182-A - Franchise tax on certain oil companies.
§ 182-a. Franchise tax on certain oil companies. 1. Notwithstanding any other provision of this chapter, or of any other law, for the period beginning with taxable years commencing on or after the first day of July, nineteen hundred eighty-one, but including 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 the first day of July, nineteen hundred eighty-one, and ending with but not including taxable years commencing on or after the first day of July, nineteen hundred eighty-three, but including that portion of any taxable year commencing prior thereto to the extent of that portion of such year which includes the period which terminates with the thirtieth day of June, nineteen hundred eighty-three, an annual tax is hereby imposed upon every oil company equal to three-quarters of one per centum of its gross receipts from sales of petroleum, or the portion thereof allocated within the state as hereinafter provided, for the privilege of exercising its corporate franchise, or of doing business, or of employing capital, or of owning or leasing property in this state in a corporate or organized capacity, or of maintaining an office in this state, for all or any part of each of its taxable years. In no event shall the tax imposed by this section be less than two hundred fifty dollars. 2. As used in this section: (a) The term "oil company" means every corporation formed for or engaged in the business of importing or causing to be imported (by a person other than a corporation subject to tax under this section) into this state for sale in this state, extracting, producing, refining, manufacturing, or compounding petroleum. Provided, however, a corporation which is principally engaged in selling fuel oil (excluding diesel motor fuel) used for residential purposes shall not be considered an oil company. For purposes of this section, petroleum shall include, but shall not be limited to, gasoline, aviation fuel, kerosene, diesel motor fuel, benzol, distillate fuels, residual oil, crude oil or any similar product. (b) The term "gross receipts from sales of petroleum" means all receipts from sales of petroleum, whether from within or without the United States, whether in cash, credits or property of any kind or nature, without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or services, or other costs, interest or discount paid, or any other expense whatsoever. Receipts received by reason of any sale of fuel oil (excluding diesel motor fuel) or liquified or liquifiable gases (except when sold in containers of less than one hundred pounds) used for residential purposes shall not be included in gross receipts. However, to prevent the multiple application of the tax imposed by this section, gross receipts shall not include the receipts from any sale for resale to a purchaser which is an oil company subject to tax under this section. It shall be presumed that no receipts are receipts from a sale for resale to such purchaser unless such purchaser furnishes the oil company with a resale certificate in such form and under such terms and conditions as the tax commission may prescribe and such certificate is accepted in good faith by such oil company. In addition, it shall be presumed that no receipts are receipts received by reason of any sale of fuel oil (excluding diesel motor fuel) or liquified or liquifiable gases (except when sold in containers of less than one hundred pounds) used for residential purposes unless the purchaser furnishes the oil company with a residential use certificate, in such form, at such times and under such terms and conditions as the tax commission may prescribe, and such certificate is accepted in good faith by such oil company. Provided, however, where a purchaser is a consumerof such fuel oil or liquified or liquifiable gases, such purchaser shall not be required to furnish such certificate and the oil company making such sale shall be required to maintain records of such transactions in such form and manner as the tax commission may prescribe. In order to assist the purchaser from an oil company in completing its residential use certificate, the tax commission may require such other purchasers of petroleum as it deems necessary to furnish their suppliers with residential use certificates. (c) The term "corporation" includes a corporation, joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by certificate or other written instrument. (d) The term "taxable year" means the oil company's taxable year for federal income tax purposes, or the part thereof during which such oil company is subject to tax under this section. (e) The term "petroleum" shall mean crude oil, plant condensate, gasoline, aviation fuel, kerosene, diesel motor fuel, benzol, petrochemical feedstocks, distillate fuels, residual oil, and liquified or liquifiable gases such as butane, ethylene, or propane. 3. The portion of the gross receipts from sales of petroleum of an oil company to be allocated within the state shall be determined by multiplying such gross receipts by the ratio which the gross receipts from sales of petroleum where shipments are made to points within the state bear to the gross receipts from sales of petroleum within and without the state. Receipts received by reason of any sale of fuel oil or liquified or liquifiable gases used for residential purposes and receipts received from a sale for resale as described in paragraph (b) of subdivision two of this section shall be included as a receipt in the computation of the allocation percentage. 4. Every oil company subject to tax under this section shall keep such records of its business in such form as the tax commission may require, and such records shall be preserved for a period of three years, except that the tax commission may consent to their destruction within that period or may require that they be kept longer. 5. Every oil company subject to tax hereunder shall annually file on or before the fifteenth day of the third month following the close of its taxable year a return which shall state the gross receipts from sales of petroleum for the period covered by such return. Returns shall be filed with the tax commission in a form prescribed by it setting forth such information as the tax commission may prescribe. Every oil company subject to tax hereunder which ceases to exercise its franchise or to be subject to the tax imposed by this section shall transmit to the tax commission a return on the date of such cessation or at such other time as the tax commission may require covering each year or period for which no return was theretofore filed. Notwithstanding the foregoing provisions of this subdivision, the tax commission may require any oil company to file an annual return, which shall contain any data specified by it, regardless of whether the oil company is subject to tax under this section. 