503-A - Imposition of additional tax.

§  503-a.  Imposition  of  additional  tax.  1. In addition to the tax  imposed by section five hundred three of this chapter, and  in  addition  to  any  other tax or fee imposed by law, there is hereby imposed on and  after July first, nineteen hundred sixty-eight and before January first,  nineteen hundred ninety-six an additional tax on  highway  use  for  the  privilege  of  operating any vehicular unit, other than an omnibus, upon  the public highways of this state,  and  on  and  after  October  first,  nineteen  hundred  sixty-nine and before January first, nineteen hundred  ninety-six an additional  tax  on  highway  use  for  the  privilege  of  operating  upon the public highways of this state any omnibus which is a  vehicular unit as defined in subdivision eight of this  section.    Such  tax  shall  be upon the carrier except that where the carrier is not the  owner of such vehicular unit, the tax  shall  be  a  joint  and  several  liability upon both.    2. Such tax shall be at a composite rate determined by adding together  (i)  a  fuel  tax  component  which  shall be equivalent to the rate per  gallon in effect under the taxes on motor fuel  and  diesel  motor  fuel  imposed  by  article  twelve-a  of  this  chapter  and  (ii) a sales tax  component, which shall be equivalent to the rate per  gallon  applicable  to the receipts from the sale of a gallon of motor fuel and diesel motor  fuel  in  effect  under  the sales and compensating use taxes imposed by  sections eleven hundred five and eleven hundred ten of this chapter plus  the highest rate applicable to the receipts from the sale of a gallon of  motor fuel and diesel motor fuel in effect in any locality of this state  imposing a local sales and compensating use tax on  the  sale  of  motor  fuel and diesel motor fuel under the authority of section twelve hundred  ten  of  this  chapter;  provided,  however, that the aggregate rate per  gallon applicable to the receipts from the sale  of  a  gallon  of  such  fuels  imposed  under  clause  (ii) of this subdivision shall not exceed  seven percent. Such total equivalent rate per gallon under  clause  (ii)  of  this  subdivision shall be determined as provided in subdivision (d)  of section eleven hundred eleven  of  this  chapter  and  the  schedules  prescribed  by the commissioner of taxation and finance pursuant to such  subdivision, and  shall  be  based  on  the  average  price  per  gallon  (including  all  federal  and state and any local taxes included in such  price or imposed on the use or consumption of such fuels but  determined  without  the inclusion of any state and local sales tax on receipts from  sales of such fuels) paid by the carrier during the  return  period  for  all motor fuel and diesel motor fuel purchased for use in its operations  either   within  or  without  this  state.  Provided,  however,  if  the  commissioner shall  determine  that  the  records  of  any  carrier  are  inadequate  or incomplete for such a determination of average price, the  price for motor fuel and diesel motor fuel  purchased  by  such  carrier  shall  be  deemed  to  be the prevailing price for motor fuel and diesel  motor fuel, as established by the  commissioner  each  calendar  quarter  pursuant to this section, applicable to the return period. Each calendar  quarter,  the  commissioner  shall for each calendar quarter establish a  prevailing price for motor fuel and  diesel  motor  fuel  based  on  the  prices  being  charged on any given day during the first fifteen days of  the previous calendar quarter at a minimum of ten selected  truck  stops  widely  scattered throughout the state. For any return period, a carrier  may elect to use the prevailing price per gallon so established  by  the  commissioner.  Such  tax shall be computed by multiplying such composite  rate by the amount of motor fuel or diesel motor fuel, as the  case  may  be,  used  by  a carrier in its operations within this state during each  calendar quarter or, where the commissioner has required or permitted  a  return  to  be  based upon a different period, during such other period.  The amount of motor fuel and diesel motor fuel used in the operations ofany carrier within this state shall be  such  proportion  of  the  total  amount  of  such  motor  fuel  and  diesel motor fuel used in its entire  operations within and without this state as the total  number  of  miles  traveled  within  this state bears to the total number of miles traveled  within and without this state.  The  commissioner  may,  by  regulation,  allow  use  of  a  miles  per  gallon  factor  in computing fuel used in  operations in lieu of the above formula if evidence is presented to  the  commissioner's  satisfaction  that no loss of revenue will result. Where  the records of any carrier are inadequate or  incomplete  the  vehicular  units  of  a carrier filing returns shall be deemed to have consumed, on  the average, one gallon of  diesel  motor  fuel  for  every  four  miles  traveled  or  one  gallon  of  motor fuel for every three miles traveled  unless substantial  evidence  discloses  that  a  different  amount  was  consumed.    3.  