S T A T E   O F   N E W   Y O R K
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    S. 1766--A                                            A. 1218--A

                       2013-2014 Regular Sessions

                      S E N A T E - A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
  ed,  and  when  printed  to  be committed to the Committee on Investi-
  gations and Government Operations  --  reported  favorably  from  said
  committee  and  committed  to  the  Committee  on Finance -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

IN ASSEMBLY -- Introduced by M. of A. THIELE,  GRAF  --  read  once  and
  referred  to  the Committee on Ways and Means -- committee discharged,
  bill amended, ordered reprinted as amended  and  recommitted  to  said
  committee

AN  ACT  to  amend  the  tax  law, in relation to exempting fuel used in
  vessels used directly and predominantly in a business providing  sport
  fishing  opportunities  for hire to the general public from the tax on
  petroleum businesses and from sales and compensating use taxes

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.    Section  300  of the tax law is amended by adding a new
subdivision (j-1) to read as follows:
  (J-1) "COMMERCIAL SPORT FISHING VESSEL" MEANS  A  VESSEL  OWNED  BY  A
PERSON,  WHO  HAS  BEEN  ISSUED  AND HOLDS A MARINE AND COASTAL DISTRICT
PARTY AND CHARTER BOAT LICENSE PURSUANT TO SECTION 13-0336 OF THE  ENVI-
RONMENTAL CONSERVATION LAW.
  S  2.  Paragraph 2 of subdivision (b) of section 301-a of the tax law,
as added by section 154 of part A of chapter 389 of the laws of 1997, is
amended to read as follows:
  (2) Motor fuel brought into this state in  the  fuel  tank  connecting
with  the  engine  of  a  vessel propelled by the use of such motor fuel
shall be deemed to constitute a  taxable  use  of  motor  fuel  for  the
purposes  of this subdivision to the extent that the fuel is consumed in

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD03496-03-3

S. 1766--A                          2                         A. 1218--A

the operation of the vessel in this state. Provided, however, that  this
paragraph  shall  not  apply  to  (i)  a recreational motor boat or (ii)
subsequent to  August  thirty-first,  nineteen  hundred  ninety-four,  a
commercial  fishing  vessel  (as  defined  in subdivision (j) of section
three hundred of this article) if the motor fuel imported  and  consumed
in  this state is used to operate such vessel while it is engaged in the
harvesting of fish for sale OR (III) A COMMERCIAL SPORT FISHING  VESSEL,
IF  SUCH VESSEL PROVIDES ITS OWNER WITH AT LEAST FIFTY PERCENT OF HIS OR
HER TOTAL ANNUAL INCOME.   Provided, further,  that  tax  liability  for
gallonage that a vessel consumes shall be the tax liability with respect
to  the positive difference between the gallonage consumed in this state
during the reporting period and the gallonage purchased  in  this  state
(upon  which  the tax imposed by this section has been paid) during such
period. A credit or refund shall be available  for  any  excess  of  tax
liability  for  gallonage purchased in this state during the period over
tax liability on gallonage so consumed in this state during such period,
which excess shall be presumed to have been used outside this state.
  S 3. Subparagraph (B) of paragraph 1 of  subdivision  (c)  of  section
301-a  of  the tax law, as amended by section 19 of part K of chapter 61
of the laws of 2011, is amended to read as follows:
  (B) Highway diesel motor fuel brought into this state in the fuel tank
connecting with the engine of a vessel propelled  by  the  use  of  such
diesel  motor fuel shall be deemed to constitute a taxable use of diesel
motor fuel for the purpose of this paragraph to the extent of  the  fuel
that is consumed in the operation of the vessel in this state. Provided,
however, this paragraph shall not apply to (i) a recreational motor boat
or  (ii)  a  commercial fishing vessel (as defined in subdivision (j) of
section three hundred of this article) if the highway diesel motor  fuel
imported into and consumed in this state is used to operate such commer-
cial  fishing  vessel  while it is engaged in the harvesting of fish for
sale OR (III) A COMMERCIAL SPORT FISHING VESSEL, IF SUCH VESSEL PROVIDES
ITS OWNER WITH AT LEAST FIFTY PERCENT OF HIS OR HER TOTAL ANNUAL INCOME.
Provided, further, that  tax  liability  for  gallonage  that  a  vessel
consumes  in  this  state shall be the tax liability with respect to the
positive difference between the gallonage consumed in this state  during
the  reporting  period  and  the gallonage purchased in this state (upon
which the tax imposed by this section has been paid) during such period.
A credit or refund shall be available for any excess  of  tax  liability
for gallonage purchased in this state during the period over tax liabil-
ity  on  gallonage  so  consumed in this state during such period, which
excess shall be presumed to have been used outside this state.
  S 4. The opening paragraph of section 301-c of the tax law, as amended
by section 5 of part W-1 of chapter 109 of the laws of 2006, is  amended
to read as follows:
  A subsequent purchaser shall be eligible for reimbursement of tax with
respect  to the following gallonage, subsequently sold by such purchaser
in accordance with subdivision (a), (b), (e), (h), (j), (k), (n) or  (o)
of this section or used by such purchaser in accordance with subdivision
(c), (d), (f), (g), (G-1), (i), (l) or (m) of this section, which gallo-
nage has been included in the measure of the tax imposed by this article
on a petroleum business:
  S 5. The opening paragraph of section 301-c of the tax law, as amended
by chapter 468 of the laws of 2000, is amended to read as follows:
  A subsequent purchaser shall be eligible for reimbursement of tax with
respect  to the following gallonage, subsequently sold by such purchaser
in accordance with subdivision (a), (b), (e), (h), (j) or  (k)  of  this

