S T A T E O F N E W Y O R K ________________________________________________________________________ 4011--B I N A S S E M B L Y February 1, 2011 ___________ A BUDGET BILL, submitted by the Governor pursuant to article seven of the Constitution -- read once and referred to the Committee on Ways and Means -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommit- ted to said committee AN ACT to amend the abandoned property law, in relation to the dormancy period of miscellaneous unclaimed property, payment of abandoned prop- erty, publication of notices of abandoned property, and written reports pertaining to payment of abandoned property; to amend the tax law, in relation to reports by the commissioner regarding abandoned property; and to repeal certain provisions of the abandoned property law and the tax law relating thereto (Part A); to amend part N of chapter 61 of the laws of 2005 amending the tax law relating to certain transactions and related information and relating to the voluntary compliance initiative; in relation to making permanent the disclosure and penalty provisions for transactions that present the potential for tax avoidance (Part B); to amend the tax law, in relation to the empire zones program (Part C); to amend the tax law, in relation to directing the crediting of lottery prizes of more than six hundred dollars against liability for any tax administered by the commissioner of taxation and finance (Part D); to amend chapter 56 of the laws of 1998, amending the tax law and other laws relating to extending the dates of application of the investment tax credit under articles 9-A, 22 and 32 of the tax law and to amend chapter 63 of the laws of 2000, amending the tax law and other laws relating to extend- ing the dates of application of the investment tax credit under arti- cle 33 of the tax law, in relation to extending the effectiveness thereof (Part E); to amend the public housing law, in relation to providing a credit against income tax for persons or entities invest- ing in low-income housing (Part F); to amend the economic development law, the tax law and the public service law, in relation to the excelsior jobs program (Part G); Intentionally omitted (Part H); to amend the insurance law, the general municipal law and the tax law, in relation to conforming to the federal Dodd-Frank Wall Street Reform and Consumer Protection Act; and to repeal paragraphs 8 and 9 of subsection (b) of section 2118 of the insurance law, relating thereto EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD12574-03-1 A. 4011--B 2 (Part I); to amend chapter 298 of the laws of 1985, amending the tax law relating to the franchise tax on banking corporations imposed by the tax law, authorized to be imposed by any city having a population of one million or more by chapter 772 of the laws of 1966 and imposed by the administrative code of the city of New York and relating to other provisions of the tax law, chapter 883 of the laws of 1975 and the administrative code of the city of New York which relates to such franchise tax, to amend chapter 817 of the laws of 1987, amending the tax law and the environmental conservation law, constituting the busi- ness tax reform and rate reduction act of 1987, and to amend chapter 525 of the laws of 1988, amending the tax law and the administrative code of the city of New York relating to the imposition of taxes in the city of New York, in relation to the effectiveness of certain provisions of such chapters; and to amend the tax law and the adminis- trative code of the city of New York, in relation to extending transi- tional provisions relating to the federal Gramm-Leach-Bliley act (Part J); to amend the tax law and the criminal procedure law, in relation to updating the tax classification of diesel motor fuel to be consist- ent with federal laws and make the diesel tax structure consistent with this new tax treatment; and to repeal certain provisions of the tax law and the administrative code of the city of New York relating thereto (Part K); to amend the tax law, in relation to making a tech- nical correction to the E85 definition; and to amend chapter 109 of the laws of 2006, amending the tax law relating to providing exemptions, reimbursements and credits from various taxes for certain alternative fuels, in relation to extending the alternative fuels tax exemptions for one year (Part L); to amend section 11 of part EE of chapter 63 of the laws of 2000, amending the tax law and other laws relating to modifying the distribution of funds from the motor vehicle fuel excise tax, in relation to the distribution of motor vehicle fees (Part M); Intentionally omitted (Part N); to amend the tax law, in relation to video lottery free play allowance program (Part O); to amend the tax law, in relation to prize payout of certain instant lottery games (Part P); Intentionally omitted (Part Q); Intentionally omitted (Part R); to amend the racing, pari-mutuel wagering and breed- ing law, in relation to licenses for simulcast facilities, sums relat- ing to track simulcast, simulcast of out-of-state thoroughbred races, simulcasting of races run by out-of-state harness tracks and distrib- utions of wagers; to amend chapter 281 of the laws of 1994 amending the racing, pari-mutuel wagering and breeding law and other laws relating to simulcasting and chapter 346 of the laws of 1990 amending the racing, pari-mutuel wagering and breeding law and other laws relating to simulcasting and the imposition of certain taxes, in relation to extending certain provisions thereof; and to amend the racing, pari-mutuel wagering and breeding law, in relation to extend- ing certain provisions thereof (Part S); and to amend the tax law, in relation to the imposition of tax (Part T) THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. This act enacts into law major components of legislation 2 which are necessary to implement the state fiscal plan for the 2011-2012 3 state fiscal year. Each component is wholly contained within a Part 4 identified as Parts A through T. The effective date for each particular A. 4011--B 3 1 provision contained within such Part is set forth in the last section of 2 such Part. Any provision in any section contained within a Part, includ- 3 ing the effective date of the Part, which makes a reference to a section 4 "of this act", when used in connection with that particular component, 5 shall be deemed to mean and refer to the corresponding section of the 6 Part in which it is found. Section three of this act sets forth the 7 general effective date of this act. 8 PART A 9 Section 1. Paragraphs (a), (b) and (k) of subdivision 1 of section 300 10 of the abandoned property law, paragraph (a) as amended and paragraph 11 (k) as relettered by chapter 15 of the laws of 1983, subparagraph (iv) 12 of paragraph (a) as amended and subparagraph (v) of paragraph (a) as 13 added by chapter 409 of the laws of 1994, paragraphs (b) and (k) as 14 amended by chapter 78 of the laws of 1976, are amended to read as 15 follows: 16 (a) Any amounts due on deposits or any amounts to which a shareholder 17 of a savings and loan association or a credit union is entitled, held or 18 owing by a banking organization, which shall have remained unclaimed for 19 [five] THREE years by the person or persons appearing to be entitled 20 thereto, including any interest or dividends credited thereon, excepting 21 (i) any such amount which has been reduced or increased, exclusive of 22 dividend or interest payment, within [five] THREE years, or 23 (ii) any such amount which is represented by a passbook not in the 24 possession of the banking organization, which has been presented for 25 entry of dividend or interest credit within [five] THREE years, or 26 (iii) any such amount with respect to which the banking organization 27 has on file written evidence received within [five] THREE years that the 28 person or persons appearing to be entitled to such amounts had knowledge 29 thereof, or 30 (iv) any such amount payable only at or by a branch office located in 31 a foreign country, or payable in currency other than United States 32 currency, or 33 (v) any such amount that is separately identifiable and has been set 34 aside to meet the burial and related expenses of an individual, provided 35 however that said amount shall be deemed abandoned property where it 36 remains unclaimed for [five] THREE years subsequent to the death of the 37 individual for whom the amount was deposited. 38 (b) Any amounts, together with all accumulations of interest or other 39 increment thereon, held or owing by a banking organization for the 40 payment of an interest in a bond and mortgage apportioned or transferred 41 by it pursuant to subdivision seven of former section one hundred eight- 42 y-eight of the banking law as it existed prior to July first, nineteen 43 hundred thirty-seven, which shall have remained unclaimed by the person 44 or persons appearing to be entitled thereto for [five] THREE years after 45 the full and final liquidation of such mortgage, excepting 46 (i) any such amount which has been reduced by payment to the person or 47 persons appearing to be entitled thereto within [five] THREE years, or 48 (ii) any such amount which is represented by a certificate of share 49 ownership not in the possession of the banking organization, which 50 certificate has been presented for transfer within [five] THREE years, 51 or 52 (iii) any such amount with respect to which the banking organization 53 has on file written evidence received within [five] THREE years that the A. 4011--B 4 1 person or persons appearing to be entitled to such amount had knowledge 2 thereof. 3 (k) Lost property or instruments as defined in section two hundred 4 fifty-one of the personal property law which shall have been held by a 5 safe deposit company or bank for [five] THREE years pursuant to the 6 provisions of section two hundred fifty-six of the personal property 7 law. 8 S 2. Paragraphs (a) and (c) of subdivision 1 of section 600 of the 9 abandoned property law, paragraph (a) as amended by chapter 655 of the 10 laws of 1978 and paragraph (c) as amended by chapter 281 of the laws of 11 1980, are amended to read as follows: 12 (a) Any moneys including the monetary proceeds from the sale of tangi- 13 ble personal property and securities or other intangible property paid 14 into court, which, except as provided in section ten hundred OF THIS 15 CHAPTER, shall have remained in the hands of any county treasurer, or 16 the commissioner of finance of the city of New York, for [five] THREE 17 years, together with all accumulations of interest or other increment 18 thereon, less such legal fees as he may be entitled to. 19 (c) Any moneys paid to a support bureau of a family court, for the 20 support of a spouse or child, which shall have remained in the custody 21 of a county treasurer, or the commissioner of finance of the city of New 22 York, for [five] THREE years, together with any interest due thereon, 23 less such legal fees as he may be entitled to. For purposes of this 24 section, "family court" includes the domestic relations court of the 25 city of New York prior to the first day of September, nineteen hundred 26 sixty-two. 27 S 3. Subdivision 1 of section 1000 of the abandoned property law, as 28 amended by chapter 670 of the laws of 1989, is amended to read as 29 follows: 30 1. (a) Any moneys held or owing for the payment of an award made by a 31 court in any condemnation proceeding and payable by a public corporation 32 or other corporation possessing powers of condemnation, which shall have 33 remained unclaimed by the person or persons appearing to be entitled 34 thereto for [five] THREE years after confirmation by the court, together 35 with any interest due thereon, less, when an award is payable by a 36 public corporation, any amount due such public corporation at the time 37 of title vesting for tax, water or any other liens on the same parcel 38 the award was for, with any interest due thereon, and any amount due 39 such public corporation at the time of title vesting or at the time of 40 confirmation, whichever is later, for an assessment on the same parcel 41 the award was for, with any interest due thereon, shall be deemed aban- 42 doned property. In any condemnation proceedings in which the court shall 43 have not made an award, any moneys paid into court, including interest 44 thereon, shall be subject to the provisions of article six of this chap- 45 ter and this section shall have no application thereto. 46 (b) The issuance of a warrant for such an award shall not prevent an 47 award from being deemed abandoned property if such warrant is unclaimed 48 [five] THREE years after confirmation of such award by the court. 49 S 4. Subdivision 1 of section 1300 of the abandoned property law is 50 amended to read as follows: 51 1. Any unclaimed moneys arising from the sale of any personal property 52 which shall have been pledged or mortgaged as security for the loan of 53 money with a corporation, except a banking organization or a licensed 54 lender, heretofore or hereafter organized by or pursuant to a special 55 statute for the purpose of, and principally engaged in, giving aid to 56 individuals by loans of money at interest upon the pledge or mortgage of A. 4011--B 5 1 personal property, and which has subjected itself to special provisions 2 of the banking law, after deducting the amount of the loan, the interest 3 then due on the same and any other lawful charges, which shall have 4 remained in its possession for [six] THREE years from the date of such 5 sale, shall be deemed abandoned property. 6 S 5. Subdivision 2 of section 1315 of the abandoned property law, as 7 amended by section 2 of part II of chapter 57 of the laws of 2010, is 8 amended to read as follows: 9 2. Except as otherwise provided by law, any amount representing 10 unclaimed money or securities and held in escrow or otherwise by any 11 corporation (other than a public corporation), joint stock company, 12 individual, association of two or more individuals, committee or busi- 13 ness trust, to ensure the performance of any duty or obligation, shall 14 be deemed abandoned property when: 15 a. such amount is held or owing in this state, and 16 b. such amount has remained unclaimed by the person or persons enti- 17 tled thereto for [five] THREE years, except 18 c. where the duty or obligation for which such amount was deposited 19 has not been performed and such performance is still required, such 20 amounts shall not be deemed abandoned property. 21 S 6. Paragraph (a) of subdivision 1 of section 1002 of the abandoned 22 property law is amended to read as follows: 23 (a) That a report of all awards in condemnation proceedings unclaimed 24 for more than [five] THREE years has been made to the state comptroller 25 and that a copy thereof is on file and open to public inspection, if a 26 public corporation at the office of the chief fiscal officer thereof; or 27 if not a public corporation at the principal office or place of business 28 of such corporation; 29 S 7. Sections 301, 401, 701 and 1001 of the abandoned property law are 30 REPEALED. 31 S 8. Subdivision 1 of section 302 of the abandoned property law is 32 amended to read as follows: 33 1. [Within thirty days after making a report of abandoned property 34 pursuant to the provisions of section three hundred one, such banking] 35 EVERY BANKING organization shall cause to be published, ON OR BEFORE THE 36 FIRST DAY OF SEPTEMBER IN EACH YEAR, a notice entitled: "NOTICE OF NAMES 37 OF PERSONS APPEARING AS OWNERS OF CERTAIN UNCLAIMED PROPERTY HELD BY 38 (name of banking organization)." 39 S 9. The opening paragraph of subdivision 3 of section 302 of the 40 abandoned property law, as amended by chapter 315 of the laws of 1954, 41 is amended to read as follows: 42 Such notice shall[, in accordance with the classification prescribed 43 by the state comptroller for the report pursuant to the provisions of 44 section three hundred one,] set forth: 45 S 10. Section 303 of the abandoned property law is amended to read as 46 follows: 47 S 303. Payment of abandoned property. 1. In such succeeding month of 48 November, and on or before the tenth day thereof, every banking organ- 49 ization shall pay or deliver to the state comptroller all [abandoned] 50 property [specified in such report, excepting such abandoned property as 51 since the date of such report shall have ceased to be abandoned] WHICH, 52 AS OF THE THIRTIETH DAY OF JUNE NEXT PRECEDING, WAS DEEMED ABANDONED 53 PURSUANT TO SECTION THREE HUNDRED OF THIS ARTICLE, HELD OR OWING BY SUCH 54 BANKING ORGANIZATION. 55 2. Such payment shall be accompanied by a [statement] TRUE AND ACCU- 56 RATE REPORT setting forth such information as the state comptroller may A. 4011--B 6 1 require relative to such abandoned property [as shall have ceased to be 2 abandoned]. SUCH REPORT SHALL INCLUDE: 3 (A) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (A) OF SUBDIVISION 4 ONE OF SECTION THREE HUNDRED WHICH ARE ABANDONED PROPERTY: 5 (I) THE NAME AND LAST KNOWN ADDRESS OF THE PERSON OR PERSONS APPEARING 6 FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE THE OWNER OF ANY 7 SUCH ABANDONED PROPERTY; 8 (II) THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE SUCH PERSON OR 9 PERSONS; 10 (III) THE DATE OF THE LAST TRANSACTION WITH RESPECT TO SUCH ABANDONED 11 PROPERTY; 12 (IV) THE NATURE AND IDENTIFYING NUMBER, IF ANY, OF SUCH ABANDONED 13 PROPERTY; AND 14 (V) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY 15 REQUIRE. 16 (B) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (B) OF SUBDIVISION 17 ONE OF SECTION THREE HUNDRED OF THIS ARTICLE WHICH ARE ABANDONED PROPER- 18 TY: 19 (I) THE NAME AND LAST KNOWN ADDRESS, IF ANY, OF THE PERSON OR PERSONS 20 APPEARING FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE ENTITLED 21 TO RECEIVE SUCH ABANDONED PROPERTY; 22 (II) THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE SUCH PERSON OR 23 PERSONS; 24 (III) THE AMOUNT OF ANY INTEREST OR OTHER INCREMENT DUE THEREON; 25 (IV) THE DATE OF THE LAST TRANSACTION WITH RESPECT TO SUCH ABANDONED 26 PROPERTY; AND 27 (V) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY 28 REQUIRE. 29 (C) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (C) OF SUBDIVISION 30 ONE OF SECTION THREE HUNDRED OF THIS ARTICLE WHICH ARE ABANDONED PROPER- 31 TY: 32 (I) THE NAME AND LAST KNOWN ADDRESS, IF ANY, OF THE PERSON OR PERSONS 33 APPEARING FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE ENTITLED 34 TO RECEIVE SUCH ABANDONED PROPERTY; 35 (II) A DESCRIPTION OF SUCH ABANDONED PROPERTY INCLUDING IDENTIFYING 36 NUMBERS, IF ANY, AND THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE OR 37 PAYABLE; 38 (III) THE AMOUNT OF ANY INTEREST OR OTHER INCREMENT DUE THEREON; 39 (IV) THE DATE SUCH ABANDONED PROPERTY WAS PAYABLE OR DEMANDABLE; 40 (V) THE AMOUNT AND IDENTIFYING NUMBER OF ANY SUCH INSTRUMENT WHERE THE 41 PAYEE THEREOF IS UNKNOWN TO THE BANKING ORGANIZATION; AND 42 (VI) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY 43 REQUIRE. 44 (D) WITH RESPECT TO AMOUNTS SPECIFIED IN PARAGRAPH (D) OF SUBDIVISION 45 ONE OF SECTION THREE HUNDRED OF THIS ARTICLE WHICH ARE ABANDONED PROPER- 46 TY: 47 (I) THE NAME AND LAST KNOWN ADDRESS, IF ANY, OF THE PERSON OR PERSONS 48 APPEARING FROM THE RECORDS OF SUCH BANKING ORGANIZATION TO BE THE OWNER 49 OF ANY SUCH ABANDONED PROPERTY; AND 50 (II) SUCH OTHER INFORMATION AS THE STATE COMPTROLLER MAY REASONABLY 51 REQUIRE. 52 3. SUCH REPORT SHALL BE IN SUCH FORM AS THE STATE COMPTROLLER MAY 53 PRESCRIBE. ALL NAMES OF PERSONS APPEARING IN THE SECTION OF SUCH REPORT 54 RELATING TO DEPOSITS, APPEARING TO BE THE OWNERS THEREOF, SHALL BE LIST- 55 ED IN ALPHABETICAL ORDER. ABANDONED PROPERTY OTHER THAN DEPOSITS LISTED 56 IN SUCH REPORT SHALL BE CLASSIFIED IN SUCH MANNER AS THE STATE COMP- A. 4011--B 7 1 TROLLER MAY PRESCRIBE, AND NAMES OF PERSONS APPEARING TO BE ENTITLED TO 2 SUCH ABANDONED PROPERTY APPEARING IN SUCH REPORT SHALL BE LISTED ALPHA- 3 BETICALLY WITHIN EACH SUCH CLASSIFICATION. 4 4. NO BANKING ORGANIZATION IN THIS STATE, ORGANIZED UNDER OR SUBJECT 5 TO THE PROVISIONS OF SECTION SIX HUNDRED ELEVEN OF TITLE TWELVE OF THE 6 UNITED STATES CODE, SHALL BE REQUIRED TO FILE REPORTS OF ABANDONED PROP- 7 ERTY RELATING TO ANY AMOUNTS RECEIVED ON OR BEFORE THE THIRTIETH DAY OF 8 JUNE, NINETEEN HUNDRED SEVENTY-SEVEN, UNLESS, AS OF THE EFFECTIVE DATE 9 OF THIS SUBDIVISION, SUCH AMOUNTS REMAIN RECORDED AND SHOWN IN THE BOOKS 10 AND RECORDS OF SUCH BANKING ORGANIZATION AS AN OUTSTANDING OBLIGATION 11 THEREOF. 12 S 11. Subdivision 1 of section 402 of the abandoned property law is 13 amended to read as follows: 14 1. [Within thirty days after making a report of abandoned property 15 pursuant to the provisions of section four hundred one,] EVERY such 16 corporation shall cause to be published, ON OR BEFORE THE FIRST DAY OF 17 SEPTEMBER IN EACH YEAR, a notice entitled: "NOTICE OF CERTAIN UNCLAIMED 18 PROPERTY HELD BY (name of corporation)." 19 S 12. Section 403 of the abandoned property law is amended to read as 20 follows: 21 S 403. Payment of abandoned property. 1. In such succeeding month of 22 October, and on or before the tenth day thereof, every such corporation 23 shall pay to the state comptroller all [abandoned] property [specified 24 in the last preceding report made to the state comptroller pursuant to 25 section four hundred one, excepting such abandoned property as since the 26 date of such report shall have ceased to be abandoned] WHICH, AS OF THE 27 FIRST DAY OF JULY NEXT PRECEDING, WAS DEEMED ABANDONED PURSUANT TO 28 SECTION FOUR HUNDRED OF THIS ARTICLE, HELD OR OWING BY SUCH CORPORATION. 29 2. Such payment shall be accompanied by a [statement] TRUE AND ACCU- 30 RATE REPORT setting forth such information as the state comptroller may 31 require relating to such abandoned property [as shall have ceased to be 32 abandoned] INCLUDING: 33 (A) AS TO ABANDONED PROPERTY SPECIFIED IN PARAGRAPHS (A) AND (B) OF 34 SUBDIVISION ONE OF SECTION FOUR HUNDRED OF THIS ARTICLE: 35 (I) THE NAME AND LAST KNOWN ADDRESS OF EACH DEPOSITOR OR SUBSCRIBER 36 APPEARING FROM THE RECORDS OF SUCH CORPORATION TO BE ENTITLED TO RECEIVE 37 ANY SUCH ABANDONED PROPERTY; 38 (II) THE DATE WHEN THE DEPOSIT WAS MADE OR AMOUNT PAID; 39 (III) THE AMOUNT OF SUCH DEPOSIT OR PAYMENT; 40 (IV) THE DATE WHEN UTILITY SERVICES FURNISHED TO SUCH CONSUMER OR 41 SUBSCRIBER CEASED; 42 (V) ANY SUMS DUE AND UNPAID TO THE CORPORATION BY SUCH CONSUMER OR 43 SUBSCRIBER, WITH INTEREST THEREON FROM THE DATE OF TERMINATION OF 44 SERVICE; 45 (VI) THE AMOUNT OF INTEREST DUE UPON SUCH DEPOSIT OR PAYMENT ON ANY 46 BALANCE THEREOF THAT HAS REMAINED WITH SUCH CORPORATION AND NOT BEEN 47 CREDITED TO SUCH CONSUMER'S OR SUBSCRIBER'S ACCOUNT; 48 (VII) THE AMOUNT OF SUCH ABANDONED PROPERTY; AND 49 (VIII) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY 50 REQUIRE. 51 (B) AS TO ABANDONED PROPERTY SPECIFIED IN PARAGRAPH (C) OF SUBDIVISION 52 ONE OF SECTION FOUR HUNDRED OF THIS ARTICLE: 53 (I) THE NAME AND LAST KNOWN ADDRESS OF EACH PERSON APPEARING FROM THE 54 RECORDS OF SUCH CORPORATION TO BE ENTITLED TO RECEIVE THE SAME; 55 (II) THE AMOUNT APPEARING FROM SUCH RECORDS TO BE DUE EACH SUCH 56 PERSON; A. 4011--B 8 1 (III) THE DATE PAYMENT BECAME DUE; AND 2 (IV) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY 3 REQUIRE. 4 3. SUCH REPORT SHALL BE IN SUCH FORM AND THE ABANDONED PROPERTY LISTED 5 SHALL BE CLASSIFIED IN SUCH MANNER AS THE STATE COMPTROLLER MAY 6 PRESCRIBE. NAMES OF PERSONS ENTITLED TO SUCH ABANDONED PROPERTY APPEAR- 7 ING IN SUCH REPORT SHALL BE LISTED IN ALPHABETICAL ORDER WITHIN EACH 8 SUCH CLASSIFICATION. 9 S 13. Paragraph (b) of subdivision 1 of section 700 of the abandoned 10 property law, as amended by chapter 78 of the laws of 1976, is amended 11 to read as follows: 12 (b) Any moneys held or owing by any life insurance corporation which 13 are payable under other kinds of life insurance policies to any person 14 whose last-known address, according to the records of the corporation, 15 is within this state, where the insured, if living, would[, prior to the 16 thirty-first day of December next preceding the report required by 17 section seven hundred one,] have attained the limiting age under the 18 mortality table on which the reserves are based, exclusive of 19 (i) any policy which has within three years been assigned, readjusted, 20 kept in force by payment of premium, reinstated or subjected to loan, or 21 (ii) any policy with respect to which such corporation has on file 22 written evidence received within three years that the person or persons 23 apparently entitled to claim thereunder have knowledge thereof. 24 S 14. Subdivision 1 of section 702 of the abandoned property law, as 25 amended by chapter 497 of the laws of 1944, is amended to read as 26 follows: 27 1. [Within thirty days after making a report of abandoned property 28 pursuant to the provisions of section seven hundred one,] EVERY such 29 life insurance corporation shall cause to be published, ON OR BEFORE THE 30 FIRST DAY OF MAY IN EACH YEAR, a notice entitled: "NOTICE OF NAMES OF 31 PERSONS APPEARING AS OWNERS OF CERTAIN UNCLAIMED PROPERTY HELD BY (name 32 of life insurance corporation)." 33 S 15. The opening paragraph of subdivision 3 of section 702 of the 34 abandoned property law, as amended by chapter 315 of the laws of 1954, 35 is amended to read as follows: 36 Such notice shall[, in accordance with the classification prescribed 37 by the state comptroller for the report pursuant to the provisions of 38 section seven hundred one,] set forth: 39 S 16. Section 703 of the abandoned property law, subdivision 1 as 40 amended by chapter 497 of the laws of 1944, is amended to read as 41 follows: 42 S 703. Payment of abandoned property. 1. In such succeeding month of 43 September, and on or before the succeeding tenth day thereof, every such 44 life insurance corporation shall pay to the state comptroller all [aban- 45 doned] property [specified in such report, excepting such abandoned 46 property as since the date of such report shall have ceased to be aban- 47 doned] WHICH, AS OF THE FIRST DAY OF JANUARY NEXT PRECEDING, WAS DEEMED 48 ABANDONED PURSUANT TO SECTION SEVEN HUNDRED OF THIS ARTICLE, HELD OR 49 OWING BY SUCH LIFE INSURANCE CORPORATION. 50 2. Such payment shall be accompanied by a [statement] TRUE AND ACCU- 51 RATE REPORT setting forth such information as the state comptroller may 52 require relative to such abandoned property [as shall have ceased to be 53 abandoned] INCLUDING: 54 (A) THE NAME AND LAST KNOWN ADDRESS OF ANY PERSON OR PERSONS APPEARING 55 FROM THE RECORDS OF SUCH LIFE INSURANCE CORPORATION TO BE ENTITLED TO 56 RECEIVE ANY SUCH ABANDONED PROPERTY; A. 4011--B 9 1 (B) THE AMOUNT APPEARING FROM THE RECORDS OF SUCH CORPORATION TO BE 2 DUE; 3 (C) THE POLICY NUMBER AND POLICY AGE OF THE INSURED; 4 (D) THE DATE SUCH ABANDONED PROPERTY WAS PAYABLE; 5 (E) THE NAMES AND LAST KNOWN ADDRESSES OF EACH BENEFICIARY APPEARING 6 IN THE RECORDS OF THE INSURER; AND 7 (F) SUCH OTHER IDENTIFYING INFORMATION AS THE STATE COMPTROLLER MAY 8 REQUIRE. 9 3. SUCH REPORT SHALL BE IN SUCH FORM AND THE ABANDONED PROPERTY LISTED 10 SHALL BE CLASSIFIED IN SUCH MANNER AS THE STATE COMPTROLLER MAY 11 PRESCRIBE. NAMES OF PERSONS APPEARING TO BE ENTITLED TO SUCH PROPERTY OR 12 OF BENEFICIARIES APPEARING IN SUCH REPORT SHALL BE LISTED IN ALPHABET- 13 ICAL ORDER WITHIN EACH SUCH CLASSIFICATION. 14 S 17. Section 1003 of the abandoned property law is amended to read as 15 follows: 16 S 1003. Payment of abandoned property. 1. In such succeeding month of 17 February, and on or before the tenth day thereof, every such public and 18 other corporation shall pay to the state comptroller all [abandoned] 19 property [specified in such report, excepting such abandoned property as 20 since the date of such report shall have ceased to be abandoned] WHICH, 21 AS OF THE FIRST DAY OF JULY NEXT PRECEDING, WAS DEEMED ABANDONED PURSU- 22 ANT TO SECTION ONE THOUSAND OF THIS ARTICLE, HELD OR OWING BY SUCH 23 CORPORATION. 24 2. Such payment shall be accompanied by a [statement] TRUE AND ACCU- 25 RATE REPORT setting forth such information as the state comptroller may 26 require in relation to such abandoned property [as shall have ceased to 27 be abandoned] INCLUDING THE TITLE OF THE PROCEEDING, THE NAME AND LAST 28 KNOWN ADDRESS OF THE AWARDEE IF SUCH AWARD IS MADE TO A KNOWN OWNER, THE 29 DATE OF CONFIRMATION, THE DAMAGE PARCEL NUMBER, THE AMOUNT OF THE AWARD, 30 AND THE AMOUNT OF ANY INTEREST DUE THEREON AND, IF A DEDUCTION IS 31 CLAIMED FOR LIENS BY A PUBLIC CORPORATION, THE NATURE AND AMOUNT OF SUCH 32 LIENS AND ANY INTEREST CLAIMED THEREON. 33 S 18. The opening paragraph of subdivision 1 of section 1002 of the 34 abandoned property law is amended to read as follows: 35 [Within thirty days after making a report of abandoned property pursu- 36 ant to the provisions of section ten hundred one,] EVERY such corpo- 37 ration shall cause to be published, ON OR BEFORE THE FIRST DAY OF NOVEM- 38 BER IN EACH YEAR, once in a newspaper of general circulation in each 39 county where a damaged parcel included in such report is located a 40 notice, approved as to form by the state comptroller, stating: 41 S 19. Paragraph (b) of subdivision 6 of section 1406 of the abandoned 42 property law, as amended by chapter 643 of the laws of 1989, is amended 43 to read as follows: 44 (b) Notwithstanding any other provision of law, payment for any aban- 45 doned condemnation award heretofore or hereafter paid to the state comp- 46 troller pursuant to sections ten hundred and ten hundred three of this 47 chapter for the benefit of known persons may be made by the state comp- 48 troller on sworn application, where the name and last known address of 49 the person or persons entitled to payment and any other identifying 50 information as appearing on the records of the court into which payment 51 was made is included in the report required to be filed pursuant to 52 section ten hundred [one] THREE of this chapter and when the identity of 53 the claimant as the person entitled to payment is established to the 54 satisfaction of the state comptroller. When, in the determination of the 55 state comptroller, the identifying information included in the report is 56 insufficient to enable the state comptroller to make a determination of A. 4011--B 10 1 entitlement, such claim must be established only on order of the court 2 as set forth in paragraph (a) of this subdivision. 3 S 20. Subdivision 3 of section 1311 of the abandoned property law is 4 REPEALED. 5 S 21. Subdivision 4 of section 1311 of the abandoned property law, as 6 added by chapter 778 of the laws of 1956, is renumbered subdivision 3 7 and amended to read as follows: 8 3. On or before the tenth day of October in each year, every such 9 corporation shall pay to the state comptroller all [abandoned] property 10 [specified in the last preceding report made to the state comptroller 11 pursuant to this section, excepting such abandoned property as since the 12 date of the report shall have ceased to be abandoned] WHICH, AS OF THE 13 FIRST DAY OF JULY NEXT PRECEDING, WAS DEEMED ABANDONED PURSUANT TO THIS 14 SECTION, HELD OR OWING BY SUCH CORPORATION. SUCH PAYMENT SHALL BE ACCOM- 15 PANIED BY A TRUE AND ACCURATE REPORT CONTAINING SUCH IDENTIFYING INFOR- 16 MATION AS THE STATE COMPTROLLER MAY REQUIRE. 17 S 22. Subdivision 2 of section 1316 of the abandoned property law is 18 REPEALED. 19 S 23. Subdivisions 3 and 4 of section 1316 of the abandoned property 20 law, as amended by chapter 166 of the laws of 1991, are renumbered 21 subdivisions 2 and 3 and amended to read as follows: 22 2. [Within thirty days following the filing of the report of abandoned 23 property with the comptroller pursuant to subdivision two of this 24 section, the] EVERY insurer shall cause to be published, ON OR BEFORE 25 THE FIRST DAY OF MAY IN EACH YEAR, a list of such abandoned property in 26 the same manner as that prescribed for life insurance companies by 27 section seven hundred two of this chapter. 28 3. Such [abandoned] property WHICH WAS DEEMED ABANDONED PURSUANT TO 29 SUBDIVISION ONE OF THIS SECTION shall be paid or delivered to the comp- 30 troller within the first ten days of September of each year. SUCH 31 PAYMENT SHALL BE ACCOMPANIED BY A TRUE AND ACCURATE REPORT THAT SHALL BE 32 IN SUCH FORM AND MANNER AS THE STATE COMPTROLLER MAY PRESCRIBE. 33 S 24. Section 1408 of the abandoned property law is REPEALED. 34 S 25. The opening paragraph of section 503 of the abandoned property 35 law, as amended by chapter 815 of the laws of 1963, is amended to read 36 as follows: 37 Each payment or delivery of abandoned property pursuant to section 38 five hundred two shall be accompanied by a [verified] written report, in 39 such form as the state comptroller shall prescribe, setting forth: 40 S 26. The opening paragraph of section 513 of the abandoned property 41 law, as amended by chapter 815 of the laws of 1963, is amended to read 42 as follows: 43 A payment or delivery pursuant to section five hundred twelve shall be 44 accompanied by a [verified] written report, in such form as the state 45 comptroller may prescribe, setting forth: 46 S 27. Subdivision 4 of section 513 of the abandoned property law is 47 REPEALED. 48 S 28. Subdivision 5 of section 513 of the abandoned property law, as 49 added by chapter 617 of the laws of 1973, is renumbered subdivision 4 50 and amended to read as follows: 51 4. In case any broker or dealer determines the property which shall be 52 deemed abandoned property pursuant to subdivisions one and three of 53 section five hundred eleven by the method provided in subdivision six of 54 that section, the payment of such abandoned property shall be accompa- 55 nied by a [verified] written report, in such form as the state comp- 56 troller may prescribe, which, among other things, shall set forth the A. 4011--B 11 1 computation of the average factor of such broker or dealer pursuant to 2 subdivision six of section five hundred eleven. Each [verified] written 3 report accompanying the payment of abandoned property determined pursu- 4 ant to subdivision six of section five hundred eleven shall contain an 5 undertaking by the broker or dealer making such payment to honor all 6 claims to the extent herein provided whenever made against such broker 7 or dealer by any person determined by him or proved to be entitled to 8 receive from him a stock or cash dividend received in this state during 9 the calendar year covered by such report as the holder of record of a 10 security or an interest payment on a security received in this state 11 during such year. Such undertaking shall obligate the broker or dealer 12 to honor any such claim provided that the payment of abandoned property 13 relating to the year in question determined pursuant to subdivision six 14 of section five hundred eleven made by such broker or dealer to the 15 state comptroller has been exhausted as a result of reimbursements by 16 the state comptroller to the broker or dealer or to other persons claim- 17 ing such abandoned property as provided in subdivision two of section 18 five hundred fourteen. To the extent related to any stock dividend, any 19 such claim shall not exceed the fair market value of such stock dividend 20 on the thirty-first day of December of the year in which such stock 21 dividend was deemed abandoned property. 22 S 29. The opening paragraph of section 603 of the abandoned property 23 law is amended to read as follows: 24 Each such payment of abandoned property pursuant to section six 25 hundred two shall be accompanied by a [verified] written report, classi- 26 fied as the state comptroller shall prescribe, setting forth: 27 S 30. Subdivision 2 of section 1304 of the abandoned property law, as 28 added by chapter 698 of the laws of 1943, is amended to read as follows: 29 2. Any such abandoned property shall be paid or delivered forthwith to 30 the state comptroller. Such payment shall be accompanied by a [verified] 31 written report setting forth such identifying information as the state 32 comptroller may require. 33 S 31. Section 1305 of the abandoned property law, as amended by chap- 34 ter 149 of the laws of 1977, is amended to read as follows: 35 S 1305. Unclaimed surplus moneys after recovery of cost of public 36 assistance and care. 37 Any amount comprising a balance credited to an estate or person pursu- 38 ant to sections one hundred fifty-two-b or three hundred sixty of the 39 social services law which, on June thirtieth in any year, has for four 40 years from the date of such credit remained unclaimed by the estate or 41 person entitled thereto shall be deemed abandoned property. 42 On or before the tenth day of September in each year every public 43 welfare official shall pay such abandoned property to the state comp- 44 troller. Such payment shall be accompanied by a [verified] written 45 report in such form as the state comptroller may prescribe. 46 S 32. Subdivision 3 of section 1307 of the abandoned property law, as 47 added by chapter 700 of the laws of 1943, is amended to read as follows: 48 3. Any sheriff or county treasurer holding any such abandoned proper- 49 ty, shall pay the same to the state comptroller immediately after such 50 property shall have been deemed abandoned. Each such payment shall be 51 accompanied by a [verified] written report which shall set forth such 52 information as the state comptroller may require. 53 S 33. Subdivision 5 of section 1313 of the abandoned property law is 54 REPEALED. 55 S 34. Subdivision 2 of section 1314 of the abandoned property law, as 56 added by chapter 228 of the laws of 1977, is amended to read as follows: A. 4011--B 12 1 2. Such transfer of moneys shall be accompanied by a [verified] writ- 2 ten report, in such form as the state comptroller may prescribe. 3 S 35. Section 1402 of the abandoned property law is REPEALED and a new 4 section 1402 is added to read as follows: 5 S 1402. PUBLICATION OF ABANDONED PROPERTY BY STATE COMPTROLLER. 1. (A) 6 THE COMPTROLLER SHALL MAINTAIN ON HIS OR HER WEBSITE IN A READILY 7 SEARCHABLE FORMAT OR IN ANY OTHER MEDIUM AT LEAST EQUALLY ACCESSIBLE TO 8 THE PUBLIC, A LIST OF SUCH ABANDONED PROPERTY HELD BY THE COMPTROLLER OR 9 HAS BEEN PAID OR DELIVERED TO THE COMPTROLLER IN THE PREVIOUS TWELVE 10 MONTHS THAT HAS A VALUE EXCEEDING TWENTY DOLLARS. 11 (B) THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO ABANDONED 12 PROPERTY PAID PURSUANT TO SECTION ONE THOUSAND THREE HUNDRED OF THIS 13 CHAPTER OR SECTION FOUR HUNDRED TWENTY-FOUR OF THE VEHICLE AND TRAFFIC 14 LAW. 15 2. SUCH LIST SHALL BE IN SUCH FORM AND CLASSIFIED IN SUCH MANNER AS 16 THE STATE COMPTROLLER SHALL DETERMINE AND SHALL INCLUDE: 17 (A) THE NAMES AND LAST KNOWN ADDRESSES OF ALL PERSONS APPEARING FROM 18 THE RECORDS IN THE COMPTROLLER'S OFFICE, AS SET FORTH IN THE REPORT 19 FILED BY THE HOLDER, TO BE ENTITLED TO RECEIVE SUCH ABANDONED PROPERTY 20 EXCEEDING TWENTY DOLLARS IN VALUE; AND 21 (B) SUCH OTHER INFORMATION AS THE STATE COMPTROLLER MAY DETERMINE. 22 3. SUCH LISTING SHALL INCLUDE A STATEMENT THAT: (A) INFORMATION ABOUT 23 THE PROPERTY AND ITS RETURN TO THE OWNER MAY BE AVAILABLE TO A PERSON 24 HAVING A LEGAL OR BENEFICIAL INTEREST IN THE PROPERTY, UPON REQUEST TO 25 THE COMPTROLLER; AND 26 (B) A PUBLIC RECORD IS MAINTAINED IN THE OFFICE OF THE STATE COMP- 27 TROLLER OF ALL ABANDONED PROPERTY IN ACCORDANCE WITH SECTION FOURTEEN 28 HUNDRED ONE OF THIS ARTICLE; AND THAT A CLAIM FOR ANY SUCH ABANDONED 29 PROPERTY SHOULD BE FILED WITH THE STATE COMPTROLLER AT HIS OR HER OFFICE 30 IN THE CITY OF ALBANY. 31 4. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, THE STATE 32 COMPTROLLER MAY OMIT FROM SUCH LIST THE NAME AND LAST KNOWN ADDRESS OF 33 ANY PERSON WHERE SPECIAL CIRCUMSTANCES MAKE IT DESIRABLE THAT SUCH 34 INFORMATION BE WITHHELD. 35 S 36. Subdivision 12 of section 211 of the tax law is REPEALED and a 36 new subdivision 12 is added to read as follows: 37 12. (A) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION EIGHT OF THIS 38 SECTION, THE COMMISSIONER AND THE COMPTROLLER SHALL ENTER INTO AN AGREE- 39 MENT PURSUANT TO WHICH THE COMMISSIONER SHALL, UPON REQUEST, PROVIDE THE 40 COMPTROLLER WITH A REPORT, NOT MORE FREQUENTLY THAN ANNUALLY, WITH 41 RESPECT TO CORPORATIONS OR OTHER ENTITIES WHICH HAVE FILED A BUSINESS 42 CORPORATION FRANCHISE TAX REPORT UNDER THIS ARTICLE FOR ANY TAXABLE YEAR 43 WITHIN TEN CALENDAR YEARS PRIOR TO THE REPORT TO THE COMPTROLLER MADE 44 PURSUANT TO THIS SUBDIVISION, PROVIDING THE FOLLOWING INFORMATION, TO 45 THE EXTENT THAT SUCH INFORMATION IS READILY AVAILABLE FROM THE DEPART- 46 MENT'S SYSTEM FOR IDENTIFYING TAXPAYER INDICATIVE DATA: 47 (1) BUSINESS NAME AND LEGAL NAME, IF DIFFERENT; 48 (2) BUSINESS ADDRESS AND MAILING ADDRESS; 49 (3) FEDERAL EMPLOYER IDENTIFICATION NUMBER; 50 (4) DATE ENTERED INTO BUSINESS. 51 (B) EACH REPORT TO THE COMPTROLLER MADE PURSUANT TO THIS SUBDIVISION 52 SHALL LIST EACH CORPORATION OR OTHER ENTITY WITH RESPECT TO WHICH SUCH 53 REPORT IS MADE ACCORDING TO THE TOTAL ASSETS REPORTED FOR THE END OF THE 54 YEAR ON ITS MOST RECENT AVAILABLE BUSINESS CORPORATION FRANCHISE TAX 55 REPORT, IN DESCENDING ORDER. SUCH REPORTS TO THE COMPTROLLER SHALL NOT A. 4011--B 13 1 DISCLOSE THE ACTUAL AMOUNT OF TOTAL ASSETS REPORTED ON SUCH BUSINESS 2 CORPORATION FRANCHISE TAX REPORTS. 3 (C) THE INFORMATION PROVIDED TO THE COMPTROLLER PURSUANT TO THIS 4 SUBDIVISION SHALL BE USED ONLY FOR ADMINISTRATION AND ENFORCEMENT OF THE 5 ABANDONED PROPERTY LAW. THE COMPTROLLER MAY REDISCLOSE THE INFORMATION 6 PROVIDED UNDER THIS SUBDIVISION ONLY TO THE EXTENT NECESSARY FOR 7 ENFORCEMENT OR ADMINISTRATION OF THE ABANDONED PROPERTY LAW. 8 (D) THE REPORTS TO THE COMPTROLLER REQUIRED UNDER THIS SUBDIVISION 9 SHALL BE SUBMITTED BY ELECTRONIC MEANS OR IN SOME OTHER FORMAT WHICH IS 10 MUTUALLY ACCEPTABLE TO THE COMPTROLLER AND THE COMMISSIONER. THE WRITTEN 11 AGREEMENT WITH THE COMPTROLLER SHALL SET FORTH THE PROCEDURES FOR 12 PROVIDING THE INFORMATION THE COMMISSIONER IS ALLOWED TO DISCLOSE PURSU- 13 ANT TO THIS SUBDIVISION. 14 (E) NOTWITHSTANDING ARTICLE SIX OF THE PUBLIC OFFICERS LAW OR ANY 15 OTHER PROVISION OF LAW, THE REPORTS TO BE FURNISHED TO THE COMPTROLLER 16 PURSUANT TO THIS SUBDIVISION SHALL NOT BE OPEN TO THE PUBLIC FOR 17 INSPECTION. 18 S 37. Subdivision 2 of section 95 of the state finance law, as amended 19 by section 10-a of part RR of chapter 57 of the laws of 2008, is amended 20 to read as follows: 21 2. Annually, the comptroller shall file with the director of the budg- 22 et an itemized estimate of the expenses for the administration of the 23 abandoned property fund for the ensuing year. The director of the budget 24 may revise and amend such estimate. After such revision and amendment, 25 if any, such director shall approve the same for inclusion in the execu- 26 tive budget. No moneys shall be paid out of the abandoned property fund 27 for [such] expenses unless expenditures therefor shall have been author- 28 ized by law; provided, however, that the expenses [of any audits 29 conducted by the state comptroller to assure compliance by holders of 30 unclaimed property with the provisions of the abandoned property law] 31 FOR THE ADMINISTRATION OF THE PROVISIONS OF THE ABANDONED PROPERTY LAW 32 paid by the state comptroller pursuant to an appropriation, shall be 33 reimbursed by a transfer of funds no more frequently than monthly, from 34 any balance remaining in the abandoned property fund prior to any 35 payment made pursuant to the provisions of subdivision three of this 36 section. 37 S 38. This act shall take effect immediately. 38 PART B 39 Section 1. Section 12 of part N of chapter 61 of the laws of 2005, 40 amending the tax law relating to certain transactions and related infor- 41 mation and relating to the voluntary compliance initiative, subdivision 42 (iii) as amended by section 16 of subpart J of part V-1 of chapter 57 of 43 the laws of 2009, is amended to read as follows: 44 S 12. This act shall take effect immediately; provided, however, that 45 (i) section one of this act shall apply to all disclosure statements 46 described in paragraph 1 of subdivision (a) of section 25 of the tax 47 law, as added by section one of this act, that were required to be filed 48 with the internal revenue service at any time with respect to "listed 49 transactions" as described in such paragraph 1, and shall apply to all 50 disclosure statements described in paragraph 1 of subdivision (a) of 51 section 25 of the tax law, as added by section one of this act, that 52 were required to be filed with the internal revenue service with respect 53 to "reportable transactions" as described in such paragraph 1, other 54 than "listed transactions", in which a taxpayer participated during any A. 4011--B 14 1 taxable year for which the statute of limitations for assessment has not 2 expired as of the date this act shall take effect, and shall apply to 3 returns or statements described in such paragraph 1 required to be filed 4 by taxpayers (or persons as described in such paragraph) with the 5 commissioner of taxation and finance on or after the sixtieth day after 6 this act shall have become a law; AND 7 (ii) sections two through four and seven through nine of this act 8 shall apply to any tax liability for which the statute of limitations on 9 assessment has not expired as of the date this act shall take effect[; 10 and 11 (iii) provided, further, that the provisions of this act, except 12 section five of this act, shall expire and be deemed repealed July 1, 13 2011. The commissioner of taxation and finance shall cause to be 14 prepared a written report on the tax shelter law. Notwithstanding any 15 other provision of law to the contrary, such report shall include, but 16 not be limited to, statistical information regarding the listed and 17 reportable transactions and avoidance transactions under this act. A 18 copy of such report shall be delivered to the governor, the temporary 19 president of the senate, and the speaker of the assembly no later than 20 April 1, 2007; provided, that, such expiration and repeal shall not 21 affect any requirement imposed pursuant to this act]. 22 S 2. This act shall take effect immediately. 23 PART C 24 Section 1. Paragraphs (g) and (h) of subdivision 12-B of section 210 25 of the tax law, as added by section 8 of part R of chapter 57 of the 26 laws of 2010, are amended to read as follows: 27 (g) Notwithstanding the expiration of the empire zones program under 28 article eighteen-B of the general municipal law, a taxpayer that is 29 certified as a qualified investment project pursuant to such article 30 eighteen-B on the day immediately preceding the day the empire zones 31 program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE 32 COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED 33 FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED 34 THEREUNDER, shall continue to be deemed certified under such article 35 eighteen-B for purposes of this subdivision for the remainder of the 36 taxable year in which the expiration occurred and for the next succeed- 37 ing nine taxable years. In addition, the areas designated as empire 38 zones in which the taxpayer is certified as a qualified investment 39 project on the day immediately preceding the day the empire zones 40 program expired shall continue to be deemed empire zones for purposes of 41 this subdivision for the remainder of the taxable year in which the 42 expiration occurred and for the next succeeding nine taxable years. 43 (h) Notwithstanding the expiration of the empire zones program under 44 article eighteen-B of the general municipal law and except as provided 45 in paragraph (g) of this subdivision, a taxpayer that is certified as an 46 empire zone business pursuant to such article eighteen-B on the day 47 immediately preceding the day the empire zones program expired, AND HAS 48 NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVEL- 49 OPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC- 50 IPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall continue to be 51 deemed certified under such article eighteen-B for purposes of this 52 subdivision until April first, two thousand fourteen. In addition, the 53 areas designated as empire zones in which the taxpayer is certified as 54 an empire zone business on the day immediately preceding the day the A. 4011--B 15 1 empire zones program expired shall continue to be deemed empire zones 2 for purposes of this subdivision until April first, two thousand four- 3 teen. 4 S 2. Paragraph 7 of subsection (j) of section 606 of the tax law, as 5 added by section 9 of part R of chapter 57 of the laws of 2010, is 6 amended to read as follows: 7 (7) Notwithstanding the expiration of the empire zones program under 8 article eighteen-B of the general municipal law, a taxpayer that is 9 certified as an empire zone business pursuant to such article eighteen-B 10 on the day immediately preceding the day the empire zones program 11 expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER 12 OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF 13 THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall 14 continue to be deemed certified under such article eighteen-B for 15 purposes of this subdivision until April first, two thousand fourteen. 16 In addition, the areas designated as empire zones in which the taxpayer 17 is certified as an empire zone business on the day immediately preceding 18 the day the empire zones program expired shall continue to be deemed 19 empire zones for purposes of this subdivision until April first, two 20 thousand fourteen. 21 S 3. Paragraphs (d) and (e) of subdivision 12-C of section 210 of the 22 tax law, as added by section 10 of part R of chapter 57 of the laws of 23 2010, are amended to read as follows: 24 (d) Notwithstanding the expiration of the empire zones program under 25 article eighteen-B of the general municipal law, a taxpayer that is 26 certified as a qualified investment project pursuant to such article 27 eighteen-B on the day immediately preceding the day the empire zones 28 program expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE 29 COMMISSIONER OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED 30 FIFTY-NINE OF THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED 31 THEREUNDER, shall continue to be deemed certified under such article 32 eighteen-B for purposes of this subdivision for the remainder of the 33 taxable year in which the expiration occurred and for the next succeed- 34 ing nine taxable years. In addition, the areas designated as empire 35 zones in which the taxpayer is certified as a qualified investment 36 project on the day immediately preceding the day the empire zones 37 program expired shall continue to be deemed empire zones for purposes of 38 this subdivision for the remainder of the taxable year in which the 39 expiration occurred and for the next succeeding nine taxable years. 