap- ter as a distributor of diesel motor fuel or residual petroleum product sold by a petroleum business registered under this article as a residual petroleum product business to the consumer exclusively for residential heating purposes[. (B) Enhanced diesel motor fuel sold by a petroleum business registered under article twelve-A of this chapter as a distributor of diesel motor fuel to the consumer exclusively for residential heating purposes but] only if such [enhanced] NON-HIGHWAY diesel motor fuel is delivered into a storage tank which is not equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle
and such storage tank is attached to the heating unit burning such fuel[, provided, that with respect to each delivery of such fuel over four thousand five hundred gallons, to obtain this exemption there shall be required a certificate signed by the purchaser stating that the prod- uct will be used exclusively for residential heating purposes]. (2) Partial non-residential heating exemption. (A) [Unenhanced] NON-HIGHWAY diesel motor fuel sold by a petroleum business registered under article twelve-A of this chapter as a distributor of diesel motor fuel or residual petroleum product sold by a petroleum business regis- tered under this article as a residual petroleum product business to the consumer exclusively for heating, other than residential heating purposes. (B) [Enhanced diesel motor fuel sold by a petroleum business regis- tered under article twelve-A of this chapter as a distributor of diesel motor fuel to the consumer exclusively for heating, other than residen- tial heating purposes, but] only if such [enhanced] NON-HIGHWAY diesel motor fuel is delivered into a storage tank which is not equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle and such storage tank is attached to the heating unit burning such fuel[, provided, that with respect to each delivery of such fuel over four thousand five hundred gallons, to obtain this exemption there shall be required a certificate signed by the purchaser stating that the product will be used exclusively for heating, other than residential heating purposes. (C)] Calculation of partial exemption. [Notwithstanding any other provision of this article, commencing April first, two thousand one and ending August thirty-first, two thousand two, the amount of the partial exemption under this paragraph shall be determined by multiplying the quantity of diesel motor fuel and residual petroleum product eligible for the exemption times the sum of the then current rate of the supple- mental tax imposed by section three hundred one-j of this article and twenty percent of the then current rate of the tax imposed by section three hundred one-a of this article, with respect to the specific diesel motor fuel or residual petroleum product rate, as the case may be, and commencing September first, two thousand two, the amount of the] THE partial exemption under this paragraph shall be determined by multiply- ing the quantity of NON-HIGHWAY diesel motor fuel and residual petroleum product eligible for the exemption times the sum of the then current rate of the supplemental tax imposed by section three hundred one-j of this article and forty-six percent of the then current rate of the tax imposed by section three hundred one-a of this article, with respect to the specific NON-HIGHWAY diesel motor fuel or residual petroleum product rate, as the case may be. (e) Sales of NON-HIGHWAY diesel motor fuel and residual petroleum product to registered distributors of diesel motor fuel and registered residual petroleum product businesses. (1) NON-HIGHWAY Diesel motor fuel[, which is not enhanced diesel motor fuel,] sold by a person registered under article twelve-A of this chap- ter as a distributor of diesel motor fuel to a person registered under such article twelve-A as a distributor of diesel motor fuel where such sale is not a retail sale or a sale that involves a delivery at a fill- ing station or into a repository equipped with a hose or other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can be dispensed into the fuel tank of a motor vehicle. (2) Residual petroleum product sold by a person registered under this article as a residual petroleum product business to a person registered
under this article as a residual petroleum product business where such sale is not a retail sale. Provided, however, that the commissioner [of taxation and finance] may require such documentary proof to qualify for any exemption provided in this section as the commissioner deems appro- priate, including the expansion of any certifications required pursuant to section two hundred eighty-five-a or two hundred eighty-five-b of this chapter to cover the taxes imposed by this article. (1) Residual petroleum product and NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor fuel)] sold to an electric corpo- ration, as described in subdivision (a) of section three hundred one-d of this article, which is registered with the department [of taxation and finance] as a petroleum business tax direct pay permittee, and used by such electric corporation to fuel generators for the purpose of manu- facturing or producing electricity where such electric corporation provides a copy of a direct pay permit authorized and issued by the commissioner [of taxation and finance], to the petroleum business making such sale. If so registered, such corporation shall be a taxpayer under this article and (i) such electric corporation shall file a return monthly and pay the applicable tax under this article, after the appli- cation of allowable credits, on all such purchases directly to the commissioner, (ii) such electric corporation shall be subject to all of the provisions of this article relating to the responsibilities and liabilities of taxpayers under this article with respect to such resi- dual petroleum product and NON-HIGHWAY diesel motor fuel. (g) Sales or uses of NON-HIGHWAY diesel motor fuel and residual petro- leum product for farm production. NON-HIGHWAY Diesel motor fuel or resi- dual petroleum product sold to or used by a consumer who purchases or uses such NON-HIGHWAY DIESEL MOTOR fuel or product for use or consump- tion directly and exclusively in the production for sale of tangible personal property by farming, but only if all such NON-HIGHWAY DIESEL MOTOR fuel or product is delivered on the farm site and is consumed other than on the PUBLIC highways of this state (except for the use of the PUBLIC highway to reach adjacent farmlands)[; provided, however, that a farmer may purchase no more than four thousand five hundred gallons of diesel motor fuel in a thirty-day period for such use or consumption exempt from the measure of the tax imposed by section three hundred one-a of this article, except in accordance with prior clearance given by the commissioner]. (h) Exemption for certain not-for-profit organizations. There shall be exempt from the measure of the petroleum business tax imposed by section three hundred one-a of this article a sale or use of residual petroleum product, OR NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor fuel) or dyed diesel motor fuel,] to or by an organization which has qualified under paragraph four or five of subdivision (a) of section eleven hundred sixteen of this chapter where such NON-HIGHWAY diesel motor fuel or residual petroleum product is exclusively for use and consumption by such organization, but only if all of such NON-HIGHWAY diesel motor fuel or product is consumed other than on the PUBLIC high- ways of this state. Provided, however, this exemption shall in no event apply to a sale of NON-HIGHWAY diesel motor fuel which involves a deliv- ery at a filling station or into a repository which is equipped with a hose or other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can be dispensed into the fuel tank of a motor vehicle and all deliveries hereunder shall be made to the premises occupied by the qualifying organization and used by such organization in furtherance of the exempt purposes of such organization. Provided, however, that the commissioner
shall require such documentary proof to qualify for any exemption provided herein as the commissioner deems appropriate. Provided, further, the distributor selling such NON-HIGHWAY DIESEL MOTOR fuel and product shall separately report on its return the gallonage sold during the reporting period exempt from tax under the provisions of this subdi- vision and provide such other information with respect to such sales as the commissioner deems appropriate to prevent evasion. [The term "dyed diesel motor fuel" as used in this subdivision shall have the same mean- ing it has in subdivision eighteen of section two hundred eighty-two of this chapter.] (i) Exemption for passenger commuter ferries. A use by a passenger commuter ferry of NON-HIGHWAY diesel motor fuel or residual petroleum product where such NON-HIGHWAY diesel motor fuel or residual petroleum product was used and consumed by a passenger commuter ferry exclusively in providing mass transportation service. Provided, that the commission- er shall require such documentary proof to qualify for any exemption provided hereunder as the commissioner deems appropriate. S 22. Subdivision (j) of section 301-b of the tax law is REPEALED. S 23. Subdivisions (a), (e), (f), (h), (i), (j), (k), (l) and (m) of section 301-c of the tax law, subdivision (a) as amended by section 4 and subdivision (l) as added by section 5 of part H of chapter 407 of the laws of 1999, subparagraph (B) of paragraph 2 of subdivision (a) as amended by section 2 of part X of chapter 63 of the laws of 2000, subdi- visions (e) and (f) as added by chapter 170 of the laws of 1994, subdi- vision (h) as amended by chapter 302 of the laws of 2006, subdivisions (i), (j) and (k) as added by chapter 309 of the laws of 1996, and subdi- vision (m) as added by chapter 468 of the laws of 2000, are amended to read as follows: (a) NON-HIGHWAY Diesel motor fuel used for heating purposes. (1) Total residential heating reimbursement. NON-HIGHWAY Diesel motor fuel purchased in this state and sold by such purchaser to a consumer for use exclusively for residential heating purposes but only where (i) such NON-HIGHWAY diesel motor fuel is delivered into a storage tank which is not equipped with a hose or other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can be dispensed into the fuel tank of a motor vehicle and such storage tank is attached to the heating unit burning such NON- HIGHWAY DIESEL MOTOR fuel, (ii) the tax imposed pursuant to this article has been paid with respect to such NON-HIGHWAY diesel motor fuel and the entire amount of such tax has been absorbed by such purchaser, and (iii) such purchaser possesses documentary proof satisfactory to the commis- sioner evidencing the absorption by it of the entire amount of the tax imposed pursuant to this article. Provided, however, that the commis- sioner is authorized, in the event that the commissioner determines that it would not threaten the integrity of the administration and enforce- ment of the tax imposed by this article, to provide a reimbursement with respect to a retail sale to a consumer for residential heating purposes of less than ten gallons of NON-HIGHWAY diesel motor fuel provided such fuel is not dispensed into the tank of a motor vehicle. [Provided, further, that with respect to each delivery of enhanced diesel motor fuel of over four thousand five hundred gallons, to obtain this reimbursement there shall be required a certificate signed by the consumer stating that the product will be used exclusively for residen- tial heating purposes.] (2) Partial non-residential heating reimbursement. (A) NON-HIGHWAY Diesel motor fuel purchased in this state and sold by such purchaser to a consumer for use exclusively for heating, other than for residential
heating purposes, but only where (i) such NON-HIGHWAY diesel motor fuel is delivered into a storage tank which is not equipped with a hose or other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can be dispensed into the fuel tank of a motor vehicle and such storage tank is attached to the heating unit burning such NON-HIGHWAY DIESEL MOTOR fuel, (ii) the tax imposed pursuant to this article has been paid with respect to such NON-HIGHWAY diesel motor fuel and the entire amount of such tax has been absorbed by such purchaser, and (iii) such purchaser possesses documentary proof satisfactory to the commissioner evidencing the absorption by it of the entire amount of the tax imposed pursuant to this article. [Provided, however, that with respect to each delivery of enhanced diesel motor fuel of over four thousand five hundred gallons, to obtain this reimbursement there shall be required a certificate signed by the consumer stating that the product will be used exclusively for heating, other than for residential heating purposes.] (B) Calculation of partial reimbursement. Notwithstanding any other provision of this article, [commencing April first, two thousand one and ending August thirty-first, two thousand two, the amount of the reimbursement under this paragraph shall be determined by multiplying the quantity of diesel motor fuel eligible for the reimbursement times the sum of the then current rate of the supplemental tax imposed by section three hundred one-j of this article and twenty percent of the then current rate of the tax imposed by section three hundred one-a of this article, with respect to the specific diesel motor fuel rate, as the case may be, and commencing September first, two thousand two,] the amount of the reimbursement under this paragraph shall be determined by multiplying the quantity of NON-HIGHWAY diesel motor fuel eligible for the reimbursement times the sum of the then current rate of the supple- mental tax imposed by section three hundred one-j of this article and forty-six percent of the then current rate of the tax imposed by section three hundred one-a of this article, with respect to the [specific] NON-HIGHWAY diesel motor fuel rate, as the case may be. (e) NON-HIGHWAY Diesel motor fuel and residual petroleum product used for farm production. NON-HIGHWAY Diesel motor fuel or residual petroleum product purchased in this state and sold by such purchaser to a consumer for use or consumption directly and exclusively in the production for sale of tangible personal property by farming, but only if all of such NON-HIGHWAY DIESEL MOTOR fuel or product is delivered on the farm site and is consumed other than on the PUBLIC highways of this state (except for the use of the PUBLIC highway to reach adjacent farmlands)[; provided, however, that a subsequent purchaser shall be eligible for this reimbursement with respect to no more than four thousand five hundred gallons of diesel motor fuel sold to a consumer in a thirty-day period for such use or consumption, except in accordance with prior clearance given by the commissioner]. This reimbursement may be claimed only where (i) the tax imposed pursuant to this article has been paid with respect to such NON-HIGHWAY diesel motor fuel or residual petroleum product and the entire amount of such tax has been absorbed by such purchaser, and (ii) such purchaser possesses documentary proof satisfac- tory to the commissioner evidencing the absorption by it of the entire amount of the tax imposed pursuant to this article. Provided, however, that the commissioner shall require such documentary proof to qualify for any reimbursement of tax provided by this section as the commission- er deems appropriate[, including any certification required pursuant to section two hundred eighty-five-b of this chapter and any such prior clearance described in the first sentence of this subdivision].
