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the return of an operator required to collect tax on rents shall show all rents received or charged and the amount of tax thereon. The returns of any seller of automotive fuel shall show the number of gallons of automotive fuel sold, together with such additional information as the tax commission 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 pursuant to the provisions of section twelve hundred sixty-one of this chapter. Taxable receipts as used in this section shall mean and include taxable receipts from the sale of automotive fuel and any receipts from the sale of motor fuel in this state whether or not such receipts are subject to the taxes imposed by section eleven hundred two, eleven hundred five or eleven hundred ten of this article and regardless of whether the provisions of section eleven hundred twenty of this article are applicable to the taxes imposed in respect of such receipts.
§ 33. Paragraph three of subdivision (a) of section eleven hundred thirty-eight of such law is amended by adding a new subparagraph (C) to read as follows:
(C) The liability of any person as an owner of a filling station, for the penalty imposed by subparagraph (vii) of paragraph one of subdivision (a) of section eleven hundred forty-five, and the amount of such penalty shall be determined by the tax commission. Such determination shall finally and irrevocably fix the amount of and liability for penalty with respect to such person unless such person, within ninety days after the giving of notice of such determination, shall apply to the tax commission for a hearing. The tax commission may, nevertheless, of its own motion, redetermine such determination or liability for penalty. Furthermore, the tax commission may, of its own motion, abate any part of the penalty determined to be erroneous or excessive whether or not such penalty has become finally and irrevocably fixed with respect to such person but no claim for abatement may be filed by any such person. The provisions of this paragraph shall not be construed limit in any manner the powers of the attorney general under subdivision (a) of section eleven hundred forty-one of this article or the powers of the tax commission to issue a warrant under subdivision (b) of such section against any person whose liability has become finally and irrevocably fixed.
§ 34. Paragraph one of subdivision (a) of section eleven hundred forty-five of such law is amended by adding a new subparagraph (vii) and subdivisions (c) and (d) of such section are relettered subdivisions (d) and (e) and a new subdivision (c) is added to read as follows:
(vii) Any Owner of a filling station (other than a distributor of motor fuel registered as such under article twelve-a of this chapter) who shall willfully and knowingly have in his custody, possession or under his control any motor fuel on which the taxes imposed by this article and which are required to have been paid have not been paid shall be liable for a penalty in the amount of twice the tax so not paid. Such penalty shall be determined, assessed, collected and paid in the same manner as taxes imposed by this article and all the provisions of this article relating thereto shall be deemed also to refer to the penalty imposed by this paragraph and, for this purpose, the term "person required to collect tax" shall be deemed to include an owner of a filling station. Such penalty may be determined at any time within three years after such motor fuel upon which taxes have not been paid shall have come into his custody, possession or control. For purposes of this subparagraph, such Owner shall willfully and knowingly have in his custody, possession or under his control motor fuel on which such taxes are required to have been paid and have not been paid where such owner has knowledge of the requirement that such taxes be paid and where, to his knowledge, such taxes have not been paid on such motor fuel.
(c) Any person failing to file a return or to pay or pay over any tax required to be prepaid to the tax commission with respect to motor fuel pursuant to the provisions of section eleven hundred two of this article within the time required by this article shall, in addition to any other penalty provided in this article or otherwise imposed by law, be subject to a penalty equal to the amount of tax required to be so prepaid pursuant to the provisions of such section eleven hundred two. If the tax commission determines that such failure to file a return or to prepay or
EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law to be omitted.
pay or pay over any such tax was due to reasonable cause and not due to willful neglect, it shall remit all or any part of such penalty.
§ 35. Section eleven hundred forty-eight of such law, as amended by chapter four hundred eighty-five of the laws of nineteen hundred eightyone, is amended to read as follows:
§ 1148. Deposit and disposition of revenue. All taxes, interest and penalties collected or received by the tax commission under this article shall be deposited and disposed of pursuant to the provisions of section one hundred seventy-one-a of this chapter; provided however, the comptroller shall on or before the twelfth day of each month, pay all taxes, interest and penalties collected under this article and remaining to his credit in such banks, banking houses or trust companies at the close of business on the last day of the preceding month, into the general fund of the state treasury, except as otherwise provided in section ninetytwo-d of the state finance law and [section] sections eleven hundred two and eleven hundred nine of this article.
