Section 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.