(f) Motor fuel used for farm production. No more than one thousand five hundred gallons of motor fuel purchased in this state in a thirty- day period or a greater amount which has been given prior clearance by the commissioner, by a consumer for use or consumption directly and exclusively in the production for sale of tangible personal property by farming, but only if all of such fuel is delivered on the farm site and is consumed other than on the PUBLIC highways of this state (except for the use of the highway to reach adjacent farmlands). This reimbursement to such purchaser who used such motor fuel in the manner specified in this subdivision may be claimed only where, (i) the tax imposed pursuant to this article has been paid with respect to such motor fuel and the entire amount of such tax has been absorbed by such purchaser, and (ii) such purchaser possesses documentary proof satisfactory to the commis- sioner evidencing the absorption by it of the entire amount of the tax imposed pursuant to this article. Provided, however, that the commis- sioner shall require such documentary proof to qualify for any reimbursement of tax provided by this subdivision as the commissioner deems appropriate. The commissioner is hereby empowered to make such provisions as deemed necessary to define the procedures for granting prior clearance for purchases of more than one thousand five hundred gallons in a thirty-day period. (h) A subsequent purchaser which is registered as a distributor of diesel motor fuel shall be eligible for reimbursement of the tax imposed by section three hundred one-a of this article with respect to gallonage of residual petroleum product[,] AND NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor fuel) and dyed diesel motor fuel,] subsequently sold by such purchaser to an organization which has quali- fied under paragraph four or five of subdivision (a) of section eleven hundred sixteen of this chapter for the exclusive use and consumption by such organization. Provided, however, this exemption shall in no event apply to a sale of NON-HIGHWAY diesel motor fuel which involves a deliv- ery at a filling station or into a repository which is equipped with a hose or other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can be dispensed into the fuel tank of a motor vehicle and all deliveries hereunder shall be made to the premises occupied by the qualifying organization and used by such organization in furtherance of the exempt purposes of such organization. This reimbursement may be claimed only where (i) the tax imposed pursuant to this article has been paid with respect to such NON-HIGHWAY diesel motor fuel or residual petroleum product and the entire amount of such tax has been absorbed by such purchaser, and (ii) such purchaser possesses documentary proof satisfac- tory to the commissioner evidencing the absorption by it of the entire amount of the tax imposed pursuant to this article. Provided, further, that the commissioner shall require such other documentary proof to qualify for any reimbursement of tax provided by this section as the commissioner deems appropriate. [The term "dyed diesel motor fuel" as used in this subdivision shall have the same meaning it has in subdivi- sion eighteen of section two hundred eighty-two of this chapter.] (i) Reimbursement for commercial gallonage. (1) [Commencing March first, nineteen hundred ninety-seven, a] A reimbursement shall be allowed to a consumer with respect to gallonage of [nonautomotive-type] NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor fuel)] or residual petroleum product (i) which was purchased by such consumer and where the supplemental tax imposed by section three hundred one-j of this article with respect to such gallonage was paid by a petroleum business and passed through to such consumer, (ii) such
consumer absorbed the entirety of such tax in the purchase price of such gallonage, and (iii) such gallonage was used and consumed by such consumer exclusively as "commercial gallonage". Provided, however, that the commissioner shall require such documentary proof to qualify for any reimbursement of tax provided by this subdivision as the commissioner deems appropriate, including a certification by the consumer that the product was used and consumed exclusively as "commercial gallonage" by such consumer. (2) Calculation. The amount of the reimbursement shall be determined by multiplying the quantity of "commercial gallonage" eligible for reimbursement times the then current rate of the supplemental tax imposed by section three hundred one-j of this article with respect to [nonautomotive-type] NON-HIGHWAY diesel motor fuel or residual petroleum product, as the case may be. Any reimbursement of tax may be applied for not more often than monthly. (j) Reimbursement for manufacturing gallonage. [Commencing January first, nineteen hundred ninety-eight, a] A subsequent purchaser shall be eligible for reimbursement of any taxes imposed under this article with respect to gallonage of residual petroleum product and NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor fuel),] subse- quently sold by such purchaser to a consumer as "manufacturing gallo- nage." This reimbursement may be claimed only where (1) any tax imposed pursuant to this article has been paid with respect to such gallonage and the entire amount of such tax has been absorbed by such purchaser, and (2) such purchaser possesses documentary proof satisfactory to the commissioner evidencing the absorption by it of the entire amount of such tax. Provided, however, that the commissioner shall require such documentary proof to qualify for any reimbursement of tax provided by this subdivision as the commissioner deems appropriate including a certificate by the consumer that such product is to be used and consumed exclusively as "manufacturing gallonage". (k) Reimbursement for railroad gallonage. (1) [Commencing January first, nineteen hundred ninety-seven,] a subsequent purchaser, which is registered as a distributor of diesel motor fuel, shall be eligible for a reimbursement in accordance with this subdivision with respect to NON-HIGHWAY diesel motor fuel subsequently sold by such purchaser to a consumer as "railroad diesel". (2) The amount of the reimbursement with respect to such product shall be equal to the difference between (i) the tax actually paid under this article by a petroleum business with respect to such product and subse- quently passed through to and absorbed by such purchaser, and (ii) the tax under this article that would have been paid with respect to such product had an importing distributor sold such product directly to a purchaser as "railroad diesel". Provided that the commissioner shall require such documentary proof as the commissioner deems necessary to substantiate a reimbursement claim under this subdivision. Any reimbursement of tax may be applied for not more often than monthly. (l) Reimbursement for mining and extraction. A purchaser shall be eligible for reimbursement of the tax imposed by section three hundred one-a of this article with respect to gallonage of residual petroleum product and NON-HIGHWAY diesel motor fuel, purchased for use and consumption directly and exclusively in the production of tangible personal property for sale by mining or extracting, but only if all of such fuel or product is delivered at the mining or extracting site and is consumed other than on the PUBLIC highways of this state; provided, however, this reimbursement shall in no event apply to a sale of
NON-HIGHWAY diesel motor fuel which involves a delivery at a filling station. This reimbursement may be claimed only where (i) the tax imposed pursuant to this article has been paid with respect to such NON-HIGHWAY diesel motor fuel or residual petroleum product and the entire amount of such tax has been absorbed by such purchaser, and (ii) such purchaser possesses documentary proof satisfactory to the commis- sioner evidencing the absorption by it of the entire amount of the tax imposed pursuant to this article. Provided, however, that the commis- sioner shall require such documentary proof to qualify for any reimbursement of tax provided by this section as the commissioner deems appropriate. (m) Reimbursement for passenger commuter ferries. A use by a passenger commuter ferry of NON-HIGHWAY diesel motor fuel or residual petroleum product where such NON-HIGHWAY diesel motor fuel or residual petroleum product was used and consumed by a passenger commuter ferry exclusively in providing mass transportation service. This reimbursement may be claimed only where (1) any tax imposed pursuant to this article has been paid with respect to such gallonage and the entire amount of such tax has been absorbed by such purchaser, and (2) such ferry possesses docu- mentary proof satisfactory to the commissioner evidencing the absorption by it of the entire amount of such tax. Provided, that the commissioner shall require such documentary proof to qualify for any reimbursement provided hereunder as the commissioner deems appropriate. S 24. Paragraphs 1 and 2 of subdivision (a) of section 301-d of the tax law, as amended by chapter 410 of the laws of 1991, are amended to read as follows: (1) Credit. Residual petroleum product and NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor fuel)] (i) imported into this state by such electric corporation which is a petroleum business where the tax liability under section three hundred one-a of this article is imposed on such electric corporation and where the residual petroleum or NON-HIGHWAY diesel product so imported is used by such electric corpo- ration to fuel generators for the purpose of manufacturing or producing electricity or (ii) purchased in this state by such electric corporation by the use of a valid direct payment permit whereby such electric corpo- ration assumed full liability for tax with respect to such product where such product so purchased is used by such electric corporation to fuel generators for the purpose of manufacturing or producing electricity. (2) Reimbursement. Residual petroleum product and NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor fuel)] purchased in this state by such electric corporation where the tax imposed by section three hundred one-a of this article with respect to such residual petro- leum or diesel product was paid and the utility absorbed such tax in the purchase price of such fuel and where such product is used by such elec- tric corporation to fuel generators for the purpose of manufacturing or producing electricity. S 25. Subdivision (c) of section 301-e of the tax law, as amended by chapter 2 of the laws of 1995, is amended to read as follows: (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 busi- ness 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 [one and nine-tenths] 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. [Provided, however, that commencing July first, nineteen hundred ninety-one, the kero-jet fuel rate shall be equal to the motor fuel and automotive-type diesel motor fuel rate set by subdivision (e) of section three hundred one-a of this article as such rate may be adjusted as provided in such subdivision. Provided, further, that commencing Septem- ber first, nineteen hundred ninety-five, the kero-jet fuel rate shall be five and two-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.] S 26. Sections 301-f and 301-g of the tax law are REPEALED. S 27. Paragraph 2 of subdivision (a) of section 301-h of the tax law, as amended by chapter 170 of the laws of 1994, is amended to read as follows: (2) The rate of the tax imposed by this section shall be equal to the motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate set by subdivision (e) of section three hundred one-a plus the rate of the supplemental tax imposed by section three hundred one-j of this article as such rates are specified therein and as they may be adjusted as provided in such provisions. [In addition, the tax surcharge imposed by section three hundred-one-g of this article shall be imposed with respect to the tax imposed by this section as if the tax imposed here- under were imposed by section three hundred-one-a of this article.] S 28. Section 301-i of the tax law is REPEALED. S 29. Paragraphs 1, 2, 3 and 4 of subdivision (a) and subdivision (c) of section 301-j of the tax law, paragraph 1 of subdivision (a) as amended and paragraphs 2, 3 and 4 of subdivision (a) as added by chapter 309 of the laws of 1996 and subdivision (c) as amended by chapter 410 of the laws of 1991, are amended to read as follows: (1) In addition to the taxes imposed by sections three hundred one-a and three hundred one-e of this article, [for taxable months commencing on or after July first, nineteen hundred ninety-one] there is hereby imposed upon every petroleum business subject to tax imposed under section three hundred one-a of this article and every aviation fuel business subject to the aviation gasoline component of the tax imposed under section three hundred one-e of this article, a supplemental month- ly tax for each or any part of a taxable month at a rate of [four and one-half] SIX AND EIGHT-TENTHS cents per gallon with respect to the products included in each component of the taxes imposed by such [sections] SECTION three hundred one-a and the aviation gasoline compo- nent of the tax imposed by such section three hundred one-e of this article. (2) Provided, however, [commencing March first, nineteen hundred nine- ty-seven,] "commercial gallonage," as such term is defined in subdivi- sion (k) of section three hundred of this article, shall be exempt from the measure of the tax imposed under this section.
(3) Provided, further, [commencing January first, nineteen hundred ninety-seven,] "railroad diesel," as such term is defined in subdivision (l) of section three hundred of this article, shall be exempt from the measure of the tax imposed under this section. (4) Provided, further, [commencing January first, nineteen hundred ninety-eight,] a separate per gallon rate shall apply with respect to [automotive-type] HIGHWAY diesel motor fuel. Such rate shall be deter- mined by taking the adjusted rate per gallon of tax imposed under para- graph one of this subdivision as adjusted in accordance with paragraph five of this subdivision [which commences on such date] and subtracting therefrom [three-quarters of one cent. On January first, nineteen hundred ninety-nine, the automotive-type diesel motor fuel rate shall be determined by taking the adjusted rate per gallon of tax imposed under paragraph one of this subdivision, as adjusted in accordance with para- graph five of this subdivision which commences on such date and subtracting therefrom three-quarters of one cent. On April first, nine- teen hundred ninety-nine, there shall be a new rate applicable to such fuel which shall be such adjusted rate of tax per gallon under such paragraph one of this subdivision, as adjusted in accordance with para- graph five of this subdivision then in effect, minus] one and three- quarters cents. Commencing January first, two thousand TWELVE, and each January thereafter, the per gallon rate applicable to [automotive-type] HIGHWAY diesel motor fuel shall be the adjusted rate under paragraph one of this subdivision as adjusted in accordance with paragraph five of this subdivision which commences on such date minus one and three-quar- ters cents. The resulting rate under this paragraph shall be expressed in hundredths of a cent. (c) Rate adjustment [and surcharge]. [Commencing January first, nine- teen hundred ninety-two and on the first day of January every year ther- eafter, the] THE rate of the supplemental tax shall be adjusted at the same time as the rates of the components of the taxes imposed by sections three hundred one-a and three hundred one-e of this article, and the method of making adjustments to the rate of the supplemental tax shall be the same as the method used for such rates. S 30. The opening paragraph and subdivisions (a) and (c) of section 301-1 of the tax law, as added by chapter 170 of the laws of 1994, are amended to read as follows: There shall be allowed to a registered petroleum business or aviation fuel business a refund under this section for the taxes [and tax surcharge] imposed by sections three hundred one-a, three hundred one-e, [three hundred one-g] and three hundred one-j of this article for the tax paid under such sections with respect to gallonage which is repres- ented by a worthless debt as follows: (a) The refund shall be allowed to a registered petroleum business or aviation fuel business for gallonage with respect to which tax liability for the taxes under this article is imposed on such petroleum business or aviation fuel business where (i) such gallonage has been included in the reports filed by such petroleum business or aviation fuel business and all the taxes under this article with respect to such gallonage have been paid by such business, (ii) such gallonage was sold in-bulk by such petroleum or aviation fuel business to a purchaser for such purchaser's own use and consumption and (iii) such sale gave rise to a debt which became worthless, as that term is used for federal income tax purposes, and where such debt is deducted as a worthless debt for federal income tax purposes for the taxable year covering the month in which such refund claim relating to such debt is filed. Provided, however, for the
purposes of this section, a sale of motor fuel and [enhanced] HIGHWAY diesel motor fuel to a filling station shall be deemed to be a sale in-bulk for such filling station's own use and consumption and, provided, further, in no event shall a worthless debt qualify with respect to the refund hereunder where such debt arises from a retail sale at a filling station or sale wherein product is delivered directly into the fuel tank of a motor vehicle, airplane or other conveyance. (c) Upon receipt of a claim for refund in processible form, interest shall be allowed and paid at the overpayment rate set by the commission- er pursuant to subdivision twenty-sixth of section one hundred seventy- one of this chapter from the date of the receipt of the refund claim to the date immediately preceding the date of the refund check except no such interest shall be allowed or paid if the refund check is mailed within ninety days of such receipt and except no interest shall be allowed or paid if the amount thereof would be less than one dollar. Provided, further, the refund shall be granted pro rata against sections three hundred one-a, three hundred one-e, [three hundred one-g] and three hundred one-j of this article, as the case may be, to the same extent as represented by the remittance of the petroleum business or aviation fuel business with respect to the gallonage represented by the worthless debt. S 31. Subdivision (b) of section 302 of the tax law, as added by chap- ter 190 of the laws of 1990, is amended to read as follows: (b) Residual petroleum product business. The department [of taxation and finance], upon the application of a corporation or unincorporated business, shall register such corporation or unincorporated business as a residual petroleum product business except that the commissioner [of taxation and finance] may refuse to register an applicant for any of the grounds specified in subdivision two or five of section two hundred eighty-three of this chapter or in subdivision (d) of this section. The application shall be in such form and contain such information as the commissioner shall prescribe. All of the provisions of subdivisions two, four, five, six, seven, eight, nine and ten of section two hundred eighty-three of this chapter relating to registration of distributors shall be applicable to the registration of residual petroleum product businesses under this section with the same force and effect as if the language of those subdivisions had been incorporated in full in this section and had expressly referred to the registration of residual petroleum product businesses and the tax imposed by this article, with such modification as may be necessary in order to adapt the language of such provisions to the provisions of this article, provided, specif- ically, that the term "distributor" shall be read as "residual petroleum product business" and the [terms] TERM "motor fuel" [and "automotive fuel"] shall be read as "residual petroleum product". Provided, however, that if the commissioner is satisfied that the requirements of such provisions for registration are not necessary in order to protect tax revenues, the commissioner may limit or modify such requirements with respect to corporations or unincorporated businesses not required to be registered as distributors of motor fuel or diesel motor fuel. S 32. Section 312 of the tax law, as amended by chapter 166 of the laws of 1991 and subdivision (b) as amended by section 8 of part EE of chapter 63 of the laws of 2000, is amended to read as follows: S 312. Deposit and disposition of revenue.--[(a) Except as provided in sections three hundred one-f and three hundred one-g of this chapter, of all of the taxes, interest and penalties collected or received by the commissioner of taxation and finance under section three hundred one of
