Bill Text: NY A07501 | 2009-2010 | General Assembly | Introduced
Bill Title: Provides commercial fishermen with an exemption from certain sales tax on fuel purchases.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-01-06 - referred to ways and means [A07501 Detail]
Download: New_York-2009-A07501-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7501
2009-2010 Regular Sessions
I N A S S E M B L Y
April 13, 2009
___________
Introduced by M. of A. THIELE -- read once and referred to the Committee
on Ways and Means
AN ACT to amend the tax law, in relation to certain sales of fuel to
exempt commercial fishermen
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 3 of section 289-c of the tax law is amended by
2 adding a new paragraph (i) to read as follows:
3 (I) NOTWITHSTANDING ANY PROVISION OF THE LAW TO THE CONTRARY, TAX PAID
4 PURSUANT TO THIS ARTICLE IN RESPECT TO MOTOR FUEL OR DIESEL MOTOR FUEL
5 PURCHASED BY A COMMERCIAL FISHERMAN AND PAID FOR BY SUCH COMMERCIAL
6 FISHERMAN WITH A CREDIT CARD SHALL BE REIMBURSED OR CREDITED TO THE
7 ISSUER OF THE CREDIT CARD USED FOR SUCH PURCHASE OR THE FUEL DISTRIBUTOR
8 DESIGNATED IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF SECTIONS
9 ELEVEN HUNDRED THIRTY-EIGHT, ELEVEN HUNDRED THIRTY-NINE, ELEVEN HUNDRED
10 FORTY-TWO, AND ELEVEN HUNDRED FORTY-FIVE OF THIS CHAPTER CONCERNING SUCH
11 CREDIT CARD ISSUERS, FUEL DISTRIBUTORS AND COMMERCIAL FISHERMEN. SUCH
12 PROVISIONS SHALL APPLY WITH RESPECT TO THE ADMINISTRATION OF AND PROCE-
13 DURE WITH RESPECT TO THE TAXES IMPOSED UNDER THIS ARTICLE IN THE SAME
14 MANNER AND WITH THE SAME FORCE AND EFFECT AS IF THE LANGUAGE OF SUCH
15 PROVISIONS HAD BEEN INCORPORATED IN FULL INTO THIS ARTICLE AND HAD
16 EXPRESSLY REFERRED TO THE TAX UNDER THIS ARTICLE, WITH SUCH MODIFICA-
17 TIONS AS MAY BE NECESSARY IN ORDER TO ADAPT THE LANGUAGE OF SUCH
18 PROVISIONS TO THE TAXES IMPOSED BY THIS ARTICLE, EXCEPT TO THE EXTENT
19 THAT ANY SUCH PROVISION IS NOT RELEVANT TO THIS ARTICLE.
20 S 2. The tax law is amended by adding a new section 301-n to read as
21 follows:
