1139 - Refunds.
§ 1139. Refunds. (a) In the manner provided in this section the tax commission shall refund or credit any tax, penalty or interest erroneously, illegally or unconstitutionally collected or paid if application therefor shall be filed with the tax commission (i) in the case of tax paid by the applicant to a person required to collect tax, within three years after the date when the tax was payable by such person to the tax commission as provided in section eleven hundred thirty-seven, or (ii) in the case of a tax, penalty or interest paid by the applicant to the tax commission, within three years after the date when such amount was payable under this article, or (iii) in the case of a tax due from the seller, transferor or assignor and paid by the applicant to the tax commission where the applicant is a purchaser, transferee or assignee liable for such tax pursuant to the provisions of subdivision (c) of section eleven hundred forty-one of this chapter, within two years after the giving of notice by the tax commission to such purchaser, transferee or assignee of the total amount of any tax or taxes which the state claims to be due from the seller, transferor or assignor. Such application shall be in such form as the tax commission shall prescribe. No refund or credit shall be made to any person of tax which he collected from a customer until he shall first establish to the satisfaction of the tax commission, under such regulations as it may prescribe, that he has repaid such tax to the customer. Notwithstanding any other provision of this article, if the time to file an application for refund or credit of any tax, penalty or interest would otherwise have expired on or before December nineteenth, nineteen hundred sixty-nine, the time for filing such application is hereby extended to and including December twentieth, nineteen hundred sixty-nine, except that it shall be further extended, as provided in subdivision (c) of section eleven hundred forty-seven, where a taxpayer has consented in writing to the extension of the period for assessment of additional tax. (b) If an application for refund or credit is filed with the commissioner of taxation and finance as provided in subdivision (a) of this section, the commissioner of taxation and finance shall grant or deny such application in whole or in part within six months of receipt of the application in a form which is able to be processed and shall notify such applicant by mail accordingly. Such determination shall be final and irrevocable unless such applicant shall, within ninety 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 such applicant and to the commissioner of taxation and finance. 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. (c) Claim for credit or refund of an overpayment of sales tax shall be filed by the taxpayer within three years from the time the return was filed or two years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed, within two years from the time the tax was paid. If the claim is filed within the three year period, the amount of the credit or refund shall not exceed the portion of the tax paid within the three years immediately preceding the filing of the claim plus the period of any extension of time for filing the return. If the claim is not filed within the three year period, but is filed within the two year period, the amount of the credit or refund shall not exceed the portion of the tax paid during the two years immediately preceding the filing of the claim. Except as otherwise provided in this section, if no claim is filed, the amount of a creditor refund shall not exceed the amount which would be allowable if a claim had been filed on the date the credit or refund is allowed. No refund or credit shall be made of a tax, interest or penalty paid after a determination by the commissioner made pursuant to section eleven hundred thirty-eight unless it be found that such determination was erroneous, illegal or unconstitutional or otherwise improper, by the division of tax appeals pursuant to article forty of this chapter or by the commissioner of his own motion, or in a proceeding for judicial review provided for in section two thousand sixteen of this chapter, in which event a refund or credit shall be made of the tax, interest or penalty found to have been overpaid. (d) (1) Except in respect to an overpayment made on a return described in paragraph two of subdivision (a) of section eleven hundred thirty-six of this part or on a return described in subdivision (c) of section eleven hundred thirty-seven-A of this part, interest shall be allowed and paid upon any refund made or credit allowed pursuant to this section except as otherwise provided in paragraph two of this subdivision or subdivision (e) of this section and except that no interest shall be allowed or paid if the amount thereof would be less than one dollar. Such interest shall be at the overpayment rate set by the commissioner pursuant to section eleven hundred forty-two of this part, or if no rate is set, at the rate of six percent per annum from the date when the tax, penalty or interest refunded or credited was paid to a date preceding the date of the refund check by not more than thirty days, provided, however, that for the purposes of this subdivision any tax paid before the last day prescribed for its payment shall be deemed to have been paid on such last day. In the case of a refund or credit claimed on a return of tax which is filed after the last date prescribed for filing such