NY State Senate Bill 2015-S6721A

Senate Bill S6721A

2015-2016 Legislative Session

Exempts commercial fuel cell electricity generating systems and electricity provided by such sources from sales tax

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Archive: Last Bill Status - In Senate Committee Energy And Telecommunications Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 10, 2016	print number 6721a
Mar 10, 2016	amend (t) and recommit to energy and telecommunications
Feb 09, 2016	referred to energy and telecommunications

Bill Amendments

Original

A (Active)

co-Sponsors

2015-S6721 - Details

Current Committee:: Senate Energy And Telecommunications
Law Section:: Tax Law
Laws Affected:: Amd §§1115, 1210, 1212 & 1224, Tax L

2015-S6721 - Summary

Exempts commercial fuel cell electricity generating systems and electricity provided by such sources from sales tax imposed by article 28 of the tax law and omits such exemption from the taxes imposed pursuant to the authority of article 29 of the tax law.

2015-S6721 - Sponsor Memo

                                 BILL NUMBER:  S6721

 TITLE OF BILL :  An act to amend the tax law, in relation to
exempting commercial fuel cell systems and electricity provided by
such sources from the sales tax imposed by article 28 of the tax law
and omitting such exemption from the taxes imposed pursuant to the
authority of article 29 of the tax law, unless a locality elects
otherwise

 PURPOSE :

To provide a tax exemption for the retail sale or lease and
installation of commercial fuel cell electric generating equipment or
the sale of electricity generated by such equipment from state sales
and compensating use tax and granting school districts and
municipalities, including New York City, the option to provide such
exemption.

 SUMMARY OF PROVISIONS :

Adds a new subdivision (kk) to section 1115 of the tax law to exempt
the retail sale or lease and installation of commercial fuel cell
electric generating systems equipment and the sale of electricity
generated by such systems from the sales and use taxes imposed by
sections 1105 and 1110 of the tax law; defines the term "fuel cell
electricity generating systems equipment"; amends sections 1210 of the

tax law to include tax exemptions for commercial fuel cell electric
generating equipment and grants municipalities, including New York
City, the authority to enact the same exemption; amends section 1224
of the tax law to clarify that where a county with one or more cities
with a population of less than one million elects to enact these tax
exemptions for commercial fuel cell systems equipment and electricity,
a city within such county shall have the prior right to impose tax on
such exempt equipment and/or electricity to the extent of one half of
the maximum rates authorized under section 1210(a) of the tax law, and
conversely, clarifies that where a city of less than one million has
elected to enact these tax exemptions, the county in which such city
is located shall have the prior right to impose tax on such exempt
equipment and/or electricity to the extent of one half of the maximum
rates authorized under section 1210(a) of the tax law.

 JUSTIFICATION :

Fuel cell electric generating technology has many advantages. Fuel
cells commonly provide power to host facilities during power outages,
enhancing storm response, and allow critical facilities to remain
operational in such events. Fuel cells are exceptionally efficient;
they can stretch available supplies of fuel, reduce energy costs and
help reduce our dependence on foreign oil. The scalability and
resiliency of fuel cells makes them suitable for a wide range of heat
and power needs in homes, offices, and factories. In addition, this
technology has a low impact on the environment, with near-silent
operation and low emissions, making it suitable in locations where
combustion systems may not be appropriate. Also, fuel cells may be
used in conjunction with solar panels or wind farms to produce
electricity when renewable energy is unavailable. The fact that fuel
cells can run 24 hours a day makes them equal or superior in some
cases to renewable technologies in terms of the displacement of
conventional fossil fuel generation, leading to lower air pollution
emissions, including CO2.

For these reasons, fuel cells should be treated on par with solar
energy systems when determining eligibility for tax exemptions for the
retail sale, installation and electricity generated from commercial
fuel cell electric generating technologies. Eliminating all state
sales taxes, and providing local municipalities an option to eliminate
their portion as well, will: improve our economy, help us meet our
clean energy goals, stimulate commercial clean energy installations,
and create green collar jobs.

 LEGISLATIVE HISTORY :

New bill.

 FISCAL IMPLICATIONS :

Approximately $500,000 to the State.

 LOCAL FISCAL IMPLICATIONS :

Depends on whether local governments grant tax exemption.

 EFFECTIVE DATE :
This act shall take effect December 1, 2016 and shall apply in
accordance with the applicable transitional provisions in sections
1106 and 1217 of the tax law.

2015-S6721 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6721

                            I N  S E N A T E

                            February 9, 2016
                               ___________

Introduced by Sens. GRIFFO, FUNKE, ORTT -- read twice and ordered print-
  ed,  and  when  printed to be committed to the Committee on Energy and
  Telecommunications

AN ACT to amend the tax law, in relation to  exempting  commercial  fuel
  cell  systems  and electricity provided by such sources from the sales
  tax imposed by article 28 of the tax law and omitting  such  exemption
  from  the taxes imposed pursuant to the authority of article 29 of the
  tax law, unless a locality elects otherwise