22 S 301-N. CREDIT OR REIMBURSEMENT FOR CERTAIN COMMERCIAL FISHERMEN BY
23 CREDIT CARD. NOTWITHSTANDING ANY PROVISION OF THE LAW TO THE CONTRARY,
24 TAX PAID PURSUANT TO THIS ARTICLE IN RESPECT TO MOTOR FUEL OR DIESEL
25 MOTOR FUEL PURCHASED BY A COMMERCIAL FISHERMAN AND PAID FOR BY SUCH
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10673-01-9
A. 7501 2
1 COMMERCIAL FISHERMAN WITH A CREDIT CARD SHALL BE REIMBURSED OR CREDITED
2 TO THE ISSUER OF THE CREDIT CARD USED FOR SUCH PURCHASE OR THE FUEL
3 DISTRIBUTOR DESIGNATED IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS
4 OF SECTIONS ELEVEN HUNDRED THIRTY-EIGHT, ELEVEN HUNDRED THIRTY-NINE,
5 ELEVEN HUNDRED FORTY-TWO, AND ELEVEN HUNDRED FORTY-FIVE OF THIS CHAPTER
6 CONCERNING SUCH CREDIT CARD ISSUERS, FUEL DISTRIBUTORS AND COMMERCIAL
7 FISHERMEN. SUCH PROVISIONS SHALL APPLY WITH RESPECT TO THE ADMINIS-
8 TRATION OF AND PROCEDURE WITH RESPECT TO THE TAXES IMPOSED UNDER THIS
9 ARTICLE IN THE SAME MANNER AND WITH THE SAME FORCE AND EFFECT AS IF THE
10 LANGUAGE OF SUCH PROVISIONS HAD BEEN INCORPORATED IN FULL INTO THIS
11 ARTICLE AND HAD EXPRESSLY REFERRED TO THE TAX UNDER THIS ARTICLE, WITH
12 SUCH MODIFICATIONS AS MAY BE NECESSARY IN ORDER TO ADAPT THE LANGUAGE OF
13 SUCH PROVISIONS TO THE TAXES IMPOSED BY THIS ARTICLE, EXCEPT TO THE
14 EXTENT THAT ANY SUCH PROVISION IS NOT RELEVANT TO THIS ARTICLE.
15 S 3. Paragraph 3 of subdivision (a) of section 1138 of the tax law is
16 amended by adding a new subparagraph (F) to read as follows:
17 (F) IN ADDITION TO ANY OTHER LIABILITY A CREDIT CARD ISSUER OR FUEL
18 DISTRIBUTOR MAY HAVE, THE COMMISSIONER SHALL DETERMINE ANY OR ALL OF THE
19 FOLLOWING LIABILITIES: (1) ANY TAX, INTEREST OR PENALTY LIABILITY OF A
20 CREDIT CARD ISSUER OR FUEL DISTRIBUTOR FOR ANY CREDIT ALLOWED OR REFUND
21 PAID UNDER SUBDIVISION (I) OF SECTION ELEVEN HUNDRED THIRTY-NINE OF THIS
22 PART WHICH WAS ERRONEOUSLY, ILLEGALLY OR UNCONSTITUTIONALLY ALLOWED OR
23 PAID TO SUCH CREDIT CARD ISSUER OR FUEL DISTRIBUTOR, OR (2) THE PENALTY
24 IMPOSED BY SUBPARAGRAPH (X) OF PARAGRAPH ONE OF SUBDIVISION (A) OF
25 SECTION ELEVEN HUNDRED FORTY-FIVE OF THIS PART. IN ANY SUCH INSTANCE,
26 THE COMMISSIONER SHALL GIVE THE CREDIT CARD ISSUER OR FUEL DISTRIBUTOR
27 NOTICE OF SUCH DETERMINATION IN THE MANNER DESCRIBED IN PARAGRAPH ONE
28 AND TWO OF THIS SUBDIVISION. SUCH DETERMINATION SHALL BE AN ASSESSMENT
29 OF ANY SUCH LIABILITY UNLESS SUCH CREDIT CARD ISSUER OR FUEL DISTRIBU-
30 TOR, WITHIN NINETY DAYS AFTER THE GIVING OF SUCH NOTICE AND DETERMI-
31 NATION, SHALL APPLY TO THE COMMISSIONER FOR A HEARING. THE COMMISSIONER
32 MAY, NEVERTHELESS, OF HIS OR HER OWN MOTION, REDETERMINE SUCH DETERMI-
33 NATION OR LIABILITY FOR PENALTY. FURTHERMORE, THE COMMISSIONER MAY, OF
34 HIS OR HER OWN MOTION, ABATE ANY PART OF THE PENALTY DETERMINED TO BE
35 ERRONEOUS OR EXCESSIVE WHETHER OR NOT SUCH PENALTY HAS BECOME FINALLY
36 AND IRREVOCABLY FIXED WITH RESPECT TO SUCH ISSUER OR FUEL DISTRIBUTOR
37 BUT NO CLAIM OF ABATEMENT MAY BE FILED BY SUCH ISSUER OR FUEL DISTRIBU-
38 TOR. THE PROVISIONS OF THIS PARAGRAPH SHALL NOT BE CONSTRUED TO LIMIT IN
39 ANY MANNER THE POWERS OF THE ATTORNEY GENERAL UNDER SUBDIVISION (A) OF
40 SECTION ELEVEN HUNDRED FORTY-ONE OF THIS PART OR THE POWERS OF THE
41 COMMISSIONER TO ISSUE A WARRANT UNDER SUBDIVISION (B) OF SUCH SECTION
42 AGAINST ANY SUCH ISSUER OR FUEL DISTRIBUTOR WHOSE LIABILITY HAS BECOME
43 FINALLY AND IRREVOCABLY FIXED.
44 S 4. Section 1139 of the tax law is amended by adding a new subdivi-
45 sion (i) to read as follows:
46 (I)(1) NOTWITHSTANDING ANY PROVISION OF THE LAW TO THE CONTRARY,
47 PURSUANT TO THE PROVISIONS OF THIS SUBDIVISION, THE COMMISSIONER SHALL
48 REFUND OR CREDIT TO (I) A CREDIT CARD ISSUER TAX PAID PURSUANT TO THIS
49 ARTICLE IN RESPECT TO MOTOR FUEL AND DIESEL MOTOR FUEL PURCHASED BY A
50 COMMERCIAL FISHERMAN AND PAID FOR BY SUCH COMMERCIAL FISHERMAN WITH A
51 CREDIT CARD ISSUED BY SUCH CREDIT CARD ISSUER OR (II) A FUEL DISTRIBUTOR
52 TAX PAID PURSUANT TO THIS ARTICLE IN RESPECT TO MOTOR FUEL AND DIESEL
53 MOTOR FUEL PURCHASED BY A COMMERCIAL FISHERMAN AND PAID FOR BY SUCH
54 COMMERCIAL FISHERMAN WITH A CREDIT CARD ISSUED BY A CREDIT CARD ISSUER.
55 SUCH CREDIT CARD ISSUER OR SUCH FUEL DISTRIBUTOR, AS DESIGNATED BY THE
56 PARTIES IN A WRITTEN DESIGNATION TO THE COMMISSIONER, SHALL BE THE ONLY
A. 7501 3
1 PERSON ELIGIBLE TO RECEIVE SUCH REFUND OR CREDIT, PROVIDED THAT: (A)
2 SUCH TAXES WERE ACTUALLY PAID TO THE COMMISSIONER; (B) THE FUEL SO
3 PURCHASED BY THE COMMERCIAL FISHERMAN IS FOR ITS OWN USE OR CONSUMPTION
4 SUCH THAT THE PURCHASE QUALIFIES AS AN EXEMPT PURCHASE PURSUANT TO AN
5 EXCEPTION IN PARAGRAPH FIVE OF SUBDIVISION (B) OF SECTION ELEVEN HUNDRED
6 SIXTEEN OF THIS ARTICLE; (C) THE CREDIT CARD ISSUER OR FUEL DISTRIBUTOR
7 MEETS THE REQUIREMENTS OF PARAGRAPH TWO OF THIS SUBDIVISION; AND (D) THE
8 COMMISSIONER HAS NOT ISSUED A NOTICE PURSUANT TO SUBDIVISION FIFTEEN OF
9 SECTION ELEVEN HUNDRED FORTY-TWO OF THIS PART INDICATING THAT THE CREDIT
10 CARD ISSUER OR FUEL DISTRIBUTOR IS NO LONGER ALLOWED TO CLAIM A REFUND
11 OR CREDIT UNDER THIS SUBDIVISION FOR THE FUEL PURCHASED BY A PARTICULAR
12 COMMERCIAL FISHERMAN. SUCH APPLICATION FOR CREDIT OR REFUND SHALL BE
13 SUBMITTED AFTER THE END OF THE QUARTER IN WHICH THE VENDOR OF THE MOTOR
14 FUEL OR DIESEL MOTOR FUEL WAS REQUIRED TO REPORT THE TAX LIABILITY IT
15 COLLECTED FROM THE CREDIT CARD ISSUER OR FUEL DISTRIBUTOR PURSUANT TO
16 SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART, BUT WITHIN THE APPLICA-
17 BLE STATUTE OF LIMITATIONS AS REQUIRED UNDER THIS SECTION.
18 (2) IN ORDER TO BE ELIGIBLE TO RECEIVE THE REFUND OR CREDIT PROVIDED
19 FOR IN PARAGRAPH ONE OF THIS SUBDIVISION, THE CREDIT CARD ISSUER OR FUEL
20 DISTRIBUTOR SHALL: (A) FILE WITH THE COMMISSIONER A CERTIFICATE OF
21 REGISTRATION AND RECEIVE A CERTIFICATE OF AUTHORITY PURSUANT TO SECTION
22 ELEVEN HUNDRED THIRTY-FOUR OF THIS PART, IF NOT ALREADY SO REGISTERED,
