285-b. Presumption of taxability--Diesel motor fuel. 1. Except with respect to the exemptions from the excise tax on Diesel motor fuel set forth in subdivision three of section two hundred eighty-two-a of this article, no person shall purchase Diesel motor fuel in this state unless the taxes imposed by this article have been assumed by a registered distributor of Diesel motor fuel in accordance with a certification under subdivision four of this section or paid by such distributor and, in each of such instances, except in the case of an exemption from the pass through of such tax authorized in subdivision four of such section two hundred eighty-two-a, are passed through to such purchaser. In addition to any other civil and criminal penalties which may apply, any person who purchases Diesel motor fuel without having received a certification from the seller in accordance with subdivision four of this section shall be jointly and severally liable to pay the taxes imposed by this article with respect to such Diesel motor fuel.
2. For purposes of the proper administration of this article and to prevent evasion of the taxes imposed on Diesel motor fuel by this article, it shall be presumed that all Diesel motor fuel sold, received or possessed in the state is subject to the taxes imposed by this article until the contrary is established. It shall be further presumed that any person so selling, receiving or possessing such Diesel motor fuel is responsible for payment of the excise taxes on such fuel.
3. (a) The claim for or exemption from tax provided for in subparagraphs (i), (ii), (iii), (iv), and (vi) of paragraph (b) of subdivision three of section two hundred eighty-two-a of this article shall be established by means of an exempt transaction certificate. If any such exemption is applicable, such certificate shall be provided by the purchaser to the seller at the time of or prior to delivery of the Diesel motor fuel. Such exempt transaction certificate shall set forth the name and address of the purchaser and the basis of the exemption and shall be signed by such purchaser and by the seller. Such certificate shall be in such form and contain such other information as the commissioner shall require. Where a proper and complete exempt transaction certificate has been furnished and accepted by the seller in good faith, such certificate under such circumstance shall relieve the seller of the burden of proving that the Diesel motor fuel covered by such certificate is exempt from tax by reason of subparagraph (i), (ii), (iii), (iv), or (vi) of paragraph (b) of subdivision three of such section two hundred eighty-two-a. Any purchaser who furnishes to his seller a false or fraudulent exempt transaction certificate for the purpose of establishing an exemption from the tax imposed by section two hundred eighty-two-a of this article shall be jointly and severally liable for the tax imposed by such section. In lieu of an exempt transaction certificate, the commissioner may provide for the establishment of such exemption by means of a procedure or other document which he or she deems appropriate so as to secure the revenues from the excise tax on Diesel motor fuel. Provided, further, in the case of the exemption provided by subparagraph (i) of paragraph (b) of subdivision three of section two hundred eighty-two-a of this article, the commissioner shall provide for an alternative procedure or other document signed only by the seller, such as a metered delivery ticket, for the establishment of such exemption in those cases where such commissioner is satisfied that the use of such alternative procedure or other document will not jeopardize the revenues from the excise tax on Diesel motor fuel.
(b) A claim for the exemption from tax provided for in subparagraph (v) of paragraph (b) of subdivision three of section two hundred eighty-two-a of this article shall be established by means of an interdistributor sale certificate. If such exemption is applicable, such certificate shall be provided by the purchaser to the seller at the time of or prior to delivery of the Diesel motor fuel. Such certificate shall set forth the name and address of the purchaser, the purchaser's registration number, an affirmation by such purchaser that the purchaser is registered as a distributor and that such registration has not been suspended or cancelled and shall be signed by such purchaser and by the seller. Such certificate shall be in such form and contain such other information as the commissioner shall require. Where a proper and complete interdistributor sale certificate has been furnished and accepted by the seller in good faith, such certificate under such circumstance shall relieve the seller of the burden of proving that the Diesel motor fuel covered by such certificate is exempt from tax by reason of subparagraph (v) of paragraph (b) of subdivision three of such section two hundred eighty-two-a. For purposes of this paragraph, a seller shall not have accepted such certificate in good faith if the purchaser's registration is invalid because it has been suspended or cancelled, or if the purchaser is not registered, and the commissioner has furnished registered distributors with information identifying all those persons then validly registered as distributors of Diesel motor fuel and those persons whose registrations have been suspended or cancelled. Any purchaser who furnishes to his seller a false or fraudulent interdistributor sale certificate for the purpose of establishing an exemption from the tax imposed by section two hundred eighty-two-a of this article shall be jointly and severally liable for the tax imposed by such section.
4. (a) Upon each sale, other than a retail sale not in bulk, the seller must give to the purchaser and the purchaser shall receive at the time of delivery of such Diesel motor fuel, a certification containing such information as the commissioner of taxation and finance shall require which, unless otherwise provided in this paragraph, shall include a statement to the effect: (i) if such seller is a distributor registered under this article, that he has 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. In the case of a transaction described in paragraph (a) or (b) of subdivision three of section two hundred eighty-two-a of this article which is exempt from the imposition of the taxes imposed on Diesel motor fuel or where the seller, pursuant to and in accordance with subdivision four of such section, has not passed through such taxes to the purchaser, the certificate, in lieu of either of the foregoing statements, shall state that, based upon good faith reliance on an exempt transaction certificate (or such other similar document or procedure prescribed by the commissioner of taxation and finance), an interdistributor sales certificate or the exemption document provided by an organization described in paragraph one or two of subdivision (a) of section eleven hundred sixteen of this chapter, as the case may be, such motor fuel is being sold under the circumstances described in such paragraph (a) or (b) of subdivision three of section two hundred eighty-two-a or, in the case of the exemption from the pass through, is being sold under the circumstances specified in subdivision four of such section and that the taxes imposed by this article are not applicable or are not being passed through, as the case may be.
(b) In the case of a sale of Diesel motor fuel subject to the excise taxes and in all cases where the excise taxes are required to be passed through, if the certification required by this subdivision has been furnished to the purchaser at the time of delivery of such fuel 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 subdivision is not furnished by the seller at the time of delivery of the Diesel motor fuel, it shall be presumed that the taxes imposed by this article are due and owing and 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 Diesel motor fuel, the commissioner of taxation and finance may authorize the delivery of the certification required under this subdivision at a time after the delivery of the Diesel 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 section eleven hundred three of this chapter.
Last modified: February 3, 2019