return (determined with regard to extensions), or claimed on an application for refund or credit, no interest shall be allowed or paid for any day before the date on which the return or application is filed. For purposes of this subdivision, a return or application for refund or credit shall not be treated as filed until it is filed in processible form. A return or application is in a processible form if it is filed on a permitted form, and contains the taxpayer's name, address and identifying number and the required signatures, and sufficient required information (whether on the return or application or on required attachments) to permit the mathematical verification of tax liability shown on the return or refund or credit claimed on the application. (2) If a refund is made or a credit is allowed within three months after the last date prescribed or permitted by extension of time for filing a return on which the refund or credit was claimed or within three months after the return was filed, whichever is later, or within three months after an application for refund or credit is filed on which that refund or credit was claimed, no interest will be allowed or paid on that refund or credit. (e) The provisions of subdivisions (a), (b) and (c) of this section shall be applicable to applications for refund or credit pursuant to section eleven hundred nineteen and subdivision (e) of section eleven hundred thirty-two, except that an application for credit may be made as provided in such section or subdivision and except that no interest shall be allowed or paid upon any refund made or credit allowed pursuant to such section or such subdivision. (f) Where a consumer returns a motor vehicle to and receives a refund of the full purchase price, capitalized cost or a portion thereof from the manufacturer in accordance with the provisions of section one hundred ninety-eight-a or subdivision five of section three hundred ninety-six-p of the general business law, the commissioner of taxationand finance shall refund to such consumer any tax paid by the consumer on the amount of the purchase price, capitalized costs and fees and charges refunded by the manufacturer which is not in excess of the receipts and proportionate to the receipts subject to tax. All the provisions of this section shall apply to the refund authorized by this subdivision, provided, however, that a request for a refund under this subdivision shall be timely made if such request for a refund is made within three years of the date the refund from the manufacturer is received by a consumer pursuant to subdivision (c) of section one hundred ninety-eight-a of the general business law and further provided that interest allowable under subdivision (d) of this section shall be payable from the date which is three months after the date the application for refund in processible form is received. (g) The tax commission shall refund or credit any tax imposed, under subdivision (a) of section eleven hundred five or section eleven hundred ten, and paid on or after July first, nineteen hundred eighty-seven with respect to: (i) tractors, trailers or semi-trailers, as such terms are defined in article one of the vehicle and traffic law, and property installed on such vehicles for their equipping, maintenance or repair provided such vehicle is used in combination where the gross vehicle weight of such combination exceeds twenty-six thousand pounds; and (ii) services, if performed upon tractors, trailers or semi-trailers described in paragraph (i) of this subdivision or on property installed on such vehicles for their equipping, maintenance or repair. All of the provisions of this section shall apply to the refund authorized by this subdivision, provided, however, that interest allowable under subdivision (d) of this section shall be payable in accordance with such subdivision but only from the date the tax, penalty or interest refunded or credited was paid, or was deemed to have been paid, to March thirty-first, nineteen hundred eighty-eight and from the date which is ninety days after the date the application for refund in processible form is received. (h)(1) Notwithstanding any provision of the law to the contrary, pursuant to the provisions of this subdivision, the commissioner shall refund or credit to (i) a credit card issuer tax paid pursuant to this article in respect to motor fuel and diesel motor fuel purchased by a government entity and paid for by such government entity with a credit card issued by such credit card issuer or (ii) a fuel distributor tax paid pursuant to this article in respect to motor fuel and diesel motor fuel purchased by a government entity and paid for by such government entity with a credit card issued by a credit card issuer. Such credit card issuer or such fuel distributor, as designated by the parties in a written designation to the commissioner, shall be the only person eligible to receive such refund or credit, provided that: (A) such taxes were actually paid to the commissioner; (B) the fuel so purchased by the government entity is for its own use or consumption such that the purchase qualifies as an exempt purchase pursuant to an exception in paragraph five of subdivision (b) of section eleven hundred sixteen of this article; (C) the credit card issuer or fuel distributor meets the requirements of paragraph two of this subdivision; and (D) the commissioner has not issued a notice pursuant to subdivision fourteen of section eleven hundred forty-two of this part indicating that the