this article with respect to any taxable year commencing on or after April first, nineteen hundred eighty-four and to that portion of any taxable year commencing prior thereto to the extent of that portion of such year which includes the period which commences with April first, nineteen hundred eighty-four, seventy-two and seven-tenths percent shall be deposited and disposed of pursuant to the provisions of section one hundred seventy-one-a of this chapter and the balance thereof shall be deposited in the mass transportation operating assistance fund to the credit of the metropolitan mass transportation operating assistance account and the public transportation systems operating assistance account thereof in the manner provided by subdivision eleven of section one hundred eighty-two-a of this chapter. Provided, however, that the actual amount of such taxes, interest and penalties which shall be deposited in such mass transportation operating assistance fund pursuant to this section during the twelve-month period from April first, nine- teen hundred eighty-four to and including March thirty-first, nineteen hundred eighty-five shall not be less than an amount which, when added to the actual amount that is deposited in such fund during such twelve- month period and that is attributable to the taxes, interest and penal- ties collected and received under section one hundred eighty-two-a of this chapter, yields the sum of seventy-nine million five hundred thou- sand dollars and provided further that of such actual amounts deposited in such fund pursuant to this section and to section one hundred eight- y-two-a of this chapter during the twelve-month period from April first, nineteen hundred eighty-five to March thirty-first, nineteen hundred eighty-six and during the twelve-month period from April first, nineteen hundred eighty-six to March thirty-first, nineteen hundred eighty-seven, the amount which shall be deposited to the credit of the public trans- portation systems operating assistance account thereof during each such period shall be not less than thirty-six million dollars. Provided further that if the total amount deposited in the mass transportation operating assistance fund during the twelve month period commencing April first, nineteen hundred eighty-five pursuant to this section and to section one hundred eighty-two-a of this chapter is less than eighty million dollars, the comptroller shall deposit to the credit of the metropolitan mass transportation operating assistance account on or after April first, nineteen hundred eighty-six and on or before June thirtieth, nineteen hundred eighty-six from any taxes, interest, and penalties collected or received by the commissioner of taxation and finance under this article in addition to amounts which would otherwise be deposited to the credit of the mass transportation operating assist- ance fund, an amount equal to the difference between eighty million dollars and the amounts actually deposited in the mass transportation operating assistance fund during such twelve-month period pursuant to this section and to section one hundred eighty-two-a of this chapter. Provided further that if the total amount deposited in the mass trans- portation operating assistance fund during the twelve month period commencing April first, nineteen hundred eighty-six pursuant to this section and to section one hundred eighty-two-a of this chapter, exclu- sive of the amount deposited in such fund to the credit of the metropol- itan mass transportation operating assistance account on or after April first, nineteen hundred eighty-six and on or before June thirtieth, nineteen hundred eighty-six pursuant to the preceding sentence, is less than eighty million dollars, the comptroller shall deposit to the credit of the metropolitan mass transportation operating assistance account on or after April first, nineteen hundred eighty-seven and on or before
June thirtieth, nineteen hundred eighty-seven from any taxes, interest, and penalties collected or received by the commissioner of taxation and finance under this article in addition to amounts which would otherwise be deposited to the credit of the mass transportation operating assist- ance fund, an amount equal to the difference between eighty million dollars and the amounts actually deposited in the mass transportation operating assistance fund during such twelve-month period pursuant to this section and to section one hundred eighty-two-a of this chapter, exclusive of the amount deposited in such fund to the credit of the metropolitan mass transportation operating assistance account on or after April first, nineteen hundred eighty-six and on or before June thirtieth, nineteen hundred eighty-six pursuant to the preceding sentence. Provided, further, however, with respect to all taxes, and interest and penalties relating thereto, collected or received by the commissioner of taxation and finance under the tax imposed by section three hundred one of this article with respect to any taxable year commencing on and after June first, nineteen hundred ninety and to that portion of any taxable year commencing prior thereto to the extent of that portion of such year which includes the period which commences June first, nineteen hundred ninety, eighty-nine and one-half percent of such collections shall be deposited and disposed of pursuant to the provisions of section one hundred seventy-one-a of this chapter and the balance thereof shall be deposited in the mass transportation operating assistance fund to the credit of the metropolitan mass transportation operating assistance account and the public transportation systems oper- ating assistance account thereof in the manner provided by subdivision eleven of section one hundred eighty-two-a of this chapter. (b) Of all of the taxes collected or received by the commissioner on or before March thirty-first, nineteen hundred ninety-one under the taxes imposed by sections three hundred one-a and three hundred one-e of this article, and all interest and penalties relating thereto, eighty- seven and five-hundredths percent of such collections shall be deposited and disposed of pursuant to the provisions of section one hundred seven- ty-one-a of this chapter and the balance thereof shall be deposited in the mass transportation operating assistance fund to the credit of the metropolitan mass transportation operating assistance account and the public transportation systems operating assistance account thereof in the manner provided by subdivision eleven of section one hundred eight- y-two-a of this chapter. Of all taxes, interest and penalties collected or received after March thirty-first, nineteen hundred ninety-one, and before April first, nineteen hundred ninety-three, from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, initially thirty-five percent shall be deposited and disposed of pursuant to such section one hundred seventy-one-a. The balance ther- eof shall then be disposed of as follows: seventy-two and seven-tenths percent shall be deposited and disposed of pursuant to such section one hundred seventy-one-a and twenty-seven and three-tenths percent shall be deposited in such mass transportation operating assistance fund as prescribed in the aforestated manner. Except as otherwise provided, of all taxes, interest and penalties collected or received after March thirty-first, nineteen hundred ninety-three, and before April first, nineteen hundred ninety-four, from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, (i) initially fifty-four percent shall be deposited, as prescribed by subdivision (d) of section three hundred one-j of this chapter, (ii) twenty-eight and three-tenths percent shall be deposited and disposed of pursuant to such
section one hundred seventy-one-a of this chapter in the general fund and (iii) seventeen and seven-tenths percent shall be deposited in such mass transportation operating assistance fund as prescribed in the aforestated manner. Provided, however, that, prior to such deposit, from the amounts so collected or received during the period commencing on January first, nineteen hundred ninety-four and ending on March thirty- first, nineteen hundred ninety-four, an amount equal to the portion of the taxes, interest and penalties so received or collected resulting from the amendments made by sections forty-two, forty-three and forty- four of chapter fifty-seven of the laws of nineteen hundred ninety-three shall be deposited and disposed of pursuant to the provisions of subdi- vision one of section one hundred seventy-one-a of this chapter. Except as otherwise provided, of all taxes, interest and penalties collected or received on or after April first, nineteen hundred ninety-four, from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, (i) initially fifty-four percent shall be deposited, as prescribed by subdivision (d) of section three hundred one-j of this article, (ii) twenty-eight and three-tenths percent shall be deposited and disposed of pursuant to such section one hundred seventy-one-a of this chapter in the general fund, (iii) seven and nine hundred sixty- five thousandths percent shall be deposited in such mass transportation operating assistance fund as prescribed in the aforestated manner and (iv) nine and seven hundred thirty-five thousandths percent shall be deposited in the revenue accumulation fund. Except as otherwise provided, of all taxes, interest and penalties collected or received on or after September first, nineteen hundred ninety-four and before September first, nineteen hundred ninety-five, from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, (i) initially fifty-nine percent shall be deposited, as prescribed by subdivision (d) of section three hundred one-j of this article, (ii) twenty-two and four-tenths percent shall be deposited and disposed of pursuant to such section one hundred seventy-one-a of this chapter in the general fund, (iii) eight and three hundred seventy thousandths percent shall be deposited in such mass transportation operating assist- ance fund as prescribed in the aforestated manner and (iv) ten and two hundred thirty thousandths percent shall be deposited in the revenue accumulation fund. Except as otherwise provided, of all taxes, interest and penalties, collected or received on or after September first, nine- teen hundred ninety-five and before April first, nineteen hundred nine- ty-six from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, (i) initially sixty-two and eight-tenths percent shall be deposited as prescribed by subdivision (d) of section three hundred one-j of this article, (ii) eighteen percent shall be deposited and disposed of pursuant to section one hundred seventy-one-a of this chapter in the general fund, (iii) eight and six hundred forty thousandths percent shall be deposited in such mass transportation oper- ating assistance fund as prescribed in the aforestated manner and (iv) ten and five hundred sixty thousandths percent shall be deposited in the revenue accumulation fund. Except as otherwise provided, of all taxes, interest and penalties collected or received on or after April first, nineteen hundred ninety-six, and before January first, nineteen hundred ninety-seven from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, (i) initially sixty-three and three-tenths percent shall be deposited, as prescribed by subdivision (d) of section three hundred one-j of this article, (ii) seventeen and four-tenths percent shall be deposited and disposed of pursuant to such
section one hundred seventy-one-a of this chapter in the general fund and (iii) nineteen and three-tenths percent shall be deposited in such mass transportation operating assistance fund as prescribed in the aforestated manner. Except as otherwise provided, of all taxes, inter- est and penalties collected or received on or after January first, nine- teen hundred ninety-seven and before January first, nineteen hundred ninety-eight from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, (i) initially sixty-six and two- tenths percent shall be deposited, as prescribed by subdivision (d) of section three hundred one-j of this article, (ii) fourteen and one-half percent shall be deposited and disposed of pursuant to such section one hundred seventy-one-a of this chapter in the general fund and (iii) nineteen and three-tenths percent shall be deposited in such mass trans- portation operating assistance fund as prescribed in the aforestated manner. Except as otherwise provided, of all taxes, interest and penal- ties collected or received on or after January first, nineteen hundred ninety-eight and before April first, nineteen hundred ninety-nine from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, (i) initially sixty-eight and one-tenth percent shall be deposited, as prescribed by subdivision (d) of section three hundred one-j of this article, (ii) twelve and four-tenths percent shall be deposited and disposed of pursuant to such section one hundred seven- ty-one-a of this chapter in the general fund and (iii) nineteen and one-half percent shall be deposited in such mass transportation operat- ing assistance fund as prescribed in the aforestated manner. Except as otherwise provided, of all taxes, interest and penalties collected or received on or after April first, nineteen hundred ninety-nine, from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, (i) initially sixty-nine and eight-tenths percent shall be deposited, as prescribed by subdivision (d) of section three hundred one-j of this article, (ii) ten and seven-tenths percent shall be depos- ited and disposed of pursuant to such section one hundred seventy-one-a of this chapter in the general fund and (iii) nineteen and one-half percent shall be deposited in such mass transportation operating assist- ance fund as prescribed in the aforestated manner.]
Except as otherwise provided, of all taxes, interest and penalties collected or received on or after April first, two thousand one, from the taxes imposed by sections three hundred one-a and three hundred one-e of this article, (i) initially eighty and three-tenths percent shall be deposited, as prescribed by subdivision (d) of section three hundred one-j of this article and (ii) nineteen and seven-tenths percent shall be deposited in such mass transportation operating assistance fund [as prescribed in the aforestated manner] TO THE CREDIT OF THE METROPOLITAN MASS TRANSPORTA- TION OPERATING ASSISTANCE ACCOUNT AND THE PUBLIC TRANSPORTATION SYSTEMS OPERATING ASSISTANCE ACCOUNT THEREOF IN THE MANNER PROVIDED BY SUBDIVI- SION ELEVEN OF SECTION ONE HUNDRED EIGHTY-TWO-A OF THIS CHAPTER. [Provided, further, that on or before the twenty-fifth day of each month commencing with October, nineteen hundred ninety and terminating with the month of March, two thousand one, the comptroller shall deduct the amount of six hundred twenty-five thousand dollars prior to any deposit or disposition of the taxes, interest and penalties collected or received pursuant to such sections three hundred one-a and three hundred one-e and shall pay such amount to the state treasury to the credit of the general fund.] Provided, further that on or before the twenty-fifth day of each month commencing with April, two thousand one, the comp- troller shall deduct the amount of six hundred twenty-five thousand
dollars prior to any deposit or disposition of the taxes, interest, and penalties collected or received pursuant to such sections three hundred one-a and three hundred one-e and shall deposit such amount in the dedi- cated fund accounts pursuant to subdivision (d) of section three hundred one-j of this article. Provided, further, that commencing January fifteenth, nineteen hundred ninety-one, and on or before the tenth day of March and the fifteenth day of June and September of such year, the commissioner shall, based on information supplied by taxpayers and other appropriate sources, estimate the amount of the utility credit author- ized by section three hundred one-d of this article which has been accrued to reduce tax liability under section one hundred eighty-six-a of this chapter during the period covered by such estimate and certify to the state comptroller such estimated amount. The comptroller shall forthwith, after receiving such certificate, deduct the amount of such credit so certified by the commissioner prior to any deposit or disposi- tion of the taxes, interest and penalties collected or received pursuant to such sections three hundred one-a and three hundred one-e and shall pay such amount so certified and deducted into the state treasury to the credit of the general fund. [As soon as practicable after April first, nineteen hundred ninety-one, nineteen hundred ninety-two and nineteen hundred ninety-three, but before June fifteenth of each such year, the commissioner shall determine the amount of the utility tax credit which has been actually used to reduce tax liability under such section one hundred eighty-six-a and shall certify the difference between such actu- al amount and the earlier estimated amount.] Also, subsequently, during the fiscal year when the commissioner becomes aware of changes or modifications with respect to actual credit usage, the commissioner shall, as soon as practicable, issue a certification setting forth the amount of any required adjustment to the amount of actual credit usage previously certified. After receiving the certificate of the commission- er with respect to actual credit usage or modification of the same, the comptroller shall forthwith adjust general fund receipts and the reven- ues to be deposited or disposed of under this article to reflect the difference so certified by the commissioner. The commissioner shall not be liable for any overestimate or underestimate of the amount of the utility credit which has been accrued to reduce tax liability under such section one hundred eighty-six-a. Nor shall the commissioner be liable for any inaccuracy in any certificate with respect to the amount of such credit actually used or any required adjustment with respect to actual credit usage, but the commissioner shall as soon as practicable after discovery of any error adjust the next certification under this section to reflect any such error. [On or before July thirty-first, nineteen hundred ninety-two and on or before July thirty-first, nineteen hundred ninety-three, the commission- er shall conduct the following reconciliation with respect to the preceding fiscal year: he shall multiply the total of all taxes, penal- ties and interest, after refunds and reimbursements, which are derived from the motor fuel component, the automotive-type diesel motor fuel component and the aviation gasoline component by twenty fifty-fifths; the total of all taxes, penalties and interest, after refunds and reimbursements, which are derived from the nonautomotive-type diesel motor fuel component (excluding taxes, penalties and interest which are derived from product with respect to which the credit or reimbursement provided by section three hundred one-d is taken) by twenty-fiftieths; and all taxes, penalties and interest, after refunds and reimbursements, which are derived from the residual petroleum product component (exclud-
ing taxes, penalties and interest which are derived from product with respect to which the credit or reimbursement provided by section three hundred one-d is taken) by twenty-fortieths. The products of the forego- ing multiplications shall be added together and the resulting sum of such products shall be compared with the total of the amounts initially distributed during such fiscal year with respect to such components (excluding receipts derived from product with respect to which the cred- it or reimbursement provided by section three hundred one-d is taken and excluding any amount which represents a reconciliation adjustment pursu- ant to this paragraph) pursuant to section one hundred seventy-one-a of this chapter which represented thirty-five percent of the total, after refunds and reimbursements, of all taxes, penalties and interest collected or received during such fiscal year under sections three hundred one-a and three hundred one-e during the months of such fiscal year with respect to such components. The commissioner shall then certi- fy the amount of such difference to the comptroller. If the amounts initially distributed in such fiscal year are greater than the sum of such products, the comptroller shall withhold an amount equal to twen- ty-seven and three-tenths percent of such difference from the first moneys otherwise payable to the general fund pursuant to this subdivi- sion and shall pay such amount to the mass transportation operating assistance fund to the credit of the metropolitan mass transportation operating assistance account and the public transportation systems oper- ating assistance account thereof in the aforestated manner. If the amounts initially distributed in such fiscal year are less than the sum of such products, the comptroller shall withhold an amount equal to twenty-seven and three-tenths percent of such difference from the first moneys otherwise payable to the mass transportation operating assistance fund pursuant to this subdivision and shall pay such amount to the general fund. When the commissioner becomes aware of changes or modifications with respect to the distribution of revenue under this article, the commis- sioner shall, as soon as practicable, issue a certification setting forth the amount of any required adjustment. After receiving the certif- icate of the commissioner with respect to any adjustments, the comp- troller shall forthwith adjust general fund receipts and the revenues to be deposited or disposed of under this article to reflect the difference so certified by the commissioner. The commissioner shall not be liable for any overestimate or underestimate of the amount of the distribution. Nor shall the commissioner be liable for any inaccuracy in any certif- icate with respect to the amount of the distribution or any required adjustment with respect to the distribution, but the commissioner shall as soon as practicable after discovery of any error adjust the next certification under this section to reflect any such error.]
