S T A T E   O F   N E W   Y O R K
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                                  6934

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             April 10, 2015
                               ___________

Introduced by M. of A. THIELE -- read once and referred to the Committee
  on Ways and Means

AN  ACT  to  amend  the tax law, in relation to certain sales of fuel to
  exempt commercial fishermen

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

  Section 1. Subdivision 3 of section 289-c of the tax law is amended by
adding a new paragraph (i) to read as follows:
  (I) NOTWITHSTANDING ANY PROVISION OF THE LAW TO THE CONTRARY, TAX PAID
PURSUANT  TO  THIS ARTICLE IN RESPECT TO MOTOR FUEL OR DIESEL MOTOR FUEL
PURCHASED BY A COMMERCIAL FISHERMAN AND  PAID  FOR  BY  SUCH  COMMERCIAL
FISHERMAN  WITH  A  CREDIT  CARD  SHALL BE REIMBURSED OR CREDITED TO THE
ISSUER OF THE CREDIT CARD USED FOR SUCH PURCHASE OR THE FUEL DISTRIBUTOR
DESIGNATED IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF  SECTIONS
ELEVEN  HUNDRED THIRTY-EIGHT, ELEVEN HUNDRED THIRTY-NINE, ELEVEN HUNDRED
FORTY-TWO, AND ELEVEN HUNDRED FORTY-FIVE OF THIS CHAPTER CONCERNING SUCH
CREDIT CARD ISSUERS, FUEL DISTRIBUTORS AND  COMMERCIAL  FISHERMEN.  SUCH
PROVISIONS  SHALL APPLY WITH RESPECT TO THE ADMINISTRATION OF AND PROCE-
DURE WITH RESPECT TO THE TAXES IMPOSED UNDER THIS ARTICLE  IN  THE  SAME
MANNER  AND  WITH  THE  SAME FORCE AND EFFECT AS IF THE LANGUAGE OF SUCH
PROVISIONS HAD BEEN INCORPORATED IN  FULL  INTO  THIS  ARTICLE  AND  HAD
EXPRESSLY  REFERRED  TO  THE TAX UNDER THIS ARTICLE, WITH SUCH MODIFICA-
TIONS AS MAY BE NECESSARY  IN  ORDER  TO  ADAPT  THE  LANGUAGE  OF  SUCH
PROVISIONS  TO  THE  TAXES IMPOSED BY THIS ARTICLE, EXCEPT TO THE EXTENT
THAT ANY SUCH PROVISION IS NOT RELEVANT TO THIS ARTICLE.
  S 2. The tax law is amended by adding a new section 301-n to  read  as
follows:
  S  301-N.  CREDIT OR REIMBURSEMENT FOR CERTAIN COMMERCIAL FISHERMEN BY
CREDIT CARD. NOTWITHSTANDING ANY PROVISION OF THE LAW TO  THE  CONTRARY,
TAX  PAID  PURSUANT  TO  THIS ARTICLE IN RESPECT TO MOTOR FUEL OR DIESEL
MOTOR FUEL PURCHASED BY A COMMERCIAL FISHERMAN  AND  PAID  FOR  BY  SUCH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10358-01-5
              