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  1115  of  the tax law is amended by adding a new
subdivision (kk) to read as follows:
  (KK) THE FOLLOWING SHALL BE EXEMPT FROM TAX UNDER THIS ARTICLE:    (1)
RECEIPTS  FROM THE RETAIL SALE OF, AND CONSIDERATION GIVEN OR CONTRACTED
TO BE GIVEN FOR, OR FOR THE USE OF, COMMERCIAL FUEL CELL SYSTEMS  EQUIP-
MENT  AND  THE  SERVICE  OF INSTALLING SUCH SYSTEMS. FOR THE PURPOSES OF
THIS SUBDIVISION, "FUEL CELL ELECTRICITY GENERATING  SYSTEMS  EQUIPMENT"
SHALL  MEAN  AN  ARRANGEMENT OR COMBINATION OF COMPONENTS INSTALLED UPON
NON-RESIDENTIAL PREMISES THAT UTILIZE  SOLID  OXIDE,  MOLTEN  CARBONATE,
PROTON EXCHANGE MEMBRANE OR PHOSPHORIC ACID FUEL CELL, OR LINEAR GENERA-
TOR,  THAT  IS  MANUFACTURED,  INSTALLED AND OPERATED IN ACCORDANCE WITH
APPLICABLE GOVERNMENT AND INDUSTRY STANDARDS. SUCH ARRANGEMENT OR COMPO-
NENTS SHALL NOT INCLUDE EQUIPMENT THAT IS PART OF A NON-FUEL CELL ENERGY
SYSTEM.
  (2) RECEIPTS FROM THE  SALE  OF  ELECTRICITY  BY  A  PERSON  PRIMARILY
ENGAGED  IN  THE  SALE  OF FUEL CELL SYSTEM EQUIPMENT AND/OR ELECTRICITY
GENERATED BY SUCH EQUIPMENT PURSUANT TO A WRITTEN AGREEMENT UNDER  WHICH
THE  ELECTRICITY  IS  GENERATED BY COMMERCIAL FUEL CELL SYSTEM EQUIPMENT
THAT IS: (A) OWNED BY A PERSON OTHER THAN THE PURCHASER  OF  SUCH  ELEC-
TRICITY;  (B) INSTALLED ON THE NON-RESIDENTIAL PREMISES OF THE PURCHASER
OF SUCH ELECTRICITY; AND (C) USED TO PROVIDE HEATING, COOLING, HOT WATER
OR ELECTRICITY TO SUCH PREMISES.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10464-04-6

S. 6721                             2

  S 2.  Paragraphs 1 and 4 of subdivision (a) of section 1210 of the tax
law, as amended by section 3 of part Z of chapter  59  of  the  laws  of
2015, is amended to read as follows:
  (1) Either, all of the taxes described in article twenty-eight of this
chapter,  at  the same uniform rate, as to which taxes all provisions of
the local laws, ordinances or resolutions imposing such taxes  shall  be
identical,  except as to rate and except as otherwise provided, with the
corresponding provisions in such  article  twenty-eight,  including  the
definition  and  exemption  provisions  of  such  article, so far as the
provisions of such article twenty-eight can be made  applicable  to  the
taxes  imposed  by  such  city  or  county and with such limitations and
special provisions as are set forth in this article. The  taxes  author-
ized  under  this  subdivision  may  not  be imposed by a city or county
unless the local law, ordinance or resolution imposes such taxes  so  as
to  include  all  portions  and all types of receipts, charges or rents,
subject to state tax under  sections  eleven  hundred  five  and  eleven
hundred ten of this chapter, except as otherwise provided. (i) Any local
law,  ordinance  or  resolution  enacted  by  any  city of less than one
million or by any county or school district, imposing the taxes  author-
ized by this subdivision, shall, notwithstanding any provision of law to
the  contrary,  exclude from the operation of such local taxes all sales
of tangible personal  property  for  use  or  consumption  directly  and
predominantly  in  the  production  of  tangible personal property, gas,
electricity, refrigeration or steam, for sale, by  manufacturing,  proc-
essing,  generating,  assembly,  refining, mining or extracting; and all
sales of tangible personal property for use or consumption predominantly
either in the production of tangible personal  property,  for  sale,  by
farming  or  in  a commercial horse boarding operation, or in both; and,
unless such city, county or school district elects otherwise, shall omit
the provision for credit or refund contained in clause six  of  subdivi-
sion  (a)  or subdivision (d) of section eleven hundred nineteen of this
chapter. (ii) Any local law, ordinance  or  resolution  enacted  by  any
city,  county  or school district, imposing the taxes authorized by this
subdivision, shall omit the residential solar energy  systems  equipment
and  electricity exemption provided for in subdivision (ee), the commer-
cial solar energy systems equipment and electricity  exemption  provided
for  in subdivision (ii), THE COMMERCIAL FUEL CELL SYSTEMS EQUIPMENT AND
ELECTRICITY EXEMPTION PROVIDED FOR IN SUBDIVISION (KK) and the  clothing
and  footwear  exemption provided for in paragraph thirty of subdivision
(a) of section eleven hundred fifteen of this chapter, unless such city,
county or school district elects otherwise as to [either] such  residen-
tial  solar  energy  systems  equipment  and electricity exemption, such
commercial solar energy systems  equipment  and  electricity  exemption,
COMMERCIAL FUEL CELL SYSTEMS EQUIPMENT AND ELECTRICITY EXEMPTION or such
clothing and footwear exemption.
  (4)  Notwithstanding  any  other provision of law to the contrary, any
local law enacted by any city of one million or more  that  imposes  the
taxes authorized by this subdivision (i) may omit the exception provided
in  subparagraph  (ii)  of paragraph three of subdivision (c) of section
eleven hundred five of this chapter for receipts from  laundering,  dry-
cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining;
(ii) may impose the tax described in paragraph six of subdivision (c) of
section eleven hundred five of this chapter at a rate in addition to the
rate  prescribed  by this section not to exceed two percent in multiples
of one-half of one percent; (iii) shall provide that the  tax  described
in  paragraph  six  of subdivision (c) of section eleven hundred five of