23 PROVIDED, HOWEVER, THE CREDIT CARD ISSUER OR FUEL DISTRIBUTOR SHALL
24 PROVIDE SUCH ADDITIONAL INFORMATION AS THE COMMISSIONER MAY REQUIRE; (B)
25 ESTABLISH IT HAS (I) NOT CHARGED OR OTHERWISE RECEIVED ANY TAX, OR ANY
26 AMOUNT PURPORTEDLY AS TAX, FROM THE COMMERCIAL FISHERMAN MAKING THE
27 PURCHASE; AND (II) FILED A WRITTEN CONSENT SIGNED BY THE CHIEF FISCAL
28 OFFICER OF THE COMMERCIAL FISHERMAN STATING THAT NO TAX WAS CHARGED TO
29 SUCH COMMERCIAL FISHERMAN BY THE CREDIT CARD ISSUER OR FUEL DISTRIBUTOR,
30 AND THAT THEREFORE THE COMMERCIAL FISHERMAN HAS NO CLAIM FOR A CREDIT OR
31 REFUND RELATING TO ITS PURCHASES OF MOTOR FUEL OR DIESEL MOTOR FUEL
32 EFFECTED WITH THE CREDIT CARD ISSUER'S CREDIT CARD AND THAT NO SUCH
33 CLAIM HAS OR WILL BE MADE BY THE COMMERCIAL FISHERMAN; (C) ESTABLISH
34 EITHER THAT (I) THE RETAIL STATION OR OTHER VENDOR HAS BEEN REPAID THE
35 AMOUNT OF TAX IT CHARGED TO THE COMMERCIAL FISHERMAN ON THE COMMERCIAL
36 FISHERMAN'S PURCHASE OF THE MOTOR FUEL OR DIESEL MOTOR FUEL, OR (II)
37 OBTAINED THE WRITTEN CONSENT OF THE RETAIL STATION OR OTHER VENDOR TO
38 THE ALLOWANCE OF THE CREDIT OR REFUND TO THE CREDIT CARD ISSUER OR FUEL
39 DISTRIBUTOR; AND (D) PROVIDE SUCH DETAILED TRANSACTIONAL AND JURISDIC-
40 TIONAL INFORMATION TO THE COMMISSIONER AS THE COMMISSIONER MAY REQUIRE,
41 IN THE FORM REQUESTED BY THE COMMISSIONER.
42 (3)(A) THE TERM "COMMERCIAL FISHERMAN" MEANS A PERSON DESCRIBED IN
43 SUBDIVISION (I) OF SECTION THREE HUNDRED OF THIS CHAPTER.
44 (B) THE TERM "CREDIT CARD ISSUER" MEANS A PERSON WHICH FINANCES THE
45 EXEMPT PURCHASE OF MOTOR FUEL OR DIESEL MOTOR FUEL BY A COMMERCIAL FISH-
46 ERMAN BY MEANS OF A CREDIT OR OTHER ACCESS CARD ISSUED TO THE COMMERCIAL
47 FISHERMAN BY SUCH PERSON.
48 (C) THE TERM "FUEL DISTRIBUTOR" MEANS ANY PERSON WHO IS A REGISTERED
49 DISTRIBUTOR UNDER ARTICLE TWELVE-A OF THIS CHAPTER AND WHO IS REGISTERED
50 AS A PERSON REQUIRED TO COLLECT TAX PURSUANT TO THIS ARTICLE.
51 (4) IF ANY REQUIREMENT OF PARAGRAPH TWO OF THIS SUBDIVISION IS NOT
52 MET, OR IF THE CREDIT CARD ISSUER AND, WHERE APPLICABLE, THE FUEL
53 DISTRIBUTOR, RECEIVE A NOTICE PURSUANT TO SUBDIVISION FIFTEEN OF SECTION
54 ELEVEN HUNDRED FORTY-TWO OF THIS ARTICLE, THEN AN AMOUNT EQUAL TO THE
55 TAX IMPOSED BY THIS ARTICLE SHALL BE COLLECTED FROM THE COMMERCIAL FISH-