A. 6934                             2

COMMERCIAL  FISHERMAN WITH A CREDIT CARD SHALL BE REIMBURSED OR CREDITED
TO THE ISSUER OF THE CREDIT CARD USED FOR  SUCH  PURCHASE  OR  THE  FUEL
DISTRIBUTOR  DESIGNATED IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS
OF  SECTIONS  ELEVEN  HUNDRED  THIRTY-EIGHT, ELEVEN HUNDRED THIRTY-NINE,
ELEVEN HUNDRED FORTY-TWO, AND ELEVEN HUNDRED FORTY-FIVE OF THIS  CHAPTER
CONCERNING  SUCH  CREDIT  CARD ISSUERS, FUEL DISTRIBUTORS AND COMMERCIAL
FISHERMEN. SUCH PROVISIONS SHALL APPLY  WITH  RESPECT  TO  THE  ADMINIS-
TRATION  OF  AND  PROCEDURE WITH RESPECT TO THE TAXES IMPOSED UNDER THIS
ARTICLE IN THE SAME MANNER AND WITH THE SAME FORCE AND EFFECT AS IF  THE
LANGUAGE  OF  SUCH  PROVISIONS  HAD  BEEN INCORPORATED IN FULL INTO THIS
ARTICLE AND HAD EXPRESSLY REFERRED TO THE TAX UNDER THIS  ARTICLE,  WITH
SUCH MODIFICATIONS AS MAY BE NECESSARY IN ORDER TO ADAPT THE LANGUAGE OF
SUCH  PROVISIONS  TO  THE  TAXES  IMPOSED BY THIS ARTICLE, EXCEPT TO THE
EXTENT THAT ANY SUCH PROVISION IS NOT RELEVANT TO THIS ARTICLE.
  S 3. Paragraph 3 of subdivision (a) of section 1138 of the tax law  is
amended by adding a new subparagraph (F) to read as follows:
  (F)  IN  ADDITION  TO ANY OTHER LIABILITY A CREDIT CARD ISSUER OR FUEL
DISTRIBUTOR MAY HAVE, THE COMMISSIONER SHALL DETERMINE ANY OR ALL OF THE
FOLLOWING LIABILITIES:  (1) ANY TAX, INTEREST OR PENALTY LIABILITY OF  A
CREDIT  CARD ISSUER OR FUEL DISTRIBUTOR FOR ANY CREDIT ALLOWED OR REFUND
PAID UNDER SUBDIVISION (I) OF SECTION ELEVEN HUNDRED THIRTY-NINE OF THIS
PART WHICH WAS ERRONEOUSLY, ILLEGALLY OR UNCONSTITUTIONALLY  ALLOWED  OR
PAID  TO SUCH CREDIT CARD ISSUER OR FUEL DISTRIBUTOR, OR (2) THE PENALTY
IMPOSED BY SUBPARAGRAPH (X) OF  PARAGRAPH  ONE  OF  SUBDIVISION  (A)  OF
SECTION  ELEVEN  HUNDRED  FORTY-FIVE OF THIS PART. IN ANY SUCH INSTANCE,
THE COMMISSIONER SHALL GIVE THE CREDIT CARD ISSUER OR  FUEL  DISTRIBUTOR
NOTICE  OF  SUCH  DETERMINATION IN THE MANNER DESCRIBED IN PARAGRAPH ONE
AND TWO OF THIS SUBDIVISION. SUCH DETERMINATION SHALL BE  AN  ASSESSMENT
OF  ANY  SUCH LIABILITY UNLESS SUCH CREDIT CARD ISSUER OR FUEL DISTRIBU-
TOR, WITHIN NINETY DAYS AFTER THE GIVING OF  SUCH  NOTICE  AND  DETERMI-
NATION,  SHALL APPLY TO THE COMMISSIONER FOR A HEARING. THE COMMISSIONER
MAY, NEVERTHELESS, OF HIS OR HER OWN MOTION, REDETERMINE  SUCH  DETERMI-
NATION  OR  LIABILITY FOR PENALTY. FURTHERMORE, THE COMMISSIONER MAY, OF
HIS OR HER OWN MOTION, ABATE ANY PART OF THE PENALTY  DETERMINED  TO  BE
ERRONEOUS  OR  EXCESSIVE  WHETHER OR NOT SUCH PENALTY HAS BECOME FINALLY
AND IRREVOCABLY FIXED WITH RESPECT TO SUCH ISSUER  OR  FUEL  DISTRIBUTOR
BUT  NO CLAIM OF ABATEMENT MAY BE FILED BY SUCH ISSUER OR FUEL DISTRIBU-
TOR. THE PROVISIONS OF THIS PARAGRAPH SHALL NOT BE CONSTRUED TO LIMIT IN
ANY MANNER THE POWERS OF THE ATTORNEY GENERAL UNDER SUBDIVISION  (A)  OF
SECTION  ELEVEN  HUNDRED  FORTY-ONE  OF  THIS  PART OR THE POWERS OF THE
COMMISSIONER TO ISSUE A WARRANT UNDER SUBDIVISION (B)  OF  SUCH  SECTION
AGAINST  ANY  SUCH ISSUER OR FUEL DISTRIBUTOR WHOSE LIABILITY HAS BECOME
FINALLY AND IRREVOCABLY FIXED.
  S 4. Section 1139 of the tax law is amended by adding a  new  subdivi-
sion (i) to read as follows:
  (I)(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
COMMERCIAL  FISHERMAN  AND  PAID FOR BY SUCH COMMERCIAL FISHERMAN 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  COMMERCIAL FISHERMAN AND PAID FOR BY SUCH
COMMERCIAL FISHERMAN 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

