300 - General definitions.
§ 300. General definitions.--As used in this article: (a) The term "corporation" includes a corporation, joint-stock company or association and any business conducted by a trustee or trustees wherein interest or ownership is evidenced by certificate or other written instrument. "Corporation" shall also include any corporation whose business is being conducted by any receiver, referee, trustee, assignee or other fiduciary, or any officer or agent appointed by any court and any dissolved corporation which continues to conduct business. (b) The term "petroleum business" means: (1) With respect to motor fuel, every corporation and unincorporated business (i) importing motor fuel or causing motor fuel to be imported into the state for use, distribution, storage or sale in the state, or (ii) producing, refining, manufacturing or compounding motor fuel in the state. Provided, however, a corporation or unincorporated business which has been issued a liquefied petroleum gas fuel permit under section two hundred eighty-three-c of this chapter and which does not import motor fuel other than liquefied petroleum gas fuel or cause motor fuel other than liquefied petroleum gas fuel to be imported into the state for use, distribution, storage or sale in the state or produce, refine, manufacture or compound motor fuel other than liquefied petroleum gas fuel in the state shall not be considered a petroleum business with respect to motor fuel within the meaning of this paragraph. Motor fuel brought into this state in the ordinary fuel tank connecting with the engine of a motor vehicle, airplane, or other conveyance, but not a vessel (other than a recreational motor boat or a commercial fishing vessel, as defined in subdivision (j) of this section, if the motor fuel imported into and consumed in this state is used to operate such vessel while it is engaged in the harvesting of fish for sale), propelled by the use of such motor fuel and to be used only in the operation thereof, shall not be deemed imported within the meaning of this article, if not removed from such tank except as used in the propulsion of such engine. (2) With respect to diesel motor fuel, every corporation and unincorporated business (i) importing diesel motor fuel or causing diesel motor fuel to be imported into the state for use, distribution, storage or sale in the state, (ii) producing, refining, manufacturing or compounding diesel motor fuel within the state, (iii) engaging in the enhancement of diesel motor fuel within the state, (iv) making a sale or use of diesel motor fuel in the state, other than a retail sale not in bulk or self-use of diesel motor fuel which has been the subject of a retail sale to such corporation or unincorporated business, or (v) registered by the department of taxation and finance as a "distributor of kero-jet fuel only" pursuant to the provisions of subdivision two of section two hundred eighty-two-a of this chapter. Diesel motor fuel brought into this state in the ordinary fuel tank connecting with the engine of a motor vehicle, airplane or other conveyance, but not a vessel (other than a recreational motor boat or a commercial fishing vessel as defined in subdivision (j) of this section if the diesel motor fuel imported into and consumed in this state is used to operate such vessel while it is engaged in the harvesting of fish for sale), propelled by the use of such diesel motor fuel and to be used only in the operation thereof, shall not be deemed imported within the meaning of this article, if not removed from such tank except as used in the propulsion of such engine. (3) With respect to residual petroleum product, every corporation and unincorporated business (i) importing residual petroleum product or causing residual petroleum product to be imported into the state for use, distribution, storage or sale in the state, (ii) producing, refining, manufacturing or compounding residual petroleum product in thestate, or (iii) making a sale or use of residual petroleum product in the state other than a self-use of residual petroleum product which has been the subject of a retail sale to such corporation or unincorporated business. (c) (1) The term (A) "diesel motor fuel" means such term as defined in subdivision fourteen of section two hundred eighty-two of this chapter and regulations thereunder including any regulations relating to product specifically designated "No. 4 diesel fuel" and not suitable as a fuel used in the operation of a motor vehicle engine, and (B) "enhanced diesel motor fuel" means such term as defined in subdivision sixteen of section two hundred eighty-two of this chapter, and (C)(i) "nonautomotive type diesel motor fuel" as used in relation to the rates of the tax imposed by section three hundred one-a of this article means any diesel motor fuel, as described in subparagraph (A) of this paragraph, which would be excluded from the diesel motor fuel excise tax imposed by section two hundred eighty-two-a of this chapter solely by reason of the enumerated exclusions based on ultimate use of the product set forth in paragraph (b) of subdivision three of such section, and (ii) "automotive-type diesel motor fuel" as used in relation to the rates of tax imposed by such section three hundred one-a means diesel motor fuel which is not nonautomotive-type diesel motor fuel. (2) As used in this article, references to persons or petroleum businesses registered under article twelve-A of this chapter as distributors of diesel motor fuel shall include all such persons or petroleum businesses registered under such article as distributors of diesel motor fuel and persons or petroleum businesses operating under valid limited registrations relating to persons or petroleum businesses making retail sales of diesel motor fuel to consumers solely for the purposes described in subparagraph (i) of paragraph (b) of subdivision three of section two hundred eighty-two-a of this chapter, but such references shall not include persons and petroleum businesses registered as "distributors of kero-jet fuel only" pursuant to the provisions of subdivision two of section two hundred eighty-two-a of this chapter. (d) The term "motor fuel" means such term as defined in subdivision two of section two hundred eighty-two of this chapter. (e) The term "residual petroleum product" means the topped crude of refinery operations which includes products commonly designated by the petroleum refining industry as "No. 5 Fuel oil", "No. 6 Fuel oil" and "bunker C". It shall also include the special grade of diesel product specifically designated "No. 4 diesel fuel" and not suitable as a fuel used in the operation of a