Section 282-A. Imposition of excise tax on Diesel motor fuel

1. There is
  hereby levied and imposed with respect to Diesel motor  fuel  an  excise
  tax  of  four cents per gallon upon the sale or use of Diesel motor fuel
  in this state.
    The excise tax is imposed on the first sale or  use  of  Diesel  motor
  fuel to occur which is not exempt from tax under this article. Provided,
  however,  if  the  tax  has  not been imposed prior thereto, it shall be
  imposed on the delivery of Diesel motor fuel to  a  filling  station  or
  into the fuel tank connecting with the engine of a motor vehicle for use
  in  the  operation  thereof whichever event shall be first to occur. The
  tax shall be computed based upon the number of gallons of  Diesel  motor
  fuel sold or used or the number of gallons of Diesel fuel delivered into
  the  fuel  tank  of a motor vehicle, as the case may be. Nothing in this
  article shall be construed to require the payment  of  such  excise  tax
  more than once upon the same Diesel motor fuel. Nor shall the collection
  of  such  tax be made applicable to the sale or use of Diesel motor fuel
  under circumstances which preclude the collection of such tax by  reason
  of  the  United  States  constitution  and  of laws of the United States
  enacted pursuant thereto. Provided, further, no Diesel motor fuel  shall
  be  included  in  the measure of the tax unless it shall have previously
  come to rest within the meaning of federal decisional  law  interpreting
  the  United  States  constitution.  All  tax  for the period for which a
  return is required to be filed shall be due on the date limited for  the
  filing  of the return for such period, regardless of whether a return is
  filed as required by this article or whether the return which  is  filed
  correctly shows the amount of tax due.
    2.  No  person  shall  engage  within this state in the enhancement of
  Diesel motor fuel, make a sale or use of Diesel motor fuel (other than a
  retail sale not in bulk or self-use of Diesel motor fuel which has  been
  the subject of a retail sale), import or cause the importation of Diesel
  motor  fuel  into  the state or produce, refine, manufacture or compound
  Diesel  motor  fuel  within  the  state  unless  such  person  shall  be
  registered by the department of taxation and finance as a distributor of
  Diesel  motor  fuel.  Provided, the commissioner of taxation and finance
  shall not register as a distributor of Diesel motor fuel any person  who
  is  engaged  solely  in one or both of the following: (i) any person who
  makes or offers to make a retail sale not in bulk of such fuel  or  (ii)
  any person who purchases Diesel motor fuel in bulk in this state for the
  sole  purpose  of self-use. The commissioner may, however, register as a
  distributor of kero-jet fuel only a fixed base  operator  who  makes  no
  sales  of  kero-jet  fuel  other than retail sales not in bulk delivered
  directly into the fuel tank of an airplane for use in the  operation  of
  such  airplane  and  who makes no other sales of diesel motor fuel. Such
  registration shall apply only to the wholesale purchase of kero-jet fuel
  and the retail sale of such fuel not in bulk for delivery directly  into
  the fuel tank of an airplane for use in the operation thereof. Provided,
  further, that if the commissioner is satisfied that full registration is
  not  necessary  in  order  to protect tax revenues, the commissioner may
  limit or modify the requirement of registration as  a  distributor  with
  respect to any person otherwise required to register solely because such
  person  engages in the sale of Diesel motor fuel where such person makes
  sales of Diesel motor fuel to  the  consumer  solely  for  the  purposes
  described  in  subparagraph (i) of paragraph (b) of subdivision three of
  this section provided that if the commissioner  so  limits  or  modifies
  such  registration  requirement  with  respect to such person, then such
  registration shall apply only to the importation, sale and  distribution
  of  Diesel  motor  fuel  for the purposes described in such subparagraph
  (i). The commissioner of taxation and finance may also waive  any  other

  requirement  imposed  by  this  article  on  such a distributor. All the
  provisions of section two hundred eighty-three  of  this  article  shall
  apply  to  applicants  for  registration and registrants with respect to
  Diesel motor fuel, and, in addition, distributors with respect to Diesel
  motor  fuel  shall  be  subject  to all other provisions of this article
  relating to distributors of motor fuel, including but  not  limited  to,
  the keeping of records, the fixing, determination and payment of tax and
  filing of returns.
    3.  (a) The tax imposed by this section shall not apply to the sale of
  untaxed Diesel motor fuel to or the use of such fuel by an  organization
  described  in  paragraph one or two of subdivision (a) of section eleven
  hundred sixteen of this chapter where such Diesel motor fuel is used  by
  such organization for its own use or consumption.
