EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12374-02-9
S. 60--A 2 A. 160--A
the tax law, in relation to adding filing fees for partnerships (Part
J); to amend the general municipal law and the tax law, in relation to
enacting reforms to the empire zones program; and to repeal certain
provisions of such laws relating thereto (Part K); to amend the public
housing law, in relation to providing a credit against income tax for
persons or entities investing in low-income housing (Part L); to amend
the tax law and the administrative code of the city of New York, in
relation to limiting itemized deductions for certain taxpayers and
determining the amount of estimated tax installments to be paid (Part
M); to amend the tax law, in relation to the treatment of income
received by partners for performing investment management services as
New York source income received for the performance of services (Part
N); to amend the tax law, in relation to providing taxpayers with a
credit for increasing research activities (Part O); to amend the tax
law, in relation to the qualified emerging technology company facili-
ties, operations and training credit (Part P); to amend the tax law,
in relation to imposing sales tax on cable television service (Part
Q); to amend the tax law, in relation to the tobacco products and
cigarette taxes to remedy various compliance and enforcement problems
and in relation to taxing cigars by unit rather than by a percentage
of the wholesale price (Part R); to amend the tax law, in relation to
including the amount of any discount given for a coupon in the amounts
subject to the sales and compensating use taxes (Part S); to amend the
state finance law, in relation to investment of lottery moneys avail-
able and retained on deposit for the payment of lottery prizes (Part
T); to amend the tax law, in relation to replacing the year-round
sales and compensating use tax exemption for clothing and footwear
under one hundred ten dollars with two one-week exemption periods with
a five hundred dollar threshold and authorizing counties and cities
that impose such taxes to elect or decline such exemption weeks; and
to repeal subdivision (k) of section 1210 of such law relating thereto
(Part U); to amend the tax law, in relation to imposing state and
local sales and compensating use taxes on certain personal services
and credit rating and reporting services currently imposed by a city
of one million or more, and to repeal section 11-2002 and subchapter 3
of chapter 20 of title 11 of the administrative code of the city of
New York, relating to that city's sales and use taxes on those
personal services and credit rating and reporting services (Part V);
to amend the tax law, in relation to making technical corrections
regarding the operation of video lottery gaming and approving the
construction or alteration of any facility housing video lottery
gaming; and to amend chapter 383 of the laws of 2001, amending the tax
law and other laws relating to authorizing the division of the lottery
to conduct a pilot program involving the operation of video lottery
terminals at certain racetracks, in relation to the effectiveness
thereof; and to repeal certain provisions of the tax law relating
thereto (Part W); to amend the tax law and the alcoholic beverage
control law, in relation to taxing flavored malt beverages at the low
liquor tax rate (Part X); to amend the racing, pari-mutuel wagering
and breeding law in relation to licenses for simulcast facilities,
sums relating to track simulcast, simulcast of out-of-state thorough-
bred races, simulcasting of races run by out-of-state harness tracks
and distributions of wagers; to amend chapter 281 of the laws of 1994
amending the racing, pari-mutuel wagering and breeding law and other
laws relating to simulcasting and to amend chapter 346 of the laws of
1990 amending the racing, pari-mutuel wagering and breeding law and
S. 60--A 3 A. 160--A
other laws relating to simulcasting and the imposition of certain
taxes, in relation to extending certain provisions thereof; and to
amend the racing, pari-mutuel wagering and breeding law, in relation
to extending certain provisions thereof (Part Y); to amend the tax
law, in relation to changing the rate of the prepaid sales tax on
cigarettes (Part Z); to amend the tax law, in relation to curtailing
certain abusive sales and use tax avoidance schemes by narrowing the
use tax non-resident exemption for certain items of tangible personal
property and the sales tax exemption for commercial aircraft (Part
AA); to repeal subdivision (e-1) of section 1132 of the tax law relat-
ing to a sales tax bad debt credit or refund for purchases made by
private label credit cards (Part BB); to amend the tax law and the
rural electric cooperative law, in relation to imposing sales and
compensating use tax on digital products and clarifying the corpo-
ration franchise tax treatment of these products (Part CC); to amend
the tax law, chapter 35 of the laws of 2006 amending the tax law
relating to computing sales and compensating use tax on motor fuel and
diesel motor fuel and amending the tax law and the general business
law relating to requiring retail dealers of motor fuel and diesel
motor fuel to reduce prices for such fuel, and chapter 109 of the laws
of 2006 amending the tax law and other laws relating to the sales tax
imposed on motor fuel and diesel motor fuel, in relation to repealing
the state and any local sales and compensating use tax cap on motor
fuel and diesel motor fuel and restoring the percentage rate of those
taxes on those fuels (Part DD); to amend the tax law, in relation to
reauthorizing the commissioner of taxation and finance to require the
use of decals in certain instances (Part EE); to amend the tax law, in
relation to expanding the definition of vendor for purposes of the
sales and compensating use taxes (Part FF); to amend the racing, pari-
mutuel wagering and breeding law and the tax law, in relation to
authorizing video lottery gaming at Belmont Park (Part GG); to amend
the tax law and the state finance law, in relation to imposing a state
sales and compensating use tax surcharge on certain beverage products
(Part HH); to amend chapter 405 of the laws of 1999, amending the real
property tax law relating to improving the administration of the
school tax relief (STAR) program, in relation to eliminating the expi-
ration and repeal of the Quick Draw lottery game; and to amend the tax
law, in relation to the game of Quick Draw (Part II); to amend the tax
law, in relation to participation in more than one joint, multi-juris-
diction and out-of-state lottery (Part JJ); to amend the alcoholic
beverage control law, in relation to creating a new grocery or drug
store wine license (Part KK); to amend the tax law, in relation to
taxes on beer and wine under article 18 of the tax law (Part LL); to
amend the tax law, in relation to the special tax on passenger car
rentals under article 28-A of such law (Part MM); to amend the tax
law, in relation to imposing state and local sales taxes on certain
transportation services (Part NN); to amend the tax law, in relation
to expanding sales taxes on certain amusement charges; and to repeal
sections 1122 and 1123 of such law relating thereto (Part OO); to
amend the tax law, in relation to narrowing the sales taxes definition
and treatment of capital improvement (Part PP); to amend the tax law,
in relation to the fees for replacement highway use tax credentials
(Part QQ); to amend the tax law, in relation to imposing an additional
rate of sales tax on certain luxury property (Part RR); and to amend
the tax law, in relation to reporting information regarding deposits
and bank settlements (Subpart A); to amend the tax law, in relation to
S. 60--A 4 A. 160--A
authorizing the use of generally accepted statistical sampling to
determine the amount of sales and compensating use tax due under arti-
cles 28 and 29 of such law (Subpart B); to amend the tax law, in
relation to imposing a penalty for failure to keep mandatory records,
to provide records in auditable format or to provide access to manda-
tory records maintained electronically (Subpart C); to amend the tax
law, in relation to the failure of a responsible person to collect and
pay over withholding tax (Subpart D); to amend the tax law, in
relation to certain penalties; to amend chapter 61 of the laws of 2005
amending the tax law relating to certain transactions and related
information, in relation to making the penalty amount for aiding or
assisting in the giving of fraudulent returns permanent; and to repeal
certain provisions of the tax law relating thereto (Subpart E); to
amend the tax law, in relation to providing expedited hearings relat-
ing to cancellations, revocations, or suspensions of certain creden-
tials and to penalties imposed on persons who aid or assist in the
filing of fraudulent tax documents (Subpart F); to amend the tax law,
in relation to establishing an award program for significant informa-
tion concerning noncompliance with the tax laws of the state of New
York (Subpart G); to amend the tax law, in relation to changing the
last quarterly withholding filing date for employers (Subpart H); to
amend the tax law, in relation to a branch or separate office of a
bank (Subpart I); to amend the criminal procedure law, the penal law
and the tax law, in relation to creating the offense of "tax fraud
act"; to amend the tax law, in relation to simplifying and consolidat-
ing the provisions describing the acts that constitute offenses under
such law; and to repeal certain provisions of the tax law relating
thereto (Subpart J); to amend the county law, in relation to authoriz-
ing district attorneys to appoint attorneys employed by the department
of taxation and finance as special assistant district attorneys in tax
cases (Subpart K); to amend the tax law, in relation to clarifying
some technical aspects of the voluntary disclosure and compliance
program (Subpart L); to amend the tax law, abandoned property law,
environmental conservation law, insurance law, lien law, mental
hygiene law, public health law, real property tax law, social services
law, state finance law and the administrative code of the city of New
York, in relation to decreasing the overpayment and increasing the
underpayment rates of interest, changing the overpayment interest
accrual date for sales and compensating use taxes and providing for an
interest-free period for refunds or credits of sales and compensating
use taxes (Subpart M); to amend the tax law, in relation to requiring
certain third-parties to file information returns providing informa-
tion about vendors, hotel operators and recipients of amusement charg-
es (Subpart N); to amend the tax law, in relation to the filing of tax
warrants and related records in the department of state; and to repeal
section 6 of such law relating thereto (Subpart O); and to amend the
tax law, in relation to the collection of a penalty and interest on
sales and use taxes upon a bulk sale of assets (Subpart P) (Part SS)
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. This act enacts into law major components of legislation
which are necessary to implement the state fiscal plan for the 2009-2010
state fiscal year. Each component is wholly contained within a Part
S. 60--A 5 A. 160--A
identified as Parts A through SS. The effective date for each particular
provision contained within such Part is set forth in the last section of
such Part. Any provision in any section contained within a Part, includ-
ing the effective date of the Part, which makes a reference to a section
"of this act", when used in connection with that particular component,
shall be deemed to mean and refer to the corresponding section of the
Part in which it is found. Section three of this act sets forth the
general effective date of this act.
