N.Y. Tax Law § 1105: Imposition of sales tax

§ 1105. Imposition of sales tax. On and after June first, nineteen

hundred seventy-one, there is hereby imposed and there shall be paid a

tax of four percent upon:

(a) The receipts from every retail sale of tangible personal property,

except as otherwise provided in this article.

(b) (1) The receipts from every sale, other than sales for resale, of

the following: (A) gas, electricity, refrigeration and steam, and gas,

electric, refrigeration and steam service of whatever nature, including

the transportation, transmission or distribution of gas or electricity,

even if sold separately; (B) telephony and telegraphy and telephone and

telegraph service of whatever nature except interstate and international

telephony and telegraphy and telephone and telegraph service and except

any telecommunications service the receipts from the sale of which are

subject to tax under paragraph two of this subdivision; (C) a telephone

answering service; and (D) a prepaid telephone calling service.

(2) The receipts from every sale of mobile telecommunications service

provided by a home service provider, other than sales for resale, that

are voice services, or any other services that are taxable under

subparagraph (B) of paragraph one of this subdivision, sold for a fixed

periodic charge (not separately stated), whether or not sold with other

services.

(3) The tax imposed pursuant to this subdivision is imposed on

receipts from charges for intrastate mobile telecommunications service

of whatever nature in any state if the mobile telecommunications

customer's place of primary use is in this state.

(4) (A) For the purpose of subparagraph (B) of paragraph one of this

subdivision, receipts from the sale of telephony or telephone service

constituting the actual delivery of telephony or telephone service under

a prepaid telephone calling service (for instance, when the receipt is

represented by a debit to a prepaid account) shall be excluded from the

receipts subject to tax under such subparagraph; and (B) for purposes of

subparagraph (B) of paragraph one and paragraph two of this subdivision,

a particular sale of telephony or telephone service to a vendor that

resells such telephony or telephone service as a component of a prepaid

telephone calling service shall be deemed a sale for resale of telephony

or telegraph service.

(c) The receipts from every sale, except for resale, of the following

services:

(1) The furnishing of information by printed, mimeographed or

multigraphed matter or by duplicating written or printed matter in any

other manner, including the services of collecting, compiling or

analyzing information of any kind or nature and furnishing reports

thereof to other persons, but excluding the furnishing of information

which is personal or individual in nature and which is not or may not be

substantially incorporated in reports furnished to other persons, and

excluding the services of advertising or other agents, or other persons

acting in a representative capacity, and information services used by

newspapers, electronic news services, radio broadcasters and television

broadcasters in the collection and dissemination of news, and excluding

meteorological services.

(2) Producing, fabricating, processing, printing or imprinting

tangible personal property, performed for a person who directly or

indirectly furnishes the tangible personal property, not purchased by

him for resale, upon which services are performed.

(3) Installing tangible personal property, excluding a mobile home, or

maintaining, servicing or repairing tangible personal property,

including a mobile home, not held for sale in the regular course of

business, whether or not the services are performed directly or by means

of coin-operated equipment or by any other means, and whether or not any

tangible personal property is transferred in conjunction therewith,

except:

(i) such services rendered by an individual who is engaged directly by

a private home owner or lessee in or about his residence and who is not

in a regular trade or business offering his services to the public; and

(ii) any receipts from laundering, dry-cleaning, tailoring, weaving,

pressing, shoe repairing and shoe shining; and

(iii) for installing property which, when installed, will constitute

an addition or capital improvement to real property, property or land,

as the terms real property, property or land are defined in the real

property tax law as such term capital improvement is defined in

paragraph nine of subdivision (b) of section eleven hundred one of this

chapter; and

(iv) such services rendered with respect to commercial vessels and

property used by or purchased for the use of such vessels, as such

vessels and property are specified in paragraph eight of subdivision (a)

of section eleven hundred fifteen of this article; and

(v) such services rendered with respect to commercial aircraft,

machinery or equipment and property used by or purchased for the use of

such aircraft as such aircraft, machinery or equipment, and property are

specified in paragraph twenty-one of subdivision (a) of section eleven

hundred fifteen of this article; and

(vi) such services rendered with respect to tangible personal property

for use or consumption predominantly either in the production for sale

of tangible personal property by farming or in a commercial horse

boarding operation, or in both, as such tangible personal property is

specified in paragraph six of subdivision (a) of section eleven hundred

fifteen of this article.