S. 6721                             3

this chapter does not apply to facilities owned and operated by the city
or an agency or instrumentality of the city or a public corporation  the
majority  of  whose members are appointed by the chief executive officer
of  the  city  or the legislative body of the city or both of them; (iv)
shall not include any tax on receipts from, or the use of, the  services
described  in  paragraph  seven  of  subdivision  (c)  of section eleven
hundred five of this chapter; (v) shall provide that,  for  purposes  of
the  tax  described in subdivision (e) of section eleven hundred five of
this chapter, "permanent resident" means any occupant  of  any  room  or
rooms  in  a hotel for at least one hundred eighty consecutive days with
regard to the period of such occupancy;  (vi)  may  omit  the  exception
provided  in  paragraph one of subdivision (f) of section eleven hundred
five of this chapter for charges to a patron for admission  to,  or  use
of,  facilities  for  sporting activities in which the patron is to be a
participant, such as  bowling  alleys  and  swimming  pools;  (vii)  may
provide  the  clothing  and  footwear  exemption  in paragraph thirty of
subdivision (a) of section eleven hundred fifteen of this chapter,  and,
notwithstanding  any provision of subdivision (d) of this section to the
contrary, any local law providing for such exemption or  repealing  such
exemption,  may  go into effect on any one of the following dates: March
first, June first, September first or December first; (viii) shall  omit
the  exemption  provided  in  paragraph  forty-one of subdivision (a) of
section eleven hundred fifteen of this  chapter;  (ix)  shall  omit  the
exemption  provided in subdivision (c) of section eleven hundred fifteen
of this chapter insofar as it applies to fuel, gas, electricity, refrig-
eration and steam, and gas, electric, refrigeration and steam service of
whatever nature for use or consumption directly and exclusively  in  the
production  of gas, electricity, refrigeration or steam; (x) shall omit,
unless such city elects otherwise, the provision for  refund  or  credit
contained  in  clause  six  of  subdivision (a) or in subdivision (d) of
section eleven hundred nineteen of this chapter; (xi) shall provide that
section eleven hundred five-C of this chapter does  not  apply  to  such
taxes,  and  shall  tax  receipts  from every sale, other than sales for
resale, of gas service or electric service of whatever nature, including
the transportation, transmission or distribution of gas or  electricity,
even if sold separately, at the rate set forth in clause one of subpara-
graph  (i)  of  the opening paragraph of this section; (xii) shall omit,
unless such city elects otherwise, the exemption for  residential  solar
energy systems equipment and electricity provided in subdivision (ee) of
section eleven hundred fifteen of this chapter; [and] (xiii) shall omit,
unless  such  city  elects otherwise, the exemption for commercial solar
energy systems equipment and electricity provided in subdivision (ii) of
section eleven hundred fifteen of this chapter; AND  (XIV)  SHALL  OMIT,
UNLESS  SUCH  CITY  ELECTS  OTHERWISE, THE EXEMPTION FOR COMMERCIAL FUEL
CELL SYSTEMS EQUIPMENT AND ELECTRICITY PROVIDED IN SUBDIVISION  (KK)  OF
SECTION  ELEVEN  HUNDRED  FIFTEEN OF THIS CHAPTER. Any reference in this
chapter or in any local law, ordinance or resolution enacted pursuant to
the authority of this article to former subdivisions (n) or (p) of  this
section  shall be deemed to be a reference to clauses (xii) [or], (xiii)
OR (XIV) of this paragraph, respectively, and any such local law,  ordi-
nance or resolution that provides the exemptions provided in such former
subdivisions  (n)  and/or  (p)  shall  be  deemed instead to provide the
exemptions provided in clauses (xii) [and/or], (xiii)  AND/OR  (XIV)  of
this paragraph.

S. 6721                             4

  S  3.   Paragraph 1 of subdivision (b) of section 1210 of the tax law,
as amended by section 4 of part Z of chapter 59 of the laws of 2015,  is
amended to read as follows:
  (1)  Or,  one or more of the taxes described in subdivisions (b), (d),
(e) and (f) of section eleven hundred five of this chapter, at the  same
uniform  rate,  including  the transitional provisions in section eleven
hundred six of this chapter covering  such  taxes,  but  not  the  taxes
described  in subdivisions (a) and (c) of section eleven hundred five of
this chapter. Provided, further, that where the tax described in  subdi-
vision  (b)  of  section eleven hundred five of this chapter is imposed,
the compensating use taxes described in clauses  (E),  (G)  and  (H)  of
subdivision (a) of section eleven hundred ten of this chapter shall also
be  imposed. Provided, further, that where the taxes described in subdi-
vision (b) of section eleven hundred five are imposed, such taxes  shall
omit:  (A)  the  provision for refund or credit contained in subdivision
(d) of section eleven hundred nineteen of this chapter with  respect  to
such  taxes  described in such subdivision (b) of section eleven hundred
five unless such city or county elects to provide such provision or,  if
so  elected,  to  repeal  such  provision; (B) the exemption provided in
paragraph two of subdivision (ee) of section eleven hundred  fifteen  of
this  chapter unless such county or city elects otherwise; [and] (C) the
exemption provided in paragraph two of subdivision (ii) of section elev-
en hundred fifteen of this chapter, unless such county  or  city  elects
otherwise;  AND  (D) THE EXEMPTION PROVIDED IN PARAGRAPH TWO OF SUBDIVI-
SION (KK) OF SECTION ELEVEN HUNDRED FIFTEEN OF THIS CHAPTER, UNLESS SUCH
COUNTY OR CITY ELECTS OTHERWISE.
  S 4.  Subdivision (d) of section 1210 of the tax law,  as  amended  by
section  4-a  of part Z of chapter 59 of the laws of 2015, is amended to
read as follows:
  (d) A local law, ordinance or resolution imposing any tax pursuant  to
this  section,  increasing or decreasing the rate of such tax, repealing
or suspending such tax, exempting from such tax the energy  sources  and
services  described in paragraph three of subdivision (a) or of subdivi-
sion (b) of this section or changing the rate of  tax  imposed  on  such
energy  sources  and  services  or  providing  for  the credit or refund
described in clause six of subdivision (a)  of  section  eleven  hundred
nineteen  of  this  chapter,  or electing or repealing the exemption for
residential solar equipment  and  electricity  in  subdivision  (ee)  of
section  eleven  hundred  fifteen  of this article, or the exemption for
commercial solar  equipment  and  electricity  in  subdivision  (ii)  of
section eleven hundred fifteen of this article, OR ELECTING OR REPEALING
THE  EXEMPTION  FOR  COMMERCIAL  FUEL  CELL EQUIPMENT AND ELECTRICITY IN
SUBDIVISION (KK) OF SECTION ELEVEN HUNDRED FIFTEEN OF THIS ARTICLE  must
go  into  effect  only  on one of the following dates: March first, June
first, September first or December first; provided, that  a  local  law,
ordinance  or  resolution providing for the exemption described in para-
graph thirty of subdivision (a) of section  eleven  hundred  fifteen  of
this  chapter  or repealing any such exemption or a local law, ordinance
or resolution providing for a refund or credit described in  subdivision
(d) of section eleven hundred nineteen of this chapter or repealing such
provision  so  provided must go into effect only on March first. No such
local law, ordinance or resolution shall be effective unless a certified
copy of such law, ordinance or resolution is  mailed  by  registered  or
certified mail to the commissioner at the commissioner's office in Alba-
ny  at  least  ninety  days prior to the date it is to become effective.
However, the commissioner may waive and reduce such  ninety-day  minimum