PART A
Section 1. Subparagraph (A) of paragraph 1 of subsection (b) of
section 605 of the tax law, as amended by chapter 760 of the laws of
1992, is amended to read as follows:
(A) who is domiciled in this state, unless (i) [he] THE TAXPAYER main-
tains no permanent place of abode in this state, maintains a permanent
place of abode elsewhere, and spends in the aggregate not more than
thirty days of the taxable year in this state, or (ii) (I) within any
period of five hundred forty-eight consecutive days [he] THE TAXPAYER is
present in a foreign country or countries for at least four hundred
fifty days, and (II) during [such] THE period of five hundred forty-
eight consecutive days [he is] THE TAXPAYER, THE TAXPAYER'S SPOUSE
(UNLESS THE SPOUSE IS LEGALLY SEPARATED) AND THE TAXPAYER'S MINOR CHIL-
DREN ARE not present in this state for more than ninety days [and does
not maintain a permanent place of abode in this state at which his
spouse (unless such spouse is legally separated) or minor children are
present for more than ninety days], and (III) during the nonresident
portion of the taxable year with or within which [such] THE period of
five hundred forty-eight consecutive days begins and the nonresident
portion of the taxable year with or within which [such] THE period ends,
[he] THE TAXPAYER is present in this state for a number of days which
does not exceed an amount which bears the same ratio to ninety as the
number of days contained in [such] THAT portion of the taxable year
bears to five hundred forty-eight, or
S 2. Paragraph 1 of subsection (a) of section 1305 of the tax law, as
amended by chapter 790 of the laws of 1978, is amended to read as
follows:
(1) who is domiciled in the city wherein the tax is imposed, unless
(A) [he] THE TAXPAYER maintains no permanent place of abode in [such]
THE city, maintains a permanent place of abode elsewhere, and spends in
the aggregate not more than thirty days of the taxable year in [such]
THE city, or (B) (i) within any period of five hundred forty-eight
consecutive days [he] THE TAXPAYER is present in a foreign country or
countries for at least four hundred fifty days, and (ii) during such
period of five hundred forty-eight consecutive days [he is] THE TAXPAY-
ER, THE TAXPAYER'S SPOUSE (UNLESS THE SPOUSE IS LEGALLY SEPARATED) AND
THE TAXPAYER'S MINOR CHILDREN ARE not present in [such] THE city for
more than ninety days [and does not maintain a permanent place of abode
in such city at which his spouse (unless such spouse is legally sepa-
rated) or minor children are present for more than ninety days], and
(iii) during any period of less than twelve months, which would be
treated as a separate taxable period pursuant to section thirteen
hundred seven, and which period is contained within [such] THE period of
five hundred forty-eight consecutive days, [he] THE TAXPAYER is present
in [such] THE city for a number of days which does not exceed an amount
which bears the same ratio to ninety as the number of days contained in
S. 60--A 6 A. 160--A
[such] THAT period of less than twelve months bears to five hundred
forty-eight, or
S 3. Subparagraph (A) of paragraph 1 of subdivision (b) of section
11-1705 of the administrative code of the city of New York, as amended
by chapter 333 of the laws of 1987, is amended to read as follows:
(A) who is domiciled in this city, unless (i) [he] THE TAXPAYER main-
tains no permanent place of abode in this city, maintains a permanent
place of abode elsewhere, and spends in the aggregate not more than
thirty days of the taxable year in this city, or (ii) (I) within any
period of five hundred forty-eight consecutive days [he] THE TAXPAYER is
present in a foreign country or countries for at least four hundred
fifty days, and (II) during [such] THE period of five hundred forty-
eight consecutive days [he is] THE TAXPAYER, THE TAXPAYER'S SPOUSE
(UNLESS THE SPOUSE IS LEGALLY SEPARATED) AND THE TAXPAYER'S MINOR CHIL-
DREN ARE not present in this city for more than ninety days [and does
not maintain a permanent place of abode in this city at which his spouse
(unless such spouse is legally separated) or minor children are present
for more than ninety days], and (III) during any period of less than
twelve months, which would be treated as a separate taxable period
pursuant to section 11-1754, and which period is contained within [such]
THE period of five hundred forty-eight consecutive days, [he] THE
TAXPAYER is present in this city for a number of days which does not
exceed an amount which bears the same ratio to ninety as the number of
days contained in [such] THAT period of less than twelve months bears to
five hundred forty-eight, or
S 4. Paragraph 1 of subsection (a) of section 1325 of the tax law, as
added by chapter 345 of the laws of 1984, is amended to read as follows:
(1) who is domiciled in the city wherein the city income tax surcharge
is imposed pursuant to the authority of this article, unless (A) [he]
THE TAXPAYER maintains no permanent place of abode in such city, main-
tains a permanent place of abode elsewhere, and spends in the aggregate
not more than thirty days of the taxable year in [such] THE city, or
(B)(i) within any period of five hundred forty-eight consecutive days
[he is] THE TAXPAYER, THE TAXPAYER'S SPOUSE (UNLESS THE SPOUSE IS LEGAL-
LY SEPARATED) AND THE TAXPAYER'S MINOR CHILDREN ARE present in a foreign
country or countries for at least four hundred fifty days, and (ii)
during [such] THE period of five hundred forty-eight consecutive days
[he] THE TAXPAYER is not present in [such] THE city for more than ninety
days [and does not maintain a permanent place of abode in such city at
which his spouse (unless such spouse is legally separated) or minor
children are present for more than ninety days], and (iii) during any
period of less than twelve months, which would be treated as a separate
taxable period pursuant to section thirteen hundred twenty-seven of this
article, and which period is contained within [such] THE period of five
hundred forty-eight consecutive days, [he] THE TAXPAYER is present in
[such] THE city for a number of days which does not exceed an amount
which bears the same ratio to ninety as the number of days contained in
[such] THAT period of less than twelve months bears to five hundred
forty-eight, or
S 5. Paragraph 1 of subsection (f) of section 1 contained in
subsection (c) of section 1340 of the tax law, as added by chapter 345
of the laws of 1984, is amended to read as follows:
(1) who is domiciled in the city, unless (A) [he] THE TAXPAYER main-
tains no permanent place of abode in the city, maintains a permanent
place of abode elsewhere, and spends in the aggregate not more than
thirty days of the taxable year in the city, or (B) (i) within any peri-
S. 60--A 7 A. 160--A
od of five hundred forty-eight consecutive days [he] THE TAXPAYER is
present in a foreign country or countries for at least four hundred
fifty days, and (ii) during such period of five hundred forty-eight
consecutive days [he is] THE TAXPAYER, THE TAXPAYER'S SPOUSE (UNLESS THE
SPOUSE IS LEGALLY SEPARATED) AND THE TAXPAYER'S MINOR CHILDREN ARE not
present in the city for more than ninety days [and does not maintain a
permanent place of abode in the city at which his spouse (unless such
spouse is legally separated) or minor children are present for more than
ninety days], and (iii) during any period of less than twelve months,
which would be treated as a separate taxable period based on a change of
resident status, and which period is contained within [such] THE period
of five hundred forty-eight consecutive days, [he] THE TAXPAYER is pres-
ent in the city for a number of days which does not exceed an amount
which bears the same ratio to ninety as the number of days contained in
[such] THAT period of less than twelve months bears to five hundred
forty-eight, or
S 6. This act shall take effect immediately and apply to taxable years
beginning on or after January 1, 2009.
PART B
Section 1. Subparagraph 2 of paragraph (b) of subdivision 1 of section
210 of the tax law, as amended by section 1 of part GG-1 of chapter 57
of the laws of 2008, is amended to read as follows:
(2) For purposes of subparagraph one of this paragraph, the term
"manufacturer" shall mean a taxpayer which during the taxable year is
principally engaged in the production of goods by manufacturing, proc-
essing, assembling, refining, mining, extracting, farming, agriculture,
horticulture, floriculture, viticulture or commercial fishing. HOWEVER,
THE GENERATION AND DISTRIBUTION OF ELECTRICITY, THE DISTRIBUTION OF
NATURAL GAS, AND THE PRODUCTION OF STEAM ASSOCIATED WITH THE GENERATION
OF ELECTRICITY ARE NOT QUALIFYING ACTIVITIES FOR A MANUFACTURER UNDER
THIS SUBPARAGRAPH. Moreover, for purposes of computing the capital base
in a combined report, the combined group shall be considered a "manufac-
turer" for purposes of this subparagraph only if the combined group
during the taxable year is principally engaged in the activities set
forth in this subparagraph, or any combination thereof. A taxpayer or a
combined group shall be "principally engaged" in activities described
above if, during the taxable year, more than fifty percent of the gross
receipts of the taxpayer or combined group, respectively, are derived
from receipts from the sale of goods produced by such activities. In
computing a combined group's gross receipts, intercorporate receipts
shall be eliminated. A "qualified New York manufacturer" is a manufac-
turer that has property in New York that is described in clause (A) of
subparagraph (i) of paragraph (b) of subdivision twelve of this section
and either (i) the adjusted basis of that property for federal income
tax purposes at the close of the taxable year is at least one million
dollars or (ii) all of its real and personal property is located in New
York. In addition, a "qualified New York manufacturer" means a taxpayer
that is defined as a qualified emerging technology company under para-
graph (c) of subdivision one of section thirty-one hundred two-e of the
public authorities law regardless of the ten million dollar limitation
expressed in subparagraph one of such paragraph.
S 2. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2009.
S. 60--A 8 A. 160--A
PART C
Section 1. Paragraph 7 of subdivision (a) of section 1512 of the tax
law, as amended by chapter 817 of the laws of 1987, is amended to read
as follows:
(7) a town or county cooperative insurance corporation as heretofore
contemplated by section one hundred eighty-seven of this chapter in
effect immediately prior to January first, nineteen hundred
seventy-four, THAT PROPERLY REPORTED TO THE SUPERINTENDENT OF INSURANCE
TOTAL DIRECT PREMIUMS WRITTEN FOR THE TAXABLE YEAR OF TWENTY-FIVE
MILLION DOLLARS OR LESS.
S 2. This act shall take effect immediately and apply to taxable years
beginning on or after January 1, 2009.
PART D
Section 1. Subdivisions (g), (h), (i) and (j) of section 1500, and
sections 1501, 1502, 1502-a, 1503, 1504, and 1505 of the tax law are
REPEALED.
S 2. Subdivision (e) of section 1500 of the tax law, as amended by
section 1 of part H3 of chapter 62 of the laws of 2003, is amended to
read as follows:
(e) The term "taxpayer" means any insurance corporation subject to the
tax imposed under section [fifteen hundred one, fifteen hundred two-a,
or] fifteen hundred ten or any captive insurance company subject to the
tax imposed under section fifteen hundred two-b of this article.
S 3. Subdivision (a) of section 1502-b of the tax law, as separately
amended by section 3 of part H1 of chapter 62 and chapter 188 of the
laws of 2003, is amended to read as follows:
(a) In lieu of the [taxes] TAX and tax surcharge imposed by sections
[fifteen hundred one, fifteen hundred two-a,] fifteen hundred five-a[,]
and fifteen hundred ten of this article, every captive insurance company
licensed by the superintendent of insurance pursuant to the provisions
of article seventy of the insurance law, other than the metropolitan
transportation authority and a public benefit corporation or not-for-
profit corporation formed by a city with a population of one million or
more pursuant to subsection (a) of section seven thousand five of the
insurance law, each of which is expressly exempt from the payment of
fees, taxes or assessments whether state or local, shall, for the privi-
lege of exercising its corporate franchise, pay a tax on (1) all gross
direct premiums, less return premiums thereon, written on risks located
or resident in this state and (2) all assumed reinsurance premiums, less
return premiums thereon, written on risks located or resident in this
state. The rate of the tax imposed on gross direct premiums shall be
four-tenths of one percent on all or any part of the first twenty
million dollars of premiums, three-tenths of one percent on all or any
part of the second twenty million dollars of premiums, two-tenths of one
percent on all or any part of the third twenty million dollars of premi-
ums, and seventy-five thousandths of one percent on each dollar of
premiums thereafter. The rate of the tax on assumed reinsurance premiums
shall be two hundred twenty-five thousandths of one percent on all or
any part of the first twenty million dollars of premiums, one hundred
and fifty thousandths of one percent on all or any part of the second
twenty million dollars of premiums, fifty thousandths of one percent on
all or any part of the third twenty million dollars of premiums and
twenty-five thousandths of one percent on each dollar of premiums there-
S. 60--A 9 A. 160--A
after. The tax imposed by this section shall be equal to the greater of
(i) the sum of the tax imposed on gross direct premiums and the tax
imposed on assumed reinsurance premiums or (ii) five thousand dollars.
S 4. Subdivisions (a) and (e) of section 1505-a of the tax law, subdi-
vision (a) as amended by section 6 of part II-1 of chapter 57 of the
laws of 2008 and subdivision (e) as amended by chapter 166 of the laws
of 1991, are amended to read as follows:
(a) (1) Every domestic insurance corporation and every foreign or
alien insurance corporation, and every life insurance corporation
described in PARAGRAPH TWO OF subdivision (b) of section fifteen hundred
[one] TEN of this article, for the privilege of exercising its corporate
franchise, or of doing business, or of employing capital, or of owning
or leasing property in the metropolitan commuter transportation district
in a corporate or organized capacity, or of maintaining an office in the
metropolitan commuter transportation district, for all or any part of
its taxable years commencing on or after January first, nineteen hundred
eighty-two, but ending before December thirty-first, two thousand thir-
teen, except corporations specified in subdivision (c) of section
fifteen hundred twelve of this article, shall annually pay, in addition
to the [taxes otherwise] TAX imposed by SECTION FIFTEEN HUNDRED TEN OF
this article, a tax surcharge on [the taxes imposed under this article]
THAT TAX after the deduction of any credits otherwise allowable under
this article as allocated to such district. [Such taxes shall be allo-
cated to such district for purposes of computing such tax surcharge upon
taxpayers subject to tax under subdivision (b) of section fifteen
hundred ten of this article by applying the methodology, procedures and
computations set forth in subdivisions (a) and (b) of section fifteen
hundred four of this article, except that references to terms denoting
New York premiums, and total wages, salaries, personal service compen-
sation and commissions within New York shall be read as denoting within
the metropolitan commuter transportation district and terms denoting
total premiums and total wages, salaries, personal service compensation
and commissions shall be read as denoting within the state. If it shall
appear to the commissioner that the application of the methodology,
procedures and computations set forth in such subdivisions (a) and (b)
does not properly reflect the activity, business or income of a taxpayer
within the metropolitan commuter transportation district, then the
commissioner shall be authorized, in the commissioner's discretion, to
adjust such methodology, procedures and computations for the purpose of
allocating such taxes by:
(A) excluding one or more factors therein;
(B) including one or more other factors therein, such as expenses,
purchases, receipts other than premiums, real property or tangible
personal property; or
(C) any other similar or different method which allocates such taxes
by attributing a fair and proper portion of such taxes to the metropol-
itan commuter transportation district. The commissioner from time to
time shall publish all rulings of general public interest with respect
to any application of the provisions of the preceding sentence. The
commissioner may promulgate rules and regulations to further implement
the provisions of this section.
