§ 503-a. Imposition of additional tax. 1. In addition to the tax imposed by section five hundred three of this chapter, and in addition to any other tax or fee imposed by law, there is hereby imposed on and after July first, nineteen hundred sixty-eight and before January first, nineteen hundred ninety-six an additional tax on highway use for the privilege of operating any vehicular unit, other than an omnibus, upon the public highways of this state, and on and after October first, nineteen hundred sixty-nine and before January first, nineteen hundred ninety-six an additional tax on highway use for the privilege of operating upon the public highways of this state any omnibus which is a vehicular unit as defined in subdivision eight of this section. Such tax shall be upon the carrier except that where the carrier is not the owner of such vehicular unit, the tax shall be a joint and several liability upon both.
2. Such tax shall be at a composite rate determined by adding together (i) a fuel tax component which shall be equivalent to the rate per gallon in effect under the taxes on motor fuel and diesel motor fuel imposed by article twelve-a of this chapter and (ii) a sales tax component, which shall be equivalent to the rate per gallon applicable to the receipts from the sale of a gallon of motor fuel and diesel motor fuel in effect under the sales and compensating use taxes imposed by sections eleven hundred five and eleven hundred ten of this chapter plus the highest rate applicable to the receipts from the sale of a gallon of motor fuel and diesel motor fuel in effect in any locality of this state imposing a local sales and compensating use tax on the sale of motor fuel and diesel motor fuel under the authority of section twelve hundred ten of this chapter; provided, however, that the aggregate rate per gallon applicable to the receipts from the sale of a gallon of such fuels imposed under clause (ii) of this subdivision shall not exceed seven percent. Such total equivalent rate per gallon under clause (ii) of this subdivision shall be determined as provided in subdivision (d) of section eleven hundred eleven of this chapter and the schedules prescribed by the commissioner of taxation and finance pursuant to such subdivision, and shall be based on the average price 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 but determined without the inclusion of any state and local sales tax on receipts from sales of such fuels) paid by the carrier during the return period for all motor fuel and diesel motor fuel purchased for use in its operations either within or without this state. Provided, however, if the commissioner shall determine that the records of any carrier are inadequate or incomplete for such a determination of average price, the price for motor fuel and diesel motor fuel purchased by such carrier shall be deemed to be the prevailing price for motor fuel and diesel motor fuel, as established by the commissioner each calendar quarter pursuant to this section, applicable to the return period. Each calendar quarter, the commissioner shall for each calendar quarter establish a prevailing price for motor fuel and diesel motor fuel based on the prices being charged on any given day during the first fifteen days of the previous calendar quarter at a minimum of ten selected truck stops widely scattered throughout the state. For any return period, a carrier may elect to use the prevailing price per gallon so established by the commissioner. Such tax shall be computed by multiplying such composite rate by the amount of motor fuel or diesel motor fuel, as the case may be, used by a carrier in its operations within this state during each calendar quarter or, where the commissioner has required or permitted a return to be based upon a different period, during such other period. The amount of motor fuel and diesel motor fuel used in the operations of any carrier within this state shall be such proportion of the total amount of such motor fuel and diesel motor fuel used in its entire operations within and without this state as the total number of miles traveled within this state bears to the total number of miles traveled within and without this state. The commissioner may, by regulation, allow use of a miles per gallon factor in computing fuel used in operations in lieu of the above formula if evidence is presented to the commissioner's satisfaction that no loss of revenue will result. Where the records of any carrier are inadequate or incomplete the vehicular units of a carrier filing returns shall be deemed to have consumed, on the average, one gallon of diesel motor fuel for every four miles traveled or one gallon of motor fuel for every three miles traveled unless substantial evidence discloses that a different amount was consumed.
3. Every carrier subject to the tax imposed by this section shall be entitled to a credit against such tax determined by adding together the following components: (i) a fuel tax component computed by multiplying the number of gallons of motor fuel or diesel motor fuel purchased by such carrier within this state in a return period, for use in its operations either within or without this state, by the applicable rate per gallon imposed on such fuel under article twelve-A of this chapter, provided, however, no credit shall be allowed unless the tax imposed under such article twelve-A upon such purchase of fuel has been paid by such carrier, and (ii) a sales tax component computed by multiplying the number of gallons of motor fuel or diesel motor fuel purchased by such carrier within this state in a return period, for use in its operations either within or without this state (as determined in a manner similar to the method for determining the use of fuel in the state as provided for under subdivision two of this section), by the applicable equivalent rate per gallon of the sales tax component of the tax rate (as determined under subdivision two of this section), provided, however, no credit shall be allowed unless the tax imposed under article twenty-eight of this chapter upon such purchase of fuel has been paid by the carrier. Each carrier claiming such credit components shall furnish to the commissioner such evidence of payment of such taxes as the commissioner may require. When the amount of the credit to which any carrier is entitled for any return period with respect to gallonage purchased in such return period exceeds the amount of tax for which such carrier is liable under this section for such return period, such excess shall be allowed as a credit against the tax or which such carrier would otherwise be liable for those succeeding periods (after application of any credits derived with respect to gallonage purchased in each such succeeding period) which fall wholly within the twenty-four month period commencing with the end of the return period from which the excess was derived or, if a claim for refund is filed on or before the last day of the month immediately following the forty-eight month period commencing with the end of the return period which gave rise to the refund, the amount of such excess for such period shall be refunded; but, such a claim for refund may be filed no more frequently than quarterly, with respect to the calendar quarters: January through March, April through June, July through September and October through December. The commissioner shall grant or deny any such claim for refund 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. 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.
4. Except as otherwise provided in this subdivision, every carrier subject to the tax imposed by this section shall file returns reporting its operations pursuant to the provisions of section five hundred five of this article for the reporting periods provided pursuant thereto. If the commissioner of taxation and finance finds that the enforcement of the tax imposed by this section would not be adversely affected, the commissioner may provide, by regulation, that a carrier operating primarily within this state may file an information return, rather than the aforementioned returns, provided the carrier has purchased in this state all the motor fuel and diesel motor fuel used in its operations during the period covered by such return and pays the taxes imposed under articles twelve-a and twenty-eight and pursuant to the authority of article twenty-nine of this chapter on such fuels in the manner required by such articles. An election to file an information return shall be made in such form, for such time and upon such terms as the commissioner shall require.
5. At the time of filing its return, as required pursuant to the preceding subdivision, each carrier shall pay the tax imposed by this section calculated upon the amount of motor fuel and Diesel motor fuel used in its operations within this state during the period covered by the return filed.
6. For purposes of this section, the definition of "motor fuel" in subdivision two of section two hundred eighty-two and the definition of "Diesel motor fuel" in subdivision fourteen of section two hundred eighty-two of this chapter shall apply.
7. For purposes of this section, the term "operations" means operations of all vehicular units, whether loaded or empty, whether or not for compensation and whether owned by or leased to the carrier which operates them or causes them to be operated.
8. For purposes of this section only, (a) the term "vehicular unit" shall include an omnibus engaged in the interstate or foreign transportation of passengers and subject to the jurisdiction of the interstate commerce commission, or any agency successor thereto, or one or more state regulatory agencies concerned with the regulation of passenger transport, having a seating capacity of more than seven persons in addition to the driver; and (b) the term "carrier" shall include any person having the lawful use or control, or the right to the use or control of any such omnibus.
9. The rest of the provisions of this article shall be applicable to the tax imposed by this section except to the extent such provisions are inconsistent with a provision in this section.