(vii) such services rendered with respect to fishing vessels and

property used by or purchased for such vessels as such vessels are

specified in paragraph twenty-four of subdivision (a) of section eleven

hundred fifteen of this article.

(viii) such services rendered with respect to railroad rolling stock

primarily engaged in carrying freight in intrastate, interstate or

foreign commerce, but not including any charge for parts or other

tangible personal property whether such property has become a physical

component part of the property upon which the services are performed or

has been transferred to the purchaser of the services in conjunction

with the performance of the services subject to the tax.

(ix) such services rendered with respect to tangible property used or

consumed directly and predominantly in the production for sale of gas or

oil by manufacturing, processing, generating, assembling, refining,

mining, or extracting.

(x) such services rendered with respect to property described in

paragraph twelve-a of subdivision (a) of section eleven hundred fifteen

of this article.

* (xi) Such services rendered with respect to property described in

paragraph twelve-b of section eleven hundred fifteen of this article.

* NB Expired September 1, 2003

Provided, however, that nothing contained in this paragraph three

shall be construed to exclude from tax under this paragraph or under

subdivision (b) of this section any charge, made by a person furnishing

service subject to tax under subdivision (b) of this section, for

installing property at the premises of a purchaser of such a taxable

service for use in connection with such service.

(4) Storing all tangible personal property not held for sale in the

regular course of business and the rental of safe deposit boxes or

similar space.

(5) Maintaining, servicing or repairing real property, property or

land, as such terms are defined in the real property tax law, whether

the services are performed in or outside of a building, as distinguished

from adding to or improving such real property, property or land, by a

capital improvement as such term capital improvement is defined in

paragraph nine of subdivision (b) of section eleven hundred one of this

article, but excluding (i) services rendered by an individual who is not

in a regular trade or business offering his services to the public, (ii)

services rendered directly with respect to real property, property or

land used or consumed directly and predominantly in the production for

sale of gas or oil by manufacturing, processing, generating, assembling,

refining, mining, or extracting, (iii) services rendered with respect to

real property, property or land used or consumed predominantly either in

the production of tangible personal property, for sale, by farming or in

a commercial horse boarding operation, or in both and (iv) services of

removal of waste material from a facility regulated as a transfer

station or construction and demolition debris processing facility by the

department of environmental conservation, provided that the waste

material to be removed was not generated by the facility.

(6) Providing parking, garaging or storing for motor vehicles by

persons operating a garage (other than a garage which is part of

premises occupied solely as a private one or two family dwelling),

parking lot or other place of business engaged in providing parking,

garaging or storing for motor vehicles provided, however, this paragraph

shall not apply to such facilities owned and operated by a public

corporation, as defined by section sixty-six of the general construction

law, other than a public benefit corporation, as defined by such section

sixty-six, created by interstate compact or at least half of whose

members are appointed by the governor, or any agency or instrumentality

of a municipal corporation or district corporation as defined by such

section sixty-six. Provided, however, receipts for such services paid to

a homeowner's association by its members or receipts paid by members of

a homeowner's association to a person leasing the parking facility from

the homeowner's association shall not be subject to the tax imposed by

this paragraph. For purposes of this paragraph, a homeowner's

association is an association (including a cooperative housing or

apartment corporation) (i) the membership of which is comprised

exclusively of owners or residents of residential dwelling units,

including owners of units in a condominium, and including shareholders

in a cooperative housing or apartment corporation, where such units are

located in a defined geographical area such as a housing development or

subdivision and (ii) which owns or operates a garage, parking lot or

other place of business engaged in providing parking, garaging or

storing for motor vehicles located in such area for use (whether or not

exclusive) by such owners or residents.

(7) Interior decorating and designing services, (whether or not in

conjunction with the sale of tangible personal property), by whomsoever

performed, including interior decorators and designers, architects or

engineers; notwithstanding the foregoing, such services shall not

include services which consist of the practice of architecture, as

defined in section seventy-three hundred one of the education law, or

the practice of engineering, as defined in section seventy-two hundred

one of the education law, if the services are performed by an architect

or engineer having a license or permit under the education law.