(2) Such taxes] THE TAX IMPOSED BY SECTION FIFTEEN HUNDRED TEN shall
be allocated to such district for purposes of computing such tax
surcharge [upon taxpayers subject to tax under section fifteen hundred
two-a of this article] pursuant to a fraction, the denominator of which
shall be the direct premiums subject to tax under section fifteen
S. 60--A 10 A. 160--A
hundred ten of this article, and the numerator of which shall be the
direct premiums subject to tax under section fifteen hundred ten of this
article that are written on risks located or resident in the metropol-
itan commuter transportation district, including premiums written,
procured or received in the metropolitan commuter transportation
district on business that cannot be specifically assigned as located or
resident in an area of New York state outside the metropolitan commuter
transportation district, or in another state or states; provided, howev-
er, in the case of special risk premiums, the numerator shall include
only those premiums written, procured or received in the metropolitan
commuter transportation district on property or risks located or resi-
dent in the metropolitan commuter transportation district. If it shall
appear to the commissioner that the application of the methodology,
procedures and computations set forth in this paragraph does not proper-
ly reflect the activity[,] OR business [or income] of a taxpayer within
the metropolitan commuter transportation district, then the commissioner
shall be authorized, in the commissioner's discretion, to adjust such
methodology, procedures and computations for the purpose of allocating
such taxes by: (A) excluding the factor therein and including one or
more other factors such as expenses, purchases, receipts other than
premiums, real property or tangible personal property; or (B) any other
similar or different method which allocates such taxes by attributing a
fair and proper portion of such taxes to the metropolitan commuter
transportation district. The commissioner from time to time shall
publish all rulings of general public interest with respect to any
application of the provisions of the preceding sentence. The commission-
er may promulgate rules and regulations to further implement the
provisions of this section.
[(3)] (2) Such tax surcharge shall be computed at the rate of [eigh-
teen percent of the taxes imposed under sections fifteen hundred one and
fifteen hundred ten of this article as limited by section fifteen
hundred five of this article, as allocated to such district, for such
taxable years or any part of such taxable years ending before December
thirty-first, nineteen hundred eighty-three after the deduction of any
credits otherwise allowable under this article, at the rate of seventeen
percent of the taxes imposed under such sections as limited by section
fifteen hundred five of this article, as allocated to such district, for
such taxable years or any part of such taxable years ending on or after
December thirty-first, nineteen hundred eighty-three and before January
first, two thousand three after the deduction of any credits otherwise
allowable under this article, and at the rate of seventeen percent of
the taxes imposed under sections fifteen hundred one, fifteen hundred
two-a, and fifteen hundred ten of this article, as limited or otherwise
determined by subdivision (a) or (b) of section fifteen hundred five of
this article, as allocated to such district, for such taxable years or
any part of such taxable years ending after December thirty-first, two
thousand two after the deduction of any credits otherwise allowable
under this article] SEVENTEEN PERCENT OF THE TAX IMPOSED BY SECTION
FIFTEEN HUNDRED TEN OF THIS ARTICLE AFTER THE DEDUCTION OF ANY CREDITS
OTHERWISE ALLOWABLE UNDER THIS ARTICLE, AS ALLOCATED TO SUCH DISTRICT,
FOR TAXABLE YEARS OR ANY PART OF A TAXABLE YEAR ENDING AFTER DECEMBER
THIRTY-FIRST, TWO THOUSAND EIGHT; provided, however, that the tax
surcharge imposed by this section shall not be imposed upon any taxpayer
for more than three hundred seventy-two months. [Provided however, that
for taxable years commencing on or after July first, two thousand, and
in the case of taxpayers subject to tax under section fifteen hundred
S. 60--A 11 A. 160--A
two-a of this article, for taxable years of such taxpayers beginning on
or after July first, two thousand and before January first, two thousand
three, such surcharge shall be calculated as if (i) the rate of the tax
computed under paragraph one of subdivision (a) of section fifteen
hundred two of this article was nine percent and (ii) the rate of the
limitation on tax set forth in section fifteen hundred five of this
article for domestic, foreign and alien insurance corporations except
life insurance corporations was two and six-tenths percent.]
(e) The provisions concerning returns under section fifteen hundred
fifteen of this article shall be applicable to this section, except that
for purposes of an automatic extension for six months for filing a
return covering the tax surcharges imposed by this section, such auto-
matic extension shall be allowed only if a taxpayer files with the
commissioner an application for extension in such form and manner as
said commissioner may prescribe by regulation and such taxpayer pays on
or before the date of such filing in addition to any other amounts
required under this article, either ninety percent of the entire tax
required to be paid under this section for the applicable period, or not
less than the tax surcharge shown on the taxpayer's return for the
preceding taxable year, if such preceding taxable year was a taxable
year of twelve months. The tax surcharge imposed by this section shall
be payable to the commissioner in full at the time the return is
required to be filed, and such tax surcharge or the balance thereof,
imposed on any taxpayer which ceases to exercise its franchise or be
subject to the tax surcharge imposed by this section shall be payable to
the commissioner at the time the return is required to be filed,
provided such tax surcharge of such domestic, foreign or alien insurance
corporation including life insurance corporations, as described in PARA-
GRAPH TWO OF subdivision (b) of section fifteen hundred [one] TEN of
this article, shall be subject to adjustment as the circumstances may
require; all other tax surcharges of any such taxpayer, which pursuant
to the foregoing provisions of this section would otherwise be payable
subsequent to the time such return is required to be filed, shall never-
theless be payable at such time. All of the provisions of this article
presently applicable are applicable to the tax surcharge imposed by this
section.
S 5. The section heading of section 1510 of the tax law, as amended by
section 7 of part H3 of chapter 62 of the laws of 2003, is amended to
read as follows:
[Additional franchise] FRANCHISE tax on insurance corporations.
S 6. Subdivision (a) of section 1510 of the tax law, as amended by
section 7 of part H3 of chapter 62 of the laws of 2003, is amended to
read as follows:
(a) Domestic, foreign and alien insurance corporations except life
insurance corporations. [Except as hereinafter provided, for taxable
years beginning before January first, two thousand three every] EVERY
domestic insurance corporation, every foreign insurance corporation and
every alien insurance corporation, other than such corporations trans-
acting the business of life insurance, (1) authorized to transact busi-
ness in this state under a certificate of authority from the superinten-
dent of insurance or (2) which is a risk retention group as defined in
subsection (n) of section five thousand nine hundred two of the insur-
ance law, shall, for the privilege of exercising corporate franchises or
for carrying on business in a corporate or organized capacity within
this state, and in addition to any other taxes imposed for such privi-
lege, pay a tax on all gross direct premiums, less return premiums ther-
S. 60--A 12 A. 160--A
eon, written on risks located or resident in this state. The rate of
tax imposed by this subdivision shall be two percent on premiums [writ-
ten on or after January first, nineteen hundred seventy-four and before
January first, nineteen hundred seventy-five, one and nine-tenths
percent on premiums written on or after January first, nineteen hundred
seventy-five and before January first, nineteen hundred seventy-six, one
and eight-tenths percent on premiums written on or after January first,
nineteen hundred seventy-six and before January first, nineteen hundred
seventy-eight, one and two-tenths percent on premiums written on or
after January first, nineteen hundred seventy-eight and before January
first, nineteen hundred ninety-two and one and three-tenths percent on
premiums written on and after such date. Provided, however, that the
rate of tax imposed by this subdivision on all gross direct premiums,
less return premiums thereon, for accident and health insurance
contracts shall be one and six-tenths percent for such premiums written
on or after January first, nineteen hundred seventy-four and before
January first, nineteen hundred seventy-eight, and one percent for such
premiums written on or after January first, nineteen hundred seventy-
eight].
S 7. Paragraph 1 of subdivision (b) of section 1510 of the tax law, as
amended by section 7 of part H3 of chapter 62 of the laws of 2003, is
amended to read as follows:
(1) Except as hereinafter provided, every domestic life insurance
corporation, and every foreign and alien life insurance corporation
authorized to transact business in this state under a certificate of
authority from the superintendent of insurance, shall, for the privilege
of exercising corporate franchises or for carrying on business in a
corporate or organized capacity within this state, and in addition to
any other taxes imposed for such privilege, pay a tax on all gross
direct premiums, less return premiums thereon, received in cash or
otherwise on risks resident in this state, including supplemental
contracts for total and permanent disability benefits and accidental
death benefits. The rate of such tax shall be [(i) one and six-tenths]
TWO percent on such premiums [received on or after January first, nine-
teen hundred seventy-four and before January first, nineteen hundred
seventy-eight, (ii) one percent on such premiums received on or after
January first, nineteen hundred seventy-eight and before January first,
nineteen hundred eighty-seven, (iii) eight-tenths percent on such premi-
ums received on or after January first, nineteen hundred eighty-seven
and before January first, nineteen hundred ninety-eight, and (iv)
seven-tenths percent on such premiums received on or after January
first, nineteen hundred ninety-eight].
S 8. Section 1510 of the tax law is amended by adding a new subdivi-
sion (d) to read as follows:
(D) IN NO EVENT CAN THE TAX IMPOSED UNDER THIS SECTION BE LESS THAN
TWO HUNDRED FIFTY DOLLARS.
S 9. Paragraph 2 of subdivision (e) of section 1511 of the tax law, as
amended by section 8 of part H3 of chapter 62 of the laws of 2003, is
amended to read as follows:
(2) In no event shall the credit herein provided for be allowed in an
amount which will reduce the tax payable to less than the minimum tax
fixed by [paragraph four of subdivision (a) of section fifteen hundred
two of this article or section fifteen hundred two-a of this article,
whichever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN
OF THIS ARTICLE. If, however, the amount of credit allowable under this
subdivision for any taxable year reduces the tax to such amount, any
S. 60--A 13 A. 160--A
amount of credit not deductible in such taxable year may be carried over
to the following year or years and may be deducted from the taxpayer's
tax for such year or years.
S 10. Subparagraph (A) of paragraph 3 and paragraph 5 of subdivision
(f) of section 1511 of the tax law, subparagraph (A) of paragraph 3 as
amended by chapter 803 of the laws of 1985 and paragraph 5 as amended by
section 9 of part H3 of chapter 62 of the laws of 2003, are amended to
read as follows:
(A) For each calendar year for which a credit has been authorized
pursuant to section seven thousand seven hundred twelve of the insurance
law, the commissioner of taxation and finance shall determine the total
tax liability of all life insurance corporations under this article,
[other than under section fifteen hundred five-a of this article,]
before the application of any credits allowed pursuant to this section,
for taxable years beginning in such calendar year. Such total tax
liability shall be published in the state register on or before the
thirtieth day of September of the next succeeding calendar year.
(5) No credit allowed pursuant to this subdivision shall reduce the
tax payable by any taxpayer under this article for any taxable year to
an amount less than the minimum tax fixed by [paragraph four of subdivi-
sion (a) of section fifteen hundred two of this article or section
fifteen hundred two-a of this article, whichever is applicable] SUBDIVI-
SION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE.