40 (e) Notwithstanding the expiration of the empire zones program under 41 article eighteen-B of the general municipal law and except as provided 42 in paragraph (d) of this subdivision, a taxpayer that is certified as an 43 empire zone business pursuant to such article eighteen-B on the day 44 immediately preceding the day the empire zones program expired, AND HAS 45 NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER OF ECONOMIC DEVEL- 46 OPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC- 47 IPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall continue to be 48 deemed in the empire zone in which the taxpayer was certified as an 49 empire zone business on the day immediately preceding the day the empire 50 zones program expired for each of the three years next succeeding the 51 taxable year for which the credit under subdivision twelve-B OF THIS 52 SECTION is allowed. 53 S 4. Paragraph 4 of subsection (j-1) of section 606 of the tax law, as 54 added by section 11 of part R of chapter 57 of the laws of 2010, is 55 amended to read as follows: A. 4011--B 16 1 (4) Notwithstanding the expiration of the empire zones program under 2 article eighteen-B of the general municipal law, a taxpayer that is 3 certified as an empire zone business pursuant to such article eighteen-B 4 on the day immediately preceding the day the empire zones program 5 expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER 6 OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF 7 THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall 8 continue to be deemed in the empire zone in which the taxpayer was 9 certified as an empire zone business on the day immediately preceding 10 the day the empire zones program expired for each of the three years 11 next succeeding the taxable year for which the credit under [subdivi- 12 sion] SUBSECTION (j) OF THIS SECTION is allowed. 13 S 5. Subdivision (k) of section 14 of the tax law, as amended by 14 section 5 of part A of chapter 63 of the laws of 2005, is amended to 15 read as follows: 16 (k) If the designation of an area as an empire zone is no longer in 17 effect because section nine hundred sixty-nine of the general municipal 18 law was not amended to extend the effective date of such designation so 19 that the designations of all empire zones pursuant to article eighteen-B 20 of the general municipal law have expired, a business enterprise that 21 was certified pursuant to article eighteen-B of the general municipal 22 law on the day immediately preceding the day on which such designation 23 expired, AND HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER 24 OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF 25 THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER, shall 26 be deemed to continue to be certified under such article eighteen-B for 27 purposes of this section, and sections fifteen, sixteen, section one 28 hundred eighty-seven-j, subdivisions twenty-seven and twenty-eight of 29 section two hundred ten, subsections (bb) and (cc) of section six 30 hundred six, [subdivision (z) of section eleven hundred fifteen,] SUBDI- 31 VISION (D) OF SECTION ELEVEN HUNDRED NINETEEN, subsections (o) and (p) 32 of section fourteen hundred fifty-six, and subdivisions (r) and (s) of 33 section fifteen hundred eleven of this chapter. In addition, if the 34 designation of an area as an empire zone is no longer in effect because 35 section nine hundred sixty-nine of the general municipal law was not 36 amended to extend the effective date of such designation so that the 37 designations of all empire zones pursuant to article eighteen-B of the 38 general municipal law have expired, all references to empire zones in 39 the provisions of this chapter listed in the previous sentence shall be 40 read as meaning areas designated as empire zones on the day immediately 41 preceding the day on which such designation expired. 42 S 6. Paragraph (f) of subdivision 20 of section 210 of the tax law, as 43 added by section 14 of part R of chapter 57 of the laws of 2010, is 44 amended to read as follows: 45 (f) If the designation of an area as an empire zone is no longer in 46 effect because the designations of all empire zones pursuant to article 47 eighteen-B of the general municipal law have expired, a taxpayer that 48 has made a contribution of money on or before the day immediately 49 preceding the day the empire zones expired to a community development 50 project approved by the commissioner of economic development shall be 51 deemed eligible to claim the empire zone capital credit under subpara- 52 graph three of paragraph (a) of this subdivision for additional contrib- 53 utions made prior to April first, two thousand fourteen and certified by 54 the commissioner of economic development to that community development 55 project as payment of a commitment made by the taxpayer to that communi- 56 ty development project before the empire zones expired, PROVIDED THAT A. 4011--B 17 1 THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER 2 OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF 3 THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER. 4 S 7. Paragraph 5 of subsection (l) of section 606 of the tax law, as 5 added by section 15 of part R of chapter 57 of the laws of 2010, is 6 amended to read as follows: 7 (5) If the designation of an area as an empire zone is no longer in 8 effect because the designations of all empire zones pursuant to article 9 eighteen-B of the general municipal law have expired, a taxpayer that 10 has made a contribution of money on or before the day immediately 11 preceding the day the empire zones expired to a community development 12 project approved by the commissioner of economic development shall be 13 deemed eligible to claim the empire zone capital credit under subpara- 14 graph (C) of paragraph one of this subsection for additional contrib- 15 utions made prior to April first, two thousand fourteen and certified by 16 the commissioner of economic development to that community development 17 project as payment of a commitment made by the taxpayer to that communi- 18 ty development project before the empire zones expired, PROVIDED THAT 19 THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER 20 OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF 21 THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER. 22 S 8. Paragraph 5 of subsection (d) of section 1456 of the tax law, as 23 added by section 16 of part R of chapter 57 of the laws of 2010, is 24 amended to read as follows: 25 (5) If the designation of an area as an empire zone is no longer in 26 effect because the designations of all empire zones pursuant to article 27 eighteen-B of the general municipal law have expired, a taxpayer that 28 has made a contribution of money on or before the day immediately 29 preceding the day the empire zones expired to a community development 30 project approved by the commissioner of economic development shall be 31 deemed eligible to claim the empire zone capital credit under subpara- 32 graph (C) of paragraph one of this subsection for additional contrib- 33 utions made prior to April first, two thousand fourteen and certified by 34 the commissioner of economic development to that community development 35 project as payment of a commitment made by the taxpayer to that communi- 36 ty development project before the empire zones expired, PROVIDED THAT 37 THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER 38 OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF 39 THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER. 40 S 9. Paragraph 5 of subdivision (h) of section 1511 of the tax law, as 41 added by section 17 of part R of chapter 57 of the laws of 2010, is 42 amended to read as follows: 43 (5) If the designation of an area as an empire zone is no longer in 44 effect because the designations of all empire zones pursuant to article 45 eighteen-B of the general municipal law have expired, a taxpayer that 46 has made a contribution of money on or before the day immediately 47 preceding the day the empire zones expired to a community development 48 project approved by the commissioner of economic development shall be 49 deemed eligible to claim the empire zone capital credit under subpara- 50 graph (C) of paragraph one of this subdivision for additional contrib- 51 utions made prior to April first, two thousand fourteen and certified by 52 the commissioner of economic development to that community development 53 project as payment of a commitment made by the taxpayer to that communi- 54 ty development project before the empire zones expired, PROVIDED THAT 55 THE TAXPAYER HAS NOT SUBSEQUENTLY BEEN DECERTIFIED BY THE COMMISSIONER A. 4011--B 18 1 OF ECONOMIC DEVELOPMENT PURSUANT TO SECTION NINE HUNDRED FIFTY-NINE OF 2 THE GENERAL MUNICIPAL LAW AND REGULATIONS PROMULGATED THEREUNDER. 3 S 10. This act shall take effect immediately and shall be deemed to be 4 in full force and effect on and after August 11, 2010. 5 PART D 6 Section 1. The tax law is amended by adding a new section 1613-c to 7 read as follows: 8 S 1613-C. CREDITING OF LOTTERY PRIZES AGAINST LIABILITIES FOR TAXES 9 ADMINISTERED BY THE COMMISSIONER. (1) THE DIRECTOR, ON BEHALF OF THE 10 DIVISION, SHALL ENTER INTO A WRITTEN AGREEMENT WITH THE COMMISSIONER, ON 11 BEHALF OF THE DEPARTMENT, WITHIN SIXTY DAYS OF THE EFFECTIVE DATE OF 12 THIS SECTION, WHICH WILL SET FORTH PROCEDURES FOR CREDITING LOTTERY 13 PRIZES OF MORE THAN SIX HUNDRED DOLLARS AWARDED TO HOLDERS OF WINNING 14 LOTTERY TICKETS, WHETHER INDIVIDUALS, CORPORATIONS, ASSOCIATIONS, COMPA- 15 NIES, PARTNERSHIPS, LIMITED LIABILITY PARTNERSHIPS OR COMPANIES, PART- 16 NERS, MEMBERS, MANAGERS, ESTATES, TRUST FIDUCIARIES OR ENTITIES, AGAINST 17 PAST DUE TAX LIABILITIES OWED BY SUCH HOLDERS FOR ANY TAX ADMINISTERED 18 BY THE COMMISSIONER, ABOUT WHICH THE DIRECTOR HAS BEEN NOTIFIED BY THE 19 COMMISSIONER PURSUANT TO THE PROVISIONS OF SUCH AGREEMENT. 20 (2) SUCH AGREEMENT SHALL APPLY TO ANY PAST DUE TAX LIABILITY WHICH 21 ARISES FROM (I) AN ENFORCEABLE WARRANT OR JUDGMENT, (II) AN ENFORCEABLE 22 DETERMINATION OF AN ADMINISTRATIVE BODY WHICH IS NO LONGER SUBJECT TO 23 ADMINISTRATIVE OR JUDICIAL REVIEW, OR (III) AN ASSESSMENT OR DETERMI- 24 NATION (INCLUDING SELF-ASSESSMENT OR SELF-ASSESSED DETERMINATION) WHICH 25 HAS BECOME FINAL OR FINALLY AND IRREVOCABLY FIXED AND NO LONGER SUBJECT 26 TO ADMINISTRATIVE OR JUDICIAL REVIEW. 27 (3) SUCH AGREEMENT SHALL INCLUDE: 28 (A) THE PROCEDURE UNDER WHICH THE DEPARTMENT WILL NOTIFY THE DIVISION 29 OF TAX LIABILITIES, INCLUDING WHEN THE DIVISION WILL BE NOTIFIED AND THE 30 CONTENT OF THAT NOTIFICATION; 31 (B) THE PROCEDURE FOR REIMBURSEMENT OF THE DIVISION BY THE DEPARTMENT 32 FOR THE COST OF CARRYING OUT THE PROCEDURES AUTHORIZED BY THIS SECTION; 33 AND 34 (C) ANY OTHER MATTERS THE PARTIES TO THE AGREEMENT DEEM NECESSARY TO 35 CARRY OUT THE PROVISIONS OF THIS SECTION. 36 (4) PRIOR TO AWARDING LOTTERY PRIZES OF MORE THAN SIX HUNDRED DOLLARS, 37 THE DIVISION SHALL REVIEW THE MOST RECENT NOTICE OF TAX LIABILITIES 38 PROVIDED BY THE COMMISSIONER. FOR HOLDERS OF WINNING LOTTERY TICKETS 39 IDENTIFIED ON THAT NOTICE, THE DIVISION SHALL CREDIT TO THE DEPARTMENT 40 THE AMOUNT OF EACH HOLDER'S PRIZE NECESSARY TO SATISFY THAT HOLDER'S TAX 41 LIABILITY, AND THE REMAINDER OF THE PRIZE SHALL BE AWARDED TO THE HOLDER 42 OF THE WINNING TICKET. 43 (5) IF THE DIVISION HAS ALSO RECEIVED A NOTICE OF LIABILITY OF A PRIZE 44 WINNER FOR PAST-DUE SUPPORT OR PUBLIC ASSISTANCE BENEFITS PURSUANT TO 45 SECTION SIXTEEN HUNDRED THIRTEEN-A OR SIXTEEN HUNDRED THIRTEEN-B OF THIS 46 ARTICLE, THEN THE AMOUNT OF ANY PRIZE SHALL BE FIRST CREDITED OR APPLIED 47 TO THE INCOME TAX REQUIRED TO BE WITHHELD BY LAW, THEN AS REQUIRED BY 48 SECTION SIXTEEN HUNDRED THIRTEEN-A OR SIXTEEN HUNDRED THIRTEEN-B OF THIS 49 ARTICLE, THEN TO THE PAST DUE TAX LIABILITY AS REQUIRED BY THIS SECTION. 50 THE BALANCE WILL THEN BE PAID TO THE HOLDER OF THE WINNING LOTTERY TICK- 51 ET. 52 (6) THE DIVISION SHALL CERTIFY TO THE COMPTROLLER THE TOTAL AMOUNT OF 53 THE LOTTERY PRIZE TO BE CREDITED AGAINST PAST DUE TAX LIABILITIES AND A. 4011--B 19 1 THE REMAINDER OF THE PRIZE TO BE AWARDED TO THE HOLDER OF THE WINNING 2 LOTTERY TICKET. 3 (7) THE DIVISION SHALL NOTIFY THE HOLDER OF THE WINNING LOTTERY TICK- 4 ET, IN WRITING, OF THE TOTAL AMOUNT OF THE LOTTERY PRIZE CREDITED 5 AGAINST PAST DUE TAX LIABILITIES AND THE REMAINDER OF THE PRIZE TO BE 6 AWARDED TO THE HOLDER. THAT NOTICE MUST ALSO ADVISE THE HOLDER THAT THE 7 DEPARTMENT WILL PROVIDE SEPARATE NOTICE, IN WRITING, OF THE PROCEDURE 8 FOR AND TIME FRAME BY WHICH THE HOLDER MAY CONTEST SUCH CREDITING. 9 (8) THE DEPARTMENT SHALL NOTIFY THE HOLDER OF THE WINNING LOTTERY 10 TICKET, IN WRITING, OF THE AMOUNT OF A PRIZE TO BE CREDITED AGAINST PAST 11 DUE TAX LIABILITIES AND THE PROCEDURE FOR AND TIME FRAME BY WHICH THE 12 HOLDER MAY CONTEST THE CREDITING OF THE PRIZE. 13 (9) FROM THE TIME THE DIVISION IS NOTIFIED BY THE DEPARTMENT OF A PAST 14 DUE TAX LIABILITY OF A HOLDER OF A WINNING LOTTERY TICKET, THE DIVISION 15 SHALL BE RELIEVED FROM ALL LIABILITY TO THE HOLDER, AND THE HOLDER'S 16 HEIRS, REPRESENTATIVES, ESTATE, SUCCESSORS OR ASSIGNS FOR THE AMOUNT OF 17 A PRIZE CERTIFIED TO THE COMPTROLLER TO BE CREDITED AGAINST PAST DUE TAX 18 LIABILITIES AND THE HOLDER AND THE HOLDER'S HEIRS, REPRESENTATIVES, 19 ESTATE, SUCCESSOR OR ASSIGNS SHALL HAVE NO RIGHT TO COMMENCE A COURT 20 ACTION OR PROCEEDING OR TO ANY OTHER LEGAL RECOURSE AGAINST THE DIVISION 21 TO RECOVER ANY AMOUNT CERTIFIED TO THE COMPTROLLER TO BE CREDITED 22 AGAINST PAST DUE TAX LIABILITIES. PROVIDED HOWEVER, NOTHING HEREIN SHALL 23 BE CONSTRUED TO PROHIBIT A HOLDER OF A WINNING LOTTERY TICKET AND THE 24 HOLDER'S HEIRS, REPRESENTATIVES, ESTATE, SUCCESSORS OR ASSIGNS FROM 25 PROCEEDING AGAINST THE DEPARTMENT TO RECOVER THE PART OF THE PRIZE 26 CERTIFIED TO THE COMPTROLLER AND CREDITED TO PAST DUE TAX LIABILITIES 27 WHICH IS GREATER THAN THE AMOUNT OF PAST DUE TAX LIABILITIES OWED BY 28 THAT HOLDER ON THE DATE OF CERTIFICATION. 29 (10) NOTWITHSTANDING ANY LAW TO THE CONTRARY, THE DEPARTMENT AND ITS 30 OFFICERS AND EMPLOYEES MAY FURNISH TO THE DIVISION ANY ABSTRACT OF ANY 31 TAX RETURN OR REPORT, OR ANY INFORMATION CONCERNING AN ITEM CONTAINED IN 32 ANY SUCH RETURN OR REPORT OR DISCLOSED BY ANY INVESTIGATION OF TAX 33 LIABILITY UNDER THIS CHAPTER, BUT ONLY FOR THE PURPOSE OF CREDITING 34 LOTTERY PRIZES AGAINST PAST DUE TAX LIABILITIES DESCRIBED IN SUBDIVISION 35 TWO OF THIS SECTION. 36 S 2. This act shall take effect on the first of August next succeeding 37 the date on which it shall have become a law, provided that the depart- 38 ment of taxation and finance and the division of the lottery may take 39 steps to effectuate the written agreement between the director of the 40 division of the lottery and the commissioner of taxation and finance 41 prior to such effective date. 42 PART E 43 Section 1. Paragraph c of subdivision 2 of section 124 of part A of 44 chapter 56 of the laws of 1998, amending the tax law and other laws 45 relating to extending the dates of application of the investment tax 46 credit under articles 9-A, 22 and 32 of the tax law, as amended by 47 section 1 of part YY-1 of chapter 57 of the laws of 2008, is amended to 48 read as follows: 49 c. Sections fifteen through twenty-seven of this act shall apply to 50 property placed in service on or after October 1, 1998 and before Octo- 51 ber 1, [2011] 2015. 52 S 2. Section 2 of part L of chapter 63 of the laws of 2000, amending 53 the tax law and other laws relating to extending the dates of applica- 54 tion of the investment tax credit under article 33 of the tax law, as A. 4011--B 20 1 amended by section 2 of part YY-1 of chapter 57 of the laws of 2008, is 2 amended to read as follows: 3 S 2. This act shall take effect immediately and shall apply to proper- 4 ty placed in service on or after January 1, 2002 and before October 1, 5 [2011] 2015. 6 S 3. This act shall take effect immediately. 7 PART F 8 Section 1. Subdivision 4 of section 22 of the public housing law, as 9 amended by section 1 of part P of chapter 57 of the laws of 2010, is 10 amended to read as follows: 11 4. Statewide limitation. The aggregate dollar amount of credit which 12 the commissioner may allocate to eligible low-income buildings under 13 this article shall be [twenty-eight] THIRTY-TWO million dollars. The 14 limitation provided by this subdivision applies only to allocation of 15 the aggregate dollar amount of credit by the commissioner, and does not 16 apply to allowance to a taxpayer of the credit with respect to an eligi- 17 ble low-income building for each year of the credit period. 18 S 2. This act shall take effect immediately. 19 PART G 20 Section 1. Subdivision 12 of section 352 of the economic development 21 law, as added by section 1 of part MM of chapter 59 of the laws of 2010, 22 is amended to read as follows: 23 12. "Preliminary schedule of benefits" means the maximum aggregate 24 amount of each component of the tax credit that a participant in the 25 excelsior jobs program is eligible to receive pursuant to this article. 26 The schedule shall indicate the annual amount of each component of the 27 credit a participant may claim in each of its [five] TEN years of eligi- 28 bility. The preliminary schedule of benefits shall be issued by the 29 department when the department approves the application for admission 30 into the program. The commissioner may amend that schedule, provided 31 that the commissioner complies with the credit caps in section three 32 hundred fifty-nine of this article. 33 S 2. Section 353 of the economic development law, as added by section 34 1 of part MM of chapter 59 of the laws of 2010, is amended to read as 35 follows: 36 S 353. Eligibility criteria. 1. To be a participant in the excelsior 37 jobs program, a business entity shall operate in New York state predomi- 38 nantly: 39 (a) as a financial services data center or a financial services back 40 office operation; 41 (b) in manufacturing; 42 (c) in software development and new media; 43 (d) in scientific research and development; 44 (e) in agriculture; 45 (f) in the creation or expansion of back office operations in the 46 state; 47 (g) in a distribution center; or 48 (h) in an industry with significant potential for private-sector 49 economic growth and development in this state as established by the 50 commissioner in regulations promulgated pursuant to this article. In 51 promulgating such regulations the commissioner shall include job and 52 investment criteria. A. 4011--B 21 1 2. WHEN DETERMINING WHETHER AN APPLICANT IS OPERATING PREDOMINATELY IN 2 ONE OF THE INDUSTRIES LISTED IN SUBDIVISION ONE OF THIS SECTION, THE 3 COMMISSIONER WILL EXAMINE THE NATURE OF THE BUSINESS ACTIVITY AT THE 4 LOCATION FOR THE PROPOSED PROJECT AND WILL MAKE ELIGIBILITY DETERMI- 5 NATIONS BASED ON SUCH ACTIVITY. 6 3. For the purposes of this article, in order to participate in the 7 excelsior jobs program, a business entity operating predominantly in 8 manufacturing must create at least twenty-five net new jobs; a business 9 entity operating predominately in agriculture must create at least ten 10 net new jobs; a business entity operating predominantly as a financial 11 service data center or financial services customer back office operation 12 must create at least one hundred net new jobs; a business entity operat- 13 ing predominantly in scientific research and development must create at 14 least ten net new jobs; a business entity operating predominantly in 15 software development must create at least ten net new jobs; a business 16 entity creating or expanding back office operations or a distribution 17 center in the state must create at least one hundred fifty net new jobs, 18 notwithstanding subdivision [four] FIVE of this section; or a business 19 entity must be a regionally significant project as defined in this arti- 20 cle; or 21 [3.] 4. A business entity operating predominantly in one of the indus- 22 tries referenced in paragraphs (a) through (h) of subdivision one of 23 this section but which does not meet the job requirements of subdivision 24 [two] THREE of this section must have at least fifty full-time job 25 equivalents and must demonstrate that its benefit-cost ratio is at least 26 ten to one. 27 [4.] 5. A not-for-profit business entity, a business entity whose 28 primary function is the provision of services including personal 29 services, business services, or the provision of utilities, and a busi- 30 ness entity engaged predominantly in the retail or entertainment indus- 31 try, and a company engaged in the generation or distribution of elec- 32 tricity, the distribution of natural gas, or the production of steam 33 associated with the generation of electricity are not eligible to 34 receive the tax credit described in this article. 35 [5.] 6. A business entity must be in compliance with all worker 36 protection and environmental laws and regulations. In addition, a busi- 37 ness entity may not owe past due state taxes or local property taxes. 38 S 3. Section 354 of the economic development law, as added by section 39 1 of part MM of chapter 59 of the laws of 2010, is amended to read as 40 follows: 41 S 354. Application and approval process. 1. A business enterprise must 42 submit a completed application as prescribed by the commissioner. An 43 application may be recommended by entities, including but not limited 44 to, those created pursuant to subdivision (e) of section nine hundred 45 fifty-seven of the general municipal law. 46 2. As part of such application, each business enterprise must: 47 (a) Agree to allow the department of taxation and finance to share its 48 tax information with the department. However, any information shared as 49 a result of this agreement shall not be available for disclosure or 50 inspection under the state freedom of information law. 51 (b) Agree to allow the department of labor to share its tax and 52 employer information with the department. However, any information 53 shared as a result of this agreement shall not be available for disclo- 54 sure or inspection under the state freedom of information law. 55 (c) Allow the department and its agents access to any and all books 56 and records the department may require to monitor compliance. A. 4011--B 22 1 (d) Agree to be permanently [decertified from the empire zones program 2 if admitted into the excelsior jobs program, effective for the first 3 taxable year that the business enterprise may claim the excelsior jobs 4 program credit and for all subsequent taxable years] DISQUALIFIED FOR 5 EMPIRE ZONE BENEFITS AT ANY LOCATION OR LOCATIONS THAT QUALIFY FOR 6 EXCELSIOR JOBS PROGRAM BENEFITS IF ADMITTED INTO THE EXCELSIOR JOBS 7 PROGRAM. 8 (e) Provide the following information to the department upon request: 9 (i) a plan outlining the schedule for meeting the job and investment 10 requirements as set forth in subdivisions [two] THREE and [three] FOUR 11 of section three hundred fifty-three of this article. Such plan must 12 include details on job titles and expected salaries; 13 (ii) the prior three years of federal and state income or franchise 14 tax returns, unemployment insurance quarterly returns, real property tax 15 bills and audited financial statements; 16 (iii) the amount and description of projected qualified investments 17 for which it plans to claim the excelsior investment tax credit; 18 (iv) an estimate of the portion of any federal research and develop- 19 ment tax credits, attributable to research and development activities 20 conducted in New York state, that it anticipates claiming for the years 21 it expects to claim the excelsior research and development credit; and 22 (v) the employer identification or social security numbers for all 23 related persons to the applicant, including those of any members of a 24 limited liability company or partners in a partnership. 25 (f) Provide a clear and detailed presentation of all related persons 26 to the applicant to assure the department that jobs are not being shift- 27 ed within the state. 28 (g) Certify, under penalty of perjury, that it is in substantial 29 compliance with all environmental, worker protection, and local, state, 30 and federal tax laws. 31 3. After reviewing a business enterprise's completed application and 32 determining that the business enterprise will meet the conditions set 33 forth in subdivisions [two] THREE and [three] FOUR of section three 34 hundred fifty-three of this article, the department may admit the appli- 35 cant into the program and provide the applicant with a certificate of 36 eligibility and a preliminary schedule of benefits by year based on the 37 applicant's projections as set forth in its application. This prelimi- 38 nary schedule of benefits delineates the maximum possible benefits an 39 applicant may receive. 40 4. In order to become a participant in the program, an applicant must 41 submit evidence [of achieving job and investment requirements] THAT IT 42 SATISFIES THE ELIGIBILITY CRITERIA SPECIFIED IN SECTION THREE HUNDRED 43 FIFTY-THREE OF THIS ARTICLE AND SUBDIVISION TWO OF THIS SECTION in such 44 form as the commissioner may prescribe. After reviewing such evidence 45 and finding it sufficient, the department shall certify the applicant as 46 a participant and issue to that participant a certificate of tax credit 47 for one taxable year. To receive a certificate of tax credit for subse- 48 quent taxable years, the participant must submit to the department a 49 performance report DEMONSTRATING THAT THE PARTICIPANT CONTINUES TO 50 SATISFY THE ELIGIBILITY CRITERIA SPECIFIED IN SECTION THREE HUNDRED 51 FIFTY-THREE OF THIS ARTICLE AND SUBDIVISION TWO OF THIS SECTION. IF SUCH 52 ELIGIBILITY CRITERIA IS MET, A PARTICIPANT CAN RECEIVE TAX CREDITS BASED 53 ON INTERIM JOB, INVESTMENT OR RESEARCH AND DEVELOPMENT MILESTONES. A 54 participant's increase in employment, qualified investment, or federal 55 research and development tax credit attributable to research and devel- 56 opment activities in New York state above its projections listed in its A. 4011--B 23 1 application shall not result in an increase in tax benefits under this 2 article. However, if the participant's expenditures are less than the 3 estimated amounts, the credit shall be less than the estimate. 4 5. A participant may claim tax benefits commencing in the first taxa- 5 ble year that the business enterprise receives a certificate of tax 6 credit or the first taxable year listed on its preliminary schedule of 7 benefits, whichever is later. A participant may claim such benefits for 8 the next [four] NINE consecutive taxable years, provided that the 9 participant demonstrates to the department that it continues to satisfy 10 the eligibility criteria specified in section three hundred fifty-three 11 of this article and subdivision two of this section in each of those 12 taxable years. 13 S 4. Section 355 of the economic development law, as added by section 14 1 of part MM of chapter 59 of the laws of 2010, is amended to read as 15 follows: 16 S 355. Excelsior jobs program credit. 1. Excelsior jobs tax credit 17 component. A participant in the excelsior jobs program shall be eligible 18 to claim a credit for each net new job it creates in New York state. The 19 amount of such credit per job shall be equal to the [sum of the follow- 20 ing: five percent of the amount of remuneration equal to or less than 21 fifty thousand dollars; four percent of the amount of remuneration in 22 excess of fifty thousand dollars and equal to or less than seventy-five 23 thousand dollars; and 1.33 percent of the amount of remuneration in 24 excess of seventy-five thousand dollars. However, the amount of the 25 credit for each net new job shall not exceed five thousand dollars] 26 PRODUCT OF THE GROSS WAGES PAID AND 6.85 PERCENT. 27 2. Excelsior investment tax credit component. A participant in the 28 excelsior jobs program shall be eligible to claim a credit on qualified 29 investments. The credit shall be equal to two percent of the cost or 30 other basis for federal income tax purposes of the qualified investment. 31 A participant may not claim both the excelsior investment tax credit 32 component and the investment tax credit set forth in subdivision twelve 33 of section two hundred ten, subsection (a) of section six hundred six, 34 [or] subsection (i) of section fourteen hundred fifty-six, OR SUBDIVI- 35 SION (Q) OF SECTION FIFTEEN HUNDRED ELEVEN of the tax law for the same 36 property in any taxable year, EXCEPT THAT A PARTICIPANT MAY CLAIM BOTH 37 THE EXCELSIOR INVESTMENT TAX CREDIT COMPONENT AND THE INVESTMENT TAX 38 CREDIT FOR RESEARCH AND DEVELOPMENT PROPERTY. In addition, a taxpayer 39 who or which is qualified to claim the excelsior investment tax credit 40 component and is also qualified to claim the brownfield tangible proper- 41 ty credit component under section twenty-one of the tax law may claim 42 either the excelsior investment tax credit component or such tangible 43 property credit component, but not both with regard to a particular 44 piece of property. A credit may not be claimed until a business enter- 45 prise has received a certificate of tax credit, provided that qualified 46 investments made on or after the issuance of the certificate of eligi- 47 bility but before the issuance of the certificate of tax credit to the 48 business enterprise, may be claimed in the first taxable year for which 49 the business enterprise is allowed to claim the credit. Expenses 50 incurred prior to the date the certificate of eligibility is issued are 51 not eligible to be included in the calculation of the credit. 52 3. Excelsior research and development tax credit component. A partic- 53 ipant in the excelsior jobs program shall be eligible to claim a credit 54 equal to [ten] FIFTY percent of the portion of the participant's federal 55 research and development tax credit that relates to the participant's 56 research and development expenditures in New York state during the taxa- A. 4011--B 24 1 ble year; PROVIDED HOWEVER, THE EXCELSIOR RESEARCH AND DEVELOPMENT TAX 2 CREDIT SHALL NOT EXCEED THREE PERCENT OF THE QUALIFIED RESEARCH AND 3 DEVELOPMENT EXPENDITURES ATTRIBUTABLE TO ACTIVITIES CONDUCTED IN NEW 4 YORK STATE. If the federal research and development credit has expired, 5 then the research and development expenditures relating to the federal 6 research and development credit shall be calculated as if the federal 7 research and development credit structure and definition in effect in 8 two thousand nine were still in effect. NOTWITHSTANDING ANY OTHER 9 PROVISION OF THIS CHAPTER TO THE CONTRARY, RESEARCH AND DEVELOPMENT 10 EXPENDITURES IN THIS STATE, INCLUDING SALARY OR WAGE EXPENSES FOR JOBS 11 RELATED TO RESEARCH AND DEVELOPMENT ACTIVITIES IN THIS STATE, MAY BE 12 USED AS THE BASIS FOR THE EXCELSIOR RESEARCH AND DEVELOPMENT TAX CREDIT 13 COMPONENT AND THE QUALIFIED EMERGING TECHNOLOGY COMPANY FACILITIES, 14 OPERATIONS AND TRAINING CREDIT UNDER THE TAX LAW. 15 4. Excelsior real property tax credit COMPONENT. (A) A participant in 16 the excelsior jobs program who either qualified as a regionally signif- 17 icant project or is located in an investment zone shall be eligible to 18 claim a credit for a period of [five] TEN years. 19 (B) The credit IN YEAR ONE shall be equal to fifty percent of the 20 eligible real property taxes on the real property comprising the 21 regionally significant project or located in the investment zone [that 22 were assessed and paid in the year immediately prior to application]. In 23 the remaining years the credit shall be computed according to the 24 following schedule: 25 Year two: [forty] FORTY-FIVE percent of eligible real property taxes 26 on the real property comprising the regionally significant project or 27 located in the investment zone [that were assessed and paid in the year 28 immediately prior to application]; 29 Year three: [thirty] FORTY percent of eligible real property taxes on 30 the real property comprising the regionally significant project or 31 located in the investment zone [that were assessed and paid in the year 32 immediately prior to application]; 33 Year four: [twenty] THIRTY-FIVE percent of eligible real property 34 taxes on real property comprising the regionally significant project or 35 located in the investment zone [that were assessed and paid in the year 36 immediately prior to application]; [and] 37 Year five: [ten] THIRTY percent of eligible real property taxes on the 38 real property comprising the regionally significant project or located 39 in the investment zone [that were assessed and paid in the year imme- 40 diately prior to application]; 41 YEAR SIX: TWENTY-FIVE PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE 42 REAL PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED 43 IN THE INVESTMENT ZONE; 44 YEAR SEVEN: TWENTY PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL 45 PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE 46 INVESTMENT ZONE; 47 YEAR EIGHT: FIFTEEN PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE 48 REAL PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED 49 IN THE INVESTMENT ZONE; 50 YEAR NINE: TEN PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL 51 PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE 52 INVESTMENT ZONE; AND 53 YEAR TEN: FIVE PERCENT OF ELIGIBLE REAL PROPERTY TAXES ON THE REAL 54 PROPERTY COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE 55 INVESTMENT ZONE. A. 4011--B 25 1 (C) For purposes of this credit, the term "eligible real property 2 taxes" shall have the same meaning as in subdivision (e) of section 3 fifteen of the tax law, provided that such subdivision (e) shall be read 4 as if it specifically referenced the excelsior jobs program and partic- 5 ipants in that program. 6 (D) IN CALCULATING THE EXCELSIOR REAL PROPERTY TAX CREDIT AND DETER- 7 MINING THE MAXIMUM AGGREGATE AMOUNT OF SUCH CREDIT COMPONENT IN THE 8 PRELIMINARY SCHEDULE OF BENEFITS, THE COMMISSIONER SHALL INCLUDE ANY 9 IMPROVEMENTS PROJECTED TO BE MADE BY THE TAXPAYER TO THE PROPERTY 10 COMPRISING THE REGIONALLY SIGNIFICANT PROJECT OR LOCATED IN THE INVEST- 11 MENT ZONE AS LISTED IN ITS APPLICATION FOR PARTICIPATION IN THE EXCELS- 12 IOR JOBS PROGRAM. 13 5. Refundability of credits. The tax credit components established in 14 this section shall be refundable as provided in the tax law. If a 15 participant fails to satisfy the eligibility criteria in any one year, 16 it will lose the ability to claim credit for that year. The event of 17 such failure shall not extend the original [five-year] TEN-YEAR eligi- 18 bility period. 19 6. Claim of tax credit. The business enterprise shall be allowed to 20 claim the credit as prescribed in section thirty-one of the tax law. 21 7. FOR AVAILABILITY OF SPECIAL EXCELSIOR JOBS PROGRAM RATES GOVERNING 22 THE PROVISION OF GAS OR ELECTRIC SERVICE, SEE SUBDIVISION TWELVE-D OF 23 SECTION SIXTY-SIX OF THE PUBLIC SERVICE LAW. SUCH SPECIAL EXCELSIOR JOBS 24 PROGRAM RATES MAY REMAIN AVAILABLE TO PARTICIPANTS AS DEFINED IN THIS 25 ARTICLE FOR A PERIOD OF UP TO TEN YEARS COMMENCING IN THE FIRST TAXABLE 26 YEAR THAT THE PARTICIPANT RECEIVES A CERTIFICATE OF TAX CREDIT, OR THE 27 FIRST TAXABLE YEAR LISTED ON ITS PRELIMINARY SCHEDULE OF BENEFITS, 28 WHICHEVER IS LATER. PROVIDED HOWEVER, IF A PARTICIPANT IS REMOVED FROM 29 THE EXCELSIOR JOBS PROGRAM PURSUANT TO THIS ARTICLE, THE EXCELSIOR JOBS 30 PROGRAM RATES MAY BE DENIED. 31 S 5. Subdivision 3 of section 356 of the economic development law, as 32 added by section 1 of part MM of chapter 59 of the laws of 2010, is 33 amended to read as follows: 34 3. The commissioner shall solely determine the eligibility of any 35 applicant applying for entry into the program and shall remove any 36 participant from the program for failing to meet any of the requirements 37 set forth in subdivision two of section three hundred fifty-four of this 38 article, or for failing to meet the minimum job or investment require- 39 ments set forth in subdivisions [two] THREE and [three] FOUR of section 40 three hundred fifty-three of this article. 41 S 6. Section 359 of the economic development law, as added by section 42 1 of part MM of chapter 59 of the laws of 2010, is amended to read as 43 follows: 44 S 359. Cap on tax credit. The total amount of tax credits listed on 45 certificates of tax credit issued by the commissioner for any taxable 46 year may not exceed the limitations set forth in this section. Any 47 amount of tax credits not awarded for a particular taxable year may not 48 be used by the commissioner to award tax credits in another taxable 49 year. 50 Credit components in the aggregate With respect to 51 shall not exceed: taxable years 52 beginning in: 53 $ 50 million 2011 54 $ 100 million 2012 A. 4011--B 26 1 $ 150 million 2013 2 $ 200 million 2014 3 $ 250 million 2015 4 $ 200 million 2016 5 $ [150] 200 million 2017 6 $ [100] 200 million 2018 7 $ [50] 200 million 2019 8 $ 200 MILLION 2020 9 $ 200 MILLION 2021 10 $ 150 MILLION 2022 11 $ 100 MILLION 2023 12 $ 50 MILLION 2024 13 Twenty-five percent of tax credits shall be allocated to businesses 14 accepted into the program under subdivision [three] FOUR of section 15 three hundred fifty-three of this article and seventy-five percent of 16 tax credits shall be allocated to businesses accepted into the program 17 under subdivision [two] THREE of section three hundred fifty-three of 18 this article. 19 Provided, however, if by September thirtieth of a calendar year, the 20 department has not allocated the full amount of credits available in 21 that year to either: (i) businesses accepted into the program under 22 subdivision [three] FOUR of section three hundred fifty-three of this 23 article or (ii) businesses accepted into the program under subdivision 24 [two] THREE of section three hundred fifty-three of this article, the 25 commissioner may allocate any remaining tax credits to businesses refer- 26 enced in paragraphs (i) and (ii) of this section as needed; provided, 27 however, that under no circumstances may the statutory cap be exceeded. 28 S 7. Subdivisions (a), (b) and (f) of section 31 of the tax law, as 29 added by section 2 of part MM of chapter 59 of the laws of 2010, are 30 amended to read as follows: 31 (a) General. A taxpayer subject to tax under article nine-A, twenty- 32 two, thirty-two or thirty-three of this chapter shall be allowed a cred- 33 it against such tax, pursuant to the provisions referenced in subdivi- 34 sion (g) of this section. The amount of the credit, allowable for up to 35 [five] TEN consecutive taxable years, is the sum of the following four 36 credit components: 37 (1) the excelsior jobs tax credit COMPONENT; 38 (2) the excelsior investment tax credit COMPONENT; 39 (3) the excelsior research and development tax credit COMPONENT; and 40 (4) the excelsior real property tax credit COMPONENT. 41 (b) To be eligible for the excelsior jobs program credit, the taxpayer 42 shall have been issued a "certificate of tax credit" by the department 43 of economic development pursuant to subdivision four of section three 44 hundred fifty-four of the economic development law, which certificate 45 shall set forth the amount of each credit component that may be claimed 46 for the taxable year. A taxpayer may claim such credit for [five] TEN 47 consecutive taxable years commencing in the first taxable year that the 48 taxpayer receives a certificate of tax credit or the first taxable year 49 listed on its preliminary schedule of benefits, whichever is later. The 50 taxpayer shall be allowed to claim only the amount listed on the certif- 51 icate of tax credit for that taxable year. Such certificate [should] 52 MUST be attached to the taxpayer's return. No cost or expense paid or 53 incurred by the taxpayer shall be the basis for more than one component 54 of this credit or any other tax credit, EXCEPT AS PROVIDED IN SECTION 55 THREE HUNDRED FIFTY-FIVE OF THE ECONOMIC DEVELOPMENT LAW. A. 4011--B 27 1 (f) Credit recapture. If a certificate of eligibility or a certificate 2 of tax credit issued by the department of economic development under 3 article seventeen of the economic development law is revoked by such 4 department BECAUSE THE TAXPAYER DOES NOT MEET THE ELIGIBILITY REQUIRE- 5 MENT SET FORTH IN SUBDIVISION SIX OF SECTION THREE HUNDRED FIFTY-THREE 6 OF THE ECONOMIC DEVELOPMENT LAW, the amount of credit described in this 7 section and claimed by the taxpayer prior to that revocation shall be 8 added back to [income] TAX in the taxable year in which any such revoca- 9 tion becomes final. 10 S 8. Section 66 of the public service law is amended by adding a new 11 subdivision 12-d to read as follows: 12 12-D. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, UPON APPLICATION OF 13 A GAS OR ELECTRIC CORPORATION, THE COMMISSION SHALL AUTHORIZE SUCH 14 CORPORATION TO CHARGE A SPECIAL EXCELSIOR JOBS PROGRAM RATE EQUAL TO THE 15 INCREMENTAL COST OF PROVIDING SERVICE TO PARTICIPANTS IN THE EXCELSIOR 16 JOBS PROGRAM AS DEFINED IN ARTICLE SEVENTEEN OF THE ECONOMIC DEVELOPMENT 17 LAW. 18 S 9. This act shall take effect immediately. 19 PART H 20 Intentionally omitted. 21 PART I 22 Section 1. The opening paragraph of paragraph 1 of subsection (b) of 23 section 1101 of the insurance law, as amended by chapter 614 of the laws 24 of 1997, is amended to read as follows: 25 Except as provided in paragraph two, three [or], three-a, OR SEVEN of 26 this subsection, any of the following acts in this state, effected by 27 mail from outside this state or otherwise, by any person, firm, associ- 28 ation, corporation or joint-stock company shall constitute doing an 29 insurance business in this state and shall constitute doing business in 30 the state within the meaning of section three hundred two of the civil 31 practice law and rules: 32 S 2. Subparagraph (H) of paragraph 2 of subsection (b) of section 1101 33 of the insurance law is amended to read as follows: 34 (H) transactions with respect to insurance contracts negotiated or 35 placed pursuant to subsection (b) [or], (c), OR (J) of section two thou- 36 sand one hundred seventeen of this chapter; 37 S 3. Subsection (b) of section 1101 of the insurance law is amended by 38 adding a new paragraph 7 to read as follows: 39 (7)(A) NOTWITHSTANDING THE FOREGOING, THE MAKING OF A SWAP SHALL NOT 40 CONSTITUTE DOING AN INSURANCE BUSINESS IN THIS STATE. 41 (B) FOR THE PURPOSES OF THIS PARAGRAPH, "SWAP" SHALL HAVE THE MEANING 42 SET FORTH IN 7 U.S.C. S 1A. 43 S 4. Section 2101 of the insurance law is amended by adding two new 44 subsections (w) and (x) to read as follows: 45 (W) IN THIS ARTICLE, "STATE" MEANS THE DISTRICT OF COLUMBIA OR ANY 46 STATE OR TERRITORY OF THE UNITED STATES. 47 (X) IN THIS ARTICLE, WITH RESPECT TO EXCESS LINE INSURANCE AND EXCESS 48 LINE BROKERS: 49 (1) WITH RESPECT TO AN INSURED'S HOME STATE, "AFFILIATED GROUP" MEANS 50 ANY GROUP OF ENTITIES THAT ARE ALL AFFILIATED. FOR THE PURPOSES OF THIS 51 PARAGRAPH: A. 4011--B 28 1 (A) "AFFILIATE" MEANS, WITH RESPECT TO AN INSURED, ANY ENTITY THAT 2 CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH THE INSURED; 3 AND 4 (B) AN ENTITY HAS CONTROL OVER ANOTHER ENTITY IF THE ENTITY: 5 (I) DIRECTLY OR INDIRECTLY OR ACTING THROUGH ONE OR MORE OTHER PERSONS 6 OWNS, CONTROLS, OR HAS THE POWER TO VOTE TWENTY-FIVE PERCENT OR MORE OF 7 ANY CLASS OF VOTING SECURITIES OF THE OTHER ENTITY; OR 8 (II) CONTROLS IN ANY MANNER THE ELECTION OF A MAJORITY OF THE DIREC- 9 TORS OR TRUSTEES OF THE OTHER ENTITY; 10 (2) "EXEMPT COMMERCIAL PURCHASER" MEANS ANY PERSON PURCHASING COMMER- 11 CIAL INSURANCE THAT, AT THE TIME OF PLACEMENT, MEETS THE FOLLOWING 12 REQUIREMENTS: 13 (A) THE PERSON EMPLOYS OR RETAINS A QUALIFIED RISK MANAGER TO NEGOTI- 14 ATE INSURANCE COVERAGE; 15 (B) THE PERSON HAS PAID AGGREGATE NATIONWIDE COMMERCIAL 16 PROPERTY/CASUALTY INSURANCE PREMIUMS IN EXCESS OF ONE HUNDRED THOUSAND 17 DOLLARS IN THE IMMEDIATELY PRECEDING TWELVE MONTHS; AND 18 (C) (I) THE PERSON MEETS AT LEAST ONE OF THE FOLLOWING CRITERIA: 19 (I) THE PERSON POSSESSES A NET WORTH IN EXCESS OF TWENTY MILLION 20 DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO ITEM (II) OF THIS 21 SUBPARAGRAPH; 22 (II) THE PERSON GENERATES ANNUAL REVENUES IN EXCESS OF FIFTY MILLION 23 DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO ITEM (II) OF THIS 24 SUBPARAGRAPH; 25 (III) THE PERSON EMPLOYS MORE THAN FIVE HUNDRED FULL-TIME OR FULL-TIME 26 EQUIVALENT EMPLOYEES PER INDIVIDUAL INSURED OR IS A MEMBER OF AN AFFIL- 27 IATED GROUP EMPLOYING MORE THAN ONE THOUSAND EMPLOYEES IN THE AGGREGATE; 28 (IV) THE PERSON IS A NOT-FOR-PROFIT ORGANIZATION OR PUBLIC ENTITY 29 GENERATING ANNUAL BUDGETED EXPENDITURES OF AT LEAST THIRTY MILLION 30 DOLLARS, AS SUCH AMOUNT IS ADJUSTED PURSUANT TO ITEM (II) OF THIS 31 SUBPARAGRAPH; OR 32 (V) THE PERSON IS A MUNICIPALITY WITH A POPULATION IN EXCESS OF FIFTY 33 THOUSAND PERSONS; 34 (II) EFFECTIVE ON THE FIFTH JANUARY FIRST OCCURRING AFTER JULY TWEN- 35 TY-FIRST, TWO THOUSAND TEN AND EACH FIFTH JANUARY FIRST OCCURRING THERE- 36 AFTER, THE AMOUNTS IN CLAUSES (I), (II), AND (IV) OF ITEM (I) OF THIS 37 SUBPARAGRAPH SHALL BE ADJUSTED TO REFLECT THE PERCENTAGE CHANGE FOR SUCH 38 FIVE-YEAR PERIOD IN THE CONSUMER PRICE INDEX FOR ALL URBAN CONSUMERS 39 PUBLISHED BY THE BUREAU OF LABOR STATISTICS OF THE UNITES STATES DEPART- 40 MENT OF LABOR; 41 (3) "INSURED'S HOME STATE" MEANS: 42 (A) THE STATE IN WHICH AN INSURED MAINTAINS ITS PRINCIPAL PLACE OF 43 BUSINESS OR, IN THE CASE OF AN INDIVIDUAL, THE INDIVIDUAL'S PRINCIPAL 44 RESIDENCE; 45 (B) IF ONE HUNDRED PERCENT OF THE INSURED RISK IS LOCATED OUTSIDE OF 46 THE STATE REFERRED TO IN SUBPARAGRAPH (A) OF THIS PARAGRAPH, THEN THE 47 STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM 48 FOR THAT INSURANCE CONTRACT IS ALLOCATED; 49 (C) IF MORE THAN ONE INSURED FROM AN AFFILIATED GROUP ARE NAMED 50 INSUREDS ON A SINGLE INSURANCE CONTRACT, THEN THE INSURED'S HOME STATE, 51 AS DETERMINED PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE 52 MEMBER OF THE AFFILIATED GROUP THAT HAS THE LARGEST PERCENTAGE OF PREMI- 53 UM ATTRIBUTED TO IT UNDER SUCH INSURANCE CONTRACT; OR 54 (D) IN THE CASE OF A GROUP POLICY: 55 (I) WHEN THE GROUP POLICYHOLDER PAYS ONE HUNDRED PERCENT OF THE PREMI- 56 UM FROM ITS OWN FUNDS, THEN THE INSURED'S HOME STATE, AS DETERMINED A. 4011--B 29 1 PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE GROUP POLICYHOLD- 2 ER; OR 3 (II) WHEN THE GROUP POLICYHOLDER DOES NOT PAY ONE HUNDRED PERCENT OF 4 THE PREMIUM FROM ITS OWN FUNDS, THEN THE HOME STATE, AS DETERMINED 5 PURSUANT TO SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE GROUP MEMBER; 6 (4) WITH RESPECT TO DETERMINING AN INSURED'S HOME STATE, "PRINCIPAL 7 PLACE OF BUSINESS" MEANS THE STATE WHERE: 8 (A) THE INSURED MAINTAINS ITS HEADQUARTERS AND WHERE THE INSURED'S 9 HIGH-LEVEL OFFICERS DIRECT, CONTROL, AND COORDINATE THE BUSINESS ACTIV- 10 ITIES; OR 11 (B) IF THE INSURED'S HIGH-LEVEL OFFICERS DIRECT, CONTROL, AND COORDI- 12 NATE THE BUSINESS ACTIVITIES IN MORE THAN ONE STATE, OR IF THE INSURED'S 13 PRINCIPAL PLACE OF BUSINESS IS LOCATED OUTSIDE ANY STATE, THEN THE STATE 14 TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR 15 THAT INSURANCE CONTRACT IS ALLOCATED; 16 (5) WITH RESPECT TO DETERMINING AN INSURED'S HOME STATE, "PRINCIPAL 17 RESIDENCE" MEANS THE STATE: 18 (A) WHERE THE INDIVIDUAL RESIDES FOR THE GREATEST NUMBER OF DAYS 19 DURING A CALENDAR YEAR; OR 20 (B) IF THE INSURED'S PRINCIPAL RESIDENCE IS LOCATED OUTSIDE ANY STATE, 21 THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE 22 PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED; 23 (6) "PROPERTY/CASUALTY INSURANCE" MEANS ANY KIND OF INSURANCE AS SPEC- 24 IFIED IN SUBSECTION (A) OF SECTION ONE THOUSAND ONE HUNDRED THIRTEEN OF 25 THIS CHAPTER, EXCEPT INSURANCE ISSUED PURSUANT TO PARAGRAPH ONE, TWO, 26 THREE, FIFTEEN, EIGHTEEN OR THIRTY-ONE OF SUBSECTION (A) OF SECTION ONE 27 THOUSAND ONE HUNDRED THIRTEEN OF THIS CHAPTER OR INSURANCE SUBSTANTIALLY 28 SIMILAR THERETO; AND 29 (7) WITH RESPECT TO AN EXEMPT COMMERCIAL PURCHASER, "QUALIFIED RISK 30 MANAGER" MEANS, WITH RESPECT TO A POLICYHOLDER OF COMMERCIAL INSURANCE, 31 A PERSON WHO MEETS ALL OF THE FOLLOWING REQUIREMENTS: 32 (A) THE PERSON IS AN EMPLOYEE OF, OR THIRD-PARTY CONSULTANT RETAINED 33 BY, THE COMMERCIAL POLICYHOLDER; 34 (B) THE PERSON PROVIDES SKILLED SERVICES IN LOSS PREVENTION, LOSS 35 REDUCTION, OR RISK AND INSURANCE COVERAGE ANALYSIS, AND PURCHASE OF 36 INSURANCE; 37 (C) THE PERSON: 38 (I)(I) HAS A BACHELOR'S DEGREE OR HIGHER FROM AN ACCREDITED COLLEGE OR 39 UNIVERSITY IN RISK MANAGEMENT, BUSINESS ADMINISTRATION, FINANCE, ECONOM- 40 ICS, OR ANY OTHER FIELD DETERMINED BY THE SUPERINTENDENT TO DEMONSTRATE 41 MINIMUM COMPETENCE IN RISK MANAGEMENT; AND 42 (II)(AA) HAS THREE YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS 43 ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE ANALYSIS, OR 44 PURCHASING COMMERCIAL LINES OF INSURANCE; OR 45 (BB) HAS: 46 (AAA) A DESIGNATION AS A CHARTERED PROPERTY AND CASUALTY UNDERWRITER 47 (IN THIS CLAUSE REFERRED TO AS A "CPCU") ISSUED BY THE AMERICAN INSTI- 48 TUTE FOR CPCU/INSURANCE INSTITUTE OF AMERICA; 49 (BBB) A DESIGNATION AS AN ASSOCIATE IN RISK MANAGEMENT (ARM) ISSUED BY 50 THE AMERICAN INSTITUTE FOR CPCU/INSURANCE INSTITUTE OF AMERICA; 51 (CCC) A DESIGNATION AS CERTIFIED RISK MANAGER (CRM) ISSUED BY THE 52 NATIONAL ALLIANCE FOR INSURANCE EDUCATION & RESEARCH; 53 (DDD) A DESIGNATION AS A RISK AND INSURANCE MANAGEMENT SOCIETY (RIMS) 54 FELLOW (RF) ISSUED BY THE GLOBAL RISK MANAGEMENT INSTITUTE; OR 55 (EEE) ANY OTHER DESIGNATION, CERTIFICATION, OR LICENSE DETERMINED BY 56 THE SUPERINTENDENT TO DEMONSTRATE MINIMUM COMPETENCY IN RISK MANAGEMENT; A. 4011--B 30 1 (II) (I) HAS AT LEAST SEVEN YEARS OF EXPERIENCE IN RISK FINANCING, 2 CLAIMS ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE COVERAGE 3 ANALYSIS, OR PURCHASING COMMERCIAL LINES OF INSURANCE; AND 4 (II) HAS ANY ONE OF THE DESIGNATIONS SPECIFIED IN SUBCLAUSES (AAA) 5 THROUGH (EEE) OF SUBITEM (BB) OF CLAUSE (II) OF ITEM (I) OF THIS SUBPAR- 6 AGRAPH; 7 (III) HAS AT LEAST TEN YEARS OF EXPERIENCE IN RISK FINANCING, CLAIMS 8 ADMINISTRATION, LOSS PREVENTION, RISK AND INSURANCE COVERAGE ANALYSIS, 9 OR PURCHASING COMMERCIAL LINES OF INSURANCE; OR 10 (IV) HAS A GRADUATE DEGREE FROM AN ACCREDITED COLLEGE OR UNIVERSITY IN 11 RISK MANAGEMENT, BUSINESS ADMINISTRATION, FINANCE, ECONOMICS, OR ANY 12 OTHER FIELD DETERMINED BY THE SUPERINTENDENT TO DEMONSTRATE MINIMUM 13 COMPETENCE IN RISK MANAGEMENT. 