N.Y. Tax Law § 1111: Special rules for computing receipts and consideration

§ 1111. Special rules for computing receipts and consideration. (a)

The retail sales tax imposed under subdivision (a) of section eleven

hundred five of this part and the compensating use tax imposed under

section eleven hundred ten of this part, when computed in respect to

tangible personal property wherever manufactured, processed or assembled

and used by such manufacturer, processor or assembler in the regular

course of business within this state, shall be based on the price at

which items of the same kind of tangible personal property are offered

for sale by him, except to the extent otherwise provided in this section

or section eleven hundred ten of this part.

(b) Tangible personal property, which has been purchased by a resident

of New York state outside of this state for use outside of this state

and subsequently becomes subject to the compensating use tax imposed

under this article, shall be taxed on the basis of the purchase price of

such property, provided, however:

(1) That where a taxpayer affirmatively shows that the property was

used outside such state by him for more than six months prior to its use

within this state, such property shall be taxed on the basis of current

market value of the property at the time of its first use within this

state. The value of such property, for compensating use tax purposes,

may not exceed its cost.

(2) That the compensating use tax on such tangible personal property

brought into this state (other than for complete consumption or for

incorporation into real property located in this state) and used in the

performance of a contract or sub-contract within this state by a

purchaser or user for a period of less than six months may be based, at

the option of the taxpayer, on the fair rental value of such property

for the period of use within this state.

(c) For the amount and timing of tax in respect to property leased, or

sold under a contract deferring payments, see section eleven hundred

thirty-two. For the amount and timing of tax in respect to certain

leased property, see subdivision (i) of this section.

(d) The commissioner is authorized and empowered to prescribe and,

from time to time, to amend schedules of the amount of tax to be

collected upon each gallon of motor fuel and diesel motor fuel sold at

retail and upon each gallon of such fuel subject to the tax required to

be prepaid pursuant to section eleven hundred two of this article or

upon each package of cigarettes sold at retail and upon each package of

cigarettes subject to the tax required to be prepaid under section

eleven hundred three of this article, as the commissioner shall

determine is approximately equal to the average rate otherwise

applicable, considering the regional average retail sales prices of such

fuel, the amount of the prepaid tax per package of cigarettes in

accordance with subdivision (j) of this section and, in the case of a

sale at retail, the ordinary price ranges for such fuel and cigarettes,

in lieu of the regular schedule based on total receipts. Such rates

shall be uniform in each county but may vary as between counties,

depending on the general price ranges in effect in each county, but

counties wholly within a city shall have a uniform rate. If a political

subdivision of a county imposes a retail sales and use tax, separate

rates may be prescribed for it. Such schedules with reference to the tax

required to be prepaid on motor fuel and diesel motor fuel pursuant to

section eleven hundred two of this article or the tax required to be

prepaid on cigarettes under section eleven hundred three of this article

may fix the rate per gallon or per package of cigarettes in multiples of

one-tenth of one cent, depending, in the case of such fuel, on the

regional average retail sales prices where such fuel is, as the case may

be, imported, manufactured, sold or used. Such schedules with reference

to such fuel or cigarettes sold at retail may fix the rate per gallon or

per package, as the case may be, in multiples of one-tenth of one cent

depending on the price at which such fuel or cigarettes are sold. Where

schedules fixing the rate per gallon in multiples of one-tenth of one

cent have been promulgated, the price shown on any metered pump or other

dispensing device from which such fuel is sold to a purchaser of such

fuel, to be delivered directly to a vehicle propelled by any power other

than muscular, shall include the tax at the rate so fixed, and the

commissioner may by regulation prescribe the manner in which the amount

of tax shall be shown for the information of customers by signs or

placards on the premises where such fuel is sold. When determining tax

required to be collected on the retail sale of motor fuel or diesel

motor fuel or cigarettes, the receipts on which tax is computed shall

not include the amount of tax required to be prepaid pursuant to section

eleven hundred two of this article with respect to such fuel or pursuant

to section eleven hundred three of this article with respect to such

cigarettes.

(e) (1) There are hereby created and established within the state

three regions for purposes of the payment of the tax imposed by section

eleven hundred two of this article. (i) the first region shall consist

of the localities included in the metropolitan commuter transportation

district created and established pursuant to section twelve hundred

sixty-two of the public authorities law, excluding all localities

included in the counties of Nassau and Suffolk. (ii) The second region

shall consist of the localities included in the counties of Nassau and

Suffolk. (iii) The third region shall consist of the area of the state

outside the regions referred to in subparagraphs (i) and (ii) of this

paragraph.

(2) (i) Where the motor fuel is imported, manufactured or sold in, or

diesel motor fuel is sold or used in the region referred to in

subparagraph (i) of paragraph one of this subdivision, the tax required

to be prepaid pursuant to section eleven hundred two of this article on

each gallon of such fuel shall be sixteen cents.