S. 6721                             5

notice  requirement to a mailing of such certified copy by registered or
certified mail within a period of not less than  thirty  days  prior  to
such effective date if the commissioner deems such action to be consist-
ent with the commissioner's duties under section twelve hundred fifty of
this  article  and  the  commissioner  acts  by  resolution.  Where  the
restriction provided for in section twelve hundred twenty-three of  this
article  as  to  the  effective date of a tax and the notice requirement
provided for therein are  applicable  and  have  not  been  waived,  the
restriction  and  notice  requirement  in section twelve hundred twenty-
three of this article shall also apply.
  S 5.  Subdivision (a) of section 1212 of the tax law,  as  amended  by
section  6  of  part  Z of chapter 59 of the laws of 2015, is amended to
read as follows:
  (a) Any school district which is coterminous with,  partly  within  or
wholly  within a city having a population of less than one hundred twen-
ty-five thousand, is hereby authorized and empowered, by  majority  vote
of  the  whole  number  of  its school authorities, to impose for school
district purposes, within the territorial limits of such school district
and without discrimination between residents and  nonresidents  thereof,
the  taxes  described  in subdivision (b) of section eleven hundred five
(but excluding the tax on prepaid telephone calling  services)  and  the
taxes  described  in  clauses  (E) and (H) of subdivision (a) of section
eleven hundred ten, including the transitional provisions in subdivision
(b) of section eleven hundred six  of  this  chapter,  so  far  as  such
provisions  can  be  made applicable to the taxes imposed by such school
district and with such limitations and special  provisions  as  are  set
forth in this article, such taxes to be imposed at the rate of one-half,
one, one and one-half, two, two and one-half or three percent which rate
shall  be  uniform  for  all portions and all types of receipts and uses
subject to such taxes. In respect to such taxes, all provisions  of  the
resolution  imposing  them,  except  as  to rate and except as otherwise
provided herein, shall be identical with the corresponding provisions in
such article twenty-eight of  this  chapter,  including  the  applicable
definition  and  exemption  provisions  of  such  article, so far as the
provisions of such article twenty-eight of  this  chapter  can  be  made
applicable  to  the  taxes imposed by such school district and with such
limitations and special provisions as are set forth in this article. The
taxes described in subdivision (b) of section eleven hundred  five  (but
excluding  the tax on prepaid telephone calling service) and clauses (E)
and (H) of subdivision (a) of section eleven hundred ten, including  the
transitional provision in subdivision (b) of such section eleven hundred
six  of  this chapter, may not be imposed by such school district unless
the resolution imposes such taxes so as to include all portions and  all
types  of  receipts  and uses subject to tax under such subdivision (but
excluding the tax on prepaid telephone  calling  service)  and  clauses.
Provided,  however,  that,  where  a school district imposes such taxes,
such taxes shall omit the provision for refund or  credit  contained  in
subdivision  (d) of section eleven hundred nineteen of this chapter with
respect to such taxes described in such subdivision (b) of section elev-
en hundred five unless such  school  district  elects  to  provide  such
provision  or,  if  so elected, to repeal such provision, and shall omit
the exemptions provided in paragraph two of subdivision (ee)  and  para-
graph  two of subdivision (ii) of section eleven hundred fifteen of this
chapter unless such school district elects otherwise, AND SHALL OMIT THE
EXEMPTION PROVIDED IN PARAGRAPH TWO OF SUBDIVISION (KK) OF SECTION ELEV-

S. 6721                             6

EN HUNDRED FIFTEEN OF THIS CHAPTER UNLESS SUCH  SCHOOL  DISTRICT  ELECTS
OTHERWISE.
  S  6.  Section 1224 of the tax law is amended by adding a new subdivi-
sion (c-2) to read as follows:
  (C-2) NOTWITHSTANDING ANY OTHER PROVISION OF LAW: (1) WHERE  A  COUNTY
CONTAINING ONE OR MORE CITIES WITH A POPULATION OF LESS THAN ONE MILLION
HAS ELECTED THE EXEMPTION FOR COMMERCIAL FUEL CELL SYSTEMS EQUIPMENT AND
ELECTRICITY  PROVIDED IN SUBDIVISION (KK) OF SUCH SECTION ELEVEN HUNDRED
FIFTEEN, A CITY WITHIN SUCH COUNTY SHALL HAVE THE PRIOR RIGHT TO  IMPOSE
TAX  ON  SUCH  EXEMPT  EQUIPMENT AND/OR ELECTRICITY TO THE EXTENT OF ONE
HALF OF THE MAXIMUM RATES AUTHORIZED UNDER SUBDIVISION  (A)  OF  SECTION
TWELVE HUNDRED TEN OF THIS ARTICLE;
  (2)  WHERE  A  CITY OF LESS THAN ONE MILLION HAS ELECTED THE EXEMPTION
FOR COMMERCIAL FUEL CELL SYSTEMS EQUIPMENT AND ELECTRICITY  PROVIDED  IN
SUBDIVISION  (KK)  OF SUCH SECTION ELEVEN HUNDRED FIFTEEN, THE COUNTY IN
WHICH SUCH CITY IS LOCATED SHALL HAVE THE PRIOR RIGHT TO IMPOSE  TAX  ON
SUCH  EXEMPT  EQUIPMENT  AND/OR ELECTRICITY TO THE EXTENT OF ONE HALF OF
THE MAXIMUM RATES AUTHORIZED UNDER SUBDIVISION  (A)  OF  SECTION  TWELVE
HUNDRED TEN OF THIS ARTICLE.
  S  7.  This act shall take effect December 1, 2016; provided, however,
that this act shall apply in accordance with the applicable transitional
provisions in sections 1106 and 1217 of the tax law.

co-Sponsors

2015-S6721A (ACTIVE) - Details

Current Committee:: Senate Energy And Telecommunications
Law Section:: Tax Law
Laws Affected:: Amd §§1115, 1210, 1212 & 1224, Tax L

2015-S6721A (ACTIVE) - Summary

2015-S6721A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6721A

 TITLE OF BILL :

An act to amend the tax law, in relation to exempting commercial fuel
cell electricity generating systems and electricity provided by such
sources from the sales tax imposed by article 28 of the tax law and
omitting such exemption from the taxes imposed pursuant to the
authority of article 29 of the tax law, unless a locality elects
otherwise

 PURPOSE :

To provide a tax exemption for the retail sale or lease and
installation of commercial fuel cell electric generating equipment or
the sale of hydrogen gas or electricity generated by such equipment
from state sales and compensating use tax, and granting school
districts and municipalities, including New York City, the option to
provide such exemption.