S 11. The closing paragraph of paragraph 4 and paragraph 5 of subdivi-
sion (g) of section 1511 of the tax law, the closing paragraph of para-
graph 4 as amended by section 10 and paragraph 5 as amended by section
11 of part H3 of chapter 62 of the laws of 2003, are amended to read as
follows:
Provided, further, however, that the credit provided for herein with
respect to the taxable year, and carryovers of such credit to the taxa-
ble year, deducted from the tax otherwise due, may not, in the aggre-
gate, exceed fifty percent of [(i) in the case of taxpayers subject to
tax under subdivision (b) of section fifteen hundred ten of this arti-
cle, the lesser of (I) the limitation on tax computed pursuant to subdi-
vision (a) of section fifteen hundred five, or (II) the greater of the
sum of the taxes imposed under sections fifteen hundred one and fifteen
hundred ten or the amount of tax computed pursuant to subdivision (b) of
section fifteen hundred five, or (ii) for all other insurance corpo-
rations,] the tax imposed under section fifteen hundred [two-a] TEN of
this article, computed without regard to any credit provided for under
this article.
(5) The credit or carryovers of such credit allowed under this subdi-
vision for any taxable year shall not, in the aggregate, reduce the tax
due for such year to less than the minimum tax fixed by [paragraph four
of subdivision (a) of section fifteen hundred two of this article or by
section fifteen hundred two-a of this article, whichever is applicable]
SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. Howev-
er, if the amount of credit or carryovers of such credit, or both,
allowed under this subdivision for any taxable year reduces the tax to
such amount, or if any part of the credit or carryovers of such credit
may not be deducted from the tax otherwise due by reason of the final
sentence in paragraph four [hereof] OF THIS SUBDIVISION, any amount of
credit or carryovers of such credit thus not deductible in such taxable
year may be carried over to the following year or years and may be
deducted from the taxpayer's tax for such year or years.
S. 60--A 14 A. 160--A
S 12. Paragraphs 2 and 3 of subdivision (h) of section 1511 of the tax
law, paragraph 2 as amended by section 12 of part H3 of chapter 62 of
the laws of 2003 and paragraph 3 as amended by chapter 708 of the laws
of 1993, are amended to read as follows:
(2) The credit and carryover of such credit allowed under this subdi-
vision for any taxable year shall not, in the aggregate, reduce the tax
due for such year to less than the minimum fixed by [paragraph four of
subdivision (a) of section fifteen hundred two of this article or by
section fifteen hundred two-a of this article, whichever is applicable]
SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. Howev-
er, if the amount of credit or carryovers of such credit, or both,
allowed under this subdivision for any taxable year reduces the tax to
such amount, or if any part of the credit or carryovers of such credit
may not be deducted from the tax otherwise due by reason of the final
sentence of this paragraph, any amount of credit or carryovers of such
credit thus not deductible in such taxable year may be carried over to
the following year or years and may be deducted from the tax for such
year or years. In addition, the amount of such credit, and carryovers of
such credit to the taxable year, deducted from the tax otherwise due may
not, in the aggregate, exceed fifty percent of [(i) in the case of
taxpayers subject to tax under subdivision (b) of section fifteen
hundred ten of this article, the lesser of (I) the limitation on tax
computed pursuant to subdivision (a) of section fifteen hundred five, or
(II) the greater of the sum of the taxes imposed under sections fifteen
hundred one and fifteen hundred ten or the amount of tax computed pursu-
ant to subdivision (b) of section fifteen hundred five, or (ii) for all
other insurance corporations,] the tax imposed under section fifteen
hundred [two-a] TEN of this article, computed without regard to any
credit provided for under this article.
[(3) Where the stock, partnership interest or other ownership interest
arising from a qualified investment as described in subparagraphs (A)
and (B) of paragraph one of this subdivision is disposed of, the taxpay-
er's entire net income shall be computed, pursuant to regulations
promulgated by the commissioner, so as to properly reflect the reduced
cost thereof arising from the application of the credit provided for
herein.]
S 13. Paragraph 5 of subdivision (j) of section 1511 of the tax law,
as amended by section 13 of part H3 of chapter 62 of the laws of 2003,
is amended to read as follows:
(5) Carryover. The credit and carryovers of such credit allowed under
this subdivision for any taxable year shall not, in the aggregate,
reduce the tax due for such year to less than the minimum tax fixed by
[paragraph four of subdivision (a) of section fifteen hundred two of
this article or by section fifteen hundred two-a of this article, which-
ever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF
THIS ARTICLE. However, if the amount of credit or carryovers of such
credit, or both, allowed under this subdivision for any taxable year
reduces the tax to such amount, then any amount of credit or carryovers
of such credit thus not deductible in such taxable year may be carried
over to the following year or years and may be deducted from the taxpay-
er's tax for such year or years.
S 14. Paragraph 3 of subdivision (k) of section 1511 of the tax law,
as amended by section 14 of part H3 of chapter 62 of the laws of 2003,
is amended to read as follows:
(3) No credit allowable pursuant to this subdivision shall reduce the
tax payable under this article to less than the minimum tax fixed by
S. 60--A 15 A. 160--A
[paragraph four of subdivision (a) of section fifteen hundred two of
this article or by section fifteen hundred two-a of this article, which-
ever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF
THIS ARTICLE. If, however, the amount of credit allowable under this
subdivision for any taxable year reduces the tax to such amount, any
amount of credit not taken in such taxable year may be carried over to
the following year or years and may be deducted from the taxpayer's tax
for such year or years.
S 15. Subdivision 1 of section 1511 of the tax law, as amended by
section 15 of part H3 of chapter 62 of the laws of 2003, is amended to
read as follows:
(l) Credit for purchase of an automated external defibrillator. A
taxpayer shall be allowed a credit as hereinafter provided, against the
tax imposed by this article for the purchase, other than for resale, of
an automated external defibrillator, as such term is defined in section
three thousand-b of the public health law. The amount of the credit
shall be the cost to the taxpayer of automated external defibrillators
purchased during the taxable year, such credit not to exceed five
hundred dollars with respect to each unit purchased. The credit allowed
under this subdivision for any taxable year shall not reduce the tax due
for such year to less than the minimum tax fixed by [paragraph four of
subdivision (a) of section fifteen hundred two of this article or by
section fifteen hundred two-a of this article, whichever is applicable]
SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE.
S 16. Paragraph 2 of subdivision (m) of section 1511 of the tax law,
as amended by section 16 of part H3 of chapter 62 of the laws of 2003,
is amended to read as follows:
(2) In no event shall the credit herein provided for be allowed in an
amount which will reduce the tax payable to less than the minimum tax
fixed by [paragraph four of subdivision (a) of section fifteen hundred
two of this article or by section fifteen hundred two-a of this article,
whichever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN
OF THIS ARTICLE. If, however, the amount of credit allowable under this
subdivision for any taxable year reduces the tax to such amount, any
amount of credit not deductible in such taxable year may be carried over
to the following year or years and may be deducted from the taxpayer's
tax for such year or years.
S 17. Paragraph 2 of subdivision (n) of section 1511 of the tax law,
as amended by section 17 of part H3 of chapter 62 of the laws of 2003,
is amended to read as follows:
(2) Application of credit. The credit and carryovers of such credit
allowed under this subdivision for any taxable year shall not, in the
aggregate, reduce the tax due for such year to less than the minimum tax
fixed by [paragraph four of subdivision (a) of section fifteen hundred
two of this article or by section fifteen hundred two-a of this article,
whichever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN
OF THIS ARTICLE. However, if the amount of credit or carryovers of such
credit, or both, allowed under this subdivision for any taxable year
reduces the tax to such amount, then any amount of credit or carryovers
of such credit thus not deductible in such taxable year may be carried
over to the following year or years and may be deducted from the taxpay-
er's tax for such year or years.
S 18. Paragraph 2 of subdivision (o) of section 1511 of the tax law,
as amended by section 18 of part H3 of chapter 62 of the laws of 2003,
is amended to read as follows:
S. 60--A 16 A. 160--A
(2) Carryover. The credit and carryovers of such credit allowed under
this subdivision for any taxable year shall not, in the aggregate,
reduce the tax due for such year to less than the minimum tax fixed by
[paragraph four of subdivision (a) of section fifteen hundred two of
this article or by section fifteen hundred two-a of this article, which-
ever is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF
THIS ARTICLE. However, if the amount of credit or carryovers of such
credit, or both, allowed under this subdivision for any taxable year
reduces the tax to such amount, then any amount of credit or carryovers
of such credit thus not deductible in such taxable year may be carried
over to the following year or years and may be deducted from the taxpay-
er's tax for such year or years.
S 19. Paragraph 2 of subdivision (p) of section 1511 of the tax law,
as amended by section 19 of part H3 of chapter 62 of the laws of 2003,
is amended to read as follows:
(2) Application of credit. The credit allowed under this subdivision
for any taxable year shall not reduce the tax due for such year to less
than the minimum tax fixed by [paragraph four of subdivision (a) of
section fifteen hundred two of this article or by section fifteen
hundred two-a of this article, whichever is applicable] SUBDIVISION (D)
OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount
of credit allowed under this subdivision for any taxable year reduces
the tax to such amount, then any amount of credit thus not deductible in
such taxable year shall be treated as an overpayment of tax to be cred-
ited or refunded in accordance with the provisions of section ten
hundred eighty-six of this chapter. Provided, however, the provisions of
subsection (c) of section ten hundred eighty-eight of this chapter
notwithstanding, no interest shall be paid thereon.
S 20. Paragraph 4 of subdivision (q) of section 1511 of the tax law,
as amended by section 20 of part H3 of chapter 62 of the laws of 2003,
is amended to read as follows:
(4) Except as otherwise provided in this paragraph, the credit allowed
under this subdivision for any taxable year shall not reduce the tax due
for such year to less than the amount fixed as a minimum tax by [para-
graph four of subdivision (a) of section fifteen hundred two of this
article or by section fifteen hundred two-a of this article, whichever
is applicable] SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS
ARTICLE. However, if the amount of credit allowable under this subdivi-
sion for any taxable year reduces the tax to such amount, any amount of
credit allowed for a taxable year may be carried over to the fifteen
taxable years next following such taxable year and may be deducted from
the taxpayer's tax for such year or years. In lieu of such carryover,
any such taxpayer which qualifies as a new business under paragraph
seven of this subdivision may elect to treat the amount of such carry-
over as an overpayment of tax to be credited or refunded in accordance
with the provisions of section one thousand eighty-six of this chapter,
provided, however, the provisions of subsection (c) of section one thou-
sand eighty-eight of this chapter notwithstanding no interest shall be
paid thereon.
S 21. Paragraph 2 of subdivision (r) of section 1511 of the tax law,
as amended by section 21 of part H3 of chapter 62 of the laws of 2003,
is amended to read as follows:
(2) Application of credit. The credit allowed under this subdivision
for any taxable year shall not reduce the tax due for such year to less
than the minimum tax fixed by [paragraph four of subdivision (a) of
section fifteen hundred two of this article or by section fifteen
S. 60--A 17 A. 160--A
hundred two-a of this article, whichever is applicable] SUBDIVISION (D)
OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount
of credit allowed under this subdivision for any taxable year reduces
the tax to such amount, then any amount of credit thus not deductible in
such taxable year shall be treated as an overpayment of tax to be cred-
ited or refunded in accordance with the provisions of section ten
hundred eighty-six of this chapter. Provided, however, the provisions of
subsection (c) of section ten hundred eighty-eight of this chapter
notwithstanding, no interest shall be paid thereon.