(ii) Where motor fuel is imported, manufactured or sold in, or diesel

motor fuel is sold or used in the region referred to in subparagraph

(ii) of paragraph one of this subdivision, the tax required to be

prepaid pursuant to section eleven hundred two of this article on each

gallon of such fuel shall be sixteen cents.

(iii) Where motor fuel is imported, manufactured or sold in, or diesel

motor fuel is sold or used in the region referred to in subparagraph

(iii) of paragraph one of this subdivision, the tax required to be

prepaid pursuant to section eleven hundred two of this article on each

gallon of such fuel shall be fifteen cents.

(3) When a wholesaler of motor fuel sells motor fuel in a region, as

defined in paragraph one of this subdivision, different from the region

in which such motor fuel was purchased:

(i) if the region in which it sells the motor fuel has a higher

prepaid rate as set forth in this subdivision than the region in which

the wholesaler purchased the motor fuel in, the wholesaler shall pay to

the department the difference in the rates for the gallonage sold.

(ii) if the region in which it sells the motor fuel has a lower

prepaid rate as set forth in this subdivision than the region in which

the wholesaler purchased the motor fuel, the wholesaler shall be

entitled to a credit or refund for the difference in the rates for the

gallonage sold.

(4) The commissioner is authorized to adjust the rates in paragraph

two of this subdivision and shall prescribe a schedule of such rates for

each region described in paragraph one of this subdivision as provided

in this paragraph.

(i) The schedule required by this paragraph shall be reviewed

semiannually during the months of April and October of each year,

beginning in October, two thousand seventeen. The commissioner shall

determine a tentative rate of tax that would be required to be prepaid

pursuant to section eleven hundred two of this article on each gallon of

motor fuel or diesel motor fuel sold or used by multiplying the regional

average retail sales prices for such fuel for each region described in

paragraph one of this subdivision by a number that is seventy-five

percent of the average local sales tax rate in each such region and

adding to the product thereof the taxes imposed by paragraphs one and

two of subdivision (m) of this section. The regional average retail

sales price shall be determined for purposes of this subdivision using

data regarding sales prices, which shall include, but not be limited to,

sales prices as compiled by government or industry surveys and sources,

taking into consideration with respect to motor fuel, the volumes and

prices of unleaded motor fuels, including reformulated or like motor

fuels, sold in this state and with respect to both motor fuel and diesel

motor fuel, the volume and prices of such fuels sold at full service and

self-service pumps for such fuels, during an immediately preceding

period of up to twelve months ending the last day of March in the case

of the April semiannual review and ending the last day of September in

the case of the October semiannual review; provided, however, that the

regional average retail sales prices for both motor fuel and diesel

motor fuel shall represent the retail sales prices upon which the tax

under this article and pursuant to the authority of article twenty-nine

of this chapter is computed (including all federal and state and any

local taxes included in such price) for such period.

(ii) If upon such review, it is determined that the tentative rate of

tax that would be required to be prepaid for motor fuel or diesel motor

fuel in any of the regions described in paragraph one of this

subdivision would increase or decrease the rate for such region then in

effect by two or more cents per gallon, the commissioner shall adjust

such rate to be equal to the tentative rate, which shall take effect on

the first day of June or the first day of December, respectively.

Provided, however, the commissioner shall set the rate of tax required

to be prepaid in the region described in subparagraph (ii) of paragraph

one of this subdivision equal to the rate set forth in subparagraph (i)

of such paragraph, unless the regional average retail sales price in the

metropolitan commuter transportation district exceeds four dollars per

gallon. In such event, the commissioner is authorized to establish a

separate rate in the region described in such subparagraph (ii) and

shall compute such rate by multiplying the regional average retail sales

prices for motor fuel and diesel motor fuel in such region by a number

that is eighty-five percent of the average local sales tax rate in such

region and adding to the product thereof the taxes imposed by paragraphs

one and two of subdivision (m) of this section.

(iii) The commissioner shall cause to be published on the department's

website the schedule of rates and the regional average retail sales

prices of motor fuel and diesel motor fuel fixed by this section, no

later than ten days prior to the effective date of such rates.

Notwithstanding any other provision of law, the calculation and

publication of the rates so fixed by the 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.

