N.Y. Tax Law § 182 — Additional franchise tax on certain oil companies

§ 182. Additional franchise tax on certain oil companies. 1.\nNotwithstanding any other provision of this chapter, or of any other\nlaw, for taxable years ending on or after June eighteenth, nineteen\nhundred eighty but before December thirty-first, nineteen hundred\neighty-three, an annual tax is hereby imposed upon every oil company\nequal to two per centum of its gross receipts from all sources, or the\nportion thereof allocated within the state as hereinafter provided, for\nthe privilege of exercising its corporate franchise, or of doing\nbusiness, or of employing capital, or of owning or leasing property in\nthis state in a corporate or organized capacity, or of maintaining an\noffice in this state, for all or any part of each of its taxable years.\nIn no event shall the tax imposed by this section be less than two\nhundred fifty dollars.\n 2. As used in this section: (a) The term "oil company" means every\nvertically integrated petroleum corporation or affiliate thereof formed\nfor or engaged in the business of importing or causing to be imported\ninto this state for sale in this state, extracting, producing, refining,\nmanufacturing, compounding or selling petroleum. For purposes of this\nsection, petroleum shall include, but shall not be limited to, gasoline,\naviation fuel, kerosene, diesel motor fuel, benzol, distillate fuels,\nresidual oil, crude oil or any similar product; a vertically integrated\npetroleum corporation or affiliate thereof means any domestic or foreign\ncorporation, which, either for its own account or with affiliates: (i)\nextract or produces in excess of one hundred thousand average barrels of\ncrude oil per day, (ii) has a refining capacity in excess of one hundred\nseventy-five thousand average barrels of crude oil per day, and (iii)\nmarket or distributors for marketing gasoline, motor fuels, fuel oils,\nand similar products derived from the refining or manufacture of crude\noil, whether such activities are carried on directly or indirectly in\nconjunction with or by means of an affiliate or affiliates; and\naffiliate means a corporation in which more than fifty per centum of the\nnumber of shares of stock entitling the holders thereof to vote for the\nelection of directors or trustees is owned, directly or indirectly, by\nthe vertically integrated petroleum corporation or affiliate thereof.\n (b) The term "gross receipts" means all receipts, whether from within\nor without the United States, whether in cash, credits or property of\nany kind or nature, without any deduction therefrom on account of the\ncost of the property sold, the cost of materials used, labor or\nservices, or other costs, interest or discount paid, or any other\nexpense whatsoever but excluding such receipts which constitute\nconsideration received by the oil company for the issuance or sale of\nshares of its capital stock or money lent to such company. Receipts\nreceived by reason of any sale of fuel oil (excluding diesel motor fuel)\nused for residential purposes shall not be included in gross receipts.\nProvided, however, gross receipts shall not include the receipts from\nany sale for resale to a purchaser which is an oil company subject to\ntax under this section. It shall be presumed that no receipts are\nreceipts from a sale for resale to such purchaser unless such purchaser\nfurnishes the oil company with a resale certificate in such form and\nunder such terms and conditions as the tax commission may prescribe and\nsuch certificate is accepted in good faith by such oil company.\n (c) The term "corporation" includes a corporation, joint stock company\nor association and any business conducted by a trustee or trustees\nwherein interest or ownership is evidenced by certificate or other\nwritten instrument.\n (d) The term "taxable year" means the oil company's taxable year for\nfederal income tax purposes, or the part thereof during which such oil\ncompany is subject to tax under this section.\n 3. (a) The portion of the gross receipts of an oil company to be\nallocated within the state shall be determined as follows: multiply its\ngross receipts by an allocation percentage to be determined by\nascertaining the percentage which the receipts of such oil company,\ncomputed on the cash or accrual basis according to the method of\naccounting used in the computation of its gross receipts, arising during\nthe period covered by its report from (1) sales of its tangible personal\nproperty where shipments are made to points within this state, (2)\nservices performed within the state, (3) rentals from property situated,\nand royalties from the use of patents or copyrights, within the state,\nand (4) all other business receipts earned within the state, bear to the\ntotal amount of the oil company's receipts, similarly computed, arising\nduring such period from all sales of its tangible personal property,\nservices, rentals, royalties and all other business transactions,\nwhether within or without the state. Receipts received by reason of any\nsale of fuel oil used for residential purposes and receipts from any\nsale for resale to a purchaser which is an oil company subject to tax\nunder this section shall be included as a receipt in the computation of\nthe allocation percentage.\n (b) Where the tax commission decides that with respect to a certain\noil company the method prescribed above does not fairly and equitably\nreflect its gross receipts from all sources within the state, the tax\ncommission shall prescribe methods of allocation which fairly and\nequitably reflect gross receipts from all sources within the state.\n 4. Every oil company subject to tax under this section shall keep such\nrecords of its business in such form as the tax commission may require,\nand such records shall be preserved for a period of three years, except\nthat the tax commission may consent to their destruction within that\nperiod or may require that they be kept longer.