14 S 5. Paragraphs 7 and 8 of subsection (c) of section 2101 of the 15 insurance law, as added by chapter 687 of the laws of 2003, are amended 16 and a new paragraph 9 is added to read as follows: 17 (7) a person whose activities in this state are limited to advertising 18 without the intent to solicit insurance in this state through communi- 19 cations in printed publications or other forms of electronic mass media 20 whose distribution is not limited to residents of the state, provided 21 that the person does not sell, solicit or negotiate insurance that would 22 insure risks residing, located or to be performed in this state; [or] 23 (8) a person who is not a resident of this state who sells, solicits 24 or negotiates a contract for commercial property/casualty risks to an 25 insured with risks located in more than one state insured under that 26 contract, provided that such person is otherwise licensed as an insur- 27 ance producer to sell, solicit or negotiate that insurance in the state 28 where the insured maintains its principal place of business and the 29 contract of insurance insures risks located in that state[.]; OR 30 (9) A PERSON WHO IS NOT A RESIDENT OF THIS STATE WHO SELLS, SOLICITS 31 OR NEGOTIATES A CONTRACT OF PROPERTY/CASUALTY INSURANCE, AS DEFINED IN 32 PARAGRAPH SIX OF SUBSECTION (X) OF THIS SECTION, TO OR FOR AN INSURED, 33 WITH REGARD TO AN UNAUTHORIZED INSURER, PROVIDED THAT: (A) THE INSURED'S 34 HOME STATE IS A STATE OTHER THAN THIS STATE; (B) SUCH PERSON IS OTHER- 35 WISE LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE IN THE 36 INSURED'S HOME STATE; AND (C) THE PERSON DOES NOT PERFORM THE DILIGENT 37 SEARCH REQUIRED BY SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THIS 38 ARTICLE. 39 S 6. Paragraphs 9 and 10 of subsection (k) of section 2101 of the 40 insurance law, as added by chapter 687 of the laws of 2003, are amended 41 and a new paragraph 11 is added to read as follows: 42 (9) a person who is not a resident of this state who sells, solicits 43 or negotiates a contract of insurance for commercial property/casualty 44 risks to an insured with risks located in more than one state insured 45 under that contract, provided that such person is otherwise licensed as 46 an insurance producer to sell, solicit or negotiate that insurance in 47 the state where the insured maintains its principal place of business 48 and the contract of insurance insures risks located in that state; [or] 49 (10) any salaried full-time employee who counsels or advises his or 50 her employer relative to the insurance interests of the employer or of 51 the subsidiaries or business affiliates of the employer, provided that 52 the employee does not sell or solicit insurance or receive a commis- 53 sion[.]; OR 54 (11) A PERSON WHO IS NOT A RESIDENT OF THIS STATE WHO SELLS, SOLICITS 55 OR NEGOTIATES A CONTRACT OF PROPERTY/CASUALTY INSURANCE, AS DEFINED IN 56 PARAGRAPH SIX OF SUBSECTION (X) OF THIS SECTION, TO OR FOR AN INSURED, A. 4011--B 31 1 WITH REGARD TO AN UNAUTHORIZED INSURER, PROVIDED THAT: (A) THE INSURED'S 2 HOME STATE IS A STATE OTHER THAN THIS STATE; (B) SUCH PERSON IS OTHER- 3 WISE LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE IN THE 4 INSURED'S HOME STATE; AND (C) THE PERSON DOES NOT PERFORM THE DILIGENT 5 SEARCH REQUIRED BY SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THIS 6 ARTICLE. 7 S 7. Paragraph 1 of subsection (a) of section 2102 of the insurance 8 law, as amended by chapter 499 of the laws of 2009, is amended to read 9 as follows: 10 (1) (A) No person, firm, association or corporation shall act as an 11 insurance producer, insurance adjuster or life settlement broker in this 12 state without having authority to do so by virtue of a license issued 13 and in force pursuant to the provisions of this chapter. 14 (B) NO PERSON, FIRM, ASSOCIATION OR CORPORATION SHALL ACT AS AN EXCESS 15 LINE BROKER IN THIS STATE WITHOUT HAVING AUTHORITY TO DO SO BY VIRTUE OF 16 A LICENSE ISSUED AND IN FORCE PURSUANT TO SECTION TWO THOUSAND ONE 17 HUNDRED FIVE OF THIS ARTICLE, PROVIDED, HOWEVER, THAT SUCH PERSON, FIRM, 18 ASSOCIATION OR CORPORATION SHALL NOT BE REQUIRED TO BE LICENSED TO ACT 19 AS AN EXCESS LINE BROKER WHERE THE INSURED'S HOME STATE IS A STATE OTHER 20 THAN THIS STATE AND SUCH PERSON, FIRM, ASSOCIATION OR CORPORATION IS 21 OTHERWISE LICENSED TO SELL, SOLICIT OR NEGOTIATE EXCESS LINE INSURANCE 22 IN THE INSURED'S HOME STATE. 23 S 8. Subsection (a) of section 2105 of the insurance law, as amended 24 by chapter 626 of the laws of 2006, is amended to read as follows: 25 (a) The superintendent may issue an excess line broker's license to 26 any person, firm, association or corporation who or which [is domiciled 27 or maintains an office in this state and] is licensed as an insurance 28 broker under section two thousand one hundred four of this article, or 29 who or which is licensed as an excess line broker in the licensee's home 30 state, provided, however, that the applicant's home state grants non-re- 31 sident licenses to residents of this state on the same basis, except 32 that reciprocity is not required in regard to the placement of liability 33 insurance on behalf of a purchasing group or any of its members; author- 34 izing such person, firm, association or corporation to procure, subject 35 to the restrictions herein provided, policies of insurance from insurers 36 which are not authorized to transact business in this state of the kind 37 or kinds of insurance specified in paragraphs four through fourteen, 38 sixteen, seventeen, nineteen, twenty, twenty-two, twenty-seven, twenty- 39 eight and thirty-one of subsection (a) of section one thousand one 40 hundred thirteen of this chapter and in subsection (h) of this section, 41 provided, however, that the provisions of this section and section two 42 thousand one hundred eighteen of this article shall not apply to ocean 43 marine insurance and other contracts of insurance enumerated in 44 subsections (b) and (c) of section two thousand one hundred seventeen of 45 this article. Such license may be suspended or revoked by the super- 46 intendent whenever in his OR HER judgment such suspension or revocation 47 will best promote the interests of the people of this state. 48 S 9. Section 2117 of the insurance law is amended by adding a new 49 subsection (j) to read as follows: 50 (J) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, A PERSON WHO IS 51 NOT A RESIDENT OF THIS STATE MAY SELL, SOLICIT OR NEGOTIATE A CONTRACT 52 OF PROPERTY/CASUALTY INSURANCE TO OR FOR AN INSURED, WITH REGARD TO AN 53 UNAUTHORIZED INSURER, PROVIDED THAT: (1) THE INSURED'S HOME STATE IS A 54 STATE OTHER THAN THIS STATE; (2) THE PERSON IS LICENSED TO SELL, SOLICIT 55 OR NEGOTIATE EXCESS LINE INSURANCE IN THE INSURED'S HOME STATE; AND (3) 56 EITHER THE PERSON IS LICENSED AS AN INSURANCE BROKER IN THIS STATE OR A. 4011--B 32 1 THE PERSON DOES NOT PERFORM THE DILIGENT SEARCH REQUIRED BY SECTION TWO 2 THOUSAND ONE HUNDRED EIGHTEEN OF THIS ARTICLE. 3 S 10. Paragraph 1 of subsection (b) of section 2118 of the insurance 4 law, as amended by chapter 630 of the laws of 1988, is amended to read 5 as follows: 6 (1) Within [forty-five] THIRTY days after a policy is procured, a 7 licensee shall submit the declarations page or cover note of every poli- 8 cy procured under his or her license to the excess line association 9 established pursuant to section two thousand one hundred thirty of this 10 article for recording and stamping. In the event that no declarations 11 page or cover note is available to the licensee, within [forty-five] 12 THIRTY days after the policy is procured, the licensee shall submit a 13 binder to the excess line association in lieu of such declarations page 14 or cover note. In the event that a binder is submitted to the excess 15 line association, the licensee shall submit the declarations page or 16 cover note to the excess line association promptly upon receipt. Every 17 insurance document submitted to the excess line association pursuant to 18 this subsection shall set forth: 19 (A) the name and address of the insured; 20 (B) the gross premium charged; 21 (C) the name of the unauthorized insurer; and 22 (D) the kind of insurance procured. 23 S 10-a. Paragraphs 8 and 9 of subsection (b) of section 2118 of the 24 insurance law are REPEALED. 25 S 11. Subparagraph (A) of paragraph 3 of subsection (b) of section 26 2118 of the insurance law, as amended by chapter 498 of the laws of 27 1996, is amended and a new subparagraph (F) is added to read as follows: 28 (A) [The] EXCEPT AS PROVIDED IN SUBPARAGRAPH (F) OF THIS PARAGRAPH, 29 submission of insurance documents to the excess line association shall 30 be accompanied by a statement subscribed to, and affirmed by, the licen- 31 see or sublicensee as true under the penalties of perjury that, after 32 diligent effort, the full amount of insurance required could not be 33 procured, from authorized insurers, each of which is authorized to write 34 insurance of the kind requested and which the licensee has reason to 35 believe might consider writing the type of coverage or class of insur- 36 ance involved, and further showing that the amount of insurance procured 37 from an unauthorized insurer is only the excess over the amount procura- 38 ble from an authorized insurer. The licensee, however, shall be excused 39 from affirming that a diligent effort, as defined above, was made to 40 procure the coverage from authorized insurers if the licensee's affida- 41 vit is accompanied by the affidavit of another broker involved in the 42 placement affirming as true under the penalties of perjury that, after 43 diligent effort by the affirming broker, the required insurance could 44 not be procured from an authorized insurer which the affirming broker 45 had reason to believe might consider writing the type of coverage or 46 class of insurance involved. The licensee and the affirming broker shall 47 be excused from affirming that a diligent effort was made if the super- 48 intendent determines, pursuant to paragraph four of this subsection, 49 that no declinations are required. 50 (F) A LICENSEE SEEKING TO PROCURE OR PLACE INSURANCE IN THIS STATE FOR 51 AN EXEMPT COMMERCIAL PURCHASER SHALL NOT BE REQUIRED TO SATISFY ANY 52 REQUIREMENT OF THIS STATE TO MAKE A DUE DILIGENCE SEARCH TO DETERMINE 53 WHETHER THE FULL AMOUNT OR TYPE OF INSURANCE SOUGHT BY THE EXEMPT 54 COMMERCIAL PURCHASER CAN BE OBTAINED FROM AUTHORIZED INSURERS IF: 55 (I) THE LICENSEE PROCURING OR PLACING THE EXCESS LINE INSURANCE HAS 56 DISCLOSED TO THE EXEMPT COMMERCIAL PURCHASER THAT THE INSURANCE MAY OR A. 4011--B 33 1 MAY NOT BE AVAILABLE FROM THE AUTHORIZED MARKET THAT MAY PROVIDE GREATER 2 PROTECTION WITH MORE REGULATORY OVERSIGHT; AND 3 (II) THE EXEMPT COMMERCIAL PURCHASER HAS SUBSEQUENTLY REQUESTED IN 4 WRITING THAT THE LICENSEE PROCURE OR PLACE THE INSURANCE FROM AN UNAU- 5 THORIZED INSURER. 6 S 12. Subsection (d) of section 2118 of the insurance law, as amended 7 by chapter 220 of the laws of 1986, paragraph 1 as amended by chapter 8 190 of the laws of 1990, is amended to read as follows: 9 (d) (1) [Every] WHERE THIS STATE IS THE INSURED'S HOME STATE, A 10 person, firm, association or corporation licensed pursuant to the 11 provisions of section two thousand one hundred five of this article 12 shall pay to the superintendent a sum equal to three and six-tenths 13 percent of the gross premiums charged the insureds by the insurers for 14 insurance procured by such licensee pursuant to such license, less the 15 amount of such premiums returned to such insureds. [Where the insurance 16 covers property or risks located or resident both in and out of this 17 state, the sum payable shall be computed on that portion of the gross 18 premiums allocated to this state pursuant to subsection (b) of section 19 nine thousand one hundred two of this chapter less the amount of gross 20 premiums allocated to this state and returned to the insured.] 21 (2) The amount of such payments which represents a sum equal to three 22 percent of fire insurance premiums shall be distributed by the super- 23 intendent as prescribed in section nine thousand one hundred five of 24 this chapter, and the balance thereof shall be paid over by the super- 25 intendent to the state treasurer. 26 (3) Such licensee shall be required to make such payments to the 27 superintendent QUARTERLY on the fifteenth day of [March of each year]: 28 (A) FEBRUARY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY OF 29 DECEMBER; (B) MAY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY 30 OF MARCH; (C) AUGUST FOR THE QUARTER ENDING THE PRECEDING THIRTIETH DAY 31 OF JUNE; AND (D) NOVEMBER FOR THE QUARTER ENDING THE PRECEDING THIRTIETH 32 DAY OF SEPTEMBER, for the taxes on all policies procured by such licen- 33 see, pursuant to such license, during the next preceding [calendar year] 34 QUARTER, and on EACH such PAYMENT date such licensee shall also file 35 with the superintendent a return in the form prescribed by the super- 36 intendent, showing such information as may be necessary for the proper 37 distribution of such payments. 38 S 13. Paragraph 5 of subsection (a) of section 2130 of the insurance 39 law, as added by chapter 630 of the laws of 1988, is amended to read as 40 follows: 41 (5) prepare and deliver to each licensee and to the superintendent 42 [annually] the reports of excess line business ON THE SEVENTH DAY OF: 43 (A) FEBRUARY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY OF 44 DECEMBER; (B) MAY FOR THE QUARTER ENDING THE PRECEDING THIRTY-FIRST DAY 45 OF MARCH; (C) AUGUST FOR THE QUARTER ENDING THE PRECEDING THIRTIETH DAY 46 OF JUNE; AND (D) NOVEMBER FOR THE QUARTER ENDING THE PRECEDING THIRTIETH 47 DAY OF SEPTEMBER, which reports shall include a delineation of the 48 classes and kinds of business procured during the preceding calendar 49 year in such form as the superintendent may prescribe; 50 S 14. Section 9102 of the insurance law, as amended by chapter 190 of 51 the laws of 1990, subsection (c) as amended by chapter 73 of the laws of 52 1991, is amended to read as follows: 53 S 9102. Allocation of premiums. [(a)] In determining the amount of 54 direct premiums taxable in this state, all such premiums written, 55 procured, or received in this state shall be deemed written on property A. 4011--B 34 1 or risks located or resident in this state except such premiums properly 2 allocated and reported as taxable premiums of any other state or states. 3 [(b) (1) In determining the amount of gross premiums taxable in this 4 state pursuant to paragraph one of subsection (d) of section two thou- 5 sand one hundred eighteen of this chapter, where a placement of excess 6 line insurance covers property or risks located or resident both in and 7 out of this state, the sum paid to the superintendent shall be computed 8 on that portion of the policy premium that is attributable to property 9 or risks located or resident in this state, as determined by reference 10 to an allocation schedule prescribed by the superintendent in a regu- 11 lation. 12 (2) If the allocation schedule does not identify a classification 13 appropriate to the property or risk being insured, an alternative method 14 of equitable allocation shall be used for such coverage. In that circum- 15 stance, documented evidence of the underwriting bases and other criteria 16 used by the insurer shall be given significant weight by the superinten- 17 dent. 18 (3) The licensee shall report the method of allocation utilized in a 19 form and in a manner prescribed by the superintendent in a regulation. 20 Where the licensee bases the allocation on an alternative method of 21 equitable allocation, such licensee shall provide additional information 22 in support of the allocation as the superintendent may require. 23 (4) If the superintendent reasonably determines that the information 24 provided is insufficient to substantiate the method of allocation or 25 that the method used is incorrect, the superintendent shall determine 26 the sum to be paid in accordance with the method prescribed by the 27 superintendent in the regulation. The superintendent's determination of 28 the sum to be paid shall finally and irrevocably fix the tax unless, 29 within thirty days of notification of the superintendent's determi- 30 nation, the licensee requests a hearing to dispute such determination. 31 (c) (1) Any licensee who allocated the premium tax for any of the six 32 years prior to the effective date of this subsection shall not be liable 33 for the payment of any additional premium tax that would have been due 34 had the licensee not allocated, unless the superintendent determines 35 that the method of allocation was inequitable. 36 (2) The superintendent's determination under this subsection shall be 37 in accordance with the procedures in paragraph four of subsection (b) of 38 this section. Documented evidence of the underwriting bases and other 39 criteria used by the insurer shall be given significant weight by the 40 superintendent. 41 (3) Nothing in this subsection shall entitle a licensee to a refund of 42 taxes previously paid.] 43 S 15. The general municipal law is amended by adding a new section 25 44 to read as follows: 45 S 25. PROCUREMENT OF EXCESS LINE INSURANCE. NOTWITHSTANDING SUBPARA- 46 GRAPH (F) OF PARAGRAPH THREE OF SUBSECTION (B) OF SECTION TWO THOUSAND 47 ONE HUNDRED EIGHTEEN OF THE INSURANCE LAW, A MUNICIPALITY WITH A POPU- 48 LATION OF LESS THAN ONE HUNDRED THOUSAND PERSONS MAY NOT REQUEST THAT AN 49 EXCESS LINE BROKER PROCURE OR PLACE INSURANCE FROM AN UNAUTHORIZED 50 INSURER UNLESS THE EXCESS LINE BROKER OBTAINS THE DECLINATIONS REQUIRED 51 BY SUBSECTION (B) OF SECTION TWO THOUSAND ONE HUNDRED EIGHTEEN OF THE 52 INSURANCE LAW. 53 S 16. Subdivision 1 of section 171-a of the tax law, as amended by 54 section 1 of part R of chapter 60 of the laws of 2004, is amended to 55 read as follows: A. 4011--B 35 1 1. All taxes, interest, penalties and fees collected or received by 2 the commissioner or the commissioner's duly authorized agent under arti- 3 cles nine (except section one hundred eighty-two-a thereof and except as 4 otherwise provided in section two hundred five thereof), nine-A, 5 twelve-A (except as otherwise provided in section two hundred eighty- 6 four-d thereof), thirteen, thirteen-A (except as otherwise provided in 7 section three hundred twelve thereof), eighteen, nineteen, twenty 8 (except as otherwise provided in section four hundred eighty-two there- 9 of), twenty-one, twenty-two, twenty-six, twenty-six-B, twenty-eight 10 (except as otherwise provided in section eleven hundred two or eleven 11 hundred three thereof), twenty-eight-A, thirty-one (except as otherwise 12 provided in section fourteen hundred twenty-one thereof), thirty-two, 13 thirty-three and thirty-three-A of this chapter shall be deposited daily 14 in one account with such responsible banks, banking houses or trust 15 companies as may be designated by the comptroller, to the credit of the 16 comptroller. Such an account may be established in one or more of such 17 depositories. Such deposits shall be kept separate and apart from all 18 other money in the possession of the comptroller. The comptroller shall 19 require adequate security from all such depositories. Of the total 20 revenue collected or received under such articles of this chapter, the 21 comptroller shall retain in the comptroller's hands such amount as the 22 commissioner may determine to be necessary for refunds or reimbursements 23 under such articles of this chapter [and article ten thereof] out of 24 which amount the comptroller shall pay any refunds or reimbursements to 25 which taxpayers shall be entitled under the provisions of such articles 26 of this chapter [and article ten thereof]. The commissioner and the 27 comptroller shall maintain a system of accounts showing the amount of 28 revenue collected or received from each of the taxes imposed by such 29 articles. The comptroller, after reserving the amount to pay such 30 refunds or reimbursements, shall, on or before the tenth day of each 31 month, pay into the state treasury to the credit of the general fund all 32 revenue deposited under this section during the preceding calendar month 33 and remaining to the comptroller's credit on the last day of such 34 preceding month, (i) except that the comptroller shall pay to the state 35 department of social services that amount of overpayments of tax imposed 36 by article twenty-two of this chapter and the interest on such amount 37 which is certified to the comptroller by the commissioner as the amount 38 to be credited against past-due support pursuant to subdivision six of 39 section one hundred seventy-one-c of this [chapter] ARTICLE, (ii) and 40 except that the comptroller shall pay to the New York state higher 41 education services corporation and the state university of New York or 42 the city university of New York respectively that amount of overpayments 43 of tax imposed by article twenty-two of this chapter and the interest on 44 such amount which is certified to the comptroller by the commissioner as 45 the amount to be credited against the amount of defaults in repayment of 46 guaranteed student loans and state university loans or city university 47 loans pursuant to subdivision five of section one hundred seventy-one-d 48 and subdivision six of section one hundred seventy-one-e of this [chap- 49 ter] ARTICLE, (iii) and except further that, notwithstanding any law, 50 the comptroller shall credit to the revenue arrearage account, pursuant 51 to section ninety-one-a of the state finance law, that amount of over- 52 payment of tax imposed by article nine, nine-A, twenty-two, thirty, 53 thirty-A, thirty-B, thirty-two or thirty-three of this chapter, and any 54 interest thereon, which is certified to the comptroller by the commis- 55 sioner as the amount to be credited against a past-due legally enforcea- 56 ble debt owed to a state agency pursuant to paragraph (a) of subdivision A. 4011--B 36 1 six of section one hundred seventy-one-f of this article, provided, 2 however, he shall credit to the special offset fiduciary account, pursu- 3 ant to section ninety-one-c of the state finance law, any such amount 4 creditable as a liability as set forth in paragraph (b) of subdivision 5 six of section one hundred seventy-one-f of this article, (iv) and 6 except further that the comptroller shall pay to the city of New York 7 that amount of overpayment of tax imposed by article nine, nine-A, twen- 8 ty-two, thirty, thirty-A, thirty-B, thirty-two, or thirty-three of this 9 chapter and any interest thereon that is certified to the comptroller by 10 the commissioner as the amount to be credited against city of New York 11 tax warrant judgment debt pursuant to section one hundred seventy-one-l 12 of this article, (v) and except further that the comptroller shall pay 13 to a non-obligated spouse that amount of overpayment of tax imposed by 14 article twenty-two of this chapter and the interest on such amount which 15 has been credited pursuant to section one hundred seventy-one-c, one 16 hundred seventy-one-d, one hundred seventy-one-e, one hundred seventy- 17 one-f or one hundred seventy-one-l of this article and which is certi- 18 fied to the comptroller by the commissioner as the amount due such non- 19 obligated spouse pursuant to paragraph six of subsection (b) of section 20 six hundred fifty-one of this chapter; and (vi) the comptroller shall 21 deduct a like amount which the comptroller shall pay into the treasury 22 to the credit of the general fund from amounts subsequently payable to 23 the department of social services, the state university of New York, the 24 city university of New York, or the higher education services corpo- 25 ration, or the revenue arrearage account or special offset fiduciary 26 account pursuant to section ninety-one-a or ninety-one-c of the state 27 finance law, as the case may be, whichever had been credited the amount 28 originally withheld from such overpayment, and (vii) with respect to 29 amounts originally withheld from such overpayment pursuant to section 30 one hundred seventy-one-l of this article and paid to the city of New 31 York, the comptroller shall collect a like amount from the city of New 32 York. 33 S 17. Subdivision (c) of section 1550 of the tax law, as added by 34 chapter 190 of the laws of 1990, is amended to read as follows: 35 (c) The term "taxable insurance contract" means a contract of insur- 36 ance of the [type] KIND described in [paragraphs four through fourteen, 37 sixteen, seventeen, nineteen, twenty and twenty-two of] subsection (a) 38 of section [one thousand one hundred thirteen] TWO THOUSAND ONE HUNDRED 39 FIVE of the insurance law [that covers risks located or resident within 40 this state]. 41 S 18. Section 1550 of the tax law is amended by adding a new subdivi- 42 sion (d) to read as follows: 43 (D) THE TERM "HOME STATE" MEANS: 44 (1) IN GENERAL. EXCEPT AS PROVIDED IN PARAGRAPHS TWO AND THREE OF THIS 45 SUBDIVISION, THE TERM "HOME STATE" MEANS, WITH RESPECT TO AN INSURED: 46 (A) THE STATE IN WHICH AN INSURED MAINTAINS ITS PRINCIPAL PLACE OF 47 BUSINESS OR, IN THE CASE OF AN INDIVIDUAL, THE INDIVIDUAL'S PRINCIPAL 48 RESIDENCE; 49 (B) IF ONE HUNDRED PERCENT OF THE INSURED RISK IS LOCATED OUT OF THE 50 STATE REFERRED TO IN SUBPARAGRAPH (A) OF THIS PARAGRAPH, THE STATE TO 51 WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT 52 INSURANCE CONTRACT IS ALLOCATED; 53 (C) IF MORE THAN ONE INSURED FROM AN AFFILIATED GROUP, AS DEFINED IN 54 SECTION TWO THOUSAND ONE HUNDRED ONE OF THE INSURANCE LAW, ARE NAMED 55 INSUREDS ON A SINGLE INSURANCE CONTRACT, THE HOME STATE OF THE MEMBER OF A. 4011--B 37 1 THE AFFILIATED GROUP THAT HAS THE LARGEST PERCENTAGE OF PREMIUM ATTRI- 2 BUTED TO IT UNDER SUCH INSURANCE CONTRACT; OR 3 (D) IN THE CASE OF A GROUP POLICY: 4 (I) IF THE GROUP POLICYHOLDER PAYS ONE HUNDRED PERCENT OF THE PREMIUM 5 FROM ITS OWN FUNDS, THE HOME STATE, AS DETERMINED PURSUANT TO SUBPARA- 6 GRAPH (A) OF THIS PARAGRAPH, OF THE GROUP POLICYHOLDER; OR 7 (II) IF THE GROUP POLICYHOLDER DOES NOT PAY ONE HUNDRED PERCENT OF THE 8 PREMIUM FROM ITS OWN FUNDS, THE HOME STATE, AS DETERMINED PURSUANT TO 9 SUBPARAGRAPH (A) OF THIS PARAGRAPH, OF THE GROUP MEMBER; 10 (2) "PRINCIPAL PLACE OF BUSINESS" MEANS, WITH RESPECT TO DETERMINING 11 THE HOME STATE OF THE INSURED, THE STATE WHERE: 12 (A) THE INSURED MAINTAINS ITS HEADQUARTERS AND WHERE THE INSURED'S 13 HIGH-LEVEL OFFICERS DIRECT, CONTROL AND COORDINATE THE BUSINESS ACTIV- 14 ITIES; OR 15 (B) IF THE INSURED'S HIGH-LEVEL OFFICERS DIRECT, CONTROL AND COORDI- 16 NATE THE BUSINESS ACTIVITIES IN MORE THAN ONE STATE, OR IF THE INSURED'S 17 PRINCIPAL PLACE OF BUSINESS IS LOCATED OUTSIDE ANY STATE, THE STATE TO 18 WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE PREMIUM FOR THAT 19 INSURANCE CONTRACT IS ALLOCATED. 20 (3) "PRINCIPAL RESIDENCE" MEANS, WITH RESPECT TO DETERMINING THE HOME 21 STATE OF THE INSURED, THE STATE WHERE: 22 (A) THE INSURED RESIDES FOR THE GREATEST NUMBER OF DAYS DURING A 23 CALENDAR YEAR; OR 24 (B) IF THE INSURED'S PRINCIPAL RESIDENCE IS LOCATED OUTSIDE ANY STATE, 25 THE STATE TO WHICH THE GREATEST PERCENTAGE OF THE INSURED'S TAXABLE 26 PREMIUM FOR THAT INSURANCE CONTRACT IS ALLOCATED. 27 S 19. Section 1551 of the tax law, as amended by chapter 73 of the 28 laws of 1991, is amended to read as follows: 29 S 1551. Imposition of tax. There is hereby imposed on any person 30 WHOSE HOME STATE IS NEW YORK AND who purchases or renews a taxable 31 insurance contract from an insurer not authorized to transact business 32 in this state under a certificate of authority from the superintendent 33 of insurance a tax at the rate of three and six-tenths percent of the 34 premiums paid or to be paid, less returns thereon, for such insurance. 35 Nothing in this article modifies or abrogates any provision of the 36 insurance law. 37 S 20. Section 1552 of the tax law, as added by chapter 190 of the laws 38 of 1990, is amended to read as follows: 39 S 1552. Allocation. Where the taxable insurance contract covers risks 40 located or resident both within and without this state[, the amount of 41 premiums allocable to risks resident or located within this state shall 42 be determined pursuant to rules and regulations of the commissioner of 43 taxation and finance. In promulgating such rules and regulations, the 44 commissioner of taxation and finance shall give due consideration to the 45 rules and regulations promulgated by the superintendent of insurance 46 pursuant to subsection (b) of section nine thousand one hundred two of 47 the insurance law] AND THE TAXPAYER'S HOME STATE IS NEW YORK, ONE 48 HUNDRED PERCENT OF PREMIUMS SHALL BE ALLOCABLE TO THIS STATE. 49 S 21. This act shall take effect July 21, 2011; provided, however, 50 that: 51 (1) sections one, two and three of this act shall take effect July 16, 52 2011; 53 (2) the amendments to subsection (b) of section 2118 of the insurance 54 law made by sections ten and eleven of this act shall not affect the 55 expiration and reversion of such subsection and shall be deemed to 56 expire therewith; A. 4011--B 38 1 (3) the amendments to paragraph 5 of subsection (a) of section 2130 of 2 the insurance law made by section thirteen of this act shall not affect 3 the expiration of such section and shall be deemed to expire therewith; 4 (4) a person, firm, association or corporation licensed pursuant to 5 the provisions of section 2105 of the insurance law shall make the 6 payments required by subsection (d) of section 2118 of the insurance law 7 to the superintendent of insurance on or before September 19, 2011 for 8 the taxes on the policies procured by such licensee, pursuant to such 9 license, between January 1, 2011 and July 20, 2011; and 10 (5) effective immediately, the addition, amendment, or repeal of any 11 rules and regulations necessary for the implementation of this act on 12 its effective date are authorized and directed to be made and completed 13 on or before such effective date. 14 PART J 15 Section 1. Section 51 of chapter 298 of the laws of 1985, amending the 16 tax law relating to the franchise tax on banking corporations imposed by 17 the tax law, authorized to be imposed by any city having a population of 18 one million or more by chapter 772 of the laws of 1966 and imposed by 19 the administrative code of the city of New York and relating to other 20 provisions of the tax law, chapter 883 of the laws of 1975 and the 21 administrative code of the city of New York which relates to such fran- 22 chise tax, as amended by chapter 67 of the laws of 2010, is amended to 23 read as follows: 24 S 51. This act shall take effect immediately and shall apply to taxa- 25 ble years beginning on or after January 1, 1985[, except that: 26 (a) sections one through eight shall not apply to taxable years begin- 27 ning on or after January 1, 2011; 28 (b) sections nine, twelve, the amendment made to paragraph 9 of 29 subsection (a) of section 1452 of the tax law by section thirteen, 30 sections fifteen, sixteen, eighteen, nineteen, twenty, twenty-three, 31 twenty-seven, thirty and thirty-two, the amendment made to paragraph 9 32 of subdivision (a) of section 11-640 of the administrative code of the 33 city of New York by section thirty-three, sections thirty-five, thirty- 34 six, thirty-eight, thirty-nine, forty, and forty-five shall not apply to 35 corporations other than savings banks and savings and loan associations 36 for taxable years beginning on or after January 1, 2011. 37 (c) sections twenty-one, twenty-two, twenty-four, forty-one and 38 forty-two shall not apply to corporations other than savings banks and 39 savings and loan associations for taxable years beginning on or after 40 January 1, 2011, provided, however, that the provisions of such sections 41 which relate to the alternative minimum tax measured by taxable assets 42 shall continue to apply to all taxpayers for taxable years beginning on 43 or after January 1, 2011; 44 (d) the amendment to the section heading and the opening paragraph of 45 section 11-643.3 of the administrative code of the city of New York made 46 by section forty-three shall not apply to corporations other than 47 savings banks and savings and loan associations for taxable years begin- 48 ning on or after January 1, 2011 with respect to those provisions of 49 such section 11-643.3 which relate to the basic tax measured by entire 50 net income; and 51 (e) section twenty-eight, and the addition of new section 11-643.5 of 52 the administrative code of the city of New York made by section forty- 53 four shall not apply to corporations other than savings banks and 54 savings and loan associations for taxable years beginning on or after A. 4011--B 39 1 January 1, 2011, provided, however, that the provisions of such sections 2 which relate to the alternative minimum taxes measured by assets, issued 3 capital stock and one hundred twenty-five dollars shall continue to 4 apply to all taxpayers for taxable years beginning on or after January 5 1, 2011]. 6 S 2. Subdivisions (d) and (f) of section 110 of chapter 817 of the 7 laws of 1987, amending the tax law and the environmental conservation 8 law, constituting the business tax reform and rate reduction act of 9 1987, as amended by chapter 67 of the laws of 2010, are amended to read 10 as follows: 11 (d) The provisions of section sixty-seven of this act except insofar 12 as it amends paragraph 10 of subsection (b) of section 1453 of the tax 13 law, seventy-one and seventy-four shall apply to taxable years beginning 14 after December 31, 1986[, provided, however, that new paragraphs 11 and 15 12 of subsection (b) of section 1453 of the tax law as added by section 16 sixty-seven of this act, the amendments made by section seventy-one of 17 this act, and new subsection (i) of section 1453 of the tax law as added 18 by section seventy-four of this act shall not apply to taxable years 19 beginning on or after January 1, 2011]; 20 (f) The provisions of section one hundred four of this act shall apply 21 to taxable years beginning after December 31, 1986[, and shall not apply 22 to corporations other than savings banks and savings and loan associ- 23 ations for taxable years beginning on or after January 1, 2011, 24 provided, however, that the provisions of such section which relate to 25 the alternative minimum tax measured by taxable assets shall continue to 26 apply to all taxpayers for taxable years beginning on or after January 27 1, 2011]. 28 S 3. Subdivisions (c) and (d) of section 68 of chapter 525 of the 29 laws of 1988, amending the tax law and the administrative code of the 30 city of New York relating to the imposition of taxes in the city of New 31 York, as amended by chapter 67 of the laws of 2010, are amended to read 32 as follows: 33 (c) The provisions of sections one, thirty-one, thirty-two, thirty- 34 three, thirty-six, thirty-seven, forty through forty-five, forty-seven 35 and forty-eight of this act shall apply to taxable years beginning after 36 December 31, 1986[, provided, however, that the amendments made by 37 sections thirty-six and forty-one of this act, and new subdivision (i) 38 of section 11-641 of the administrative code of the city of New York as 39 added by section forty-four of this act shall not apply to taxable years 40 beginning on or after January 1, 2011]; 41 (d) The provisions of section forty-six of this act shall apply to 42 taxable years beginning after December 31, 1986[, and shall not apply to 43 corporations other than savings banks and savings and loan associations 44 for taxable years beginning on or after January 1, 2011, provided, 45 however, that the provisions of such section which relate to the alter- 46 native minimum tax measured by taxable assets shall continue to apply to 47 all taxpayers for taxable years beginning on or after January 1, 2011]; 48 S 4. Paragraphs 1 and 2 of subsection (m) of section 1452 of the tax 49 law, as amended by chapter 24 of the laws of 2010, are amended to read 50 as follows: 51 (1) Notwithstanding anything to the contrary contained in this section 52 other than subsection (n) of this section, a corporation that was in 53 existence before January first, two thousand [ten] ELEVEN and was 54 subject to tax under article nine-A of this chapter for its last taxable 55 year beginning before January first, two thousand [ten] ELEVEN, shall 56 continue to be taxable under such article for all taxable years begin- A. 4011--B 40 1 ning on or after January first, two thousand [ten] ELEVEN and before 2 January first, two thousand [eleven] THIRTEEN. The preceding sentence 3 shall not apply to any taxable year during which such corporation is a 4 banking corporation described in paragraphs one through eight of 5 subsection (a) of this section. Notwithstanding anything to the contrary 6 contained in this section other than subsection (n) of this section, a 7 banking corporation or corporation that was in existence before January 8 first, two thousand [ten] ELEVEN and was subject to tax under this arti- 9 cle for its last taxable year beginning before January first, two thou- 10 sand [ten] ELEVEN, shall continue to be taxable under this article for 11 all taxable years beginning on or after January first, two thousand 12 [ten] ELEVEN and before January first, two thousand [eleven] THIRTEEN or 13 in which the corporation satisfies the requirements for a corporation to 14 elect to be taxable under this article. Provided further, that nothing 15 in this subsection shall prohibit a corporation that elected pursuant to 16 subsection (d) of this section to be taxable under article nine-A of 17 this chapter from revoking that election in accordance with such 18 subsection (d). 19 For purposes of this paragraph, a corporation shall be considered to 20 be subject to tax under article nine-A of this chapter for a taxable 21 year if such corporation was not a taxpayer but was properly included in 22 a combined report filed pursuant to section two hundred eleven of this 23 chapter for such taxable year and a corporation shall be considered to 24 be subject to tax under this article for a taxable year if such corpo- 25 ration was not a taxpayer but was properly included in a combined return 26 filed pursuant to subsection (f) or (g) of section fourteen hundred 27 sixty-two of this article for such taxable year. A corporation that was 28 in existence before January first, two thousand [ten] ELEVEN but first 29 becomes a taxpayer in a taxable year beginning on or after January 30 first, two thousand [ten] ELEVEN and before January first, two thousand 31 [eleven] THIRTEEN, shall be considered for purposes of this paragraph to 32 have been subject to tax under article nine-A of this chapter for its 33 last taxable year beginning before January first, two thousand [ten] 34 ELEVEN if such corporation would have been subject to tax under such 35 article for such taxable year if it had been a taxpayer during such 36 taxable year. A corporation that was in existence before January first, 37 two thousand [ten] ELEVEN but first becomes a taxpayer in a taxable year 38 beginning on or after January first, two thousand [ten] ELEVEN and 39 before January first, two thousand [eleven] THIRTEEN, shall be consid- 40 ered for purposes of this paragraph to have been subject to tax under 41 this article for its last taxable year beginning before January first, 42 two thousand [ten] ELEVEN if such corporation would have been subject to 43 tax under this article for such taxable year if it had been a taxpayer 44 during such taxable year. 45 (2) Notwithstanding anything to the contrary contained in this section 46 other than subsection (n) of this section, a corporation formed on or 47 after January first, two thousand [ten] ELEVEN and before January first, 48 two thousand [eleven] THIRTEEN may elect to be subject to tax under this 49 article or under article nine-A of this chapter for its first taxable 50 year beginning on or after January first, two thousand [ten] ELEVEN and 51 before January first, two thousand [eleven] THIRTEEN in which either (i) 52 sixty-five percent or more of its voting stock is owned or controlled, 53 directly or indirectly by a financial holding company, provided the 54 corporation whose voting stock is so owned or controlled is principally 55 engaged in activities that are described in section 4(k)(4) or 4(k)(5) 56 of the federal bank holding company act of nineteen hundred fifty-six, A. 4011--B 41 1 as amended and the regulations promulgated pursuant to the authority of 2 such section, or (ii) it is a financial subsidiary. An election under 3 this paragraph may not be made by a corporation described in paragraphs 4 one through eight of subsection (a) of this section or in subsection (e) 5 of this section. In addition, an election under this paragraph may not 6 be made by a corporation that is a party to a reorganization, as defined 7 in subsection (a) of section 368 of the internal revenue code of 1986, 8 as amended, of a corporation described in paragraph one of this 9 subsection if both corporations were sixty-five percent or more owned or 10 controlled, directly or indirectly, by the same interests at the time of 11 the reorganization. 12 An election under this paragraph must be made by the taxpayer on or 13 before the due date for filing its return (determined with regard to 14 extensions of time for filing) for the applicable taxable year. The 15 election to be taxed under article nine-A of this chapter shall be made 16 by the taxpayer by filing the report required pursuant to section two 17 hundred eleven of this chapter and the election to be taxed under this 18 article shall be made by the taxpayer by filing the return required 19 pursuant to section fourteen hundred sixty-two of this article. Any 20 election made pursuant to this paragraph shall be irrevocable and shall 21 apply to each subsequent taxable year beginning on or after January 22 first, two thousand [ten] ELEVEN and before January first, two thousand 23 [eleven] THIRTEEN, provided that the stock ownership and activities 24 requirements described in subparagraph (i) of this paragraph are met or 25 such corporation described in subparagraph (ii) of this paragraph 26 continues as a financial subsidiary. 27 S 5. Paragraphs 1 and 2 of subdivision (l) of section 11-640 of the 28 administrative code of the city of New York, as amended by chapter 24 of 29 the laws of 2010, are amended to read as follows: 30 (1) Notwithstanding anything to the contrary contained in this section 31 other than subdivision (m) of this section, a corporation that was in 32 existence before January first, two thousand [ten] ELEVEN and was 33 subject to tax under subchapter two of this chapter for its last taxable 34 year beginning before January first, two thousand [ten] ELEVEN, shall 35 continue to be taxable under such subchapter for all taxable years 36 beginning on or after January first, two thousand [ten] ELEVEN and 37 before January first, two thousand [eleven] THIRTEEN. The preceding 38 sentence shall not apply to any taxable year during which such corpo- 39 ration is a banking corporation described in paragraphs one through 40 eight of subdivision (a) of this section. Notwithstanding anything to 41 the contrary contained in this section other than subdivision (m) of 42 this section, a banking corporation or corporation that was in existence 43 before January first, two thousand [ten] ELEVEN and was subject to tax 44 under this subchapter for its last taxable year beginning before January 45 first, two thousand [ten] ELEVEN, shall continue to be taxable under 46 this subchapter for all taxable years beginning on or after January 47 first, two thousand [ten] ELEVEN and before January first, two thousand 48 [eleven] THIRTEEN or in which the corporation satisfies the requirements 49 for a corporation to elect to be taxable under this subchapter. Provided 50 further, that nothing in this subdivision shall prohibit a corporation 51 that elected pursuant to subdivision (d) of this section to be taxable 52 under subchapter two of this chapter from revoking that election in 53 accordance with subdivision (d) of this section. For purposes of this 54 paragraph, a corporation shall be considered to be subject to tax under 55 subchapter two of this chapter for a taxable year if such corporation 56 was not a taxpayer but was properly included in a combined report filed A. 4011--B 42 1 pursuant to subdivision four of section 11-605 of this chapter for such 2 taxable year and a corporation shall be considered to be subject to tax 3 under this subchapter for a taxable year if such corporation was not a 4 taxpayer but was properly included in a combined report filed pursuant 5 to subdivision (f) or (g) of section 11-646 of this part for such taxa- 6 ble year. A corporation that was in existence before January first, two 7 thousand [ten] ELEVEN but first becomes a taxpayer in a taxable year 8 beginning on or after January first, two thousand [ten] ELEVEN and 9 before January first, two thousand [eleven] THIRTEEN, shall be consid- 10 ered for purposes of this paragraph to have been subject to tax under 11 subchapter two of this chapter for its last taxable year beginning 12 before January first, two thousand [ten] ELEVEN if such corporation 13 would have been subject to tax under such subchapter for such taxable 14 year if it had been a taxpayer during such taxable year. A corporation 15 that was in existence before January first, two thousand [ten] ELEVEN 16 but first becomes a taxpayer in a taxable year beginning on or after 17 January first, two thousand [ten] ELEVEN and before January first, two 18 thousand [eleven] THIRTEEN, shall be considered for purposes of this 19 paragraph to have been subject to tax under this subchapter for its last 20 taxable year beginning before January first, two thousand [ten] ELEVEN 21 if such corporation would have been subject to tax under this subchapter 22 for such taxable year if it had been a taxpayer during such taxable 23 year. 24 (2) Notwithstanding anything to the contrary contained in this section 25 other than subdivision (m) of this section, a corporation formed on or 26 after January first, two thousand [ten] ELEVEN and before January first, 27 two thousand [eleven] THIRTEEN may elect to be subject to tax under this 28 subchapter or under subchapter two of this chapter for its first taxable 29 year beginning on or after January first, two thousand [ten] ELEVEN and 30 before January first, two thousand [eleven] THIRTEEN in which either (i) 31 sixty-five percent or more of its voting stock is owned or controlled, 32 directly or indirectly by a financial holding company, provided the 33 corporation whose voting stock is so owned or controlled is principally 34 engaged in activities that are described in section 4(k)(4) or 4(k)(5) 35 of the federal bank holding company act of nineteen hundred fifty-six, 36 as amended and the regulations promulgated pursuant to the authority of 37 such section or (ii) it is a financial subsidiary. An election under 38 this paragraph may not be made by a corporation described in paragraphs 39 one through eight of subdivision (a) of this section or in subdivision 40 (e) of this section. In addition, an election under this paragraph may 41 not be made by a corporation that is a party to a reorganization, as 42 defined in subsection (a) of section 368 of the internal revenue code of 43 1986, as amended, of a corporation described in paragraph one of this 44 subdivision if both corporations were sixty-five percent or more owned 45 or controlled, directly or indirectly by the same interests at the time 46 of the reorganization. 47 An election under this paragraph must be made by the taxpayer on or 48 before the due date for filing its return (determined with regard to 49 extensions of time for filing) for the applicable taxable year. The 50 election to be taxed under subchapter two of this chapter shall be made 51 by the taxpayer by filing the return required pursuant to subdivision 52 one of section 11-605 of this chapter and the election to be taxed under 53 this subchapter shall be made by the taxpayer by filing the return 54 required pursuant to subdivision (a) of section 11-646 of this part. Any 55 election made pursuant to this paragraph shall be irrevocable and shall 56 apply to each subsequent taxable year beginning on or after January A. 4011--B 43 1 first, two thousand [ten] ELEVEN and before January first, two thousand 2 [eleven] THIRTEEN, provided that the stock ownership and activities 3 requirements described in subparagraph (i) of this paragraph are met or 4 such corporation described in subparagraph (ii) of this paragraph 5 continues as a financial subsidiary. 