(5) Where a new rate of tax required to be prepaid for motor fuel or

diesel motor fuel is determined by the commissioner, (i) if such new

rate is less than the rate then in effect, on the date the rate becomes

effective (A) a registered distributor shall be entitled to a credit in

an amount equal to the difference between the amount of the prepaid tax

paid or incurred by him or her with respect to motor fuel which he or

she imported and which he or she has in inventory at the time such new

rate becomes effective and the amount of tax which would be due on such

inventory if the prepaid tax were calculated based on such new average

price for the region in which such motor fuel was imported and (B) such

inventory shall then be deemed to have been taxed based on the rate and

all certifications of tax payment given by the distributor with respect

to motor fuel in such inventory shall indicate a pass through of the

prepaid tax based on such new price, (ii) if such new rate is greater

than the existing rate, on the date such new rate becomes effective (A)

such distributor shall become liable to pay an additional tax equal to

the difference between the amount of tax which would be due with respect

to motor fuel which he or she imported and which he or she has in

inventory at the time such new rate becomes effective if the prepaid tax

on such motor fuel were calculated based on such new average price for

the region in which such motor fuel was imported and the amount of

prepaid tax paid or actually incurred by such distributor with respect

to such motor fuel and (B) such inventory shall then be deemed to have

been taxed based on the new rate and all certifications of tax payment

given by the distributor with respect to motor fuel in such inventory

shall indicate a pass through of the prepaid tax based on such new rate.

Such credit shall be allowed with respect to or such tax shall be paid

with the return covering the month immediately preceding the month in

which such new rate becomes effective. Any carryover credit may be

applied to subsequent periods. The amount to be reported as additional

tax shall be paid and disposed of in the same manner as the tax required

to be prepaid by section eleven hundred two of this article. Such

additional tax shall be determined, assessed, collected and enforced in

the same manner as the tax required to be prepaid by section eleven

hundred two of this article.

(f) The retail sales tax imposed under subdivision (a) of section

eleven hundred five and the compensating use tax imposed under section

eleven hundred ten, when computed in respect to a new mobile home, shall

be computed on seventy percent of the receipts or consideration given

therefor by the purchaser or user.

(g) The sale of race horses made through claiming races within the

state, shall be subject to sales tax but only on such portions of the

total purchase price that exceed the highest of any prior purchase

prices paid for the same horse during the same calendar year within the

state. Where no previous purchases have been made within a calendar

year, the full purchase price shall be taxable. Officials of all race

tracks in the state shall maintain and make available, upon reasonable

request, accurate and detailed lists of such sales.

(h) Receipts subject to tax under subdivision (a) of section eleven

hundred five on retail sales of cigarettes and tobacco products and

consideration given or contracted to be given for cigarettes and tobacco

products the uses of which are subject to tax under section eleven

hundred ten shall be deemed to include any tax imposed on cigarettes and

tobacco products by article twenty of this chapter and any tax imposed

on cigarettes by chapter thirteen of title eleven of the administrative

code of the city of New York.

(i) (A) Notwithstanding any contrary provisions of this article or

other law, with respect to any lease for a term of one year or more of

(1) a motor vehicle, as defined in section one hundred twenty-five of

the vehicle and traffic law, with a gross vehicle weight of ten thousand

pounds or less, or (2) a vessel, as defined in section twenty-two

hundred fifty of such law (including any inboard or outboard motor and

any trailer, as defined in section one hundred fifty-six of such law,

leased in conjunction with such a vessel), or an option to renew such a

lease or a similar contractual provision, all receipts due or

consideration given or contracted to be given for such property under

and for the entire period of such lease, option to renew or similar

provision, or combination of them, shall be deemed to have been paid or

given and shall be subject to tax, and any such tax due shall be

collected, as of the date of first payment under such lease, option to

renew or similar provision, or combination of them, or as of the date of

registration of such property with the commissioner of motor vehicles,

whichever is earlier. Notwithstanding any inconsistent provisions of

subdivision (b) of this section or of section eleven hundred seventeen

of this article or of other law, for purposes of such a lease, option to

renew or similar provision originally entered into outside this state,

by a lessee (1) who was a resident of this state, and leased such

property for use outside the state and who subsequently brings such

property into this state for use here or (2) who was a nonresident and

subsequently becomes a resident and brings the property into this state

for use here, any remaining receipts due or consideration to be given

after such lessee brings such property into this state shall be subject

to tax as if the lessee had entered into or exercised such lease, option

to renew or similar provision, or combination thereof, for the first

time in this state and the relevant provisions of sections eleven

hundred ten concerning imposition and computation of tax, eleven hundred

eighteen concerning exemption from use tax for tax paid to another

jurisdiction, eleven hundred thirty-two concerning presumption of

taxability and conditions for registration and eleven hundred

thirty-nine concerning refunds, of this article, shall be applicable to

any sales or compensating use tax paid by the lessee before the lessee

brought the property into this state, except to the extent that any such

provision is inconsistent with a provision of this subdivision. For

purposes of this subdivision, (1) a lease for a term of one year or more

shall include any lease for a shorter term which includes an option to

renew or other like provision (or more than one of such option or other

provision) where the cumulative period that the lease, with or without

such option or provision, may be in effect upon exercise of such option

or provision is one year or more and (2) receipts due and consideration

given or contracted to be given under any such lease or other provision

for excess mileage charges shall be subject to tax as and when paid or

due.