S 22. Paragraph 2 of subdivision (s) of section 1511 of the tax law,
as amended by section 22 of part H3 of chapter 62 of the laws of 2003,
is amended to read as follows:
(2) Application of credit. The credit allowed under this subdivision
for any taxable year shall not reduce the tax due for such year to less
than the minimum tax fixed by [paragraph four of subdivision (a) of
section fifteen hundred two of this article or by section fifteen
hundred two-a of this article, whichever is applicable] SUBDIVISION (D)
OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE.
S 23. Paragraph 2 of subdivision (u) of section 1511 of the tax law,
as added by section 11 of part H of chapter 1 of the laws of 2003, is
amended to read as follows:
(2) Application of credit. The credit allowed under this subdivision
for any taxable year shall not reduce the tax due for such year to less
than the minimum fixed by [paragraph four of subdivision (a) of section
fifteen hundred two of this article] SUBDIVISION (D) OF SECTION FIFTEEN
HUNDRED TEN OF THIS ARTICLE. However, if the amount of credits allowed
under this subdivision for any taxable year reduces the tax to such
amount, any amount of credit thus not deductible in such taxable year
shall be treated as an overpayment of tax to be credited or refunded in
accordance with the provisions of section ten hundred eighty-six of this
chapter. Provided, however, the provisions of subsection (c) of section
ten hundred eighty-eight of this chapter notwithstanding, no interest
shall be paid thereon.
S 24. Paragraph 2 of subdivision (v) of section 1511 of the tax law,
as added by section 18 of part H of chapter 1 of the laws of 2003, is
amended to read as follows:
(2) Application of credit. The credit allowed under this subdivision
for any taxable year shall not reduce the tax due for such year to less
than the minimum tax fixed by [paragraph four of subdivision (a) of
section fifteen hundred two of this article] SUBDIVISION (D) OF SECTION
FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount of credit
allowed under this subdivision for any taxable year reduces the tax to
such amount, any amount of credit thus not deductible in such taxable
year shall be treated as an overpayment of tax to be credited or
refunded in accordance with the provisions of section ten hundred eight-
y-six of this chapter. Provided, however, the provisions of subsection
(c) of section ten hundred eighty-eight of this chapter notwithstanding,
no interest shall be paid thereon.
S 25. Paragraph 2 of subdivision (w) of section 1511 of the tax law,
as added by section 29 of part H of chapter 1 of the laws of 2003, is
amended to read as follows:
(2) Application of credit. The credit allowed under this subdivision
for any taxable year shall not reduce the tax due for such year to less
than the minimum fixed by [paragraph four of subdivision (a) of section
fifteen hundred two or section fifteen hundred two-a of this article]
SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However,
S. 60--A 18 A. 160--A
if the amount of credits allowed under this subdivision for any taxable
year reduces the tax to such amount, any amount of credit thus not
deductible in such taxable year shall be treated as an overpayment of
tax to be credited or refunded in accordance with the provisions of
section one thousand eighty-six of this chapter. Provided, however, the
provisions of subsection (c) of section one thousand eighty-eight of
this chapter notwithstanding, no interest shall be paid thereon.
S 26. Paragraph 2 of subdivision (x) of section 1511 of the tax law,
as added by chapter 537 of the laws of 2005, is amended to read as
follows:
(2) Application of credit. The credit allowed under this subdivision
for any taxable year shall not reduce the tax due for such year to less
than the minimum fixed by [paragraph four of subdivision (a) of section
fifteen hundred two or section fifteen hundred two-a of this article]
SUBDIVISION (D) OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However,
if the amount of credits allowed under this subdivision for any taxable
year reduces the tax to such amount, any amount of credit thus not
deductible in such taxable year shall be treated as an overpayment of
tax to be credited or refunded in accordance with the provisions of
section one thousand eighty-six of this chapter. Provided, however, the
provisions of subsection (c) of section one thousand eighty-eight of
this chapter notwithstanding, no interest shall be paid thereon.
S 27. Paragraph 3 of subdivision (x) of section 1511 of the tax law,
as added by chapter 446 of the laws of 2005, is amended to read as
follows:
(3) Application of credit. The credit allowed under this subdivision
for any taxable year shall not reduce the tax due for such year to less
than the minimum tax fixed by [paragraph four of subdivision (a) of
section fifteen hundred two of this article or by section fifteen
hundred two-a of this article, whichever is applicable] SUBDIVISION (D)
OF SECTION FIFTEEN HUNDRED TEN OF THIS ARTICLE. However, if the amount
of credit allowed under this subdivision for any taxable year reduces
the tax to such amount, any amount of credit thus not deductible in such
taxable year may be carried over to the following year or years and may
be deducted from the taxpayer's tax for such year or years.
S 28. Subdivision (b) of section 1513 of the tax law, as amended by
section 25 of part H3 of chapter 62 of the laws of 2003, is amended to
read as follows:
(b) Definition of estimated tax and estimated tax surcharge. The terms
"estimated tax" and "estimated tax surcharge" mean the amounts which the
taxpayer estimates to be the taxes imposed by [sections fifteen hundred
one, fifteen hundred two-a and] SECTION fifteen hundred ten of this
article or the tax surcharge imposed by section fifteen hundred five-a
of this article, respectively, for the current taxable year, less the
sum of any credits which it estimates to be allowable against such taxes
or tax surcharge, respectively.
S 29. Subdivisions (e) and (f) of section 1514 of the tax law, subdi-
vision (e) as amended by chapter 166 of the laws of 1991 and subdivision
(f) as amended by section 26 of part H3 of chapter 62 of the laws of
2003, are amended to read as follows:
(e) Interest on certain installments based on the preceding year's
tax. Notwithstanding the provisions of section one thousand eighty-
eight of this chapter or section sixteen of the state finance law, if an
amount paid pursuant to subdivision (a) of this section exceeds the tax
or tax surcharge, respectively, shown on the return required to be filed
by the taxpayer for the taxable year during which such amount was paid,
S. 60--A 19 A. 160--A
interest shall be allowed and paid on the amount by which the amount so
paid pursuant to SUCH subdivision (a) exceeds such tax or tax surcharge,
at the overpayment rate set by the commissioner of taxation and finance
pursuant to subdivision (e) of section one thousand ninety-six or, if no
rate is set, at the rate of six percent per annum, from the date of
payment of the amount so paid pursuant to such subdivision (a) to the
fifteenth day of the third month following the close of the taxable
year, provided, however, that no interest shall be allowed or paid under
this subdivision if the amount thereof is less than one dollar [or if
such interest becomes payable solely because of a loss described in
paragraph four of subdivision (b) of section fifteen hundred three].
(f) The preceding year's tax defined. As used in this section, "the
preceding year's tax" means[, for taxpayers subject to tax under subdi-
vision (b) of section fifteen hundred ten of this article, the taxes
imposed upon the taxpayer by sections fifteen hundred one and fifteen
hundred ten of this article from the preceding taxable year or as other-
wise determined by subdivision (b) of section fifteen hundred five of
this article, and for taxpayers subject to tax under section fifteen
hundred two-a of this article, the tax imposed upon the taxpayer by such
section fifteen hundred two-a of this article from the preceding year,]
THE TAX IMPOSED ON THE TAXPAYER BY THIS ARTICLE WITHOUT REGARD TO THE
TAX SURCHARGE IMPOSED BY SECTION FIFTEEN HUNDRED FIVE-A, or for purposes
of computing the first installment of estimated tax when an application
has been filed for extension of the time for filing the return required
to be filed for such preceding taxable year, the amount properly esti-
mated pursuant to paragraph one of subdivision (b) of section fifteen
hundred sixteen of this article as the tax imposed upon the taxpayer for
such taxable year.
S 30. Paragraph 1 of subdivision (e) of section 1515 of the tax law,
as amended by chapter 770 of the laws of 1992, is amended to read as
follows:
(1) [If] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOU-
SAND NINE, IF the amount of the life insurance company taxable income
(which shall include, in the case of a stock life insurance company
which has an existing policyholders surplus account, the amount of
direct and indirect distributions during the taxable year to sharehold-
ers from such account), taxable income of a partnership or taxable
income, as the case may be, or alternative minimum taxable income for
any year of any taxpayer as returned to the United States treasury
department is changed or corrected by the commissioner of internal
revenue or other officer of the United States or other competent author-
ity, such taxpayer shall report such change or corrected taxable income
or alternative minimum taxable income within ninety days (or one hundred
twenty days, in the case of a taxpayer making a combined return under
this article for such year) after the final determination of such change
or correction or as required by the commissioner, and shall concede the
accuracy of such determination or state wherein it is erroneous. Any
taxpayer filing an amended return with such department shall also file
within ninety days (or one hundred twenty days, in the case of a taxpay-
er making a combined return under this article for such year) thereafter
an amended return with the commissioner which shall contain such infor-
mation as the commissioner shall require. The allowance of a tentative
carryback adjustment based upon a net operating loss carryback or net
capital loss carryback pursuant to section sixty-four hundred eleven of
the internal revenue code or upon an operations loss carryback pursuant
S. 60--A 20 A. 160--A
to section eight hundred ten of the internal revenue code, shall be
treated as a final determination for purposes of this subdivision.
S 31. Subdivisions (f) and (g) of section 1515, subdivision (g) of
section 1518 and section 1520 of the tax law are REPEALED.
S 32. Paragraph 1, clause (ii) of subparagraph (B) of paragraph 2 and
subparagraph (A) of paragraph 3 of subdivision (f) of section 16 of the
tax law, as amended by section 14 of part CC of chapter 85 of the laws
of 2002, are amended to read as follows:
(1) General. The tax factor shall be, in the case of article nine-A of
this chapter, the larger of the amounts of tax determined for the taxa-
ble year under paragraphs (a) and (c) of subdivision one of section two
hundred ten of such article. The tax factor shall be, in the case of
article twenty-two of this chapter, the tax determined for the taxable
year under subsections (a) through (d) of section six hundred one of
such article. The tax factor shall be, in the case of article thirty-two
of this chapter, the larger of the amounts of tax determined for the
taxable year under subsection (a) and paragraph two of subsection (b) of
section fourteen hundred fifty-five of such article. The tax factor
shall be, in the case of article thirty-three of this chapter, the
[larger of the amounts] AMOUNT of tax determined for the taxable year
under [paragraphs one and three of] subdivision (a) OR (B) of section
fifteen hundred [two] TEN of such article.
(ii) For purposes of article nine-A[,] OR thirty-two [or thirty-three]
of this chapter, the term "partner's income from the partnership" means
partnership items of income, gain, loss and deduction, and New York
modifications thereto, entering into entire net income, minimum taxable
income, alternative entire net income or entire net income plus compen-
sation and the term "partner's entire income" means entire net income,
minimum taxable income, alternative entire net income or entire net
income plus compensation, allocated within the state. For purposes of
article twenty-two of this chapter, the term "partner's income from the
partnership" means partnership items of income, gain, loss and
deduction, and New York modifications thereto, entering into New York
adjusted gross income, and the term "partner's entire income" means New
York adjusted gross income.
(A) Where the taxpayer is a qualified empire zone enterprise and is
required or permitted to make a return or report on a combined basis
under article nine-A[,] OR thirty-two [or thirty-three] of this chapter,
the taxpayer's tax factor shall be the amount determined in paragraph
one of this subdivision which is attributable to the income of the qual-
ified empire zone enterprise. Such attribution shall be made in accord-
ance with the ratio of the qualified empire zone enterprise's income
allocated within the state to the combined group's income, or in accord-
ance with such other methods as the commissioner may prescribe as
providing an apportionment which reasonably reflects the portion of the
combined group's tax attributable to the income of the qualified empire
zone enterprise. In no event may the ratio so determined exceed 1.0.
S 33. Subparagraph (A) of paragraph 3 of subsection (d) of section
1085 of the tax law, as amended by chapter 170 of the laws of 1994, is
amended to read as follows:
(A) General. An amount equal to ninety-one percent of the tax for the
taxable year computed on all items entering into the computation of the
tax or taxes of the taxpayer for the taxable year under article nine,
nine-A[,] OR thirty-two [or thirty-three] of this chapter. For purposes
of computing the tax, all items of receipts, income and expenses shall
be placed on an annualized basis--
S. 60--A 21 A. 160--A
(i) for the first three months of the taxable year, in the case of the
installment required to be paid in the sixth month,
(ii) for the first six months of the taxable year, in the case of the
installment required to be paid in the ninth month, and
(iii) for the first nine months of the taxable year, in the case of
the installment required to be paid in the twelfth month.