credit card issuer or fuel distributor is no longer allowed to claim a refund or credit under this subdivision for the fuel purchased by a particular government entity. Such application for credit or refund shall be submitted after the end of the quarter in which the vendor of the motor fuel or diesel motor fuel was required to report the tax liability itcollected from the credit card issuer or fuel distributor pursuant to section eleven hundred thirty-six of this part, but within the applicable statute of limitations as required under this section. (2) In order to be eligible to receive the refund or credit provided for in paragraph one of this subdivision, the credit card issuer or fuel distributor shall: (A) file with the commissioner a certificate of registration and receive a certificate of authority pursuant to section eleven hundred thirty-four of this part, if not already so registered, provided, however, the credit card issuer or fuel distributor shall provide such additional information as the commissioner may require; (B) establish it has (i) not charged or otherwise received any tax, or any amount purportedly as tax, from the government entity making the purchase; and (ii) filed a written consent signed by the chief fiscal officer of the government entity stating that no tax was charged to such government entity by the credit card issuer or fuel distributor, and that therefore the government entity has no claim for a credit or refund relating to its purchases of motor fuel or diesel motor fuel effected with the credit card issuer's credit card and that no such claim has or will be made by the government entity; (C) establish either that (i) the retail station or other vendor has been repaid the amount of tax it charged to the government entity on the government entity's purchase of the motor fuel or diesel motor fuel, or (ii) obtained the written consent of the retail station or other vendor to the allowance of the credit or refund to the credit card issuer or fuel distributor; and (D) provide such detailed transactional and jurisdictional information to the commissioner as the commissioner may require, in the form requested by the commissioner. (3)(A) The term "government entity" means an entity described in paragraph one, two or three of subdivision (a) of section eleven hundred sixteen of this article or any diplomatic mission or diplomatic personnel who are permitted by the United States to purchase fuel and diesel motor fuel exempt from the taxes imposed pursuant to this article and articles twelve-A and thirteen-A of this chapter. (B) The term "credit card issuer" means a person which finances the exempt purchase of motor fuel or diesel motor fuel by a government entity by means of a credit or other access card issued to the government entity by such person. (C) The term "fuel distributor" means any person who is a registered distributor under article twelve-A of this chapter and who is registered as a person required to collect tax pursuant to this article. (4) If any requirement of paragraph two of this subdivision is not met, or if the credit card issuer and, where applicable, the fuel distributor, receive a notice pursuant to subdivision fourteen of section eleven hundred forty-two of this article, then an amount equal to the tax imposed by this article shall be collected from the government entity, notwithstanding such entity's exempt status, and such government entity shall be responsible for seeking any credit or refund which it may be allowed under this article. (5) The provisions of subdivisions (a), (b) and (c) of this section shall also apply to an application for refund or credit pursuant to this subdivision, except to the extent that such subdivisions are inconsistent with this subdivision, and except that no interest shall be allowed or paid upon any refund made or credit allowed pursuant to this subdivision. Any document required pursuant to this subdivision shall be in such form and contain such information as the commissioner shall prescribe. (6) A credit card issuer or fuel distributor designated pursuant to this subdivision to receive the refund or credit and its officers,directors, employees, managers and members under a duty to act for such credit card issuer or fuel distributor in complying with any requirement of this article and, where such credit card issuer or fuel distributor is a partnership or limited liability company, any member of such partnership or company shall be deemed to be persons required to collect tax and shall be personally liable in accordance with section eleven hundred thirty-three of this article with respect to the liabilities described in subparagraph (E) of paragraph three of subdivision (a) of section eleven hundred thirty-eight of this part. Nothing in this subdivision shall be construed to require a credit card issuer to file a return pursuant to section eleven hundred thirty-six of this part unless otherwise required to do so by another provision of this article or unless the commissioner, in his or her discretion, determines it is necessary for the proper enforcement of this article for credit card issuers or distinct classes of such issuers to file such returns and gives notice of such determination to such issuers. (7) Nothing in this subdivision shall be construed to exempt (A) the purchase of motor fuel or diesel motor fuel by a government entity where it is not the ultimate user or consumer of such fuel, or (B) any sale by a government entity of motor fuel or diesel motor fuel.