S. 1766--A                          3                         A. 1218--A

section  or  used  by such purchaser in accordance with subdivision (c),
(d), (f), (g), (G-1), (i), (l) or (m) of this section,  which  gallonage
has been included in the measure of the tax imposed by this article on a
petroleum business:
  S  6. Section 301-c of the tax law is amended by adding a new subdivi-
sion (g-1) to read as follows:
  (G-1) DIESEL MOTOR FUEL AND  MOTOR  FUEL  USED  IN  THE  OPERATION  OF
COMMERCIAL  SPORT  FISHING  VESSELS.  DIESEL  MOTOR  FUEL  OR MOTOR FUEL
PURCHASED IN THIS STATE BY THE OPERATOR OF A  COMMERCIAL  SPORT  FISHING
VESSEL  AT  RETAIL  WHEREIN SUCH DIESEL MOTOR FUEL OR SUCH MOTOR FUEL IS
DELIVERED BY A PUMP EQUIPPED WITH A HOSE DIRECTLY INTO THE FUEL TANK  OF
A COMMERCIAL SPORT FISHING VESSEL TO BE USED AS FUEL IN THE OPERATION OF
SUCH VESSEL FOR THE PURPOSE OF PROVIDING SPORT FISHING OPPORTUNITIES FOR
HIRE  TO THE GENERAL PUBLIC; BUT ONLY WHERE (1) THE TAX IMPOSED PURSUANT
TO THIS ARTICLE HAS BEEN PAID WITH RESPECT TO SUCH DIESEL MOTOR FUEL  OR
SUCH  MOTOR  FUEL AND THE ENTIRE AMOUNT OF SUCH TAX HAS BEEN ABSORBED BY
SUCH PURCHASER, (2) SUCH PURCHASER POSSESSES DOCUMENTARY PROOF SATISFAC-
TORY TO THE COMMISSIONER EVIDENCING THE ABSORPTION BY IT OF  THE  ENTIRE
AMOUNT  OF  THE TAX IMPOSED PURSUANT TO THIS ARTICLE, AND (3) THE VESSEL
PROVIDES ITS OWNER WITH AT LEAST FIFTY PERCENT OF HIS OR HER TOTAL ANNU-
AL INCOME. PROVIDED, HOWEVER, THAT THE COMMISSIONER SHALL  REQUIRE  SUCH
DOCUMENTARY  PROOF  TO  QUALIFY FOR ANY REIMBURSEMENT OF TAX PROVIDED BY
THIS SECTION AS THE COMMISSIONER DEEMS APPROPRIATE.
  S 7. Subdivision (a) of section 1115 of the  tax  law  is  amended  by
adding a new paragraph 24-a to read as follows:
  (24-A) FUEL USED IN VESSELS USED DIRECTLY AND PREDOMINANTLY IN A BUSI-
NESS  PROVIDING  SPORT  FISHING  OPPORTUNITIES  FOR  HIRE TO THE GENERAL
PUBLIC; PROVIDED THAT SUCH VESSEL PROVIDES ITS OWNER WITH AT LEAST FIFTY
PERCENT OF HIS OR HER TOTAL ANNUAL INCOME.
  S 8. Subparagraph (i) of paragraph 1 of  subdivision  (a)  of  section
1210  of  the  tax law, as amended by chapter 13 of the laws of 2013, is
amended to read as follows:
  (i) Any local law, ordinance or resolution enacted by any city of less
than one million or by any county or school district, imposing the taxes
authorized by this subdivision, shall, notwithstanding any provision  of
law  to the contrary, exclude from the operation of such local taxes all
sales of tangible personal property for use or consumption directly  and
predominantly  in  the  production  of  tangible personal property, gas,
electricity, refrigeration or steam, for sale, by  manufacturing,  proc-
essing,  generating,  assembly,  refining, mining or extracting; and all
sales of tangible personal property for use or consumption predominantly
either in the production of tangible personal  property,  for  sale,  by
farming  or  in  a commercial horse boarding operation, or in both; and,
unless such city, county or school district elects otherwise, shall omit
THE FUEL USED IN COMMERCIAL SPORT FISHING VESSELS EXEMPTION PROVIDED FOR
IN PARAGRAPH TWENTY-FOUR-A OF SUBDIVISION (A) OF SECTION ELEVEN  HUNDRED
FIFTEEN OF THIS CHAPTER, the provision for credit or refund contained in
clause  six  of  subdivision  (a)  or  subdivision (d) of section eleven
hundred nineteen of this chapter.
  S 9. Section 1210 of the tax law is amended by adding a  new  subdivi-
sion (q) to read as follows:
  (Q)  NOTWITHSTANDING  ANY OTHER PROVISION OF STATE OR LOCAL LAW, ORDI-
NANCE OR RESOLUTION TO THE CONTRARY:
  (1) ANY CITY HAVING A POPULATION OF ONE MILLION OR MORE IN  WHICH  THE
TAXES  IMPOSED  BY  SECTION  ELEVEN HUNDRED SEVEN OF THIS CHAPTER ARE IN
EFFECT, ACTING THROUGH ITS LOCAL LEGISLATIVE BODY, IS HEREBY  AUTHORIZED