 SUMMARY OF PROVISIONS :

Adds a new subdivision (kk) to section 1115 of the tax law to exempt
the retail sale or lease and installation of commercial fuel cell
electric generating systems equipment and the sale of hydrogen gas or
electricity generated by such systems from the sales and use taxes

imposed by sections 1105 and 1110 of the tax law; defines the term
"fuel cell electricity generating systems equipment"; amends sections
1210 of the tax law to include tax exemptions for commercial fuel cell
electric generating equipment and grants municipalities, including New
York City, the authority to enact the same exemption; amends section
1224 of the tax law to clarify that where a county with one or more
cities with a population of less than one million elects to enact
these tax exemptions for commercial fuel cell electric generating
systems equipment and electricity, a city within such county shall
have the prior right to impose tax on such exempt equipment and/or
electricity to the extent of one half of the maximum rates authorized
under section 1210(a) of the tax law, and conversely, clarifies that
where a city of less than one million has elected to enact these tax
exemptions, the county in which such city is located shall have the
prior right to impose tax on such exempt equipment and/or electricity
to the extent of one half of the maximum rates authorized under
section 1210(a) of the tax law.

 JUSTIFICATION :

Fuel cell electric generating technology has many advantages. Fuel
cells commonly provide power to host facilities during power outages,
enhancing storm response, and allow critical facilities to remain
operational in such events. Fuel cells are exceptionally efficient;
they can stretch available supplies of fuel, reduce energy costs and
help reduce our dependence on foreign oil. The scalability and
resiliency of fuel cells makes them suitable for a wide range of heat
and power needs in homes, offices, and factories. In addition, this
technology has a low impact on the environment, with near-silent
operation and low emissions, making it suitable in locations where
combustion systems may not be appropriate. Also, fuel cells may be
used in conjunction with solar panels or wind farms to produce
electricity when renewable energy is unavailable. The fact that fuel
cells can run 24 hours a day makes them equal or superior in some
cases to renewable technologies in terms of the displacement of
conventional fossil fuel generation, leading to lower air pollution
emissions, including CO2.

For these reasons, fuel cells should be treated on par with solar
energy systems when determining eligibility for tax exemptions for the
retail sale, installation and electricity generated from commercial
fuel cell electric generating technologies. Eliminating all state
sales taxes, and providing local municipalities an option to eliminate
their portion as well, will: improve our economy, help us meet our
clean energy goals, stimulate commercial clean energy installations,
and create green collar jobs.

 LEGISLATIVE HISTORY :

New Bill.

 FISCAL IMPLICATIONS :

Approximately $500,000 to the State.

 LOCAL FISCAL IMPLICATIONS :

Depends on whether local governments grant tax exemption.

 EFFECTIVE DATE :
This act shall take effect June 1, 2016 and shall apply in accordance
with the applicable transitional provisions in sections 1106 and 1217
of the tax law.

2015-S6721A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6721--A

                            I N  S E N A T E

                            February 9, 2016
                               ___________

Introduced by Sens. GRIFFO, FUNKE, ORTT -- read twice and ordered print-
  ed,  and  when  printed to be committed to the Committee on Energy and
  Telecommunications --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  to  amend the tax law, in relation to exempting commercial fuel
  cell electricity generating systems and electricity provided  by  such
  sources  from  the  sales tax imposed by article 28 of the tax law and
  omitting such exemption from the taxes imposed pursuant to the author-
  ity of article 29 of the tax law, unless a locality elects otherwise

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  1115  of  the tax law is amended by adding a new
subdivision (kk) to read as follows:
  (KK) THE FOLLOWING SHALL BE EXEMPT FROM TAX UNDER THIS ARTICLE:    (1)
RECEIPTS  FROM THE RETAIL SALE OF, AND CONSIDERATION GIVEN OR CONTRACTED
TO BE GIVEN FOR, OR FOR THE USE OF,  COMMERCIAL  FUEL  CELL  ELECTRICITY
GENERATING SYSTEMS EQUIPMENT AND THE SERVICE OF INSTALLING AND MAINTAIN-
ING SUCH SYSTEMS. FOR THE PURPOSES OF THIS SUBDIVISION, "FUEL CELL ELEC-
TRICITY  GENERATING SYSTEMS EQUIPMENT" SHALL MEAN AN ELECTRIC GENERATING
ARRANGEMENT OR COMBINATION OF COMPONENTS INSTALLED UPON  NON-RESIDENTIAL
PREMISES  THAT  UTILIZE  SOLID  OXIDE, MOLTEN CARBONATE, PROTON EXCHANGE
MEMBRANE OR PHOSPHORIC ACID FUEL CELL,  OR  FOR  THE  PURPOSES  OF  THIS
SECTION  ONLY, LINEAR GENERATOR, THAT IS INSTALLED, OPERATED AND LOCATED
IN THIS STATE.
  (2) RECEIPTS FROM THE SALE OF HYDROGEN GAS OR ELECTRICITY BY A  PERSON
PRIMARILY ENGAGED IN THE SALE OF FUEL CELL ELECTRICITY GENERATING SYSTEM
EQUIPMENT  AND/OR  ELECTRICITY GENERATED BY SUCH EQUIPMENT PURSUANT TO A
WRITTEN AGREEMENT UNDER WHICH THE ELECTRICITY IS GENERATED BY COMMERCIAL
FUEL CELL ELECTRICITY GENERATING SYSTEM EQUIPMENT THAT IS: (A) OWNED  BY
A  PERSON OTHER THAN THE PURCHASER OF SUCH ELECTRICITY; (B) INSTALLED ON
THE NON-RESIDENTIAL PREMISES OF THE PURCHASER OF SUCH  ELECTRICITY;  (C)
PLACED  IN  SERVICE;  AND  (D) LOCATED IN THIS STATE TO PROVIDE HEATING,
COOLING, HOT WATER OR ELECTRICITY TO SUCH PREMISES.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10464-07-6

