Section 1102. Prepayment of sales tax on motor fuel and diesel motor fuel

(a) * (1) Every distributor of motor fuel shall pay, as a prepayment  on
  account  of  the  taxes  imposed  by  this  article  and pursuant to the
  authority of article twenty-nine of this chapter, a tax on  each  gallon
  of  motor  fuel  (i) which he imports or causes to be imported into this
  state for use, distribution, storage or sale in the state  or  produces,
  refines,  manufactures or compounds in this state or (ii) if the tax has
  not been imposed prior to its sale in this state, which he sells  (which
  acts  shall  in  regard  to  motor  fuel  hereinafter in this article be
  encompassed by the phrase "imported, manufactured or sold"), except when
  imported, manufactured or sold under circumstances  which  preclude  the
  collection  of  such tax by reason of the United States constitution and
  of the laws of the  United  States  enacted  pursuant  thereto  or  when
  imported  or  manufactured by an organization described in paragraph one
  or two of subdivision (a) of section  eleven  hundred  sixteen  of  this
  article  or  a  hospital  included  in  the  organizations  described in
  paragraph four of such subdivision for its own use and  consumption  and
  except  kero-jet  fuel  when  imported  by  an  airline  for  use in its
  airplanes, and except CNG, and except  hydrogen,  and  except  E85  when
  delivered  to  a  filling  station  and placed in a storage tank of such
  filling station for such E85 to  be  dispensed  directly  into  a  motor
  vehicle for use in the operation of such vehicle.
    * NB Effective until September 1, 2011
    * (1)  Every  distributor  of motor fuel shall pay, as a prepayment on
  account of the taxes  imposed  by  this  article  and  pursuant  to  the
  authority  of  article twenty-nine of this chapter, a tax on each gallon
  of motor fuel (i) which he imports or causes to be  imported  into  this
  state  for  use, distribution, storage or sale in the state or produces,
  refines, manufactures or compounds in this state or (ii) if the tax  has
  not  been imposed prior to its sale in this state, which he sells (which
  acts shall in regard to  motor  fuel  hereinafter  in  this  article  be
  encompassed by the phrase "imported, manufactured or sold"), except when
  imported,  manufactured  or  sold under circumstances which preclude the
  collection of such tax by reason of the United States  constitution  and
  of  the  laws  of  the  United  States  enacted pursuant thereto or when
  imported or manufactured by an organization described in  paragraph  one
  or  two  of  subdivision  (a)  of section eleven hundred sixteen of this
  article or  a  hospital  included  in  the  organizations  described  in
  paragraph  four  of such subdivision for its own use and consumption and
  except kero-jet fuel  when  imported  by  an  airline  for  use  in  its
  airplanes.
    * NB Effective September 1, 2011
    *(2) Every distributor of diesel motor fuel shall pay, as a prepayment
  on  account  of  the  taxes  imposed by this article and pursuant to the
  authority of article twenty-nine of this chapter, a tax upon the sale or
  use of diesel motor fuel in this state. The tax shall be computed  based
  upon  the number of gallons of diesel motor fuel sold or used. Provided,
  however, if the tax has not been imposed  prior  thereto,  it  shall  be
  imposed  on  the  delivery  of  diesel  motor  fuel  to a retail service
  station. The collection of such tax shall not 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. The prepaid tax
  on diesel motor fuel shall not apply  to  (i)  the  sale  of  previously
  untaxed  diesel  motor fuel which is not enhanced Diesel motor fuel to a
  person registered as a distributor of Diesel motor  fuel  other  than  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,
  (ii) 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 to the sale  of
  CNG or hydrogen or (iii) the sale of dyed diesel motor fuel as set forth
  in clause (A) or (B) of subparagraph (i) of paragraph (c) of subdivision
  three of section two hundred eighty-two-a of this chapter.
    * NB Effective until September 1, 2011
    *(2) Every distributor of diesel motor fuel shall pay, as a prepayment
  on  account  of  the  taxes  imposed by this article and pursuant to the
  authority of article twenty-nine of this chapter, a tax upon the sale or
  use of diesel motor fuel in this state. The tax shall be computed  based
  upon  the number of gallons of diesel motor fuel sold or used. Provided,
  however, if the tax has not been imposed  prior  thereto,  it  shall  be
  imposed  on  the  delivery  of  diesel  motor  fuel  to a retail service
  station. The collection of such tax shall not 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. The prepaid tax
  on diesel motor fuel shall not apply  to  (i)  the  sale  of  previously
  untaxed  diesel  motor fuel which is not enhanced Diesel motor fuel to a
  person registered as a distributor of Diesel motor  fuel  other  than  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,
  (ii) 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 (iii) the  sale
  of  dyed  diesel  motor  fuel  as  set  forth  in  clause  (A) or (B) of
  subparagraph (i) of paragraph (c) of subdivision three  of  section  two
  hundred eighty-two-a of this chapter.
    * NB Effective September 1, 2011
    (3)  The  amount  of  such  prepayment  per  gallon  shall be computed
  pursuant to the provisions of subdivision (e) of section eleven  hundred
  eleven of this article. Provided, further, no motor fuel or diesel motor
  fuel  shall  be  included  in the measure of the tax under clause (i) of
  paragraph one and paragraph two of this subdivision unless it shall have
  previously come to rest within the meaning  of  federal  decisional  law
  interpreting the United States constitution.
    (b) The taxes required to be prepaid pursuant to this section shall be
  administered  and  collected  in  a  like manner as the taxes imposed by
  sections eleven hundred five and eleven hundred ten of this article. All
  the provisions  of  this  article  relating  to  or  applicable  to  the
  administration,  collection and disposition of the taxes imposed by such
  sections shall apply to the  tax  required  to  be  prepaid  under  this
  section  so  far  as  such  provisions  can  be  made applicable to such
  prepayments of tax with such limitations as set forth  in  this  article
  and  such  modifications  as  may  be  necessary  in order to adapt such
  language to the tax so imposed, provided, however, that  the  provisions
  of   paragraph   one  of  subdivision  (c)  of  section  eleven  hundred
  thirty-seven of this article and the reference in section eleven hundred
  thirty-seven-A of this article to such paragraph one of subdivision  (c)
  of  section  eleven hundred thirty-seven shall not be applicable to such
  tax required to be prepaid under this  section.  Such  provisions  shall
  apply  with  the  same  force  and  effect  as  if the language of those
  provisions had been set forth in full in  this  section  except  to  the