Prior to making deposits as provided in this [subdivision] SECTION, the comp- troller shall retain such amount as the commissioner may determine to be necessary, subject to the approval of the director of the budget, for reasonable costs of the department in administering and collecting the taxes deposited pursuant to this [subdivision] SECTION and for refunds and reimbursements with respect to such taxes, out of which the comp- troller shall pay any refunds or reimbursements of such taxes to which taxpayers shall be entitled. S 33. Subdivision (b) of section 315 of the tax law, as amended by section 156 of part A of chapter 389 of the laws of 1997, is amended to read as follows:
(b) Joint administration of taxes. In addition to the powers granted to the commissioner in this chapter, the commissioner is hereby author- ized to make provisions for the joint administration, in whole or in part, of the taxes imposed by articles twelve-A and twenty-eight and pursuant to the authority of article twenty-nine of this chapter upon [automotive fuel] MOTOR FUEL AND DIESEL MOTOR FUEL and the taxes imposed by this article, including the joint reporting, assessment, collection, determination and refund of such taxes, and for that purpose to prescribe that any of the commissioner's functions under such articles, and any returns, forms, statements, documents or information to be submitted to the commissioner under such articles, any books and records to be kept for purposes of the taxes imposed or authorized to be imposed by such articles, any schedules of amounts to be collected under such articles, any registration required under such articles, and the payment of taxes under such articles, shall be on a joint basis with respect to the taxes imposed by or pursuant to such articles. Provided, notwith- standing any provision of this article to the contrary, in the further- ance of joint administration, the provisions of subdivision one of section two hundred eighty-five-a and subdivision one of section two hundred eighty-nine-c of this chapter shall apply to the taxes imposed under this article with the same force and effect as if those provisions specifically referred to the taxes imposed hereunder and all the products with respect to which the taxes are imposed under this article. Provided, further, a reimbursement (or credit) of taxes imposed under this article shall be available to subsequent purchasers of motor fuel, diesel motor fuel or residual petroleum product under the circumstances specified in subdivision eight of section two hundred eighty-nine-c of this chapter with respect to the export of such products. In addition, all the provisions of subdivision one of section two hundred eighty-six of this chapter shall be applicable to all of the products included in the measure of the tax imposed by this article and the powers of the commissioner in administering the tax imposed by this article shall include these set forth in such subdivision. Moreover, the commission- er, in order to preserve the revenue from the tax imposed by this arti- cle, shall, by regulation, require that the movement of residual petro- leum product into or in this state be accompanied by a tracking document. [Such manifest or other tracking document shall be prescribed only after consultation with the state motor fuels taxation advisory council (created by section forty-one of chapter forty-four of the laws of nineteen hundred eighty-five) as to its form and content and as to whether an existing industry document (or a modified version thereof) may adequately serve the tracking purpose so that such existing industry document may be prescribed as the tracking document.] Also, the commis- sioner may require (i) that any returns, forms, statements or other document with respect to motor fuel or diesel motor fuel required of transporters or terminal operators under such article twelve-A of this chapter apply with the same force and effect to persons transporting or storing residual petroleum product, (ii) a certification that particular gallonage of motor fuel, diesel motor fuel or residual petroleum product has been included in the measure of the tax imposed by this article and such tax has been paid, and (iii) that the certification required pursu- ant to section two hundred eighty-five-a or two hundred eighty-five-b of this chapter be expanded to include the tax imposed by this article. S 34. Subdivision 10 of section 501 of the tax law, as amended by chapter 407 of the laws of 1990, is amended to read as follows:
10. "Automotive fuel" shall mean, SOLELY FOR PURPOSES OF THIS ARTICLE, diesel motor fuel as defined in subdivision fourteen of section two hundred eighty-two of this chapter and motor fuel as defined in subdivi- sion two of section two hundred eighty-two of this chapter. S 35. Subdivision (b) of section 528 of the tax law, as added by chap- ter 170 of the laws of 1994, is amended to read as follows: (b) Cooperative agreements. Notwithstanding any inconsistent provision of law, the commissioner is authorized to enter into a cooperative agreement with other states, the District of Columbia or provinces or territories of Canada for the administration of the tax imposed by this article and similar taxes imposed by other member jurisdictions and for the reporting and payment of tax to a single base state and a propor- tional sharing of revenue of taxes relating to fuel use among the juris- dictions where a qualified motor vehicle is operated. The agreement may provide for determining the base state for carriers, carriers records requirements, audit procedures, exchange of information, persons eligi- ble for tax licensing, defining qualified motor vehicles, determining if bonding is required and requiring bonds to secure the tax imposed by this article and similar taxes imposed by other member jurisdictions, specifying reporting requirements and periods including defining uniform penalty and interest rates for late reporting, determining methods for collecting and forwarding of taxes, interest and penalties to another jurisdiction, notice and timing of hearings and other provisions as will facilitate the administration of the agreement. The commissioner may, pursuant to the terms of the agreement, forward to the proper officers of another member jurisdiction any information in the commissioner's possession relating to the manufacture, receipt, sale, use, transporta- tion or shipment of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL by any person and may share any information relating to the administration of taxes pursuant to the agreement with such officers. The commissioner may disclose to the proper officers of another member jurisdiction the location of offices, motor vehicles and other real and personal property of carriers. The agreement may provide for each member jurisdiction to audit the records of persons based in the member jurisdiction and deter- mine taxes due each member jurisdiction. The commissioner may adopt rules and regulations for the administration and enforcement of the agreement. In connection with the administration of taxes under such a cooperative agreement, the commissioner may enter into an agreement with other member jurisdictions and any banks, banking houses, trust compa- nies or other similar institutions with respect to the payment of any tax, fees, penalty or interest to such banks, banking houses, trust companies or similar institutions and the filing of returns and reports with such banks, banking houses, trust companies or similar institutions as agent of the commissioner and such other member jurisdictions. Pursu- ant to a written agreement made with one or more of the appropriate departments, agencies, officers or instrumentalities of other jurisdic- tions, the commissioner may let contracts for provision of such services to the department and to one or more of such entities of other jurisdic- tions; provided, that provisions shall be made in all such agreements with the participating governmental entities and in all such contracts let by the commissioner for the assumption by each of the participating governmental entities of sole responsibility for its proportionate share of the costs under the terms of such contract. The commissioner may contract for such services jointly with and pursuant to a contract let by the appropriate department, agency, officer or instrumentality of another jurisdiction; provided that (1) the commissioner shall approve
the proposed terms and conditions of all such joint governmental contracts, (2) the letting of such joint governmental contract shall be based on invitation of competitive bids or proposals, and (3) the participation by the department in any such joint contract shall be preceded by an evaluation and finding in writing by the commissioner that a reasonable potential exists for the saving of costs by the state, by means of such joint governmental contract. S 36. The opening paragraph of subparagraph (ii) of paragraph 4 of subdivision (b) of section 1101 of the tax law, as amended by chapter 261 of the laws of 1988, is amended to read as follows: Notwithstanding the provisions of subparagraph (i) of this paragraph, no motor fuel or diesel motor fuel shall be sold or used in this state without payment, and inclusion in the sales price of such motor fuel, of the tax on motor fuel required to be prepaid pursuant to the provisions of section eleven hundred two of this article except where a provision of this article relating to motor fuel or diesel motor fuel specifically provides otherwise and except in the case of a sale or use subject to tax under section eleven hundred five or eleven hundred ten, respective- ly, of this article. Provided, however, except for such requirement of prepayment of tax required by section eleven hundred two of this arti- cle, the provisions of this subparagraph shall not otherwise modify the meaning of the term "retail sale" as used in this article. For purposes of this subparagraph and sections eleven hundred two, eleven hundred eleven, eleven hundred twenty, eleven hundred thirty-two, eleven hundred thirty-four, eleven hundred thirty-five, eleven hundred thirty-six, ELEVEN HUNDRED FORTY-TWO, ELEVEN HUNDRED FORTY-FIVE and eighteen hundred seventeen of this chapter, the following terms shall have the following meanings: S 37. Clause (A) of subparagraph (ii) of paragraph 4 of subdivision (b) of section 1101 of the tax law, as amended by chapter 261 of the laws of 1988, is amended to read as follows: (A) "[Automotive fuel"] PETROLEUM PRODUCTS" means diesel motor fuel as defined in subdivision fourteen of section two hundred eighty-two of this chapter, other than kerosene or propane used for residential purposes, or motor fuel as defined in subdivision two of section two hundred eighty-two of this chapter. The phrase "used for residential purposes" shall have the same meaning as it has for purposes of section eleven hundred five-A of this article. S 38. Clause (F) of subparagraph (ii) of paragraph 4 of subdivision (b) of section 1101 of the tax law is REPEALED and a new clause (F) is added to read as follows: (F) THE TERMS "HIGHWAY DIESEL MOTOR FUEL" AND "NON-HIGHWAY DIESEL MOTOR FUEL" SHALL HAVE THE SAME MEANING AS THEY HAVE FOR PURPOSES OF ARTICLE TWELVE-A OF THIS CHAPTER. S 39. Paragraph 2 of subdivision (a) of section 1102 of the tax law, as separately amended by section 9 of part W-1 of chapter 109 and chap- ter 302 of the laws of 2006, is amended to read as follows: (2) Every distributor of diesel motor fuel shall pay, as a prepayment on account of the taxes imposed by this article and pursuant to the authority of article twenty-nine of this chapter, a tax upon the sale or use of diesel motor fuel in this state. The tax shall be computed based upon the number of gallons of diesel motor fuel sold or used. Provided, however, if the tax has not been imposed prior thereto, it shall be imposed on the delivery of diesel motor fuel to a retail service station. The collection of such tax shall not be made applicable to the sale or use of diesel motor fuel under circumstances which preclude the
collection of such tax by reason of the United States constitution and of laws of the United States enacted pursuant thereto. The prepaid tax on diesel motor fuel shall not apply to (i) the sale of previously untaxed [diesel motor fuel which is not enhanced] NON-HIGHWAY Diesel motor fuel to a person registered as a distributor of Diesel motor fuel other than a sale to such person which involves a delivery at a filling station or into a repository which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle, OR (ii) the sale to or delivery at a filling station or other retail vendor of water-white kerosene provided such filling station or other retail vendor only sells such water-white kerosene exclusively for heating purposes in containers of no more than twenty gallons or to the sale of CNG or hydrogen [or (iii) the sale of dyed diesel motor fuel as set forth in clause (A) or (B) of subparagraph (i) of paragraph (c) of subdivision three of section two hundred eighty-two-a of this chapter]. S 39-a. Paragraph 2 of subdivision (a) of section 1102 of the tax law, as amended by chapter 302 of the laws of 2006, is amended to read as follows: (2) Every distributor of diesel motor fuel shall pay, as a prepayment on account of the taxes imposed by this article and pursuant to the authority of article twenty-nine of this chapter, a tax upon the sale or use of diesel motor fuel in this state. The tax shall be computed based upon the number of gallons of diesel motor fuel sold or used. Provided, however, if the tax has not been imposed prior thereto, it shall be imposed on the delivery of diesel motor fuel to a retail service station. The collection of such tax shall not be made applicable to the sale or use of diesel motor fuel under circumstances which preclude the collection of such tax by reason of the United States constitution and of laws of the United States enacted pursuant thereto. The prepaid tax on diesel motor fuel shall not apply to (i) the sale of previously untaxed [diesel motor fuel which is not enhanced] NON-HIGHWAY Diesel motor fuel to a person registered as a distributor of Diesel motor fuel other than a sale to such person which involves a delivery at a filling station or into a repository which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle, OR (ii) the sale to or delivery at a filling station or other retail vendor of water-white kerosene provided such filling station or other retail vendor only sells such water-white kerosene exclusively for heating purposes in containers of no more than twenty gallons [or (iii) the sale of dyed diesel motor fuel as set forth in clause (A) or (B) of subparagraph (i) of paragraph (c) of subdivision three of section two hundred eighty-two-a of this chapter]. S 40. Subsection (a) of section 1105-A of the tax law, as amended by section 1 of part B of chapter 35 of the laws of 2006, is amended to read as follows: (a) Notwithstanding any other provisions of this article, but not for purposes of the taxes imposed by section eleven hundred eight of this part or authorized pursuant to the authority of article twenty-nine of this chapter, the taxes imposed by subdivision (a) or (b) of section eleven hundred five OF THIS PART on the receipts from the retail sale of fuel oil and coal used for residential purposes; the receipts from the retail sale of wood used for residential heating purposes; and the receipts from every sale, other than for resale, of propane (except when sold in containers of less than one hundred pounds), natural gas, elec- tricity, steam and gas, electric and steam services used for residential
purposes shall be paid at the rate of three percent for the period commencing January first, nineteen hundred seventy-nine and ending December thirty-first, nineteen hundred seventy-nine; at the rate of two and one-half percent for the period commencing January first, nineteen hundred eighty and ending September thirtieth, nineteen hundred eighty, and at the rate of zero percent on and after October first, nineteen hundred eighty. The provisions of this subsection shall not apply to a sale of [(i)] diesel motor fuel which involves a delivery at a filling station or into a repository which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle [and (ii) enhanced diesel motor fuel except in the case of a sale of such enhanced diesel motor fuel used exclusively for residen- tial purposes which is delivered into a storage tank which is not equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle and such storage tank is attached to the heating unit burning such fuel, provided that each delivery of such fuel of over four thousand five hundred gallons shall be evidenced by a certificate signed by the purchaser stating that the product will be used exclusively for residential purposes]. S 41. Subdivision (j) of section 1115 of the tax law, as amended by section 12 of part W-1 of chapter 109 of the laws of 2006, is amended to read as follows: (j) The exemptions provided in this section shall not apply to the tax required to be prepaid pursuant to the provisions of section eleven hundred two of this article nor to the taxes imposed by sections eleven hundred five and eleven hundred ten of this article with respect to receipts from sales and uses of motor fuel or diesel motor fuel, except that the exemptions provided in paragraphs nine and forty-two of subdi- vision (a) of this section shall apply to the tax required to be prepaid pursuant to the provisions of section eleven hundred two of this article and to the taxes imposed by sections eleven hundred five and eleven hundred ten of this article with respect to sales and uses of kero-jet fuel, CNG, hydrogen and E85, provided, however, the exemption allowed for E85 shall be subject to the additional requirements provided in section eleven hundred two of this article with respect to E85. The exemption provided in subdivision (c) of this section shall apply to sales and uses of NON-HIGHWAY diesel motor fuel [which is not enhanced diesel motor fuel] but only if all of such fuel is consumed other than on the PUBLIC highways of this state, provided, however, this exemption shall in no event apply to a sale of NON-HIGHWAY diesel motor fuel which involves a delivery at a filling station or into a repository which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle. The exemption provided in subdivision (c) of this section shall apply to sales and uses of no more than four thousand five hundred gallons of NON-HIGHWAY diesel motor fuel in a thirty-day period for use or consumption either in the production for sale of tangible personal property by farming or in a commercial horse boarding operation, or in both but only if all of such fuel is consumed other than on the PUBLIC highways of this state (except for the use of the PUBLIC highways to reach adjacent farmlands or adja- cent lands used in a commercial horse boarding operation, or both), provided, however, such exemption shall be applicable to the sale or use of more than four thousand five hundred gallons of NON-HIGHWAY diesel motor fuel in a thirty-day period for such use or consumption in accord- ance with a prior clearance given by the commissioner.