6 S 6. Subparagraph (iv) of paragraph 2 of subdivision (f) of section 7 1462 of the tax law, as amended by chapter 24 of the laws of 2010, is 8 amended to read as follows: 9 (iv) (A) Notwithstanding any provision of this paragraph, any bank 10 holding company exercising its corporate franchise or doing business in 11 the state may make a return on a combined basis without seeking the 12 permission of the commissioner with any banking corporation exercising 13 its corporate franchise or doing business in the state in a corporate or 14 organized capacity sixty-five percent or more of whose voting stock is 15 owned or controlled, directly or indirectly, by such bank holding compa- 16 ny, for the first taxable year beginning on or after January first, two 17 thousand and before January first, two thousand [eleven] THIRTEEN during 18 which such bank holding company registers for the first time under the 19 federal bank holding company act, as amended, and also elects to be a 20 financial holding company. In addition, for each subsequent taxable year 21 beginning after January first, two thousand and before January first, 22 two thousand [eleven] THIRTEEN, any such bank holding company may file 23 on a combined basis without seeking the permission of the commissioner 24 with any banking corporation that is exercising its corporate franchise 25 or doing business in the state and sixty-five percent or more of whose 26 voting stock is owned or controlled, directly or indirectly, by such 27 bank holding company if either such banking corporation is exercising 28 its corporate franchise or doing business in the state in a corporate or 29 organized capacity for the first time during such subsequent taxable 30 year, or sixty-five percent or more of the voting stock of such banking 31 corporation is owned or controlled, directly or indirectly, by such bank 32 holding company for the first time during such subsequent taxable year. 33 Provided however, for each subsequent taxable year beginning after Janu- 34 ary first, two thousand and before January first, two thousand [eleven] 35 THIRTEEN, a banking corporation described in either of the two preceding 36 sentences which filed on a combined basis with any such bank holding 37 company in a previous taxable year, must continue to file on a combined 38 basis with such bank holding company if such banking corporation, during 39 such subsequent taxable year, continues to exercise its corporate fran- 40 chise or do business in the state in a corporate or organized capacity 41 and sixty-five percent or more of such banking corporation's voting 42 stock continues to be owned or controlled, directly or indirectly, by 43 such bank holding company, unless the permission of the commissioner has 44 been obtained to file on a separate basis for such subsequent taxable 45 year. Provided further, however, for each subsequent taxable year begin- 46 ning after January first, two thousand and before January first, two 47 thousand [eleven] THIRTEEN, a banking corporation described in either of 48 the first two sentences of this clause which did not file on a combined 49 basis with any such bank holding company in a previous taxable year, may 50 not file on a combined basis with such bank holding company during any 51 such subsequent taxable year unless the permission of the commissioner 52 has been obtained to file on a combined basis for such subsequent taxa- 53 ble year. 54 (B) Notwithstanding any provision of this paragraph other than clause 55 (A) of this subparagraph, the commissioner may not require a bank hold- 56 ing company which, during a taxable year beginning on or after January A. 4011--B 44 1 first, two thousand and before January first, two thousand [eleven] 2 THIRTEEN, registers for the first time during such taxable year under 3 the federal bank holding company act, as amended, and also elects to be 4 a financial holding company, to make a return on a combined basis for 5 any taxable year beginning on or after January first, two thousand and 6 before January first, two thousand [eleven] THIRTEEN with a banking 7 corporation sixty-five percent or more of whose voting stock is owned or 8 controlled, directly or indirectly, by such bank holding company. 9 S 7. Subparagraph (iv) of paragraph 2 of subdivision (f) of section 10 11-646 of the administrative code of the city of New York, as amended by 11 chapter 24 of the laws of 2010, is amended to read as follows: 12 (iv) (A) Notwithstanding any provision of this paragraph, any bank 13 holding company exercising its corporate franchise or doing business in 14 the city may make a return on a combined basis without seeking the 15 permission of the commissioner with any banking corporation exercising 16 its corporate franchise or doing business in the city in a corporate or 17 organized capacity sixty-five percent or more of whose voting stock is 18 owned or controlled, directly or indirectly, by such bank holding compa- 19 ny, for the first taxable year beginning on or after January first, two 20 thousand and before January first, two thousand [eleven] THIRTEEN during 21 which such bank holding company registers for the first time under the 22 federal bank holding company act, as amended, and also elects to be a 23 financial holding company. In addition, for each subsequent taxable year 24 beginning after January first, two thousand and before January first, 25 two thousand [eleven] THIRTEEN, any such bank holding company may file 26 on a combined basis without seeking the permission of the commissioner 27 with any banking corporation that is exercising its corporate franchise 28 or doing business in the city and sixty-five percent or more of whose 29 voting stock is owned or controlled, directly or indirectly, by such 30 bank holding company if either such banking corporation is exercising 31 its corporate franchise or doing business in the city in a corporate or 32 organized capacity for the first time during such subsequent taxable 33 year, or sixty-five percent or more of the voting stock of such banking 34 corporation is owned or controlled, directly or indirectly, by such bank 35 holding company for the first time during such subsequent taxable year. 36 Provided however, for each subsequent taxable year beginning after Janu- 37 ary first, two thousand and before January first, two thousand [eleven] 38 THIRTEEN, a banking corporation described in either of the two preceding 39 sentences which filed on a combined basis with any such bank holding 40 company in a previous taxable year, must continue to file on a combined 41 basis with such bank holding company if such banking corporation, during 42 such subsequent taxable year, continues to exercise its corporate fran- 43 chise or do business in the city in a corporate or organized capacity 44 and sixty-five percent or more of such banking corporation's voting 45 stock continues to be owned or controlled, directly or indirectly, by 46 such bank holding company, unless the permission of the commissioner has 47 been obtained to file on a separate basis for such subsequent taxable 48 year. Provided further, however, for each subsequent taxable year begin- 49 ning after January first, two thousand and before January first, two 50 thousand [eleven] THIRTEEN, a banking corporation described in either of 51 the first two sentences of this clause which did not file on a combined 52 basis with any such bank holding company in a previous taxable year, may 53 not file on a combined basis with such bank holding company during any 54 such subsequent taxable year unless the permission of the commissioner 55 has been obtained to file on a combined basis for such subsequent taxa- 56 ble year. A. 4011--B 45 1 (B) Notwithstanding any provision of this paragraph other than clause 2 (A) of this subparagraph, the commissioner may not require a bank hold- 3 ing company which, during a taxable year beginning on or after January 4 first, two thousand and before January first, two thousand [eleven] 5 THIRTEEN, registers for the first time during such taxable year under 6 the federal bank holding company act, as amended, and also elects to be 7 a financial holding company, to make a return on a combined basis for 8 any taxable year beginning on or after January first, two thousand and 9 before January first, two thousand [eleven] THIRTEEN with a banking 10 corporation sixty-five percent or more of whose voting stock is owned or 11 controlled, directly or indirectly, by such bank holding company. 12 S 8. This act shall take effect immediately. 13 PART K 14 Section 1. Paragraph b of subdivision 1, subdivisions 2, 6, 14, 22 and 15 23 of section 282 of the tax law, paragraph b of subdivision 1 and 16 subdivision 14 as amended by chapter 245 of the laws of 1989, subdivi- 17 sion 2 as amended by chapter 509 of the laws of 1937, subdivision 6 as 18 amended by chapter 261 of the laws of 1988 and subdivisions 22 and 23 as 19 added by section 1 of part W-1 of chapter 109 of the laws of 2006, are 20 amended to read as follows: 21 b. With respect to Diesel motor fuel, "distributor" means any person, 22 firm, association or corporation (i) who or which imports or causes to 23 be imported into the state, for use, distribution, storage or sale with- 24 in the state, any Diesel motor fuel; (ii) who or which produces, 25 refines, manufactures or compounds Diesel motor fuel within the state; 26 (iii) [who or which engages in the enhancement of Diesel motor fuel in 27 this state; (iv)] who or which makes a sale or use of Diesel motor fuel 28 in this state other than: (A) a retail sale not in bulk or (B) the self- 29 use of Diesel motor fuel which has been the subject of a retail sale to 30 such person; [(v)] (IV) who or which is registered by the department [of 31 taxation and finance] as a distributor of kero-jet fuel pursuant to the 32 provisions of subdivision two of section two hundred eighty-two-a of 33 this article. For the purposes of this article when used with respect to 34 Diesel motor fuel, a "retail sale not in bulk" means the making or 35 offering to make any sale of Diesel motor fuel to a consumer of such 36 fuel which is delivered directly into a motor vehicle for use in the 37 operation of such vehicle. A "retail sale in bulk" means the making or 38 offering to make any sale of Diesel motor fuel to a consumer which is 39 other than a "retail sale not in bulk". Motor fuel or Diesel motor fuel 40 brought into the state in the ordinary fuel tank connecting with the 41 engine of a motor vehicle, aeroplane, motor boat or other conveyance 42 propelled by the use of such motor fuel or Diesel motor fuel, and to be 43 used only in the operation thereof, shall not be deemed imported within 44 the meaning of this article, if not removed from such tank except as 45 used in the propulsion of such engine. 46 2. "Motor fuel" means gasoline, benzol, REFORMULATED BLEND STOCK FOR 47 OXYGENATE BLENDING, CONVENTIONAL BLEND STOCK FOR OXYGENATE BLENDING, 48 E85, FUEL GRADE ETHANOL THAT MEETS THE ASTM INTERNATIONAL ACTIVE STAND- 49 ARDS SPECIFICATIONS D4806 OR D4814 or other product[, except kerosene 50 and crude oil,] which is suitable for use in operation of a motor vehi- 51 cle engine[, but if kerosene or crude oil is compounded or mixed with 52 any other product or products, and the resulting compound or mixture is 53 suitable for use in the operation of any such motor vehicle engine, such 54 resulting compound or mixture in its entirety shall be a "motor fuel."]. A. 4011--B 46 1 6. "Filling station" shall include any place, location or station 2 where motor fuel [or], HIGHWAY Diesel motor fuel OR WATER-WHITE KEROSENE 3 (EXCLUSIVELY FOR HEATING PURPOSES IN CONTAINERS OF NO MORE THAN TWENTY 4 GALLONS), is offered for sale at retail. 5 14. "Diesel motor fuel" shall mean NO. 1 DIESEL FUEL, NO. 2 DIESEL 6 FUEL, BIODIESEL, kerosene, crude oil, fuel oil or other middle distil- 7 late and also motor fuel suitable for use in the operation of an engine 8 of the diesel type, excluding, however, any product specifically desig- 9 nated "No. 4 Diesel fuel" and not suitable as a fuel used in the opera- 10 tion of a motor vehicle engine. 11 22. "E85" means a [mixture consisting by volume of eighty-five 12 percent] FUEL BLEND CONSISTING OF ethanol and [the remainder of which 13 is] motor fuel, WHICH MEETS THE ASTM INTERNATIONAL ACTIVE STANDARD D5798 14 FOR FUEL ETHANOL. 15 23. "B20" means a mixture consisting by volume of twenty percent biod- 16 iesel and the remainder of which is diesel motor fuel. [For purposes of 17 this subdivision "biodiesel"] "BIODIESEL" shall mean EITHER "QUALIFIED 18 BIODIESEL" OR "UNQUALIFIED BIODIESEL." "QUALIFIED BIODIESEL" MEANS a 19 diesel motor fuel substitute produced from nonpetroleum renewable 20 resources that meets the registration requirements for fuels and fuel 21 additives established by the Environmental Protection Agency under 22 section 211 of the Clean Air Act (42 U.S.C. 7545) and that meets the 23 [American Society for Testing and Materials D6751-02a Standard Specifi- 24 cation for Biodiesel Fuel (B100) Blend Stock for Distillate Fuels] ASTM 25 INTERNATIONAL ACTIVE STANDARD D6751 FOR BIODIESEL FUEL. "UNQUALIFIED 26 BIODIESEL" MEANS A DIESEL MOTOR FUEL SUBSTITUTE PRODUCED FROM NONPETRO- 27 LEUM RENEWABLE RESOURCES THAT DOES NOT MEET THE ASTM INTERNATIONAL 28 ACTIVE STANDARD D6751 FOR BIODIESEL FUEL. 29 S 1-a. Subdivision 15 of section 282 of the tax law is REPEALED. 30 S 2. Subdivision 16 of section 282 of the tax law is REPEALED and two 31 new subdivisions 16 and 16-a are added to read as follows: 32 16. "NON-HIGHWAY DIESEL MOTOR FUEL" MEANS ANY DIESEL MOTOR FUEL THAT 33 IS DESIGNATED FOR USE OTHER THAN ON A PUBLIC HIGHWAY (EXCEPT FOR THE USE 34 OF THE PUBLIC HIGHWAY BY FARMERS TO REACH ADJACENT LANDS), AND IS DYED 35 DIESEL MOTOR FUEL AS DEFINED IN SUBDIVISION EIGHTEEN-A OF THIS SECTION. 36 16-A. "HIGHWAY DIESEL MOTOR FUEL" MEANS ANY DIESEL MOTOR FUEL WHICH IS 37 NOT NON-HIGHWAY DIESEL MOTOR FUEL. 38 S 3. Subdivision 18 of section 282 of the tax law, as added by chapter 39 302 of the laws of 2006, is renumbered subdivision 18-a and is amended 40 to read as follows: 41 18-a. "Dyed Diesel motor fuel" means Diesel motor fuel which [is 42 enhanced Diesel motor fuel and which] has been dyed in accordance with 43 and for the purpose of complying with the provisions of 26 USC S4082(a) 44 and the regulations thereunder, as may be amended from time to time. 45 S 4. Section 282 of the tax law is amended by adding a new subdivision 46 26 to read as follows: 47 26. "PUBLIC HIGHWAY" MEANS PUBLIC HIGHWAY AS DEFINED IN SUBDIVISION 48 SIX OF SECTION FIVE HUNDRED ONE OF THIS CHAPTER. 49 S 5. Subdivisions 2, 3, 4 and 5 of section 282-a of the tax law, 50 subdivision 2 and paragraph (b) of subdivision 3 as amended by chapter 51 245 of the laws of 1989, subdivisions 3, 4 and 5 as added by chapter 261 52 of the laws of 1988 and paragraph (c) of subdivision 3 as added by chap- 53 ter 302 of the laws of 2006, are amended to read as follows: 54 2. No person shall [engage] SELL OR USE DIESEL MOTOR FUEL within this 55 state [in the enhancement of Diesel motor fuel, make a sale or use of 56 Diesel motor fuel] (other than a retail sale not in bulk or self-use of A. 4011--B 47 1 Diesel motor fuel which has been the subject of a retail sale), import 2 or cause the importation of Diesel motor fuel into the state or produce, 3 refine, manufacture or compound Diesel motor fuel within the state 4 unless such person shall be registered by the department [of taxation 5 and finance] as a distributor of Diesel motor fuel. Provided, the 6 commissioner [of taxation and finance] shall not register as a distribu- 7 tor of Diesel motor fuel any person who is engaged solely in one or both 8 of the following: (i) any person who makes or offers to make a retail 9 sale not in bulk of such fuel or (ii) any person who purchases Diesel 10 motor fuel in bulk in this state for the sole purpose of self-use. The 11 commissioner may, however, register as a distributor of kero-jet fuel 12 only a fixed base operator who makes no sales of kero-jet fuel other 13 than retail sales not in bulk delivered directly into the fuel tank of 14 an airplane for use in the operation of such airplane and who makes no 15 other sales of diesel motor fuel. Such registration shall apply only to 16 the wholesale purchase of kero-jet fuel and the retail sale of such fuel 17 not in bulk for delivery directly into the fuel tank of an airplane for 18 use in the operation thereof. Provided, further, that if the commission- 19 er is satisfied that full registration is not necessary in order to 20 protect tax revenues, the commissioner may limit or modify the require- 21 ment of registration as a distributor with respect to any person other- 22 wise required to register solely because such person engages in the sale 23 of NON-HIGHWAY Diesel motor fuel where such person makes sales of 24 NON-HIGHWAY Diesel motor fuel to the consumer solely for the purposes 25 described in subparagraph (i) of paragraph (b) of subdivision three of 26 this section, provided that if the commissioner so limits or modifies 27 such registration requirement with respect to such person, then such 28 registration shall apply only to the importation, sale and distribution 29 of SUCH NON-HIGHWAY Diesel motor fuel [for the purposes described in 30 such subparagraph (i)]. The commissioner [of taxation and finance] may 31 also waive any other requirement imposed by this article on such a 32 distributor. All the provisions of section two hundred eighty-three of 33 this article shall apply to applicants for registration and registrants 34 with respect to Diesel motor fuel, and, in addition, distributors with 35 respect to Diesel motor fuel shall be subject to all other provisions of 36 this article relating to distributors of motor fuel, including but not 37 limited to, the keeping of records, the fixing, determination and 38 payment of tax and filing of returns. PROVIDED, FURTHER, THE COMMISSION- 39 ER MAY LIMIT OR MODIFY THE REQUIREMENT OF REGISTRATION AS A DISTRIBUTOR 40 WITH RESPECT TO ANY PERSON WHO PRODUCES FOR SELF USE "UNQUALIFIED BIOD- 41 IESEL." 42 3. (a) The tax imposed by this section shall not apply to the sale of 43 untaxed Diesel motor fuel to or the use of such fuel by an organization 44 described in paragraph one or two of subdivision (a) of section eleven 45 hundred sixteen of this chapter where such Diesel motor fuel is used by 46 such organization for its own use or consumption. 47 (b) The tax on the [incident] INCIDENCE of sale or use imposed by 48 subdivision one of this section shall not apply to: (i) the sale [to] or 49 use [by the consumer of previously untaxed Diesel motor fuel which is 50 not enhanced Diesel motor fuel and which is used exclusively for heating 51 purposes or for the purpose of use or consumption directly and exclu- 52 sively in the production of tangible personal property, gas, electric- 53 ity, refrigeration or steam, for sale,] OF NON-HIGHWAY DIESEL MOTOR 54 FUEL, but only if all of such fuel is consumed other than on the PUBLIC 55 highways of this state (EXCEPT FOR THE USE OF THE PUBLIC HIGHWAY BY 56 FARMERS TO REACH ADJACENT FARMLANDS); provided, however, this exemption A. 4011--B 48 1 shall in no event apply to a sale of NON-HIGHWAY Diesel motor fuel which 2 involves a delivery at a filling station or into a repository which is 3 equipped with a hose or other apparatus by which such fuel can be 4 dispensed into the fuel tank of a motor vehicle (EXCEPT FOR DELIVERY AT 5 A FARM SITE WHICH QUALIFIES FOR THE EXEMPTION UNDER SUBDIVISION (G) OF 6 SECTION THREE HUNDRED ONE-B OF THIS CHAPTER); or (ii) [the sale of 7 previously untaxed Diesel motor fuel which is not enhanced Diesel motor 8 fuel to a person registered under this article as a distributor of 9 Diesel motor fuel other than (A) a retail sale to such person or (B) a 10 sale to such person which involves a delivery at a filling station or 11 into a repository which is equipped with a hose or other apparatus by 12 which such fuel can be dispensed into the fuel tank of a motor vehicle; 13 or (iii) a sale or use of enhanced Diesel motor fuel to or by a consumer 14 exclusively for the purposes of heating specified in subparagraph (i) of 15 this paragraph but only if such enhanced Diesel motor fuel is delivered 16 into a storage tank which is not equipped with a hose or other apparatus 17 by which such fuel can be dispensed into the fuel tank of a motor vehi- 18 cle and such storage tank is attached to the heating unit burning such 19 fuel, provided that each delivery of such fuel of over four thousand 20 five hundred gallons shall be evidenced by a certificate signed by the 21 purchaser stating that the product will be used exclusively for heating 22 purposes; or (iv) a sale or use consisting of no more than four thousand 23 five hundred gallons of Diesel motor fuel in a thirty-day period to or 24 by a consumer who purchases or uses such fuel for use or consumption 25 directly and exclusively in the production for sale of tangible personal 26 property by farming but only if all of such fuel is delivered on the 27 farm site and is consumed other than on the highways of this state 28 (except for the use of the highway to reach adjacent farmlands) 29 provided, however, a farmer may purchase more than four thousand five 30 hundred gallons of Diesel motor fuel in a thirty-day period for such use 31 or consumption exempt from the tax in accordance with prior clearance 32 given by the commissioner of taxation and finance; or (v)] a sale to the 33 consumer consisting of not more than twenty gallons of water-white kero- 34 sene to be used and consumed exclusively for heating purposes; or [(vi)] 35 (III) the sale to or delivery at a filling station or other retail 36 vendor of water-white kerosene provided such filling station or other 37 retail vendor only sells such water-white kerosene exclusively for heat- 38 ing purposes in containers of no more than twenty gallons; or [(vii)] 39 (IV) a sale of kero-jet fuel to an airline for use in its airplanes or a 40 use of kero-jet fuel by an airline in its airplanes; or [(viii)] (V) a 41 sale of kero-jet fuel by a registered distributor of Diesel motor fuel 42 to a fixed base operator registered under this article as a distributor 43 of kero-jet fuel only where such fixed base operator is engaged solely 44 in making or offering to make retail sales not in bulk of kero-jet fuel 45 directly into the fuel tank of an airplane for the purpose of operating 46 such airplane; or [(ix)] (VI) a retail sale not in bulk of kero-jet fuel 47 by a fixed base operator registered under this article as a distributor 48 of kero-jet fuel only where such fuel is delivered directly into the 49 fuel tank of an airplane for use in the operation of such airplane. 50 (c) [Limited exemptions for dyed Diesel motor fuel. (i) The tax 51 imposed by this section shall not apply to: (A) the sale of dyed Diesel 52 motor fuel by the importer to a purchaser under the circumstances and 53 subject to the terms and conditions as follows: (1) the importer and 54 purchaser are each registered under this article as a full Diesel motor 55 fuel distributor; (2) such importer has imported the enhanced Diesel 56 motor fuel, which is the subject of the sale, into the state and has A. 4011--B 49 1 dyed such fuel to comply with the provisions of 26 USC S 4082(a) and the 2 regulations thereunder, as may be amended from time to time; (3) the 3 purchaser is a holder of a currently valid direct payment permit issued 4 pursuant to section two hundred eighty-three-d of this article; and (4) 5 such purchaser is primarily engaged in the retail heating oil business 6 and such dyed Diesel motor fuel will be sold by such purchaser in a 7 retail sale to a consumer for use solely as residential or commercial 8 heating oil; (B) a first sale of the dyed Diesel motor fuel, which as 9 the subject of an exempt sale described in clause (A) of this subpara- 10 graph, by the purchaser described therein to a purchaser likewise hold- 11 ing a currently valid direct pay permit under the circumstances and 12 subject to the terms and conditions as follows: (1) the sale of such 13 second purchaser by such first purchaser is the first and only sale of 14 such dyed Diesel motor fuel by such first purchaser; (2) such second 15 purchaser is primarily engaged in the retail heating oil business and 16 such dyed Diesel motor fuel will be sold by such second purchaser in a 17 retail sale to a consumer for use solely as residential or commercial 18 heating oil; (3) on the sale to the second purchaser, such first 19 purchaser described in such clause (A) attaches to the invoice a copy of 20 the invoice given by the importer on the exempt sale described in such 21 clause (A), so as to identify the origin of the dyed Diesel fuel which 22 is the subject of the sale to such second purchaser; and (4) such second 23 purchaser certifies that such dyed Diesel motor fuel is to be sold by it 24 only to a consumer for use solely as residential or commercial heating 25 oil. (ii) Prior to, or at the time of, such sale of such dyed Diesel 26 motor fuel described in clause (A) or (B) of subparagraph (i) of this 27 paragraph, the purchaser shall give a certificate to the seller setting 28 forth the intended use of the dyed Diesel motor fuel which is sought to 29 be qualified for exemption under this paragraph, that the purchaser has 30 been issued a direct payment permit which is currently valid, that such 31 permit has not been suspended or revoked and that the purchaser other- 32 wise meets the qualifications of this paragraph. (iii) The limited 33 exemptions allowed under this paragraph shall in no event apply to any 34 dyed Diesel motor fuel which is delivered into a repository equipped 35 with hose or other apparatus capable of being used to dispense fuel into 36 the fuel tank of a motor vehicle, or where the purchaser's direct 37 payment permit has been suspended or revoked and the commissioner has 38 made generally available the identity of those persons whose direct 39 payment permits have been suspended or revoked.] NOTHING IN THIS ARTICLE 40 SHALL EXEMPT NON-HIGHWAY DIESEL MOTOR FUEL FROM THE IMPOSITION OF THE 41 TAX UNDER THIS SECTION, IF SUCH NON-HIGHWAY DIESEL MOTOR FUEL IS 42 INTENDED FOR USE ON THE WATERWAYS OF THE STATE INCLUDING ANY OTHER 43 WATERWAYS BORDERING ON THE STATE, FOR OPERATING PLEASURE OR RECREATIONAL 44 MOTOR BOATS THEREON. 45 4. The tax imposed by this section on Diesel motor fuel shall be 46 passed through by the seller and included as part of the selling price 47 to each purchaser of such fuel. Provided, however, the amount of the tax 48 imposed by this section may be excluded from the selling price of Diesel 49 motor fuel where (i) a sale of Diesel motor fuel is made to an organiza- 50 tion described in paragraph (a) of subdivision three of this section 51 solely for the purpose stated therein; (ii) a sale of [enhanced] 52 NON-HIGHWAY Diesel motor fuel is made to a consumer [exclusively for the 53 purposes of heating specified in subparagraph (i) of paragraph (b) of 54 subdivision three of this section] but only if such [enhanced] NON-HIGH- 55 WAY Diesel motor fuel is NOT DELIVERED TO A FILLING STATION, NOR deliv- 56 ered into a storage tank which is [not] equipped with a hose or other A. 4011--B 50 1 apparatus by which such fuel can be dispensed into the fuel tank of a 2 motor vehicle [and such storage tank is attached to the heating unit 3 burning such fuel, provided that each delivery of such fuel of over four 4 thousand five hundred gallons shall be evidenced by a certificate signed 5 by the purchaser stating that the product will be used exclusively for 6 heating purposes; (iii) a sale is made consisting of no more than four 7 thousand five hundred gallons (or a greater amount which has been given 8 prior clearance by the commissioner of taxation and finance) of Diesel 9 motor fuel in a thirty-day period to a consumer who purchases such fuel 10 for use or consumption directly and exclusively in the production for 11 sale of tangible personal property by farming but only if all of such 12 fuel is consumed other than on the highways or waterways of this state]; 13 or [(iv)] (III) the sale to or delivery at a filling station or other 14 retail vendor of water-white kerosene provided such filling station or 15 other retail vendor only sells such water-white kerosene exclusively for 16 heating purposes in containers of no more than twenty gallons; or [(v)] 17 (IV) a sale of kero-jet fuel is made to an airline for use in its 18 airplanes. 19 5. All the provisions of this article relating to the administration 20 and collection of the taxes on motor fuel, except sections two hundred 21 eighty-three-a and two hundred eighty-three-b of this article, shall be 22 applicable to the tax imposed by this section with such limitation as 23 specifically provided for in this article with respect to Diesel motor 24 fuel and with such modification as may be necessary to adapt the 25 language of such provisions to the tax imposed by this section. With 26 respect to the bond or other security required by subdivision three of 27 section two hundred eighty-three of this article, the commissioner [of 28 taxation and finance], in determining the amount of bond or other secu- 29 rity required for the purpose of securing tax payments, shall take into 30 account the volume of [heating fuel] NON-HIGHWAY DIESEL MOTOR FUEL and 31 other Diesel motor fuel sold for exempt purposes by a distributor of 32 Diesel motor fuel during prior periods as a factor reducing potential 33 tax liability along with any other relevant factors in determining the 34 amount of security required. With respect to the bond required to be 35 filed prior to registration as a Diesel motor fuel distributor, no bond 36 shall be required of an applicant upon a finding of the applicant's 37 fiscal responsibility, as reflected by such factors as net worth, 38 current assets and liabilities, and tax reporting and payment history, 39 and the department shall not provide for a minimum bond of every appli- 40 cant. 41 S 6. Subdivision 7 of section 283 of the tax law, as amended by chap- 42 ter 261 of the laws of 1988, is amended to read as follows: 43 7. Temporary restraining order and permanent [injuction] INJUNCTION 44 against unlawful importation and forfeiture of unlawfully imported or 45 produced [automotive] MOTOR FUEL OR DIESEL MOTOR fuel. (a) Whenever 46 evidence is furnished by the commissioner [of taxation and finance] to 47 any justice of the supreme court, in court or at chambers, showing that 48 any person not registered as a distributor as required by this article 49 has imported [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL into this 50 state or caused [automotive] MOTOR FUEL OR DIESEL MOTOR fuel to be 51 imported into this state or has produced, refined, manufactured or 52 compounded [automotive fuel or has subjected diesel motor fuel to the 53 process of enhancement within this state] MOTOR FUEL OR DIESEL MOTOR 54 FUEL, such justice may make a temporary order without notice prohibiting 55 such person and his agents from selling, transferring or otherwise 56 disposing of any such fuel or any fuel and also prohibiting all other A. 4011--B 51 1 persons in possession of or having control over the same from selling, 2 releasing, transferring or otherwise disposing of any [automotive fuel] 3 MOTOR FUEL OR DIESEL MOTOR FUEL imported, produced, refined, manufac- 4 tured, compounded, [enhanced,] sold or transferred by such person not so 5 registered pending a hearing for a preliminary injunction. 6 (b) Upon granting a temporary order, the court shall direct that a 7 hearing be held at the earliest possible time upon such notice and 8 service as the court shall direct and at the same time, if such action 9 has not yet been commenced, the commissioner [of taxation and finance] 10 shall commence an action in supreme court for a permanent injunction and 11 forfeiture of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL pursuant 12 to paragraph (c) of this subdivision. Where, after such opportunity for 13 a hearing, the court determines that there is a substantial probability 14 that the commissioner will prevail in such action, the court shall grant 15 a preliminary injunction restraining the sale, release, transfer or 16 other disposition of fuel subject to the temporary order. 17 (c) (1) If it is established by clear and convincing evidence that 18 [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL was imported, caused 19 to be imported, produced, refined, manufactured or compounded [or diesel 20 motor fuel was subjected to the process of enhancement] by any person 21 not registered as a distributor as required by this article, the court 22 shall grant a judgment (i) permanently enjoining such person and his 23 agents from selling, transferring or otherwise disposing of any such 24 fuel or any fuel within this state and (ii) declaring the forfeiture of 25 any fuel that was so imported, caused to be imported, produced, refined, 26 manufactured, OR compounded [or enhanced] by such person. 27 (2) With respect to [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL 28 that was imported, caused to be imported, produced, refined, manufac- 29 tured or compounded, [or diesel motor fuel that was subjected to the 30 process of enhancement] by a person not registered as a distributor as 31 required by this article or that was unlawfully sold or transferred by 32 such person, if it is established by clear and convincing evidence that 33 any other person in possession of or having control over such fuel was 34 not a purchaser or transferee in good faith of such fuel with respect to 35 the fact that such fuel was so imported, caused to be imported, 36 produced, refined, manufactured, OR compounded [or enhanced] by a person 37 not registered as a distributor as required by this article or that such 38 fuel was so unlawfully sold or transferred by such person, the court 39 shall grant a judgment (i) permanently enjoining such other person and 40 his OR HER agents from selling, releasing, transferring or otherwise 41 disposing of any such fuel and (ii) declaring the forfeiture of such 42 fuel in the possession or under the control of such other person. 43 (d) The commissioner may, at any time subsequent to the granting of 44 the temporary order pursuant to paragraph (a) of this subdivision, in 45 his OR HER sole discretion consent to a sale of [automotive fuel] MOTOR 46 FUEL OR DIESEL MOTOR FUEL subject to such temporary order which is in 47 the possession or under the control of a person other than the person or 48 the agent of the person who imported, caused to be imported, produced, 49 refined, manufactured, compounded [or enhanced] or unlawfully sold or 50 transferred such fuel. As a condition of granting permission to a sale 51 of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL pursuant to this 52 subdivision, the commissioner shall require the payment of all taxes, 53 penalties and interest imposed by and pursuant to the authority of this 54 chapter with respect to such fuel. 55 (e) (1) At any time during the pendency of an action under this 56 section, the [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL subject A. 4011--B 52 1 to a temporary, preliminary or permanent order hereunder may be released 2 from the scope of such order if there is given an undertaking, in an 3 amount equal to the market value of such fuel plus state excise and 4 sales taxes and federal excise taxes, to the effect that there will be 5 paid to the commissioner the amount of the market value of such fuel and 6 such taxes in the event that such fuel is adjudged forfeited. 7 (2) Any person enjoined by a temporary order or a preliminary injunc- 8 tion issued pursuant to this subdivision may move at any time, on 9 notice, to vacate or modify it. 10 (f) The procedures of the civil practice law and rules applicable to 11 temporary restraining orders, preliminary injunctions and permanent 12 injunctions not inconsistent with this subdivision shall apply to tempo- 13 rary orders, preliminary injunctions and permanent injunctions issued 14 under this subdivision and any provision of this subdivision which is 15 not in accord with the constitutional mandate of such procedures of the 16 civil practice law and rules shall be deemed to be modified as necessary 17 to accord with such a mandate. The procedural provisions set forth in 18 paragraph three of subdivision (d) and in subdivision (j) of section 19 eighteen hundred forty-eight of this chapter shall apply to the forfei- 20 ture proceedings under this subdivision and, in respect to a declaration 21 of forfeiture under this subdivision, the court shall direct the commis- 22 sioner to sell or otherwise dispose of such forfeited [automotive fuel] 23 MOTOR FUEL OR DIESEL MOTOR FUEL on such conditions the commissioner 24 deems most advantageous and just under the circumstances. The commis- 25 sioner shall not be required to file any undertaking in connection with 26 an action pursuant to this subdivision. 27 S 7. Sections 283-d and 284-b of the tax law are REPEALED. 28 S 8. Subdivision 3 of section 285-b of the tax law, as amended by 29 chapter 245 of the laws of 1989, is amended to read as follows: 30 3. (a) The claim for or exemption from tax provided for in subpara- 31 graphs (i), (II), (iii), (iv), [(v),] AND (vi)[, (vii) and (ix)] of 32 paragraph (b) of subdivision three of section two hundred eighty-two-a 33 of this article shall be established by means of an exempt transaction 34 certificate. If any such exemption is applicable, such certificate shall 35 be provided by the purchaser to the seller at the time of or prior to 36 delivery of the Diesel motor fuel. Such exempt transaction certificate 37 shall set forth the name and address of the purchaser and the basis of 38 the exemption and shall be signed by such purchaser and by the seller. 39 Such certificate shall be in such form and contain such other informa- 40 tion as the commissioner [of taxation and finance] shall require. Where 41 a proper and complete exempt transaction certificate has been furnished 42 and accepted by the seller in good faith, such certificate under such 43 circumstance shall relieve the seller of the burden of proving that the 44 Diesel motor fuel covered by such certificate is exempt from tax by 45 reason of subparagraph (i), (II), (iii), (iv), [(v),] OR (vi)[, (vii) or 46 (ix)] of paragraph (b) of subdivision three of such section two hundred 47 eighty-two-a. Any purchaser who furnishes to his seller a false or frau- 48 dulent exempt transaction certificate for the purpose of establishing an 49 exemption from the tax imposed by section two hundred eighty-two-a of 50 this article shall be jointly and severally liable for the tax imposed 51 by such section. In lieu of an exempt transaction certificate, the 52 commissioner [of taxation and finance] may provide for the establishment 53 of such exemption by means of a procedure or other document which he OR 54 SHE deems appropriate so as to secure the revenues from the excise tax 55 on Diesel motor fuel. Provided, further, in the case of the exemption 56 provided by subparagraph (i) of paragraph (b) of subdivision three of A. 4011--B 53 1 section two hundred eighty-two-a of this article, the commissioner shall 2 provide for an alternative procedure or other document signed only by 3 the seller, such as a metered delivery ticket, for the establishment of 4 such exemption in those cases where such commissioner is satisfied that 5 the use of such alternative procedure or other document will not jeop- 6 ardize the revenues from the excise tax on Diesel motor fuel. 7 (b) A claim for the exemption from tax provided for in subparagraph 8 [(ii) or (viii)] (V) of paragraph (b) of subdivision three of section 9 two hundred eighty-two-a of this article shall be established by means 10 of an interdistributor sale certificate. If such exemption is applica- 11 ble, such certificate shall be provided by the purchaser to the seller 12 at the time of or prior to delivery of the Diesel motor fuel. Such 13 certificate shall set forth the name and address of the purchaser, the 14 purchaser's registration number, an affirmation by such purchaser that 15 the purchaser is registered as a distributor and that such registration 16 has not been suspended or cancelled and shall be signed by such purchas- 17 er and by the seller. Such certificate shall be in such form and contain 18 such other information as the commissioner [of taxation and finance] 19 shall require. Where a proper and complete interdistributor sale certif- 20 icate has been furnished and accepted by the seller in good faith, such 21 certificate under such circumstance shall relieve the seller of the 22 burden of proving that the Diesel motor fuel covered by such certificate 23 is exempt from tax by reason of subparagraph [(ii) or (viii)] (V) of 24 paragraph (b) of subdivision three of such section two hundred eighty- 25 two-a. For purposes of this paragraph, a seller shall not have accepted 26 such certificate in good faith if the purchaser's registration is inval- 27 id because it has been suspended or cancelled, or if the purchaser is 28 not registered, and the commissioner [of taxation and finance] has 29 furnished registered distributors with information identifying all those 30 persons then validly registered as distributors of Diesel motor fuel and 31 those persons whose registrations have been suspended or cancelled. Any 32 purchaser who furnishes to his seller a false or fraudulent interdis- 33 tributor sale certificate for the purpose of establishing an exemption 34 from the tax imposed by section two hundred eighty-two-a of this article 35 shall be jointly and severally liable for the tax imposed by such 36 section. 37 S 9. Subdivision 1 of section 286 of the tax law, as amended by chap- 38 ter 302 of the laws of 2006, is amended to read as follows: 39 1. Every person who imports or causes to be imported into this state, 40 or who produces, refines, manufactures or compounds within this state, 41 or who purchases or sells in this state motor fuel or diesel motor fuel 42 or ingredients which may be manufactured or compounded into motor fuel 43 or diesel motor fuel, [or engages in the enhancement of diesel motor 44 fuel,] shall keep a complete and accurate record of all purchases and 45 sales, uses or other dispositions thereof and a complete and accurate 46 record of the number of gallons of motor fuel or diesel motor fuel or 47 such ingredients so imported, produced, refined, manufactured[,] OR 48 compounded [or enhanced]. Every person who stores motor fuel or diesel 49 motor fuel shall keep a complete and accurate record of the identity of 50 the person for whom such fuel is stored, the quantity and type of fuel 51 so stored, the identity of the person to whom such fuel is released from 52 storage and the quantity and type of fuel so released. Such records 53 shall be in such form and contain such other information as the commis- 54 sioner shall prescribe. Said commissioner, by rule or regulation, also 55 may require the delivery of statements to purchasers with consignments 56 of motor fuel or diesel motor fuel or such ingredients, and prescribe A. 4011--B 54 1 the matters to be contained therein. Such records and statements, unless 2 required by the commissioner to be preserved for a longer period, shall 3 be preserved for a period of three years and shall be offered for 4 inspection at any time upon oral or written demand by such commissioner 5 or the commissioner's duly authorized agents. The commissioner is hereby 6 further authorized to examine the equipment of any such person pertain- 7 ing to the storage, sale or delivery of such fuels, as well as the stock 8 of such fuels in the possession or control of such person. To verify the 9 amount of tax due under this article, each such person is hereby 10 directed and required to give to the commissioner or the commissioner's 11 duly authorized representatives, the means, facilities and opportunity 12 for such examinations as are herein provided for and required. Nothing 13 CONTAINED in this section [contained] shall be construed to require the 14 keeping for purposes of this article of a record of purchases or sales 15 of motor fuel or diesel motor fuel or such ingredients at retail in 16 small quantities (less than thirty gallons) or of motor fuel or diesel 17 motor fuel imported into this state in the tank of a motor vehicle which 18 supplies the fuel for its operation. 19 S 10. Section 286-a of the tax law, as amended by chapter 261 of the 20 laws of 1988, is amended to read as follows: 21 S 286-a. Records and reports of transportation of [automotive] MOTOR 22 FUEL AND DIESEL MOTOR fuel. Every person transporting [automotive] MOTOR 23 FUEL OR DIESEL MOTOR fuel within this state, whether such transportation 24 originates within or without this state, when required by the [tax 25 commission] COMMISSIONER, shall keep a true and accurate record of all 26 [automotive] MOTOR FUEL AND DIESEL MOTOR fuel so transported, including 27 ingredients which may be manufactured or compounded into [automotive] 28 MOTOR FUEL OR DIESEL MOTOR fuel, showing such facts with relation to 29 such [automotive] fuel and ingredients and their transportation as the 30 [tax commission] COMMISSIONER may require. Such record shall be open to 31 inspection by the representatives of the department [of taxation and 32 finance] at any time and the [tax commission] COMMISSIONER may require 33 from any such person sworn returns of all or any part of the information 34 shown by such records. 35 S 11. Section 286-b of the tax law, as amended by chapter 261 of the 36 laws of 1988, is amended to read as follows: 37 S 286-b. Transportation of [automotive] MOTOR FUEL OR DIESEL MOTOR 38 fuel; manifest required. 1. The master or other person in charge of any 39 barge, tanker or other vessel in which [automotive] MOTOR FUEL OR DIESEL 40 MOTOR fuel is being transported over any of the navigable waters of this 41 state, the operator of a motor vehicle in which [automotive] MOTOR FUEL 42 OR DIESEL MOTOR fuel is being transported in this state, or the operator 43 of a pipeline through which [automotive] MOTOR FUEL OR DIESEL MOTOR fuel 44 is being transported in this state, other than [automotive] MOTOR FUEL 45 OR DIESEL MOTOR fuel being transported for use in operating the engine 46 which propels such vessel or motor vehicle, as the case may be, must 47 have in his OR HER possession a manifest which shows the name and 48 address of the person from whom such [automotive] fuel was received by 49 him OR HER and the place of receipt of such fuel and the name and 50 address of every person to whom he OR SHE is to make delivery of the 51 same and the place of delivery, together with the number of gallons to 52 be delivered to each such person, and, if such [automotive] fuel is 53 being imported into the state in such vessel, motor vehicle or pipeline 54 for use, storage, distribution or sale in the state, the name of the 55 distributor importing or causing such fuel to be imported into the state 56 and such other information as the [tax commission] COMMISSIONER may A. 4011--B 55 1 require pursuant to rule or regulation, and shall at the request of a 2 peace officer, acting pursuant to his OR HER special duties, a police 3 officer, any representative of the department [of taxation and finance] 4 or any other person authorized by law to inquire into or investigate the 5 transportation of such [automotive] fuel, produce such manifest for 6 inspection. The person causing the operation of such vessel, motor vehi- 7 cle or pipeline shall be responsible to cause the operator of such 8 vessel, motor vehicle or pipeline to keep in his OR HER possession on 9 such vessel, in such motor vehicle or in the main control building of 10 such pipeline in this state the manifest required by this section. The 11 absence of the manifest required by this section shall give rise to a 12 presumption that the [automotive] MOTOR FUEL OR DIESEL MOTOR fuel being 13 transported is intended for sale, use, distribution or storage in this 14 state and is being imported or caused to be imported by other than a 15 registered distributor. Moreover, the absence of (1) the place of deliv- 16 ery of motor fuel OR DIESEL MOTOR FUEL on the manifest with respect to 17 [automotive] MOTOR FUEL OR DIESEL MOTOR fuel being imported into the 18 state shall give rise to a presumption that such fuel is being imported 19 into the state for use, distribution, storage or sale in the state and 20 (2) the name of a registered distributor on the manifest with respect to 21 [automotive] MOTOR FUEL OR DIESEL MOTOR fuel being imported into the 22 state for use, distribution, storage or sale in the state shall give 23 rise to a presumption that such fuel is being so imported or caused to 24 be imported by other than a registered distributor. Every barge, tanker 25 or other vessel so used for the transportation of motor fuel must be 26 plainly and visibly marked on both sides thereof and above the water 27 line with the word "Gasoline," or other name of the motor fuel being 28 transported, in letters at least eight inches high and of corresponding 29 appropriate width, or must be identified as prescribed by the [tax 30 commission] COMMISSIONER pursuant to rule or regulation. The master or 31 person in charge of such barge, tanker or other vessel, as well as the 32 owners thereof, shall be guilty of a violation of this section if such 33 barge, tanker or other vessel is not so marked. 34 2. The commissioner may, by regulation provide for the form and 35 content of the manifest required for [automotive] MOTOR AND DIESEL MOTOR 36 fuel and for the filing of monthly information returns by every person 37 required to maintain records, described in subdivision one of this 38 section, which shall in all material respects reflect the information 39 required to be contained in such records. Such returns shall be in such 40 form and contain such other information as the commissioner shall 41 require. 42 S 12. Subdivision 1 of section 287 of the tax law, as amended by chap- 43 ter 261 of the laws of 1988, is amended to read as follows: 44 1. Every distributor shall, on or before the twentieth day of each 45 month, file with the department [of taxation and finance] a return, on 46 forms to be prescribed by the commissioner and furnished by such depart- 47 ment, stating the number of gallons of motor fuel imported, manufactured 48 or sold by such distributor in the state during the preceding calendar 49 month and in the case of Diesel motor fuel, the number of gallons of 50 [enhanced] Diesel motor fuel imported[, the number of gallons enhanced] 51 and the number of gallons which have been sold or used. Provided, howev- 52 er, the commissioner may, if he OR SHE deems it necessary in order to 53 [insure] ENSURE the payment of the taxes imposed by this article, 54 require returns to be made at such times and covering such periods as he 55 OR SHE may deem necessary, and, by regulation, may permit the filing of 56 returns by distributors of Diesel motor fuel on a quarterly, semi-annual A. 4011--B 56 1 or annual basis, or may waive the filing of returns by a distributor of 2 Diesel motor fuel for such time and upon such terms as he OR SHE may 3 deem proper if satisfied that no tax imposed by this article with 4 respect to Diesel motor fuel is or will be payable by him OR HER during 5 the time for which returns are waived. Such returns shall contain such 6 further information as the commissioner shall require. The fact that a 7 distributor's name is signed to a filed return shall be prima facie 8 evidence for all purposes that the return was actually signed by such 9 distributor. Each such distributor shall, with respect to motor fuel, 10 pay to the department with the filing of such return, the taxes imposed 11 by this article on each gallon of motor fuel imported, manufactured or 12 sold by such distributor in the state, and so reported, during the peri- 13 od covered by such return. Each distributor shall, with respect to 14 Diesel motor fuel, pay to the department with the filing of the return 15 the taxes imposed by this article on the number of gallons of Diesel 16 motor fuel sold or used or delivered to a filling station or delivered 17 into the fuel tank of a motor vehicle during the period covered by the 18 return. Provided, however, that where a distributor has purchased [auto- 19 motive] MOTOR FUEL OR DIESEL MOTOR fuel upon which the taxes imposed by 20 this article have been paid or paid over and in each instance the tax is 21 included in the price, a credit shall be allowed for the amount of such 22 taxes upon the subsequent sale of such fuel to the extent that such 23 taxes are so paid and included in the price. 