  extent  that  any  provision  is either inconsistent with a provision of
  this section or is not relevant to the tax required  to  be  prepaid  by
  this  section.  For  purposes  of  this  section,  any reference in this
  article  to  the tax or taxes imposed by this article shall be deemed to
  refer to the tax required to be prepaid pursuant to this section  unless
  a different meaning is clearly required. Provided, further, that, except
  as  otherwise  provided  in  subdivision  (j)  of section eleven hundred
  fifteen of this article and except as otherwise  provided  in  paragraph
  five  of  subdivision  (b)  of  section  eleven  hundred sixteen of this
  article, the exemptions provided  in  such  sections  (other  than  that
  provided  in  paragraph  nine  of subdivision (a) of such section eleven
  hundred fifteen with respect to purchases of kero-jet  fuel)  shall  not
  apply to the tax required to be prepaid under this section.
    (c)  Nothing in this article shall be construed to require the payment
  of the tax required to be prepaid pursuant to  this  section  more  than
  once  upon  motor  fuel or diesel motor fuel sold within the state. When
  the foregoing prepaid tax imposed pursuant to this section  is  paid  it
  shall  have been so paid on account of the taxes imposed by this article
  or pursuant to the authority of article twenty-nine of this chapter with
  respect to the retail sale or use of motor fuel or  diesel  motor  fuel.
  Nothing  in  this  section  shall  modify or affect the taxes imposed by
  sections eleven hundred five and eleven hundred ten of this  article  as
  applied to receipts from the sale or use of such fuel.
    (d)  Deposit  and disposition of revenue. (1) Consistent with sections
  eleven hundred forty-eight and twelve hundred sixty-one of this chapter,
  the taxes imposed pursuant to this section and  interest  and  penalties
  thereon  received  by the commissioner, after deducting the amount which
  the commissioner of taxation and finance or his delegate shall determine
  to  be  necessary  for  reasonable  costs   of   the   commissioner   in
  administering,   collecting   and  distributing  such  taxes,  shall  be
  deposited daily with such responsible banks,  banking  houses  or  trust
  companies, as may be designated by the comptroller, to the credit of the
  comptroller.  Of  the  total  revenue  collected  or received under this
  section, the comptroller shall retain in his hands such  amount  as  the
  commissioner  of  taxation and finance may determine to be necessary for
  refunds under this article and pursuant  to  the  authority  of  article
  twenty-nine of this chapter.
    (2)  On  or before the twelfth day of each month, after reserving such
  amount for  such  refunds  and  such  costs,  the  commissioner  or  the
  commissioner's  delegate  shall certify to the comptroller the amount of
  all revenues so received during the prior  month  as  a  result  of  the
  taxes,  interest and penalties so imposed and, in addition, on or before
  the last day of June and December the  commissioner  or  delegate  shall
  certify  the  amount  of  such  moneys received during and including the
  first twenty-five days of said months.  At  the  time  the  commissioner
  prepares  such  certification,  the  commissioner  or the commissioner's
  delegate shall determine the receipts attributable to  the  amount,  and
  number of gallons, of motor fuel and diesel motor fuel sold at retail in
  each  county  and  city  and in the metropolitan commuter transportation
  district subject to the taxes imposed by sections  eleven  hundred  five
  and  eleven  hundred  ten  of  this  article  and the like taxes imposed
  pursuant to the authority of article twenty-nine of this chapter and the
  commissioner or delegate shall certify the portion of such receipts  and
  gallons  from  the  total  payments  that  represents the prepaid tax on
  account of the taxes  imposed  by  this  article  and  pursuant  to  the
  authority  of  article  twenty-nine  of this chapter (determined without
  regard to the taxes imposed by this section and any like  taxes  imposed
  pursuant  to the authority of article twenty-nine of this chapter) based

  upon the retail sales or uses of  such  fuel  in  such  jurisdiction  or
  district.  The  amount  of  revenues so certified shall be deposited and
  distributed by the comptroller in accordance therewith. Where the amount
  so  certified  in  any distribution is more or less than the amount due,
  the amount of the overpayment or underpayment  shall  be  determined  as
  soon  after  the  discovery  of  the  overpayment  or underpayment as is
  reasonably possible and subsequent  certifications  to  the  comptroller
  shall be adjusted by subtracting the amount of any such overpayment from
  or  by  adding  the  amount  of  any such underpayment to such number of
  subsequent payments  as  the  comptroller  and  the  commissioner  shall
  consider  reasonable  in  view  of  the  amount  of  the  overpayment or
  underpayment and all other pertinent facts and circumstances.
    (e) For the purposes of this section  and  article  twelve-A  of  this
  chapter  the term "use" shall mean, in addition to the meaning set forth
  in paragraph seven of subdivision (b) of section eleven hundred  one  of
  this  article,  the  exercise  of  any right or power over motor fuel or
  diesel motor fuel by any person, whether or not a purchaser,  including,
  but  not  limited  to, the receiving, the withdrawal from storage or any
  consumption of such fuel.