§ 301-a. Imposition of tax. (a) General. Notwithstanding any other
provision of this chapter, or of any other law, there is hereby imposed
upon every petroleum business for the privilege of engaging in business,
doing business, employing capital, owning or leasing property, or
maintaining an office in this state, a monthly tax for each or any part
of a taxable month equal to the sum of the motor fuel component
determined pursuant to subdivision (b) of this section, the highway
diesel motor fuel component determined pursuant to paragraph one of
subdivision (c) of this section, the non-highway diesel motor fuel
component determined pursuant to paragraph two of subdivision (c) of
this section and the residual petroleum product component determined
pursuant to subdivision (d) of this section.

(b) Motor fuel component. (1) The motor fuel component shall be
determined by multiplying the motor fuel and highway diesel motor fuel
rate times the number of gallons of (1) motor fuel imported or caused to
be imported into this state by the petroleum business for use,
distribution, storage or sale in the state or (2) produced, refined,
manufactured or compounded in the state by the petroleum business during
the month covered by the return under this article. Provided, however,
that no motor fuel shall be included in the measure of the tax unless it
shall have previously come to rest within the meaning of federal
decisional law interpreting the United States constitution, nor shall
any motor fuel be included in the measure of the tax imposed by this
article more than once.

(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
harvesting of fish for sale. 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.

(c) (1) Highway Diesel motor fuel component. (A) The highway diesel
motor fuel component shall be determined by multiplying the motor fuel
and highway diesel motor fuel rate times (1) the number of gallons of
highway diesel motor fuel sold or used by a petroleum business in this
state during the month covered by the return under this article and (2)
with respect to any gallonage which prior thereto has not been included
in the measure of the tax imposed by this article, times the number of
gallons of highway diesel motor fuel (i) removed from a terminal, other
than by pipeline, barge, tanker or other vessel, (ii) delivered to a
filling station or, (iii) delivered into the fuel tank connecting with
the engine of a motor vehicle for use in the operation thereof,
whichever of the latter three events shall be the first to occur.
Provided, however, that no highway diesel motor fuel shall be included
in the measure of the tax unless it shall have previously come to rest
within the meaning of federal decisional law interpreting the United
States constitution, nor decisional law, nor shall any highway diesel
motor fuel be included in the measure of the tax imposed by this article
more than once.

(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
commercial fishing vessel while it is engaged in the harvesting of fish
for sale. 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 liability on gallonage so consumed in this state during such period,
which excess shall be presumed to have been used outside this state.

(2) Non-highway diesel motor fuel component. The non-highway diesel
fuel component shall be determined by multiplying the non-highway diesel
motor fuel rate times the number of gallons of non-highway diesel motor
fuel sold or used by a petroleum business in this state during the month
covered by the return under this section. Provided, however, that no
non-highway diesel motor fuel shall be included in the measure of the
tax unless it shall have previously come to rest within the meaning of
federal decisional law interpreting the United States constitution, nor
shall any non-highway diesel motor fuel be included in the measure of
the tax imposed by this article more than once.

(d) Residual petroleum product component. The residual petroleum
product component shall be determined by multiplying the residual
petroleum product rate times the number of gallons of residual petroleum
product sold or used in this state by a petroleum business during the
month covered by the return under this article. Provided, however, that
no residual petroleum product shall be included in the measure of the
tax unless it shall have previously come to rest within the meaning of
federal decisional law interpreting the United States constitution, nor
shall any residual petroleum product be included in the measure of the
tax imposed by this article more than once.

(e) Motor fuel and highway diesel motor fuel rate. (1) The basic motor
fuel and highway diesel motor fuel rate shall be ten and two-tenths
cents per gallon.

(2) Every year as of January first, the motor fuel and highway diesel
motor fuel rate then in effect on the immediately preceding December
thirty-first shall be adjusted as follows: such rate shall be multiplied
by a fraction the numerator of which is the sum of the monthly producer
price index (unadjusted) published by the bureau of labor statistics of
the United States department of labor for the category of commodities
designated "refined petroleum products" for the twelve consecutive
months ending with the month of August of the immediately preceding year
and the denominator of which is the sum of the monthly producer price
index (unadjusted) published by the bureau of labor statistics of the
United States department of labor for the category of commodities
designated "refined petroleum products" for the twelve consecutive
months ending with the month of August in the year prior to such
immediately preceding year, provided, however, that the adjusted rate
shall not increase above or decrease below the rate in effect on the
immediately preceding December thirty-first by more than five percent.