(8) Protective and detective services, including, but not limited to,

all services provided by or through alarm or protective systems of every

nature, including, but not limited to, protection against burglary,

theft, fire, water damage or any malfunction of industrial processes or

any other malfunction of or damage to property or injury to persons,

detective agencies, armored car services and guard, patrol and security

services of every nature other than the performance of such services by

a security officer licensed by the New York Waterfront Commission or the

waterfront commission of New York harbor, whether or not tangible

personal property is transferred in conjunction therewith.

(9) (i) The furnishing or provision of an entertainment service or of

an information service (but not an information service subject to tax

under paragraph one of this subdivision), which is furnished, provided,

or delivered by means of telephony or telegraphy or telephone or

telegraph service (whether intrastate or interstate) of whatever nature,

such as entertainment or information services provided through 800 or

900 numbers or mass announcement services or interactive information

network services. Provided, however, that in no event (i) shall the

furnishing or provision of an information service be taxed under this

paragraph unless it would otherwise be subject to taxation under

paragraph one of this subdivision if it were furnished by printed,

mimeographed or multigraphed matter or by duplicating written or printed

matter in any other manner nor (ii) shall the provision of cable

television service to customers be taxed under this paragraph.

(ii) Notwithstanding the rate and date set forth in the opening

undesignated paragraph of this section and notwithstanding the opening

undesignated paragraph of this subdivision, on and after September

first, nineteen hundred ninety-three, in addition to any other tax

imposed under this section, and in addition to any other tax or fee

imposed under any other provision of law, there is hereby imposed and

there shall be paid an additional tax at the rate of five percent upon

the receipts which are subject to tax under subparagraph (i) of this

paragraph on the furnishing or provision of an entertainment or

information service which is received by the customer exclusively in an

aural manner. Such additional tax shall not be imposed by section eleven

hundred seven, eleven hundred eight or eleven hundred nine of this

article and shall not be included among the taxes authorized to be

imposed pursuant to the authority of article twenty-nine of this

chapter.

(10) Transportation service, whether or not any tangible personal

property is transferred in conjunction therewith, and regardless of

whether the charge is paid in this state or out of state so long as the

service is provided in this state.

Wages, salaries and other compensation paid by an employer to an

employee for performing as an employee the services described in

paragraphs (1) through (9) of this subdivision (c) are not receipts

subject to the taxes imposed under such subdivision.

(d) (i) The receipts from every sale, other than sales for resale, of

beer, wine or other alcoholic beverages or any other drink of any

nature, or from every sale, other than sales for resale, of food and

drink of any nature or of food alone, when sold in or by restaurants,

taverns or other establishments in this state, or by caterers, including

in the amount of such receipts any cover, minimum, entertainment or

other charge made to patrons or customers (except those receipts taxed

pursuant to subdivision (f) of this section):

(1) in all instances where the sale is for consumption on the premises

where sold;

(2) in those instances where the vendor or any person whose services

are arranged for by the vendor, after the delivery of the food or drink

by or on behalf of the vendor for consumption off the premises of the

vendor, serves or assists in serving, cooks, heats or provides other

services with respect to the food or drink; and

(3) in those instances where the sale is made through a vending

machine that is activated by use of coin, currency, credit card or debit

card (except the sale of drinks in a heated state made through such a

vending machine) or is for consumption off the premises of the vendor,

except where food (other than sandwiches) or drink or both are (A) sold

in an unheated state and, (B) are of a type commonly sold for

consumption off the premises and in the same form and condition,

quantities and packaging, in establishments which are food stores other

than those principally engaged in selling foods prepared and ready to be

eaten.

(ii) The tax imposed by this subdivision shall not apply to:

(A) food or drink which is sold to an air line for consumption while

in flight;