§ 36. Subdivision (d) of section twelve hundred sixty-one of such law, as added by chapter nine hundred thirty of the laws of nineteen hundred eighty-two, is amended to read as follows:
(d) All of the provisions of this section shall apply to the taxes, penalties and interest from sales and compensating use taxes on sales and uses of [automotive] motor fuel [other than diesel fuel] imposed pursuant to this article except that the amount certified to the comptroller by the president of the state tax commission or his delegate with respect to such taxes, penalties and interest_shall be based upon the [estimated number of gallons of automotive] receipts from retail sales of motor fuel [other than diesel motor fuel] sold each month at retail service stations and [in] on other sales of [automotive] motor fuel [other than diesel motor fuel for consumption by the purchaser in each county and city imposing such taxes, the testimated total number of gallons of automotive fuel other than diesel] total receipts from taxes prepaid or paid pursuant to the provisions of section eleven hundred two of this article on motor fuel sold in this state [(excluding the city of New York)] each month, the total of [such] the taxes, penalties and interest collected or received in such month with respect to retail sales and uses of motor fuel (determined without regard to the refunds or credits allowed pursuant to subdivisions (a) and (b) of section eleven hundred twenty of this article), the sales tax rate applicable for that month in such county or city, the regional average retail sales price for such month, the amount of refunds and credits allowed pursuant to subdivisions (c) and (d) of section eleven hundred twenty of this article and such other data and standards as such president or delegate may deem necessary for such certification. The president of the state tax commission or his delegate shall arrive at the [estimated] number of gallons of automotive fuel other than diesel motor fuel sold in each such county or city and in this state [(excluding the city of New York)] by use of the reports of the number of gallons sold required to be filed pursuant to section eleven hundred thirty-six of this chapter and such other information as such president or delegate deems appropriate. [Provided, further, the method of distribution of revenue provided for in this subdivision shall not apply to the sales and compensating use taxes to the extent of the additional rate of one percent which the city of Yonkers is authorized to impose pursuant to section twelve hundred ten with respect to the application of such tax to sales and uses of automotive fuel] In arriving at the amount to be certified and distributed, the tax commission shall consider the collections of the taxes, penalties and interest required to be prepaid or paid pursuant to the provisions of section eleven hundred two of this article and the authorized refunds and credits of the tax imposed by section eleven hundred two of this article against the taxes required to be collected or paid pursuant to this article.
§ 37. Section 5-125 of the energy law, as added by chapter four hundred fifty-four of the laws of nineteen hundred eighty-two and the tion heading and subdivision one as amended by chapter nine hundred thirty of the laws of nineteen hundred eighty-two, is amended to read as follows:
§ 5-125. Determination of regional average retail sales price for [automotive] motor fuel. 1. [The] In accordance with subdivision (e) of section eleven hundred eleven of the tax law, the commissioner shall prescribe a schedule of the regional average retail sales price for each region [as the state tax commission determines to be necessary] defined in [accordance with paragraph two of] such subdivision [(e) of section
eleven hundred eleven of the tax law]. For each such region the commissioner shall prescribe the regional average retail sales price for [(a)] leaded, unleaded and premium motor fuel [and for diesel motor fuel and (b) for any other class of automotive fuel requested by the tax commission, which shall be computed per gallon and to the nearest onetenth of one cent. Such schedule shall:
a. be prescribed [after the forty-fifth day but] annually before [the seventy-fifth day of quarterly periods ending on the last day of February, May, August and November] the first day of April of each year; provided, however, if during the annual period the average retail sales price of any fuel in any region shall fall below seventy-five percent of the prescribed average retail sales price for such region or shall above one hundred and twenty-five percent of such prescribed price, then such average retail sales price shall be recomputed. The recomputed average retail sales price shall become effective two months after it is established and shall remain in effect for any remaining portion of the annual period.
be promulgated using data regarding the actual retail sales prices and shall consider the volumes of unleaded, leaded and premium motor fuel sold in this state taking into account the volumes sold at full service and self-service pumps for such fuels in the immediately preceding [quarterly period,] calendar year; including but not limited to such retail sales prices as compiled and published by industry sources and surveys, provided, however, that such retail sales prices shall include the taxes imposed by the United States pursuant to chapter 32 of the internal revenue code and shall exclude the taxes imposed by article twelve-A of the tax law and by article twenty-eight of the tax law and pursuant to the authority of article twenty-nine of the tax law;
applicable for the [quarterly] annual period [immediately following the quarterly period] beginning the first day of June of the year in which such schedule shall have been prescribed.