(B) (1) Notwithstanding any inconsistent provisions of this

subdivision, with respect to a lease of a motor vehicle described in

paragraph (A) of this subdivision for a term of one year or more which

includes an indeterminate number of options to renew or other similar

contractual provisions or which includes thirty-six or more monthly

options to renew beyond the initial term, and under which lease the

lessee of such motor vehicle has certified in the writing described in

clause (i) of subparagraph (C) of paragraph two of subsection (h) of

section 7701 of the internal revenue code of 1986, under penalty of

perjury, that the lessee intends that more than fifty percent of the use

of such vehicle is to be in a trade or business of the lessee, all

receipts due or consideration given or contracted to be given under such

lease for the first thirty-two months, or the period of the initial term

if greater, of such lease shall be deemed to have been paid or given and

shall be subject to tax in accordance with the provisions of this

subdivision.

For each such option to renew, or similar provision, or combination of

them, exercised after the first thirty-two months, or the period of such

initial term, if longer, of any such lease, tax due under this article

shall be collected and paid or paid over without regard to this

subdivision.

(2) If at the termination of a lease described in subparagraph one of

this paragraph the lessor refunds a portion of the receipt or

consideration to the lessee as required by a terminal rental adjustment

clause of such lease, either: (i) the lessee may claim a refund or

credit for the sales tax it paid on such refunded receipt or

consideration; or (ii) the lessor may claim a refund or credit of the

sales tax paid by the lessee on such refunded receipt or consideration

if it has demonstrated to the satisfaction of the commissioner that it

first refunded such tax to the lessee. Notwithstanding the provisions of

subdivision (c) of section eleven hundred thirty-nine of this article,

such claim for refund or credit shall be considered timely if it is made

within three years after the tax was paid by the lessor to the

commissioner or one year after such receipt or consideration was

refunded to the lessee, whichever is later; provided, however, that no

interest shall be paid on a refund or credit made pursuant to this

subparagraph.

(C) Any receipts due or consideration given or contracted to be given

under an option to renew a lease of a motor vehicle described in this

subdivision or similar contractual provision, or combination of them,

exercised as part of any such lease between the same lessor and the same

lessee with respect to the same motor vehicle or vehicles, where such

lease or any option to renew such a lease or any other similar

contractual provision was subject to tax in accordance with the

provisions of this subdivision, shall not be subject to the tax imposed

under the provisions of article twenty-eight-A of this chapter.

(j) (1) The tax required to be prepaid pursuant to section eleven

hundred three of this article shall be computed by multiplying the base

retail price by a tax rate of eight percent and rounding the result

thereof to the nearest whole cent per package.

(2) For purposes of this subdivision, the base retail price shall mean

for the period September first, nineteen hundred ninety-five, through

August thirty-first, nineteen hundred ninety-six, one dollar for each

package of cigarettes containing ten cigarettes or fraction thereof, and

two dollars for each package of cigarettes containing twenty cigarettes

or fraction thereof in excess of ten and, if a package contains more

than twenty cigarettes, the base retail price shall be increased by

fifty cents for each five cigarettes or fraction thereof in excess of

twenty. Effective for the twelve-month period commencing on the first

day of September of each year, the base retail price for any such

package shall be adjusted as follows: As soon as practicable after June

first of each year, the base retail price in effect for the twelve-month

period commencing on the immediately preceding September first shall be

multiplied by a fraction, the numerator of which is the total of the

sums of the manufacturers' list price for a carton of standard brand

cigarettes containing ten packages of twenty cigarettes and the amount

of cigarette tax imposed by subdivision one of section four hundred

seventy-one of this chapter on such a carton of cigarettes, in effect on

the first day of each month, for each of the twelve consecutive months

ending with such month of June, and the denominator of which is the

total of the sums of the manufacturers' list price for such a carton of

cigarettes and the amount of cigarette tax imposed by subdivision one of

section four hundred seventy-one of this chapter on such a carton of

cigarettes, in effect on the first day of each month, for each of the

twelve consecutive months ending with the month of June of the

immediately preceding year. Provided, however, for purposes of the

adjustment to any such base retail price required for the period

commencing September first, two thousand two, the denominator shall be

such total with respect to the twelve consecutive months ending with the

month of June, nineteen hundred ninety-seven. The manufacturers' list

price for a carton of standard brand cigarettes containing ten packages

of twenty cigarettes in effect on the first day of a month shall be

determined by calculating a weighted average of each of the major

manufacturer's list prices for such a carton of cigarettes in effect on

the frist day of such month, as such list prices are reported to the

department by such manufacturers, in the department's determination of

the cost of cigarettes under article twenty-A of this chapter, and using

the most recently published annual national market shares of such major

manufacturers. 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 base retail price adjustment