    (b)  The tax on the incident of sale or use imposed by subdivision one
  of this section shall not apply to: (i)  the  sale  to  or  use  by  the
  consumer  of  previously untaxed Diesel motor fuel which is not enhanced
  Diesel motor fuel and which is used exclusively for heating purposes  or
  for  the  purpose  of use or consumption directly and exclusively in the
  production   of   tangible   personal   property,   gas,    electricity,
  refrigeration  or  steam,  for  sale,  but  only  if all of such fuel is
  consumed other than on the highways of this  state;  provided,  however,
  this  exemption  shall  in no event apply to a sale of Diesel motor fuel
  which involves a delivery at a filling  station  or  into  a  repository
  which  is equipped with a hose or other apparatus by which such fuel can
  be dispensed into the fuel tank of a motor vehicle; or (ii) the sale  of
  previously  untaxed Diesel motor fuel which is not enhanced Diesel motor
  fuel to a person registered under  this  article  as  a  distributor  of
  Diesel  motor  fuel other than (A) a retail sale to such person or (B) a
  sale to such person which involves a delivery at a  filling  station  or
  into  a  repository  which is equipped with a hose or other apparatus by
  which such fuel can be dispensed into the fuel tank of a motor  vehicle;
  or (iii) a sale or use of enhanced Diesel motor fuel to or by a consumer
  exclusively for the purposes of heating specified in subparagraph (i) of
  this  paragraph but only if such enhanced Diesel motor fuel is delivered
  into a storage tank which is not equipped with a hose or other apparatus
  by which such fuel can be dispensed  into  the  fuel  tank  of  a  motor
  vehicle  and  such  storage tank is attached to the heating unit burning
  such fuel, provided that  each  delivery  of  such  fuel  of  over  four
  thousand five hundred gallons shall be evidenced by a certificate signed
  by  the  purchaser stating that the product will be used exclusively for
  heating purposes; or (iv) a sale or use consisting of no more than  four
  thousand  five  hundred  gallons  of  Diesel  motor fuel in a thirty-day
  period to or by a consumer who purchases or uses such fuel  for  use  or
  consumption  directly  and  exclusively  in  the  production for sale of
  tangible personal property by farming but only if all of  such  fuel  is
  delivered on the farm site and is consumed other than on the highways of
  this  state  (except  for  the  use  of  the  highway  to reach adjacent
  farmlands) provided, however, a  farmer  may  purchase  more  than  four
  thousand  five  hundred  gallons  of  Diesel  motor fuel in a thirty-day
  period for such use or consumption exempt from  the  tax  in  accordance
  with  prior clearance given by the commissioner of taxation and finance;
  or (v) a sale to the consumer consisting of not more than twenty gallons
  of water-white kerosene to be used and consumed exclusively for  heating
  purposes;  or (vi) the sale to or delivery at a filling station or other
  retail vendor of water-white kerosene provided such filling  station  or
  other retail vendor only sells such water-white kerosene exclusively for
  heating  purposes in containers of no more than twenty gallons; or (vii)
  a sale of kero-jet fuel to an airline for use in its airplanes or a  use

  of  kero-jet  fuel  by  an airline in its airplanes; or (viii) a sale of
  kero-jet fuel by a registered distributor of  Diesel  motor  fuel  to  a
  fixed  base  operator  registered under this article as a distributor of
  kero-jet  fuel  only where such fixed base operator is engaged solely in
  making or offering to make retail sales not in  bulk  of  kero-jet  fuel
  directly  into the fuel tank of an airplane for the purpose of operating
  such airplane; or (ix) a retail sale not in bulk of kero-jet fuel  by  a
  fixed  base  operator  registered under this article as a distributor of
  kero-jet fuel only where such fuel is delivered directly into  the  fuel
  tank of an airplane for use in the operation of such airplane.
