§ 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 credit
or 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 taxation
and 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 it
collected 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.