A. 6934                             3

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 COMMERCIAL FISHERMAN 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 FIFTEEN 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
COMMERCIAL FISHERMAN. 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  IT
COLLECTED  FROM  THE  CREDIT CARD ISSUER OR FUEL DISTRIBUTOR PURSUANT TO
SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART, BUT WITHIN THE  APPLICA-
BLE 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 COMMERCIAL FISHERMAN MAKING THE
PURCHASE; AND (II) FILED A WRITTEN CONSENT SIGNED BY  THE  CHIEF  FISCAL
OFFICER  OF  THE COMMERCIAL FISHERMAN STATING THAT NO TAX WAS CHARGED TO
SUCH COMMERCIAL FISHERMAN BY THE CREDIT CARD ISSUER OR FUEL DISTRIBUTOR,
AND THEREFORE THE COMMERCIAL FISHERMAN 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 COMMERCIAL FISHERMAN; (C) ESTABLISH
EITHER THAT (I) THE RETAIL STATION OR OTHER VENDOR HAS BEEN  REPAID  THE
AMOUNT  OF  TAX IT CHARGED TO THE COMMERCIAL FISHERMAN ON THE COMMERCIAL
FISHERMAN'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 JURISDIC-
TIONAL INFORMATION TO THE COMMISSIONER AS THE COMMISSIONER MAY  REQUIRE,
IN THE FORM REQUESTED BY THE COMMISSIONER.
  (3)(A)  THE  TERM  "COMMERCIAL  FISHERMAN" MEANS A PERSON DESCRIBED IN
SUBDIVISION (I) OF SECTION THREE HUNDRED 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 COMMERCIAL FISH-
ERMAN BY MEANS OF A CREDIT OR OTHER ACCESS CARD ISSUED TO THE COMMERCIAL
FISHERMAN 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 FIFTEEN 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 COMMERCIAL FISH-
ERMAN,  NOTWITHSTANDING  SUCH  COMMERCIAL FISHERMAN'S EXEMPT STATUS, AND

A. 6934                             4

SUCH COMMERCIAL FISHERMAN 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  INCONSIST-
ENT  WITH THIS SUBDIVISION, AND EXCEPT THAT NO INTEREST SHALL BE ALLOWED
OR PAID UPON ANY REFUND MADE OR CREDIT ALLOWED PURSUANT TO THIS SUBDIVI-
SION. 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  PART-
NERSHIP 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 (F) 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 OTHER-
WISE  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 COMMERCIAL FISHERMAN OF MOTOR FUEL OR DIESEL MOTOR FUEL.
  S 5. Section 1142 of the tax law is amended by adding a  new  subdivi-
sion 15 to read as follows:
  15.  TO  ISSUE A NOTICE TO A CREDIT CARD ISSUER AND, WHERE APPLICABLE,
THE FUEL DISTRIBUTOR, AND ANY COMMERCIAL FISHERMAN, AS  SUCH  TERMS  ARE
DEFINED IN SUBDIVISION (I) OF SECTION ELEVEN HUNDRED THIRTY-NINE OF THIS
PART, THAT, AS OF THE DATE SPECIFIED BY THE COMMISSIONER IN SUCH NOTICE,
THE  CREDIT  CARD ISSUER OR FUEL DISTRIBUTOR SHALL NO LONGER BE ELIGIBLE
TO APPLY FOR REFUNDS OR CREDIT WITH RESPECT TO PURCHASES OF  MOTOR  FUEL
OR  DIESEL MOTOR FUEL BY SUCH COMMERCIAL FISHERMAN, THE COMMERCIAL FISH-
ERMAN SHALL NO LONGER BE ELIGIBLE TO EMPLOY ANY OTHER CREDIT CARD ISSUER
OR FUEL DISTRIBUTOR PURSUANT TO SUCH SUBDIVISION (I) AND NO  SUCH  CLAIM
FOR  CREDIT  OR  REFUND  WILL BE ALLOWED OR PAID IN ACCORDANCE WITH SUCH
SUBDIVISION (I), WHERE THE COMMISSIONER  HAS  DETERMINED  THAT  (A)  THE
MOTOR  FUEL OR DIESEL MOTOR FUEL PURCHASED THROUGH THE USE OF THE CREDIT
CARD ISSUER'S CREDIT CARD WAS NOT FOR THE COMMERCIAL FISHERMAN'S OWN USE
OR CONSUMPTION OR (B) IT IS NECESSARY FOR THE PROPER ENFORCEMENT OF THIS
ARTICLE  TO  ISSUE  SUCH  NOTICE.  THE  COMMISSIONER,  IN  HIS  OR   HER
DISCRETION, MAY CANCEL OR SUSPEND THE OPERATION OF SUCH NOTICE WHERE THE
CREDIT  CARD ISSUER, FUEL DISTRIBUTOR, WHERE APPLICABLE, AND THE COMMER-
CIAL FISHERMAN  ESTABLISH,  TO  THE  COMMISSIONER'S  SATISFACTION,  THAT
APPROPRIATE  STEPS  HAVE  BEEN  UNDERTAKEN  TO RECTIFY THE CIRCUMSTANCES
LEADING TO THE ISSUANCE OF SUCH NOTICE. IN SUCH CASE,  THE  COMMISSIONER
WILL  NOTIFY  THE CREDIT CARD ISSUER OR FUEL DISTRIBUTOR, WHERE APPLICA-
BLE, THAT THE DESIGNATED PERSON WILL BE ELIGIBLE TO APPLY FOR REFUNDS OR