\n 5. Every oil company subject to tax hereunder shall annually file on\nor before the fifteenth day of the third month following the close of\nits taxable year a return which shall state the gross receipts for the\nperiod covered by such return. Returns shall be filed with the tax\ncommission in a form prescribed by it setting forth such information as\nthe tax commission may prescribe. Every oil company subject to tax\nhereunder which ceases to exercise its franchise or to be subject to the\ntax imposed by this section shall transmit to the tax commission a\nreturn on the date of such cessation or at such other time as the tax\ncommission may require covering each year or period for which no return\nwas theretofore filed. Notwithstanding the foregoing provisions of this\nsubdivision, the tax commission may require any oil company to file an\nannual return, which shall contain any data specified by it, regardless\nof whether the oil company is subject to tax under this section.\n 6. If any provision of this section conflicts with any other provision\ncontained in this article, the provisions of this section shall control,\nbut the provisions of this article which do not conflict with the\nprovisions of this section shall apply with respect to the taxes under\nthis section, insofar as they are, or may be made, applicable.\n 7. Any corporation which is subject to tax under section one hundred\neighty-three, one hundred eighty-four, one hundred eighty-five or one\nhundred eighty-six of this chapter shall not be subject to tax under\nthis section.\n 8. An oil company which is not incorporated or organized under the\nlaws of this state shall not be deemed to be doing business, employing\ncapital, owning or leasing property, or maintaining an office in this\nstate, for the purposes of this section, by reason of (a) the\nmaintenance of cash balances with banks or trust companies in this\nstate, or (b) the ownership of shares of stock or securities kept in\nthis state, if kept in a safe deposit box, safe, vault or other\nreceptacle rented for the purpose, or if pledged as collateral security,\nor if deposited with one or more banks or trust companies, or brokers\nwho are members of a recognized security exchange, in safekeeping or\ncustody accounts, or (c) the taking of any action by any such bank or\ntrust company or broker, which is incidental to the rendering of\nsafekeeping or custodian service to such oil company, or (d) the\nmaintenance of an office in this state by one or more officers or\ndirectors of the oil company who are not employees of the oil company if\nthe company otherwise is not doing business in this state, and does not\nemploy capital or own or lease property in this state, or (e) the\nkeeping of books or records of an oil company in this state if such\nbooks or records are not kept by employees of such oil company and such\noil company does not otherwise do business, employ capital, own or lease\nproperty or maintain an office in this state, or (f) any combination of\nthe foregoing activities.\n 9. Any receiver, referee, trustee, assignee or other fiduciary, or any\nofficer or agent appointed by any court, who conducts the business of\nany oil company shall be subject to the tax imposed by this section in\nthe same manner and to the same extent as if the business were conducted\nby the agents or officers of such oil company. A dissolved oil company\nwhich continues to conduct business shall also be subject to the tax\nimposed by this section.\n 10. Where a false or fraudulent resale certificate has been furnished\nto an oil company, the corporation furnishing such certificate shall be\nsubject to a penalty equal to three per centum of the gross receipts\nwhich would have otherwise been taxable to such oil company if such\ncertificate had not been furnished to such company. Such penalty shall\nbe assessed, collected and paid in the same manner as the addition to\ntax with respect to a deficiency due to fraud provided for in subsection\n(e) of section one thousand eighty-five of this chapter is assessed,\ncollected and paid.\n 11. If any amount of tax imposed by this section is not paid prior to\nSeptember first, nineteen hundred eighty-three, interest on such amount\nat double the underpayment rate set by the commissioner of taxation and\nfinance pursuant to section one thousand ninety-six of this chapter, or\nif no rate is set, at the rate of twelve percent per annum shall be paid\nfor the period from such date to the date paid, whether or not any\nextension of time for payment was granted; provided, however, that the\nrate charged shall not exceed the maximum rate allowed pursuant to\nsection 190.42 of the penal law. This subdivision shall apply with\nrespect to taxes, or any portion thereof, which are overdue on or after\nSeptember first, nineteen hundred eighty-three and shall apply only with\nrespect to interest computed or computable for periods or portions of\nperiods occurring on or after such date.\n 12. All taxes, interest and penalties collected or received by the tax\ncommission under the taxes and penalties imposed by this section shall\nbe deposited daily in one account with such responsible banks, banking\nhouses or trust companies as may be designated by the comptroller, to\nthe credit of the comptroller. Such an account may be established in one\nor more of such depositories. Such deposits shall be kept separate and\napart from all other money in the possession of the comptroller. The\ncomptroller shall require adequate security from all such depositories.\nOf the total revenue collected or received under this section, the\ncomptroller shall retain in his hands such amount as the commissioner of\ntaxation and finance may determine to be necessary for refunds under\nthis section, out of which amount the comptroller shall pay any refunds\nto which oil companies shall be entitled under the provisions of this\nsection. After reserving the amount required to pay such refunds, the\ncomptroller shall deposit all remaining revenue pursuant to the\nprovisions of subdivision one of section one hundred seventy-one-a of\nthis chapter.\n