(3) Notwithstanding any other provision of this article, the per
gallon rate with respect to "railroad diesel" shall be the adjusted
motor fuel and highway diesel motor fuel rate under paragraphs one and
two of this subdivision minus one and three tenths cents per gallon.

(f) Non-highway diesel motor fuel rate.

(1) The basic non-highway diesel motor fuel rate shall be nine and
three-tenths cents per gallon.

(2) Every year as of January first the non-highway diesel motor fuel
rate then in effect on the immediately preceding December thirty-first
shall be adjusted as follows: Such rate shall be multiplied by a
fraction the numerator of which is the sum of the monthly producer price
index (unadjusted) published by the bureau of labor statistics of the
United States department of labor for the category of commodities
designated "refined petroleum products" for the twelve consecutive
months ending with the month of August of the immediately preceding year
and the denominator of which is the sum of the monthly producer price
index (unadjusted) published by the bureau of labor statistics of the
United States department of labor for the category of commodities
designated "refined petroleum products" for the twelve consecutive
months ending with the month of August in the year prior to such
immediately preceding year, provided, however, that the adjusted rate
shall not increase above or decrease below the rate in effect on the
immediately preceding December thirty-first by more than five percent.

(3) Notwithstanding any other provision of this article, non-highway
diesel motor fuel which is "manufacturing gallonage," as such term is
defined in subdivision (m) of section three hundred of this article,
shall be exempt from the measure of the non-highway diesel motor fuel
component of the tax imposed under this section.

(g) Residual petroleum product rate. (1) The basic residual petroleum
product rate shall be four cents per gallon.

(2) Commencing April first, nineteen hundred ninety-one, the residual
petroleum product rate shall be the product of the basic rate set forth
in paragraph one of this subdivision multiplied by a fraction the
numerator of which is the sum of the monthly producer price index
(unadjusted) published by the bureau of labor statistics of the United
States department of labor for the category of commodities designated
"refined petroleum products" for the twelve consecutive months ending
with the month of November, nineteen hundred ninety, and the denominator
of which is the sum of the monthly producer price index (unadjusted)
published by the bureau of the labor statistics of the United States
department of labor for the category of commodities designated "refined
petroleum products" for the twelve consecutive months ending with the
month of November, nineteen hundred eighty-nine.

(3) Commencing on the first day of January, nineteen hundred
ninety-two, the residual petroleum product rate then in effect on the
immediately preceding December thirty-first shall be adjusted as
follows: Such rate shall be multiplied by a fraction the numerator of
which is the sum of the monthly producer price index (unadjusted)
published by the bureau of labor statistics of the United States
department of labor for the category of commodities designated "refined
petroleum products" for the twelve consecutive months ending with the
month of August, nineteen hundred ninety-one and the denominator of
which is the sum of the monthly producer price index (unadjusted)
published by the bureau of labor statistics of the United States
department of labor for the category of commodities designated "refined
petroleum products" for the twelve consecutive months ending with the
month of August, nineteen hundred ninety. Commencing on the first day of
January of nineteen hundred ninety-six and every year thereafter, the
residual petroleum product rate then in effect on the immediately
preceding December thirty-first shall be adjusted as follows: Such rate
shall be multiplied by a fraction the numerator of which is the sum of
the monthly producer price index (unadjusted) published by the bureau of
labor statistics of the United States department of labor for the
category of commodities designated "refined petroleum products" for the
twelve consecutive months ending with the month of August of the
immediately preceding year and the denominator of which is the sum of
the monthly producer price index (unadjusted) published by the bureau of
labor statistics of the United States department of labor for the
category of commodities designated "refined petroleum products" for the
twelve consecutive months ending with the month of August in the year
prior to such immediately preceding year, provided, however, that the
adjusted rate to take effect on January first, nineteen hundred
ninety-six and each January first thereafter shall not increase above or
decrease below the rate in effect on the immediately preceding December
thirty-first by more than five percent.