calculation and the resulting base retail price fixed by this section

for the period commencing September first of each year beginning

September first, nineteen hundred ninety-six, no later than the

immediately preceding first day of August. The calculation and

publication of the base retail price so fixed by provisions of this

section shall not be included within the definition of "rule" as defined

in paragraph (a) of subdivision two of section one hundred two of the

state administrative procedure act. The base retail prices determined

pursuant to this paragraph shall be rounded to the nearest one-tenth of

one cent for each package containing ten cigarettes or fraction thereof,

for each package containing twenty cigarettes and, if packages are sold

in excess of twenty cigarettes and stamps have been issued therefor, for

each such package.

(k) Receipts subject to tax under subdivision (a) of section eleven

hundred five of this article on retail sales of motor fuel, diesel motor

fuel and residual petroleum product, and consideration given or

contracted to be given for motor fuel, diesel motor fuel and residual

petroleum product, the uses of which are subject to tax under section

eleven hundred ten of this article, shall be deemed to include any tax

imposed on or with respect to motor fuel, diesel motor fuel or residual

petroleum product under article thirteen-A of this chapter.

(l) (1) Receipts from the sale of mobile telecommunications service

provided by a home service provider shall include "charges for mobile

telecommunications services." Such term shall mean any charge by a home

service provider to its mobile telecommunications customer for (A)

commercial mobile radio service, and shall include property and services

that are ancillary to the provision of commercial mobile radio service

(such as dial tone, voice service, directory information, call

forwarding, caller-identification and call-waiting), and (B) any service

and property provided therewith.

(2) With respect to services or property described in subparagraph (B)

of paragraph one of this subdivision, internet access service, any

mobile telecommunications service which the mobile telecommunications

customer originates in a foreign country to the extent included in the

fixed periodic charge, any interstate or international telephony or

telegraphy or telephone or telegraph service of whatever nature which is

not a voice service, and any property or service which is not telephony

or telegraphy or telephone or telegraph service of whatever nature, a

home service provider shall collect and pay over tax, and a mobile

telecommunications customer shall pay such tax, on receipts from any

charge that is aggregated with and not separately stated from other

charges for mobile telecommunications service. Provided, however, if

such home service provider uses an objective, reasonable and verifiable

standard for identifying each of the components of the charge for mobile

telecommunications service, then such home service provider may

separately account for and quantify the amount of each such component

charge. If a home service provider chooses to so separately account for

and quantify and separately sells any such property or service, then the

charge for such property or service shall be based upon the price for

such property or service as separately sold. If a home service provider

chooses to so separately account for and quantify and does not

separately sell such property or service, then the charge for such

property or service shall be based upon the prevailing retail price of

comparable property or service sold separately by other home service

providers. In any case, the charge for such property or service shall be

reasonable and proportionate to the total charge to the mobile

telecommunications customer. Such charges for such services or property,

as the case may be, will not constitute receipts from charges for mobile

telecommunications services subject to tax under subdivision (b) of

section eleven hundred five of this article. Nothing herein shall be

construed to exempt from tax or subject to tax any such service or

property otherwise subject to tax or exempt from tax under this article.

(3) (A) Any charge for a service or property billed by or for a mobile

telecommunications customer's home service provider shall be deemed to

be provided by such mobile telecommunications customer's home service

provider.

(B) Charges for mobile telecommunications service that are provided or

deemed to be provided by a mobile telecommunications customer's home

service provider shall be sourced to the taxing jurisdiction where the

mobile telecommunications customer's place of primary use is located,

regardless of where the mobile telecommunications service originates,

terminates or passes through.

(m) Notwithstanding any provision of law to the contrary:

(1) The sales tax imposed by subdivision (a) of section eleven hundred

five of this article and the compensating use tax imposed by section

eleven hundred ten of this article, in regard to retail sales of motor

fuel and diesel motor fuel, shall be eight cents per gallon.

(2) The sales and compensating use taxes imposed by subdivision (a) of

section eleven hundred nine of this article, in regard to retail sales

of motor fuel and diesel motor fuel, shall be three-quarters of one cent

per gallon.

(3) Paragraph one of this subdivision shall not apply to the sales and

compensating use taxes imposed by subdivision (a) of section eleven

hundred seven of this article in regard to retail sales of motor fuel

and diesel motor fuel. However, the legislative body of a city in which

the taxes imposed by such section eleven hundred seven are in effect, by

local law, ordinance, or resolution in exactly the form prepared by the

commissioner, may elect that such taxes, in regard to retail sales of

motor fuel and diesel motor fuel, shall be computed, as determined by

the commissioner, at a rate of cents per gallon, rounded to the nearest

cent, equal to two or three dollars, as determined by the municipality,

multiplied by the percentage rate of such taxes within the municipality.