A. 6934                             5

CREDITS  PURSUANT  TO  SUBDIVISION  (I)  OF   SECTION   ELEVEN   HUNDRED
THIRTY-NINE  OF  THIS PART IN ACCORDANCE WITH SUCH TERMS AS SET FORTH BY
THE COMMISSIONER. NOTHING IN THIS SUBDIVISION SHALL BE DEEMED TO  AFFECT
THE  ELIGIBILITY OF THE COMMERCIAL FISHERMAN TO CLAIM A REFUND OR CREDIT
FOR TAX PAID ON MOTOR FUEL OR DIESEL MOTOR FUEL IT PURCHASED WHERE  SUCH
PURCHASE  QUALIFIES FOR EXEMPTION PURSUANT TO PARAGRAPH FIVE OF SUBDIVI-
SION (B) OF SECTION ELEVEN HUNDRED SIXTEEN OF THIS  ARTICLE.    NOTWITH-
STANDING  ANY  OTHER  PROVISION  OF LAW, IF THE CREDIT CARD ISSUER, FUEL
DISTRIBUTOR, WHERE APPLICABLE,  OR  COMMERCIAL  FISHERMAN  DISPUTES  ANY
ASPECT OF THE NOTICE ISSUED PURSUANT TO THIS SUBDIVISION:
  (I)  THE  CREDIT  CARD ISSUER, FUEL DISTRIBUTOR, WHERE APPLICABLE, AND
THE COMMERCIAL FISHERMAN WHO RECEIVE SUCH A NOTICE SHALL HAVE THE  RIGHT
TO  HAVE THE ISSUANCE OF SUCH NOTICE REVIEWED BY THE COMMISSIONER OR HIS
OR HER DESIGNEE BY CONTACTING THE DEPARTMENT AT A TELEPHONE NUMBER OR AN
ADDRESS TO BE DISCLOSED IN THE NOTICE WITHIN TEN DAYS OF THE RECIPIENT'S
RECEIPT OF THE NOTICE. THE RECIPIENT MAY  PRESENT  WRITTEN  EVIDENCE  OR
ARGUMENTS  IN  SUPPORT  OF  ITS  CLAIM, OR THE RECIPIENT MAY APPEAR AT A
SCHEDULED CONFERENCE WITH THE COMMISSIONER OR SUCH DESIGNEE  TO  PRESENT
ORAL  ARGUMENTS  AND  WRITTEN AND ORAL EVIDENCE IN SUPPORT OF SUCH POSI-
TION. THE COMMISSIONER OR SUCH  DESIGNEE  IS  AUTHORIZED  TO  DELAY  THE
EFFECTIVE  DATE OF THE NOTICE TO ENABLE THE RECIPIENT TO PRESENT FURTHER
EVIDENCE OR ARGUMENTS IN CONNECTION WITH THE ISSUANCE OF THE NOTICE. THE
COMMISSIONER OR SUCH DESIGNEE SHALL CANCEL THE NOTICE IF THE COMMISSION-
ER OR SUCH DESIGNEE IS NOT SATISFIED BY A PREPONDERANCE OF THE  EVIDENCE
THAT  THE  FACTS  UNDERLYING  SUCH NOTICE DO NOT SUPPORT THE ISSUANCE OF
SUCH NOTICE.
  (II) EXCEPT AS PROVIDED FOR IN PARAGRAPH (I) OF THIS SUBDIVISION,  THE
CREDIT  CARD  ISSUER, FUEL DISTRIBUTOR OR THE COMMERCIAL FISHERMAN SHALL
NOT HAVE ANY RIGHT TO A HEARING UNDER ANY OTHER PROVISION OF THIS  CHAP-
TER TO CHALLENGE THE ISSUANCE OF SUCH NOTICE. RATHER, SUCH DETERMINATION
SHALL  BE REVIEWABLE ONLY BY A PROCEEDING UNDER ARTICLE SEVENTY-EIGHT OF
THE CIVIL PRACTICE LAW AND  RULES,  PROVIDED,  HOWEVER,  THAT  (A)  SUCH
PROCEEDING  IS COMMENCED WITHIN FOUR MONTHS OF THE DATE THE COMMISSIONER
