524. Credits and refunds. (a) Purchases. Every carrier subject to the tax imposed by this article shall be entitled to a credit against such tax determined by adding together the following components: (1) a fuel tax component computed by multiplying the number of gallons of motor fuel or diesel motor fuel purchased by such carrier within this state in a return period, for use in its operations either within or without this state, by the applicable rate per gallon imposed on such fuel under article twelve-A of this chapter; provided, however, no credit shall be allowed unless the tax imposed under such article twelve-A upon such purchase of fuel has been paid by such carrier, and (2) a sales tax component computed by multiplying the number of gallons of motor fuel or diesel motor fuel purchased by such carrier within this state in a return period, for use in its operations within or without this state by the applicable rate per gallon of the sales tax component; provided, however, such credit shall not exceed the tax imposed under article twenty-eight or pursuant to the authority of article twenty-nine of this chapter upon such purchase of fuel that has been paid by the carrier. Each carrier claiming such credit components shall furnish to the commissioner such evidence of payment of such taxes as the commissioner may require. When the amount of the credit to which any carrier is entitled for any return period exceeds the amount of tax for which such carrier is liable under this article for such return period, such excess shall be allowed as a credit against the tax for which such carrier would otherwise be liable for the eight succeeding calendar quarters following the end of the reporting period from which the excess was derived or, if a claim for refund is filed on or before the last day of the month immediately following the four-year period commencing with the end of the reporting period for which such excess is derived, the amount of such excess for such period shall be refunded.
(b) Transition. Every carrier subject to the tax imposed by this article shall be entitled to a credit against the tax equal to the credit determined under subdivision three of section five hundred three-a of this chapter which the carrier would have been entitled to carry forward against the tax imposed by such section but for the termination of such tax. Such credit may be applied against the tax imposed by this section or refunded, subject to the limitations provided in subdivision (a) of this section. A person not subject to the tax imposed by this article may apply for a refund of such excess credit which such person would have been entitled to carry forward against the tax imposed by such section five hundred three-a but for the termination of such tax, subject to the limitations provided in subdivision (a) of this section.
(c) Actual price. Every carrier which can substantiate that its average price paid per gallon (including all federal and state and any local taxes included in such price or imposed on the use or consumption of such fuels upon which the state and local sales and compensating use taxes are computed but determined with out the inclusion of any state or local sales tax on receipts from sales of such fuels) during a reporting period is less than the prevailing price determined for such period pursuant to subdivision (b) of section five hundred twenty-three of this article, if such calculation was based upon an amount determined under clause (ii) of subparagraph (B) of paragraph two of subdivision (b) of section five hundred twenty-three of this article, may apply for a refund of the difference between the tax paid relating to the sales tax component computed based upon such prevailing price for such period and the tax relating to the sales tax component computed based upon the carrier's actual average purchase price for such period. Such refund must be applied for on or before the last day of the month immediately following the four-year period commencing with the end of the reporting period which gave rise to the refund.
(d) Erroneous payment. Whenever the commissioner shall determine that any moneys received under the provisions of this article were paid in error, he or she may cause the same to be refunded or credited. Such moneys received under the provisions of this article which the commissioner shall determine were paid in error, may be refunded or credited out of funds in the custody of the comptroller to the credit of such taxes provided an application therefor is filed with the commissioner within four years from the time the erroneous payment was made, except if an agreement under the provisions of section five hundred ten of this chapter as made applicable to the tax imposed by this article by section five hundred twenty-eight of this article (extending the period for determination of tax imposed by this article) is made within the four-year period for the filing of an application for refund provided for in this subdivision, the period for filing an application for refund shall not expire prior to six months after the expiration of the period within which a determination may be made pursuant to the agreement or any extension thereof.
(e) Determination and review. The commissioner shall grant or deny a claim for refund under this section in whole or in part and shall notify the claimant by mail of the commissioner's determination. Such determination shall be final and irrevocable unless the claimant shall, within thirty days after the mailing of notice of such determination, petition the division of tax appeals for a hearing. If the commissioner enters into a cooperative agreement pursuant to section five hundred twenty-eight of this article, notice of a hearing shall be given and a hearing held within any time restrictions prescribed in such agreement. After such hearing, the division of tax appeals shall mail notice of the determination of the administrative law judge to the claimant and to the commissioner. Such determination may be reviewed by the tax appeals tribunal as provided in article forty of this chapter. The decision of the tax appeals tribunal may be reviewed as provided in section two thousand sixteen of this chapter. However, such a proceeding may not be commenced unless an undertaking is filed with the commissioner in such amount and with such sureties as a justice of the supreme court shall approve to the effect that if the proceeding be dismissed or the decision confirmed, the petitioner will pay all costs and charges which may accrue against him in the prosecution of the proceeding.
Last modified: February 3, 2019