(4) Paragraph one of this subdivision shall not apply to the sales and

compensating use taxes imposed by a local law, ordinance or resolution

of a municipality pursuant to the authority of subpart B of part one of

article twenty-nine of this chapter, in regard to retail sales of motor

fuel and diesel motor fuel. The legislative body of such a municipality,

by local law, ordinance or resolution in exactly the form prepared by

the commissioner, may elect that its sales and compensating use taxes,

in regard to the retail sale of motor fuel and diesel motor fuel, shall

be computed, as determined by the commissioner, at a rate of cents per

gallon, rounded to the nearest cent, equal to two, three or four

dollars, as determined by the municipality, multiplied by the percentage

rate of such taxes within the municipality.

(5)(i) Prior to the start of any sales tax quarter, the commissioner

shall apply the local percentage sales tax rate of each county or city

that has elected a cents per gallon rate pursuant to paragraph three or

four of this subdivision to the average price of motor fuel and diesel

motor fuel, not including sales tax and the motor fuel excise tax, for

three consecutive months beginning four months prior to the start of any

sales tax quarter. If the result of this computation is less than the

elected cents per gallon rate for a county or city, the cents per gallon

rate for such county or city shall be adjusted to be equal to such

computation, rounded to the nearest one cent. Such rates shall be

published by the commissioner and effective in the next succeeding sales

tax quarter.

(ii) Prior to the start of any sales tax quarter, the commissioner

shall also adjust in a like manner the cents per gallon rates prescribed

by paragraphs one and two of this subdivision based on percentage sales

tax rates of four percent and three-eighths of a percent respectively.

Provided, however, adjustments made to the cents per gallon rate

prescribed by paragraph two of this subdivision shall be rounded to the

nearest one-tenth of one cent.

(6) A local law, ordinance or resolution making or revoking the

election made pursuant to paragraph three or four of this subdivision

must go into effect in accordance with the provisions of subdivisions

(d) and (e) of section twelve hundred ten of this chapter.

(7) Notwithstanding any foregoing provision of this subdivision or

other law to the contrary, this subdivision, subdivision (h) of section

eleven hundred nine of this part and subdivision (n) of section eighteen

hundred seventeen of this chapter, section three hundred ninety-two-i of

the general business law and other provisions of law which refer or

relate to this subdivision shall apply only to (A) motor fuel or diesel

motor fuel sold for use directly and exclusively in the engine of a

motor vehicle and (B) motor fuel or diesel motor fuel, other than

water-white kerosene sold exclusively for heating purposes in containers

of no more than twenty gallons, sold by a retail gas station. For

purposes of this subdivision and such other provisions of law, "retail

gas station" shall mean a filling station where such fuel is stored

primarily for sale by delivery directly into the ordinary fuel tank

connected with the engine of a motor vehicle to be consumed in the

operation of such motor vehicle or where such fuel is stored primarily

for sale by delivery directly into the ordinary fuel tank connected with

the engine of a vessel to be consumed in the operation of such vessel.

The commissioner is hereby authorized to require the use of certificates

or other documents, and procedures related thereto, to effect the

purposes of this subdivision; and any such certificate or other document

so required by the commissioner for a purchaser to tender to a vendor to

purchase such fuel subject to tax on the reduced base established by or

pursuant to this subdivision is hereby deemed to be an exemption

certificate as such term is used in subdivision (c) of section eleven

hundred thirty-two of this article and as if the provisions of such

subdivision (c) referred to such a certificate or document required

pursuant to this subdivision.

* (n) The sales and compensating use taxes imposed by this article and

pursuant to the authority of article twenty-nine of this chapter on B20

shall be imposed at eighty percent of the rate of the cents per gallon

taxes described in subdivision (m) of this section. However, if a county

or city does not make the cents per gallon election authorized by such

subdivision (m), the taxes of such county or city imposed pursuant to

the authority of such article twenty-nine or the taxes imposed in a city

of one million or more by section eleven hundred seven of this article

shall be imposed on eighty percent of the receipts from the retail sale

of or the consideration given or contracted to be given for, or for the

use of, such B20.

