S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
     S. 5166                                                  A. 5812
 
                        2021-2022 Regular Sessions
 
                       S E N A T E - A S S E M B L Y
 
                             February 25, 2021
                                ___________
 
 IN SENATE -- Introduced by Sen. PALUMBO -- read twice and ordered print-
   ed,  and  when  printed to be committed to the Committee on Budget and
   Revenue
 
 IN ASSEMBLY -- 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 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.
   §  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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05724-01-1

 S. 5166                             2                            A. 5812
 
 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.
   § 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.
   § 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:
   § 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
 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:
   §  6. Section 301-c of the tax law is amended by adding a new subdivi-
 sion (g-1) to read as follows:

 S. 5166                             3                            A. 5812
 
   (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.
   §  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.
   §  8.  Subparagraph  (i)  of paragraph 1 of subdivision (a) of section
 1210 of the tax law, as separately amended by section 2 of part  WW  and
 section  5  of  part  Z of chapter 60 of the laws of 2016, 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 all
 sales  of  fuel sold for use in commercial aircraft and general aviation
 aircraft;  AND  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; and, unless  such  city,
 county or school district elects otherwise, shall omit the provision for
 credit  or refund contained in clause six of subdivision (a) or subdivi-
 sion (d) of section eleven hundred nineteen of this chapter.
   § 9. Section 1210 of the tax law is amended by adding a  new  subdivi-
 sion (n) to read as follows:
   (N)  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
 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

 S. 5166                             4                            A. 5812
 
 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 2021) 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.
   § 10. This act shall take effect on the ninetieth day after  it  shall
 have  become  a  law; provided, that the amendments to the opening para-
 graph 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.