(4) Notwithstanding any other provision of this article, commencing
January first, nineteen hundred ninety-eight, residual petroleum product
which is "manufacturing gallonage," as such term is defined in
subdivision (m) of section three hundred of this article, shall be
exempt from the measure of the residual petroleum product component of
the tax imposed under this section.

(h) Publication and rounding of rate. (1) The commissioner shall cause
to be published in the section for miscellaneous notices in the state
register, and give other appropriate general notice of, the rate
adjustment calculation and the resulting motor fuel and highway diesel
motor fuel rate, non-highway diesel motor fuel rate and residual
petroleum product rate fixed by this section for the period commencing
on January first, two thousand twelve, and for each calendar year
thereafter, no later than the immediately preceding first day of
December. The calculation and publication of the rates of tax so fixed
by provisions of this section shall not be included within paragraph (a)
of subdivision two of section one hundred two of the state
administrative procedure act relating to the definition of a rule.

(2) The rates determined pursuant to this section shall be rounded to
the nearest one-tenth of one cent.

(i) Doing business, etc. Any petroleum business shall not be deemed to
be doing business, engaging in business, employing capital, owning or
leasing property, or maintaining an office in this state, for the
purposes of this article, by reason of (i) the maintenance of cash
balances with banks or trust companies in this state, or (ii) the
ownership of shares of stock or securities kept in this state, if kept
in a safe deposit box, safe, vault or other receptacle rented for the
purpose, or if pledged as collateral security, or if deposited with one
or more banks or trust companies, or brokers who are members of a
recognized security exchange, in safekeeping or custody accounts, or
(iii) the taking of any action by any such bank or trust company or
broker, which is incidental to the rendering of safekeeping or custodian
service to such petroleum business, or (iv) the maintenance of an office
in this state by one or more officers or directors of the petroleum
business (where such business is a corporation) who are not employees of
the petroleum business if such petroleum business otherwise is not
engaging in business or doing business in this state, and does not
employ capital or own or lease property in this state, or (v) the
keeping of books or records of a petroleum business in this state if
such books or records are not kept by employees of such petroleum
business and such petroleum business does not otherwise engage in
business, do business, employ capital, own or lease property or maintain
an office in this state, or (vi) any combination of the foregoing
activities.

(j) Special provision relating to lack of jurisdiction to tax.
Notwithstanding any provision of law to the contrary, if a person shall
receive any motor fuel in this state with respect to which this state
was without power to impose the tax under this article, and such motor
fuel thereafter becomes subject to the taxing power of this state, then
the person possessing such motor fuel at such time shall be deemed a
petroleum business and be liable for the tax under this article with
respect to such motor fuel and shall make the same reports and returns,
pay the same tax and be subject to all other provisions of this article
relating to petroleum businesses with respect to motor fuel.

(l) Taxes imposed on qualified reservations. In furtherance of the
joint administration of the taxes imposed by article twelve-A of this
chapter and the taxes imposed by this article, the provisions of section
two hundred eighty-four-e of this chapter concerning the sales of motor
fuel and Diesel motor fuel on qualified Indian reservations shall apply
to the payment and pass-through of the petroleum business tax in the
same manner and with the same force and effect as if the provisions of
such section had been incorporated in full into this article, except to
the extent that any such provision is either inconsistent with a
provision of this article or not relevant thereto.

(m) Special rate adjustment for certain vessels. Notwithstanding any
provision of this section to the contrary, the use of non-highway diesel
motor fuel in the engine of a vessel to propel such vessel shall be
subject to tax at the motor fuel and highway diesel motor fuel rate
provided for in this section, and shall be subject to the provisions of
section three hundred one-j of this article, including the adjustment
set forth in paragraph four of subdivision (a) of such section three
hundred one-j. A credit or refund shall be available to the extent tax
paid on gallonage used to propel any such vessel exceeds the amount of
tax due based on the tax rate set forth herein. Provided, however, that
the commissioner shall require such documentary proof to qualify for any
credit or reimbursement provided hereunder as the commissioner deems
appropriate.