ISSUED SUCH NOTICE OR, IF SUCH NOTICE IS DISPUTED, WITHIN FOUR MONTHS OF
THE DATE THE COMMISSIONER OR SUCH DESIGNEE UPHOLDS SUCH NOTICE IN  WHOLE
OR IN PART, (B) THE CREDIT CARD ISSUER, FUEL DISTRIBUTOR, WHERE APPLICA-
BLE,  AND  ANY AFFECTED COMMERCIAL FISHERMAN ARE NAMED AS PARTIES TO THE
ACTION, AND (C) THE ONLY ISSUE WHICH MAY BE CONSIDERED BY SUCH REVIEW IS
WHETHER SUCH NOTICE WAS WITHIN THE DISCRETION OF THE COMMISSIONER  UNDER
THIS ARTICLE. SUCH PROCEEDING SHALL BE INSTITUTED IN ALBANY COUNTY. UPON
THE  FILING  OF  SUCH PETITION, THE COURT SHALL HAVE JURISDICTION TO SET
ASIDE SUCH NOTICE OR TO DISMISS THE PETITION. THE  JURISDICTION  OF  THE
SUPREME  COURT  SHALL BE EXCLUSIVE AND ITS ORDER SHALL BE FINAL, SUBJECT
TO REVIEW BY THE APPELLATE DIVISION OF THE SUPREME COURT AND  THE  COURT
OF  APPEALS  IN  THE  SAME  MANNER  AND FORM AND WITH THE SAME EFFECT AS
PROVIDED BY LAW FOR APPEAL FROM A JUDGMENT IN A SPECIAL PROCEEDING.  ALL
SUCH  PROCEEDINGS  FOR REVIEW SHALL BE HEARD ON THE PETITION, TRANSCRIPT
AND OTHER PAPERS, AND ON APPEAL SHALL BE HEARD ON  THE  RECORD,  WITHOUT
REQUIREMENT OF PRINTING.
  S  6. Paragraph 1 of subdivision (a) of section 1145 of the tax law is
amended by adding a new subparagraph (x) to read as follows:
  (X) IN ADDITION TO ANY OTHER PENALTY OR INTEREST UNDER THIS ARTICLE OR
OTHER LAW, ANY CREDIT CARD ISSUER OR FUEL  DISTRIBUTOR,  AS  DEFINED  IN
SUBDIVISION  (I) OF SECTION ELEVEN HUNDRED THIRTY-NINE OF THIS PART, WHO
RECEIVES A REFUND OR CREDIT PURSUANT TO SUCH SUBDIVISION KNOWING, AT THE
TIME THE REFUND APPLICATION IS FILED OR THE CREDIT IS  TAKEN,  THAT  THE

A. 6934                             6

MOTOR  FUEL  OR  DIESEL  MOTOR FUEL PURCHASED WAS NOT FOR THE COMMERCIAL
FISHERMAN'S OWN USE OR CONSUMPTION, SHALL BE LIABLE FOR A PENALTY IN THE
AMOUNT OF THE TAX REFUNDED OR CREDITED,  PLUS  APPLICABLE  INTEREST  DUE
UNDER THIS ARTICLE.
  S  7.  This  act  shall  take effect on the first day of the sales tax
quarterly period, as described in subdivision (b) of section 1136 of the
tax law, that begins at least ninety days after the  date  on  which  it
shall have become a law and shall apply to sales made and uses occurring
on  or  after  that  date in accordance with the applicable transitional
provisions of sections 1106 and 1217 of the tax law.