    (c) Limited exemptions for dyed Diesel motor fuel. (i) The tax imposed
  by  this  section  shall not apply to: (A) the sale of dyed Diesel motor
  fuel by the importer to a purchaser under the circumstances and  subject
  to  the  terms and conditions as follows: (1) the importer and purchaser
  are each registered under this article  as  a  full  Diesel  motor  fuel
  distributor;  (2)  such  importer has imported the enhanced Diesel motor
  fuel, which is the subject of the sale, into the state and has dyed such
  fuel to comply  with  the  provisions  of  26  USC  §  4082(a)  and  the
  regulations  thereunder,  as  may  be amended from time to time; (3) the
  purchaser is a holder of a currently valid direct payment permit  issued
  pursuant  to section two hundred eighty-three-d of this article; and (4)
  such purchaser is primarily engaged in the retail heating  oil  business
  and  such  dyed  Diesel  motor  fuel will be sold by such purchaser in a
  retail sale to a consumer for use solely as  residential  or  commercial
  heating  oil;  (B)  a first sale of the dyed Diesel motor fuel, which as
  the  subject  of  an  exempt  sale  described  in  clause  (A)  of  this
  subparagraph, by the purchaser described therein to a purchaser likewise
  holding  a currently valid direct pay permit under the circumstances and
  subject to the terms and conditions as follows: (1)  the  sale  of  such
  second  purchaser  by such first purchaser is the first and only sale of
  such dyed Diesel motor fuel by such first  purchaser;  (2)  such  second
  purchaser  is  primarily  engaged in the retail heating oil business and
  such dyed Diesel motor fuel will be sold by such second purchaser  in  a
  retail  sale  to  a consumer for use solely as residential or commercial
  heating oil; (3) on  the  sale  to  the  second  purchaser,  such  first
  purchaser described in such clause (A) attaches to the invoice a copy of
  the  invoice  given by the importer on the exempt sale described in such
  clause (A), so as to identify the origin of the dyed Diesel  fuel  which
  is the subject of the sale to such second purchaser; and (4) such second
  purchaser certifies that such dyed Diesel motor fuel is to be sold by it
  only  to  a consumer for use solely as residential or commercial heating
  oil. (ii) Prior to, or at the time of, such sale  of  such  dyed  Diesel
  motor  fuel  described  in clause (A) or (B) of subparagraph (i) of this
  paragraph, the purchaser shall give a certificate to the seller  setting
  forth  the intended use of the dyed Diesel motor fuel which is sought to
  be qualified for exemption under this paragraph, that the purchaser  has
  been  issued a direct payment permit which is currently valid, that such
  permit has  not  been  suspended  or  revoked  and  that  the  purchaser
  otherwise  meets the qualifications of this paragraph. (iii) The limited
  exemptions allowed under this paragraph shall in no event apply  to  any
  dyed  Diesel  motor  fuel  which is delivered into a repository equipped
  with hose or other apparatus capable of being used to dispense fuel into
  the fuel tank of a  motor  vehicle,  or  where  the  purchaser's  direct
  payment  permit  has  been suspended or revoked and the commissioner has
  made generally available the identity  of  those  persons  whose  direct
  payment permits have been suspended or revoked.
    4.  The  tax  imposed  by  this  section on Diesel motor fuel shall be
  passed through by the seller and included as part of the  selling  price

  to each purchaser of such fuel. Provided, however, the amount of the tax
  imposed by this section may be excluded from the selling price of Diesel
  motor  fuel  where  (i)  a  sale  of  Diesel  motor  fuel  is made to an
  organization  described  in  paragraph  (a) of subdivision three of this
  section solely for the purpose stated therein; (ii) a sale  of  enhanced
  Diesel  motor fuel is made to a consumer exclusively for the purposes of
  heating specified in subparagraph (i) of paragraph  (b)  of  subdivision
  three  of  this  section  but only if such enhanced Diesel motor fuel is
  delivered into a storage tank which is not equipped with a hose or other
  apparatus by which such fuel can be dispensed into the fuel  tank  of  a
  motor  vehicle  and  such  storage  tank is attached to the heating unit
  burning such fuel, provided that each delivery of such fuel of over four
  thousand five hundred gallons shall be evidenced by a certificate signed
  by the purchaser stating that the product will be used  exclusively  for
  heating  purposes;  (iii) a sale is made consisting of no more than four
  thousand five hundred gallons (or a greater amount which has been  given
  prior  clearance  by the commissioner of taxation and finance) of Diesel
  motor fuel in a thirty-day period to a consumer who purchases such  fuel
  for  use  or  consumption directly and exclusively in the production for
  sale of tangible personal property by farming but only if  all  of  such
  fuel  is consumed other than on the highways or waterways of this state;
  or (iv) the sale to or delivery at a filling  station  or  other  retail
  vendor  of  water-white  kerosene provided such filling station or other
  retail vendor only  sells  such  water-white  kerosene  exclusively  for
  heating  purposes in containers of no more than twenty gallons; or (v) a
  sale of kero-jet fuel is made to an airline for use in its airplanes.
    5. All the provisions of this article relating to  the  administration
  and  collection  of the taxes on motor fuel, except sections two hundred
  eighty-three-a and two hundred eighty-three-b of this article, shall  be
  applicable  to  the  tax imposed by this section with such limitation as
  specifically provided for in this article with respect to  Diesel  motor
  fuel  and  with  such  modification  as  may  be  necessary to adapt the
  language of such provisions to the tax imposed  by  this  section.  With
  respect  to  the bond or other security required by subdivision three of
  section two hundred eighty-three of this article,  the  commissioner  of
  taxation  and  finance,  in  determining  the  amount  of  bond or other
  security required for the purpose of securing tax payments,  shall  take
  into account the volume of heating fuel and other Diesel motor fuel sold
  for  exempt  purposes by a distributor of Diesel motor fuel during prior
  periods as a factor reducing potential  tax  liability  along  with  any
  other  relevant  factors in determining the amount of security required.
  With respect to the bond required to be filed prior to registration as a
  Diesel motor fuel distributor, no bond shall be required of an applicant
  upon a finding of the applicant's fiscal responsibility, as reflected by
  such factors as net worth,  current  assets  and  liabilities,  and  tax
  reporting  and payment history, and the department shall not provide for
  a minimum bond of every applicant.