S. 1766--A                          4                         A. 1218--A

AND EMPOWERED TO ELECT TO PROVIDE THE SAME EXEMPTIONS FROM SUCH TAXES AS
THE  FUEL  USED IN COMMERCIAL SPORT FISHING VESSELS EXEMPTION FROM STATE
SALES AND COMPENSATING USE TAXES DESCRIBED IN PARAGRAPH TWENTY-FOUR-A OF
SUBDIVISION  (A)  OF  SECTION  ELEVEN HUNDRED FIFTEEN OF THIS CHAPTER BY
ENACTING A RESOLUTION IN THE FORM SET FORTH IN  PARAGRAPH  TWO  OF  THIS
SUBDIVISION;  WHEREUPON, UPON COMPLIANCE WITH THE PROVISIONS OF SUBDIVI-
SIONS (D) AND (E) OF THIS SECTION, SUCH  ENACTMENT  OF  SUCH  RESOLUTION
SHALL  BE DEEMED TO BE AN AMENDMENT TO SUCH SECTION ELEVEN HUNDRED SEVEN
AND SUCH SECTION ELEVEN HUNDRED SEVEN SHALL  BE  DEEMED  TO  INCORPORATE
SUCH  EXEMPTIONS  AS IF THEY HAD BEEN DULY ENACTED BY THE STATE LEGISLA-
TURE AND APPROVED BY THE GOVERNOR.
  (2) FORM OF RESOLUTION: BE IT ENACTED BY THE (INSERT PROPER  TITLE  OF
LOCAL LEGISLATIVE BODY) AS FOLLOWS:
  SECTION  ONE.  RECEIPTS  FROM  SALES  OF  AND  CONSIDERATION  GIVEN OR
CONTRACTED TO BE GIVEN FOR, OR FOR THE USE  OF,  PROPERTY  AND  SERVICES
EXEMPT FROM STATE SALES AND COMPENSATING USE TAXES PURSUANT TO PARAGRAPH
TWENTY-FOUR-A  OF  SUBDIVISION  (A) OF SECTION 1115 OF THE TAX LAW SHALL
ALSO BE EXEMPT FROM SALES AND COMPENSATING USE  TAXES  IMPOSED  IN  THIS
JURISDICTION.
  SECTION  TWO.  THIS  RESOLUTION  SHALL TAKE EFFECT JUNE 1, (INSERT THE
YEAR, BUT NOT EARLIER THAN THE YEAR 2010) AND SHALL APPLY TO SALES MADE,
SERVICES RENDERED AND USES OCCURRING ON AND AFTER THAT DATE  IN  ACCORD-
ANCE  WITH THE APPLICABLE TRANSITIONAL PROVISIONS IN SECTIONS 1106, 1216
AND 1217 OF THE NEW YORK TAX LAW.
  S 10.  This act shall take effect immediately and shall be  deemed  to
have  been  in  full  force  and  effect  on  and after January 1, 2012;
provided, further, that the  amendments  to  the  opening  paragraph  of
section 301-c of the tax law, made by section four of this act shall not
affect  the  expiration and repeal of such paragraph pursuant to section
19 of part W-1 of chapter 109 of the laws of 2006, as amended, and shall
expire and be  deemed  repealed  therewith,  when  upon  such  date  the
provisions of section five of this act shall take effect.