24 S 13. Paragraphs (a) and (c) of subdivision 3 of section 289-c of the 25 tax law, paragraph (a) as amended by chapter 558 of the laws of 1965 and 26 paragraph (c) as amended by chapter 302 of the laws of 2006, are amended 27 to read as follows: 28 (a) Except as otherwise provided in paragraph (b) of this section, any 29 person who shall buy any motor fuel or diesel motor fuel, on which the 30 tax imposed by this article shall have been paid, and shall consume the 31 same in any manner except in the operation of a motor vehicle upon or 32 over the PUBLIC highways of this state, or in the operation of a pleas- 33 ure or recreational motor boat upon or over the waterways of the state 34 including waterways bordering on the state, shall be reimbursed the 35 amount of such tax in the manner and subject to the conditions herein 36 provided except that there shall be no reimbursement of tax paid on 37 motor fuel or diesel motor fuel taken out of this state in a fuel tank 38 connected with the engine of a motor vehicle and consumed outside of 39 this state. 40 (c) All claims for reimbursement shall be in such form and contain 41 such information as the commissioner shall prescribe and shall be filed 42 within three years from (i) the date of the purchase, in the case of the 43 purchaser; or (ii) the date of the sale, in the case of the seller, of 44 the motor fuel so subject to reimbursement. Every such claim shall 45 include a certificate by or on behalf of the party presenting the same 46 to the effect that it is just, true and correct, that no part thereof 47 has been paid, except as stated therein, and that the balance therein 48 stated is actually due and owing. The claimant shall satisfy the depart- 49 ment that the claimant has borne the tax and that the motor fuel has 50 been consumed by the claimant in a manner other than the operation of a 51 motor vehicle upon or over the PUBLIC highways of this state, the opera- 52 tion of a pleasure or recreational motorboat upon or over the waterways 53 of the state including waterways bordering on the state or, in the case 54 of an omnibus carrier, taxicab licensee, nonpublic school operator or 55 volunteer ambulance service, that the claimant has borne the tax and 56 that the amount claimed is the amount of such tax reimbursable under A. 4011--B 57 1 paragraph (b), (d), (e) or (f) of THIS subdivision [three of this 2 section]. The department may require such further information or proof 3 as it shall deem necessary for the administration of such claim. Claims 4 for reimbursement approved by the department shall be paid from revenues 5 collected under this article and deposited to the credit of the comp- 6 troller as hereinafter provided; but no such claims shall be paid unless 7 the department is satisfied that the amount of the tax for which the 8 reimbursement is claimed has actually been collected by the state. The 9 amount of any erroneous or excessive payment to a claimant for 10 reimbursement may be determined by the department and may be recovered 11 from such claimant in the same manner as a tax imposed by this article, 12 provided, however, that any such determination shall be made within 13 three years after the date of such erroneous or excessive payment. 14 S 14. Subdivision 4 of sections 289-c of the tax law is REPEALED. 15 S 15. Subdivision 1 of section 289-e of the tax law, as amended by 16 section 5 of part EE of chapter 63 of the laws of 2000, is amended to 17 read as follows: 18 1. All taxes, interest, penalties and fees collected or received by 19 the commissioner under the taxes imposed by this article, except as 20 provided otherwise in subdivision two and subdivision three of this 21 section and sections two hundred eighty-two-b, two hundred eighty-two-c, 22 two hundred eighty-four-a and two hundred eighty-four-c, other than 23 [those imposed by section two hundred eighty-four-b and] the fee imposed 24 by section two hundred eighty-four-d and penalties and interest on such 25 fee, shall be deposited and disposed of pursuant to the provisions of 26 section one hundred seventy-one-a of this chapter; provided that an 27 amount equal to thirty-seven and one-half per centum of the moneys 28 collected under section two hundred eighty-four of this chapter shall be 29 appropriated and used for the acquisition of property necessary for the 30 construction and reconstruction of highways and bridges or culverts on 31 the state highway system, and for the construction, maintenance and 32 repair of such highways and bridges or culverts, all under the direction 33 of the commissioner of transportation. 34 S 16. Section 289-f of the tax law, as added by chapter 44 of the laws 35 of 1985, is amended to read as follows: 36 S 289-f. Joint administration of taxes. In addition to the powers 37 granted to the [tax commission] COMMISSIONER in this chapter, the 38 [commission] COMMISSIONER is hereby authorized to make provisions pursu- 39 ant to rules and regulations for the joint administration, in whole or 40 in part, of the state and local taxes imposed by article twenty-eight 41 and authorized to be imposed by article twenty-nine of this chapter upon 42 the sale of [automotive] MOTOR FUEL OR DIESEL MOTOR fuel and the taxes 43 imposed and authorized to be imposed by this article, including the 44 joint reporting, assessment, collection, determination and refund of 45 such taxes, and for that purpose to prescribe that any of the [commis- 46 sion's] COMMISSIONER'S functions under such articles, and any returns, 47 forms, statements, documents or information to be submitted to the 48 [commission] COMMISSIONER under such articles, any books and records to 49 be kept for purposes of the taxes imposed or authorized to be imposed by 50 such articles, any schedules of amounts to be collected under such arti- 51 cles, any registration required under such articles, and the payment of 52 taxes under such articles shall be on a joint basis with respect to the 53 taxes imposed by such articles. 54 S 17. Paragraph 2 of subdivision (b) and subdivisions (c), (k), (l) 55 and (m) of section 300 of the tax law, paragraph 2 of subdivision (b) as 56 amended by chapter 170 of the laws of 1994, subdivision (c) as added by A. 4011--B 58 1 chapter 190 of the laws of 1990, subdivision (k) as amended by section 1 2 of part H of chapter 407 of the laws of 1999 and subdivisions (l) and 3 (m) as added by chapter 309 of the laws of 1996, are amended to read as 4 follows: 5 (2) With respect to diesel motor fuel, every corporation and unincor- 6 porated business (i) importing diesel motor fuel or causing diesel motor 7 fuel to be imported into the state for use, distribution, storage or 8 sale in the state, (ii) producing, refining, manufacturing or compound- 9 ing diesel motor fuel within the state, (iii) [engaging in the enhance- 10 ment of diesel motor fuel within the state, (iv)] making a sale or use 11 of diesel motor fuel in the state, other than a retail sale not in bulk 12 or self-use of diesel motor fuel which has been the subject of a retail 13 sale to such corporation or unincorporated business, or [(v)] (IV) 14 registered by the department [of taxation and finance] as a "distributor 15 of kero-jet fuel only" pursuant to the provisions of subdivision two of 16 section two hundred eighty-two-a of this chapter. Diesel motor fuel 17 brought into this state in the ordinary fuel tank connecting with the 18 engine of a motor vehicle, airplane or other conveyance, but not a 19 vessel (other than a recreational motor boat or a commercial fishing 20 vessel as defined in subdivision (j) of this section if the diesel motor 21 fuel imported into and consumed in this state is used to operate such 22 vessel while it is engaged in the harvesting of fish for sale), 23 propelled by the use of such diesel motor fuel and to be used only in 24 the operation thereof, shall not be deemed imported within the meaning 25 of this article, if not removed from such tank except as used in the 26 propulsion of such engine. 27 (c) [(1)] The [term (A)] TERMS (1) "diesel motor fuel" means such term 28 as defined in subdivision fourteen of section two hundred eighty-two of 29 this chapter [and regulations thereunder including any regulations 30 relating to product specifically designated "No. 4 diesel fuel" and not 31 suitable as a fuel used in the operation of a motor vehicle engine], and 32 [(B) "enhanced] (2) "HIGHWAY diesel motor fuel" means such term as 33 defined in subdivision [sixteen] SIXTEEN-A of section two hundred eight- 34 y-two of this chapter, and 35 [(C)(i) "nonautomotive type diesel motor fuel" as used in relation to 36 the rates of the tax imposed by section three hundred one-a of this 37 article means any diesel motor fuel, as described in subparagraph (A) of 38 this paragraph, which would be excluded from the diesel motor fuel 39 excise tax imposed by section two hundred eighty-two-a of this chapter 40 solely by reason of the enumerated exclusions based on ultimate use of 41 the product set forth in paragraph (b) of subdivision three of such 42 section, and (ii) "automotive-type diesel motor fuel" as used in 43 relation to the rates of tax imposed by such section three hundred one-a 44 means diesel motor fuel which is not nonautomotive-type diesel motor 45 fuel.] 46 (3) "NON-HIGHWAY DIESEL MOTOR FUEL" MEANS SUCH TERM AS DEFINED IN 47 SUBDIVISION SIXTEEN OF SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER. 48 [(2)] (4) As used in this article, references to persons or petroleum 49 businesses registered under article twelve-A of this chapter as distrib- 50 utors of diesel motor fuel shall include all such persons or petroleum 51 businesses registered under such article as distributors of diesel motor 52 fuel and persons or petroleum businesses operating under valid limited 53 registrations relating to persons or petroleum businesses making retail 54 sales of diesel motor fuel to consumers solely for the purposes 55 described in subparagraph (i) of paragraph (b) of subdivision three of 56 section two hundred eighty-two-a of this chapter, but such references A. 4011--B 59 1 shall not include persons and petroleum businesses registered as 2 "distributors of kero-jet fuel only" pursuant to the provisions of 3 subdivision two of section two hundred eighty-two-a of this chapter. 4 (k) "Commercial gallonage" means gallonage (1) which is [nonautomo- 5 tive-type] NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel 6 motor fuel)] or residual petroleum product, (2) which is included in the 7 full measure of the [nonautomotive-type] NON-HIGHWAY diesel motor fuel 8 component or the residual petroleum product component of the tax imposed 9 under section three hundred one-a of this article, [and] (3) which does 10 not (and will not) qualify (A) for the utility credit or reimbursement 11 provided for in section three hundred one-d of this article, (B) as 12 "manufacturing gallonage", as such term is defined in subdivision (m) of 13 this section, (C) for the not-for-profit organization exemption provided 14 for in subdivision (h) of section three hundred one-b of this article, 15 or (D) for the heating exemption provided for in paragraph two of subdi- 16 vision (d) of section three hundred one-b of this article or the heating 17 reimbursement provided for in paragraph two of subdivision (a) of 18 section three hundred one-c of this article, AND (4) WHICH WILL NOT BE 19 USED NOR HAS BEEN USED IN THE FUEL TANK CONNECTING WITH THE ENGINE OF A 20 VESSEL. No gallonage shall qualify as "commercial gallonage" where such 21 gallonage is eligible for the (i) utility credit or reimbursement under 22 such section three hundred one-d of this article, (ii) [if before Janu- 23 ary first, nineteen hundred ninety-eight, the manufacturing exemption or 24 reimbursement under paragraph one of subdivision (b) of section three 25 hundred one-j of this article and, if on or after January first, nine- 26 teen hundred ninety-eight, the] "manufacturing exemption" under para- 27 graph [four] THREE of subdivision (f) of section three hundred one-a of 28 this article, (iii) [the] not-for-profit organization exemption under 29 subdivision (h) of section three hundred one-b of this article, or (iv) 30 heating exemption provided for in paragraph two of subdivision (d) of 31 section three hundred one-b of this article or the heating reimbursement 32 provided for in paragraph two of subdivision (a) of section three 33 hundred one-c of this article. The commissioner shall require such docu- 34 mentary proof to substantiate the classification of product as "commer- 35 cial gallonage" as the commissioner deems appropriate. 36 (l) "Railroad diesel" means NON-HIGHWAY diesel motor fuel for use and 37 consumption directly and exclusively in the operation of a locomotive or 38 a self-propelled vehicle run only on rails or tracks, but only if either 39 (1) all such fuel is delivered into a storage facility which is not 40 equipped with a hose or other apparatus by which such fuel can be 41 dispensed into the fuel tank of a motor vehicle and such facility is 42 used only to fuel such locomotives or such self-propelled vehicles, or 43 (2) in accordance with the terms of sale, all such fuel is delivered 44 directly into the tank of a locomotive or self-propelled vehicle. 45 Provided, however, that a sale to a purchaser who will use such 46 NON-HIGHWAY diesel motor fuel as "railroad diesel" shall be evidenced by 47 a certificate signed by the purchaser stating that such diesel motor 48 fuel will be used and consumed as prescribed in this subdivision and the 49 commissioner may require such other information as the commissioner 50 deems appropriate. 51 (m) "Manufacturing gallonage" means residual petroleum product or 52 NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor 53 fuel)] used and consumed directly and exclusively in the production of 54 tangible personal property for sale by manufacturing, processing or 55 assembly, but only if (I) all of such fuel or product is delivered on 56 the manufacturing site [and is consumed other than on the highways of A. 4011--B 60 1 this state], OR (II) THE PURCHASER CAUSES SUCH FUEL OR PRODUCT TO BE 2 DELIVERED TO ITS MANUFACTURING SITE. "Manufacturing gallonage" shall in 3 no event [include diesel motor fuel] BE CONSUMED ON THE PUBLIC HIGHWAYS 4 OF THIS STATE OR delivered at a filling station or into a repository 5 which is equipped with a hose or other apparatus by which such fuel can 6 be dispensed into the fuel tank of a motor vehicle. The commissioner 7 shall require such documentary proof to substantiate the classification 8 of product as "manufacturing gallonage" as the commissioner deems appro- 9 priate. 10 S 18. Section 301 of the tax law is REPEALED. 11 S 19. Subdivision (a), paragraph 1 of subdivision (b) and subdivisions 12 (c), (e), (f) and (h) of section 301-a of the tax law, subdivision (a) 13 as amended by section 1 of part U of chapter 63 of the laws of 2000, 14 paragraph 1 of subdivision (b) and paragraph 1 of subdivision (c) as 15 amended by section 154 of part A of chapter 389 of the laws of 1997, 16 subdivisions (c), (e), (f) and (h) as added by chapter 190 of the laws 17 of 1990, paragraph 3 of subdivision (e) and paragraph 3 of subdivision 18 (f) as amended by chapter 170 of the laws of 1994 and paragraph 4 of 19 subdivision (e) and paragraph 4 of subdivision (f) as added by chapter 20 309 of the laws of 1996, are amended to read as follows: 21 (a) General. Notwithstanding any other provision of this chapter, or 22 of any other law, [for taxable months commencing on or after the first 23 day of September, nineteen hundred ninety,] there is hereby imposed upon 24 every petroleum business for the privilege of engaging in business, 25 doing business, employing capital, owning or leasing property, or main- 26 taining an office in this state, a monthly tax for each or any part of a 27 taxable month equal to the sum of the motor fuel component determined 28 pursuant to subdivision (b) of this section, the [automotive-type] HIGH- 29 WAY diesel motor fuel component determined pursuant to paragraph one of 30 subdivision (c) of this section, the [nonautomotive-type] NON-HIGHWAY 31 diesel motor fuel component determined pursuant to paragraph two of 32 subdivision (c) of this section and the residual petroleum product 33 component determined pursuant to subdivision (d) of this section. 34 (1) The motor fuel component shall be determined by multiplying the 35 motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate times 36 the number of gallons of (1) motor fuel imported or caused to be 37 imported into this state by the petroleum business for use, distrib- 38 ution, storage or sale in the state or (2) produced, refined, manufac- 39 tured or compounded in the state by the petroleum business during the 40 month covered by the return under this article. Provided, however, that 41 no motor fuel shall be included in the measure of the tax unless it 42 shall have previously come to rest within the meaning of federal deci- 43 sional law interpreting the United States constitution, nor shall any 44 motor fuel be included in the measure of the tax imposed by this article 45 more than once. 46 (c) (1) [Automotive-type] HIGHWAY Diesel motor fuel component. (A) The 47 [automotive-type] HIGHWAY diesel motor fuel component shall be deter- 48 mined by multiplying the motor fuel and [automotive-type] HIGHWAY diesel 49 motor fuel rate times (1) the number of gallons of [automotive-type] 50 HIGHWAY diesel motor fuel sold or used by a petroleum business in this 51 state during the month covered by the return under this article and (2) 52 with respect to any gallonage which prior thereto has not been included 53 in the measure of the tax imposed by this article, times the number of 54 gallons of HIGHWAY diesel motor fuel delivered (i) to a filling station 55 or (ii) into the fuel tank connecting with the engine of a motor vehicle 56 for use in the operation thereof, whichever of the latter two events A. 4011--B 61 1 shall be the first to occur. Provided, however, that no HIGHWAY diesel 2 motor fuel shall be included in the measure of the tax unless it shall 3 have previously come to rest within the meaning of federal decisional 4 law interpreting the United States constitution, nor decisional law, nor 5 shall any HIGHWAY diesel motor fuel be included in the measure of the 6 tax imposed by this article more than once. 7 (B) [Diesel] HIGHWAY DIESEL motor fuel brought into this state in the 8 fuel tank connecting with the engine of a vessel propelled by the use of 9 such diesel motor fuel shall be deemed to constitute a taxable use of 10 diesel motor fuel for the purpose of this paragraph to the extent of the 11 fuel that is consumed in the operation of the vessel in this state. 12 Provided, however, this paragraph shall not apply to (i) a recreational 13 motor boat or (ii) [subsequent to August thirty-first, nineteen hundred 14 ninety-four,] a commercial fishing vessel (as defined in subdivision (j) 15 of section three hundred of this article) if the HIGHWAY diesel motor 16 fuel imported into and consumed in this state is used to operate such 17 commercial fishing vessel while it is engaged in the harvesting of fish 18 for sale. Provided, further, that tax liability for gallonage that a 19 vessel consumes in this state shall be the tax liability with respect to 20 the positive difference between the gallonage consumed in this state 21 during the reporting period and the gallonage purchased in this state 22 (upon which the tax imposed by this section has been paid) during such 23 period. A credit or refund shall be available for any excess of tax 24 liability for gallonage purchased in this state during the period over 25 tax liability on gallonage so consumed in this state during such period, 26 which excess shall be presumed to have been used outside this state. 27 (2) [Nonautomotive-type] NON-HIGHWAY diesel motor fuel component. The 28 [nonautomotive-type] NON-HIGHWAY diesel fuel component shall be deter- 29 mined by multiplying the [nonautomotive-type] NON-HIGHWAY diesel motor 30 fuel rate times the number of gallons of [nonautomotive-type] NON-HIGH- 31 WAY diesel motor fuel sold or used by a petroleum business in this state 32 during the month covered by the return under this section. Provided, 33 however, that no NON-HIGHWAY diesel motor fuel shall be included in the 34 measure of the tax unless it shall have previously come to rest within 35 the meaning of federal decisional law interpreting the United States 36 constitution, nor shall any [nonautomotive-type] NON-HIGHWAY diesel 37 motor fuel be included in the measure of the tax imposed by this article 38 more than once. 39 (e) Motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate. 40 (1) The basic motor fuel and HIGHWAY diesel [automotive-type] motor fuel 41 rate shall be [five and one-half] TEN AND TWO-TENTHS cents per gallon. 42 (2) [Commencing April first, nineteen hundred ninety-one, the motor 43 fuel and automotive-type diesel motor fuel rate shall be the product of 44 the basic rate set forth in paragraph one of this subdivision multiplied 45 by a fraction, the numerator of which is the sum of the monthly producer 46 price index (unadjusted) published by the bureau of labor statistics of 47 the United States department of labor for the category of commodities 48 designated "refined petroleum products" for the twelve consecutive 49 months ending with the month of November, nineteen hundred ninety, and 50 the denominator of which is the sum of the monthly producer price index 51 (unadjusted) published by the bureau of labor statistics of the United 52 States department of labor for the category of commodities designated 53 "refined petroleum products" for the twelve consecutive months ending 54 with the month of November, nineteen hundred eighty-nine. 55 (3) Commencing on the first day of January, nineteen hundred ninety- 56 two, the motor fuel and automotive-type diesel motor fuel rate then in A. 4011--B 62 1 effect on the immediately preceding December thirty-first shall be 2 adjusted as follows: such rate shall be multiplied by a fraction the 3 numerator of which is the sum of the monthly producer price index (unad- 4 justed) published by the bureau of labor statistics of the United States 5 department of labor for the category of commodities designated "refined 6 petroleum products" for the twelve consecutive months ending with the 7 month of August, nineteen hundred ninety-one and the denominator of 8 which is the sum of the monthly producer price index (unadjusted) 9 published by the bureau of labor statistics of the United States depart- 10 ment of labor for the category of commodities designated "refined petro- 11 leum products" for the twelve consecutive months ending with the month 12 of August, nineteen hundred ninety. Commencing on the first day of Janu- 13 ary of nineteen hundred ninety-six and every] EVERY year [thereafter] AS 14 OF JANUARY FIRST, the motor fuel and [automotive-type] HIGHWAY diesel 15 motor fuel rate then in effect on the immediately preceding December 16 thirty-first shall be adjusted as follows: such rate shall be multiplied 17 by a fraction the numerator of which is the sum of the monthly producer 18 price index (unadjusted) published by the bureau of labor statistics of 19 the United States department of labor for the category of commodities 20 designated "refined petroleum products" for the twelve consecutive 21 months ending with the month of August of the immediately preceding year 22 and the denominator of which is the sum of the monthly producer price 23 index (unadjusted) published by the bureau of labor statistics of the 24 United States department of labor for the category of commodities desig- 25 nated "refined petroleum products" for the twelve consecutive months 26 ending with the month of August in the year prior to such immediately 27 preceding year, provided, however, that the adjusted rate [to take 28 effect on January first, nineteen hundred ninety-six and each January 29 first thereafter] shall not increase above or decrease below the rate in 30 effect on the immediately preceding December thirty-first by more than 31 five percent. 32 [(4)] (3) Notwithstanding any other provision of this article, 33 [commencing January first, nineteen hundred ninety-seven,] the per 34 gallon rate with respect to "railroad diesel" shall be the adjusted 35 motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate under 36 paragraphs one [through three] AND TWO of this subdivision [for the 37 period commencing such January first, nineteen hundred ninety-seven,] 38 minus one and three tenths cents per gallon. [Commencing on the first 39 day of January each year thereafter, the per gallon rate with respect to 40 "railroad diesel" shall be determined by taking the then motor fuel and 41 automotive-type diesel motor fuel rate under paragraphs one through 42 three of this subdivision which commences on such first day of January 43 and subtracting one and three tenths cents per gallon.] 44 (f) [Nonautomotive-type] NON-HIGHWAY diesel motor fuel rate. 45 (1) The basic [nonautomotive-type] NON-HIGHWAY diesel motor fuel rate 46 shall be [five] NINE AND THREE-TENTHS cents per gallon. 47 (2) [Commencing April first, nineteen hundred ninety-one, the nonauto- 48 motive-type diesel motor fuel rate shall be the product of the basic 49 rate set forth in paragraph one of this subdivision multiplied by a 50 fraction the numerator of which is the sum of the monthly producer price 51 index (unadjusted) published by the bureau of labor statistics of the 52 United States department of labor for the category of commodities desig- 53 nated "refined petroleum products" for the twelve consecutive months 54 ending with the month of November, nineteen hundred ninety, and the 55 denominator of which is the sum of the monthly producer price index 56 (unadjusted) published by the bureau of the labor statistics of the A. 4011--B 63 1 United States department of labor for the category of commodities desig- 2 nated "refined petroleum products" for the twelve consecutive months 3 ending with the month of November, nineteen hundred eighty-nine. 4 (3) Commencing on the first day of January, nineteen hundred ninety- 5 two, the nonautomotive-type diesel motor fuel rate then in effect on the 6 immediately preceding December thirty-first shall be adjusted as 7 follows: Such rate shall be multiplied by a fraction the numerator of 8 which is the sum of the monthly producer price index (unadjusted) 9 published by the bureau of labor statistics of the United States depart- 10 ment of labor for the category of commodities designated "refined petro- 11 leum products" for the twelve consecutive months ending with the month 12 of August, nineteen hundred ninety-one and the denominator of which is 13 the sum of the monthly producer price index (unadjusted) published by 14 the bureau of labor statistics of the United States department of labor 15 for the category of commodities designated "refined petroleum products" 16 for the twelve consecutive months ending with the month of August, nine- 17 teen hundred ninety. Commencing on the first day of January of nineteen 18 hundred ninety-six and every] EVERY year [thereafter,] AS OF JANUARY 19 FIRST the [nonautomotive-type] NON-HIGHWAY diesel motor fuel rate then 20 in effect on the immediately preceding December thirty-first shall be 21 adjusted as follows: Such rate shall be multiplied by a fraction the 22 numerator of which is the sum of the monthly producer price index (unad- 23 justed) published by the bureau of labor statistics of the United States 24 department of labor for the category of commodities designated "refined 25 petroleum products" for the twelve consecutive months ending with the 26 month of August of the immediately preceding year and the denominator of 27 which is the sum of the monthly producer price index (unadjusted) 28 published by the bureau of labor statistics of the United States depart- 29 ment of labor for the category of commodities designated "refined petro- 30 leum products" for the twelve consecutive months ending with the month 31 of August in the year prior to such immediately preceding year, 32 provided, however, that the adjusted rate [to take effect on January 33 first, nineteen hundred ninety-six and each January first thereafter] 34 shall not increase above or decrease below the rate in effect on the 35 immediately preceding December thirty-first by more than five percent. 36 [(4)] (3) Notwithstanding any other provision of this article, 37 [commencing January first, nineteen hundred ninety-eight, nonautomo- 38 tive-type] NON-HIGHWAY diesel motor fuel which is "manufacturing gallo- 39 nage," as such term is defined in subdivision (m) of section three 40 hundred of this article, shall be exempt from the measure of the [nonau- 41 tomotive-type] NON-HIGHWAY diesel motor fuel component of the tax 42 imposed under this section. 43 (h) Publication and rounding of rate. (1) The commissioner [of taxa- 44 tion and finance] shall cause to be published in the section for miscel- 45 laneous notices in the state register, and give other appropriate gener- 46 al notice of, the rate adjustment calculation and the resulting motor 47 fuel and [automotive-type] HIGHWAY diesel motor fuel rate, [nonautomo- 48 tive-type] NON-HIGHWAY diesel motor fuel rate and residual petroleum 49 product rate fixed by this section for the period commencing on [April 50 first, nineteen hundred ninety-one, no later than the immediately 51 preceding first day of March] JANUARY FIRST, TWO THOUSAND TWELVE, and 52 for each calendar year thereafter, no later than the immediately preced- 53 ing first day of December. The calculation and publication of the rates 54 of tax so fixed by provisions of this section shall not be included 55 within paragraph (a) of subdivision two of section one hundred two of A. 4011--B 64 1 the state administrative procedure act relating to the definition of a 2 rule. 3 (2) The rates determined pursuant to this section shall be rounded to 4 the nearest one-tenth of one cent. 5 S 19-a. Subdivision (k) of section 301-a of the tax law is REPEALED. 6 S 20. Section 301-a of the tax law is amended by adding a new subdivi- 7 sion (m) to read as follows: 8 (M) SPECIAL RATE ADJUSTMENT FOR CERTAIN VESSELS. NOTWITHSTANDING ANY 9 PROVISION OF THIS SECTION TO THE CONTRARY, THE USE OF NON-HIGHWAY DIESEL 10 MOTOR FUEL IN THE ENGINE OF A VESSEL TO PROPEL SUCH VESSEL SHALL BE 11 SUBJECT TO TAX AT THE MOTOR FUEL AND HIGHWAY DIESEL MOTOR FUEL RATE 12 PROVIDED FOR IN THIS SECTION, AND SHALL BE SUBJECT TO THE PROVISIONS OF 13 SECTION THREE HUNDRED ONE-J OF THIS ARTICLE, INCLUDING THE ADJUSTMENT 14 SET FORTH IN PARAGRAPH FOUR OF SUBDIVISION (A) OF SUCH SECTION THREE 15 HUNDRED ONE-J. A CREDIT OR REFUND SHALL BE AVAILABLE TO THE EXTENT TAX 16 PAID ON GALLONAGE USED TO PROPEL ANY SUCH VESSEL EXCEEDS THE AMOUNT OF 17 TAX DUE BASED ON THE TAX RATE SET FORTH HEREIN. PROVIDED, HOWEVER, THAT 18 THE COMMISSIONER SHALL REQUIRE SUCH DOCUMENTARY PROOF TO QUALIFY FOR ANY 19 CREDIT OR REIMBURSEMENT PROVIDED HEREUNDER AS THE COMMISSIONER DEEMS 20 APPROPRIATE. 21 S 21. Paragraph 2 of subdivision (b), paragraphs 2 and 3 of subdivi- 22 sion (c), subdivisions (d) and (e), paragraph 1 of subdivision (f) and 23 subdivisions (g), (h) and (i) of section 301-b of the tax law, paragraph 24 2 of subdivision (b) and paragraphs 2 and 3 of subdivision (c) and 25 subdivision (e) as added by chapter 190 of the laws of 1990, the opening 26 paragraph of paragraph 2 of subdivision (b) as amended by section 155 of 27 part A of chapter 389 of the laws of 1997, subdivision (d) as amended by 28 section 2 of part H of chapter 407 of the laws of 1999 and subparagraph 29 (C) of paragraph 2 of subdivision (d) as amended by section 1 of part X 30 of chapter 63 of the laws of 2000, paragraph 1 of subdivision (f) as 31 added by chapter 166 of the laws of 1991, subdivision (g) as added by 32 chapter 170 of the laws of 1994, subdivision (h) as amended by chapter 33 302 of the laws of 2006 and subdivision (i) as added by chapter 468 of 34 the laws of 2000, are amended to read as follows: 35 (2) [Enhanced] HIGHWAY diesel motor fuel imported or caused to be 36 imported into this state or produced, refined, manufactured or 37 compounded in this state by a petroleum business registered under arti- 38 cle twelve-A of this chapter, as a distributor of diesel motor fuel, 39 which is sold by such petroleum business to a purchaser who then exports 40 such HIGHWAY diesel motor fuel from this state for sale or use outside 41 the state where 42 (A) such purchaser exporting such fuel is duly registered with or 43 licensed by the taxing authorities of the state to which such fuel is 44 exported as a distributor or a dealer in the product being so exported, 45 (B) in connection with the exportation, such fuel was immediately 46 shipped to an identified facility in the state to which such fuel is 47 exported, and 48 (C) the rules and regulations of the commissioner [of taxation and 49 finance] relating to evidentiary requirements are complied with. 50 (2) [Enhanced] HIGHWAY diesel motor fuel imported or caused to be 51 imported into this state or produced, refined, manufactured or 52 compounded by a petroleum business registered under article twelve-A of 53 this chapter, as a distributor of diesel motor fuel, and then sold by 54 such petroleum business to an organization described in paragraph one or 55 two of subdivision (a) of section eleven hundred sixteen of this chapter A. 4011--B 65 1 where such HIGHWAY DIESEL motor fuel is used by such organization for 2 its own use or consumption. 3 (3) NON-HIGHWAY Diesel motor fuel[, which is not enhanced diesel motor 4 fuel,] sold by a petroleum business registered under article twelve-A of 5 this chapter as a distributor of diesel motor fuel to an organization 6 described in paragraph one or two of subdivision (a) of section eleven 7 hundred sixteen of this chapter where such NON-HIGHWAY diesel motor fuel 8 is used by such organization for its own use or consumption. 9 (d) Sales to consumers for heating purposes. (1) Total residential 10 heating exemption. [(A) Unenhanced] NON-HIGHWAY diesel motor fuel sold 11 by a petroleum business registered under article twelve-A of this chap- 12 ter as a distributor of diesel motor fuel or residual petroleum product 13 sold by a petroleum business registered under this article as a residual 14 petroleum product business to the consumer exclusively for residential 15 heating purposes[. 16 (B) Enhanced diesel motor fuel sold by a petroleum business registered 17 under article twelve-A of this chapter as a distributor of diesel motor 18 fuel to the consumer exclusively for residential heating purposes but] 19 only if such [enhanced] NON-HIGHWAY diesel motor fuel is delivered into 20 a storage tank which is not equipped with a hose or other apparatus by 21 which such fuel can be dispensed into the fuel tank of a motor vehicle 22 and such storage tank is attached to the heating unit burning such 23 fuel[, provided, that with respect to each delivery of such fuel over 24 four thousand five hundred gallons, to obtain this exemption there shall 25 be required a certificate signed by the purchaser stating that the prod- 26 uct will be used exclusively for residential heating purposes]. 27 (2) Partial non-residential heating exemption. (A) [Unenhanced] 28 NON-HIGHWAY diesel motor fuel sold by a petroleum business registered 29 under article twelve-A of this chapter as a distributor of diesel motor 30 fuel or residual petroleum product sold by a petroleum business regis- 31 tered under this article as a residual petroleum product business to the 32 consumer exclusively for heating, other than residential heating 33 purposes[. 34 (B) Enhanced diesel motor fuel sold by a petroleum business registered 35 under article twelve-A of this chapter as a distributor of diesel motor 36 fuel to the consumer exclusively for heating, other than residential 37 heating purposes, but] only if such [enhanced] NON-HIGHWAY diesel motor 38 fuel is delivered into a storage tank which is not equipped with a hose 39 or other apparatus by which such fuel can be dispensed into the fuel 40 tank of a motor vehicle and such storage tank is attached to the heating 41 unit burning such fuel[, provided, that with respect to each delivery of 42 such fuel over four thousand five hundred gallons, to obtain this 43 exemption there shall be required a certificate signed by the purchaser 44 stating that the product will be used exclusively for heating, other 45 than residential heating purposes. 46 (C)] (B) Calculation of partial exemption. [Notwithstanding any other 47 provision of this article, commencing April first, two thousand one and 48 ending August thirty-first, two thousand two, the amount of the partial 49 exemption under this paragraph shall be determined by multiplying the 50 quantity of diesel motor fuel and residual petroleum product eligible 51 for the exemption times the sum of the then current rate of the supple- 52 mental tax imposed by section three hundred one-j of this article and 53 twenty percent of the then current rate of the tax imposed by section 54 three hundred one-a of this article, with respect to the specific diesel 55 motor fuel or residual petroleum product rate, as the case may be, and 56 commencing September first, two thousand two, the amount of the] THE A. 4011--B 66 1 partial exemption under this paragraph shall be determined by multiply- 2 ing the quantity of NON-HIGHWAY diesel motor fuel and residual petroleum 3 product eligible for the exemption times the sum of the then current 4 rate of the supplemental tax imposed by section three hundred one-j of 5 this article and forty-six percent of the then current rate of the tax 6 imposed by section three hundred one-a of this article, with respect to 7 the specific NON-HIGHWAY diesel motor fuel or residual petroleum product 8 rate, as the case may be. 9 (e) Sales of NON-HIGHWAY diesel motor fuel and residual petroleum 10 product to registered distributors of diesel motor fuel and registered 11 residual petroleum product businesses. 12 (1) NON-HIGHWAY Diesel motor fuel[, which is not enhanced diesel motor 13 fuel,] sold by a person registered under article twelve-A of this chap- 14 ter as a distributor of diesel motor fuel to a person registered under 15 such article twelve-A as a distributor of diesel motor fuel where such 16 sale is not a retail sale or a sale that involves a delivery at a fill- 17 ing station or into a repository equipped with a hose or other apparatus 18 by which such NON-HIGHWAY DIESEL MOTOR fuel can be dispensed into the 19 fuel tank of a motor vehicle. 20 (2) Residual petroleum product sold by a person registered under this 21 article as a residual petroleum product business to a person registered 22 under this article as a residual petroleum product business where such 23 sale is not a retail sale. Provided, however, that the commissioner [of 24 taxation and finance] may require such documentary proof to qualify for 25 any exemption provided in this section as the commissioner deems appro- 26 priate, including the expansion of any certifications required pursuant 27 to section two hundred eighty-five-a or two hundred eighty-five-b of 28 this chapter to cover the taxes imposed by this article. 29 (1) Residual petroleum product and NON-HIGHWAY diesel motor fuel 30 [(which is not enhanced diesel motor fuel)] sold to an electric corpo- 31 ration, as described in subdivision (a) of section three hundred one-d 32 of this article, which is registered with the department [of taxation 33 and finance] as a petroleum business tax direct pay permittee, and used 34 by such electric corporation to fuel generators for the purpose of manu- 35 facturing or producing electricity where such electric corporation 36 provides a copy of a direct pay permit authorized and issued by the 37 commissioner [of taxation and finance], to the petroleum business making 38 such sale. If so registered, such corporation shall be a taxpayer under 39 this article and (i) such electric corporation shall file a return 40 monthly and pay the applicable tax under this article, after the appli- 41 cation of allowable credits, on all such purchases directly to the 42 commissioner, (ii) such electric corporation shall be subject to all of 43 the provisions of this article relating to the responsibilities and 44 liabilities of taxpayers under this article with respect to such resi- 45 dual petroleum product and NON-HIGHWAY diesel motor fuel. 46 (g) Sales or uses of NON-HIGHWAY diesel motor fuel and residual petro- 47 leum product for farm production. NON-HIGHWAY Diesel motor fuel or resi- 48 dual petroleum product sold to or used by a consumer who purchases or 49 uses such NON-HIGHWAY DIESEL MOTOR fuel or product for use or consump- 50 tion directly and exclusively in the production for sale of tangible 51 personal property by farming, but only if all such NON-HIGHWAY DIESEL 52 MOTOR fuel or product is delivered on the farm site and is consumed 53 other than on the PUBLIC highways of this state (except for the use of 54 the PUBLIC highway to reach adjacent farmlands)[; provided, however, 55 that a farmer may purchase no more than four thousand five hundred 56 gallons of diesel motor fuel in a thirty-day period for such use or A. 4011--B 67 1 consumption exempt from the measure of the tax imposed by section three 2 hundred one-a of this article, except in accordance with prior clearance 3 given by the commissioner]. 4 (h) Exemption for certain not-for-profit organizations. There shall be 5 exempt from the measure of the petroleum business tax imposed by section 6 three hundred one-a of this article a sale or use of residual petroleum 7 product, OR NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel 8 motor fuel) or dyed diesel motor fuel,] to or by an organization which 9 has qualified under paragraph four or five of subdivision (a) of section 10 eleven hundred sixteen of this chapter where such NON-HIGHWAY diesel 11 motor fuel or residual petroleum product is exclusively for use and 12 consumption by such organization, but only if all of such NON-HIGHWAY 13 diesel motor fuel or product is consumed other than on the PUBLIC high- 14 ways of this state. Provided, however, this exemption shall in no event 15 apply to a sale of NON-HIGHWAY diesel motor fuel which involves a deliv- 16 ery at a filling station or into a repository which is equipped with a 17 hose or other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can 18 be dispensed into the fuel tank of a motor vehicle and all deliveries 19 hereunder shall be made to the premises occupied by the qualifying 20 organization and used by such organization in furtherance of the exempt 21 purposes of such organization. Provided, however, that the commissioner 22 shall require such documentary proof to qualify for any exemption 23 provided herein as the commissioner deems appropriate. Provided, 24 further, the distributor selling such NON-HIGHWAY DIESEL MOTOR fuel and 25 product shall separately report on its return the gallonage sold during 26 the reporting period exempt from tax under the provisions of this subdi- 27 vision and provide such other information with respect to such sales as 28 the commissioner deems appropriate to prevent evasion. [The term "dyed 29 diesel motor fuel" as used in this subdivision shall have the same mean- 30 ing it has in subdivision eighteen of section two hundred eighty-two of 31 this chapter.] 32 (i) Exemption for passenger commuter ferries. A use by a passenger 33 commuter ferry of NON-HIGHWAY diesel motor fuel or residual petroleum 34 product where such NON-HIGHWAY diesel motor fuel or residual petroleum 35 product was used and consumed by a passenger commuter ferry exclusively 36 in providing mass transportation service. Provided, that the commission- 37 er shall require such documentary proof to qualify for any exemption 38 provided hereunder as the commissioner deems appropriate. 39 S 22. Subdivision (j) of section 301-b of the tax law is REPEALED. 40 S 23. Subdivisions (a), (e), (f), (h), (i), (j), (k), (l) and (m) of 41 section 301-c of the tax law, subdivision (a) as amended by section 4 42 and subdivision (l) as added by section 5 of part H of chapter 407 of 43 the laws of 1999, subparagraph (B) of paragraph 2 of subdivision (a) as 44 amended by section 2 of part X of chapter 63 of the laws of 2000, subdi- 45 visions (e) and (f) as added by chapter 170 of the laws of 1994, subdi- 46 vision (h) as amended by chapter 302 of the laws of 2006, subdivisions 47 (i), (j) and (k) as added by chapter 309 of the laws of 1996, and subdi- 48 vision (m) as added by chapter 468 of the laws of 2000, are amended to 49 read as follows: 50 (a) NON-HIGHWAY Diesel motor fuel used for heating purposes. (1) Total 51 residential heating reimbursement. NON-HIGHWAY Diesel motor fuel 52 purchased in this state and sold by such purchaser to a consumer for use 53 exclusively for residential heating purposes but only where (i) such 54 NON-HIGHWAY diesel motor fuel is delivered into a storage tank which is 55 not equipped with a hose or other apparatus by which such NON-HIGHWAY 56 DIESEL MOTOR fuel can be dispensed into the fuel tank of a motor vehicle A. 4011--B 68 1 and such storage tank is attached to the heating unit burning such NON- 2 HIGHWAY DIESEL MOTOR fuel, (ii) the tax imposed pursuant to this article 3 has been paid with respect to such NON-HIGHWAY diesel motor fuel and the 4 entire amount of such tax has been absorbed by such purchaser, and (iii) 5 such purchaser possesses documentary proof satisfactory to the commis- 6 sioner evidencing the absorption by it of the entire amount of the tax 7 imposed pursuant to this article. Provided, however, that the commis- 8 sioner is authorized, in the event that the commissioner determines that 9 it would not threaten the integrity of the administration and enforce- 10 ment of the tax imposed by this article, to provide a reimbursement with 11 respect to a retail sale to a consumer for residential heating purposes 12 of less than ten gallons of NON-HIGHWAY diesel motor fuel provided such 13 fuel is not dispensed into the tank of a motor vehicle. [Provided, 14 further, that with respect to each delivery of enhanced diesel motor 15 fuel of over four thousand five hundred gallons, to obtain this 16 reimbursement there shall be required a certificate signed by the 17 consumer stating that the product will be used exclusively for residen- 18 tial heating purposes.] 19 (2) Partial non-residential heating reimbursement. (A) NON-HIGHWAY 20 Diesel motor fuel purchased in this state and sold by such purchaser to 21 a consumer for use exclusively for heating, other than for residential 22 heating purposes, but only where (i) such NON-HIGHWAY diesel motor fuel 23 is delivered into a storage tank which is not equipped with a hose or 24 other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can be 25 dispensed into the fuel tank of a motor vehicle and such storage tank is 26 attached to the heating unit burning such NON-HIGHWAY DIESEL MOTOR fuel, 27 (ii) the tax imposed pursuant to this article has been paid with respect 28 to such NON-HIGHWAY diesel motor fuel and the entire amount of such tax 29 has been absorbed by such purchaser, and (iii) such purchaser possesses 30 documentary proof satisfactory to the commissioner evidencing the 31 absorption by it of the entire amount of the tax imposed pursuant to 32 this article. [Provided, however, that with respect to each delivery of 33 enhanced diesel motor fuel of over four thousand five hundred gallons, 34 to obtain this reimbursement there shall be required a certificate 35 signed by the consumer stating that the product will be used exclusively 36 for heating, other than for residential heating purposes.] 37 (B) Calculation of partial reimbursement. Notwithstanding any other 38 provision of this article, [commencing April first, two thousand one and 39 ending August thirty-first, two thousand two, the amount of the 40 reimbursement under this paragraph shall be determined by multiplying 41 the quantity of diesel motor fuel eligible for the reimbursement times 42 the sum of the then current rate of the supplemental tax imposed by 43 section three hundred one-j of this article and twenty percent of the 44 then current rate of the tax imposed by section three hundred one-a of 45 this article, with respect to the specific diesel motor fuel rate, as 46 the case may be, and commencing September first, two thousand two,] the 47 amount of the reimbursement under this paragraph shall be determined by 48 multiplying the quantity of NON-HIGHWAY diesel motor fuel eligible for 49 the reimbursement times the sum of the then current rate of the supple- 50 mental tax imposed by section three hundred one-j of this article and 51 forty-six percent of the then current rate of the tax imposed by section 52 three hundred one-a of this article, with respect to the [specific] 53 NON-HIGHWAY diesel motor fuel rate, as the case may be. 54 (e) NON-HIGHWAY Diesel motor fuel and residual petroleum product used 55 for farm production. NON-HIGHWAY Diesel motor fuel or residual petroleum 56 product purchased in this state and sold by such purchaser to a consumer A. 4011--B 69 1 for use or consumption directly and exclusively in the production for 2 sale of tangible personal property by farming, but only if all of such 3 NON-HIGHWAY DIESEL MOTOR fuel or product is delivered on the farm site 4 and is consumed other than on the PUBLIC highways of this state (except 5 for the use of the PUBLIC highway to reach adjacent farmlands)[; 6 provided, however, that a subsequent purchaser shall be eligible for 7 this reimbursement with respect to no more than four thousand five 8 hundred gallons of diesel motor fuel sold to a consumer in a thirty-day 9 period for such use or consumption, except in accordance with prior 10 clearance given by the commissioner]. This reimbursement may be claimed 11 only where (i) the tax imposed pursuant to this article has been paid 12 with respect to such NON-HIGHWAY diesel motor fuel or residual petroleum 13 product and the entire amount of such tax has been absorbed by such 14 purchaser, and (ii) such purchaser possesses documentary proof satisfac- 15 tory to the commissioner evidencing the absorption by it of the entire 16 amount of the tax imposed pursuant to this article. Provided, however, 17 that the commissioner shall require such documentary proof to qualify 18 for any reimbursement of tax provided by this section as the commission- 19 er deems appropriate[, including any certification required pursuant to 20 section two hundred eighty-five-b of this chapter and any such prior 21 clearance described in the first sentence of this subdivision]. 