S 34. Clause (i) of subparagraph (A) of paragraph 4 of subsection (d)
of section 1085 of the tax law, as amended by chapter 57 of the laws of
1993, is amended to read as follows:
(i) take the items entering into the computation of the tax or taxes
of the taxpayer for the taxable year under article nine, nine-A[,] OR
thirty-two [or thirty-three] of this chapter, for all months during the
taxable year preceding the filing month,
S 35. Paragraph 1 of subsection (e) of section 1085 of the tax law, as
amended by section 28 of part H3 of chapter 62 of the laws of 2003, is
amended to read as follows:
(1) Paragraphs (1) and (2) of subsection (d) of this section shall not
apply in the case of any corporation (or any predecessor corporation)
which had entire net income, or the portion thereof allocated within the
state, of one million dollars or more for any taxable year during the
three taxable years immediately preceding the taxable year involved;
provided, however, that in the case of a corporation subject to tax
under section fifteen hundred [two-a] TEN of this chapter, paragraphs
(1) and (2) of subsection (d) of this section shall not apply if [such
corporation had entire net income, or the portion thereof allocated
within the state, of one million dollars or more for any of the three
taxable years immediately preceding the taxable year involved, or if]
the direct premiums subject to tax under section fifteen hundred [two-a]
TEN of this chapter of the corporation for any of such three preceding
taxable years [beginning on or after January first, two thousand three]
equals or exceeds three million seven hundred fifty thousand dollars.
S 36. This act shall take effect immediately and apply to taxable
years beginning on or after January 1, 2009; provided however, that
section four of this act shall apply to taxable years ending after
December 31, 2008.
PART E
Section 1. The tax law is amended by adding a new section 171-t to
read as follows:
S 171-T. RECIPROCAL OFFSET AGREEMENTS WITH THE UNITED STATES OR OTHER
STATES. (1) FOR THE PURPOSES OF THIS SECTION, THE DEFINITIONS PROVIDED
FOR IN SECTION ONE HUNDRED SEVENTY-ONE-N OF THIS ARTICLE APPLY TOGETHER
WITH THE FOLLOWING:
(A) "CLAIMANT" MEANS ANY STATE OR THE UNITED STATES THAT ENTERS INTO A
RECIPROCAL AGREEMENT UNDER THIS SECTION OR REQUESTS APPLICATION OF A
VENDOR PAYMENT OR AN OVERPAYMENT TO A DEBT.
(B) "DEBT" MEANS A "TAX DEBT" AS DEFINED IN SECTION ONE HUNDRED SEVEN-
TY-ONE-N OF THIS ARTICLE AND ANY OTHER PAST DUE LEGALLY ENFORCEABLE
OBLIGATION OWED TO A STATE OR THE UNITED STATES, WHICH ARISES FROM (I)
AN ENFORCEABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION THAT IS NO
LONGER SUBJECT TO JUDICIAL REVIEW, OR (II) AN ENFORCEABLE DETERMINATION
OF AN ADMINISTRATIVE BODY THAT IS NO LONGER SUBJECT TO ADMINISTRATIVE OR
JUDICIAL REVIEW, OR (III) A DETERMINATION THAT HAS BECOME FINAL OR
FINALLY AND IRREVOCABLY FIXED AND NO LONGER SUBJECT TO ADMINISTRATIVE OR
JUDICIAL REVIEW.
S. 60--A 22 A. 160--A
(C) "DEBTOR" MEANS A PERSON WHO OWES A DEBT.
(D) "PERSON" HAS THE SAME MEANING AS THAT TERM HAS IN SUBDIVISION (A)
OF SECTION ELEVEN HUNDRED ONE OF THIS CHAPTER.
(E) "VENDOR PAYMENT" MEANS ANY PAYMENT, OTHER THAN AN OVERPAYMENT,
MADE BY A STATE OR THE UNITED STATES TO ANY PERSON, AND INCLUDES BUT IS
NOT LIMITED TO ANY EXPENSE REIMBURSEMENT TO AN EMPLOYEE OF THE STATE OR
THE UNITED STATES; BUT DOES NOT INCLUDE A PERSON'S SALARY, WAGES OR
PENSION.
(2) THE COMMISSIONER MAY, IN HIS OR HER DISCRETION, ENTER INTO A
COLLECTION AND OFFSET AGREEMENT WITH ANOTHER STATE OR WITH THE UNITED
STATES SECRETARY OF THE TREASURY THROUGH THE INTERNAL REVENUE SERVICE OR
THE FINANCIAL MANAGEMENT SERVICE OF THE DEPARTMENT OF THE TREASURY OF
THE UNITED STATES UNDER WHICH THE COMMISSIONER, ON BEHALF OF THE STATE
OF NEW YORK, MAY, IN HIS OR HER DISCRETION, AGREE TO PAY TO A CLAIMANT
OWED A DEBT BY A TAXPAYER OR OTHER PERSON THE WHOLE OR PART OF AN OVER-
PAYMENT OR A VENDOR PAYMENT OWED BY THE STATE TO THAT TAXPAYER OR OTHER
PERSON, PROVIDED THE CLAIMANT GRANTS SUBSTANTIALLY SIMILAR PRIVILEGES TO
THIS STATE. HOWEVER, THE UNITED STATES WILL NOT BE REQUIRED UNDER THIS
SECTION TO OFFSET TAX OVERPAYMENTS OWED BY IT EXCEPT TO THE EXTENT THAT
IT AGREES TO DO SO. AN AGREEMENT WITH THE CLAIMANT MUST SPECIFY THAT A
TAXPAYER OR ANY PERSON OWED A VENDOR PAYMENT WILL RECEIVE THIRTY DAYS
ADVANCE WRITTEN NOTICE OF THE OFFSET AND WILL BE PROVIDED WITH AN OPPOR-
TUNITY TO PRESENT WRITTEN OR ORAL EVIDENCE ABOUT THE APPLICATION OF THE
OVERPAYMENT OR VENDOR PAYMENT TO THE DEBT. A PROCEEDING FOR JUDICIAL
REVIEW OF THE DECISION IN THE MANNER PROVIDED BY ARTICLE SEVENTY-EIGHT
OF THE CIVIL PRACTICE LAW AND RULES MAY BE COMMENCED BY A TAXPAYER OR A
PERSON OWED A VENDOR PAYMENT WITHIN FOUR MONTHS AFTER A COPY OF A DECI-
SION ADVERSE TO THE TAXPAYER OR THAT PERSON IS MAILED TO THE TAXPAYER OR
THAT PERSON. ARTICLE FORTY OF THIS CHAPTER DOES NOT APPLY TO ANY HEARING
OR PROCEEDING ON WHETHER AN OVERPAYMENT OR VENDOR PAYMENT MAY BE APPLIED
TO A DEBT UNDER THIS SECTION. THE REMEDY PROVIDED BY THIS SECTION FOR
REVIEW OF HEARINGS AND PROCEEDINGS IS THE EXCLUSIVE REMEDY AVAILABLE TO
JUDICIALLY DETERMINE WHETHER AN OVERPAYMENT OR VENDOR PAYMENT MAY BE
APPLIED TO A DEBT UNDER THIS SECTION. THE AMOUNT OF A DEBT REMAINING DUE
AS CERTIFIED BY A CLAIMANT WILL BE PRIMA FACIE EVIDENCE OF THE CORRECT
AMOUNT OF A DEBT.
(3) THE COMMISSIONER WILL CALCULATE THE AMOUNT OF AN OVERPAYMENT AND
INTEREST THEREON THAT IS TO BE CREDITED AGAINST THE AMOUNT OF A PAST DUE
LEGALLY ENFORCEABLE DEBT OWED BY A TAXPAYER WHICH IS CERTIFIED TO THE
DEPARTMENT FOR COLLECTION UNDER THIS SECTION USING THE RULES IN SUBDIVI-
SION FIVE OF SECTION ONE HUNDRED SEVENTY-ONE-F OF THIS ARTICLE. IF A
TAXPAYER OR A PERSON OWES MORE THAN ONE DEBT WHICH IS CERTIFIED TO THE
COMMISSIONER FOR COLLECTION UNDER THIS SECTION, ANY OVERPAYMENT OR
VENDOR PAYMENT WILL BE CREDITED AGAINST THE DEBTS IN THE ORDER IN WHICH
THE DEBTS ACCRUED. A DEBT WILL BE CONSIDERED TO HAVE ACCRUED AT THE TIME
AT WHICH THE DEBT BECAME PAST DUE.
(4) NOTWITHSTANDING ANY OTHER LAW, THE COMMISSIONER IS AUTHORIZED TO
RELEASE TO A CLAIMANT TAXPAYER INFORMATION FOR PURPOSES OF IMPLEMENTING
AND ADMINISTERING AN AGREEMENT ENTERED INTO BETWEEN THE CLAIMANT AND
THIS STATE UNDER THIS SECTION.
S 2. Subdivision 2 of section 171-p of the tax law, as added by
section 1 of part BB-1 of chapter 57 of the laws of 2008, is amended to
read as follows:
(2) The commissioner may implement procedures under which any cost or
fee imposed or charged by the United States or any state, with respect
to payment or remittance of a taxpayer's overpayment to satisfy a tax
S. 60--A 23 A. 160--A
debt of the taxpayer, must not be credited by the commissioner to
payment or satisfaction of the tax debt, must be deemed to be part of
the taxpayer's tax debt, and must be eligible for offset against the
taxpayer's overpayment to the extent permitted by law. THE COMMISSIONER
MAY ALSO IMPLEMENT PROCEDURES UNDER WHICH ANY COST OR FEE IMPOSED OR
CHARGED BY THE UNITED STATES OR ANY OTHER STATE, WITH RESPECT TO ANY
OTHER PAYMENT OR REMITTANCE OF A TAXPAYER'S OVERPAYMENT OR A VENDOR
PAYMENT TO SATISFY A DEBT OF THE TAXPAYER OR THE PERSON WHO IS OWED THE
VENDOR PAYMENT AS AUTHORIZED BY SECTION ONE HUNDRED SEVENTY-ONE-T OF
THIS ARTICLE, MUST NOT BE CREDITED BY THE STATE OF NEW YORK TO PAYMENT
OR SATISFACTION OF THE DEBT, MUST BE DEEMED TO BE PART OF THE TAXPAYER'S
OR PERSON'S DEBT, AND MUST BE ELIGIBLE FOR OFFSET AGAINST THE TAXPAYER'S
OVERPAYMENT OR THE PERSON'S VENDOR PAYMENT TO THE EXTENT PERMITTED BY
LAW.
S 3. Paragraph (c) of subdivision 1 of section 171-n of the tax law,
as added by section 2 of part O of chapter 61 of the laws of 2005, is
amended to read as follows:
(c) "tax debt" means any past due, legally enforceable tax obligation
owed any other state administering that tax, which arises from (i) an
enforceable judgment of a court of competent jurisdiction which is no
longer subject to judicial review, or (ii) an enforceable determination
of an administrative body which is no longer subject to administrative
or judicial review, or (iii) an assessment or determination (including
self-assessment or self-assessed determination) which has become final
or finally and irrevocably fixed and no longer subject to administrative
or judicial review[, and which has not been delinquent for more than ten
years]; and
S 4. This act shall take effect immediately.
