(b) Transition. Every carrier subject to the tax imposed by this
article shall be entitled to a credit against the tax equal to the
credit determined under subdivision three of section five hundred
three-a of this chapter which the carrier would have been entitled to
carry forward against the tax imposed by such section but for the
termination of such tax. Such credit may be applied against the tax
imposed by this section or refunded, subject to the limitations provided
in subdivision (a) of this section. A person not subject to the tax
imposed by this article may apply for a refund of such excess credit
which such person would have been entitled to carry forward against the
tax imposed by such section five hundred three-a but for the termination
of such tax, subject to the limitations provided in subdivision (a) of
this section.
(c) Actual price. Every carrier which can substantiate that its
average price paid per gallon (including all federal and state and any
local taxes included in such price or imposed on the use or consumption
of such fuels upon which the state and local sales and compensating use
taxes are computed but determined with out the inclusion of any state or
local sales tax on receipts from sales of such fuels) during a reporting
period is less than the prevailing price determined for such period
pursuant to subdivision (b) of section five hundred twenty-three of this
article, if such calculation was based upon an amount determined under
clause (ii) of subparagraph (B) of paragraph two of subdivision (b) of
section five hundred twenty-three of this article, may apply for a
refund of the difference between the tax paid relating to the sales tax
component computed based upon such prevailing price for such period and
the tax relating to the sales tax component computed based upon the
carrier's actual average purchase price for such period. Such refund
must be applied for on or before the last day of the month immediately
following the four-year period commencing with the end of the reporting
period which gave rise to the refund.
(d) Erroneous payment. Whenever the commissioner shall determine that
any moneys received under the provisions of this article were paid in
error, he or she may cause the same to be refunded or credited. Such
moneys received under the provisions of this article which the
commissioner shall determine were paid in error, may be refunded or
credited out of funds in the custody of the comptroller to the credit of
such taxes provided an application therefor is filed with the
commissioner within four years from the time the erroneous payment was
made, except if an agreement under the provisions of section five
hundred ten of this chapter as made applicable to the tax imposed by
this article by section five hundred twenty-eight of this article
(extending the period for determination of tax imposed by this article)
is made within the four-year period for the filing of an application for
refund provided for in this subdivision, the period for filing an
application for refund shall not expire prior to six months after the
expiration of the period within which a determination may be made
pursuant to the agreement or any extension thereof.
(e) Determination and review. The commissioner shall grant or deny a
claim for refund under this section in whole or in part and shall notify
the claimant by mail of the commissioner's determination. Such
determination shall be final and irrevocable unless the claimant shall,
within thirty days after the mailing of notice of such determination,
petition the division of tax appeals for a hearing. If the commissioner
enters into a cooperative agreement pursuant to section five hundred
twenty-eight of this article, notice of a hearing shall be given and a
hearing held within any time restrictions prescribed in such agreement.
After such hearing, the division of tax appeals shall mail notice of the
determination of the administrative law judge to the claimant and to the
commissioner. Such determination may be reviewed by the tax appeals
tribunal as provided in article forty of this chapter. The decision of
the tax appeals tribunal may be reviewed as provided in section two
thousand sixteen of this chapter. However, such a proceeding may not be
commenced unless an undertaking is filed with the commissioner in such
amount and with such sureties as a justice of the supreme court shall
approve to the effect that if the proceeding be dismissed or the
decision confirmed, the petitioner will pay all costs and charges which
may accrue against him in the prosecution of the proceeding.
Structure New York Laws