182. Additional franchise tax on certain oil companies. 1. Notwithstanding any other provision of this chapter, or of any other law, for taxable years ending on or after June eighteenth, nineteen hundred eighty but before December thirty-first, nineteen hundred eighty-three, an annual tax is hereby imposed upon every oil company equal to two per centum of its gross receipts from all sources, 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 vertically integrated petroleum corporation or affiliate thereof formed for or engaged in the business of importing or causing to be imported into this state for sale in this state, extracting, producing, refining, manufacturing, compounding or selling petroleum. 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; a vertically integrated petroleum corporation or affiliate thereof means any domestic or foreign corporation, which, either for its own account or with affiliates: (i) extract or produces in excess of one hundred thousand average barrels of crude oil per day, (ii) has a refining capacity in excess of one hundred seventy-five thousand average barrels of crude oil per day, and (iii) market or distributors for marketing gasoline, motor fuels, fuel oils, and similar products derived from the refining or manufacture of crude oil, whether such activities are carried on directly or indirectly in conjunction with or by means of an affiliate or affiliates; and affiliate means a corporation in which more than fifty per centum of the number of shares of stock entitling the holders thereof to vote for the election of directors or trustees is owned, directly or indirectly, by the vertically integrated petroleum corporation or affiliate thereof.
(b) The term "gross receipts" means all receipts, 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 but excluding such receipts which constitute consideration received by the oil company for the issuance or sale of shares of its capital stock or money lent to such company. Receipts received by reason of any sale of fuel oil (excluding diesel motor fuel) used for residential purposes shall not be included in gross receipts. Provided, however, 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.
(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.
3. (a) The portion of the gross receipts of an oil company to be allocated within the state shall be determined as follows: multiply its gross receipts by an allocation percentage to be determined by ascertaining the percentage which the receipts of such oil company, computed on the cash or accrual basis according to the method of accounting used in the computation of its gross receipts, arising during the period covered by its report from (1) sales of its tangible personal property where shipments are made to points within this state, (2) services performed within the state, (3) rentals from property situated, and royalties from the use of patents or copyrights, within the state, and (4) all other business receipts earned within the state, bear to the total amount of the oil company's receipts, similarly computed, arising during such period from all sales of its tangible personal property, services, rentals, royalties and all other business transactions, whether within or without the state. Receipts received by reason of any sale of fuel oil used for residential purposes and receipts from any sale for resale to a purchaser which is an oil company subject to tax under this section shall be included as a receipt in the computation of the allocation percentage.
(b) Where the tax commission decides that with respect to a certain oil company the method prescribed above does not fairly and equitably reflect its gross receipts from all sources within the state, the tax commission shall prescribe methods of allocation which fairly and equitably reflect gross receipts from all sources within the state.
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 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 chapter 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 trust 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 or more 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. Where a false or fraudulent resale certificate has been furnished to an oil company, the corporation 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. 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.
11. If any amount of tax imposed by this section is not paid prior to September first, nineteen hundred eighty-three, interest on such amount at double the underpayment rate set by the commissioner of taxation and finance pursuant to section one thousand ninety-six of this chapter, or if no rate is set, at the rate of twelve percent per annum shall be paid for the period from such date to the date paid, whether or not any extension of time for payment was granted; provided, however, that the rate charged shall not exceed the maximum rate allowed pursuant to section 190.42 of the penal law. This subdivision shall apply with respect to taxes, or any portion thereof, which are overdue on or after September first, nineteen hundred eighty-three and shall apply only with respect to interest computed or computable for periods or portions of periods occurring on or after such date.
12. All taxes, interest and penalties collected or received by the tax commission 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 one or 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 of taxation and finance 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 deposit all remaining revenue pursuant to the provisions of subdivision one of section one hundred seventy-one-a of this chapter.
Last modified: February 3, 2019