* NB Repealed September 1, 2031

(o) (1) If a transportation service subject to tax under paragraph ten

of subdivision (c) of section eleven hundred five of this part is

provided by vehicle, and the owner or lessor of the vehicle leases or

rents the vehicle to an unrelated person who provides the transportation

service, such as a limousine driver who drives a limousine owned by

another person, then (i) the owner or lessor is deemed to provide the

transportation service during the day or other period that the unrelated

person uses the vehicle to provide the service, (ii) the owner or lessor

is deemed to be the vendor of the service provided by the unrelated

person, (iii) the tax imposed by such paragraph ten is deemed to be

imposed on the unrelated person, (iv) the owner or lessor, as vendor,

must collect the tax from the unrelated person, based on the local

jurisdiction where the driver takes delivery of the vehicle and pay over

such tax required to be collected with its returns required to be filed

under this article, and (v) the receipts subject to the tax equal two

hundred percent of the amount that the owner or lessor charges the

unrelated person for the use of the vehicle during the day or other

period, including any charge related to insurance, maintenance, repairs,

fuel, the use, rental or economic value of any vehicle or business

license, and any other charge made by the owner or lessor to the

unrelated person for the day or other period, regardless of whether the

unrelated person transported, carried or conveyed any person or earned

any fares with that vehicle during that day or other period.

(2) Notwithstanding any law to the contrary:

(i) Any municipality or public corporation that establishes or

regulates black car, limousine or other vehicle service fares must

adjust those fares to include therein the tax imposed by paragraph ten

of subdivision (c) of section eleven hundred five of this part and the

taxes imposed by other sections of this part and pursuant to the

authority of article twenty-nine of this chapter on the services taxed

by such paragraph ten and must require that any meters or other devices

in the vehicles or otherwise that measure fares be adjusted to include

these taxes, as the same are from time to time imposed and as the rates

of those taxes may change.

(ii) Any person that sells the services described in paragraph one of

this subdivision must adjust any meters or other devices in the vehicles

or otherwise that measure fares so that they timely reflect any change

in the rates of the taxes described in subparagraph (i) of this

paragraph. Neither the failure of a municipal or other public

corporation to adjust fares nor the failure of any person to adjust the

meters or devices will relieve any person from the obligation to collect

and pay or pay over such taxes timely, at the correct combined rate.

(3) For purposes of this subdivision, "unrelated person" means a

person other than a related person as defined for purposes of section

fourteen of this chapter.

(p) Notwithstanding any contrary provision of law: (1) The sales tax

imposed by subdivision (a) of section eleven hundred five of this part

on receipts from the retail sale of a new modular home module shall be

computed on the sum of (i) sixty percent of the vendor's receipts from

the sale of the module, excluding any charges by the vendor to the

purchaser for shipping or delivery, as described in paragraph three of

subdivision (b) of section eleven hundred one of this article and (ii)

one hundred percent of any charges by the vendor to the purchaser for

shipping or delivery of the modules as described in such paragraph three

of subdivision (b) of section eleven hundred one.

(2) The compensating use tax imposed by clause (A) of subdivision (a)

of section eleven hundred ten of this part on the use of a new modular

home module by its purchaser shall be computed on the sum of (i) sixty

percent of the amount described in subdivision (b) of such section

eleven hundred ten, excluding any charges for shipping or delivery as

described in paragraph three of subdivision (b) of section eleven

hundred one of this article, and (ii) one hundred percent of any charges

for shipping or delivery as described in such paragraph three of

subdivision (b) of section eleven hundred one.

(3) The compensating use tax imposed by subclause (i) or (ii) of

clause (B) of subdivision (a) of section eleven hundred ten of this part

on the use of modular home modules by their manufacturer to be installed

at a building site to construct a modular home that constitutes a

capital improvement shall be computed on the sum of (i) sixty percent of

the consideration for which the manufacturer conveys those modules to

the modular home buyer on an installed basis, excluding any

consideration for shipping or delivery as described in paragraph three

of subdivision (b) of section eleven hundred one of this article, and

excluding the consideration for the installation of those modules at the

building site as a modular home if such installation charge is

reasonable and stated separately from every other charge, and (ii) one

hundred percent of any charges for shipping or delivery as described in

such paragraph three of subdivision (b) of section eleven hundred one.

(q) (1) The exclusions from the definition of retail sale in

subparagraph (iv) of paragraph four of subdivision (b) of section eleven

hundred one of this article shall not apply to transfers, distributions,

or contributions of a vessel, except where, in the case of the exclusion

in subclause (I) of clause (A) of such subparagraph (iv), the two

corporations to be merged or consolidated are not affiliated persons

with respect to each other. For purposes of this subdivision,

corporations are affiliated persons with respect to each other where (i)

more than five percent of their combined shares are owned by members of

the same family, as defined by paragraph four of subsection (c) of

section two hundred sixty-seven of the internal revenue code of nineteen

hundred eighty-six; (ii) one of the corporations has an ownership

interest of more than five percent, whether direct or indirect, in the

other; or (iii) another person or a group of other persons that are

affiliated persons with respect to each other hold an ownership interest

of more than five percent, whether direct or indirect, in each of the

corporations.