S. 6721--A                          2

  S 2.  Paragraphs 1 and 4 of subdivision (a) of section 1210 of the tax
law, as amended by section 3 of part Z of chapter  59  of  the  laws  of
2015, are amended to read as follows:
  (1) Either, all of the taxes described in article twenty-eight of this
chapter,  at  the same uniform rate, as to which taxes all provisions of
the local laws, ordinances or resolutions imposing such taxes  shall  be
identical,  except as to rate and except as otherwise provided, with the
corresponding provisions in such  article  twenty-eight,  including  the
definition  and  exemption  provisions  of  such  article, so far as the
provisions of such article twenty-eight can be made  applicable  to  the
taxes  imposed  by  such  city  or  county and with such limitations and
special provisions as are set forth in this article. The  taxes  author-
ized  under  this  subdivision  may  not  be imposed by a city or county
unless the local law, ordinance or resolution imposes such taxes  so  as
to  include  all  portions  and all types of receipts, charges or rents,
subject to state tax under  sections  eleven  hundred  five  and  eleven
hundred ten of this chapter, except as otherwise provided. (i) Any local
law,  ordinance  or  resolution  enacted  by  any  city of less than one
million or by any county or school district, imposing the taxes  author-
ized by this subdivision, shall, notwithstanding any provision of law to
the  contrary,  exclude from the operation of such local taxes all sales
of tangible personal  property  for  use  or  consumption  directly  and
predominantly  in  the  production  of  tangible personal property, gas,
electricity, refrigeration or steam, for sale, by  manufacturing,  proc-
essing,  generating,  assembly,  refining, mining or extracting; and all
sales of tangible personal property for use or consumption predominantly
either in the production of tangible personal  property,  for  sale,  by
farming  or  in  a commercial horse boarding operation, or in both; and,
unless such city, county or school district elects otherwise, shall omit
the provision for credit or refund contained in clause six  of  subdivi-
sion  (a)  or subdivision (d) of section eleven hundred nineteen of this
chapter. (ii) Any local law, ordinance  or  resolution  enacted  by  any
city,  county  or school district, imposing the taxes authorized by this
subdivision, shall omit the residential solar energy  systems  equipment
and  electricity exemption provided for in subdivision (ee), the commer-
cial solar energy systems equipment and electricity  exemption  provided
for in subdivision (ii), THE COMMERCIAL FUEL CELL ELECTRICITY GENERATING
SYSTEMS  EQUIPMENT AND ELECTRICITY GENERATED BY SUCH EQUIPMENT EXEMPTION
PROVIDED FOR IN SUBDIVISION (KK) and the clothing and footwear exemption
provided for in paragraph thirty of subdivision (a)  of  section  eleven
hundred  fifteen  of  this  chapter,  unless such city, county or school
district elects otherwise as to [either] such residential  solar  energy
systems equipment and electricity exemption, such commercial solar ener-
gy  systems  equipment  and  electricity exemption, COMMERCIAL FUEL CELL
ELECTRICITY GENERATING SYSTEMS EQUIPMENT AND  ELECTRICITY  GENERATED  BY
SUCH EQUIPMENT EXEMPTION or such clothing and footwear exemption.
  (4)  Notwithstanding  any  other provision of law to the contrary, any
local law enacted by any city of one million or more  that  imposes  the
taxes authorized by this subdivision (i) may omit the exception provided
in  subparagraph  (ii)  of paragraph three of subdivision (c) of section
eleven hundred five of this chapter for receipts from  laundering,  dry-
cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining;
(ii) may impose the tax described in paragraph six of subdivision (c) of
section eleven hundred five of this chapter at a rate in addition to the
rate  prescribed  by this section not to exceed two percent in multiples
of one-half of one percent; (iii) shall provide that the  tax  described

S. 6721--A                          3

in  paragraph  six  of subdivision (c) of section eleven hundred five of
this chapter does not apply to facilities owned and operated by the city
or an agency or instrumentality of the city or a public corporation  the
majority  of  whose members are appointed by the chief executive officer
of the city or the legislative body of the city or both  of  them;  (iv)
shall  not include any tax on receipts from, or the use of, the services
described in paragraph  seven  of  subdivision  (c)  of  section  eleven
hundred  five  of  this chapter; (v) shall provide that, for purposes of
the tax described in subdivision (e) of section eleven hundred  five  of
this  chapter,  "permanent  resident"  means any occupant of any room or
rooms in a hotel for at least one hundred eighty consecutive  days  with
regard  to  the  period  of  such occupancy; (vi) may omit the exception
provided in paragraph one of subdivision (f) of section  eleven  hundred
five  of  this  chapter for charges to a patron for admission to, or use
of, facilities for sporting activities in which the patron is  to  be  a
participant,  such  as  bowling  alleys  and  swimming  pools; (vii) may
provide the clothing and  footwear  exemption  in  paragraph  thirty  of
subdivision  (a) of section eleven hundred fifteen of this chapter, and,
notwithstanding any provision of subdivision (d) of this section to  the
contrary,  any  local law providing for such exemption or repealing such
exemption, may go into effect on any one of the following  dates:  March
first,  June first, September first or December first; (viii) shall omit
the exemption provided in paragraph  forty-one  of  subdivision  (a)  of
section  eleven  hundred  fifteen  of  this chapter; (ix) shall omit the
exemption provided in subdivision (c) of section eleven hundred  fifteen
of this chapter insofar as it applies to fuel, gas, electricity, refrig-
eration and steam, and gas, electric, refrigeration and steam service of
whatever  nature  for use or consumption directly and exclusively in the
production of gas, electricity, refrigeration or steam; (x) shall  omit,
unless  such  city  elects otherwise, the provision for refund or credit
contained in clause six of subdivision (a)  or  in  subdivision  (d)  of
section eleven hundred nineteen of this chapter; (xi) shall provide that
section  eleven  hundred  five-C  of this chapter does not apply to such
taxes, and shall tax receipts from every  sale,  other  than  sales  for
resale, of gas service or electric service of whatever nature, including
the  transportation, transmission or distribution of gas or electricity,
even if sold separately, at the rate set forth in clause one of subpara-
graph (i) of the opening paragraph of this section;  (xii)  shall  omit,
unless  such  city elects otherwise, the exemption for residential solar
energy systems equipment and electricity provided in subdivision (ee) of
section eleven hundred fifteen of this chapter; [and] (xiii) shall omit,
unless such city elects otherwise, the exemption  for  commercial  solar
energy systems equipment and electricity provided in subdivision (ii) of
section  eleven  hundred  fifteen of this chapter; AND (XIV) SHALL OMIT,
UNLESS SUCH CITY ELECTS OTHERWISE, THE  EXEMPTION  FOR  COMMERCIAL  FUEL
CELL  ELECTRICITY GENERATING SYSTEMS EQUIPMENT AND ELECTRICITY GENERATED
BY SUCH EQUIPMENT PROVIDED IN SUBDIVISION (KK) OF SECTION ELEVEN HUNDRED
FIFTEEN OF THIS CHAPTER. Any reference in this chapter or in  any  local
law,  ordinance  or resolution enacted pursuant to the authority of this
article to former subdivisions (n) or  (p)  of  this  section  shall  be
deemed  to be a reference to clauses (xii) [or], (xiii) OR (XIV) of this
paragraph, respectively, and any such local law, ordinance or resolution
that provides the exemptions provided in such  former  subdivisions  (n)
and/or (p) shall be deemed instead to provide the exemptions provided in
clauses (xii) [and/or], (xiii) AND/OR (XIV) of this paragraph.