S 41-a. Subdivision (j) of section 1115 of the tax law, as amended by section 8 of part B of chapter 63 of the laws of 2000, is amended to read as follows: (j) The exemptions provided in this section shall not apply to the tax required to be prepaid pursuant to the provisions of section eleven hundred two of this article nor to the taxes imposed by sections eleven hundred five and eleven hundred ten of this article with respect to receipts from sales and uses of motor fuel or diesel motor fuel, except that the exemption provided in paragraph nine of subdivision (a) of this section shall apply to the tax required to be prepaid pursuant to the provisions of section eleven hundred two of this article and to the taxes imposed by sections eleven hundred five and eleven hundred ten of this article with respect to sales and uses of kero-jet fuel. The exemption provided in subdivision (c) of this section shall apply to sales and uses of NON-HIGHWAY diesel motor fuel [which is not enhanced diesel motor fuel] but only if all of such fuel is consumed other than on the PUBLIC highways of this state, provided, however, this exemption shall in no event apply to a sale of NON-HIGHWAY diesel motor fuel which involves a delivery at a filling station or into a repository which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle. The exemption provided in subdivision (c) of this section shall apply to sales and uses of no more than four thousand five hundred gallons of NON-HIGHWAY diesel motor fuel in a thirty-day period for use or consumption either in the production for sale of tangible personal property by farming or in a commercial horse boarding operation, or in both but only if all of such fuel is consumed other than on the PUBLIC highways of this state (except for the use of the PUBLIC highways to reach adjacent farmlands or adja- cent lands used in a commercial horse boarding operation, or both), provided, however, such exemption shall be applicable to the sale or use of more than four thousand five hundred gallons of NON-HIGHWAY diesel motor fuel in a thirty-day period for such use or consumption in accord- ance with a prior clearance given by the commissioner. S 42. Subdivision (e) of section 1120 of the tax law, as amended by chapter 2 of the laws of 1995, is amended to read as follows: (e) Immediate export. With respect to (i) motor fuel imported, manu- factured or sold or purchased in this state, and (ii) [enhanced] 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 distribu- tor 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. S 43. Subparagraph (i) of paragraph 3 of subdivision (h) of section 1132 of the tax law, as amended by chapter 261 of the laws of 1988, is amended to read as follows: (i) For the purpose of the proper administration of this article and to prevent evasion of the tax hereby imposed, it shall be presumed that all retail sales of motor fuel or diesel motor fuel are subject to the
tax required to be collected by subdivision (a) of section eleven hundred five of this article or paid by the provisions of section eleven hundred ten of this article until the contrary is established, and it shall be presumed that all motor fuel or diesel motor fuel imported, manufactured, [subjected to enhancement,] sold, received or possessed by any person in this state, which such person cannot otherwise account for as having been sold subject to the tax required to be collected by subdivision (a) of section eleven hundred five or paid by the provisions of section eleven hundred ten of this article, has been sold subject to the tax required to be collected by subdivision (a) of section eleven hundred five or paid by the provisions of section eleven hundred ten except that no such presumption shall apply with respect to motor fuel or diesel motor fuel in the fuel tank of a motor vehicle used to propel such vehicle or to motor fuel in small drums or similar containers. The burden of proving that any sale is not so subject shall be upon the person required to collect such tax and the purchaser of such fuel. S 44. Subparagraph (iii) of paragraph 1 of subdivision (a) of section 1134 of the tax law, as amended by section 160 of part A of chapter 389 of the laws of 1997, is amended to read as follows: (iii) every person selling [automotive fuel] PETROLEUM PRODUCTS including persons who or which are not distributors, S 45. Subdivision (d) of section 1135 of the tax law, as amended by chapter 44 of the laws of 1985 and as relettered by chapter 61 of the laws of 1989, is amended to read as follows: (d) Every person selling or holding large volumes of [automotive fuel] PETROLEUM PRODUCTS shall keep records for such periods and in the manner prescribed by the [tax commission] COMMISSIONER pursuant to rules and regulations. Such records shall show (1) the number of gallons of [auto- motive fuel] PETROLEUM PRODUCTS purchased, the price paid therefor, the amount of tax paid pursuant to the provisions of section eleven hundred two of this article and the regional average retail sales price applica- ble thereto and (2) the number of gallons sold, and the price paid by the purchaser to whom such person sells the [automotive fuel] PETROLEUM PRODUCTS, and the amount of tax included in such price pursuant to the provisions of section eleven hundred two of this article and the [regional average retail sales price or the] amount of tax collected pursuant to the provisions of subdivision (a) of section eleven hundred five of this article applicable to such sale together with such addi- tional information as the [tax commission] COMMISSIONER shall require. The [regional average retail sales price, and the] amount of tax shall be calculated in the manner set forth in section eleven hundred eleven of this article. S 46. Subdivision (a) of section 1136 of the tax law, as amended by chapter 89 of the laws of 1976, paragraphs 1, 2, 3 and 5 as amended and paragraph 6 as added by chapter 2 of the laws of 1995 and paragraphs 4 and 7 as amended by section 2-e of part M-1 of chapter 106 of the laws of 2006, is amended to read as follows: (a) (1) Every person required to register with the commissioner as provided in section eleven hundred thirty-four OF THIS PART whose taxa- ble receipts, amusement charges and rents total less than three hundred thousand dollars, or in the case of any such person who is a distributor whose sales of [automotive fuel] PETROLEUM PRODUCTS total less than one hundred thousand gallons, in every quarter of the preceding four quar- ters, shall only file a return quarterly with the commissioner. (2) Every person required to register with the commissioner as provided in section eleven hundred thirty-four OF THIS PART whose taxa-
ble receipts, amusement charges and rents total three hundred thousand dollars or more, or in the case of any such person who is a distributor whose sales of [automotive fuel] PETROLEUM PRODUCTS total one hundred thousand gallons or more, in any quarter of the preceding four quarters, shall, in addition to filing a quarterly return described in paragraph one of this subdivision, and except as otherwise provided in section eleven hundred two or eleven hundred three of this article, file either a long-form or short-form part-quarterly return monthly with the commis- sioner. (3) However, a person required to register with the commissioner as provided in section eleven hundred thirty-four OF THIS PART only because such person is purchasing or selling tangible personal property for resale, and who is not required to collect any tax or pay any tax directly to the commissioner under this article, shall file an informa- tion return annually in such form as the commissioner may prescribe. Likewise, a person, who is required to register and who is selling [automotive fuel] PETROLEUM PRODUCTS who is not a distributor of motor fuel, shall file an information return quarterly or, if the commissioner deems necessary, monthly, in such form as the commissioner shall prescribe. (4) The return of a vendor of tangible personal property or services shall show such vendor's receipts from sales and the number of gallons of any motor fuel or diesel motor fuel sold and also the aggregate value of tangible personal property and services and number of gallons of such fuels sold by the vendor, the use of which is subject to tax under this article, and the amount of tax payable thereon pursuant to the provisions of section eleven hundred thirty-seven of this part. The return of a recipient of amusement charges shall show all such charges and the amount of tax thereon, and the return of an operator required to collect tax on rents shall show all rents received or charged and the amount of tax thereon. (5) The returns of any seller of [automotive fuel] PETROLEUM PRODUCTS shall show the number of gallons of [automotive fuel] PETROLEUM PRODUCTS sold, together with such additional information as the commissioner shall require in order to certify the amount of taxes, penalties and interest payable to local taxing jurisdictions imposed on the sale or use of [automotive fuel] PETROLEUM PRODUCTS pursuant to the provisions of section twelve hundred sixty-one of this chapter. (6) The returns of any seller of cigarettes shall show the amount of prepaid tax assumed or paid thereon and passed through, together with such additional information as the commissioner shall require. (7) Taxable receipts as used in this section shall include taxable receipts from the sale of [automotive fuel] PETROLEUM PRODUCTS and ciga- rettes and any receipts from the sale of motor fuel or diesel motor fuel or cigarettes in this state whether or not such receipts are subject to the taxes imposed by section eleven hundred two, eleven hundred three, eleven hundred five or eleven hundred ten of this article and regardless of whether the provisions of section eleven hundred twenty or eleven hundred twenty-one of this article are applicable to the taxes imposed in respect of such receipts or numbers of gallons of motor fuel or diesel motor fuel sold. [(i)] (8) For purposes of this article the term "long-form, part-quar- terly return" shall mean a return in a form determined by the [tax commission] COMMISSIONER providing for the calculation of the actual sales and compensating use taxes for the preceding month in the manner set forth in subdivisions (a) and (b) of section eleven hundred thirty-
seven OF THIS PART. A person filing a long-form, part-quarterly return for each of the months contained in a quarter shall also be required to file a quarterly return for such quarter. [(ii)] (9) For purposes of this article the term "short-form, part- quarterly return" shall mean a return which shall be available for use in filing as a return for the first two months of any quarter and only by a person required to file a return monthly who has had at least four successive quarterly tax periods immediately preceding the month for which the return is to be filed and who elects such use, and is in a form determined by the [tax commission] COMMISSIONER and providing for the calculation of one-third of the total state and local sales and compensating use taxes paid by the person to the [tax commission] COMMISSIONER in the comparable quarter of the immediately preceding year under this article and as taxes imposed pursuant to the authority of article twenty-nine with respect to all receipts, amusement charges and rents. S 47. Subdivision 11 of section 1142 of the tax law, as added by chap- ter 930 of the laws of 1982, is amended to read as follows: 11. To make such provision pursuant to rules and regulations for the joint administration, in whole or in part, of the state and local taxes imposed by this article and authorized by article twenty-nine of this chapter upon the sale of [automotive fuel] PETROLEUM PRODUCTS and the taxes imposed by article twelve-A of this chapter and authorized to be imposed by such article, including the joint reporting, assessment, collection, determination and refund of such taxes, and for that purpose to prescribe that any of the [commission's] COMMISSIONER'S functions under said articles, and any returns, forms, statements, documents or information to be submitted to the [commission] COMMISSIONER under said articles, any books and records to be kept for purposes of the taxes imposed or authorized by said articles, any schedules of amounts to be collected under said articles, any registration required under said articles, and the payment of taxes under said articles shall be on a joint basis with respect to the taxes imposed by said articles. S 48. Subparagraph (i) of paragraph 3 of subdivision (a) of section 1145 of the tax law, as amended by chapter 2 of the laws of 1995, is amended to read as follows: (i) Any person required to obtain a certificate of authority under section eleven hundred thirty-four OF THIS PART who, without possessing a valid certificate of authority, (A) sells tangible personal property or services subject to tax, receives amusement charges or operates a hotel, (B) purchases or sells tangible personal property for resale, (C) sells [automotive fuel] PETROLEUM PRODUCTS, or (D) sells cigarettes shall, in addition to any other penalty imposed by this chapter, be subject to a penalty in an amount not exceeding five hundred dollars for the first day on which such sales or purchases are made, plus an amount not exceeding two hundred dollars for each subsequent day on which such sales or purchases are made, not to exceed ten thousand dollars in the aggregate. S 49. Subparagraph (i) of paragraph 3 of subdivision (a) of section 1210 of the tax law, as amended by section 2 of part B of chapter 35 of the laws of 2006, is amended to read as follows: (i) Notwithstanding any other provision of law to the contrary but not with respect to cities subject to the provisions of section eleven hundred eight of this [article] CHAPTER, any city or county, except a county wholly contained within a city, may provide that the taxes imposed, pursuant to this subdivision, by such city or county on the