Every  carrier subject to the tax imposed by this section shall be  entitled to a credit against such tax determined by adding together  the  following  components:  (i) a fuel tax component computed by multiplying  the number of gallons of motor fuel or diesel motor  fuel  purchased  by  such  carrier  within  this  state  in  a  return period, for use in its  operations either within or without this state, by the  applicable  rate  per  gallon imposed on such fuel under article twelve-A of this chapter,  provided, however, no credit shall be allowed  unless  the  tax  imposed  under  such article twelve-A upon such purchase of fuel has been paid by  such carrier, and (ii) a sales tax component computed by multiplying the  number of gallons of motor fuel or diesel motor fuel purchased  by  such  carrier  within this state in a return period, for use in its operations  either within or without this state (as determined in a  manner  similar  to  the  method for determining the use of fuel in the state as provided  for under subdivision two of this section), by the applicable equivalent  rate per gallon  of  the  sales  tax  component  of  the  tax  rate  (as  determined under subdivision two of this section), provided, however, no  credit   shall   be   allowed  unless  the  tax  imposed  under  article  twenty-eight of this chapter upon such purchase of fuel has been paid by  the carrier. Each carrier claiming such credit components shall  furnish  to  the  commissioner  such  evidence  of  payment  of such taxes as the  commissioner may require. When the amount of the  credit  to  which  any  carrier  is  entitled  for  any  return period with respect to gallonage  purchased in such return period exceeds the amount of tax for which such  carrier is liable under this section for such return period, such excess  shall be allowed as a credit against the tax or which such carrier would  otherwise be liable for those succeeding periods (after  application  of  any  credits  derived  with  respect to gallonage purchased in each such  succeeding period) which fall wholly within the twenty-four month period  commencing with the end of the return period from which the  excess  was  derived  or, if a claim for refund is filed on or before the last day of  the month immediately following the forty-eight month period  commencing  with  the  end  of  the return period which gave rise to the refund, the  amount of such excess for such period shall be  refunded;  but,  such  a  claim  for  refund  may be filed no more frequently than quarterly, with  respect to the calendar quarters: January through March,  April  through  June,  July  through  September  and  October  through  December.    The  commissioner shall grant or deny any such claim for refund in  whole  or  in  part  and  shall  notify  the claimant by mail of the commissioner's  determination. Such determination shall be final and irrevocable  unless  the  claimant  shall,  within thirty days after the mailing of notice of  such determination, petition the division of tax appeals for a  hearing.  After such hearing, the division of tax appeals shall mail notice of the  determination of the administrative law judge to the claimant and to thecommissioner.  Such  determination  may  be  reviewed by the tax appeals  tribunal as provided in article forty of this chapter. The  decision  of  the  tax  appeals  tribunal  may  be reviewed as provided in section two  thousand  sixteen of this chapter. However, such a proceeding may not be  commenced unless an undertaking is filed with the commissioner  in  such  amount  and  with  such sureties as a justice of the supreme court shall  approve to the effect  that  if  the  proceeding  be  dismissed  or  the  decision  confirmed, the petitioner will pay all costs and charges which  may accrue against him in the prosecution of the proceeding.    4. Except as otherwise provided in  this  subdivision,  every  carrier  subject  to the tax imposed by this section shall file returns reporting  its operations pursuant to the provisions of section five  hundred  five  of  this article for the reporting periods provided pursuant thereto. If  the commissioner of taxation and finance finds that the  enforcement  of  the  tax  imposed  by  this section would not be adversely affected, the  commissioner may  provide,  by  regulation,  that  a  carrier  operating  primarily  within this state may file an information return, rather than  the aforementioned returns, provided the carrier has purchased  in  this  state  all  the  motor fuel and diesel motor fuel used in its operations  during the period covered by such return  and  pays  the  taxes  imposed  under  articles  twelve-a and twenty-eight and pursuant to the authority  of article twenty-nine of this chapter  on  such  fuels  in  the  manner  required  by  such  articles.  An election to file an information return  shall be made in such form, for such time and upon  such  terms  as  the  commissioner shall require.    5.  At  the  time  of  filing  its return, as required pursuant to the  preceding subdivision, each carrier shall pay the tax  imposed  by  this  section  calculated  upon the amount of motor fuel and Diesel motor fuel  used in its operations within this state during the  period  covered  by  the return filed.    6.  For  purposes  of  this section, the definition of "motor fuel" in  subdivision two of section two hundred eighty-two and the definition  of  "Diesel  motor  fuel"  in  subdivision  fourteen  of section two hundred  eighty-two of this chapter shall apply.    7.  For  purposes  of  this  section,  the  term  "operations"   means  operations  of  all vehicular units, whether loaded or empty, whether or  not for compensation and whether owned by or leased to the carrier which  operates them or causes them to be operated.    8. For purposes of this section only, (a) the  term  "vehicular  unit"  shall   include   an  omnibus  engaged  in  the  interstate  or  foreign  transportation of passengers and subject  to  the  jurisdiction  of  the  interstate  commerce commission, or any agency successor thereto, or one  or more state regulatory  agencies  concerned  with  the  regulation  of  passenger  transport,  having  a  seating  capacity  of  more than seven  persons in addition to the driver; and  (b)  the  term  "carrier"  shall  include any person having the lawful use or control, or the right to the  use or control of any such omnibus.    9.  The  rest of the provisions of this article shall be applicable to  the tax imposed by this section except to the extent such provisions are  inconsistent with a provision in this section.