N.Y. Comp. Codes R. & Regs. tit. 20 § 491.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 491.2 - Who should apply for licenses and decals

Tax Law, §§ 521, 522, 526(d) and 528

(a)

(1) Generally, an application for a fuel use tax license and decal(s) must be made by any carrier who operates or will be operating a qualified motor vehicle upon the public highways of New York State, provided such qualified motor vehicle is not exempt from the provisions of article 21-A of the Tax Law. Many qualified motor vehicles that are subject to the provisions of article 21-A of such law are, for varying periods of time, leased to others, interchanged with qualified motor vehicles belonging to others or, in some other manner, used or controlled by persons other than the owners. Under the Tax Law, the owner of a qualified motor vehicle and any other person having a lawful use or control, or a right to the use or control of a qualified motor vehicle are each carriers, and are jointly and severally liable for the fuel use tax. Moreover, every carrier must apply to the department or the carrier's base jurisdiction for a fuel use tax license and decal(s) for each qualified motor vehicle operated or to be operated by the carrier on the public highways of New York State.

(2)

(i) Except as provided in paragraph (5) of this subdivision, to avoid the issuance of numerous licenses and decals for the same qualified motor vehicles, if a lessor engaged in the business of leasing or renting qualified motor vehicles without drivers for compensation to lessees has already secured an appropriate fuel use tax license and decal(s) for the qualified motor vehicle, any carrier operating such qualified motor vehicle under a lease or other agreement need not obtain a license and decal(s). A carrier operating a qualified motor vehicle under a lease or other agreement covering a period of 30 days or more may obtain a license and decal(s) for such qualified motor vehicle and be deemed to be the licensee. However, if the lease or other agreement is for 29 days or less, the lessor will be the licensee, unless the lessee has a written contract that provides that the lessee will report and pay the fuel use tax on the qualified motor vehicle subject to such lease and the lessor has a copy of the lessee's IFTA fuel tax license which is valid for the term of the lease. In such case, the lessee must obtain a license and decal(s) for such qualified motor vehicle.

(ii) Where a carrier is using independent contractors under leases of 30 days or more, the lessor and lessee will be given the option of designating which party will obtain the appropriate license and decal(s) for such qualified motor vehicle and report and pay the fuel use tax. In the case of a carrier using independent contractors under leases of 29 days or less, the lessor is responsible for reporting and paying the fuel use tax on the subject qualified motor vehicle and must obtain the appropriate license and decal(s).

(3)

(i) Where any carrier other than the owner of a qualified motor vehicle obtains a fuel use tax license and decal(s), such decal(s) will be valid only during the term of the lease or other agreement, or any immediate renewal or extension thereof, that authorizes the use or control of such qualified motor vehicle unless such decal(s) otherwise expires or is suspended or revoked. However, the licensee may retain such license until such license expires or is suspended or revoked.

(ii) See section 491.8(d) of this Part regarding surrender of licenses and destruction of decals in the case of qualified motor vehicles operated by carriers other than the owners.

(4) In the event that the owner of a qualified motor vehicle conveys the use or control of the qualified motor vehicle to another carrier and such carrier in turn conveys that authority to a third party, the latter conveyance and any subsequent conveyances shall also be subject to the provisions of this subdivision.

(5) Pursuant to the joint administration provisions of section 528(a) of article 21-A of the Tax Law, where a carrier operating exclusively in New York State or a carrier engaged in interstate commerce not required to obtain an IFTA license, obtains a New York State fuel use tax license in accordance with the provisions of section 491.3(c) of this Part (combined highway use tax permit/fuel use tax license), the highway use tax licensing provisions with respect to leases (see section 473.8 of this Title) shall be applicable to such carrier.

(b) In general, a person is considered to be operating a qualified motor vehicle where such person actually drives the qualified motor vehicle or where an employer-employee relationship exists between such person and the driver of the qualified motor vehicle. Whether a person is deemed to be operating a qualified motor vehicle and whether the extent of authority necessary to establish an employer-employee relationship is present in any given case will depend upon the particular facts in such case. See section 473.8(e) through (i) of this Title, for some tests used for determining whether an employer-employee relationship exists.

(c)

(1) A dealer or other person who lawfully operates a qualified motor vehicle under a dealer or transporter registration is deemed not to be a carrier with respect to such qualified motor vehicle for purposes of the fuel use tax if the qualified motor vehicle is operated without a load and operated for the purposes described in subparagraphs (i) and (ii) of this paragraph. Therefore, except as provided in paragraph (2) of this subdivision, such dealer or other person need not apply for a fuel use tax license and decal(s) under such circumstances. The fact that a device drawn by a qualified motor vehicle may be operated under a dealer/transporter registration is not relevant in determining if the qualified motor vehicle drawing such device is required to have a fuel use tax license and decal(s).

(i) Transporter plates may be used for the limited operation of qualified motor vehicles owned or controlled by a transporter for the following purposes:

(a) weighing, testing, dismantling, transporting or delivering a qualified motor vehicle;

(b) moving a qualified motor vehicle in connection with making installations thereon or improvements thereto;

(c) foreclosure or repossession of a qualified motor vehicle; or

(d) demonstrating a qualified motor vehicle owned by a manufacturer.

(ii) Dealer plates may be used for all purposes for which transporter plates may be used and, in addition, dealer plates may be used for the operation of qualified motor vehicles owned or controlled by a dealer and held for sale or demonstration.

(2) A person whose base jurisdiction is New York State and who operates under transporter or dealer plates, as described in paragraph (1) of this subdivision, may be required to obtain an IFTA license and decals for purposes of reporting and paying the fuel use taxes imposed by other IFTA jurisdictions in which that person operates.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 491.2