retail sale or use of fuel oil and coal used for residential purposes, the retail sale or use of wood used for residential heating purposes, the sale, other than for resale, of propane (except when sold in containers of less than one hundred pounds), natural gas, electricity, steam and gas, electric and steam services used for residential purposes and the use of gas or electricity used for residential purposes may be imposed at a lower rate than the uniform local rate imposed pursuant to the opening paragraph of this section, as long as such rate is one of the rates authorized by such paragraph or such sale or use may be exempted from such taxes. Provided, however, such lower rate must apply to all such energy sources and services and at the same rate and no such exemption may be enacted unless such exemption applies to all such ener- gy sources and services. The provisions of this subparagraph shall not apply to a sale or use of [(i)] diesel motor fuel which involves a delivery at a filling station or into a repository which is equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle [and (ii) enhanced diesel motor fuel except in the case of a sale or use of such enhanced diesel motor fuel used exclusively for residential purposes which is delivered into a storage tank which is not equipped with a hose or other apparatus by which such fuel can be dispensed into the fuel tank of a motor vehicle and such storage tank is attached to the heating unit burning such fuel, provided that each delivery of such fuel of over four thousand five hundred gallons shall be evidenced by a certificate signed by the purchaser stating that the product will be used exclusively for residen- tial purposes]. S 50. Subdivision (c) of section 1812 of the tax law, as amended by section 25 of subpart I of part V-1 of chapter 57 of the laws of 2009, is amended to read as follows: (c) Any owner of a filling station who shall willfully and knowingly have in his OR HER custody, possession or under his OR HER control any motor fuel or Diesel motor fuel [on which] (1) ON WHICH the taxes imposed by or pursuant to the authority of such article have not been assumed or paid by a distributor registered as such under such article [or], (2) ON WHICH the taxes imposed by or pursuant to the authority of such article have not been included in the cost to him OR HER of such fuel where such taxes were required to have been passed through to him OR HER and included in the cost to him OR HER of such fuel, OR (3) WHICH IS DYED DIESEL MOTOR FUEL AS DEFINED BY SUBDIVISION EIGHTEEN-A OF SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER (EXCEPT FOR WATER-WHITE KEROSENE), shall [in either case,] be guilty of a class E felony. For purposes of this subdivision, such owner shall willfully and knowingly have in his OR HER custody, possession or under his OR HER control any motor fuel or Diesel motor fuel on which such taxes have not been assumed or paid by a distributor registered as such where such owner has knowledge of the requirement that such taxes be paid and where, to his OR HER knowledge, such taxes have not been assumed or paid by a regis- tered distributor on such motor fuel or Diesel motor fuel. Such owner shall willfully and knowingly have in his OR HER custody, possession or under his OR HER control any motor fuel or Diesel motor fuel on which such taxes are required to have been passed through to him OR HER and have not been included in his OR HER cost where such owner has knowledge of the requirement that such taxes be passed through and where to his knowledge such taxes have not been so included. SUCH OWNER SHALL WILL- FULLY AND KNOWINGLY HAVE IN HIS OR HER CUSTODY, POSSESSION OR UNDER HIS OR HER CONTROL ANY DYED DIESEL MOTOR FUEL (EXCEPT WATER-WHITE KEROSENE)
WHERE SUCH OWNER HAS KNOWLEDGE OF THE REQUIREMENT THAT DYED DIESEL MOTOR FUEL (EXCEPT WATER-WHITE KEROSENE) MAY NOT BE IN HIS OR HER CUSTODY, POSSESSION OR UNDER HIS OR HER CONTROL. S 51. Subdivision (e) of section 1812 of the tax law is REPEALED and subdivision (f) is relettered subdivision (e). S 52. Section 1812-a of the tax law, as added by chapter 261 of the laws of 1988, is amended to read as follows: S 1812-a. Person not registered as distributor of Diesel motor fuel. (a) Any person who, while not registered as a distributor of Diesel motor fuel pursuant to the provisions of article twelve-A of this chap- ter, [engages in the enhancement,] makes a sale or use within the state of Diesel motor fuel (other than a retail sale not in bulk or the self- use of Diesel motor fuel which has been the subject of a retail sale), imports or causes Diesel motor fuel to be imported into the state or produces, refines, manufactures or compounds Diesel motor fuel within the state shall be guilty of a misdemeanor. If, within any ninety day period, two thousand nine hundred gallons or more of Diesel motor fuel are subjected to [enhancement or] sale or use (other than a retail sale not in bulk or the self-use of Diesel motor fuel which has been the subject of a retail sale) within the state or are imported or caused to be imported by any person while not so registered as a distributor of Diesel motor fuel, such person shall be guilty of a class E felony. (b) Any person whose registration under article twelve-A of this chap- ter applies only to the importation, sale and distribution of Diesel motor fuel for the purposes described in subparagraph (i) of paragraph (b) of subdivision three of section two hundred eighty-two-a of this chapter who delivers NON-HIGHWAY Diesel motor fuel at a filling station [other than for the sole purpose of heating such station] or into a repository equipped with a hose or other apparatus by which NON-HIGHWAY Diesel motor fuel can be dispensed into the fuel tank of a motor vehi- cle, other than such a repository which is located on the premises of such registrant where the Diesel motor fuel delivered therein is used exclusively for the purpose of fueling motor vehicles operated by regis- trant for the purpose of distributing Diesel motor fuel for the purposes described in such subparagraph (i), shall be guilty of a misdemeanor. If, within any ninety day period, any such person whose registration under article twelve-A of this chapter applies only to the importation, sale and distribution of NON-HIGHWAY Diesel motor fuel for the purposes described in subparagraph (i) of paragraph (b) of subdivision three of section two hundred eighty-two-a of this chapter so unlawfully delivers a total of one thousand gallons or more of Diesel motor fuel at such filling station or stations or into such repository or repositories (or a combination of both such filling stations and repositories), then, such person shall be guilty of a class E felony. (c) Any person who has twice been convicted under this section shall be guilty of a class E felony for any subsequent violation of this section, regardless of the amount of Diesel motor fuel involved in such violation. For purposes of this section, the terms ["enhancement"] "NON-HIGHWAY DIESEL MOTOR FUEL" and "retail sale not in bulk" shall have the same meaning they have for purposes of article twelve-A of this chapter. S 53. Subdivisions (a) and (b) of section 1817 of the tax law, as amended by section 30 of subpart I of part V-1 of chapter 57 of the laws of 2009, is amended to read as follows: (a) Any person required to obtain a certificate of authority under section eleven hundred thirty-four of this chapter who, without possess-
ing a valid certificate of authority, willfully (1) sells tangible personal property or services subject to tax, receives amusement charges or operates a hotel, (2) purchases or sells tangible personal property for resale, or (3) sells [automotive fuel] PETROLEUM PRODUCTS; and any person who fails to surrender a certificate of authority as required by such article shall be guilty of a misdemeanor. (b) Any person required to obtain a certificate of authority under section eleven hundred thirty-four of this chapter who within five years after a determination by the [tax commission] COMMISSIONER, pursuant to such section, to suspend, revoke or refuse to issue a certificate of authority has become final, and without possession of a valid certif- icate of authority (1) sells tangible personal property or services subject to tax, receives amusement charges or operates a hotel, (2) purchases or sells tangible personal property for resale, or (3) sells [automotive fuel] PETROLEUM PRODUCTS, shall be guilty of a misdemeanor. It shall be an affirmative defense that such person performed the acts described in this subdivision without knowledge of such determination. Any person who violates a provision of this subdivision, upon conviction, shall be subject to a fine in any amount authorized by this article, but not less than five hundred dollars, in addition to any other penalty provided by law. S 54. The section heading, subdivisions (a), (b) and (c), paragraph 3, subparagraph (D) of paragraph 4 and paragraph 6 of subdivision (d) and subdivisions (e) and (g) of section 1848 of the tax law, as added by chapter 276 of the laws of 1986 and subparagraph (D) of paragraph 4 and paragraph 6 of subdivision (d) as amended by chapter 190 of the laws of 1990, are amended to read as follows: Forfeiture action with respect to motor fuel and DIESEL MOTOR FUEL AND vehicle carrying such fuel. (a) Temporary seizure. Whenever a police officer designated in section 1.20 of the criminal procedure law or a peace officer designated in subdivision four of section 2.10 of such law, acting pursuant to his special duties, shall discover any motor fuel OR DIESEL MOTOR FUEL which is being imported for use, distribution, storage or sale in the state where the person importing or causing such motor fuel OR DIESEL MOTOR FUEL to be imported is not registered as a distributor under section two hundred eighty-three OR SECTION TWO HUNDRED EIGHTY-TWO-A, of this chapter, AS THE CASE MAY BE, such police officer or peace officer is hereby authorized to seize and take possession of such motor fuel OR DIESEL MOTOR FUEL, together with the vehicle or other means of transportation used to transport such motor fuel. (b) Retention of property. The department [of taxation and finance] shall hold and safely keep such motor fuel, DIESEL MOTOR FUEL, vehicle or other means of transportation seized pursuant to subdivision (a) of this section. Seized motor fuel OR DIESEL MOTOR FUEL may be deposited to the credit of the department [of taxation and finance] at a terminal or other storage facility within the state or may be sold by the depart- ment on the open market. (c) Confirmation of temporary seizure. Within five business days after the temporary seizure of motor fuel, DIESEL MOTOR FUEL, vehicle or other means of transportation pursuant to subdivision (a) of this section, the department [of taxation and finance] shall move in supreme court in any county, on such notice as the court shall direct to the owners of the property, to confirm the temporary seizure. If the department [of taxa- tion and finance] fails to make such motion within the required period, such seized property shall be restored to the owners thereof as provided
in subdivision (e) of this section. On a motion for an order confirming the seizure, the department [of taxation and finance] shall show, by affidavit and such other written evidence as may be submitted, that there is a cause of action for forfeiture under subdivision (d) of this section and that there are grounds for confirmation of the seizure. The department shall include, in its motion papers, an inventory of all seized property. The court shall grant an application for an order confirming the seizure when it determines that there is a substantial probability that the department [of taxation and finance] will prevail on the issue of forfeiture. (3) Forfeiture of motor fuel OR DIESEL MOTOR FUEL together with the vehicle or other means of transportation used to transport such motor fuel OR DIESEL MOTOR FUEL shall be adjudged where the department [of taxation and finance] proves, by clear and convincing evidence, that the person importing or causing such motor fuel OR DIESEL MOTOR FUEL to be imported was not registered as a distributor under section two hundred eighty-three OR SECTION TWO HUNDRED EIGHTY-TWO-A of this chapter, AS THE CASE MAY BE. All defendants in a forfeiture action brought pursuant to this article shall have the right to trial by jury on any issue of fact. (D) The court may grant the relief provided in subparagraph (A) [here- of] OF THIS PARAGRAPH if it finds that such relief is warranted by the existence of some compelling factor, consideration or circumstance demonstrating that forfeiture of the property or any part thereof, would not serve the ends of justice. Reporting and payment of the tax imposed pursuant to article twelve-A or article twenty-eight of this chapter with respect to such motor fuel OR DIESEL MOTOR FUEL subsequent to the seizure of such fuel shall not constitute a compelling factor, consider- ation or circumstance warranting the granting of the relief provided for in subparagraph (A) [hereof] of this paragraph. In determining whether such relief is warranted by the existence of some compelling factor, consideration or circumstances pursuant to this paragraph, the court may, however, take into account the fact that such taxes with respect to the seized fuel have been reported and remitted to the state prior to the temporary seizure of such fuel if the unregistered importation into the state was effected in good faith and without knowledge of the requirement of registration and without intent to evade tax. The court must issue a written decision, stating the basis for an order issued pursuant to this paragraph. (6) The total that may be recovered shall not exceed the value of the motor fuel OR DIESEL MOTOR FUEL seized and, in addition, either the value of the vehicle or other means of transportation used to transport such fuel or three times the amount of the tax and penalty under arti- cles twelve-A, thirteen-A and twenty-eight and pursuant to the authority of article twenty-nine of this chapter with respect to the motor fuel OR DIESEL MOTOR FUEL, whichever is less. (e) Return of property. If (1) the department [of taxation and finance] fails to move for confirmation of the seizure pursuant to subdivision (c) of this section or (2) a court denies an application for an order confirming the seizure or (3) judgment is entered against the department in the forfeiture action and that judgment is affirmed after all appeals are exhausted, then the department shall restore such seized motor fuel OR DIESEL MOTOR FUEL, or motor fuel OR DIESEL MOTOR FUEL of a like quantity and type, or such seized vehicle or other means of trans- portation to the owners thereof. Alternatively, if such seized motor fuel OR DIESEL MOTOR FUEL has been sold as provided in subdivision (b) of this section, the department shall pay to the owners of such motor