6. If any provision of this section conflicts with any other provision contained in this article, the provisions of this section shall control, but the provisions of this article which do not conflict with the provisions of this section shall apply with respect to the taxes under this section, insofar as they are, or may be made, applicable. 7. Any corporation which is subject to tax under section one hundred eighty-three, one hundred eighty-four, one hundred eighty-five or one hundred eighty-six of this article shall not be subject to tax under this section.8. An oil company which is not incorporated or organized under the laws of this state shall not be deemed to be doing business, employing capital, owning or leasing property, or maintaining an office in this state, for the purposes of this section, by reason of (a) the maintenance of cash balances with banks or trusts companies in this state, or (b) the ownership of shares of stock or securities kept in this state, if kept in a safe deposit box, safe, vault or other receptacle rented for the purpose, or if pledged as collateral security, or if deposited with one of banks or trust companies, or brokers who are members of a recognized security exchange, in safekeeping or custody accounts, or (c) the taking of any action by any such bank or trust company or broker, which is incidental to the rendering of safekeeping or custodian service to such oil company, or (d) the maintenance of an office in this state by one or more officers or directors of the oil company who are not employees of the oil company if the company otherwise is not doing business in this state, and does not employ capital or own or lease property in this state, or (e) the keeping of books or records of an oil company in this state if such books or records are not kept by employees of such oil company and such oil company does not otherwise do business, employ capital, own or lease property or maintain an office in this state, or (f) any combination of the foregoing activities. 9. Any receiver, referee, trustee, assignee or other fiduciary, or any officer or agent appointed by any court, who conducts the business of any oil company shall be subject to the tax imposed by this section in the same manner and to the same extent as if the business were conducted by the agents or officers of such oil company. A dissolved oil company which continues to conduct business shall also be subject to the tax imposed by this section. 10. (a) Where a false or fraudulent resale certificate or residential use certificate has been furnished to an oil company or to any other person, the corporation or person furnishing such certificate shall be subject to a penalty equal to three per centum of the gross receipts which would have otherwise been taxable to such oil company if such certificate had not been furnished to such company or to such other person. Such penalty shall be assessed, collected and paid in the same manner as the addition to tax with respect to a deficiency due to fraud provided for in subsection (e) of section one thousand eighty-five of this chapter is assessed, collected and paid. (b) If a purchaser which is required by paragraph (b) of subdivision two of section one hundred eighty-two-a to provide an oil company or other supplier with a residential use certificate fails to provide such certificate or provides a certificate which understates the amount of fuel oil (excluding diesel motor fuel) or liquified or liquifiable gases (except when sold in containers of less than one hundred pounds) used for residential purposes, unless it is shown that such failure or understatement is due to reasonable cause and not to willful neglect, there shall, upon notice and demand by the tax commission and in the same manner as tax, be paid by such purchaser a penalty of one hundred dollars for each such failure or for each certificate containing such understatement; provided, however, in no event may more than five thousand dollars in such penalties be imposed against such purchaser in any calendar year. 11. All taxes, interest and penalties collected or received by the commissioner under the taxes and penalties imposed by this section 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 oneor 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 this section, the comptroller shall retain in his hands such amount as the commissioner may determine to be necessary for refunds under this section, out of which amount the comptroller shall pay any refunds to which oil companies shall be entitled under the provisions of this section. After reserving the amount required to pay such refunds, the comptroller shall prior to April first, nineteen hundred ninety-four, deposit weekly forty-five percent of all remaining revenue in the mass transportation operating assistance fund to the credit of the public transportation systems operating assistance account therein, and fifty-five percent of such revenue in such fund to the credit of the metropolitan mass transportation operating assistance account therein, established by section eighty-eight-a of the state finance law, and on and after April first, nineteen hundred ninety-four, after reserving the amount to pay such refunds, the comptroller shall deposit weekly all the revenues remaining in such mass transportation operating assistance fund to the credit of such public transportation systems operating assistance account therein. After reserving the amount to pay such refunds, the comptroller shall on and after April first, nineteen hundred ninety-six, deposit weekly forty-five percent of all remaining revenue in such mass transportation operating assistance fund to the credit of such public transportation systems operating assistance account therein, and fifty-five percent of such revenue in such fund to the credit of such metropolitan mass transportation operating assistance account therein.