22 (f) Motor fuel used for farm production. No more than one thousand 23 five hundred gallons of motor fuel purchased in this state in a thirty- 24 day period or a greater amount which has been given prior clearance by 25 the commissioner, by a consumer for use or consumption directly and 26 exclusively in the production for sale of tangible personal property by 27 farming, but only if all of such fuel is delivered on the farm site and 28 is consumed other than on the PUBLIC highways of this state (except for 29 the use of the PUBLIC highway to reach adjacent farmlands). This 30 reimbursement to such purchaser who used such motor fuel in the manner 31 specified in this subdivision may be claimed only where, (i) the tax 32 imposed pursuant to this article has been paid with respect to such 33 motor fuel and the entire amount of such tax has been absorbed by such 34 purchaser, and (ii) such purchaser possesses documentary proof satisfac- 35 tory to the commissioner evidencing the absorption by it of the entire 36 amount of the tax imposed pursuant to this article. Provided, however, 37 that the commissioner shall require such documentary proof to qualify 38 for any reimbursement of tax provided by this subdivision as the commis- 39 sioner deems appropriate. The commissioner is hereby empowered to make 40 such provisions as deemed necessary to define the procedures for grant- 41 ing prior clearance for purchases of more than one thousand five hundred 42 gallons in a thirty-day period. 43 (h) A subsequent purchaser which is registered as a distributor of 44 diesel motor fuel shall be eligible for reimbursement of the tax imposed 45 by section three hundred one-a of this article with respect to gallonage 46 of residual petroleum product[,] AND NON-HIGHWAY diesel motor fuel 47 [(which is not enhanced diesel motor fuel) and dyed diesel motor fuel,] 48 subsequently sold by such purchaser to an organization which has quali- 49 fied under paragraph four or five of subdivision (a) of section eleven 50 hundred sixteen of this chapter for the exclusive use and consumption by 51 such organization. Provided, however, this exemption shall in no event 52 apply to a sale of NON-HIGHWAY diesel motor fuel which involves a deliv- 53 ery at a filling station or into a repository which is equipped with a 54 hose or other apparatus by which such NON-HIGHWAY DIESEL MOTOR fuel can 55 be dispensed into the fuel tank of a motor vehicle and all deliveries 56 hereunder shall be made to the premises occupied by the qualifying A. 4011--B 70 1 organization and used by such organization in furtherance of the exempt 2 purposes of such organization. This reimbursement may be claimed only 3 where (i) the tax imposed pursuant to this article has been paid with 4 respect to such NON-HIGHWAY diesel motor fuel or residual petroleum 5 product and the entire amount of such tax has been absorbed by such 6 purchaser, and (ii) such purchaser possesses documentary proof satisfac- 7 tory to the commissioner evidencing the absorption by it of the entire 8 amount of the tax imposed pursuant to this article. Provided, further, 9 that the commissioner shall require such other documentary proof to 10 qualify for any reimbursement of tax provided by this section as the 11 commissioner deems appropriate. [The term "dyed diesel motor fuel" as 12 used in this subdivision shall have the same meaning it has in subdivi- 13 sion eighteen of section two hundred eighty-two of this chapter.] 14 (i) Reimbursement for commercial gallonage. (1) [Commencing March 15 first, nineteen hundred ninety-seven, a] A reimbursement shall be 16 allowed to a consumer with respect to gallonage of [nonautomotive-type] 17 NON-HIGHWAY diesel motor fuel [(which is not enhanced diesel motor 18 fuel)] or residual petroleum product (i) which was purchased by such 19 consumer and where the supplemental tax imposed by section three hundred 20 one-j of this article with respect to such gallonage was paid by a 21 petroleum business and passed through to such consumer, (ii) such 22 consumer absorbed the entirety of such tax in the purchase price of such 23 gallonage, and (iii) such gallonage was used and consumed by such 24 consumer exclusively as "commercial gallonage". Provided, however, that 25 the commissioner shall require such documentary proof to qualify for any 26 reimbursement of tax provided by this subdivision as the commissioner 27 deems appropriate, including a certification by the consumer that the 28 product was used and consumed exclusively as "commercial gallonage" by 29 such consumer. 30 (2) Calculation. The amount of the reimbursement shall be determined 31 by multiplying the quantity of "commercial gallonage" eligible for 32 reimbursement times the then current rate of the supplemental tax 33 imposed by section three hundred one-j of this article with respect to 34 [nonautomotive-type] NON-HIGHWAY diesel motor fuel or residual petroleum 35 product, as the case may be. Any reimbursement of tax may be applied for 36 not more often than monthly. 37 (j) Reimbursement for manufacturing gallonage. [Commencing January 38 first, nineteen hundred ninety-eight, a] A subsequent purchaser shall be 39 eligible for reimbursement of any taxes imposed under this article with 40 respect to gallonage of residual petroleum product and NON-HIGHWAY 41 diesel motor fuel [(which is not enhanced diesel motor fuel),] subse- 42 quently sold by such purchaser to a consumer as "manufacturing gallo- 43 nage." This reimbursement may be claimed only where (1) any tax imposed 44 pursuant to this article has been paid with respect to such gallonage 45 and the entire amount of such tax has been absorbed by such purchaser, 46 and (2) such purchaser possesses documentary proof satisfactory to the 47 commissioner evidencing the absorption by it of the entire amount of 48 such tax. Provided, however, that the commissioner shall require such 49 documentary proof to qualify for any reimbursement of tax provided by 50 this subdivision as the commissioner deems appropriate including a 51 certificate by the consumer that such product is to be used and consumed 52 exclusively as "manufacturing gallonage". 53 (k) Reimbursement for railroad gallonage. (1) [Commencing January 54 first, nineteen hundred ninety-seven, a] A subsequent purchaser, which 55 is registered as a distributor of diesel motor fuel, shall be eligible 56 for a reimbursement in accordance with this subdivision with respect to A. 4011--B 71 1 NON-HIGHWAY diesel motor fuel subsequently sold by such purchaser to a 2 consumer as "railroad diesel". 3 (2) The amount of the reimbursement with respect to such product shall 4 be equal to the difference between (i) the tax actually paid under this 5 article by a petroleum business with respect to such product and subse- 6 quently passed through to and absorbed by such purchaser, and (ii) the 7 tax under this article that would have been paid with respect to such 8 product had an importing distributor sold such product directly to a 9 purchaser as "railroad diesel". Provided that the commissioner shall 10 require such documentary proof as the commissioner deems necessary to 11 substantiate a reimbursement claim under this subdivision. Any 12 reimbursement of tax may be applied for not more often than monthly. 13 (l) Reimbursement for mining and extraction. A purchaser shall be 14 eligible for reimbursement of the tax imposed by section three hundred 15 one-a of this article with respect to gallonage of residual petroleum 16 product and NON-HIGHWAY diesel motor fuel, purchased for use and 17 consumption directly and exclusively in the production of tangible 18 personal property for sale by mining or extracting, but only if all of 19 such fuel or product is delivered at the mining or extracting site and 20 is consumed other than on the PUBLIC highways of this state; provided, 21 however, this reimbursement shall in no event apply to a sale of 22 NON-HIGHWAY diesel motor fuel which involves a delivery at a filling 23 station. This reimbursement may be claimed only where (i) the tax 24 imposed pursuant to this article has been paid with respect to such 25 NON-HIGHWAY diesel motor fuel or residual petroleum product and the 26 entire amount of such tax has been absorbed by such purchaser, and (ii) 27 such purchaser possesses documentary proof satisfactory to the commis- 28 sioner evidencing the absorption by it of the entire amount of the tax 29 imposed pursuant to this article. Provided, however, that the commis- 30 sioner shall require such documentary proof to qualify for any 31 reimbursement of tax provided by this section as the commissioner deems 32 appropriate. 33 (m) Reimbursement for passenger commuter ferries. A use by a passenger 34 commuter ferry of NON-HIGHWAY diesel motor fuel or residual petroleum 35 product where such NON-HIGHWAY diesel motor fuel or residual petroleum 36 product was used and consumed by a passenger commuter ferry exclusively 37 in providing mass transportation service. This reimbursement may be 38 claimed only where (1) any tax imposed pursuant to this article has been 39 paid with respect to such gallonage and the entire amount of such tax 40 has been absorbed by such purchaser, and (2) such ferry possesses docu- 41 mentary proof satisfactory to the commissioner evidencing the absorption 42 by it of the entire amount of such tax. Provided, that the commissioner 43 shall require such documentary proof to qualify for any reimbursement 44 provided hereunder as the commissioner deems appropriate. 45 S 24. Paragraphs 1 and 2 of subdivision (a) of section 301-d of the 46 tax law, as amended by chapter 410 of the laws of 1991, are amended to 47 read as follows: 48 (1) Credit. Residual petroleum product and NON-HIGHWAY diesel motor 49 fuel [(which is not enhanced diesel motor fuel)] (i) imported into this 50 state by such electric corporation which is a petroleum business where 51 the tax liability under section three hundred one-a of this article is 52 imposed on such electric corporation and where the residual petroleum or 53 NON-HIGHWAY diesel product so imported is used by such electric corpo- 54 ration to fuel generators for the purpose of manufacturing or producing 55 electricity or (ii) purchased in this state by such electric corporation 56 by the use of a valid direct payment permit whereby such electric corpo- A. 4011--B 72 1 ration assumed full liability for tax with respect to such product where 2 such product so purchased is used by such electric corporation to fuel 3 generators for the purpose of manufacturing or producing electricity. 4 (2) Reimbursement. Residual petroleum product and NON-HIGHWAY diesel 5 motor fuel [(which is not enhanced diesel motor fuel)] purchased in this 6 state by such electric corporation where the tax imposed by section 7 three hundred one-a of this article with respect to such residual petro- 8 leum or diesel product was paid and the utility absorbed such tax in the 9 purchase price of such fuel and where such product is used by such elec- 10 tric corporation to fuel generators for the purpose of manufacturing or 11 producing electricity. 12 S 25. Subdivision (c) of section 301-e of the tax law, as amended by 13 chapter 2 of the laws of 1995, is amended to read as follows: 14 (c) Kero-jet fuel component. The kero-jet fuel component shall be 15 determined by multiplying the kero-jet fuel rate times the number of 16 gallons of (1) kero-jet fuel imported or caused to be imported into this 17 state by an aviation fuel business and consumed in this state by such 18 business in the operation of its aircraft; and (2) kero-jet fuel, which 19 has not been previously included in the measure of the tax imposed by 20 this section, (i) which is sold in this state by an aviation fuel busi- 21 ness to persons other than those registered under this article as 22 aviation fuel businesses or (ii) which is consumed in this state by an 23 aviation fuel business in the operation of its aircraft. Provided that 24 importation of kero-jet fuel in the fuel tanks of aircraft shall be 25 importation for the purposes of this section. The basic kero-jet fuel 26 rate shall be [one and nine-tenths] SIX AND EIGHT-TENTHS cents per 27 gallon. The rate shall be adjusted at the same time as the rates of the 28 components of the petroleum business tax imposed by section three 29 hundred one-a of this article, and the method of making adjustments to 30 the kero-jet fuel rate shall be the same as the method used for such 31 rates. [Provided, however, that commencing July first, nineteen hundred 32 ninety-one, the kero-jet fuel rate shall be equal to the motor fuel and 33 automotive-type diesel motor fuel rate set by subdivision (e) of section 34 three hundred one-a of this article as such rate may be adjusted as 35 provided in such subdivision. Provided, further, that commencing Septem- 36 ber first, nineteen hundred ninety-five, the kero-jet fuel rate shall be 37 five and two-tenths cents per gallon. The rate shall be adjusted at the 38 same time as the rates of the components of the petroleum business tax 39 imposed by section three hundred one-a of this article, and the method 40 of making adjustments to the kero-jet fuel rate shall be the same as the 41 method used for such rates.] 42 S 26. Sections 301-f and 301-g of the tax law are REPEALED. 43 S 27. Paragraph 2 of subdivision (a) of section 301-h of the tax law, 44 as amended by chapter 170 of the laws of 1994, is amended to read as 45 follows: 46 (2) The rate of the tax imposed by this section shall be equal to the 47 motor fuel and [automotive-type] HIGHWAY diesel motor fuel rate set by 48 subdivision (e) of section three hundred one-a plus the rate of the 49 supplemental tax imposed by section three hundred one-j of this article 50 as such rates are specified therein and as they may be adjusted as 51 provided in such provisions. [In addition, the tax surcharge imposed by 52 section three hundred-one-g of this article shall be imposed with 53 respect to the tax imposed by this section as if the tax imposed here- 54 under were imposed by section three hundred-one-a of this article.] 55 S 28. Section 301-i of the tax law is REPEALED. A. 4011--B 73 1 S 29. Paragraphs 1, 2, 3 and 4 of subdivision (a) and subdivision (c) 2 of section 301-j of the tax law, paragraph 1 of subdivision (a) as 3 amended and paragraphs 2, 3 and 4 of subdivision (a) as added by chapter 4 309 of the laws of 1996 and subdivision (c) as amended by chapter 410 of 5 the laws of 1991, are amended to read as follows: 6 (1) In addition to the taxes imposed by sections three hundred one-a 7 and three hundred one-e of this article, [for taxable months commencing 8 on or after July first, nineteen hundred ninety-one] there is hereby 9 imposed upon every petroleum business subject to tax imposed under 10 section three hundred one-a of this article and every aviation fuel 11 business subject to the aviation gasoline component of the tax imposed 12 under section three hundred one-e of this article, a supplemental month- 13 ly tax for each or any part of a taxable month at a rate of [four and 14 one-half] SIX AND EIGHT-TENTHS cents per gallon with respect to the 15 products included in each component of the taxes imposed by such 16 [sections] SECTION three hundred one-a and the aviation gasoline compo- 17 nent of the tax imposed by such section three hundred one-e of this 18 article. 19 (2) Provided, however, [commencing March first, nineteen hundred nine- 20 ty-seven,] "commercial gallonage," as such term is defined in subdivi- 21 sion (k) of section three hundred of this article, shall be exempt from 22 the measure of the tax imposed under this section. 23 (3) Provided, further, [commencing January first, nineteen hundred 24 ninety-seven,] "railroad diesel," as such term is defined in subdivision 25 (l) of section three hundred of this article, shall be exempt from the 26 measure of the tax imposed under this section. 27 (4) Provided, further, [commencing January first, nineteen hundred 28 ninety-eight,] a separate per gallon rate shall apply with respect to 29 [automotive-type] HIGHWAY diesel motor fuel. Such rate shall be deter- 30 mined by taking the adjusted rate per gallon of tax imposed under para- 31 graph one of this subdivision as adjusted in accordance with paragraph 32 five of this subdivision [which commences on such date] and subtracting 33 therefrom [three-quarters of one cent. On January first, nineteen 34 hundred ninety-nine, the automotive-type diesel motor fuel rate shall be 35 determined by taking the adjusted rate per gallon of tax imposed under 36 paragraph one of this subdivision, as adjusted in accordance with para- 37 graph five of this subdivision which commences on such date and 38 subtracting therefrom three-quarters of one cent. On April first, nine- 39 teen hundred ninety-nine, there shall be a new rate applicable to such 40 fuel which shall be such adjusted rate of tax per gallon under such 41 paragraph one of this subdivision, as adjusted in accordance with para- 42 graph five of this subdivision then in effect, minus] one and three- 43 quarters cents. Commencing January first, two thousand TWELVE, and each 44 January thereafter, the per gallon rate applicable to [automotive-type] 45 HIGHWAY diesel motor fuel shall be the adjusted rate under paragraph one 46 of this subdivision as adjusted in accordance with paragraph five of 47 this subdivision which commences on such date minus one and three-quar- 48 ters cents. The resulting rate under this paragraph shall be expressed 49 in hundredths of a cent. 50 (c) Rate adjustment [and surcharge]. [Commencing January first, nine- 51 teen hundred ninety-two and on the first day of January every year ther- 52 eafter, the] THE rate of the supplemental tax shall be adjusted at the 53 same time as the rates of the components of the taxes imposed by 54 sections three hundred one-a and three hundred one-e of this article, 55 and the method of making adjustments to the rate of the supplemental tax 56 shall be the same as the method used for such rates. A. 4011--B 74 1 S 30. The opening paragraph and subdivisions (a) and (c) of section 2 301-1 of the tax law, as added by chapter 170 of the laws of 1994, are 3 amended to read as follows: 4 There shall be allowed to a registered petroleum business or aviation 5 fuel business a refund under this section for the taxes [and tax 6 surcharge] imposed by sections three hundred one-a, three hundred one-e, 7 [three hundred one-g] and three hundred one-j of this article for the 8 tax paid under such sections with respect to gallonage which is repres- 9 ented by a worthless debt as follows: 10 (a) The refund shall be allowed to a registered petroleum business or 11 aviation fuel business for gallonage with respect to which tax liability 12 for the taxes under this article is imposed on such petroleum business 13 or aviation fuel business where (i) such gallonage has been included in 14 the reports filed by such petroleum business or aviation fuel business 15 and all the taxes under this article with respect to such gallonage have 16 been paid by such business, (ii) such gallonage was sold in-bulk by such 17 petroleum or aviation fuel business to a purchaser for such purchaser's 18 own use and consumption and (iii) such sale gave rise to a debt which 19 became worthless, as that term is used for federal income tax purposes, 20 and where such debt is deducted as a worthless debt for federal income 21 tax purposes for the taxable year covering the month in which such 22 refund claim relating to such debt is filed. Provided, however, for the 23 purposes of this section, a sale of motor fuel and [enhanced] HIGHWAY 24 diesel motor fuel to a filling station shall be deemed to be a sale 25 in-bulk for such filling station's own use and consumption and, 26 provided, further, in no event shall a worthless debt qualify with 27 respect to the refund hereunder where such debt arises from a retail 28 sale at a filling station or sale wherein product is delivered directly 29 into the fuel tank of a motor vehicle, airplane or other conveyance. 30 (c) Upon receipt of a claim for refund in processible form, interest 31 shall be allowed and paid at the overpayment rate set by the commission- 32 er pursuant to subdivision twenty-sixth of section one hundred seventy- 33 one of this chapter from the date of the receipt of the refund claim to 34 the date immediately preceding the date of the refund check except no 35 such interest shall be allowed or paid if the refund check is mailed 36 within ninety days of such receipt and except no interest shall be 37 allowed or paid if the amount thereof would be less than one dollar. 38 Provided, further, the refund shall be granted pro rata against sections 39 three hundred one-a, three hundred one-e, [three hundred one-g] and 40 three hundred one-j of this article, as the case may be, to the same 41 extent as represented by the remittance of the petroleum business or 42 aviation fuel business with respect to the gallonage represented by the 43 worthless debt. 44 S 31. Subdivision (b) of section 302 of the tax law, as added by chap- 45 ter 190 of the laws of 1990, is amended to read as follows: 46 (b) Residual petroleum product business. The department [of taxation 47 and finance], upon the application of a corporation or unincorporated 48 business, shall register such corporation or unincorporated business as 49 a residual petroleum product business except that the commissioner [of 50 taxation and finance] may refuse to register an applicant for any of the 51 grounds specified in subdivision two or five of section two hundred 52 eighty-three of this chapter or in subdivision (d) of this section. The 53 application shall be in such form and contain such information as the 54 commissioner shall prescribe. All of the provisions of subdivisions two, 55 four, five, six, seven, eight, nine and ten of section two hundred 56 eighty-three of this chapter relating to registration of distributors A. 4011--B 75 1 shall be applicable to the registration of residual petroleum product 2 businesses under this section with the same force and effect as if the 3 language of those subdivisions had been incorporated in full in this 4 section and had expressly referred to the registration of residual 5 petroleum product businesses and the tax imposed by this article, with 6 such modification as may be necessary in order to adapt the language of 7 such provisions to the provisions of this article, provided, specif- 8 ically, that the term "distributor" shall be read as "residual petroleum 9 product business" and the [terms] TERM "motor fuel" [and "automotive 10 fuel"] shall be read as "residual petroleum product". Provided, however, 11 that if the commissioner is satisfied that the requirements of such 12 provisions for registration are not necessary in order to protect tax 13 revenues, the commissioner may limit or modify such requirements with 14 respect to corporations or unincorporated businesses not required to be 15 registered as distributors of motor fuel or diesel motor fuel. 16 S 32. Section 312 of the tax law, as amended by chapter 166 of the 17 laws of 1991 and subdivision (b) as amended by section 8 of part EE of 18 chapter 63 of the laws of 2000, is amended to read as follows: 19 S 312. Deposit and disposition of revenue.--[(a) Except as provided in 20 sections three hundred one-f and three hundred one-g of this chapter, of 21 all of the taxes, interest and penalties collected or received by the 22 commissioner of taxation and finance under section three hundred one of 23 this article with respect to any taxable year commencing on or after 24 April first, nineteen hundred eighty-four and to that portion of any 25 taxable year commencing prior thereto to the extent of that portion of 26 such year which includes the period which commences with April first, 27 nineteen hundred eighty-four, seventy-two and seven-tenths percent shall 28 be deposited and disposed of pursuant to the provisions of section one 29 hundred seventy-one-a of this chapter and the balance thereof shall be 30 deposited in the mass transportation operating assistance fund to the 31 credit of the metropolitan mass transportation operating assistance 32 account and the public transportation systems operating assistance 33 account thereof in the manner provided by subdivision eleven of section 34 one hundred eighty-two-a of this chapter. Provided, however, that the 35 actual amount of such taxes, interest and penalties which shall be 36 deposited in such mass transportation operating assistance fund pursuant 37 to this section during the twelve-month period from April first, nine- 38 teen hundred eighty-four to and including March thirty-first, nineteen 39 hundred eighty-five shall not be less than an amount which, when added 40 to the actual amount that is deposited in such fund during such twelve- 41 month period and that is attributable to the taxes, interest and penal- 42 ties collected and received under section one hundred eighty-two-a of 43 this chapter, yields the sum of seventy-nine million five hundred thou- 44 sand dollars and provided further that of such actual amounts deposited 45 in such fund pursuant to this section and to section one hundred eight- 46 y-two-a of this chapter during the twelve-month period from April first, 47 nineteen hundred eighty-five to March thirty-first, nineteen hundred 48 eighty-six and during the twelve-month period from April first, nineteen 49 hundred eighty-six to March thirty-first, nineteen hundred eighty-seven, 50 the amount which shall be deposited to the credit of the public trans- 51 portation systems operating assistance account thereof during each such 52 period shall be not less than thirty-six million dollars. Provided 53 further that if the total amount deposited in the mass transportation 54 operating assistance fund during the twelve month period commencing 55 April first, nineteen hundred eighty-five pursuant to this section and 56 to section one hundred eighty-two-a of this chapter is less than eighty A. 4011--B 76 1 million dollars, the comptroller shall deposit to the credit of the 2 metropolitan mass transportation operating assistance account on or 3 after April first, nineteen hundred eighty-six and on or before June 4 thirtieth, nineteen hundred eighty-six from any taxes, interest, and 5 penalties collected or received by the commissioner of taxation and 6 finance under this article in addition to amounts which would otherwise 7 be deposited to the credit of the mass transportation operating assist- 8 ance fund, an amount equal to the difference between eighty million 9 dollars and the amounts actually deposited in the mass transportation 10 operating assistance fund during such twelve-month period pursuant to 11 this section and to section one hundred eighty-two-a of this chapter. 12 Provided further that if the total amount deposited in the mass trans- 13 portation operating assistance fund during the twelve month period 14 commencing April first, nineteen hundred eighty-six pursuant to this 15 section and to section one hundred eighty-two-a of this chapter, exclu- 16 sive of the amount deposited in such fund to the credit of the metropol- 17 itan mass transportation operating assistance account on or after April 18 first, nineteen hundred eighty-six and on or before June thirtieth, 19 nineteen hundred eighty-six pursuant to the preceding sentence, is less 20 than eighty million dollars, the comptroller shall deposit to the credit 21 of the metropolitan mass transportation operating assistance account on 22 or after April first, nineteen hundred eighty-seven and on or before 23 June thirtieth, nineteen hundred eighty-seven from any taxes, interest, 24 and penalties collected or received by the commissioner of taxation and 25 finance under this article in addition to amounts which would otherwise 26 be deposited to the credit of the mass transportation operating assist- 27 ance fund, an amount equal to the difference between eighty million 28 dollars and the amounts actually deposited in the mass transportation 29 operating assistance fund during such twelve-month period pursuant to 30 this section and to section one hundred eighty-two-a of this chapter, 31 exclusive of the amount deposited in such fund to the credit of the 32 metropolitan mass transportation operating assistance account on or 33 after April first, nineteen hundred eighty-six and on or before June 34 thirtieth, nineteen hundred eighty-six pursuant to the preceding 35 sentence. Provided, further, however, with respect to all taxes, and 36 interest and penalties relating thereto, collected or received by the 37 commissioner of taxation and finance under the tax imposed by section 38 three hundred one of this article with respect to any taxable year 39 commencing on and after June first, nineteen hundred ninety and to that 40 portion of any taxable year commencing prior thereto to the extent of 41 that portion of such year which includes the period which commences June 42 first, nineteen hundred ninety, eighty-nine and one-half percent of such 43 collections shall be deposited and disposed of pursuant to the 44 provisions of section one hundred seventy-one-a of this chapter and the 45 balance thereof shall be deposited in the mass transportation operating 46 assistance fund to the credit of the metropolitan mass transportation 47 operating assistance account and the public transportation systems oper- 48 ating assistance account thereof in the manner provided by subdivision 49 eleven of section one hundred eighty-two-a of this chapter. 50 (b) Of all of the taxes collected or received by the commissioner on 51 or before March thirty-first, nineteen hundred ninety-one under the 52 taxes imposed by sections three hundred one-a and three hundred one-e of 53 this article, and all interest and penalties relating thereto, eighty- 54 seven and five-hundredths percent of such collections shall be deposited 55 and disposed of pursuant to the provisions of section one hundred seven- 56 ty-one-a of this chapter and the balance thereof shall be deposited in A. 4011--B 77 1 the mass transportation operating assistance fund to the credit of the 2 metropolitan mass transportation operating assistance account and the 3 public transportation systems operating assistance account thereof in 4 the manner provided by subdivision eleven of section one hundred eight- 5 y-two-a of this chapter. Of all taxes, interest and penalties collected 6 or received after March thirty-first, nineteen hundred ninety-one, and 7 before April first, nineteen hundred ninety-three, from the taxes 8 imposed by sections three hundred one-a and three hundred one-e of this 9 article, initially thirty-five percent shall be deposited and disposed 10 of pursuant to such section one hundred seventy-one-a. The balance ther- 11 eof shall then be disposed of as follows: seventy-two and seven-tenths 12 percent shall be deposited and disposed of pursuant to such section one 13 hundred seventy-one-a and twenty-seven and three-tenths percent shall be 14 deposited in such mass transportation operating assistance fund as 15 prescribed in the aforestated manner. Except as otherwise provided, of 16 all taxes, interest and penalties collected or received after March 17 thirty-first, nineteen hundred ninety-three, and before April first, 18 nineteen hundred ninety-four, from the taxes imposed by sections three 19 hundred one-a and three hundred one-e of this article, (i) initially 20 fifty-four percent shall be deposited, as prescribed by subdivision (d) 21 of section three hundred one-j of this chapter, (ii) twenty-eight and 22 three-tenths percent shall be deposited and disposed of pursuant to such 23 section one hundred seventy-one-a of this chapter in the general fund 24 and (iii) seventeen and seven-tenths percent shall be deposited in such 25 mass transportation operating assistance fund as prescribed in the 26 aforestated manner. Provided, however, that, prior to such deposit, from 27 the amounts so collected or received during the period commencing on 28 January first, nineteen hundred ninety-four and ending on March thirty- 29 first, nineteen hundred ninety-four, an amount equal to the portion of 30 the taxes, interest and penalties so received or collected resulting 31 from the amendments made by sections forty-two, forty-three and forty- 32 four of chapter fifty-seven of the laws of nineteen hundred ninety-three 33 shall be deposited and disposed of pursuant to the provisions of subdi- 34 vision one of section one hundred seventy-one-a of this chapter. Except 35 as otherwise provided, of all taxes, interest and penalties collected or 36 received on or after April first, nineteen hundred ninety-four, from the 37 taxes imposed by sections three hundred one-a and three hundred one-e of 38 this article, (i) initially fifty-four percent shall be deposited, as 39 prescribed by subdivision (d) of section three hundred one-j of this 40 article, (ii) twenty-eight and three-tenths percent shall be deposited 41 and disposed of pursuant to such section one hundred seventy-one-a of 42 this chapter in the general fund, (iii) seven and nine hundred sixty- 43 five thousandths percent shall be deposited in such mass transportation 44 operating assistance fund as prescribed in the aforestated manner and 45 (iv) nine and seven hundred thirty-five thousandths percent shall be 46 deposited in the revenue accumulation fund. Except as otherwise 47 provided, of all taxes, interest and penalties collected or received on 48 or after September first, nineteen hundred ninety-four and before 49 September first, nineteen hundred ninety-five, from the taxes imposed by 50 sections three hundred one-a and three hundred one-e of this article, 51 (i) initially fifty-nine percent shall be deposited, as prescribed by 52 subdivision (d) of section three hundred one-j of this article, (ii) 53 twenty-two and four-tenths percent shall be deposited and disposed of 54 pursuant to such section one hundred seventy-one-a of this chapter in 55 the general fund, (iii) eight and three hundred seventy thousandths 56 percent shall be deposited in such mass transportation operating assist- A. 4011--B 78 1 ance fund as prescribed in the aforestated manner and (iv) ten and two 2 hundred thirty thousandths percent shall be deposited in the revenue 3 accumulation fund. Except as otherwise provided, of all taxes, interest 4 and penalties, collected or received on or after September first, nine- 5 teen hundred ninety-five and before April first, nineteen hundred nine- 6 ty-six from the taxes imposed by sections three hundred one-a and three 7 hundred one-e of this article, (i) initially sixty-two and eight-tenths 8 percent shall be deposited as prescribed by subdivision (d) of section 9 three hundred one-j of this article, (ii) eighteen percent shall be 10 deposited and disposed of pursuant to section one hundred seventy-one-a 11 of this chapter in the general fund, (iii) eight and six hundred forty 12 thousandths percent shall be deposited in such mass transportation oper- 13 ating assistance fund as prescribed in the aforestated manner and (iv) 14 ten and five hundred sixty thousandths percent shall be deposited in the 15 revenue accumulation fund. Except as otherwise provided, of all taxes, 16 interest and penalties collected or received on or after April first, 17 nineteen hundred ninety-six, and before January first, nineteen hundred 18 ninety-seven from the taxes imposed by sections three hundred one-a and 19 three hundred one-e of this article, (i) initially sixty-three and 20 three-tenths percent shall be deposited, as prescribed by subdivision 21 (d) of section three hundred one-j of this article, (ii) seventeen and 22 four-tenths percent shall be deposited and disposed of pursuant to such 23 section one hundred seventy-one-a of this chapter in the general fund 24 and (iii) nineteen and three-tenths percent shall be deposited in such 25 mass transportation operating assistance fund as prescribed in the 26 aforestated manner. Except as otherwise provided, of all taxes, inter- 27 est and penalties collected or received on or after January first, nine- 28 teen hundred ninety-seven and before January first, nineteen hundred 29 ninety-eight from the taxes imposed by sections three hundred one-a and 30 three hundred one-e of this article, (i) initially sixty-six and two- 31 tenths percent shall be deposited, as prescribed by subdivision (d) of 32 section three hundred one-j of this article, (ii) fourteen and one-half 33 percent shall be deposited and disposed of pursuant to such section one 34 hundred seventy-one-a of this chapter in the general fund and (iii) 35 nineteen and three-tenths percent shall be deposited in such mass trans- 36 portation operating assistance fund as prescribed in the aforestated 37 manner. Except as otherwise provided, of all taxes, interest and penal- 38 ties collected or received on or after January first, nineteen hundred 39 ninety-eight and before April first, nineteen hundred ninety-nine from 40 the taxes imposed by sections three hundred one-a and three hundred 41 one-e of this article, (i) initially sixty-eight and one-tenth percent 42 shall be deposited, as prescribed by subdivision (d) of section three 43 hundred one-j of this article, (ii) twelve and four-tenths percent shall 44 be deposited and disposed of pursuant to such section one hundred seven- 45 ty-one-a of this chapter in the general fund and (iii) nineteen and 46 one-half percent shall be deposited in such mass transportation operat- 47 ing assistance fund as prescribed in the aforestated manner. Except as 48 otherwise provided, of all taxes, interest and penalties collected or 49 received on or after April first, nineteen hundred ninety-nine, from the 50 taxes imposed by sections three hundred one-a and three hundred one-e of 51 this article, (i) initially sixty-nine and eight-tenths percent shall be 52 deposited, as prescribed by subdivision (d) of section three hundred 53 one-j of this article, (ii) ten and seven-tenths percent shall be depos- 54 ited and disposed of pursuant to such section one hundred seventy-one-a 55 of this chapter in the general fund and (iii) nineteen and one-half 56 percent shall be deposited in such mass transportation operating assist- A. 4011--B 79 1 ance fund as prescribed in the aforestated manner.] Except as otherwise 2 provided, of all taxes, interest and penalties collected or received on 3 or after April first, two thousand one, from the taxes imposed by 4 sections three hundred one-a and three hundred one-e of this article, 5 (i) initially eighty and three-tenths percent shall be deposited, as 6 prescribed by subdivision (d) of section three hundred one-j of this 7 article and (ii) nineteen and seven-tenths percent shall be deposited in 8 such mass transportation operating assistance fund [as prescribed in the 9 aforestated manner] TO THE CREDIT OF THE METROPOLITAN MASS TRANSPORTA- 10 TION OPERATING ASSISTANCE ACCOUNT AND THE PUBLIC TRANSPORTATION SYSTEMS 11 OPERATING ASSISTANCE ACCOUNT THEREOF IN THE MANNER PROVIDED BY SUBDIVI- 12 SION ELEVEN OF SECTION ONE HUNDRED EIGHTY-TWO-A OF THIS CHAPTER. 13 [Provided, further, that on or before the twenty-fifth day of each month 14 commencing with October, nineteen hundred ninety and terminating with 15 the month of March, two thousand one, the comptroller shall deduct the 16 amount of six hundred twenty-five thousand dollars prior to any deposit 17 or disposition of the taxes, interest and penalties collected or 18 received pursuant to such sections three hundred one-a and three hundred 19 one-e and shall pay such amount to the state treasury to the credit of 20 the general fund.] Provided, further that on or before the twenty-fifth 21 day of each month commencing with April, two thousand one, the comp- 22 troller shall deduct the amount of six hundred twenty-five thousand 23 dollars prior to any deposit or disposition of the taxes, interest, and 24 penalties collected or received pursuant to such sections three hundred 25 one-a and three hundred one-e and shall deposit such amount in the dedi- 26 cated fund accounts pursuant to subdivision (d) of section three hundred 27 one-j of this article. Provided, further, that commencing January 28 fifteenth, nineteen hundred ninety-one, and on or before the tenth day 29 of March and the fifteenth day of June and September of such year, the 30 commissioner shall, based on information supplied by taxpayers and other 31 appropriate sources, estimate the amount of the utility credit author- 32 ized by section three hundred one-d of this article which has been 33 accrued to reduce tax liability under section one hundred eighty-six-a 34 of this chapter during the period covered by such estimate and certify 35 to the state comptroller such estimated amount. The comptroller shall 36 forthwith, after receiving such certificate, deduct the amount of such 37 credit so certified by the commissioner prior to any deposit or disposi- 38 tion of the taxes, interest and penalties collected or received pursuant 39 to such sections three hundred one-a and three hundred one-e and shall 40 pay such amount so certified and deducted into the state treasury to the 41 credit of the general fund. [As soon as practicable after April first, 42 nineteen hundred ninety-one, nineteen hundred ninety-two and nineteen 43 hundred ninety-three, but before June fifteenth of each such year, the 44 commissioner shall determine the amount of the utility tax credit which 45 has been actually used to reduce tax liability under such section one 46 hundred eighty-six-a and shall certify the difference between such actu- 47 al amount and the earlier estimated amount.] Also, subsequently, during 48 the fiscal year when the commissioner becomes aware of changes or 49 modifications with respect to actual credit usage, the commissioner 50 shall, as soon as practicable, issue a certification setting forth the 51 amount of any required adjustment to the amount of actual credit usage 52 previously certified. After receiving the certificate of the commission- 53 er with respect to actual credit usage or modification of the same, the 54 comptroller shall forthwith adjust general fund receipts and the reven- 55 ues to be deposited or disposed of under this article to reflect the 56 difference so certified by the commissioner. The commissioner shall not A. 4011--B 80 1 be liable for any overestimate or underestimate of the amount of the 2 utility credit which has been accrued to reduce tax liability under such 3 section one hundred eighty-six-a. Nor shall the commissioner be liable 4 for any inaccuracy in any certificate with respect to the amount of such 5 credit actually used or any required adjustment with respect to actual 6 credit usage, but the commissioner shall as soon as practicable after 7 discovery of any error adjust the next certification under this section 8 to reflect any such error. 9 [On or before July thirty-first, nineteen hundred ninety-two and on or 10 before July thirty-first, nineteen hundred ninety-three, the commission- 11 er shall conduct the following reconciliation with respect to the 12 preceding fiscal year: he shall multiply the total of all taxes, penal- 13 ties and interest, after refunds and reimbursements, which are derived 14 from the motor fuel component, the automotive-type diesel motor fuel 15 component and the aviation gasoline component by twenty fifty-fifths; 16 the total of all taxes, penalties and interest, after refunds and 17 reimbursements, which are derived from the nonautomotive-type diesel 18 motor fuel component (excluding taxes, penalties and interest which are 19 derived from product with respect to which the credit or reimbursement 20 provided by section three hundred one-d is taken) by twenty-fiftieths; 21 and all taxes, penalties and interest, after refunds and reimbursements, 22 which are derived from the residual petroleum product component (exclud- 23 ing taxes, penalties and interest which are derived from product with 24 respect to which the credit or reimbursement provided by section three 25 hundred one-d is taken) by twenty-fortieths. The products of the forego- 26 ing multiplications shall be added together and the resulting sum of 27 such products shall be compared with the total of the amounts initially 28 distributed during such fiscal year with respect to such components 29 (excluding receipts derived from product with respect to which the cred- 30 it or reimbursement provided by section three hundred one-d is taken and 31 excluding any amount which represents a reconciliation adjustment pursu- 32 ant to this paragraph) pursuant to section one hundred seventy-one-a of 33 this chapter which represented thirty-five percent of the total, after 34 refunds and reimbursements, of all taxes, penalties and interest 35 collected or received during such fiscal year under sections three 36 hundred one-a and three hundred one-e during the months of such fiscal 37 year with respect to such components. The commissioner shall then certi- 38 fy the amount of such difference to the comptroller. If the amounts 39 initially distributed in such fiscal year are greater than the sum of 40 such products, the comptroller shall withhold an amount equal to twen- 41 ty-seven and three-tenths percent of such difference from the first 42 moneys otherwise payable to the general fund pursuant to this subdivi- 43 sion and shall pay such amount to the mass transportation operating 44 assistance fund to the credit of the metropolitan mass transportation 45 operating assistance account and the public transportation systems oper- 46 ating assistance account thereof in the aforestated manner. If the 47 amounts initially distributed in such fiscal year are less than the sum 48 of such products, the comptroller shall withhold an amount equal to 49 twenty-seven and three-tenths percent of such difference from the first 50 moneys otherwise payable to the mass transportation operating assistance 51 fund pursuant to this subdivision and shall pay such amount to the 52 general fund. 53 When the commissioner becomes aware of changes or modifications with 54 respect to the distribution of revenue under this article, the commis- 55 sioner shall, as soon as practicable, issue a certification setting 56 forth the amount of any required adjustment. After receiving the certif- A. 4011--B 81 1 icate of the commissioner with respect to any adjustments, the comp- 2 troller shall forthwith adjust general fund receipts and the revenues to 3 be deposited or disposed of under this article to reflect the difference 4 so certified by the commissioner. The commissioner shall not be liable 5 for any overestimate or underestimate of the amount of the distribution. 6 Nor shall the commissioner be liable for any inaccuracy in any certif- 7 icate with respect to the amount of the distribution or any required 8 adjustment with respect to the distribution, but the commissioner shall 9 as soon as practicable after discovery of any error adjust the next 10 certification under this section to reflect any such error.] Prior to 11 making deposits as provided in this [subdivision] SECTION, the comp- 12 troller shall retain such amount as the commissioner may determine to be 13 necessary, subject to the approval of the director of the budget, for 14 reasonable costs of the department in administering and collecting the 15 taxes deposited pursuant to this [subdivision] SECTION and for refunds 16 and reimbursements with respect to such taxes, out of which the comp- 17 troller shall pay any refunds or reimbursements of such taxes to which 18 taxpayers shall be entitled. 19 S 33. Subdivision (b) of section 315 of the tax law, as amended by 20 section 156 of part A of chapter 389 of the laws of 1997, is amended to 21 read as follows: 22 (b) Joint administration of taxes. In addition to the powers granted 23 to the commissioner in this chapter, the commissioner is hereby author- 24 ized to make provisions for the joint administration, in whole or in 25 part, of the taxes imposed by articles twelve-A and twenty-eight and 26 pursuant to the authority of article twenty-nine of this chapter upon 27 [automotive fuel] MOTOR FUEL AND DIESEL MOTOR FUEL and the taxes imposed 28 by this article, including the joint reporting, assessment, collection, 29 determination and refund of such taxes, and for that purpose to 30 prescribe that any of the commissioner's functions under such articles, 31 and any returns, forms, statements, documents or information to be 32 submitted to the commissioner under such articles, any books and records 33 to be kept for purposes of the taxes imposed or authorized to be imposed 34 by such articles, any schedules of amounts to be collected under such 35 articles, any registration required under such articles, and the payment 36 of taxes under such articles, shall be on a joint basis with respect to 37 the taxes imposed by or pursuant to such articles. Provided, notwith- 38 standing any provision of this article to the contrary, in the further- 39 ance of joint administration, the provisions of subdivision one of 40 section two hundred eighty-five-a and subdivision one of section two 41 hundred eighty-nine-c of this chapter shall apply to the taxes imposed 42 under this article with the same force and effect as if those provisions 43 specifically referred to the taxes imposed hereunder and all the 44 products with respect to which the taxes are imposed under this article. 