S. 6721--A                          4

  S  3.   Paragraph 1 of subdivision (b) of section 1210 of the tax law,
as amended by section 4 of part Z of chapter 59 of the laws of 2015,  is
amended to read as follows:
  (1)  Or,  one or more of the taxes described in subdivisions (b), (d),
(e) and (f) of section eleven hundred five of this chapter, at the  same
uniform  rate,  including  the transitional provisions in section eleven
hundred six of this chapter covering  such  taxes,  but  not  the  taxes
described  in subdivisions (a) and (c) of section eleven hundred five of
this chapter. Provided, further, that where the tax described in  subdi-
vision  (b)  of  section eleven hundred five of this chapter is imposed,
the compensating use taxes described in clauses  (E),  (G)  and  (H)  of
subdivision (a) of section eleven hundred ten of this chapter shall also
be  imposed. Provided, further, that where the taxes described in subdi-
vision (b) of section eleven hundred five are imposed, such taxes  shall
omit:  (A)  the  provision for refund or credit contained in subdivision
(d) of section eleven hundred nineteen of this chapter with  respect  to
such  taxes  described in such subdivision (b) of section eleven hundred
five unless such city or county elects to provide such provision or,  if
so  elected,  to  repeal  such  provision; (B) the exemption provided in
paragraph two of subdivision (ee) of section eleven hundred  fifteen  of
this  chapter unless such county or city elects otherwise; [and] (C) the
exemption provided in paragraph two of subdivision (ii) of section elev-
en hundred fifteen of this chapter, unless such county  or  city  elects
otherwise;  AND  (D) THE EXEMPTION PROVIDED IN PARAGRAPH TWO OF SUBDIVI-
SION (KK) OF SECTION ELEVEN HUNDRED FIFTEEN OF THIS CHAPTER, UNLESS SUCH
COUNTY OR CITY ELECTS OTHERWISE.
  S 4.  Subdivision (d) of section 1210 of the tax law,  as  amended  by
section  4-a  of part Z of chapter 59 of the laws of 2015, is amended to
read as follows:
  (d) A local law, ordinance or resolution imposing any tax pursuant  to
this  section,  increasing or decreasing the rate of such tax, repealing
or suspending such tax, exempting from such tax the energy  sources  and
services  described in paragraph three of subdivision (a) or of subdivi-
sion (b) of this section or changing the rate of  tax  imposed  on  such
energy  sources  and  services  or  providing  for  the credit or refund
described in clause six of subdivision (a)  of  section  eleven  hundred
nineteen  of  this  chapter,  or electing or repealing the exemption for
residential solar equipment  and  electricity  in  subdivision  (ee)  of
section  eleven  hundred  fifteen  of this article, or the exemption for
commercial solar  equipment  and  electricity  in  subdivision  (ii)  of
section eleven hundred fifteen of this article, OR ELECTING OR REPEALING
THE  EXEMPTION  FOR  COMMERCIAL FUEL CELL ELECTRICITY GENERATING SYSTEMS
EQUIPMENT AND ELECTRICITY GENERATED BY  SUCH  EQUIPMENT  IN  SUBDIVISION
(KK)  OF  SECTION  ELEVEN  HUNDRED  FIFTEEN OF THIS ARTICLE must go into
effect only on one of the following  dates:  March  first,  June  first,
September first or December first; provided, that a local law, ordinance
or  resolution providing for the exemption described in paragraph thirty
of subdivision (a) of section eleven hundred fifteen of this chapter  or
repealing  any  such  exemption  or a local law, ordinance or resolution
providing for a refund or credit described in subdivision (d) of section
eleven hundred nineteen of this chapter or repealing such  provision  so
provided  must  go  into  effect only on March first. No such local law,
ordinance or resolution shall be effective unless a  certified  copy  of
such  law,  ordinance or resolution is mailed by registered or certified
mail to the commissioner at the commissioner's office in Albany at least
ninety days prior to the date it is to become  effective.  However,  the