(2) Notwithstanding any contrary provision of law, in relation to any

transfer, distribution, or contribution of a vessel that qualifies as a

retail sale as a result of paragraph one of this subdivision, the sales

tax imposed by subdivision (a) of section eleven hundred five of this

part shall be computed based on the price at which the seller purchased

the tangible personal property, provided that where the seller or

purchaser affirmatively shows that the seller owned the property for six

months prior to making the transfer, distribution or contribution

covered by paragraph one of this subdivision, such vessel shall be taxed

on the basis of the current market value of the vessel at the time of

that transfer, distribution, or contribution. For the purposes of the

prior sentence, "current market value" shall not exceed the cost of the

vessel. See subdivision (b) of this section for a similar rule on the

computation of any compensating use tax due under section eleven hundred

ten of this part on such transfers, distributions, or contributions.

(3) A purchaser of a vessel covered by paragraph one of this

subdivision will be entitled to a refund or credit against the sales or

compensating use tax due as a result of a transfer, distribution, or

contribution of such vessel in the amount of any sales or use tax paid

to this state or any other state on the seller's purchase or use of the

vessel so transferred, distributed or contributed, but not to exceed the

tax due on the transfer, distribution, or contribution of the vessel or

on the purchaser's use in the state of the vessel so transferred,

distributed or contributed. An application for a refund or credit under

this subdivision must be filed and shall be in such form as the

commissioner may prescribe. Where an application for credit has been

filed, the applicant may immediately take such credit on the return

which is due coincident with or immediately subsequent to the time the

application for credit is filed. However, the taking of the credit on

the return shall be deemed to be part of the application for credit.

Provided that the commissioner may, in his or her discretion and

notwithstanding any other law, waive the application requirement for any

or all classes of persons where the amount of the credit or refund is

equal to the amount of the tax due from the purchaser. The provisions of

subdivisions (a), (b), and (c) of section eleven hundred thirty-nine of

this article shall apply to applications for refund or credit under this

subdivision. No interest shall be allowed or paid on any refund made or

credit allowed under this subdivision. If a refund is granted or a

credit allowed under this paragraph, the seller or purchaser shall not

be eligible for a refund or credit pursuant to subdivision seven of

section eleven hundred eighteen of this article with regard to the same

purchase or use.

(r) (1) In regard to the collection of sales tax on occupancies by

room remarketers, when occupancy is provided for a single consideration

with property, services, amusement charges, or any other items, whether

or not such other items are taxable, the rent portion of the

consideration for such transaction shall be computed as follows: either

the total consideration received by the room remarketer multiplied by a

fraction, the numerator of which shall be the consideration payable for

the occupancy by the room remarketer and the denominator of which shall

be such consideration payable for the occupancy plus the consideration

payable by the remarketer for the other items being sold, or by any

other method as may be authorized by the commissioner. If the room

remarketer fails to separately state the tax on the rent so computed on

a sales slip, invoice, receipt, or other statement given to the occupant

in the manner prescribed by paragraph two of this subdivision or fails

to maintain records of the prices of all components of a transaction

covered by this paragraph, the entire consideration shall be treated as

rent subject to tax under paragraph one of subdivision (e) of section

eleven hundred five of this part. Nothing herein shall be construed to

subject to tax or exempt from tax any service or property or amusement

charge or other items otherwise subject to tax or exempt from tax under

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

chapter. A room remarketer's records of the consideration payable for

all components of a transaction covered by this paragraph are records

required to be maintained for purposes of subdivision (a) of section

eleven hundred thirty-five of this article.

(2) In regard to the collection of sales tax on occupancies by room

remarketers, including a transaction described in paragraph one of this

subdivision, the requirements of the second sentence of paragraph one of

subdivision (a) of section eleven hundred thirty-two of this article

shall be deemed satisfied if the remarketer gives the customer a sales

slip, invoice, receipt, or other statement of the price ("invoice")

prior to the customer's completion of his or her occupancy, on which the

amount of tax due under this article and pursuant to the authority of

article twenty-nine of this chapter is stated. The room remarketer must

keep either a copy of the invoice as required by subdivision (a) of

section eleven hundred thirty-five of this article, or electronic

records that accurately reflect the information that is on the invoice

provided to the customer.

(3) In regard to the reporting and the payment to the commissioner by

room remarketers of sales tax due on occupancies, subdivision (a) of

section eleven hundred thirty-seven of this article shall be read to

require a room remarketer to report such sales tax due, including in

regard to a transaction described in paragraph one of this subdivision,

on the return due for the filing period in which the occupancy ends and,

at the time of filing such return, to pay to the commissioner the total

amount described by such subdivision (a).