45 Provided, further, a reimbursement (or credit) of taxes imposed under 46 this article shall be available to subsequent purchasers of motor fuel, 47 diesel motor fuel or residual petroleum product under the circumstances 48 specified in subdivision eight of section two hundred eighty-nine-c of 49 this chapter with respect to the export of such products. In addition, 50 all the provisions of subdivision one of section two hundred eighty-six 51 of this chapter shall be applicable to all of the products included in 52 the measure of the tax imposed by this article and the powers of the 53 commissioner in administering the tax imposed by this article shall 54 include these set forth in such subdivision. Moreover, the commission- 55 er, in order to preserve the revenue from the tax imposed by this arti- 56 cle, shall, by regulation, require that the movement of residual petro- A. 4011--B 82 1 leum product into or in this state be accompanied by a tracking 2 document. [Such manifest or other tracking document shall be prescribed 3 only after consultation with the state motor fuels taxation advisory 4 council (created by section forty-one of chapter forty-four of the laws 5 of nineteen hundred eighty-five) as to its form and content and as to 6 whether an existing industry document (or a modified version thereof) 7 may adequately serve the tracking purpose so that such existing industry 8 document may be prescribed as the tracking document.] Also, the commis- 9 sioner may require (i) that any returns, forms, statements or other 10 document with respect to motor fuel or diesel motor fuel required of 11 transporters or terminal operators under such article twelve-A of this 12 chapter apply with the same force and effect to persons transporting or 13 storing residual petroleum product, (ii) a certification that particular 14 gallonage of motor fuel, diesel motor fuel or residual petroleum product 15 has been included in the measure of the tax imposed by this article and 16 such tax has been paid, and (iii) that the certification required pursu- 17 ant to section two hundred eighty-five-a or two hundred eighty-five-b of 18 this chapter be expanded to include the tax imposed by this article. 19 S 34. Subdivision 10 of section 501 of the tax law, as amended by 20 chapter 407 of the laws of 1990, is amended to read as follows: 21 10. "Automotive fuel" shall mean, SOLELY FOR PURPOSES OF THIS ARTICLE, 22 diesel motor fuel as defined in subdivision fourteen of section two 23 hundred eighty-two of this chapter and motor fuel as defined in subdivi- 24 sion two of section two hundred eighty-two of this chapter. 25 S 35. Subdivision (b) of section 528 of the tax law, as added by chap- 26 ter 170 of the laws of 1994, is amended to read as follows: 27 (b) Cooperative agreements. Notwithstanding any inconsistent provision 28 of law, the commissioner is authorized to enter into a cooperative 29 agreement with other states, the District of Columbia or provinces or 30 territories of Canada for the administration of the tax imposed by this 31 article and similar taxes imposed by other member jurisdictions and for 32 the reporting and payment of tax to a single base state and a propor- 33 tional sharing of revenue of taxes relating to fuel use among the juris- 34 dictions where a qualified motor vehicle is operated. The agreement may 35 provide for determining the base state for carriers, carriers records 36 requirements, audit procedures, exchange of information, persons eligi- 37 ble for tax licensing, defining qualified motor vehicles, determining if 38 bonding is required and requiring bonds to secure the tax imposed by 39 this article and similar taxes imposed by other member jurisdictions, 40 specifying reporting requirements and periods including defining uniform 41 penalty and interest rates for late reporting, determining methods for 42 collecting and forwarding of taxes, interest and penalties to another 43 jurisdiction, notice and timing of hearings and other provisions as will 44 facilitate the administration of the agreement. The commissioner may, 45 pursuant to the terms of the agreement, forward to the proper officers 46 of another member jurisdiction any information in the commissioner's 47 possession relating to the manufacture, receipt, sale, use, transporta- 48 tion or shipment of [automotive fuel] MOTOR FUEL OR DIESEL MOTOR FUEL by 49 any person and may share any information relating to the administration 50 of taxes pursuant to the agreement with such officers. The commissioner 51 may disclose to the proper officers of another member jurisdiction the 52 location of offices, motor vehicles and other real and personal property 53 of carriers. The agreement may provide for each member jurisdiction to 54 audit the records of persons based in the member jurisdiction and deter- 55 mine taxes due each member jurisdiction. The commissioner may adopt 56 rules and regulations for the administration and enforcement of the A. 4011--B 83 1 agreement. In connection with the administration of taxes under such a 2 cooperative agreement, the commissioner may enter into an agreement with 3 other member jurisdictions and any banks, banking houses, trust compa- 4 nies or other similar institutions with respect to the payment of any 5 tax, fees, penalty or interest to such banks, banking houses, trust 6 companies or similar institutions and the filing of returns and reports 7 with such banks, banking houses, trust companies or similar institutions 8 as agent of the commissioner and such other member jurisdictions. Pursu- 9 ant to a written agreement made with one or more of the appropriate 10 departments, agencies, officers or instrumentalities of other jurisdic- 11 tions, the commissioner may let contracts for provision of such services 12 to the department and to one or more of such entities of other jurisdic- 13 tions; provided, that provisions shall be made in all such agreements 14 with the participating governmental entities and in all such contracts 15 let by the commissioner for the assumption by each of the participating 16 governmental entities of sole responsibility for its proportionate share 17 of the costs under the terms of such contract. The commissioner may 18 contract for such services jointly with and pursuant to a contract let 19 by the appropriate department, agency, officer or instrumentality of 20 another jurisdiction; provided that (1) the commissioner shall approve 21 the proposed terms and conditions of all such joint governmental 22 contracts, (2) the letting of such joint governmental contract shall be 23 based on invitation of competitive bids or proposals, and (3) the 24 participation by the department in any such joint contract shall be 25 preceded by an evaluation and finding in writing by the commissioner 26 that a reasonable potential exists for the saving of costs by the state, 27 by means of such joint governmental contract. 28 S 36. The opening paragraph of subparagraph (ii) of paragraph 4 of 29 subdivision (b) of section 1101 of the tax law, as amended by chapter 30 261 of the laws of 1988, is amended to read as follows: 31 Notwithstanding the provisions of subparagraph (i) of this paragraph, 32 no motor fuel or diesel motor fuel shall be sold or used in this state 33 without payment, and inclusion in the sales price of such motor fuel, of 34 the tax on motor fuel required to be prepaid pursuant to the provisions 35 of section eleven hundred two of this article except where a provision 36 of this article relating to motor fuel or diesel motor fuel specifically 37 provides otherwise and except in the case of a sale or use subject to 38 tax under section eleven hundred five or eleven hundred ten, respective- 39 ly, of this article. Provided, however, except for such requirement of 40 prepayment of tax required by section eleven hundred two of this arti- 41 cle, the provisions of this subparagraph shall not otherwise modify the 42 meaning of the term "retail sale" as used in this article. For purposes 43 of this subparagraph and sections eleven hundred two, eleven hundred 44 eleven, eleven hundred twenty, eleven hundred thirty-two, eleven hundred 45 thirty-four, eleven hundred thirty-five, eleven hundred thirty-six, 46 ELEVEN HUNDRED FORTY-TWO, ELEVEN HUNDRED FORTY-FIVE and eighteen hundred 47 seventeen of this chapter, the following terms shall have the following 48 meanings: 49 S 37. Clause (A) of subparagraph (ii) of paragraph 4 of subdivision 50 (b) of section 1101 of the tax law, as amended by chapter 261 of the 51 laws of 1988, is amended to read as follows: 52 (A) "[Automotive fuel"] PETROLEUM PRODUCTS" means diesel motor fuel as 53 defined in subdivision fourteen of section two hundred eighty-two of 54 this chapter, other than kerosene or propane used for residential 55 purposes, or motor fuel as defined in subdivision two of section two 56 hundred eighty-two of this chapter. The phrase "used for residential A. 4011--B 84 1 purposes" shall have the same meaning as it has for purposes of section 2 eleven hundred five-A of this article. 3 S 38. Clause (F) of subparagraph (ii) of paragraph 4 of subdivision 4 (b) of section 1101 of the tax law is REPEALED and a new clause (F) is 5 added to read as follows: 6 (F) THE TERMS "HIGHWAY DIESEL MOTOR FUEL" AND "NON-HIGHWAY DIESEL 7 MOTOR FUEL" SHALL HAVE THE SAME MEANING AS THEY HAVE FOR PURPOSES OF 8 ARTICLE TWELVE-A OF THIS CHAPTER. 9 S 39. Paragraph 2 of subdivision (a) of section 1102 of the tax law, 10 as separately amended by section 9 of part W-1 of chapter 109 and chap- 11 ter 302 of the laws of 2006, is amended to read as follows: 12 (2) Every distributor of diesel motor fuel shall pay, as a prepayment 13 on account of the taxes imposed by this article and pursuant to the 14 authority of article twenty-nine of this chapter, a tax upon the sale or 15 use of diesel motor fuel in this state. The tax shall be computed based 16 upon the number of gallons of diesel motor fuel sold or used. Provided, 17 however, if the tax has not been imposed prior thereto, it shall be 18 imposed on the delivery of diesel motor fuel to a retail service 19 station. The collection of such tax shall not be made applicable to the 20 sale or use of diesel motor fuel under circumstances which preclude the 21 collection of such tax by reason of the United States constitution and 22 of laws of the United States enacted pursuant thereto. The prepaid tax 23 on diesel motor fuel shall not apply to (i) the sale of previously 24 untaxed [diesel motor fuel which is not enhanced] NON-HIGHWAY Diesel 25 motor fuel to a person registered as a distributor of Diesel motor fuel 26 other than a sale to such person which involves a delivery at a filling 27 station or into a repository which is equipped with a hose or other 28 apparatus by which such fuel can be dispensed into the fuel tank of a 29 motor vehicle, OR (ii) the sale to or delivery at a filling station or 30 other retail vendor of water-white kerosene provided such filling 31 station or other retail vendor only sells such water-white kerosene 32 exclusively for heating purposes in containers of no more than twenty 33 gallons or to the sale of CNG or hydrogen [or (iii) the sale of dyed 34 diesel motor fuel as set forth in clause (A) or (B) of subparagraph (i) 35 of paragraph (c) of subdivision three of section two hundred 36 eighty-two-a of this chapter]. 37 S 39-a. Paragraph 2 of subdivision (a) of section 1102 of the tax law, 38 as amended by chapter 302 of the laws of 2006, is amended to read as 39 follows: 40 (2) Every distributor of diesel motor fuel shall pay, as a prepayment 41 on account of the taxes imposed by this article and pursuant to the 42 authority of article twenty-nine of this chapter, a tax upon the sale or 43 use of diesel motor fuel in this state. The tax shall be computed based 44 upon the number of gallons of diesel motor fuel sold or used. Provided, 45 however, if the tax has not been imposed prior thereto, it shall be 46 imposed on the delivery of diesel motor fuel to a retail service 47 station. The collection of such tax shall not be made applicable to the 48 sale or use of diesel motor fuel under circumstances which preclude the 49 collection of such tax by reason of the United States constitution and 50 of laws of the United States enacted pursuant thereto. The prepaid tax 51 on diesel motor fuel shall not apply to (i) the sale of previously 52 untaxed [diesel motor fuel which is not enhanced] NON-HIGHWAY Diesel 53 motor fuel to a person registered as a distributor of Diesel motor fuel 54 other than a sale to such person which involves a delivery at a filling 55 station or into a repository which is equipped with a hose or other 56 apparatus by which such fuel can be dispensed into the fuel tank of a A. 4011--B 85 1 motor vehicle, OR (ii) the sale to or delivery at a filling station or 2 other retail vendor of water-white kerosene provided such filling 3 station or other retail vendor only sells such water-white kerosene 4 exclusively for heating purposes in containers of no more than twenty 5 gallons [or (iii) the sale of dyed diesel motor fuel as set forth in 6 clause (A) or (B) of subparagraph (i) of paragraph (c) of subdivision 7 three of section two hundred eighty-two-a of this chapter]. 8 S 40. Subsection (a) of section 1105-A of the tax law, as amended by 9 section 1 of part B of chapter 35 of the laws of 2006, is amended to 10 read as follows: 11 (a) Notwithstanding any other provisions of this article, but not for 12 purposes of the taxes imposed by section eleven hundred eight of this 13 part or authorized pursuant to the authority of article twenty-nine of 14 this chapter, the taxes imposed by subdivision (a) or (b) of section 15 eleven hundred five OF THIS PART on the receipts from the retail sale of 16 fuel oil and coal used for residential purposes; the receipts from the 17 retail sale of wood used for residential heating purposes; and the 18 receipts from every sale, other than for resale, of propane (except when 19 sold in containers of less than one hundred pounds), natural gas, elec- 20 tricity, steam and gas, electric and steam services used for residential 21 purposes shall be paid at the rate of three percent for the period 22 commencing January first, nineteen hundred seventy-nine and ending 23 December thirty-first, nineteen hundred seventy-nine; at the rate of two 24 and one-half percent for the period commencing January first, nineteen 25 hundred eighty and ending September thirtieth, nineteen hundred eighty, 26 and at the rate of zero percent on and after October first, nineteen 27 hundred eighty. The provisions of this subsection shall not apply to a 28 sale of [(i)] diesel motor fuel which involves a delivery at a filling 29 station or into a repository which is equipped with a hose or other 30 apparatus by which such fuel can be dispensed into the fuel tank of a 31 motor vehicle [and (ii) enhanced diesel motor fuel except in the case of 32 a sale of such enhanced diesel motor fuel used exclusively for residen- 33 tial purposes which is delivered into a storage tank which is not 34 equipped with a hose or other apparatus by which such fuel can be 35 dispensed into the fuel tank of a motor vehicle and such storage tank is 36 attached to the heating unit burning such fuel, provided that each 37 delivery of such fuel of over four thousand five hundred gallons shall 38 be evidenced by a certificate signed by the purchaser stating that the 39 product will be used exclusively for residential purposes]. 40 S 41. Subdivision (j) of section 1115 of the tax law, as amended by 41 section 12 of part W-1 of chapter 109 of the laws of 2006, is amended to 42 read as follows: 43 (j) The exemptions provided in this section shall not apply to the tax 44 required to be prepaid pursuant to the provisions of section eleven 45 hundred two of this article nor to the taxes imposed by sections eleven 46 hundred five and eleven hundred ten of this article with respect to 47 receipts from sales and uses of motor fuel or diesel motor fuel, except 48 that the exemptions provided in paragraphs nine and forty-two of subdi- 49 vision (a) of this section shall apply to the tax required to be prepaid 50 pursuant to the provisions of section eleven hundred two of this article 51 and to the taxes imposed by sections eleven hundred five and eleven 52 hundred ten of this article with respect to sales and uses of kero-jet 53 fuel, CNG, hydrogen and E85, provided, however, the exemption allowed 54 for E85 shall be subject to the additional requirements provided in 55 section eleven hundred two of this article with respect to E85. The 56 exemption provided in subdivision (c) of this section shall apply to A. 4011--B 86 1 sales and uses of NON-HIGHWAY diesel motor fuel [which is not enhanced 2 diesel motor fuel] but only if all of such fuel is consumed other than 3 on the PUBLIC highways of this state[, provided, however, this exemption 4 shall in no event apply to a sale of diesel motor fuel which involves a 5 delivery at a filling station or into a repository which is equipped 6 with a hose or other apparatus by which such fuel can be dispensed into 7 the fuel tank of a motor vehicle]. The exemption provided in subdivision 8 (c) of this section shall apply to sales and uses of [no more than four 9 thousand five hundred gallons of] NON-HIGHWAY diesel motor fuel [in a 10 thirty-day period] for use or consumption either in the production for 11 sale of tangible personal property by farming or in a commercial horse 12 boarding operation, or in both but only if all of such fuel is consumed 13 other than on the PUBLIC highways of this state (except for the use of 14 the PUBLIC highways to reach adjacent farmlands or adjacent lands used 15 in a commercial horse boarding operation, or both)[, provided, however, 16 such exemption shall be applicable to the sale or use of more than four 17 thousand five hundred gallons of diesel motor fuel in a thirty-day peri- 18 od for such use or consumption in accordance with a prior clearance 19 given by the commissioner]. 20 S 41-a. Subdivision (j) of section 1115 of the tax law, as amended by 21 section 8 of part B of chapter 63 of the laws of 2000, is amended to 22 read as follows: 23 (j) The exemptions provided in this section shall not apply to the tax 24 required to be prepaid pursuant to the provisions of section eleven 25 hundred two of this article nor to the taxes imposed by sections eleven 26 hundred five and eleven hundred ten of this article with respect to 27 receipts from sales and uses of motor fuel or diesel motor fuel, except 28 that the exemption provided in paragraph nine of subdivision (a) of this 29 section shall apply to the tax required to be prepaid pursuant to the 30 provisions of section eleven hundred two of this article and to the 31 taxes imposed by sections eleven hundred five and eleven hundred ten of 32 this article with respect to sales and uses of kero-jet fuel. The 33 exemption provided in subdivision (c) of this section shall apply to 34 sales and uses of NON-HIGHWAY diesel motor fuel [which is not enhanced 35 diesel motor fuel] but only if all of such fuel is consumed other than 36 on the PUBLIC highways of this state[, provided, however, this exemption 37 shall in no event apply to a sale of diesel motor fuel which involves a 38 delivery at a filling station or into a repository which is equipped 39 with a hose or other apparatus by which such fuel can be dispensed into 40 the fuel tank of a motor vehicle]. The exemption provided in subdivision 41 (c) of this section shall apply to sales and uses of [no more than four 42 thousand five hundred gallons of] NON-HIGHWAY diesel motor fuel [in a 43 thirty-day period] for use or consumption either in the production for 44 sale of tangible personal property by farming or in a commercial horse 45 boarding operation, or in both but only if all of such fuel is consumed 46 other than on the PUBLIC highways of this state (except for the use of 47 the PUBLIC highways to reach adjacent farmlands or adjacent lands used 48 in a commercial horse boarding operation, or both)[, provided, however, 49 such exemption shall be applicable to the sale or use of more than four 50 thousand five hundred gallons of diesel motor fuel in a thirty-day peri- 51 od for such use or consumption in accordance with a prior clearance 52 given by the commissioner]. 53 S 42. Subdivision (e) of section 1120 of the tax law, as amended by 54 chapter 2 of the laws of 1995, is amended to read as follows: 55 (e) Immediate export. With respect to (i) motor fuel imported, manu- 56 factured or sold or purchased in this state, and (ii) [enhanced] HIGHWAY A. 4011--B 87 1 diesel motor fuel, a refund or credit shall be allowed a registered 2 distributor of this state or a purchaser of the tax required to be 3 prepaid pursuant to section eleven hundred two of this article in the 4 amount of such tax paid by or included in the price paid by a distribu- 5 tor or such purchaser if such fuel was exported from this state for sale 6 outside this state, such distributor or such purchaser, as the case may 7 be, exporting such fuel is duly registered with or licensed by the 8 taxing authorities of the state to which such fuel is exported as a 9 distributor or a dealer in the fuel being so exported, and in connection 10 with such exportation such fuel was immediately shipped to an identified 11 facility in the state to which such fuel is exported, and provided the 12 applicant complies with all requirements and rules and regulations of 13 the commissioner, including evidentiary requirements, relating thereto. 14 S 43. Subparagraph (i) of paragraph 3 of subdivision (h) of section 15 1132 of the tax law, as amended by chapter 261 of the laws of 1988, is 16 amended to read as follows: 17 (i) For the purpose of the proper administration of this article and 18 to prevent evasion of the tax hereby imposed, it shall be presumed that 19 all retail sales of motor fuel or diesel motor fuel are subject to the 20 tax required to be collected by subdivision (a) of section eleven 21 hundred five of this article or paid by the provisions of section eleven 22 hundred ten of this article until the contrary is established, and it 23 shall be presumed that all motor fuel or diesel motor fuel imported, 24 manufactured, [subjected to enhancement,] sold, received or possessed by 25 any person in this state, which such person cannot otherwise account for 26 as having been sold subject to the tax required to be collected by 27 subdivision (a) of section eleven hundred five or paid by the provisions 28 of section eleven hundred ten of this article, has been sold subject to 29 the tax required to be collected by subdivision (a) of section eleven 30 hundred five or paid by the provisions of section eleven hundred ten 31 except that no such presumption shall apply with respect to motor fuel 32 or diesel motor fuel in the fuel tank of a motor vehicle used to propel 33 such vehicle or to motor fuel in small drums or similar containers. The 34 burden of proving that any sale is not so subject shall be upon the 35 person required to collect such tax and the purchaser of such fuel. 36 S 44. Subparagraph (iii) of paragraph 1 of subdivision (a) of section 37 1134 of the tax law, as amended by section 160 of part A of chapter 389 38 of the laws of 1997, is amended to read as follows: 39 (iii) every person selling [automotive fuel] PETROLEUM PRODUCTS 40 including persons who or which are not distributors, 41 S 45. Subdivision (d) of section 1135 of the tax law, as amended by 42 chapter 44 of the laws of 1985 and as relettered by chapter 61 of the 43 laws of 1989, is amended to read as follows: 44 (d) Every person selling or holding large volumes of [automotive fuel] 45 PETROLEUM PRODUCTS shall keep records for such periods and in the manner 46 prescribed by the [tax commission] COMMISSIONER pursuant to rules and 47 regulations. Such records shall show (1) the number of gallons of [auto- 48 motive fuel] PETROLEUM PRODUCTS purchased, the price paid therefor, the 49 amount of tax paid pursuant to the provisions of section eleven hundred 50 two of this article [and the regional average retail sales price appli- 51 cable thereto] and (2) the number of gallons sold, and the price paid by 52 the purchaser to whom such person sells the [automotive fuel] PETROLEUM 53 PRODUCTS, and the amount of tax included in such price pursuant to the 54 provisions of section eleven hundred two of this article and the 55 [regional average retail sales price or the] amount of tax collected 56 pursuant to the provisions of subdivision (a) of section eleven hundred A. 4011--B 88 1 five of this article applicable to such sale together with such addi- 2 tional information as the [tax commission] COMMISSIONER shall require. 3 The [regional average retail sales price, and the] amount of tax shall 4 be calculated in the manner set forth in section eleven hundred eleven 5 of this article. 6 S 46. Subdivision (a) of section 1136 of the tax law, as amended by 7 chapter 89 of the laws of 1976, paragraphs 1, 2, 3 and 5 as amended and 8 paragraph 6 as added by chapter 2 of the laws of 1995 and paragraphs 4 9 and 7 as amended by section 2-e of part M-1 of chapter 106 of the laws 10 of 2006, is amended to read as follows: 11 (a) (1) Every person required to register with the commissioner as 12 provided in section eleven hundred thirty-four OF THIS PART whose taxa- 13 ble receipts, amusement charges and rents total less than three hundred 14 thousand dollars, or in the case of any such person who is a distributor 15 whose sales of [automotive fuel] PETROLEUM PRODUCTS total less than one 16 hundred thousand gallons, in every quarter of the preceding four quar- 17 ters, shall only file a return quarterly with the commissioner. 18 (2) Every person required to register with the commissioner as 19 provided in section eleven hundred thirty-four OF THIS PART whose taxa- 20 ble receipts, amusement charges and rents total three hundred thousand 21 dollars or more, or in the case of any such person who is a distributor 22 whose sales of [automotive fuel] PETROLEUM PRODUCTS total one hundred 23 thousand gallons or more, in any quarter of the preceding four quarters, 24 shall, in addition to filing a quarterly return described in paragraph 25 one of this subdivision, and except as otherwise provided in section 26 eleven hundred two or eleven hundred three of this article, file either 27 a long-form or short-form part-quarterly return monthly with the commis- 28 sioner. 29 (3) However, a person required to register with the commissioner as 30 provided in section eleven hundred thirty-four OF THIS PART only because 31 such person is purchasing or selling tangible personal property for 32 resale, and who is not required to collect any tax or pay any tax 33 directly to the commissioner under this article, shall file an informa- 34 tion return annually in such form as the commissioner may prescribe. 35 Likewise, a person, who is required to register and who is selling 36 [automotive fuel] PETROLEUM PRODUCTS who is not a distributor of motor 37 fuel, shall file an information return quarterly or, if the commissioner 38 deems necessary, monthly, in such form as the commissioner shall 39 prescribe. 40 (4) The return of a vendor of tangible personal property or services 41 shall show such vendor's receipts from sales and the number of gallons 42 of any motor fuel or diesel motor fuel sold and also the aggregate value 43 of tangible personal property and services and number of gallons of such 44 fuels sold by the vendor, the use of which is subject to tax under this 45 article, and the amount of tax payable thereon pursuant to the 46 provisions of section eleven hundred thirty-seven of this part. The 47 return of a recipient of amusement charges shall show all such charges 48 and the amount of tax thereon, and the return of an operator required to 49 collect tax on rents shall show all rents received or charged and the 50 amount of tax thereon. 51 (5) The returns of any seller of [automotive fuel] PETROLEUM PRODUCTS 52 shall show the number of gallons of [automotive fuel] PETROLEUM PRODUCTS 53 sold, together with such additional information as the commissioner 54 shall require in order to certify the amount of taxes, penalties and 55 interest payable to local taxing jurisdictions imposed on the sale or A. 4011--B 89 1 use of [automotive fuel] PETROLEUM PRODUCTS pursuant to the provisions 2 of section twelve hundred sixty-one of this chapter. 3 (6) The returns of any seller of cigarettes shall show the amount of 4 prepaid tax assumed or paid thereon and passed through, together with 5 such additional information as the commissioner shall require. 6 (7) Taxable receipts as used in this section shall include taxable 7 receipts from the sale of [automotive fuel] PETROLEUM PRODUCTS and ciga- 8 rettes and any receipts from the sale of motor fuel or diesel motor fuel 9 or cigarettes in this state whether or not such receipts are subject to 10 the taxes imposed by section eleven hundred two, eleven hundred three, 11 eleven hundred five or eleven hundred ten of this article and regardless 12 of whether the provisions of section eleven hundred twenty or eleven 13 hundred twenty-one of this article are applicable to the taxes imposed 14 in respect of such receipts or numbers of gallons of motor fuel or 15 diesel motor fuel sold. 16 [(i)] (8) For purposes of this article the term "long-form, part-quar- 17 terly return" shall mean a return in a form determined by the [tax 18 commission] COMMISSIONER providing for the calculation of the actual 19 sales and compensating use taxes for the preceding month in the manner 20 set forth in subdivisions (a) and (b) of section eleven hundred thirty- 21 seven OF THIS PART. A person filing a long-form, part-quarterly return 22 for each of the months contained in a quarter shall also be required to 23 file a quarterly return for such quarter. 24 [(ii)] (9) For purposes of this article the term "short-form, part- 25 quarterly return" shall mean a return which shall be available for use 26 in filing as a return for the first two months of any quarter and only 27 by a person required to file a return monthly who has had at least four 28 successive quarterly tax periods immediately preceding the month for 29 which the return is to be filed and who elects such use, and is in a 30 form determined by the [tax commission] COMMISSIONER and providing for 31 the calculation of one-third of the total state and local sales and 32 compensating use taxes paid by the person to the [tax commission] 33 COMMISSIONER in the comparable quarter of the immediately preceding year 34 under this article and as taxes imposed pursuant to the authority of 35 article twenty-nine with respect to all receipts, amusement charges and 36 rents. 37 S 47. Subdivision 11 of section 1142 of the tax law, as added by chap- 38 ter 930 of the laws of 1982, is amended to read as follows: 39 11. To make such provision pursuant to rules and regulations for the 40 joint administration, in whole or in part, of the state and local taxes 41 imposed by this article and authorized by article twenty-nine of this 42 chapter upon the sale of [automotive fuel] PETROLEUM PRODUCTS and the 43 taxes imposed by article twelve-A of this chapter and authorized to be 44 imposed by such article, including the joint reporting, assessment, 45 collection, determination and refund of such taxes, and for that purpose 46 to prescribe that any of the [commission's] COMMISSIONER'S functions 47 under said articles, and any returns, forms, statements, documents or 48 information to be submitted to the [commission] COMMISSIONER under said 49 articles, any books and records to be kept for purposes of the taxes 50 imposed or authorized by said articles, any schedules of amounts to be 51 collected under said articles, any registration required under said 52 articles, and the payment of taxes under said articles shall be on a 53 joint basis with respect to the taxes imposed by said articles. 54 S 48. Subparagraph (i) of paragraph 3 of subdivision (a) of section 55 1145 of the tax law, as amended by chapter 2 of the laws of 1995, is 56 amended to read as follows: A. 4011--B 90 1 (i) Any person required to obtain a certificate of authority under 2 section eleven hundred thirty-four OF THIS PART who, without possessing 3 a valid certificate of authority, (A) sells tangible personal property 4 or services subject to tax, receives amusement charges or operates a 5 hotel, (B) purchases or sells tangible personal property for resale, (C) 6 sells [automotive fuel] PETROLEUM PRODUCTS, or (D) sells cigarettes 7 shall, in addition to any other penalty imposed by this chapter, be 8 subject to a penalty in an amount not exceeding five hundred dollars for 9 the first day on which such sales or purchases are made, plus an amount 10 not exceeding two hundred dollars for each subsequent day on which such 11 sales or purchases are made, not to exceed ten thousand dollars in the 12 aggregate. 13 S 49. Subparagraph (i) of paragraph 3 of subdivision (a) of section 14 1210 of the tax law, as amended by section 2 of part B of chapter 35 of 15 the laws of 2006, is amended to read as follows: 16 (i) Notwithstanding any other provision of law to the contrary but not 17 with respect to cities subject to the provisions of section eleven 18 hundred eight of this [article] CHAPTER, any city or county, except a 19 county wholly contained within a city, may provide that the taxes 20 imposed, pursuant to this subdivision, by such city or county on the 21 retail sale or use of fuel oil and coal used for residential purposes, 22 the retail sale or use of wood used for residential heating purposes, 23 the sale, other than for resale, of propane (except when sold in 24 containers of less than one hundred pounds), natural gas, electricity, 25 steam and gas, electric and steam services used for residential purposes 26 and the use of gas or electricity used for residential purposes may be 27 imposed at a lower rate than the uniform local rate imposed pursuant to 28 the opening paragraph of this section, as long as such rate is one of 29 the rates authorized by such paragraph or such sale or use may be 30 exempted from such taxes. Provided, however, such lower rate must apply 31 to all such energy sources and services and at the same rate and no such 32 exemption may be enacted unless such exemption applies to all such ener- 33 gy sources and services. The provisions of this subparagraph shall not 34 apply to a sale or use of [(i)] diesel motor fuel which involves a 35 delivery at a filling station or into a repository which is equipped 36 with a hose or other apparatus by which such fuel can be dispensed into 37 the fuel tank of a motor vehicle [and (ii) enhanced diesel motor fuel 38 except in the case of a sale or use of such enhanced diesel motor fuel 39 used exclusively for residential purposes which is delivered into a 40 storage tank which is not equipped with a hose or other apparatus by 41 which such fuel can be dispensed into the fuel tank of a motor vehicle 42 and such storage tank is attached to the heating unit burning such fuel, 43 provided that each delivery of such fuel of over four thousand five 44 hundred gallons shall be evidenced by a certificate signed by the 45 purchaser stating that the product will be used exclusively for residen- 46 tial purposes]. 47 S 50. Subdivision (c) of section 1812 of the tax law, as amended by 48 section 25 of subpart I of part V-1 of chapter 57 of the laws of 2009, 49 is amended to read as follows: 50 (c) Any owner of a filling station who shall willfully and knowingly 51 have in his OR HER custody, possession or under his OR HER control any 52 motor fuel or Diesel motor fuel [on which] (1) ON WHICH the taxes 53 imposed by or pursuant to the authority of such article have not been 54 assumed or paid by a distributor registered as such under such article 55 [or], (2) ON WHICH the taxes imposed by or pursuant to the authority of 56 such article have not been included in the cost to him OR HER of such A. 4011--B 91 1 fuel where such taxes were required to have been passed through to him 2 OR HER and included in the cost to him OR HER of such fuel, OR (3) 3 WHICH IS DYED DIESEL MOTOR FUEL AS DEFINED BY SUBDIVISION EIGHTEEN-A OF 4 SECTION TWO HUNDRED EIGHTY-TWO OF THIS CHAPTER (EXCEPT FOR WATER-WHITE 5 KEROSENE), shall [in either case,] be guilty of a class E felony. For 6 purposes of this subdivision, such owner shall willfully and knowingly 7 have in his OR HER custody, possession or under his OR HER control any 8 motor fuel or Diesel motor fuel on which such taxes have not been 9 assumed or paid by a distributor registered as such where such owner has 10 knowledge of the requirement that such taxes be paid and where, to his 11 OR HER knowledge, such taxes have not been assumed or paid by a regis- 12 tered distributor on such motor fuel or Diesel motor fuel. Such owner 13 shall willfully and knowingly have in his OR HER custody, possession or 14 under his OR HER control any motor fuel or Diesel motor fuel on which 15 such taxes are required to have been passed through to him OR HER and 16 have not been included in his OR HER cost where such owner has knowledge 17 of the requirement that such taxes be passed through and where to his 18 knowledge such taxes have not been so included. SUCH OWNER SHALL WILL- 19 FULLY AND KNOWINGLY HAVE IN HIS OR HER CUSTODY, POSSESSION OR UNDER HIS 20 OR HER CONTROL ANY DYED DIESEL MOTOR FUEL (EXCEPT WATER-WHITE KEROSENE) 21 WHERE SUCH OWNER HAS KNOWLEDGE OF THE REQUIREMENT THAT DYED DIESEL MOTOR 22 FUEL (EXCEPT WATER-WHITE KEROSENE) MAY NOT BE IN HIS OR HER CUSTODY, 23 POSSESSION OR UNDER HIS OR HER CONTROL. 24 S 51. Subdivision (e) of section 1812 of the tax law is REPEALED and 25 subdivision (f) is relettered subdivision (e). 26 S 52. Section 1812-a of the tax law, as added by chapter 261 of the 27 laws of 1988, is amended to read as follows: 28 S 1812-a. Person not registered as distributor of Diesel motor fuel. 29 (a) Any person who, while not registered as a distributor of Diesel 30 motor fuel pursuant to the provisions of article twelve-A of this chap- 31 ter, [engages in the enhancement,] makes a sale or use within the state 32 of Diesel motor fuel (other than a retail sale not in bulk or the self- 33 use of Diesel motor fuel which has been the subject of a retail sale), 34 imports or causes Diesel motor fuel to be imported into the state or 35 produces, refines, manufactures or compounds Diesel motor fuel within 36 the state shall be guilty of a misdemeanor. If, within any ninety day 37 period, two thousand nine hundred gallons or more of Diesel motor fuel 38 are subjected to [enhancement or] sale or use (other than a retail sale 39 not in bulk or the self-use of Diesel motor fuel which has been the 40 subject of a retail sale) within the state or are imported or caused to 41 be imported by any person while not so registered as a distributor of 42 Diesel motor fuel, such person shall be guilty of a class E felony. 43 (b) Any person whose registration under article twelve-A of this chap- 44 ter applies only to the importation, sale and distribution of Diesel 45 motor fuel for [the purposes] USE OTHER THAN ON A PUBLIC HIGHWAY AS 46 described in subparagraph (i) of paragraph (b) of subdivision three of 47 section two hundred eighty-two-a of this chapter who delivers NON-HIGH- 48 WAY Diesel motor fuel at a filling station [other than for the sole 49 purpose of heating such station] or into a repository equipped with a 50 hose or other apparatus by which NON-HIGHWAY Diesel motor fuel can be 51 dispensed into the fuel tank of a motor vehicle, other than such a 52 repository which is located on the premises of such registrant where the 53 Diesel motor fuel delivered therein is used exclusively for the purpose 54 of fueling motor vehicles operated by registrant for the purpose of 55 distributing Diesel motor fuel for the purposes described in such 56 subparagraph (i), shall be guilty of a misdemeanor. If, within any nine- A. 4011--B 92 1 ty day period, any such person whose registration under article twelve-A 2 of this chapter applies only to the importation, sale and distribution 3 of NON-HIGHWAY Diesel motor fuel for the purposes described in subpara- 4 graph (i) of paragraph (b) of subdivision three of section two hundred 5 eighty-two-a of this chapter so unlawfully delivers a total of one thou- 6 sand gallons or more of Diesel motor fuel at such filling station or 7 stations or into such repository or repositories (or a combination of 8 both such filling stations and repositories), then, such person shall be 9 guilty of a class E felony. 10 (c) Any person who has twice been convicted under this section shall 11 be guilty of a class E felony for any subsequent violation of this 12 section, regardless of the amount of Diesel motor fuel involved in such 13 violation. For purposes of this section, the terms ["enhancement"] 14 "NON-HIGHWAY DIESEL MOTOR FUEL" and "retail sale not in bulk" shall have 15 the same meaning they have for purposes of article twelve-A of this 16 chapter. 17 S 53. Subdivisions (a) and (b) of section 1817 of the tax law, as 18 amended by section 30 of subpart I of part V-1 of chapter 57 of the laws 19 of 2009, is amended to read as follows: 20 (a) Any person required to obtain a certificate of authority under 21 section eleven hundred thirty-four of this chapter who, without possess- 22 ing a valid certificate of authority, willfully (1) sells tangible 23 personal property or services subject to tax, receives amusement charges 24 or operates a hotel, (2) purchases or sells tangible personal property 25 for resale, or (3) sells [automotive fuel] PETROLEUM PRODUCTS; and any 26 person who fails to surrender a certificate of authority as required by 27 such article shall be guilty of a misdemeanor. 28 (b) Any person required to obtain a certificate of authority under 29 section eleven hundred thirty-four of this chapter who within five years 30 after a determination by the [tax commission] COMMISSIONER, pursuant to 31 such section, to suspend, revoke or refuse to issue a certificate of 32 authority has become final, and without possession of a valid certif- 33 icate of authority (1) sells tangible personal property or services 34 subject to tax, receives amusement charges or operates a hotel, (2) 35 purchases or sells tangible personal property for resale, or (3) sells 36 [automotive fuel] PETROLEUM PRODUCTS, shall be guilty of a misdemeanor. 37 It shall be an affirmative defense that such person performed the acts 38 described in this subdivision without knowledge of such determination. 39 Any person who violates a provision of this subdivision, upon 40 conviction, shall be subject to a fine in any amount authorized by this 41 article, but not less than five hundred dollars, in addition to any 42 other penalty provided by law. 43 S 54. The section heading, subdivisions (a), (b) and (c), paragraph 3, 44 subparagraph (D) of paragraph 4 and paragraph 6 of subdivision (d) and 45 subdivisions (e) and (g) of section 1848 of the tax law, as added by 46 chapter 276 of the laws of 1986 and subparagraph (D) of paragraph 4 and 47 paragraph 6 of subdivision (d) as amended by chapter 190 of the laws of 48 1990, are amended to read as follows: 49 Forfeiture action with respect to motor fuel and DIESEL MOTOR FUEL AND 50 vehicle carrying such fuel. (a) Temporary seizure. Whenever a police 51 officer designated in section 1.20 of the criminal procedure law or a 52 peace officer designated in subdivision four of section 2.10 of such 53 law, acting pursuant to his special duties, shall discover any motor 54 fuel OR DIESEL MOTOR FUEL which is being imported for use, distribution, 55 storage or sale in the state where the person importing or causing such 56 motor fuel OR DIESEL MOTOR FUEL to be imported is not registered as a A. 4011--B 93 1 distributor under section two hundred eighty-three OR SECTION TWO 2 HUNDRED EIGHTY-TWO-A, of this chapter, AS THE CASE MAY BE, such police 3 officer or peace officer is hereby authorized to seize and take 4 possession of such motor fuel OR DIESEL MOTOR FUEL, together with the 5 vehicle or other means of transportation used to transport such motor 6 fuel. 7 (b) Retention of property. The department [of taxation and finance] 8 shall hold and safely keep such motor fuel, DIESEL MOTOR FUEL, vehicle 9 or other means of transportation seized pursuant to subdivision (a) of 10 this section. Seized motor fuel OR DIESEL MOTOR FUEL may be deposited 11 to the credit of the department [of taxation and finance] at a terminal 12 or other storage facility within the state or may be sold by the depart- 13 ment on the open market. 14 (c) Confirmation of temporary seizure. Within five business days after 15 the temporary seizure of motor fuel, DIESEL MOTOR FUEL, vehicle or other 16 means of transportation pursuant to subdivision (a) of this section, the 17 department [of taxation and finance] shall move in supreme court in any 18 county, on such notice as the court shall direct to the owners of the 19 property, to confirm the temporary seizure. If the department [of taxa- 20 tion and finance] fails to make such motion within the required period, 21 such seized property shall be restored to the owners thereof as provided 22 in subdivision (e) of this section. On a motion for an order confirming 23 the seizure, the department [of taxation and finance] shall show, by 24 affidavit and such other written evidence as may be submitted, that 25 there is a cause of action for forfeiture under subdivision (d) of this 26 section and that there are grounds for confirmation of the seizure. The 27 department shall include, in its motion papers, an inventory of all 28 seized property. The court shall grant an application for an order 29 confirming the seizure when it determines that there is a substantial 30 probability that the department [of taxation and finance] will prevail 31 on the issue of forfeiture. 32 (3) Forfeiture of motor fuel OR DIESEL MOTOR FUEL together with the 33 vehicle or other means of transportation used to transport such motor 34 fuel OR DIESEL MOTOR FUEL shall be adjudged where the department [of 35 taxation and finance] proves, by clear and convincing evidence, that the 36 person importing or causing such motor fuel OR DIESEL MOTOR FUEL to be 37 imported was not registered as a distributor under section two hundred 38 eighty-three OR SECTION TWO HUNDRED EIGHTY-TWO-A of this chapter, AS THE 39 CASE MAY BE. All defendants in a forfeiture action brought pursuant to 40 this article shall have the right to trial by jury on any issue of fact. 41 (D) The court may grant the relief provided in subparagraph (A) [here- 42 of] OF THIS PARAGRAPH if it finds that such relief is warranted by the 43 existence of some compelling factor, consideration or circumstance 44 demonstrating that forfeiture of the property or any part thereof, would 45 not serve the ends of justice. Reporting and payment of the tax imposed 46 pursuant to article twelve-A or article twenty-eight of this chapter 47 with respect to such motor fuel OR DIESEL MOTOR FUEL subsequent to the 48 seizure of such fuel shall not constitute a compelling factor, consider- 49 ation or circumstance warranting the granting of the relief provided for 50 in subparagraph (A) [hereof] of this paragraph. In determining whether 51 such relief is warranted by the existence of some compelling factor, 52 consideration or circumstances pursuant to this paragraph, the court 53 may, however, take into account the fact that such taxes with respect to 54 the seized fuel have been reported and remitted to the state prior to 55 the temporary seizure of such fuel if the unregistered importation into 56 the state was effected in good faith and without knowledge of the A. 4011--B 94 1 requirement of registration and without intent to evade tax. The court 2 must issue a written decision, stating the basis for an order issued 3 pursuant to this paragraph. 4 (6) The total that may be recovered shall not exceed the value of the 5 motor fuel OR DIESEL MOTOR FUEL seized and, in addition, either the 6 value of the vehicle or other means of transportation used to transport 7 such fuel or three times the amount of the tax and penalty under arti- 8 cles twelve-A, thirteen-A and twenty-eight and pursuant to the authority 9 of article twenty-nine of this chapter with respect to the motor fuel OR 10 DIESEL MOTOR FUEL, whichever is less. 11 (e) Return of property. If (1) the department [of taxation and 12 finance] fails to move for confirmation of the seizure pursuant to 13 subdivision (c) of this section or (2) a court denies an application for 14 an order confirming the seizure or (3) judgment is entered against the 15 department in the forfeiture action and that judgment is affirmed after 16 all appeals are exhausted, then the department shall restore such seized 17 motor fuel OR DIESEL MOTOR FUEL, or motor fuel OR DIESEL MOTOR FUEL of a 18 like quantity and type, or such seized vehicle or other means of trans- 19 portation to the owners thereof. Alternatively, if such seized motor 20 fuel OR DIESEL MOTOR FUEL has been sold as provided in subdivision (b) 21 of this section, the department shall pay to the owners of such motor 22 fuel OR DIESEL MOTOR FUEL the proceeds of such sale or, if greater, an 23 amount of money representing the fair market value of the motor fuel OR 24 DIESEL MOTOR FUEL at the time of the seizure. 25 (g) Disposal of property. The department [of taxation and finance], 26 after a judicial determination of forfeiture, shall, in its discretion, 27 either retain such seized property for its official use or sell such 28 forfeited property at public sale. The net proceeds of any such sale, or 29 of any sale of seized motor fuel OR DIESEL MOTOR FUEL as provided in 30 subdivision (b) of this section, after deduction of the lawful expenses 31 incurred, shall be deposited and disposed of pursuant to the provisions 32 of section one hundred seventy-one-a of this chapter with respect to 33 deposit and disposition of revenue. 