motor vehicle engine. (f) The term "taxable month" means a calendar month or any part thereof during which a petroleum business is subject to tax under this article. (g) The term "use" as applied to motor fuel and diesel motor fuel shall have the same meaning as set forth in subdivision (e) of section eleven hundred two of this chapter and such meaning shall also apply to residual petroleum product as if such subdivision specifically referred to the use of such residual product in addition to motor fuel and diesel motor fuel. (h) The term "unincorporated business" means any trade, business or occupation conducted, engaged in or being liquidated by an individual or unincorporated entity, including a partnership, joint venture, sole proprietorship, unincorporated association, fiduciary, or a corporation in liquidation. The performance of services by an individual as an employee or as an officer or director of a corporation or unincorporatedentity, or as a fiduciary, shall not be deemed an unincorporated business, unless such services constitute part of a business, trade or occupation regularly carried on by such individual. (i) "commercial fisherman" means a person licensed by an appropriate federal or state agency for the purpose of engaging in the commercial harvesting of fish and who is engaged in the business of harvesting fish for sale. In determining whether or not a business is being conducted, consideration shall be given to the amount of time, capital and effort that is consumed by, as well as the percent of total gross income from all sources derived from the harvesting of fish for sale. (j) "commercial fishing vessel" means a vessel which is used directly and predominantly in the harvesting of fish for sale and, if such vessel is required to be documented with the United States Coast Guard, it is currently documented with the United States Coast Guard and has a current fisheries endorsement on such documentation. (k) "Commercial gallonage" means gallonage (1) which is nonautomotive-type diesel motor fuel (which is not enhanced diesel motor fuel) or residual petroleum product, (2) which is included in the full measure of the nonautomotive-type diesel motor fuel component or the residual petroleum product component of the tax imposed under section three hundred one-a of this article, and (3) which does not (and will not) qualify (A) for the utility credit or reimbursement provided for in section three hundred one-d of this article, (B) as "manufacturing gallonage", as such term is defined in subdivision (m) of this section, (C) for the not-for-profit organization exemption provided for in subdivision (h) of section three hundred one-b of this article, or (D) for the heating exemption provided for in paragraph two of subdivision (d) of section three hundred one-b of this article or the heating reimbursement provided for in paragraph two of subdivision (a) of section three hundred one-c of this article. No gallonage shall qualify as "commercial gallonage" where such gallonage is eligible for the (i) utility credit or reimbursement under such section three hundred one-d of this article, (ii) if before January first, nineteen hundred ninety-eight, the manufacturing exemption or reimbursement under paragraph one of subdivision (b) of section three hundred one-j of this article and, if on or after January first, nineteen hundred ninety-eight, the "manufacturing exemption" under paragraph four of subdivision (f) of section three hundred one-a of this article, (iii) the not-for-profit organization exemption under subdivision (h) of section three hundred one-b of this article, or (iv) heating exemption provided for in paragraph two of subdivision (d) of section three hundred one-b of this article or the heating reimbursement provided for in paragraph two of subdivision (a) of section three hundred one-c of this article. The commissioner shall require such documentary proof to substantiate the classification of product as "commercial gallonage" as the commissioner deems appropriate. (l) "Railroad diesel" means diesel motor fuel for use and consumption directly and exclusively in the operation of a locomotive or a self-propelled vehicle run only on rails or tracks, but only if either (1) all such fuel is delivered into a storage facility 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 facility is used only to fuel such locomotives or such self-propelled vehicles, or (2) in accordance with the terms of sale, all such fuel is delivered directly into the tank of a locomotive or self-propelled vehicle. Provided, however, that a sale to a purchaser who will use such diesel motor fuel as "railroad diesel" shall be evidenced by a certificate signed by the purchaser stating that such diesel motor fuel will be usedand consumed as prescribed in this subdivision and the commissioner may require such other information as the commissioner deems appropriate. (m) "Manufacturing gallonage" means residual petroleum product or diesel motor fuel (which is not enhanced diesel motor fuel) used and consumed directly and exclusively in the production of tangible personal property for sale by manufacturing, processing or assembly, but only if all of such fuel or product is delivered on the manufacturing site and is consumed other than on the highways of this state. "Manufacturing gallonage" shall in no event include diesel motor fuel delivered 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. The commissioner shall require such documentary proof to substantiate the classification of product as "manufacturing gallonage" as the commissioner deems appropriate. (n) The term "passenger commuter ferry" means a vessel providing mass transportation service. A vessel shall be providing mass transportation service (1) if it is recognized, as such, by an organization described in paragraph one or two of subdivision (a) of section eleven hundred sixteen of this chapter, or (2) the commissioner designates such vessel as performing such service based on industry or regulatory practice. * (o) The term "E85" shall have the same meaning as in subdivision twenty-two of section two hundred eighty-two of this chapter. * NB Repealed September 1, 2011 * (p) The term "B20" shall have the same meaning as in subdivision twenty-three of section two hundred eighty-two of this chapter. * NB Repealed September 1, 2011 * (q) The term "CNG" shall have the same meaning as in subdivision twenty-four of section two hundred eighty-two of this chapter. * NB Repealed September 1, 2011 * (r) The term "hydrogen" shall have the same meaning as in subdivision twenty-five of section two hundred eighty-two of this chapter. * NB Repealed September 1, 2011