fuel OR DIESEL MOTOR FUEL the proceeds of such sale or, if greater, an amount of money representing the fair market value of the motor fuel OR DIESEL MOTOR FUEL at the time of the seizure. (g) Disposal of property. The department [of taxation and finance], after a judicial determination of forfeiture, shall, in its discretion, either retain such seized property for its official use or sell such forfeited property at public sale. The net proceeds of any such sale, or of any sale of seized motor fuel OR DIESEL MOTOR FUEL as provided in subdivision (b) of this section, after deduction of the lawful expenses incurred, shall be deposited and disposed of pursuant to the provisions of section one hundred seventy-one-a of this chapter with respect to deposit and disposition of revenue. S 55. Paragraph (q) of subdivision 34 of section 1.20 of the criminal procedure law, as amended by chapter 318 of the laws of 2002, is amended to read as follows: (q) An employee of the department of taxation and finance (i) assigned to enforcement of the taxes imposed under or pursuant to the authority of article twelve-A of the tax law and administered by the commissioner of taxation and finance, taxes imposed under or pursuant to the authori- ty of article eighteen of the tax law and administered by the commis- sioner, taxes imposed under article twenty of the tax law, or sales or compensating use taxes relating to [automotive fuel] PETROLEUM PRODUCTS or cigarettes imposed under article twenty-eight or pursuant to the authority of article twenty-nine of the tax law and administered by the commissioner or (ii) designated as a revenue crimes specialist and assigned to the enforcement of the taxes described in paragraph (c) of subdivision four of section 2.10 of this title, for the purpose of applying for and executing search warrants under article six hundred ninety of this chapter, for the purpose of acting as a claiming agent under article thirteen-A of the civil practice law and rules in connection with the enforcement of the taxes referred to above and for the purpose of executing warrants of arrest relating to the respective crimes specified in subdivision four of section 2.10 of this title. S 56. Paragraph (a) of subdivision 4 of section 2.10 of the criminal procedure law, as amended by chapter 2 of the laws of 1995, is amended to read as follows: (a) to the enforcement of any of the criminal or seizure and forfei- ture provisions of the tax law relating to (i) taxes imposed under or pursuant to the authority of article twelve-A of the tax law and admin- istered by the commissioner, (ii) taxes imposed under or pursuant to the authority of article eighteen of the tax law and administered by the commissioner, (iii) taxes imposed under article twenty of the tax law, or (iv) sales or compensating use taxes relating to [automotive fuel] PETROLEUM PRODUCTS or cigarettes imposed under article twenty-eight or pursuant to the authority of article twenty-nine of the tax law and administered by the commissioner or S 57. Sections 11-2033, 11-2034, 11-2035, 11-2036, 11-2037 and 11-2038 of the administrative code of the city of New York are REPEALED. S 58. This act shall take effect September 1, 2011 and shall apply to sales or uses occurring on or after such date in accordance with the applicable transitional provisions in sections 1106 and 1217 of the tax law; provided, however, that: (a) the amendments to subdivisions 22 and 23 of section 282 of the tax law, made by section one of this act shall not affect the repeal of such subdivisions and shall be deemed repealed therewith;
(b) the amendments to paragraph 2 of subdivision (a) of section 1102 of the tax law made by section thirty-nine of this act shall be subject to the expiration and reversion of such paragraph pursuant to section 19 of part W-1 of chapter 109 of the laws of 2006, as amended, when upon such date the provisions of section thirty-nine-a of this act shall take effect; and (c) the amendments to subdivision (j) of section 1115 of the tax law made by section forty-one of this act shall be subject to the expiration and reversion of such subdivision pursuant to section 19 of part W-1 of chapter 109 of the laws of 2006, as amended, when upon such date the provisions of section forty-one-a of this act shall take effect. PART L Section 1. Subdivision 22 of section 282 of the tax law, as added by section 1 of part W-1 of chapter 109 of the laws of 2006, is amended to read as follows: 22. "E85" means a [mixture consisting by volume of eighty-five percent] FUEL BLEND CONSISTING OF ethanol and [the remainder of which is] motor fuel, WHICH MEETS THE ASTM INTERNATIONAL ACTIVE STANDARD D5798 FOR FUEL ETHANOL. S 2. Section 19 of part W-1 of chapter 109 of the laws of 2006, amend- ing the tax law relating to providing exemptions, reimbursements and credits from various taxes for certain alternative fuels, is amended to read as follows: S 19. This act shall take effect immediately; provided, however, that sections one through thirteen of this act shall take effect September 1, 2006 and shall be deemed repealed on September 1, [2011] 2012 and such repeal shall apply in accordance with the applicable transitional provisions of sections 1106 and 1217 of the tax law, and shall apply to sales made, fuel compounded or manufactured, and uses occurring on or after such date, and with respect to sections seven through eleven of this act, in accordance with applicable transitional provisions of sections 1106 and 1217 of the tax law; provided, however, that the commissioner of taxation and finance shall be authorized on and after the date this act shall have become a law to adopt and amend any rules or regulations and to take any steps necessary to implement the provisions of this act; provided further that sections fourteen through sixteen of this act shall take effect immediately and shall apply to taxable years beginning on or after January 1, 2006. S 3. This act shall take effect immediately; provided, however, that the amendments made to subdivision 22 of section 282 of the tax law made by section one of this act shall not affect the repeal of such subdivi- sion and shall be deemed repealed therewith. PART M Section 1. Section 11 of part EE of chapter 63 of the laws of 2000, amending the tax law and other laws relating to modifying the distrib- ution of funds from the motor vehicle fuel excise tax, as amended by section 1-b of part A of chapter 63 of the laws of 2005, is amended to read as follows: S 11. Notwithstanding any other law, rule or regulation to the contra- ry, the comptroller is hereby authorized and directed to deposit in equal monthly installments and distribute pursuant to the provisions of subdivision (d) of section 301-j of the tax law amounts listed below to
the credit of the dedicated highway and bridge trust fund and the dedi- cated mass transportation trust fund from [taxes and fees] ALL MOTOR VEHICLE RECEIPTS now deposited into the general fund pursuant to provisions of the vehicle and traffic law: twenty-eight million four hundred thousand dollars from April 1, 2002 through March 31, 2003, sixty-seven million nine hundred thousand dollars from April 1, 2003 through March 31, 2004, one hundred seventy million one hundred thousand dollars from April 1, 2004 through March 31, 2005, and one hundred percent of all [taxes and fees] MOTOR VEHICLE RECEIPTS pursuant to provisions of the vehicle and traffic law that are not otherwise directed to be deposited in a fund other than the general fund from April 1, 2005 through March 31, 2006, and the same amount each year thereafter. S 2. This act shall take effect April 1, 2011. PART N Section 1. Paragraph 1 of subdivision a of section 1612 of the tax law, as amended by chapter 147 of the laws of 2010, is amended to read as follows: (1) sixty percent of the total amount for which tickets have been sold for a lawful KENO OR SIMILAR STYLE lottery game [introduced on or after the effective date of this paragraph, subject to the following provisions: (A) such game shall be available only on premises occupied by licensed lottery sales agents, subject to the following provisions: (i) if the licensee holds a license issued pursuant to the alcoholic beverage control law to sell alcoholic beverages for consumption on the premises, then not less than twenty-five percent of the gross sales must result from sales of food; (ii) if the licensee does not hold a license issued pursuant to the alcoholic beverage control law to sell alcoholic beverages for consump- tion on the premises, then the premises must have a minimum square footage greater than two thousand five hundred square feet; (iii) notwithstanding the foregoing provisions, television equipment that automatically displays the results of such drawings may be installed and used without regard to the percentage of food sales or the square footage if such premises are used as: (I) a commercial bowling establishment, or (II) a facility authorized under the racing, pari-mutuel wagering and breeding law to accept pari-mutuel wagers; (B) the rules for the operation of such game shall be as prescribed by regulations promulgated and adopted by the division, provided however, that such rules shall provide that no person under the age of twenty-one may participate in such games on the premises of a licensee who holds a license issued pursuant to the alcoholic beverage control law to sell alcoholic beverages for consumption on the premises; and, provided, further, that such regulations may be revised on an emergency basis not later than ninety days after the enactment of this paragraph in order to conform such regulations to the requirements of this paragraph]; or S 2. This act shall take effect immediately. PART O
Section 1. Subparagraph (ii) of paragraph 1 of subdivision b of section 1612 of the tax law is amended by adding a new clause (I) to read as follows: (I) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, FREE PLAY ALLOWANCE CREDITS AUTHORIZED BY THE DIVISION PURSUANT TO SUBDIVISION F OF SECTION SIXTEEN HUNDRED SEVENTEEN-A OF THIS ARTICLE SHALL NOT BE INCLUDED IN THE CALCULATION OF THE TOTAL AMOUNT WAGERED ON VIDEO LOTTERY GAMES, THE TOTAL AMOUNT WAGERED AFTER PAYOUT OF PRIZES, THE VENDOR FEES PAYABLE TO THE OPERATORS OF VIDEO LOTTERY FACILITIES, VENDOR'S CAPITAL AWARDS, FEES PAYABLE TO THE DIVISION'S VIDEO LOTTERY GAMING EQUIPMENT CONTRACTORS, OR RACING SUPPORT PAYMENTS. S 2. Section 1617-a of the tax law is amended by adding a new subdivi- sion f to read as follows: F. (1) THE DIVISION MAY ADMINISTER A FREE PLAY ALLOWANCE PROGRAM TO OFFER PLAYERS OR PROSPECTIVE PLAYERS OF VIDEO LOTTERY GAMES FREE PLAY CREDITS FOR THE PURPOSE OF INCREASING REVENUES EARNED BY THE VIDEO LOTTERY PROGRAM FOR THE SUPPORT OF EDUCATION. FOR THE PURPOSES OF THIS SUBDIVISION, "FREE PLAY ALLOWANCE CREDIT" MEANS A SPECIFIED DOLLAR AMOUNT THAT (I) MAY BE USED BY A PLAYER TO PLAY A VIDEO LOTTERY GAME WITHOUT PAYING ANY OTHER CONSIDERATION, AND (II) IS NOT USED IN THE CALCULATION OF TOTAL REVENUE WAGERED AFTER PAYOUT OF PRIZES. (2) FOR EACH VIDEO LOTTERY FACILITY, THE DIVISION SHALL AUTHORIZE THE USE OF FREE PLAY ALLOWANCE CREDITS IF THE OPERATOR OF SUCH FACILITY SUBMITS A WRITTEN PLAN FOR THE USE OF THE FREE PLAY ALLOWANCE THAT THE DIVISION DETERMINES IS DESIGNED TO INCREASE THE AMOUNT OF REVENUE EARNED BY VIDEO LOTTERY GAMING AT SUCH FACILITY FOR THE SUPPORT OF EDUCATION. (3) FOR EACH VIDEO LOTTERY FACILITY, THE ANNUAL VALUE OF THE FREE PLAY ALLOWANCE CREDITS AUTHORIZED FOR USE BY THE OPERATOR PURSUANT TO THIS SUBDIVISION SHALL NOT EXCEED AN AMOUNT EQUAL TO TEN PERCENT OF THE TOTAL AMOUNT WAGERED ON VIDEO LOTTERY GAMES AFTER PAYOUT OF PRIZES. THE DIVI- SION SHALL ESTABLISH PROCEDURES TO ASSURE THAT FREE PLAY ALLOWANCE CRED- ITS DO NOT EXCEED SUCH AMOUNT. (4) THE DIVISION, IN CONJUNCTION WITH THE DIRECTOR OF THE BUDGET, MAY SUSPEND THE USE OF FREE PLAY ALLOWANCE CREDITS AUTHORIZED PURSUANT TO THIS SUBDIVISION WHENEVER THEY JOINTLY DETERMINE THAT THE USE OF FREE PLAY ALLOWANCE CREDITS ARE NOT EFFECTIVE IN INCREASING THE AMOUNT OF REVENUE EARNED FOR THE SUPPORT OF EDUCATION, AND SUCH USE MAY NOT BE RESUMED UNLESS THE OPERATOR OF SUCH FACILITY SUBMITS A NEW OR REVISED WRITTEN PLAN FOR THE USE OF THE FREE PLAY ALLOWANCE THAT THE DIVISION DETERMINES IS DESIGNED MORE EFFECTIVELY TO PRODUCE AN INCREASE IN THE AMOUNT OF REVENUE EARNED BY VIDEO LOTTERY GAMING AT SUCH FACILITY FOR THE SUPPORT OF EDUCATION. (5) NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO PROHIBIT THE OPERA- TOR OF A VIDEO LOTTERY FACILITY FROM OFFERING FREE PLAY CREDITS TO PLAY- ERS OR PROSPECTIVE PLAYERS OF VIDEO LOTTERY GAMES WHEN THE VALUE OF SUCH FREE PLAY CREDITS IS INCLUDED IN THE CALCULATION OF THE TOTAL AMOUNT WAGERED ON VIDEO LOTTERY GAMES AND THE TOTAL AMOUNT WAGERED AFTER PAYOUT OF PRIZES, AND THE OPERATOR OF SUCH FACILITY PAYS THE DIVISION THE FULL AMOUNT DUE AS THE RESULT OF SUCH CALCULATIONS. (6) THE DIVISION MAY AMEND THE CONTRACT WITH THE PROVIDER OF THE CENTRAL COMPUTER SYSTEM THAT CONTROLS THE VIDEO LOTTERY NETWORK DURING THE TERM OF SUCH CONTRACT IN EFFECT ON THE EFFECTIVE DATE OF THIS SUBDI- VISION TO PROVIDE ADDITIONAL CONSIDERATION TO SUCH PROVIDER IN AN AMOUNT DETERMINED BY THE DIVISION TO BE NECESSARY TO COMPENSATE FOR (I) PROC- ESSING FREE PLAY ALLOWANCE TRANSACTIONS AND (II) SYSTEM UPDATES AND MODIFICATIONS OTHERWISE NEEDED AS OF SUCH EFFECTIVE DATE.