PART F
Section 1. Section 2 of the tax law is amended by adding a new subdi-
vision 11 to read as follows:
11. THE TERM "OVERCAPITALIZED CAPTIVE INSURANCE COMPANY" MEANS AN
ENTITY THAT IS TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION UNDER
THE INTERNAL REVENUE CODE (A) MORE THAN FIFTY PERCENT OF THE VOTING
STOCK OF WHICH IS OWNED OR CONTROLLED, DIRECTLY OR INDIRECTLY, BY A
SINGLE ENTITY THAT IS TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION
UNDER THE INTERNAL REVENUE CODE AND NOT EXEMPT FROM FEDERAL INCOME TAX;
(B) THAT IS LICENSED AS A CAPTIVE INSURANCE COMPANY UNDER THE LAWS OF
THIS STATE OR ANOTHER JURISDICTION; (C) WHOSE BUSINESS INCLUDES PROVID-
ING, DIRECTLY AND INDIRECTLY, INSURANCE OR REINSURANCE COVERING THE
RISKS OF ITS PARENT AND/OR MEMBERS OF ITS AFFILIATED GROUP; AND (D)
FIFTY PERCENT OR LESS OF WHOSE GROSS RECEIPTS FOR THE TAXABLE YEAR
CONSIST OF PREMIUMS. FOR PURPOSES OF THIS SUBDIVISION, "AFFILIATED
GROUP" HAS THE SAME MEANING AS THAT TERM IS GIVEN IN SECTION 1504 OF THE
INTERNAL REVENUE CODE, EXCEPT THAT THE TERM "COMMON PARENT CORPORATION"
IN THAT SECTION IS DEEMED TO MEAN ANY PERSON, AS DEFINED IN SECTION 7701
OF THE INTERNAL REVENUE CODE; REFERENCES TO "AT LEAST EIGHTY PERCENT" IN
SECTION 1504 OF THE INTERNAL REVENUE CODE ARE TO BE READ AS "FIFTY
PERCENT OR MORE;" SECTION 1504 OF THE INTERNAL REVENUE CODE IS TO BE
READ WITHOUT REGARD TO THE EXCLUSIONS PROVIDED FOR IN SUBSECTION (B) OF
THAT SECTION; "PREMIUMS" HAS THE SAME MEANING AS THAT TERM IS GIVEN IN
PARAGRAPH ONE OF SUBDIVISION (C) OF SECTION FIFTEEN HUNDRED TEN OF THIS
CHAPTER, EXCEPT THAT IT INCLUDES CONSIDERATION FOR ANNUITY CONTRACTS AND
EXCLUDES ANY PART OF THE CONSIDERATION FOR INSURANCE, REINSURANCE OR
S. 60--A 24 A. 160--A
ANNUITY CONTRACTS THAT DO NOT PROVIDE BONA FIDE INSURANCE, REINSURANCE
OR ANNUITY BENEFITS; AND "GROSS RECEIPTS" INCLUDES THE AMOUNTS INCLUDED
IN GROSS RECEIPTS FOR PURPOSES OF SECTION 501(C) (15) OF THE INTERNAL
REVENUE CODE, EXCEPT THAT THOSE AMOUNTS ALSO INCLUDE ALL PREMIUMS AS
DEFINED IN THIS SUBDIVISION.
S 2. Paragraph (a) of subdivision 4 of section 211 of the tax law is
amended by adding a new subparagraph 7 to read as follows:
(7) (I) FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM "CLOSEST CONTROL-
LING STOCKHOLDER" MEANS THE CORPORATION THAT INDIRECTLY OWNS OR CONTROLS
OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED CAPTIVE
INSURANCE COMPANY; IS SUBJECT TO TAX UNDER THIS ARTICLE OR ARTICLE THIR-
TY-TWO OF THIS CHAPTER, OR IS OTHERWISE REQUIRED TO BE INCLUDED IN A
COMBINED RETURN OR REPORT UNDER THIS ARTICLE OR ARTICLE THIRTY-TWO OF
THIS CHAPTER; AND IS THE FEWEST TIERS OF CORPORATIONS AWAY IN THE OWNER-
SHIP STRUCTURE FROM THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY. THE
COMMISSIONER IS AUTHORIZED TO PRESCRIBE BY REGULATION OR PUBLISHED GUID-
ANCE THE CRITERIA FOR DETERMINING THE CLOSEST CONTROLLING STOCKHOLDER.
(II) AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN
A COMBINED REPORT WITH THE CORPORATION THAT DIRECTLY OWNS OR CONTROLS
OVER FIFTY PERCENT OF THE VOTING STOCK OF THE OVERCAPITALIZED CAPTIVE
INSURANCE COMPANY IF THAT CORPORATION IS SUBJECT TO TAX OR REQUIRED TO
BE INCLUDED IN A COMBINED REPORT UNDER THIS ARTICLE.
(III) IF OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED
CAPTIVE INSURANCE COMPANY IS NOT DIRECTLY OWNED OR CONTROLLED BY A
CORPORATION THAT IS SUBJECT TO TAX OR REQUIRED TO BE INCLUDED IN A
COMBINED REPORT UNDER THIS ARTICLE, THEN THE OVERCAPITALIZED CAPTIVE
INSURANCE COMPANY MUST BE INCLUDED IN A COMBINED RETURN OR REPORT WITH
THE CORPORATION THAT IS THE CLOSEST CONTROLLING STOCKHOLDER OF THE OVER-
CAPITALIZED CAPTIVE INSURANCE COMPANY. IF THE CLOSEST CONTROLLING STOCK-
HOLDER OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS SUBJECT TO
TAX OR OTHERWISE REQUIRED TO BE INCLUDED IN A COMBINED REPORT UNDER THIS
ARTICLE, THEN THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE
INCLUDED IN A COMBINED REPORT UNDER THIS ARTICLE.
(IV) IF THE CORPORATION THAT DIRECTLY OWNS OR CONTROLS THE VOTING
STOCK OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN
SUBPARAGRAPH TWO, THREE, OR FIVE OF THIS PARAGRAPH AS A CORPORATION NOT
PERMITTED TO MAKE A COMBINED REPORT, THEN THE PROVISIONS IN CLAUSE (III)
OF THIS SUBPARAGRAPH MUST BE APPLIED TO DETERMINE THE CORPORATION IN
WHOSE COMBINED RETURN OR REPORT THE OVERCAPITALIZED CAPTIVE INSURANCE
COMPANY SHOULD BE INCLUDED. IF, UNDER CLAUSE (III) OF THIS SUBPARAGRAPH,
THE CORPORATION THAT IS THE CLOSEST CONTROLLING STOCKHOLDER OF THE OVER-
CAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN SUBPARAGRAPH TWO,
THREE OR FIVE OF THIS PARAGRAPH AS A CORPORATION NOT PERMITTED TO MAKE A
COMBINED RETURN, THEN THAT CORPORATION IS DEEMED NOT TO BE IN THE OWNER-
SHIP STRUCTURE OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY, AND THE
CLOSEST CONTROLLING STOCKHOLDER WILL BE DETERMINED WITHOUT REGARD TO
THAT CORPORATION.
(V) IF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS REQUIRED UNDER
THIS SUBPARAGRAPH TO BE INCLUDED IN A COMBINED REPORT WITH ANOTHER
CORPORATION, AND THAT OTHER CORPORATION IS ALSO REQUIRED TO BE INCLUDED
IN A COMBINED REPORT WITH ANOTHER RELATED CORPORATION OR CORPORATIONS
UNDER THIS PARAGRAPH, THEN THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY
MUST BE INCLUDED IN THAT COMBINED REPORT WITH THOSE CORPORATIONS.
(VI) IF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS NOT REQUIRED
TO BE INCLUDED IN A COMBINED REPORT WITH ANOTHER CORPORATION UNDER
CLAUSE (II) OR (III) OF THIS SUBPARAGRAPH, OR IN A COMBINED RETURN UNDER
S. 60--A 25 A. 160--A
THE PROVISIONS OF SUBPARAGRAPH (V) OF PARAGRAPH TWO OF SUBSECTION (F) OF
SECTION FOURTEEN HUNDRED SIXTY-TWO OF THIS CHAPTER, THEN THE OVERCAPI-
TALIZED CAPTIVE INSURANCE COMPANY IS SUBJECT TO THE OPENING PROVISIONS
OF THIS PARAGRAPH AND THE PROVISIONS OF SUBPARAGRAPH FOUR OF THIS PARA-
GRAPH. THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN
A COMBINED REPORT UNDER THIS ARTICLE WITH ANOTHER CORPORATION IF EITHER
THE SUBSTANTIAL INTERCORPORATE TRANSACTIONS REQUIREMENT IN THE OPENING
PROVISIONS OF THIS PARAGRAPH OR THE INTER-COMPANY TRANSACTIONS OR AGREE-
MENT, UNDERSTANDING, ARRANGEMENT OR TRANSACTION REQUIREMENT OF SUBPARA-
GRAPH FOUR OF THIS PARAGRAPH IS SATISFIED, AND BOTH MORE THAN FIFTY
PERCENT OF THE VOTING STOCK OF THE OVERCAPITALIZED CAPTIVE INSURANCE
COMPANY AND SUBSTANTIALLY ALL OF THE CAPITAL STOCK OF THAT OTHER CORPO-
RATION ARE OWNED AND CONTROLLED, DIRECTLY OR INDIRECTLY, BY THE SAME
CORPORATION.
S 3. Subparagraph 1 of paragraph (b) of subdivision 4 of section 211
of the tax law, as amended by section 4 of part FF-1 of chapter 57 of
the laws of 2008, is amended to read as follows:
(1) Tax. (i) In the case of a combined report the tax shall be meas-
ured by the combined entire net income, combined minimum taxable income,
combined pre-nineteen hundred ninety minimum taxable income or combined
capital, of all the corporations included in the report, including any
captive REIT [or], captive RIC OR OVERCAPITALIZED CAPTIVE INSURANCE
COMPANY; provided, however, in no event shall the tax measured by
combined capital exceed the limitation provided for in paragraph (b) of
subdivision one of section two hundred ten of this article.
(ii) In the case of a captive REIT or captive RIC required under this
subdivision to be included in a combined report, entire net income must
be computed as required under subdivision five (in the case of a captive
REIT) or subdivision seven (in the case of a captive RIC) of section two
hundred nine of this article. However, the deduction under the internal
revenue code for dividends paid by the captive REIT or captive RIC to
any member of the affiliated group that includes the corporation that
directly or indirectly owns over fifty percent of the voting stock of
the captive REIT or captive RIC shall not be allowed for taxable years
beginning on or after January first, two thousand eight. The term
"affiliated group" means "affiliated group" as defined in section
fifteen hundred four of the internal revenue code, but without regard to
the exceptions provided for in subsection (b) of that section.
(III) IN THE CASE OF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY
REQUIRED UNDER THIS SUBDIVISION TO BE INCLUDED IN A COMBINED REPORT,
ENTIRE NET INCOME MUST BE COMPUTED AS REQUIRED BY SUBDIVISION NINE OF
SECTION TWO HUNDRED EIGHT OF THIS ARTICLE.
S 4. Subsection (d) of section 1452 of the tax law, as amended by
section 5 of part FF-1 of chapter 57 of the laws of 2008, is amended to
read as follows:
(d) Corporations taxable under article nine-A. Notwithstanding the
provisions of this article, all corporations of classes now or hereto-
fore taxable under article nine-A of this chapter shall continue to be
taxable under article nine-A, except: (1) corporations organized under
article five-A of the banking law; (2) corporations subject to article
three-A of the banking law, or registered under the federal bank holding
company act of nineteen hundred fifty-six, as amended, or registered as
a savings and loan holding company (but excluding a diversified savings
and loan holding company) under the federal national housing act, as
amended, which make a combined return under the provisions of subsection
(f) of section fourteen hundred sixty-two; (3) banking corporations
S. 60--A 26 A. 160--A
described in paragraph nine of subsection (a) of this section; [and] (4)
any captive REIT or captive RIC that is required to be included in a
combined return under the provisions of subsection (f) of section four-
teen hundred sixty-two of this article; AND (5) ANY OVERCAPITALIZED
CAPTIVE INSURANCE COMPANY REQUIRED TO BE INCLUDED IN A COMBINED RETURN
UNDER SUBSECTION (F) OF SECTION FOURTEEN HUNDRED SIXTY-TWO OF THIS ARTI-
CLE. Provided, however, that a corporation described in paragraph three
of this subsection which was subject to the tax imposed by article
nine-A of this chapter for its taxable year ending during nineteen
hundred eighty-four may, on or before the due date for filing its return
(determined with regard to extensions) for its taxable year ending
during nineteen hundred eighty-five, make a one time election to contin-
ue to be taxable under such article nine-A. Such election shall continue
to be in effect until revoked by the taxpayer. In no event shall such
election or revocation be for a part of a taxable year.