34 S 55. Paragraph (q) of subdivision 34 of section 1.20 of the criminal 35 procedure law, as amended by chapter 318 of the laws of 2002, is amended 36 to read as follows: 37 (q) An employee of the department of taxation and finance (i) assigned 38 to enforcement of the taxes imposed under or pursuant to the authority 39 of article twelve-A of the tax law and administered by the commissioner 40 of taxation and finance, taxes imposed under or pursuant to the authori- 41 ty of article eighteen of the tax law and administered by the commis- 42 sioner, taxes imposed under article twenty of the tax law, or sales or 43 compensating use taxes relating to [automotive fuel] PETROLEUM PRODUCTS 44 or cigarettes imposed under article twenty-eight or pursuant to the 45 authority of article twenty-nine of the tax law and administered by the 46 commissioner or (ii) designated as a revenue crimes specialist and 47 assigned to the enforcement of the taxes described in paragraph (c) of 48 subdivision four of section 2.10 of this title, for the purpose of 49 applying for and executing search warrants under article six hundred 50 ninety of this chapter, for the purpose of acting as a claiming agent 51 under article thirteen-A of the civil practice law and rules in 52 connection with the enforcement of the taxes referred to above and for 53 the purpose of executing warrants of arrest relating to the respective 54 crimes specified in subdivision four of section 2.10 of this title. A. 4011--B 95 1 S 56. Paragraph (a) of subdivision 4 of section 2.10 of the criminal 2 procedure law, as amended by chapter 2 of the laws of 1995, is amended 3 to read as follows: 4 (a) to the enforcement of any of the criminal or seizure and forfei- 5 ture provisions of the tax law relating to (i) taxes imposed under or 6 pursuant to the authority of article twelve-A of the tax law and admin- 7 istered by the commissioner, (ii) taxes imposed under or pursuant to the 8 authority of article eighteen of the tax law and administered by the 9 commissioner, (iii) taxes imposed under article twenty of the tax law, 10 or (iv) sales or compensating use taxes relating to [automotive fuel] 11 PETROLEUM PRODUCTS or cigarettes imposed under article twenty-eight or 12 pursuant to the authority of article twenty-nine of the tax law and 13 administered by the commissioner or 14 S 57. Sections 11-2033, 11-2034, 11-2035, 11-2036, 11-2037 and 11-2038 15 of the administrative code of the city of New York are REPEALED. 16 S 58. This act shall take effect September 1, 2011 and shall apply to 17 sales or uses occurring on or after such date in accordance with the 18 applicable transitional provisions in sections 1106 and 1217 of the tax 19 law; provided, however, that: 20 (a) the amendments to subdivisions 22 and 23 of section 282 of the tax 21 law, made by section one of this act shall not affect the repeal of such 22 subdivisions and shall be deemed repealed therewith; 23 (b) the amendments to paragraph 2 of subdivision (a) of section 1102 24 of the tax law made by section thirty-nine of this act shall be subject 25 to the expiration and reversion of such paragraph pursuant to section 19 26 of part W-1 of chapter 109 of the laws of 2006, as amended, when upon 27 such date the provisions of section thirty-nine-a of this act shall take 28 effect; and 29 (c) the amendments to subdivision (j) of section 1115 of the tax law 30 made by section forty-one of this act shall be subject to the expiration 31 and reversion of such subdivision pursuant to section 19 of part W-1 of 32 chapter 109 of the laws of 2006, as amended, when upon such date the 33 provisions of section forty-one-a of this act shall take effect. 34 PART L 35 Section 1. Subdivision 22 of section 282 of the tax law, as added by 36 section 1 of part W-1 of chapter 109 of the laws of 2006, is amended to 37 read as follows: 38 22. "E85" means a [mixture consisting by volume of eighty-five 39 percent] FUEL BLEND CONSISTING OF ethanol and [the remainder of which 40 is] motor fuel, WHICH MEETS THE ASTM INTERNATIONAL ACTIVE STANDARD D5798 41 FOR FUEL ETHANOL. 42 S 2. Section 19 of part W-1 of chapter 109 of the laws of 2006, amend- 43 ing the tax law relating to providing exemptions, reimbursements and 44 credits from various taxes for certain alternative fuels, is amended to 45 read as follows: 46 S 19. This act shall take effect immediately; provided, however, that 47 sections one through thirteen of this act shall take effect September 1, 48 2006 and shall be deemed repealed on September 1, [2011] 2012 and such 49 repeal shall apply in accordance with the applicable transitional 50 provisions of sections 1106 and 1217 of the tax law, and shall apply to 51 sales made, fuel compounded or manufactured, and uses occurring on or 52 after such date, and with respect to sections seven through eleven of 53 this act, in accordance with applicable transitional provisions of 54 sections 1106 and 1217 of the tax law; provided, however, that the A. 4011--B 96 1 commissioner of taxation and finance shall be authorized on and after 2 the date this act shall have become a law to adopt and amend any rules 3 or regulations and to take any steps necessary to implement the 4 provisions of this act; provided further that sections fourteen through 5 sixteen of this act shall take effect immediately and shall apply to 6 taxable years beginning on or after January 1, 2006. 7 S 3. This act shall take effect immediately; provided, however, that 8 the amendments made to subdivision 22 of section 282 of the tax law made 9 by section one of this act shall not affect the repeal of such subdivi- 10 sion and shall be deemed repealed therewith. 11 PART M 12 Section 1. Section 11 of part EE of chapter 63 of the laws of 2000, 13 amending the tax law and other laws relating to modifying the distrib- 14 ution of funds from the motor vehicle fuel excise tax, as amended by 15 section 1-b of part A of chapter 63 of the laws of 2005, is amended to 16 read as follows: 17 S 11. Notwithstanding any other law, rule or regulation to the contra- 18 ry, the comptroller is hereby authorized and directed to deposit in 19 equal monthly installments and distribute pursuant to the provisions of 20 subdivision (d) of section 301-j of the tax law amounts listed below to 21 the credit of the dedicated highway and bridge trust fund and the dedi- 22 cated mass transportation trust fund from [taxes and fees] ALL MOTOR 23 VEHICLE RECEIPTS now deposited into the general fund pursuant to 24 provisions of the vehicle and traffic law: twenty-eight million four 25 hundred thousand dollars from April 1, 2002 through March 31, 2003, 26 sixty-seven million nine hundred thousand dollars from April 1, 2003 27 through March 31, 2004, one hundred seventy million one hundred thousand 28 dollars from April 1, 2004 through March 31, 2005, and one hundred 29 percent of all [taxes and fees] MOTOR VEHICLE RECEIPTS pursuant to 30 provisions of the vehicle and traffic law that are not otherwise 31 directed to be deposited in a fund other than the general fund from 32 April 1, 2005 through March 31, 2006, and the same amount each year 33 thereafter. 34 S 2. This act shall take effect April 1, 2011. 35 PART N 36 Intentionally omitted. 37 PART O 38 Section 1. Subparagraph (ii) of paragraph 1 of subdivision b of 39 section 1612 of the tax law is amended by adding a new clause (I) to 40 read as follows: 41 (I) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, FREE PLAY 42 ALLOWANCE CREDITS AUTHORIZED BY THE DIVISION PURSUANT TO SUBDIVISION F 43 OF SECTION SIXTEEN HUNDRED SEVENTEEN-A OF THIS ARTICLE SHALL NOT BE 44 INCLUDED IN THE CALCULATION OF THE TOTAL AMOUNT WAGERED ON VIDEO LOTTERY 45 GAMES, THE TOTAL AMOUNT WAGERED AFTER PAYOUT OF PRIZES, THE VENDOR FEES 46 PAYABLE TO THE OPERATORS OF VIDEO LOTTERY FACILITIES, VENDOR'S CAPITAL 47 AWARDS, FEES PAYABLE TO THE DIVISION'S VIDEO LOTTERY GAMING EQUIPMENT 48 CONTRACTORS, OR RACING SUPPORT PAYMENTS. 49 S 2. Section 1617-a of the tax law is amended by adding a new subdivi- 50 sion f to read as follows: A. 4011--B 97 1 F. (1) THE DIVISION MAY ADMINISTER A FREE PLAY ALLOWANCE PROGRAM TO 2 OFFER PLAYERS OR PROSPECTIVE PLAYERS OF VIDEO LOTTERY GAMES FREE PLAY 3 CREDITS FOR THE PURPOSE OF INCREASING REVENUES EARNED BY THE VIDEO 4 LOTTERY PROGRAM FOR THE SUPPORT OF EDUCATION. FOR THE PURPOSES OF THIS 5 SUBDIVISION, "FREE PLAY ALLOWANCE CREDIT" MEANS A SPECIFIED DOLLAR 6 AMOUNT THAT (I) MAY BE USED BY A PLAYER TO PLAY A VIDEO LOTTERY GAME 7 WITHOUT PAYING ANY OTHER CONSIDERATION, AND (II) IS NOT USED IN THE 8 CALCULATION OF TOTAL REVENUE WAGERED AFTER PAYOUT OF PRIZES. 9 (2) FOR EACH VIDEO LOTTERY FACILITY, THE DIVISION SHALL AUTHORIZE THE 10 USE OF FREE PLAY ALLOWANCE CREDITS IF THE OPERATOR OF SUCH FACILITY 11 SUBMITS A WRITTEN PLAN FOR THE USE OF THE FREE PLAY ALLOWANCE THAT THE 12 DIVISION DETERMINES IS DESIGNED TO INCREASE THE AMOUNT OF REVENUE EARNED 13 BY VIDEO LOTTERY GAMING AT SUCH FACILITY FOR THE SUPPORT OF EDUCATION. 14 (3) FOR EACH VIDEO LOTTERY FACILITY, THE ANNUAL VALUE OF THE FREE PLAY 15 ALLOWANCE CREDITS AUTHORIZED FOR USE BY THE OPERATOR PURSUANT TO THIS 16 SUBDIVISION SHALL NOT EXCEED AN AMOUNT EQUAL TO TEN PERCENT OF THE TOTAL 17 AMOUNT WAGERED ON VIDEO LOTTERY GAMES AFTER PAYOUT OF PRIZES. THE DIVI- 18 SION SHALL ESTABLISH PROCEDURES TO ASSURE THAT FREE PLAY ALLOWANCE CRED- 19 ITS DO NOT EXCEED SUCH AMOUNT. 20 (4) THE DIVISION, IN CONJUNCTION WITH THE DIRECTOR OF THE BUDGET, MAY 21 SUSPEND THE USE OF FREE PLAY ALLOWANCE CREDITS AUTHORIZED PURSUANT TO 22 THIS SUBDIVISION WHENEVER THEY JOINTLY DETERMINE THAT THE USE OF FREE 23 PLAY ALLOWANCE CREDITS ARE NOT EFFECTIVE IN INCREASING THE AMOUNT OF 24 REVENUE EARNED FOR THE SUPPORT OF EDUCATION, AND SUCH USE MAY NOT BE 25 RESUMED UNLESS THE OPERATOR OF SUCH FACILITY SUBMITS A NEW OR REVISED 26 WRITTEN PLAN FOR THE USE OF THE FREE PLAY ALLOWANCE THAT THE DIVISION 27 DETERMINES IS DESIGNED MORE EFFECTIVELY TO PRODUCE AN INCREASE IN THE 28 AMOUNT OF REVENUE EARNED BY VIDEO LOTTERY GAMING AT SUCH FACILITY FOR 29 THE SUPPORT OF EDUCATION. 30 (5) NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO PROHIBIT THE OPERA- 31 TOR OF A VIDEO LOTTERY FACILITY FROM OFFERING FREE PLAY CREDITS TO PLAY- 32 ERS OR PROSPECTIVE PLAYERS OF VIDEO LOTTERY GAMES WHEN THE VALUE OF SUCH 33 FREE PLAY CREDITS IS INCLUDED IN THE CALCULATION OF THE TOTAL AMOUNT 34 WAGERED ON VIDEO LOTTERY GAMES AND THE TOTAL AMOUNT WAGERED AFTER PAYOUT 35 OF PRIZES, AND THE OPERATOR OF SUCH FACILITY PAYS THE DIVISION THE FULL 36 AMOUNT DUE AS THE RESULT OF SUCH CALCULATIONS. 37 (6) THE DIVISION MAY AMEND THE CONTRACT WITH THE PROVIDER OF THE 38 CENTRAL COMPUTER SYSTEM THAT CONTROLS THE VIDEO LOTTERY NETWORK DURING 39 THE TERM OF SUCH CONTRACT IN EFFECT ON THE EFFECTIVE DATE OF THIS SUBDI- 40 VISION TO PROVIDE ADDITIONAL CONSIDERATION TO SUCH PROVIDER IN AN AMOUNT 41 DETERMINED BY THE DIVISION TO BE NECESSARY TO COMPENSATE FOR (I) PROC- 42 ESSING FREE PLAY ALLOWANCE TRANSACTIONS AND (II) SYSTEM UPDATES AND 43 MODIFICATIONS OTHERWISE NEEDED AS OF SUCH EFFECTIVE DATE. 44 S 3. This act shall take effect immediately. 45 PART P 46 Section 1. Paragraph 2 of subdivision a of section 1612 of the tax 47 law, as amended by section 1 of part P of chapter 85 of the laws of 48 2002, is amended to read as follows: 49 (2) sixty-five percent of the total amount for which tickets have been 50 sold for the "Instant Cash" game in which the participant purchases a 51 preprinted ticket on which dollar amounts or symbols are concealed on 52 the face or the back of such ticket, provided however up to [three such] 53 FIVE NEW games may be offered during the fiscal year, seventy-five 54 percent of the total amount for which tickets have been sold for such A. 4011--B 98 1 [three] FIVE games in which the participant purchases a preprinted tick- 2 et on which dollar amounts or symbols are concealed on the face or the 3 back of such ticket; or 4 S 2. This act shall take effect immediately. 5 PART Q 6 Intentionally omitted. 7 PART R 8 Intentionally omitted. 9 PART S 10 Section 1. Paragraph (a) of subdivision 1 of section 1003 of the 11 racing, pari-mutuel wagering and breeding law, as amended by section 1 12 of part C of chapter 134 of the laws of 2010, is amended to read as 13 follows: 14 (a) Any racing association or corporation or regional off-track 15 betting corporation, authorized to conduct pari-mutuel wagering under 16 this chapter, desiring to display the simulcast of horse races on which 17 pari-mutuel betting shall be permitted in the manner and subject to the 18 conditions provided for in this article may apply to the board for a 19 license so to do. Applications for licenses shall be in such form as may 20 be prescribed by the board and shall contain such information or other 21 material or evidence as the board may require. No license shall be 22 issued by the board authorizing the simulcast transmission of thorough- 23 bred races from a track located in Suffolk county. The fee for such 24 licenses shall be five hundred dollars per simulcast facility per year 25 payable by the licensee to the board for deposit into the general fund. 26 Except as provided herein, the board shall not approve any application 27 to conduct simulcasting into individual or group residences, homes or 28 other areas for the purposes of or in connection with pari-mutuel wager- 29 ing. The board may approve simulcasting into residences, homes or other 30 areas to be conducted jointly by one or more regional off-track betting 31 corporations and one or more of the following: a franchised corporation, 32 thoroughbred racing corporation or a harness racing corporation or asso- 33 ciation; provided (i) the simulcasting consists only of those races on 34 which pari-mutuel betting is authorized by this chapter at one or more 35 simulcast facilities for each of the contracting off-track betting 36 corporations which shall include wagers made in accordance with section 37 one thousand fifteen, one thousand sixteen and one thousand seventeen of 38 this article; provided further that the contract provisions or other 39 simulcast arrangements for such simulcast facility shall be no less 40 favorable than those in effect on January first, two thousand five; (ii) 41 that each off-track betting corporation having within its geographic 42 boundaries such residences, homes or other areas technically capable of 43 receiving the simulcast signal shall be a contracting party; (iii) the 44 distribution of revenues shall be subject to contractual agreement of 45 the parties except that statutory payments to non-contracting parties, 46 if any, may not be reduced; provided, however, that nothing herein to 47 the contrary shall prevent a track from televising its races on an 48 irregular basis primarily for promotional or marketing purposes as found 49 by the board. For purposes of this paragraph, the provisions of section 50 one thousand thirteen of this article shall not apply. Any agreement A. 4011--B 99 1 authorizing an in-home simulcasting experiment commencing prior to May 2 fifteenth, nineteen hundred ninety-five, may, and all its terms, be 3 extended until June thirtieth, two thousand [eleven] TWELVE; provided, 4 however, that any party to such agreement may elect to terminate such 5 agreement upon conveying written notice to all other parties of such 6 agreement at least forty-five days prior to the effective date of the 7 termination, via registered mail. Any party to an agreement receiving 8 such notice of an intent to terminate, may request the board to mediate 9 between the parties new terms and conditions in a replacement agreement 10 between the parties as will permit continuation of an in-home experiment 11 until June thirtieth, two thousand [eleven] TWELVE; and (iv) no in-home 12 simulcasting in the thoroughbred special betting district shall occur 13 without the approval of the regional thoroughbred track. 14 S 2. Subparagraph (iii) of paragraph d of subdivision 3 of section 15 1007 of the racing, pari-mutuel wagering and breeding law, as amended by 16 section 2 of part C of chapter 134 of the laws of 2010, is amended to 17 read as follows: 18 (iii) Of the sums retained by a receiving track located in Westchester 19 county on races received from a franchised corporation, for the period 20 commencing January first, two thousand eight and continuing through June 21 thirtieth, two thousand [eleven] TWELVE, the amount used exclusively for 22 purses to be awarded at races conducted by such receiving track shall be 23 computed as follows: of the sums so retained, two and one-half percent 24 of the total pools. Such amount shall be increased or decreased in the 25 amount of fifty percent of the difference in total commissions deter- 26 mined by comparing the total commissions available after July twenty- 27 first, nineteen hundred ninety-five to the total commissions that would 28 have been available to such track prior to July twenty-first, nineteen 29 hundred ninety-five. 30 S 3. The opening paragraph of subdivision 1 of section 1014 of the 31 racing, pari-mutuel wagering and breeding law, as amended by section 3 32 of part C of chapter 134 of the laws of 2010, is amended to read as 33 follows: 34 The provisions of this section shall govern the simulcasting of races 35 conducted at thoroughbred tracks located in another state or country on 36 any day during which a franchised corporation is conducting a race meet- 37 ing in Saratoga county at Saratoga thoroughbred racetrack until June 38 thirtieth, two thousand [eleven] TWELVE and on any day regardless of 39 whether or not a franchised corporation is conducting a race meeting in 40 Saratoga county at Saratoga thoroughbred racetrack after June thirtieth, 41 two thousand [eleven] TWELVE. On any day on which a franchised corpo- 42 ration has not scheduled a racing program but a thoroughbred racing 43 corporation located within the state is conducting racing, every off- 44 track betting corporation branch office and every simulcasting facility 45 licensed in accordance with section one thousand seven (that have 46 entered into a written agreement with such facility's representative 47 horsemen's organization, as approved by the board), one thousand eight, 48 or one thousand nine of this article shall be authorized to accept 49 wagers and display the live simulcast signal from thoroughbred tracks 50 located in another state or foreign country subject to the following 51 provisions: 52 S 4. Subdivision 1 of section 1015 of the racing, pari-mutuel wagering 53 and breeding law, as amended by section 4 of part C of chapter 134 of 54 the laws of 2010, is amended to read as follows: 55 1. The provisions of this section shall govern the simulcasting of 56 races conducted at harness tracks located in another state or country A. 4011--B 100 1 during the period July first, nineteen hundred ninety-four through June 2 thirtieth, two thousand [eleven] TWELVE. This section shall supersede 3 all inconsistent provisions of this chapter. 4 S 5. The opening paragraph of subdivision 1 of section 1016 of the 5 racing, pari-mutuel wagering and breeding law, as amended by section 5 6 of part C of chapter 134 of the laws of 2010, is amended to read as 7 follows: 8 The provisions of this section shall govern the simulcasting of races 9 conducted at thoroughbred tracks located in another state or country on 10 any day during which a franchised corporation is not conducting a race 11 meeting in Saratoga county at Saratoga thoroughbred racetrack until June 12 thirtieth, two thousand [eleven] TWELVE. Every off-track betting corpo- 13 ration branch office and every simulcasting facility licensed in accord- 14 ance with section one thousand seven that have entered into a written 15 agreement with such facility's representative horsemen's organization as 16 approved by the board, one thousand eight or one thousand nine of this 17 article shall be authorized to accept wagers and display the live full- 18 card simulcast signal of thoroughbred tracks (which may include quarter 19 horse or mixed meetings provided that all such wagering on such races 20 shall be construed to be thoroughbred races) located in another state or 21 foreign country, subject to the following provisions; provided, however, 22 no such written agreement shall be required of a franchised corporation 23 licensed in accordance with section one thousand seven of this article: 24 S 6. The opening paragraph of section 1018 of the racing, pari-mutuel 25 wagering and breeding law, as amended by section 6 of part C of chapter 26 134 of the laws of 2010, is amended to read as follows: 27 Notwithstanding any other provision of this chapter, for the period 28 July twenty-fifth, two thousand one through September eighth, two thou- 29 sand [ten] ELEVEN, when a franchised corporation is conducting a race 30 meeting within the state at Saratoga Race Course, every off-track 31 betting corporation branch office and every simulcasting facility 32 licensed in accordance with section one thousand seven (that has entered 33 into a written agreement with such facility's representative horsemen's 34 organization as approved by the board), one thousand eight or one thou- 35 sand nine of this article shall be authorized to accept wagers and 36 display the live simulcast signal from thoroughbred tracks located in 37 another state, provided that such facility shall accept wagers on races 38 run at all in-state thoroughbred tracks which are conducting racing 39 programs subject to the following provisions; provided, however, no such 40 written agreement shall be required of a franchised corporation licensed 41 in accordance with section one thousand seven of this article. 42 S 7. Section 32 of chapter 281 of the laws of 1994, amending the 43 racing, pari-mutuel wagering and breeding law and other laws relating to 44 simulcasting, as amended by section 7 of part C of chapter 134 of the 45 laws of 2010, is amended to read as follows: 46 S 32. This act shall take effect immediately and the pari-mutuel tax 47 reductions in section six of this act shall expire and be deemed 48 repealed on July 1, [2011] 2012; provided, however, that nothing 49 contained herein shall be deemed to affect the application, qualifica- 50 tion, expiration, or repeal of any provision of law amended by any 51 section of this act, and such provisions shall be applied or qualified 52 or shall expire or be deemed repealed in the same manner, to the same 53 extent and on the same date as the case may be as otherwise provided by 54 law; provided further, however, that sections twenty-three and twenty- 55 five of this act shall remain in full force and effect only until May 1, 56 1997 and at such time shall be deemed to be repealed. A. 4011--B 101 1 S 8. Section 54 of chapter 346 of the laws of 1990, amending the 2 racing, pari-mutuel wagering and breeding law and other laws relating to 3 simulcasting and the imposition of certain taxes, as amended by section 4 8 of part C of chapter 134 of the laws of 2010, is amended to read as 5 follows: 6 S 54. This act shall take effect immediately; provided, however, 7 sections three through twelve of this act shall take effect on January 8 1, 1991, and section 1013 of the racing, pari-mutuel wagering and breed- 9 ing law, as added by section thirty-eight of this act, shall expire and 10 be deemed repealed on July 1, [2011] 2012; and section eighteen of this 11 act shall take effect on July 1, 2008 and sections fifty-one and fifty- 12 two of this act shall take effect as of the same date as chapter 772 of 13 the laws of 1989 took effect. 14 S 9. Paragraph (a) of subdivision 1 of section 238 of the racing, 15 pari-mutuel wagering and breeding law, as amended by section 10 of part 16 C of chapter 134 of the laws of 2010, is amended to read as follows: 17 (a) The franchised corporation authorized under this chapter to 18 conduct pari-mutuel betting at a race meeting or races run thereat shall 19 distribute all sums deposited in any pari-mutuel pool to the holders of 20 winning tickets therein, provided such tickets be presented for payment 21 before April first of the year following the year of their purchase, 22 less an amount which shall be established and retained by such fran- 23 chised corporation of between twelve to seventeen per centum of the 24 total deposits in pools resulting from on-track regular bets, and four- 25 teen to twenty-one per centum of the total deposits in pools resulting 26 from on-track multiple bets and fifteen to twenty-five per centum of the 27 total deposits in pools resulting from on-track exotic bets and fifteen 28 to thirty-six per centum of the total deposits in pools resulting from 29 on-track super exotic bets, plus the breaks. The retention rate to be 30 established is subject to the prior approval of the racing and wagering 31 board. Such rate may not be changed more than once per calendar quarter 32 to be effective on the first day of the calendar quarter. "Exotic bets" 33 and "multiple bets" shall have the meanings set forth in section five 34 hundred nineteen of this chapter. "Super exotic bets" shall have the 35 meaning set forth in section three hundred one of this chapter. For 36 purposes of this section, a "pick six bet" shall mean a single bet or 37 wager on the outcomes of six races. The breaks are hereby defined as the 38 odd cents over any multiple of five for payoffs greater than one dollar 39 five cents but less than five dollars, over any multiple of ten for 40 payoffs greater than five dollars but less than twenty-five dollars, 41 over any multiple of twenty-five for payoffs greater than twenty-five 42 dollars but less than two hundred fifty dollars, or over any multiple of 43 fifty for payoffs over two hundred fifty dollars. Out of the amount so 44 retained there shall be paid by such franchised corporation to the 45 commissioner of taxation and finance, as a reasonable tax by the state 46 for the privilege of conducting pari-mutuel betting on the races run at 47 the race meetings held by such franchised corporation, the following 48 percentages of the total pool for regular and multiple bets five per 49 centum of regular bets and four per centum of multiple bets plus twenty 50 per centum of the breaks; for exotic wagers seven and one-half per 51 centum plus twenty per centum of the breaks, and for super exotic bets 52 seven and one-half per centum plus fifty per centum of the breaks. For 53 the period June first, nineteen hundred ninety-five through September 54 ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be 55 three per centum and such tax on multiple wagers shall be two and one- 56 half per centum, plus twenty per centum of the breaks. For the period A. 4011--B 102 1 September tenth, nineteen hundred ninety-nine through March thirty- 2 first, two thousand one, such tax on all wagers shall be two and six- 3 tenths per centum and for the period April first, two thousand one 4 through December thirty-first, two thousand [eleven] TWELVE, such tax on 5 all wagers shall be one and six-tenths per centum, plus, in each such 6 period, twenty per centum of the breaks. Payment to the New York state 7 thoroughbred breeding and development fund by such franchised corpo- 8 ration shall be one-half of one per centum of total daily on-track pari- 9 mutuel pools resulting from regular, multiple and exotic bets and three 10 per centum of super exotic bets provided, however, that for the period 11 September tenth, nineteen hundred ninety-nine through March thirty- 12 first, two thousand one, such payment shall be six-tenths of one per 13 centum of regular, multiple and exotic pools and for the period April 14 first, two thousand one through December thirty-first, two thousand 15 [eleven] TWELVE, such payment shall be seven-tenths of one per centum of 16 such pools. 17 S 10. Subdivision 5 of section 1012 of the racing, pari-mutuel wager- 18 ing and breeding law, as amended by section 11 of part C of chapter 134 19 of the laws of 2010, is amended to read as follows: 20 5. The provisions of this section shall expire and be of no further 21 force and effect after June thirtieth, two thousand [eleven] TWELVE. 22 S 11. This act shall take effect immediately. 23 PART T 24 Section 1. Subsections (a), (b), and (c) of section 601 of the tax 25 law, as amended by section 1 of part Z-1 of chapter 57 of the laws of 26 2009, are amended to read as follows: 27 (a) Resident married individuals filing joint returns and resident 28 surviving spouses. There is hereby imposed for each taxable year on the 29 New York taxable income of every resident married individual who makes a 30 single return jointly with his spouse under subsection (b) of section 31 six hundred fifty-one and on the New York taxable income of every resi- 32 dent surviving spouse a tax determined in accordance with the following 33 tables: 34 (1) FOR TAXABLE YEARS BEGINNING AFTER TWO THOUSAND ELEVEN AND BEFORE 35 TWO THOUSAND THIRTEEN: 36 IF THE NEW YORK TAXABLE INCOME IS: THE TAX IS: 37 NOT OVER $16,000 4% OF THE NEW YORK TAXABLE INCOME 38 OVER $16,000 BUT NOT OVER $22,000 $640 PLUS 4.5% OF EXCESS OVER 39 $16,000 40 OVER $22,000 BUT NOT OVER $26,000 $910 PLUS 5.25% OF EXCESS OVER 41 $22,000 42 OVER $26,000 BUT NOT OVER $40,000 $1,120 PLUS 5.9% OF EXCESS OVER 43 $26,000 44 OVER $40,000 BUT NOT OVER $1,000,000 $1,946 PLUS 6.85% OF EXCESS OVER 45 OVER $40,000 46 OVER $1,000,000 $67,706 PLUS 8.97% OF EXCESS 47 OVER $1,000,000 48 (2) For taxable years beginning after two thousand eight and before 49 two thousand twelve: 50 If the New York taxable income is: The tax is: 51 Not over $16,000 4% of the New York taxable A. 4011--B 103 1 income 2 Over $16,000 but not over $22,000 $640 plus 4.5% of excess over 3 $16,000 4 Over $22,000 but not over $26,000 $910 plus 5.25% of excess over 5 $22,000 6 Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over 7 $26,000 8 Over $40,000 but not over $300,000 $1,946 plus 6.85% of excess over 9 $40,000 10 Over $300,000 but not over $500,000 $19,756 plus 7.85% of excess over 11 $300,000 12 Over $500,000 $35,456 plus 8.97% of excess over 13 $500,000 14 [(2)] (3) For taxable years beginning after two thousand five and 15 before two thousand nine and after two thousand [eleven] TWELVE: 16 If the New York taxable income is: The tax is: 17 Not over $16,000 4% of the New York taxable 18 income 19 Over $16,000 but not over $22,000 $640 plus 4.5% of excess over 20 $16,000 21 Over $22,000 but not over $26,000 $910 plus 5.25% of excess over 22 $22,000 23 Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over 24 $26,000 25 Over $40,000 $1,946 plus 6.85% of excess over 26 $40,000 27 [(3)] (4) For taxable years beginning in two thousand five: 28 If the New York taxable income is: The tax is: 29 Not over $16,000 4% of the New York taxable 30 income 31 Over $16,000 but not over $22,000 $640 plus 4.5% of excess over 32 $16,000 33 Over $22,000 but not over $26,000 $910 plus 5.25% of excess over 34 $22,000 35 Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over 36 $26,000 37 Over $40,000 but not over $150,000 $1,946 plus 6.85% of excess over 38 $40,000 39 Over $150,000 but not over $500,000 $9,481 plus 7.25% of excess over 40 $150,000 41 Over $500,000 $34,856 plus 7.7% of excess over 42 $500,000 43 [(4)] (5) For taxable years beginning in two thousand four: 44 If the New York taxable income is: The tax is: 45 Not over $16,000 4% of the New York taxable 46 income 47 Over $16,000 but not over $22,000 $640 plus 4.5% of excess over 48 $16,000 49 Over $22,000 but not over $26,000 $910 plus 5.25% of excess over A. 4011--B 104 1 $22,000 2 Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over 3 $26,000 4 Over $40,000 but not over $150,000 $1,946 plus 6.85% of excess over 5 $40,000 6 Over $150,000 but not over $500,000 $9,481 plus 7.375% of excess over 7 $150,000 8 Over $500,000 $35,294 plus 7.7% of excess over 9 $500,000 10 [(5)] (6) For taxable years beginning in two thousand three: 11 If the New York taxable income is: The tax is: 12 Not over $16,000 4% of the New York taxable 13 income 14 Over $16,000 but not over $22,000 $640 plus 4.5% of excess over 15 $16,000 16 Over $22,000 but not over $26,000 $910 plus 5.25% of excess over 17 $22,000 18 Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over 19 $26,000 20 Over $40,000 but not over $150,000 $1,946 plus 6.85% of excess over 21 $40,000 22 Over $150,000 but not over $500,000 $9,481 plus 7.5% of excess over 23 $150,000 24 Over $500,000 $35,731 plus 7.7% of excess over 25 $500,000 26 [(6)] (7) For taxable years beginning after nineteen hundred ninety- 27 six and before two thousand three: 28 If the New York taxable income is: The tax is: 29 Not over $16,000 4% of the New York taxable 30 income 31 Over $16,000 but not over $22,000 $640 plus 4.5% of excess over 32 $16,000 33 Over $22,000 but not over $26,000 $910 plus 5.25% of excess over 34 $22,000 35 Over $26,000 but not over $40,000 $1,120 plus 5.9% of excess over 36 $26,000 37 Over $40,000 $1,946 plus 6.85% of excess over 38 $40,000 39 [(7)] (8) For taxable years beginning in nineteen hundred ninety-six: 40 If the New York taxable income is: The tax is: 41 Not over $11,000 4% of the New York taxable 42 income 43 Over $11,000 but not over $16,000 $440 plus 5% of excess over 44 $11,000 45 Over $16,000 but not over $22,000 $690 plus 6% of excess over 46 $16,000 47 Over $22,000 $1,050 plus 7% of excess over 48 $22,000 49 [(8)] (9) For taxable years beginning in nineteen hundred ninety-five: A. 4011--B 105 1 If the New York taxable income is: The tax is: 2 Not over $13,000 4.55% of the New York taxable 3 income 4 Over $13,000 but not over $19,000 $592 plus 5.55% of excess over 5 $13,000 6 Over $19,000 but not over $25,000 $925 plus 6.55% of excess over 7 $19,000 8 Over $25,000 $1,318 plus 7.5% of excess over 9 $25,000 10 [(9)] (10) For taxable years beginning after nineteen hundred eighty- 11 nine and before nineteen hundred ninety-five: 12 If the New York taxable income is: The tax is: 13 Not over $11,000 4% of the New York taxable 14 income 15 Over $11,000 but not over $16,000 $440 plus 5% of excess over 16 $11,000 17 Over $16,000 but not over $22,000 $690 plus 6% of excess over 18 $16,000 19 Over $22,000 but not over $26,000 $1,050 plus 7% of excess over 20 $22,000 21 Over $26,000 $1,330 plus 7.875% of excess over 22 $26,000 23 (b) Resident heads of households. There is hereby imposed for each 24 taxable year on the New York taxable income of every resident head of a 25 household a tax determined in accordance with the following tables: 26 (1) FOR TAXABLE YEARS BEGINNING AFTER TWO THOUSAND ELEVEN AND BEFORE 27 TWO THOUSAND THIRTEEN: 28 IF THE NEW YORK TAXABLE INCOME IS: THE TAX IS: 29 NOT OVER $11,000 4% OF THE NEW YORK TAXABLE 30 INCOME 31 OVER $11,000 BUT NOT OVER $15,000 $440 PLUS 4.5% OF EXCESS OVER 32 $11,000 33 OVER $15,000 BUT NOT OVER $17,000 $620 PLUS 5.25% OF EXCESS OVER 34 $15,000 35 OVER $17,000 BUT NOT OVER $30,000 $725 PLUS 5.9% OF EXCESS OVER 36 $17,000 37 OVER $30,000 BUT NOT OVER $1,000,000 $1,492 PLUS 6.85% OF EXCESS OVER 38 $30,000 39 OVER $1,000,000 $67,937 PLUS 8.97% OF EXCESS OVER 40 $1,000,000 41 (2) For taxable years beginning after two thousand eight and before 42 two thousand twelve: 43 If the New York taxable income is: The tax is: 44 Not over $11,000 4% of the New York taxable 45 income 46 Over $11,000 but not over $15,000 $440 plus 4.5% of excess over 47 $11,000 48 Over $15,000 but not over $17,000 $620 plus 5.25% of excess over 49 $15,000 50 Over $17,000 but not over $30,000 $725 plus 5.9% of excess over A. 4011--B 106 1 $17,000 2 Over $30,000 but not over $250,000 $1,492 plus 6.85% of excess over 3 $30,000 4 Over $250,000 but not over $500,000 $16,562 plus 7.85% of excess over 5 $250,000 6 Over $500,000 $36,187 plus 8.97% of excess over 7 $500,000 8 [(2)] (3) For taxable years beginning after two thousand five and 9 before two thousand nine and after two thousand [eleven] TWELVE: 10 If the New York taxable income is: The tax is: 11 Not over $11,000 4% of the New York taxable 12 income 13 Over $11,000 but not over $15,000 $440 plus 4.5% of excess over 14 $11,000 15 Over $15,000 but not over $17,000 $620 plus 5.25% of excess over 16 $15,000 17 Over $17,000 but not over $30,000 $725 plus 5.9% of excess over 18 $17,000 19 Over $30,000 $1,492 plus 6.85% of excess over 20 $30,000 21 [(3)] (4) For taxable years beginning in two thousand five: 22 If the New York taxable income is: The tax is: 23 Not over $11,000 4% of the New York taxable 24 income 25 Over $11,000 but not over $15,000 $440 plus 4.5% of excess over 26 $11,000 27 Over $15,000 but not over $17,000 $620 plus 5.25% of excess over 28 $15,000 29 Over $17,000 but not over $30,000 $725 plus 5.9% of excess over 30 $17,000 31 Over $30,000 but not over $125,000 $1,492 plus 6.85% of excess over 32 $30,000 33 Over $125,000 but not over $500,000 $8,000 plus 7.25% of excess over 34 $125,000 35 Over $500,000 $35,187 plus 7.7% of excess over 36 $500,000 37 [(4)] (5) For taxable years beginning in two thousand four: 38 If the New York taxable income is: The tax is: 39 Not over $11,000 4% of the New York taxable 40 income 41 Over $11,000 but not over $15,000 $440 plus 4.5% of excess over 42 $11,000 43 Over $15,000 but not over $17,000 $620 plus 5.25% of excess over 44 $15,000 45 Over $17,000 but not over $30,000 $725 plus 5.9% of excess over 46 $17,000 47 Over $30,000 but not over $125,000 $1,492 plus 6.85% of excess over 48 $30,000 49 Over $125,000 but not over $500,000 $8,000 plus 7.375% of excess over A. 4011--B 107 1 $125,000 2 Over $500,000 $35,656 plus 7.7% of excess over 3 $500,000 4 [(5)] (6) For taxable years beginning in two thousand three: 5 If the New York taxable income is: The tax is: 6 Not over $11,000 4% of the New York taxable 7 income 8 Over $11,000 but not over $15,000 $440 plus 4.5% of excess over 9 $11,000 10 Over $15,000 but not over $17,000 $620 plus 5.25% of excess over 11 $15,000 12 Over $17,000 but not over $30,000 $725 plus 5.9% of excess over 13 $17,000 14 Over $30,000 but not over $125,000 $1,492 plus 6.85% of excess over 15 $30,000 16 Over $125,000 but not over $500,000 $8,000 plus 7.5% of excess over 17 $125,000 18 Over $500,000 $36,125 plus 7.7% of excess over 19 $500,000 20 [(6)] (7) For taxable years beginning after nineteen hundred ninety- 21 six and before two thousand three: 22 If the New York taxable income is: The tax is: 23 Not over $11,000 4% of the New York taxable 24 income 25 Over $11,000 but not over $15,000 $440 plus 4.5% of excess over 26 $11,000 27 Over $15,000 but not over $17,000 $620 plus 5.25% of excess over 28 $15,000 29 Over $17,000 but not over $30,000 $725 plus 5.9% of excess over 30 $17,000 31 Over $30,000 $1,492 plus 6.85% of excess over 32 $30,000 33 [(7)] (8) For taxable years beginning in nineteen hundred ninety-six: 34 If the New York taxable income is: The tax is: 35 Not over $7,500 4% of the New York taxable 36 income 37 Over $7,500 but not over $11,000 $300 plus 5% of excess over 38 $7,500 39 Over $11,000 but not over $15,000 $475 plus 6% of excess over 40 $11,000 41 Over $15,000 $ 715 plus 7% of excess over 42 $15,000 43 [(8)] (9) For taxable years beginning in nineteen hundred ninety-five: 44 If the New York taxable income is: The tax is: 45 Not over $9,000 4.55% of the New York taxable 46 income 47 Over $9,000 but not over $14,000 $410 plus 5.55% of excess over A. 4011--B 108 1 $9,000 2 Over $14,000 but not over $19,000 $687 plus 6.55% of excess over 3 $14,000 4 Over $19,000 $1,015 plus 7.5% of excess over 5 $19,000 6 [(9)] (10) For taxable years beginning after nineteen hundred eighty- 7 nine and before nineteen hundred ninety-five: 8 If the New York taxable income is: The tax is: 9 Not over $7,500 4% of the New York taxable 10 income 11 Over $7,500 but not over $11,000 $300 plus 5% of excess over 12 $7,500 13 Over $11,000 but not over $15,000 $475 plus 6% of excess over 14 $11,000 15 Over $15,000 but not over $17,000 $715 plus 7% of excess over 16 $15,000 17 Over $17,000 $855 plus 7.875% of excess over 18 $17,000 19 (c) Resident unmarried individuals, resident married individuals 20 filing separate returns and resident estates and trusts. There is hereby 21 imposed for each taxable year on the New York taxable income of every 22 resident individual who is not a married individual who makes a single 23 return jointly with his spouse under subsection (b) of section six 24 hundred fifty-one or a resident head of a household or a resident 25 surviving spouse, and on the New York taxable income of every resident 26 estate and trust a tax determined in accordance with the following 27 tables: 28 (1) FOR TAXABLE YEARS BEGINNING AFTER TWO THOUSAND ELEVEN AND BEFORE 29 TWO THOUSAND THIRTEEN: 30 IF THE NEW YORK TAXABLE INCOME IS: THE TAX IS: 31 NOT OVER $8,000 4% OF THE NEW YORK TAXABLE 32 INCOME 33 OVER $8,000 BUT NOT OVER $11,000 $320 PLUS 4.5% OF EXCESS OVER 34 $8,000 35 OVER $11,000 BUT NOT OVER $13,000 $455 PLUS 5.25% OF EXCESS OVER 36 $11,000 37 OVER $13,000 BUT NOT OVER $20,000 $560 PLUS 5.9% OF EXCESS OVER 38 $13,000 39 OVER $20,000 BUT NOT OVER $1,000,000 $973 PLUS 6.85% OF EXCESS OVER 40 $20,000 41 OVER $1,000,000 $68,103 PLUS 8.97% OF EXCESS OVER 42 $1,000,000 43 (2) For taxable years beginning after two thousand eight and before 44 two thousand twelve: 45 If the New York taxable income is: The tax is: 46 Not over $8,000 4% of the New York taxable 47 income 48 Over $8,000 but not over $11,000 $320 plus 4.5% of excess over 49 $8,000 50 Over $11,000 but not over $13,000 $455 plus 5.25% of excess over A. 4011--B 109 1 $11,000 2 Over $13,000 but not over $20,000 $560 plus 5.9% of excess over 3 $13,000 4 Over $20,000 but not over $200,000 $973 plus 6.85% of excess over 5 $20,000 6 Over $200,000 but not over $500,000 $13,303 plus 7.85% of excess over 7 $200,000 8 Over $500,000 $36,853 plus 8.97% of excess over 9 $500,000 10 [(2)] (3) For taxable years beginning after two thousand five and 11 before two thousand nine and after two thousand [eleven] TWELVE: 12 If the New York taxable income is: The tax is: 13 Not over $8,000 4% of the New York taxable 14 income 15 Over $8,000 but not over $11,000 $320 plus 4.5% of excess over 16 $8,000 17 Over $11,000 but not over $13,000 $455 plus 5.25% of excess over 18 $11,000 19 Over $13,000 but not over $20,000 $560 plus 5.9% of excess over 20 $13,000 21 Over $20,000 $973 plus 6.85% of excess over 22 $20,000 23 [(3)] (4) For taxable years beginning in two thousand five: 24 If the New York taxable income is: The tax is: 25 Not over $8,000 4% of the New York taxable 26 income 27 Over $8,000 but not over $11,000 $320 plus 4.5% of excess over 28 $8,000 29 Over $11,000 but not over $13,000 $455 plus 5.25% of excess over 30 $11,000 31 Over $13,000 but not over $20,000 $560 plus 5.9% of excess over 32 $13,000 33 Over $20,000 but not over $100,000 $973 plus 6.85% of excess over 34 $20,000 35 Over $100,000 but not over $500,000 $6,453 plus 7.25% of excess over 36 $100,000 37 Over $500,000 $35,453 plus 7.7% of excess over 38 $500,000 39 [(4)] (5) For taxable years beginning in two thousand four: 40 If the New York taxable income is: The tax is: 41 Not over $8,000 4% of the New York taxable 42 income 43 Over $8,000 but not over $11,000 $320 plus 4.5% of excess over 44 $8,000 45 Over $11,000 but not over $13,000 $455 plus 5.25% of excess over 46 $11,000 47 Over $13,000 but not over $20,000 $560 plus 5.9% of excess over 48 $13,000 49 Over $20,000 but not over $100,000 $973 plus 6.85% of excess over A. 4011--B 110 1 $20,000 2 Over $100,000 but not over $500,000 $6,453 plus 7.375% of excess over 3 $100,000 4 Over $500,000 $35,953 plus 7.7% of excess over 5 $500,000 6 [(5)] (6) For taxable years beginning in two thousand three: 7 If the New York taxable income is: The tax is: 8 Not over $8,000 4% of the New York taxable 9 income 10 Over $8,000 but not over $11,000 $320 plus 4.5% of excess over 11 $8,000 12 Over $11,000 but not over $13,000 $455 plus 5.25% of excess over 13 $11,000 14 Over $13,000 but not over $20,000 $560 plus 5.9% of excess over 15 $13,000 16 Over $20,000 but not over $100,000 $973 plus 6.85% of excess over 17 $20,000 18 Over $100,000 but not over $500,000 $6,453 plus 7.5% of excess over 19 $100,000 20 Over $500,000 $36,453 plus 7.7% of excess over 21 $500,000 22 [(6)] (7) For taxable years beginning after nineteen hundred ninety- 23 six and before two thousand three: 24 If the New York taxable income is: The tax is: 25 Not over $8,000 4% of the New York taxable 26 income 27 Over $8,000 but not over $11,000 $320 plus 4.5% of excess over 28 $8,000 29 Over $11,000 but not over $13,000 $455 plus 5.25% of excess over 30 $11,000 31 Over $13,000 but not over $20,000 $560 plus 5.9% of excess over 32 $13,000 33 Over $20,000 $973 plus 6.85% of excess over 34 $20,000 35 [(7)] (8) For taxable years beginning in nineteen hundred ninety-six: 36 If the New York taxable income is: The tax is: 37 Not over $5,500 4% of the New York taxable 38 income 39 Over $5,500 but not over $8,000 $220 plus 5% of excess over 40 $5,500 41 Over $8,000 but not over $11,000 $345 plus 6% of excess over 42 $8,000 43 Over $11,000 $525 plus 7% of excess over 44 $11,000 45 [(8)] (9) For taxable years beginning in nineteen hundred ninety-five: 46 If the New York taxable income is: The tax is: 47 Not over $6,500 4.55% of the New York taxable A. 4011--B 111 1 income 2 Over $6,500 but not over $9,500 $296 plus 5.55% of excess over 3 $6,500 4 Over $9,500 but not over $12,500 $462 plus 6.55% of excess over 5 $9,500 6 Over $12,500 $659 plus 7.5% of excess over 7 $12,500 8 [(9)] (10) For taxable years beginning after nineteen hundred eighty- 9 nine and before nineteen hundred ninety-five: 10 If the New York taxable 11 income is: The tax is: 12 Not over $5,500 4% of the New York taxable 13 income 14 Over $5,500 but not over $8,000 $220 plus 5% of excess over 15 $5,500 16 Over $8,000 but not over $11,000 $345 plus 6% of excess over 17 $8,000 18 Over $11,000 but not over $13,000 $525 plus 7% of excess over 19 $11,000 20 Over $13,000 $665 plus 7.875% of excess over 21 $13,000 22 S 2. Subparagraph (B) of paragraph 3 of subsection (d) of section 601 23 of the tax law, as amended by section 3 of part Z-1 of chapter 57 of the 24 laws of 2009, is amended to read as follows: 25 (B) For such taxpayers with adjusted gross income over five hundred 26 thousand dollars, for taxable years beginning after two thousand eight 27 and before two thousand twelve, the fraction is computed as follows: the 28 numerator is the lesser of fifty thousand dollars or the excess of New 29 York adjusted gross income for the taxable year over five hundred thou- 30 sand dollars and the denominator is fifty thousand dollars. FOR TAXABLE 31 YEARS BEGINNING AFTER TWO THOUSAND ELEVEN AND BEFORE TWO THOUSAND THIR- 32 TEEN, THE FRACTION IS COMPUTED AS FOLLOWS: THE NUMERATOR IS THE LESSER 33 OF FIFTY THOUSAND DOLLARS OR THE EXCESS OF NEW YORK ADJUSTED GROSS 34 INCOME FOR THE TAXABLE YEAR OVER ONE MILLION DOLLARS AND THE DENOMINATOR 35 IS FIFTY THOUSAND DOLLARS. Provided, however, that the total tax prior 36 to the application of any tax credits shall not exceed the highest rate 37 of tax set forth in the tax table in subsection (a) of this section 38 multiplied by the taxpayer's taxable income. 39 S 3. Clause (ii) of subparagraph (B) of paragraph 3 of subsection (c) 40 of section 685 of the tax law is amended by adding a new undesignated 41 paragraph to read as follows: 42 FURTHER PROVIDED THAT THE TAX SHOWN ON SUCH RETURN FOR TAXABLE YEAR 43 BEGINNING IN TWO THOUSAND ELEVEN SHALL BE CALCULATED AS IF SUCH YEAR 44 BEGAN IN TWO THOUSAND TWELVE. 45 S 4. Notwithstanding any provision of law to the contrary, the method 46 of determining the amount to be deducted and withheld from wages on 47 account of taxes imposed by or pursuant to the authority of article 22 48 of the tax law in connection with the implementation of the provisions 49 of this act shall be prescribed by regulations of the commissioner of 50 taxation and finance with due consideration to the effect such withhold- 51 ing tables and methods would have on the receipt and amount of revenue. 52 The commissioner of taxation and finance shall adjust such withholding 53 tables and methods in regard to taxable years beginning in 2012 and A. 4011--B 112 1 after in such manner as to result, so far as practicable, in withholding 2 from an employee's wages an amount substantially equivalent to the tax 3 reasonably estimated to be due for such taxable years as a result of the 4 provisions of this act. Provided, however, for tax year 2012 the with- 5 holding tables shall reflect as accurately as practicable the full 6 amount of tax year 2012 liability so that such amount is withheld by 7 December 31, 2012. Any such regulations to implement a change in with- 8 holding tables and methods for tax year 2012 shall be adopted and effec- 9 tive as soon as practicable and the commissioner of taxation and finance 10 may adopt such regulations on an emergency basis notwithstanding 11 anything to the contrary in section 202 of the state administrative 12 procedure act. In carrying out his or her duties and responsibilities 13 under this section, the commissioner of taxation and finance may accom- 14 pany such a rule making procedure with a similar procedure with respect 15 to the taxes required to be deducted and withheld by local laws imposing 16 taxes pursuant to the authority of articles 30, 30-A and 30-B of the tax 17 law, the provisions of any other law in relation to such a procedure to 18 the contrary notwithstanding. 19 S 5. The commissioner of taxation and finance shall take steps to 20 publicize the necessary adjustments to estimated tax and, to the extent 21 reasonably possible, to inform the taxpayer of the tax liability changes 22 made by this act. 23 S 6. This act shall take effect immediately and shall apply to taxable 24 years beginning on or after January 1, 2012. 25 S 2. Severability clause. If any clause, sentence, paragraph, subdivi- 26 sion, section or part of this act shall be adjudged by any court of 27 competent jurisdiction to be invalid, such judgment shall not affect, 28 impair, or invalidate the remainder thereof, but shall be confined in 29 its operation to the clause, sentence, paragraph, subdivision, section 30 or part thereof directly involved in the controversy in which such judg- 31 ment shall have been rendered. It is hereby declared to be the intent of 32 the legislature that this act would have been enacted even if such 33 invalid provisions had not been included herein. 34 S 3. This act shall take effect immediately provided, however, that 35 the applicable effective date of Parts A through T of this act shall be 36 as specifically set forth in the last section of such Parts.