S 3. This act shall take effect immediately. PART P Section 1. Paragraph 2 of subdivision a of section 1612 of the tax law, as amended by section 1 of part P of chapter 85 of the laws of 2002, is amended to read as follows: (2) sixty-five percent of the total amount for which tickets have been sold for the "Instant Cash" game in which the participant purchases a preprinted ticket on which dollar amounts or symbols are concealed on the face or the back of such ticket, provided however up to [three such] FIVE NEW games may be offered during the fiscal year, seventy-five percent of the total amount for which tickets have been sold for such [three] FIVE games in which the participant purchases a preprinted tick- et on which dollar amounts or symbols are concealed on the face or the back of such ticket; or S 2. This act shall take effect immediately. PART Q Section 1. Paragraph 3 of subdivision a of section 1612 of the tax law, as amended by section 2 of part D of chapter 383 of the laws of 2001, is amended to read as follows: (3) fifty percent of the total amount for which tickets have been sold for games known as: (A) the "Daily Numbers Game" or "Win 4", discrete games in which the participants select no more than three or four of their own numbers to match with three or four numbers drawn by the divi- sion for purposes of determining winners of such games, (B) "Pick 10", offered no more than once daily, in which participants select from a specified field of numbers a subset of ten numbers to match against a subset of numbers to be drawn by the division from such field of numbers for the purpose of determining winners of such game, (C) "Take 5", offered no more than once daily, in which participants select from a specified field of numbers a subset of five numbers to match against a subset of five numbers to be drawn by the division from such field of numbers for purposes of determining winners of such game, and (D) any joint, multi-jurisdiction, and out-of-state lottery, EXCEPT SUCH PERCENT MAY EXCEED FIFTY PERCENT OF THE TOTAL AMOUNT FOR WHICH TICKETS HAVE BEEN SOLD FOR ANY JOINT, MULTI-JURISDICTION, AND OUT-OF-STATE LOTTERY IF AT LEAST TWO-THIRDS OF THE LOTTERY JURISDICTIONS PARTICIPATING IN SUCH LOTTERY AGREE TO A PERCENTAGE THAT EXCEEDS FIFTY PERCENT AND EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH ONE OF SUBDIVISION B OF THIS SECTION FOR ANY JOINT, MULTI-JURISDICTION, OUT-OF-STATE VIDEO LOTTERY GAMING; or S 2. This act shall take effect immediately. PART R Section 1. The opening paragraph of paragraph 1 of subdivision b of section 1612 of the tax law, as amended by section 1 of part O-1 of chapter 57 of the laws of 2009, is amended to read as follows: Notwithstanding section one hundred twenty-one of the state finance law, on or before the twentieth day of each month, the division shall pay into the state treasury, to the credit of the state lottery fund created by section ninety-two-c of the state finance law, not less than forty-five percent of the total amount for which tickets have been sold for games defined in paragraph four of subdivision a of this section
during the preceding month, not less than thirty-five percent of the total amount for which tickets have been sold for games defined in para- graph three of subdivision a of this section during the preceding month, not less than twenty percent of the total amount for which tickets have been sold for games defined in paragraph two of subdivision a of this section during the preceding month, provided however that for games with a prize payout of seventy-five percent of the total amount for which tickets have been sold, the division shall pay not less than ten percent of sales into the state treasury and not less than twenty-five percent of the total amount for which tickets have been sold for games defined in paragraph one of subdivision a of this section during the preceding month; and the balance of the total revenue after payout for prizes for games known as "video lottery gaming," INCLUDING ANY JOINT, MULTI-JURIS- DICTION, AND OUT-OF-STATE VIDEO LOTTERY GAMING, S 2. Paragraph 1 of subdivision c of section 1612 of the tax law, as amended by section 2 of part CC of chapter 61 of the laws of 2005, is amended to read as follows: 1. The specifications for video lottery gaming, INCLUDING ANY JOINT, MULTI-JURISDICTION, AND OUT-OF-STATE VIDEO LOTTERY GAMING, shall be designed in such a manner as to pay prizes that average no less than ninety percent of sales. S 3. This act shall take effect immediately. PART S Section 1. Paragraph (a) of subdivision 1 of section 1003 of the racing, pari-mutuel wagering and breeding law, as amended by section 1 of part C of chapter 134 of the laws of 2010, is amended to read as follows: (a) Any racing association or corporation or regional off-track betting corporation, authorized to conduct pari-mutuel wagering under this chapter, desiring to display the simulcast of horse races on which pari-mutuel betting shall be permitted in the manner and subject to the conditions provided for in this article may apply to the board for a license so to do. Applications for licenses shall be in such form as may be prescribed by the board and shall contain such information or other material or evidence as the board may require. No license shall be issued by the board authorizing the simulcast transmission of thorough- bred races from a track located in Suffolk county. The fee for such licenses shall be five hundred dollars per simulcast facility per year payable by the licensee to the board for deposit into the general fund. Except as provided herein, the board shall not approve any application to conduct simulcasting into individual or group residences, homes or other areas for the purposes of or in connection with pari-mutuel wager- ing. The board may approve simulcasting into residences, homes or other areas to be conducted jointly by one or more regional off-track betting corporations and one or more of the following: a franchised corporation, thoroughbred racing corporation or a harness racing corporation or asso- ciation; provided (i) the simulcasting consists only of those races on which pari-mutuel betting is authorized by this chapter at one or more simulcast facilities for each of the contracting off-track betting corporations which shall include wagers made in accordance with section one thousand fifteen, one thousand sixteen and one thousand seventeen of this article; provided further that the contract provisions or other simulcast arrangements for such simulcast facility shall be no less favorable than those in effect on January first, two thousand five; (ii)
that each off-track betting corporation having within its geographic boundaries such residences, homes or other areas technically capable of receiving the simulcast signal shall be a contracting party; (iii) the distribution of revenues shall be subject to contractual agreement of the parties except that statutory payments to non-contracting parties, if any, may not be reduced; provided, however, that nothing herein to the contrary shall prevent a track from televising its races on an irregular basis primarily for promotional or marketing purposes as found by the board. For purposes of this paragraph, the provisions of section one thousand thirteen of this article shall not apply. Any agreement authorizing an in-home simulcasting experiment commencing prior to May fifteenth, nineteen hundred ninety-five, may, and all its terms, be extended until June thirtieth, two thousand [eleven] TWELVE; provided, however, that any party to such agreement may elect to terminate such agreement upon conveying written notice to all other parties of such agreement at least forty-five days prior to the effective date of the termination, via registered mail. Any party to an agreement receiving such notice of an intent to terminate, may request the board to mediate between the parties new terms and conditions in a replacement agreement between the parties as will permit continuation of an in-home experiment until June thirtieth, two thousand [eleven] TWELVE; and (iv) no in-home simulcasting in the thoroughbred special betting district shall occur without the approval of the regional thoroughbred track. S 2. Subparagraph (iii) of paragraph d of subdivision 3 of section 1007 of the racing, pari-mutuel wagering and breeding law, as amended by section 2 of part C of chapter 134 of the laws of 2010, is amended to read as follows: (iii) Of the sums retained by a receiving track located in Westchester county on races received from a franchised corporation, for the period commencing January first, two thousand eight and continuing through June thirtieth, two thousand [eleven] TWELVE, the amount used exclusively for purses to be awarded at races conducted by such receiving track shall be computed as follows: of the sums so retained, two and one-half percent of the total pools. Such amount shall be increased or decreased in the amount of fifty percent of the difference in total commissions deter- mined by comparing the total commissions available after July twenty- first, nineteen hundred ninety-five to the total commissions that would have been available to such track prior to July twenty-first, nineteen hundred ninety-five. S 3. The opening paragraph of subdivision 1 of section 1014 of the racing, pari-mutuel wagering and breeding law, as amended by section 3 of part C of chapter 134 of the laws of 2010, is amended to read as follows: The provisions of this section shall govern the simulcasting of races conducted at thoroughbred tracks located in another state or country on any day during which a franchised corporation is conducting a race meet- ing in Saratoga county at Saratoga thoroughbred racetrack until June thirtieth, two thousand [eleven] TWELVE and on any day regardless of whether or not a franchised corporation is conducting a race meeting in Saratoga county at Saratoga thoroughbred racetrack after June thirtieth, two thousand [eleven] TWELVE. On any day on which a franchised corpo- ration has not scheduled a racing program but a thoroughbred racing corporation located within the state is conducting racing, every off- track betting corporation branch office and every simulcasting facility licensed in accordance with section one thousand seven (that have entered into a written agreement with such facility's representative
horsemen's organization, as approved by the board), one thousand eight, or one thousand nine of this article shall be authorized to accept wagers and display the live simulcast signal from thoroughbred tracks located in another state or foreign country subject to the following provisions: S 4. Subdivision 1 of section 1015 of the racing, pari-mutuel wagering and breeding law, as amended by section 4 of part C of chapter 134 of the laws of 2010, is amended to read as follows: 1. The provisions of this section shall govern the simulcasting of races conducted at harness tracks located in another state or country during the period July first, nineteen hundred ninety-four through June thirtieth, two thousand [eleven] TWELVE. This section shall supersede all inconsistent provisions of this chapter. S 5. The opening paragraph of subdivision 1 of section 1016 of the racing, pari-mutuel wagering and breeding law, as amended by section 5 of part C of chapter 134 of the laws of 2010, is amended to read as follows: The provisions of this section shall govern the simulcasting of races conducted at thoroughbred tracks located in another state or country on any day during which a franchised corporation is not conducting a race meeting in Saratoga county at Saratoga thoroughbred racetrack until June thirtieth, two thousand [eleven] TWELVE. Every off-track betting corpo- ration branch office and every simulcasting facility licensed in accord- ance with section one thousand seven that have entered into a written agreement with such facility's representative horsemen's organization as approved by the board, one thousand eight or one thousand nine of this article shall be authorized to accept wagers and display the live full- card simulcast signal of thoroughbred tracks (which may include quarter horse or mixed meetings provided that all such wagering on such races shall be construed to be thoroughbred races) located in another state or foreign country, subject to the following provisions; provided, however, no such written agreement shall be required of a franchised corporation licensed in accordance with section one thousand seven of this article: S 6. The opening paragraph of section 1018 of the racing, pari-mutuel wagering and breeding law, as amended by section 6 of part C of chapter 134 of the laws of 2010, is amended to read as follows: Notwithstanding any other provision of this chapter, for the period July twenty-fifth, two thousand one through September eighth, two thou- sand [ten] ELEVEN, when a franchised corporation is conducting a race meeting within the state at Saratoga Race Course, every off-track betting corporation branch office and every simulcasting facility licensed in accordance with section one thousand seven (that has entered into a written agreement with such facility's representative horsemen's organization as approved by the board), one thousand eight or one thou- sand nine of this article shall be authorized to accept wagers and display the live simulcast signal from thoroughbred tracks located in another state, provided that such facility shall accept wagers on races run at all in-state thoroughbred tracks which are conducting racing programs subject to the following provisions; provided, however, no such written agreement shall be required of a franchised corporation licensed in accordance with section one thousand seven of this article. S 7. Section 32 of chapter 281 of the laws of 1994, amending the racing, pari-mutuel wagering and breeding law and other laws relating to simulcasting, as amended by section 7 of part C of chapter 134 of the laws of 2010, is amended to read as follows:
S 32. This act shall take effect immediately and the pari-mutuel tax reductions in section six of this act shall expire and be deemed repealed on July 1, [2011] 2012; provided, however, that nothing contained herein shall be deemed to affect the application, qualifica- tion, expiration, or repeal of any provision of law amended by any section of this act, and such provisions shall be applied or qualified or shall expire or be deemed repealed in the same manner, to the same extent and on the same date as the case may be as otherwise provided by law; provided further, however, that sections twenty-three and twenty- five of this act shall remain in full force and effect only until May 1, 1997 and at such time shall be deemed to be repealed. S 8. Section 54 of chapter 346 of the laws of 1990, amending the racing, pari-mutuel wagering and breeding law and other laws relating to simulcasting and the imposition of certain taxes, as amended by section 8 of part C of chapter 134 of the laws of 2010, is amended to read as follows: S 54. This act shall take effect immediately; provided, however, sections three through twelve of this act shall take effect on January 1, 1991, and section 1013 of the racing, pari-mutuel wagering and breed- ing law, as added by section thirty-eight of this act, shall expire and be deemed repealed on July 1, [2011] 2012; and section eighteen of this act shall take effect on July 1, 2008 and sections fifty-one and fifty- two of this act shall take effect as of the same date as chapter 772 of the laws of 1989 took effect. S 9. Paragraph (a) of subdivision 1 of section 238 of the racing, pari-mutuel wagering and breeding law, as amended by section 10 of part C of chapter 134 of the laws of 2010, is amended to read as follows: (a) The franchised corporation authorized under this chapter to conduct pari-mutuel betting at a race meeting or races run thereat shall distribute all sums deposited in any pari-mutuel pool to the holders of winning tickets therein, provided such tickets be presented for payment before April first of the year following the year of their purchase, less an amount which shall be established and retained by such fran- chised corporation of between twelve to seventeen per centum of the total deposits in pools resulting from on-track regular bets, and four- teen to twenty-one per centum of the total deposits in pools resulting from on-track multiple bets and fifteen to twenty-five per centum of the total deposits in pools resulting from on-track exotic bets and fifteen to thirty-six per centum of the total deposits in pools resulting from on-track super exotic bets, plus the breaks. The retention rate to be established is subject to the prior approval of the racing and wagering board. Such rate may not be changed more than once per calendar quarter to be effective on the first day of the calendar quarter. "Exotic bets" and "multiple bets" shall have the meanings set forth in section five hundred nineteen of this chapter. "Super exotic bets" shall have the meaning set forth in section three hundred one of this chapter. For purposes of this section, a "pick six bet" shall mean a single bet or wager on the outcomes of six races. The breaks are hereby defined as the odd cents over any multiple of five for payoffs greater than one dollar five cents but less than five dollars, over any multiple of ten for payoffs greater than five dollars but less than twenty-five dollars, over any multiple of twenty-five for payoffs greater than twenty-five dollars but less than two hundred fifty dollars, or over any multiple of fifty for payoffs over two hundred fifty dollars. Out of the amount so retained there shall be paid by such franchised corporation to the commissioner of taxation and finance, as a reasonable tax by the state
for the privilege of conducting pari-mutuel betting on the races run at the race meetings held by such franchised corporation, the following percentages of the total pool for regular and multiple bets five per centum of regular bets and four per centum of multiple bets plus twenty per centum of the breaks; for exotic wagers seven and one-half per centum plus twenty per centum of the breaks, and for super exotic bets seven and one-half per centum plus fifty per centum of the breaks. For the period June first, nineteen hundred ninety-five through September ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be three per centum and such tax on multiple wagers shall be two and one- half per centum, plus twenty per centum of the breaks. For the period September tenth, nineteen hundred ninety-nine through March thirty- first, two thousand one, such tax on all wagers shall be two and six- tenths per centum and for the period April first, two thousand one through December thirty-first, two thousand [eleven] TWELVE, such tax on all wagers shall be one and six-tenths per centum, plus, in each such period, twenty per centum of the breaks. Payment to the New York state thoroughbred breeding and development fund by such franchised corpo- ration shall be one-half of one per centum of total daily on-track pari- mutuel pools resulting from regular, multiple and exotic bets and three per centum of super exotic bets provided, however, that for the period September tenth, nineteen hundred ninety-nine through March thirty- first, two thousand one, such payment shall be six-tenths of one per centum of regular, multiple and exotic pools and for the period April first, two thousand one through December thirty-first, two thousand [eleven] TWELVE, such payment shall be seven-tenths of one per centum of such pools. S 10. Subdivision 5 of section 1012 of the racing, pari-mutuel wager- ing and breeding law, as amended by section 11 of part C of chapter 134 of the laws of 2010, is amended to read as follows: 5. The provisions of this section shall expire and be of no further force and effect after June thirtieth, two thousand [eleven] TWELVE. S 11. This act shall take effect immediately. S 2. Severability clause. If any clause, sentence, paragraph, subdivi- sion, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part thereof directly involved in the controversy in which such judg- ment shall have been rendered. It is hereby declared to be the intent of the legislature that this act would have been enacted even if such invalid provisions had not been included herein. S 3. This act shall take effect immediately provided, however, that the applicable effective date of Parts A through S of this act shall be as specifically set forth in the last section of such Parts.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Discuss!

blog comments powered by Disqus