S. 6721--A                          5

commissioner  may  waive  and  reduce  such  ninety-day  minimum  notice
requirement to a mailing of such certified copy by registered or  certi-
fied  mail  within  a  period of not less than thirty days prior to such
effective  date  if  the commissioner deems such action to be consistent
with the commissioner's duties under section  twelve  hundred  fifty  of
this  article  and  the  commissioner  acts  by  resolution.  Where  the
restriction provided for in section twelve hundred twenty-three of  this
article  as  to  the  effective date of a tax and the notice requirement
provided for therein are  applicable  and  have  not  been  waived,  the
restriction  and  notice  requirement  in section twelve hundred twenty-
three of this article shall also apply.
  S 5.  Subdivision (a) of section 1212 of the tax law,  as  amended  by
section  6  of  part  Z of chapter 59 of the laws of 2015, is amended to
read as follows:
  (a) Any school district which is coterminous with,  partly  within  or
wholly  within a city having a population of less than one hundred twen-
ty-five thousand, is hereby authorized and empowered, by  majority  vote
of  the  whole  number  of  its school authorities, to impose for school
district purposes, within the territorial limits of such school district
and without discrimination between residents and  nonresidents  thereof,
the  taxes  described  in subdivision (b) of section eleven hundred five
(but excluding the tax on prepaid telephone calling  services)  and  the
taxes  described  in  clauses  (E) and (H) of subdivision (a) of section
eleven hundred ten, including the transitional provisions in subdivision
(b) of section eleven hundred six  of  this  chapter,  so  far  as  such
provisions  can  be  made applicable to the taxes imposed by such school
district and with such limitations and special  provisions  as  are  set
forth in this article, such taxes to be imposed at the rate of one-half,
one, one and one-half, two, two and one-half or three percent which rate
shall  be  uniform  for  all portions and all types of receipts and uses
subject to such taxes. In respect to such taxes, all provisions  of  the
resolution  imposing  them,  except  as  to rate and except as otherwise
provided herein, shall be identical with the corresponding provisions in
such article twenty-eight of  this  chapter,  including  the  applicable
definition  and  exemption  provisions  of  such  article, so far as the
provisions of such article twenty-eight of  this  chapter  can  be  made
applicable  to  the  taxes imposed by such school district and with such
limitations and special provisions as are set forth in this article. The
taxes described in subdivision (b) of section eleven hundred  five  (but
excluding  the tax on prepaid telephone calling service) and clauses (E)
and (H) of subdivision (a) of section eleven hundred ten, including  the
transitional provision in subdivision (b) of such section eleven hundred
six  of  this chapter, may not be imposed by such school district unless
the resolution imposes such taxes so as to include all portions and  all
types  of  receipts  and uses subject to tax under such subdivision (but
excluding the tax on prepaid telephone  calling  service)  and  clauses.
Provided,  however,  that,  where  a school district imposes such taxes,
such taxes shall omit the provision for refund or  credit  contained  in
subdivision  (d) of section eleven hundred nineteen of this chapter with
respect to such taxes described in such subdivision (b) of section elev-
en hundred five unless such  school  district  elects  to  provide  such
provision  or,  if  so elected, to repeal such provision, and shall omit
the exemptions provided in paragraph two of subdivision (ee)  and  para-
graph  two of subdivision (ii) of section eleven hundred fifteen of this
chapter unless such school district elects otherwise, AND SHALL OMIT THE
EXEMPTION PROVIDED IN PARAGRAPH TWO OF SUBDIVISION (KK) OF SECTION ELEV-

S. 6721--A                          6

EN HUNDRED FIFTEEN OF THIS CHAPTER UNLESS SUCH  SCHOOL  DISTRICT  ELECTS
OTHERWISE.
  S  6.  Section 1224 of the tax law is amended by adding a new subdivi-
sion (c-2) to read as follows:
  (C-2) NOTWITHSTANDING ANY OTHER PROVISION OF LAW: (1) WHERE  A  COUNTY
CONTAINING ONE OR MORE CITIES WITH A POPULATION OF LESS THAN ONE MILLION
HAS  ELECTED THE EXEMPTION FOR COMMERCIAL FUEL CELL ELECTRICITY GENERAT-
ING SYSTEMS  EQUIPMENT  AND  ELECTRICITY  GENERATED  BY  SUCH  EQUIPMENT
PROVIDED  IN  SUBDIVISION (KK) OF SUCH SECTION ELEVEN HUNDRED FIFTEEN, A
CITY WITHIN SUCH COUNTY SHALL HAVE THE PRIOR RIGHT TO IMPOSE TAX ON SUCH
EXEMPT EQUIPMENT AND/OR ELECTRICITY TO THE EXTENT OF  ONE  HALF  OF  THE
MAXIMUM RATES AUTHORIZED UNDER SUBDIVISION (A) OF SECTION TWELVE HUNDRED
TEN OF THIS ARTICLE;
  (2)  WHERE  A  CITY OF LESS THAN ONE MILLION HAS ELECTED THE EXEMPTION
FOR COMMERCIAL FUEL CELL ELECTRICITY GENERATING  SYSTEMS  EQUIPMENT  AND
ELECTRICITY  GENERATED BY SUCH EQUIPMENT PROVIDED IN SUBDIVISION (KK) OF
SUCH SECTION ELEVEN HUNDRED FIFTEEN, THE COUNTY IN WHICH  SUCH  CITY  IS
LOCATED  SHALL  HAVE THE PRIOR RIGHT TO IMPOSE TAX ON SUCH EXEMPT EQUIP-
MENT AND/OR ELECTRICITY TO THE EXTENT OF ONE HALF OF THE  MAXIMUM  RATES
AUTHORIZED  UNDER  SUBDIVISION (A) OF SECTION TWELVE HUNDRED TEN OF THIS
ARTICLE.
  S 7. This act shall take effect  June  1,  2016  and  shall  apply  in
accordance  with the applicable transitional provisions in sections 1106
and 1217 of the tax law.

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Senate Bill S6721A

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Sponsored By

Joseph A. Griffo

Archive: Last Bill Status - In Senate Committee Energy And Telecommunications Committee

Bill Amendments

co-Sponsors

Rich Funke

Robert G. Ortt

2015-S6721 - Details

2015-S6721 - Summary

2015-S6721 - Sponsor Memo

2015-S6721 - Bill Text download pdf

co-Sponsors

Rich Funke

Robert G. Ortt

2015-S6721A (ACTIVE) - Details

2015-S6721A (ACTIVE) - Summary

2015-S6721A (ACTIVE) - Sponsor Memo

2015-S6721A (ACTIVE) - Bill Text download pdf

Comments