56 ERMAN, NOTWITHSTANDING SUCH COMMERCIAL FISHERMAN'S EXEMPT STATUS, AND
A. 7501 4
1 SUCH COMMERCIAL FISHERMAN SHALL BE RESPONSIBLE FOR SEEKING ANY CREDIT OR
2 REFUND WHICH IT MAY BE ALLOWED UNDER THIS ARTICLE.
3 (5) THE PROVISIONS OF SUBDIVISIONS (A), (B) AND (C) OF THIS SECTION
4 SHALL ALSO APPLY TO AN APPLICATION FOR REFUND OR CREDIT PURSUANT TO THIS
5 SUBDIVISION, EXCEPT TO THE EXTENT THAT SUCH SUBDIVISIONS ARE INCONSIST-
6 ENT WITH THIS SUBDIVISION, AND EXCEPT THAT NO INTEREST SHALL BE ALLOWED
7 OR PAID UPON ANY REFUND MADE OR CREDIT ALLOWED PURSUANT TO THIS SUBDIVI-
8 SION. ANY DOCUMENT REQUIRED PURSUANT TO THIS SUBDIVISION SHALL BE IN
9 SUCH FORM AND CONTAIN SUCH INFORMATION AS THE COMMISSIONER SHALL
10 PRESCRIBE.
11 (6) A CREDIT CARD ISSUER OR FUEL DISTRIBUTOR DESIGNATED PURSUANT TO
12 THIS SUBDIVISION TO RECEIVE THE REFUND OR CREDIT AND ITS OFFICERS,
13 DIRECTORS, EMPLOYEES, MANAGERS AND MEMBERS UNDER A DUTY TO ACT FOR SUCH
14 CREDIT CARD ISSUER OR FUEL DISTRIBUTOR IN COMPLYING WITH ANY REQUIREMENT
15 OF THIS ARTICLE AND, WHERE SUCH CREDIT CARD ISSUER OR FUEL DISTRIBUTOR
16 IS A PARTNERSHIP OR LIMITED LIABILITY COMPANY, ANY MEMBER OF SUCH PART-
17 NERSHIP OR COMPANY SHALL BE DEEMED TO BE PERSONS REQUIRED TO COLLECT TAX
18 AND SHALL BE PERSONALLY LIABLE IN ACCORDANCE WITH SECTION ELEVEN HUNDRED
19 THIRTY-THREE OF THIS ARTICLE WITH RESPECT TO THE LIABILITIES DESCRIBED
20 IN SUBPARAGRAPH (F) OF PARAGRAPH THREE OF SUBDIVISION (A) OF SECTION
21 ELEVEN HUNDRED THIRTY-EIGHT OF THIS PART. NOTHING IN THIS SUBDIVISION
22 SHALL BE CONSTRUED TO REQUIRE A CREDIT CARD ISSUER TO FILE A RETURN
23 PURSUANT TO SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART UNLESS OTHER-
24 WISE REQUIRED TO DO SO BY ANOTHER PROVISION OF THIS ARTICLE OR UNLESS
25 THE COMMISSIONER, IN HIS OR HER DISCRETION, DETERMINES IT IS NECESSARY
26 FOR THE PROPER ENFORCEMENT OF THIS ARTICLE FOR CREDIT CARD ISSUERS OR
27 DISTINCT CLASSES OF SUCH ISSUERS TO FILE SUCH RETURNS AND GIVES NOTICE
28 OF SUCH DETERMINATION TO SUCH ISSUERS.
29 (7) NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO EXEMPT (A) THE
30 PURCHASE OF MOTOR FUEL OR DIESEL MOTOR FUEL BY A GOVERNMENT ENTITY WHERE
31 IT IS NOT THE ULTIMATE USER OR CONSUMER OF SUCH FUEL, OR (B) ANY SALE BY
32 A COMMERCIAL FISHERMAN OF MOTOR FUEL OR DIESEL MOTOR FUEL.
33 S 5. Section 1142 of the tax law is amended by adding a new subdivi-
34 sion 15 to read as follows:
35 15. TO ISSUE A NOTICE TO A CREDIT CARD ISSUER AND, WHERE APPLICABLE,
36 THE FUEL DISTRIBUTOR, AND ANY COMMERCIAL FISHERMAN, AS SUCH TERMS ARE
37 DEFINED IN SUBDIVISION (I) OF SECTION ELEVEN HUNDRED THIRTY-NINE OF THIS
38 PART, THAT, AS OF THE DATE SPECIFIED BY THE COMMISSIONER IN SUCH NOTICE,
39 THE CREDIT CARD ISSUER OR FUEL DISTRIBUTOR SHALL NO LONGER BE ELIGIBLE
40 TO APPLY FOR REFUNDS OR CREDIT WITH RESPECT TO PURCHASES OF MOTOR FUEL
41 OR DIESEL MOTOR FUEL BY SUCH COMMERCIAL FISHERMAN, THE COMMERCIAL FISH-
42 ERMAN SHALL NO LONGER BE ELIGIBLE TO EMPLOY ANY OTHER CREDIT CARD ISSUER
43 OR FUEL DISTRIBUTOR PURSUANT TO SUCH SUBDIVISION (I) AND NO SUCH CLAIM
44 FOR CREDIT OR REFUND WILL BE ALLOWED OR PAID IN ACCORDANCE WITH SUCH
45 SUBDIVISION (I), WHERE THE COMMISSIONER HAS DETERMINED THAT (A) THE
46 MOTOR FUEL OR DIESEL MOTOR FUEL PURCHASED THROUGH THE USE OF THE CREDIT
47 CARD ISSUER'S CREDIT CARD WAS NOT FOR THE COMMERCIAL FISHERMAN'S OWN USE
48 OR CONSUMPTION OR (B) IT IS NECESSARY FOR THE PROPER ENFORCEMENT OF THIS
49 ARTICLE TO ISSUE SUCH NOTICE. THE COMMISSIONER, IN HIS OR HER
50 DISCRETION, MAY CANCEL OR SUSPEND THE OPERATION OF SUCH NOTICE WHERE THE
51 CREDIT CARD ISSUER, FUEL DISTRIBUTOR, WHERE APPLICABLE, AND THE COMMER-
52 CIAL FISHERMAN ESTABLISH, TO THE COMMISSIONER'S SATISFACTION, THAT
53 APPROPRIATE STEPS HAVE BEEN UNDERTAKEN TO RECTIFY THE CIRCUMSTANCES
54 LEADING TO THE ISSUANCE OF SUCH NOTICE. IN SUCH CASE, THE COMMISSIONER
55 WILL NOTIFY THE CREDIT CARD ISSUER OR FUEL DISTRIBUTOR, WHERE APPLICA-
56 BLE, THAT THE DESIGNATED PERSON WILL BE ELIGIBLE TO APPLY FOR REFUNDS OR
A. 7501 5
1 CREDITS PURSUANT TO SUBDIVISION (I) OF SECTION ELEVEN HUNDRED
2 THIRTY-NINE OF THIS PART IN ACCORDANCE WITH SUCH TERMS AS SET FORTH BY
3 THE COMMISSIONER. NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO AFFECT
4 THE ELIGIBILITY OF THE COMMERCIAL FISHERMAN TO CLAIM A REFUND OR CREDIT
5 FOR TAX PAID ON MOTOR FUEL OR DIESEL MOTOR FUEL IT PURCHASED WHERE SUCH
6 PURCHASE QUALIFIES FOR EXEMPTION PURSUANT TO PARAGRAPH FIVE OF SUBDIVI-
7 SION (B) OF SECTION ELEVEN HUNDRED SIXTEEN OF THIS ARTICLE. NOTWITH-
8 STANDING ANY OTHER PROVISION OF LAW, IF THE CREDIT CARD ISSUER, FUEL
9 DISTRIBUTOR, WHERE APPLICABLE, OR COMMERCIAL FISHERMAN DISPUTES ANY
10 ASPECT OF THE NOTICE ISSUED PURSUANT TO THIS SUBDIVISION:
11 (I) THE CREDIT CARD ISSUER, FUEL DISTRIBUTOR, WHERE APPLICABLE, AND
12 THE COMMERCIAL FISHERMAN WHO RECEIVE SUCH A NOTICE SHALL HAVE THE RIGHT
13 TO HAVE THE ISSUANCE OF SUCH NOTICE REVIEWED BY THE COMMISSIONER OR HIS
14 OR HER DESIGNEE BY CONTACTING THE DEPARTMENT AT A TELEPHONE NUMBER OR AN
15 ADDRESS TO BE DISCLOSED IN THE NOTICE WITHIN TEN DAYS OF THE RECIPIENT'S
16 RECEIPT OF THE NOTICE. THE RECIPIENT MAY PRESENT WRITTEN EVIDENCE OR
17 ARGUMENTS IN SUPPORT OF ITS CLAIM, OR THE RECIPIENT MAY APPEAR AT A
18 SCHEDULED CONFERENCE WITH THE COMMISSIONER OR SUCH DESIGNEE TO PRESENT
19 ORAL ARGUMENTS AND WRITTEN AND ORAL EVIDENCE IN SUPPORT OF SUCH POSI-
20 TION. THE COMMISSIONER OR SUCH DESIGNEE IS AUTHORIZED TO DELAY THE
21 EFFECTIVE DATE OF THE NOTICE TO ENABLE THE RECIPIENT TO PRESENT FURTHER