(B) food or drink sold to a student of a nursery school, kindergarten,

elementary or secondary school at a restaurant or cafeteria located on

the premises of such a school, or food or drink, other than beer, wine,

or other alcoholic beverages, sold at a restaurant, tavern or other

establishment located on the premises of a college, university or a

school (other than a nursery school, kindergarten, elementary or

secondary school) to a student enrolled therein who purchases such food

or drink under a contractual arrangement whereby the student does not

pay cash at the time such student is served, provided the school,

college or university described in this subparagraph is operated by an

exempt organization described in subdivision (a) of section eleven

hundred sixteen, or is created, incorporated, registered, or licensed by

the state legislature or pursuant to the education law or the

regulations of the commissioner of education, or is incorporated by the

regents of the university of the State of New York or with their consent

or the consent of the commissioner of education as provided in section

two hundred sixteen of the education law; provided, further, that the

contractual arrangement between an enrolled student and a college,

university or school may include a provision permitting such enrolled

student to donate unused meal funds, meals or meal points to other

students enrolled in such school, college or university who are facing

food insecurity through a program operated by such school, college or

university directly or through a contract with a nonprofit organization

that is exempt from federal taxation pursuant to subsection (c) of

section five hundred one of the internal revenue code, provided that no

part of the donated funds, meals or meal points inure to the benefit of

such school, college, university or nonprofit organization; and

(C) Sales by a brewery licensed under section fifty-one of the

alcoholic beverage control law, or a farm brewery licensed under section

fifty-one-a of such law, of no more than four samples of beer not

exceeding four fluid ounces each, and each sample shall be a different

beer than the others. Only a customer's first purchase during each

calendar day at each licensed entity shall be exempt under this

subparagraph.

(e) (1) The rent for every occupancy of a room or rooms in a hotel or

short term rental unit in this state, except that the tax shall not be

imposed upon (i) a permanent resident, or (ii) where the rent is not

more than at the rate of two dollars per day.

(2) Except as provided in subdivision (r) of section eleven hundred

eleven of this part, when occupancy is provided, for a single

consideration, with property, services, amusement charges, or any other

items, the separate sale of which is not subject to tax under this

article, and the rent paid for such occupancy does not qualify for the

exemption in subdivision (kk) of section eleven hundred fifteen of this

article, the entire consideration shall be treated as rent subject to

tax under paragraph one of this subdivision; provided, however, that

where the amount of the rent for occupancy is stated separately from the

price of such property, services, amusement charges, or other items, on

any sales slip, invoice, receipt, or other statement given the occupant,

and such rent is reasonable in relation to the value of such property,

services, amusement charges or other items, only such separately stated

rent will be subject to tax under paragraph one of this subdivision.

(f) (1) Any admission charge where such admission charge is in excess

of ten cents to or for the use of any place of amusement in the state,

except charges for admission to combative sports which charges are taxed

under any other law of this state, or dramatic or musical arts

performances, or live circus performances, or motion picture theaters,

and except charges to a patron for admission to, or use of, facilities

for sporting activities in which such patron is to be a participant,

such as bowling alleys and swimming pools. For any person having the

permanent use or possession of a box or seat or a lease or a license,

other than a season ticket, for the use of a box or seat at a place of

amusement, the tax shall be upon the amount for which a similar box or

seat is sold for each performance or exhibition at which the box or seat

is used or reserved by the holder, licensee or lessee, and shall be paid

by the holder, licensee or lessee.

(2) (i) The dues paid to any social or athletic club in this state if

the dues of an active annual member, exclusive of the initiation fee,

are in excess of ten dollars per year, and on the initiation fee alone,

regardless of the amount of dues, if such initiation fee is in excess of

ten dollars. Where the tax on dues applies to any such social or

athletic club, the tax shall be paid by all members, other than honorary

members, thereof regardless of the amount of their dues, and shall be

paid on all dues or initiation fees for a period commencing on or after

August first, nineteen hundred sixty-five. In the case of a life

membership, the tax shall be upon the amount paid as life membership

dues, however, a life member, other than an honorary member, paying an

annual sales tax, based on the dues of an active annual member, shall

continue such payments until the total amount of such tax paid is equal

to the amount of tax that would have otherwise been due had the tax been

imposed at the time such paid life membership has been purchased and at

the then applicable rate.

(ii) Dues and initiation fees paid to the following shall not be

subject to the tax imposed by this paragraph:

(A) A fraternal society, order or association operating under the

lodge system;

(B) Any fraternal association of students of a college or university;

(C) A homeowners association. For purposes of this subparagraph, a

homeowners association is an association (including a cooperative

housing or apartment corporation) (I) the membership of which is

comprised exclusively of owners or residents of residential dwelling

units, including owners of units in a condominium, and including

shareholders in a cooperative housing or apartment corporation, where

such units are located in a defined geographical area such as a housing

development or subdivision and (II) which operates social or athletic

facilities located in such area for use (whether or not exclusive) by

such owners or residents.

(3) The amount paid as charges of a roof garden, cabaret or other

similar place in the state.