N.Y.
Tax Law Section 285-A
Presumption of taxability
1.
No person shall purchase motor fuel in this state, excluding a purchase at retail, unless the taxes imposed by this article have been assumed by a distributor registered under this article in accordance with a certification under subdivision three of this section or paid by such distributor, and, in each of such instances, are passed through to such purchaser. In addition to any other civil and criminal penalties which may apply, any person who purchases motor fuel without having received a certification from the seller in accordance with subdivision three of this section shall be jointly and severally liable to pay the taxes imposed by this article with respect to such motor fuel.2.
For the purpose of the proper administration of this article and to prevent evasion of the tax on motor fuel imposed by and pursuant to this article, it shall be presumed that all motor fuel imported, manufactured or sold, received or possessed in the state is intended for use, distribution, storage or sale in the state and subject to the taxes imposed by this article until the contrary is established. It shall be further presumed that all motor fuel so imported, manufactured or sold, received or possessed in the state by any person, other than motor fuel delivered into the ordinary fuel tank connected with the engine of a means of conveyance in order to propel it, or in small drums or similar containers, which such person cannot otherwise account for, is subject to the taxes imposed by this article and such person is responsible for payment of such taxes. Provided, however, a distributor of motor fuel who imports, manufactures or sells and stores in the state or who purchases and stores motor fuel in the state on which he has paid the taxes imposed by this article shall be allowed an adjustment in arriving at the gallons subject to the taxes imposed by such section on account of the gallons the distributor establishes were lost due to shrinkage, evaporation and handling; provided, however, such allowance shall not exceed two percent of the fuel stored. Provided, further, that in arriving at the gallons of motor fuel subject to the taxes imposed by this article, there shall be allowed an adjustment on account of gallons lost or destroyed due to an accident, such as fire, and at the time of such loss or destruction were being held or transported for sale other than at retail. The burden of proving that any motor fuel is not so subject shall be upon the person so responsible for such payment with respect to such fuel.3.
(a) Upon each sale of motor fuel, other than a sale at retail, the seller must give to the purchaser and the purchaser shall receive at the time of delivery of such motor fuel, a certification containing such information as the tax commission shall require which shall include a statement to the effect:(i)
if such seller is a distributor registered under this article, that he assumed the payment of or paid the taxes imposed by this article and, in each case, is passing through such taxes; or(ii)
that such seller is passing through such taxes which were so previously assumed or paid by an identified distributor registered under this article, and passed through to him.(b)
If the certification required by this subdivision has been furnished to the purchaser at delivery and accepted in good faith, the burden of proving that the taxes imposed by this article were assumed or paid by a distributor registered as such under this article and passed through shall be solely on the seller.(c)
Where the certification required under this paragraph is not furnished by the seller at delivery of motor fuel, it shall be presumed that the taxes imposed by this article have not been assumed or paid by a distributor registered as such under this article and that the purchaser in such case is jointly and severally liable for such taxes.(d)
If, due to the circumstances of delivery, it is not possible to issue a certification required under this subdivision at the time of delivery of motor fuel, the tax commission may authorize the delivery of the certification required under this paragraph at a time after the delivery of the motor fuel which is the subject of the sale under the limited circumstances it shall prescribe and upon such terms and conditions it shall deem necessary to ensure collection of the taxes imposed by this article and the tax imposed by § 1102 (Prepayment of sales tax on motor fuel and diesel motor fuel)section eleven hundred two of this chapter. * 4. Upon each sale of motor fuel, other than a sale that is otherwise exempt under this article, the distributor must charge the tax imposed by this article to the purchaser on each gallon sold. If the taxes imposed by this article have not already been assumed or paid by a distributor on any quantity of such fuel for any reason, including, but not limited to, the expansion of such fuel as a result of temperature fluctuation, the distributor must remit such taxes to the commissioner on the return for the period in which such sale was made. * NB Effective September 1, 2023
Source:
Section 285-A — Presumption of taxability, https://www.nysenate.gov/legislation/laws/TAX/285-A (updated May 12, 2023; accessed Oct. 26, 2024).