2. For purposes of this section, the term [automotive] motor fuel shall mean automotive] motor fuel as defined in subparagraph (ii) of paragraph four of subdivision (b) of section eleven hundred one of the tax law.
§38. The state tax commission shall promulgate such rules and regulations as are necessary for purposes of this act.
§ 38-a. There shall be created within the department of taxation and finance an administrative unit, under the direction of the commissioner, to be known as the fuel task force, which shall administer the taxes on petroleum products imposed pursuant to the provisions of articles twelve-A, thirteen-A, twenty-eight and twenty-nine of the tax law. The functions of such unit shall include, but not be limited to, the administration of the registration of distributors in accordance with section two hundred eighty-three of the tax law as amended by this act, the conduct of audits and the processing of tax refunds in relation to such taxes. Additionally, such task force shall, before September first, nineteen hundred eighty-six, conduct the reregistration of all distributors currently registered pursuant to the provisions of such articles twelve-A and thirteen-A.
§ 39. (a) Notwithstanding the provisions of any law to the contrary upon application by a distributor of motor fuel on the form prescribed by the tax commission, the tax commission shall authorize deferral of a portion of the payments required to be made to the tax commission by June twentieth, nineteen hundred eighty-five in the case of sales and compensating use taxes imposed by article twenty-eight and pursuant the authority of article twenty-nine of the tax law with respect to sales and uses of motor fuel occurring prior to June first of such year, and by June twenty-seventh, nineteen hundred eighty-five in the case of the excise taxes imposed by and pursuant to the authority of article twelve-A of the tax law with respect to sales and uses of motor fuel occurring during the month of May of such year.
(b) The aggregate of the taxes allowed to be deferred by any distributor as a result of this authorization shall not exceed the lesser of: (i) two hundred thousand dollars; or (ii) the positive difference between (A) the amount of the prepaid excise and sales and compensating use taxes which have been passed through to such distributor, as a consequence of the amendments made by this act, in his purchases of motor fuel during June nineteen hundred eighty-five and (B) the excise and EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law to be omitted.
sales and compensating use taxes on motor fuel which such distributor paid on his purchases of motor fuel during June nineteen hundred eightyfour. (c) Such deferred taxes shall be required to be paid in three equal installments, on the twentieth days of September, October and November, nineteen hundred eighty-five. Provided, however, that pursuant to such terms and conditions as the state tax commission shall prescribe, upon the granting of an application by a distributor, such commission may provide that such deferred taxes may be paid on such later dates, but prior to March thirty-first, nineteen hundred eighty-six, and in such installments as said commission shall allow. Provided further, however, that if such terms and conditions are not complied with, all of such moneys not paid or paid over shall become immediately due and owing and shall be collected in accordance with the terms of said articles.
§ 40. If any provision of article twelve-A or any provision of articles twenty-eight and twenty-nine of the tax law with respect to motor fuel which is amended by this act or the application thereof shall for any reason be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such judgment shall not affect, impair or invalidate the remainder of said articles but shall be confined in its operation to the provision thereof directly involved in the controversy in which such judgment shall have been rendered, and the applicability of such provision to other persons or circumstances shall not be affected thereby. Provided, further, in the event that the general scheme of taxation imposed by article twelve-A and, with respect to motor fuel, by article twenty-eight and pursuant to the authority of article twentynine of the tax law, as amended by this act, shall be finally adjudged by any court of competent jurisdiction to be invalid or unconstitutional, all the provisions of such article or articles, as the case may be, as in effect with respect to the imposition of the tax imposed on the sale or use of motor fuel prior to the date this act shall have become a law shall be deemed to have been in full force and effect as if the provisions of this act amending such article or articles had not been changed by this act.
§ 41. State motor fuels taxation advisory council. 1. There is hereby created within the department of taxation and finance the "state motor fuels taxation advisory council" hereinafter referred to as the "council". Such council shall consist of seven members, at least three of whom shall be representatives of distributors in the state, at least one of whom shall be a retailer of motor fuel, and at least one of whom shall represent a major oil company operating within the state. The members of the council shall be appointed by the commissioner of such department within three months of the effective date of this section. 2. One member shall be elected chairman of the advisory council by a majority vote of the members of such council.