22 EVIDENCE OR ARGUMENTS IN CONNECTION WITH THE ISSUANCE OF THE NOTICE. THE
23 COMMISSIONER OR SUCH DESIGNEE SHALL CANCEL THE NOTICE IF THE COMMISSION-
24 ER OR SUCH DESIGNEE IS NOT SATISFIED BY A PREPONDERANCE OF THE EVIDENCE
25 THAT THE FACTS UNDERLYING SUCH NOTICE DO NOT SUPPORT THE ISSUANCE OF
26 SUCH NOTICE.
27 (II) EXCEPT AS PROVIDED FOR IN PARAGRAPH (I) OF THIS SUBDIVISION, THE
28 CREDIT CARD ISSUER, FUEL DISTRIBUTOR OR THE COMMERCIAL FISHERMAN SHALL
29 NOT HAVE ANY RIGHT TO A HEARING UNDER ANY OTHER PROVISION OF THIS CHAP-
30 TER TO CHALLENGE THE ISSUANCE OF SUCH NOTICE. RATHER, SUCH DETERMINATION
31 SHALL BE REVIEWABLE ONLY BY A PROCEEDING UNDER ARTICLE SEVENTY-EIGHT OF
32 THE CIVIL PRACTICE LAW AND RULES, PROVIDED, HOWEVER, THAT (A) SUCH
33 PROCEEDING IS COMMENCED WITHIN FOUR MONTHS OF THE DATE THE COMMISSIONER
34 ISSUED SUCH NOTICE OR, IF SUCH NOTICE IS DISPUTED, WITHIN FOUR MONTHS OF
35 THE DATE THE COMMISSIONER OR SUCH DESIGNEE UPHOLDS SUCH NOTICE IN WHOLE
36 OR IN PART, (B) THE CREDIT CARD ISSUER, FUEL DISTRIBUTOR, WHERE APPLICA-
37 BLE, AND ANY AFFECTED COMMERCIAL FISHERMAN ARE NAMED AS PARTIES TO THE
38 ACTION, AND (C) THE ONLY ISSUE WHICH MAY BE CONSIDERED BY SUCH REVIEW IS
39 WHETHER SUCH NOTICE WAS WITHIN THE DISCRETION OF THE COMMISSIONER UNDER
40 THIS ARTICLE. SUCH PROCEEDING SHALL BE INSTITUTED IN ALBANY COUNTY. UPON
41 THE FILING OF SUCH PETITION, THE COURT SHALL HAVE JURISDICTION TO SET
42 ASIDE SUCH NOTICE OR TO DISMISS THE PETITION. THE JURISDICTION OF THE
43 SUPREME COURT SHALL BE EXCLUSIVE AND ITS ORDER SHALL BE FINAL, SUBJECT
44 TO REVIEW BY THE APPELLATE DIVISION OF THE SUPREME COURT AND THE COURT
45 OF APPEALS IN THE SAME MANNER AND FORM AND WITH THE SAME EFFECT AS
46 PROVIDED BY LAW FOR APPEAL FROM A JUDGMENT IN A SPECIAL PROCEEDING. ALL
47 SUCH PROCEEDINGS FOR REVIEW SHALL BE HEARD ON THE PETITION, TRANSCRIPT
48 AND OTHER PAPERS, AND ON APPEAL SHALL BE HEARD ON THE RECORD, WITHOUT
49 REQUIREMENT OF PRINTING.
50 S 6. Paragraph 1 of subdivision (a) of section 1145 of the tax law is
51 amended by adding a new subparagraph (x) to read as follows:
52 (X) IN ADDITION TO ANY OTHER PENALTY OR INTEREST UNDER THIS ARTICLE OR
53 OTHER LAW, ANY CREDIT CARD ISSUER OR FUEL DISTRIBUTOR, AS DEFINED IN
54 SUBDIVISION (I) OF SECTION ELEVEN HUNDRED THIRTY-NINE OF THIS PART, WHO
55 RECEIVES A REFUND OR CREDIT PURSUANT TO SUCH SUBDIVISION KNOWING, AT THE
56 TIME THE REFUND APPLICATION IS FILED OR THE CREDIT IS TAKEN, THAT THE
A. 7501 6
1 MOTOR FUEL OR DIESEL MOTOR FUEL PURCHASED WAS NOT FOR THE COMMERCIAL
2 FISHERMAN'S OWN USE OR CONSUMPTION, SHALL BE LIABLE FOR A PENALTY IN THE
3 AMOUNT OF THE TAX REFUNDED OR CREDITED, PLUS APPLICABLE INTEREST DUE
4 UNDER THIS ARTICLE.
5 S 7. This act shall take effect on the first day of the sales tax
6 quarterly period, as described in subdivision (b) of section 1136 of the
7 tax law, that begins at least ninety days after the date on which it
8 shall have become a law and shall apply to sales made and uses occurring
9 on or after that date in accordance with the applicable transitional
10 provisions of sections 1106 and 1217 of the tax law.