The members of the council shall serve without compensation for their services as members of the council.
4. The council shall have the power, duty and responsibility to: a. Serve as a working forum for the exchange of views, concerns ideas, information and recommendations relating to the bulk storage of petroleum.
b. Advise the department on the proposal, preparation and compilation of any rules and regulations necessary to carry out the provisions of this act.
c. Request and receive from the department at each meeting of the council any portions of the rules and regulations then available for review, whether in final or draft form, and any supporting documents or other pertinent data.
d. Before promulgation of the rules and regulations required by this section, the commissioner shall first submit such rules and regulations to the council for review. The council shall, within thirty days of such submission, recommend in writing to the commissioner any suggested modifications to such rules and regulations.
5. The recording of council proceedings shall be performed by personnel of the department. 6. The council shall cease to exist one year after the effective date of the initial rules and regulations established under this section.
§ 42. This act shall take effect immediately, except that sections one through thirty-six shall take effect June first, nineteen hundred eighty-five and shall apply to all taxable events respecting motor fuel as such events are defined in section eleven hundred two of the tax law, amended by this act, and automotive fuel occurring on and after such
date and an amount equivalent to the sales taxes paid by or passed through to a purchaser upon sales of motor fuel before such date at the regional average retail sales price pursuant to the provisions of articles twenty-eight and twenty-nine of the tax law in effect prior to such date shall be allowed such purchaser as a credit or refund, where a refund or credit would be allowable after such date under the tax law, as amended by this act, against the tax required to be prepaid pursuant to section eleven hundred two and passed through or required to be collected or paid pursuant to section eleven hundred five or eleven hundred ten of the tax law upon sales or uses of such motor fuel occurring on and after such date and provided further, however, that no refund or credit shall be allowed pursuant to this provision with respect to motor fuel placed into the ordinary fuel tank connected with the engine of such vehicle prior to such date notwithstanding use of such fuel thereafter.
REPEAL NOTE. -Subdivisions three and four of section two hundred eighty-four of the tax law, repealed by section five of this act, exempted sales to a registered distributor of another state for immediate exportation from this state and sales to a volunteer fire company or department, or a volunteer rescue squad from the New York tax. Since the motor fuel tax is now collected on the first sale, sales of fuel exported under these circumstances will have tax included in the price, but the purchaser is able to obtain a refund upon furnishing proof of the out-of-state consumption. A refund for taxes paid by a volunteer fire company or department or a volunteer rescue squad is provided by this act.
Clause (F) of subparagraph (iii) of paragraph four of subdivision (b) of section eleven hundred one of such law, repealed by section nineteen of this act, excluded sales by a non-distributor from retail sales subject to tax. These sales are now subject to tax and a refund or credit is provided for over collection of the pre-collected_tax.
Subdivision (e) of section eleven hundred eleven of such law, repealed by section twenty-two of this act, provided for distributor collection of the regional average retail sales price which is replaced by the program of pre-collection and remittance of any difference at the retail sale of sales tax.
Subdivision (h) of section eleven hundred thirty-two of such law, repealed by section twenty-eight of this act provided that sales between distributors were free of sales tax. The pre-collected tax is now due on the first sale and this provision is therefore repealed as inconsistent with the statutory program.
Subdivision (c) of section eleven hundred thirty-four, repealed by section thirty of this act, provided for collection of the sales tax on automotive fuel, in the case of automotive fuel carriers, based on his appropriate rates, schedules, prices and regions. This scheme is inconsistent with the first sale concept in this act.
AN ACT to amend the education law, in relation to increasing state aid for certain independent institutions of higher education
Became a law April 17, 1985, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Subdivision three of section sixty-four hundred one of the education law, as amended by chapter four hundred twenty of the laws of nineteen hundred eighty-four, is amended to read as follows:
3. Degree awards. The amount of such annual apportionment to each institution meeting the requirements of subdivision two of this section shall be computed by multiplying by not to exceed [four] six hundred [fifty] dollars the number of earned associate degrees, by not to exEXPLANATION-Matter in italics is new; matter in brackets [ ] is old law to be omitted.