S 5. Paragraph 4 of subsection (m) of section 1452 of the tax law, as
added by section 6 of part FF-1 of chapter 57 of the laws of 2008, is
amended to read as follows:
(4) The provisions of this subsection shall not apply to a captive
REIT [or], a captive RIC OR AN OVERCAPITALIZED CAPTIVE INSURANCE
COMPANY.
S 6. Paragraph 2 of subsection (f) of section 1462 of the tax law is
amended by adding a new subparagraph (vi) to read as follows:
(VI) (A) FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM "CLOSEST CONTROL-
LING STOCKHOLDER" MEANS THE CORPORATION THAT INDIRECTLY OWNS OR CONTROLS
OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED CAPTIVE
INSURANCE COMPANY, IS SUBJECT TO TAX UNDER THIS ARTICLE OR ARTICLE
NINE-A OF THIS CHAPTER OR OTHERWISE REQUIRED TO BE INCLUDED IN A
COMBINED RETURN UNDER THIS ARTICLE OR ARTICLE NINE-A OF THIS CHAPTER,
AND IS THE FEWEST TIERS OF CORPORATIONS AWAY IN THE OWNERSHIP STRUCTURE
FROM THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY. THE COMMISSIONER IS
AUTHORIZED TO PRESCRIBE BY REGULATION OR PUBLISHED GUIDANCE THE CRITERIA
FOR DETERMINING THE CLOSEST CONTROLLING STOCKHOLDER.
(B) AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN A
COMBINED RETURN WITH THE BANKING CORPORATION OR BANK HOLDING COMPANY
THAT DIRECTLY OWNS OR CONTROLS OVER FIFTY PERCENT OF THE VOTING STOCK OF
THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IF THAT BANKING CORPO-
RATION OR BANK HOLDING COMPANY IS SUBJECT TO TAX OR REQUIRED TO BE
INCLUDED IN A COMBINED RETURN UNDER THIS ARTICLE.
(C) IF OVER FIFTY PERCENT OF THE VOTING STOCK OF AN OVERCAPITALIZED
CAPTIVE INSURANCE COMPANY IS NOT DIRECTLY OWNED OR CONTROLLED BY A BANK-
ING CORPORATION OR BANK HOLDING COMPANY THAT IS SUBJECT TO TAX OR
REQUIRED TO BE INCLUDED IN A COMBINED RETURN UNDER THIS ARTICLE, THEN
THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE INCLUDED IN A
COMBINED RETURN OR REPORT WITH THE CORPORATION THAT IS THE CLOSEST
CONTROLLING STOCKHOLDER OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPA-
NY. IF THE CLOSEST CONTROLLING STOCKHOLDER OF THE OVERCAPITALIZED
CAPTIVE INSURANCE COMPANY IS A BANKING CORPORATION OR BANK HOLDING
COMPANY THAT IS SUBJECT TO TAX OR OTHERWISE REQUIRED TO BE INCLUDED IN A
COMBINED RETURN UNDER THIS ARTICLE, THEN THE OVERCAPITALIZED CAPTIVE
INSURANCE COMPANY MUST BE INCLUDED IN A COMBINED RETURN UNDER THIS ARTI-
CLE.
(D) IF THE CORPORATION THAT DIRECTLY OWNS OR CONTROLS THE VOTING STOCK
OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN SUBPAR-
AGRAPH (II) OR (IV) OF PARAGRAPH FOUR OF THIS SUBSECTION AS A CORPO-
RATION NOT PERMITTED TO MAKE A COMBINED RETURN, THEN THE PROVISIONS IN
S. 60--A 27 A. 160--A
CLAUSE (C) OF THIS SUBPARAGRAPH MUST BE APPLIED TO DETERMINE THE CORPO-
RATION IN WHOSE COMBINED RETURN OR REPORT THE OVERCAPITALIZED CAPTIVE
INSURANCE COMPANY SHOULD BE INCLUDED. IF, UNDER CLAUSE (C) OF THIS
SUBPARAGRAPH, THE CORPORATION THAT IS THE CLOSEST CONTROLLING STOCKHOLD-
ER OF THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS DESCRIBED IN
SUBPARAGRAPH (II) OR (IV) OF PARAGRAPH FOUR OF THIS SUBSECTION AS A
CORPORATION NOT PERMITTED TO MAKE A COMBINED RETURN, THEN THAT CORPO-
RATION IS DEEMED NOT TO BE IN THE OWNERSHIP STRUCTURE OF THE OVERCAPI-
TALIZED CAPTIVE INSURANCE COMPANY, AND THE CLOSEST CONTROLLING STOCK-
HOLDER WILL BE DETERMINED WITHOUT REGARD TO THAT CORPORATION.
(E) IF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY IS REQUIRED UNDER
THIS SUBPARAGRAPH TO BE INCLUDED IN A COMBINED RETURN WITH ANOTHER
CORPORATION, AND THAT OTHER CORPORATION IS REQUIRED TO BE INCLUDED IN A
COMBINED RETURN WITH ANOTHER CORPORATION UNDER OTHER PROVISIONS OF THIS
SUBSECTION, THE OVERCAPITALIZED CAPTIVE INSURANCE COMPANY MUST BE
INCLUDED IN THAT COMBINED RETURN WITH THOSE CORPORATIONS.
S 7. Paragraph 3 of subsection (f) of section 1462 of the tax law, as
amended by section 11 of part FF-1 of chapter 57 of the laws of 2008, is
amended to read as follows:
(3) (i) In the case of a combined return, the tax shall be measured by
the combined entire net income, combined alternative entire net income
or combined assets of all the corporations included in the return,
including any captive REIT [or], captive RIC OR OVERCAPITALIZED CAPTIVE
INSURANCE COMPANY. The allocation percentage shall be computed based on
the combined factors with respect to all the corporations included in
the combined return. In computing combined entire net income and
combined alternative entire net income intercorporate dividends and all
other intercorporate transactions shall be eliminated and in computing
combined assets intercorporate stockholdings and intercorporate bills,
notes and accounts receivable and payable and other intercorporate
indebtedness shall be eliminated.
(ii) In the case of a captive REIT required under this subsection to
be included in a combined return, "entire net income" means "real estate
investment trust taxable income" as defined in paragraph two of subdivi-
sion (b) of section eight hundred fifty-seven (as modified by section
eight hundred fifty-eight) of the internal revenue code, plus the amount
taxable under paragraph three of subdivision (b) of section eight
hundred fifty-seven of that code, subject to the modifications required
by section fourteen hundred fifty-three of this article. In the case of
a captive RIC required under this subsection to be included in a
combined return, "entire net income" means "investment company taxable
income" as defined in paragraph two of subdivision (b) of section eight
hundred fifty-two (as modified by section eight hundred fifty-five) of
the internal revenue code, plus the amount taxable under paragraph three
of subdivision (b) of section eight hundred fifty-two of that code,
subject to the modifications required by section fourteen hundred
fifty-three of this article. However, the deduction under the internal
revenue code for dividends paid by the captive REIT or captive RIC to
any member of the affiliated group that includes the corporation that
directly or indirectly owns over fifty percent of the voting stock of
the captive REIT or captive RIC will be limited to the following
percentages: (A) fifty percent for taxable years beginning on or after
January first, two thousand eight and before January first, two thousand
nine; (B) twenty-five percent for taxable years beginning on or after
January first, two thousand nine and before January first, two thousand
eleven; and (C) zero percent for taxable years beginning on or after
S. 60--A 28 A. 160--A
January first, two thousand eleven. The term "affiliated group" means
"affiliated group" as defined in section fifteen hundred four of the
internal revenue code, but without regard to the exceptions provided for
in subsection (b) of SUCH section fifteen hundred four.
(III) IN THE CASE OF AN OVERCAPITALIZED CAPTIVE INSURANCE COMPANY
REQUIRED UNDER THIS SUBSECTION TO BE INCLUDED IN A COMBINED RETURN,
ENTIRE NET INCOME MUST BE COMPUTED AS REQUIRED BY SECTION FOURTEEN
HUNDRED FIFTY-THREE OF THIS ARTICLE.
S 8. Subdivision (a) of section 1500 of the tax law, as amended by
chapter 188 of the laws of 2003, is amended to read as follows:
(a) The term "insurance corporation" includes a corporation, associ-
ation, joint stock company or association, person, society, aggregation
or partnership, by whatever name known, doing an insurance business,
and, notwithstanding the provisions of section fifteen hundred twelve of
this article, shall include (1) a risk retention group as defined in
subsection (n) of section five thousand nine hundred two of the insur-
ance law, (2) the state insurance fund and (3) a corporation, associ-
ation, joint stock company or association, person, society, aggregation
or partnership doing an insurance business as a member of the New York
insurance exchange described in section six thousand two hundred one of
the insurance law. The definition of the "state insurance fund"
contained in this subdivision shall be limited in its effect to the
provisions of this article and the related provisions of this chapter
and shall have no force and effect other than with respect to such
provisions. The term "insurance corporation" shall also include a
captive insurance company doing a captive insurance business, as defined
in subsections (c) and (b), respectively, of section seven thousand two
of the insurance law; provided, however, "insurance corporation" shall
not include the metropolitan transportation authority, or a public bene-
fit corporation or not-for-profit corporation formed by a city with a
population of one million or more pursuant to subsection (a) of section
seven thousand five of the insurance law, each of which is expressly
exempt from the payment of fees, taxes or assessments, whether state or
local; AND PROVIDED FURTHER "INSURANCE CORPORATION" DOES NOT INCLUDE ANY
OVERCAPITALIZED CAPTIVE INSURANCE COMPANY. The term "insurance corpo-
ration" shall also include an unauthorized insurer operating from an
office within the state, pursuant to paragraph five of subsection (b) of
section one thousand one hundred one and subsection (i) of section two
thousand one hundred seventeen of the insurance law.
S 9. Subdivision (a) of section 1502-b of the tax law, as separately
amended by chapter 188 and section 3 of part H3 of chapter 62 of the
laws of 2003, is amended to read as follows:
(a) In lieu of the taxes and tax surcharge imposed by sections fifteen
hundred one, fifteen hundred two-a, fifteen hundred five-a, and fifteen
hundred ten of this article, every captive insurance company licensed by
the superintendent of insurance pursuant to the provisions of article
seventy of the insurance law, other than the metropolitan transportation
authority and a public benefit corporation or not-for-profit corporation
formed by a city with a population of one million or more pursuant to
subsection (a) of section seven thousand five of the insurance law, each
of which is expressly exempt from the payment of fees, taxes or assess-
ments whether state or local, AND OTHER THAN AN OVERCAPITALIZED CAPTIVE
INSURANCE COMPANY, shall, for the privilege of exercising its corporate
franchise, pay a tax on (1) all gross direct premiums, less return
premiums thereon, written on risks located or resident in this state and
(2) all assumed reinsurance premiums, less return premiums thereon,
S. 60--A 29 A. 160--A
written on risks located or resident in this state. The rate of the tax
imposed on gross direct premiums shall be four-tenths of one percent on
all or any part of the first twenty million dollars of premiums, three-
tenths of one percent on all or any part of the second twenty million
dollars of premiums, two-tenths of one percent on all or any part of the
third twenty million dollars of premiums, and seventy-five thousandths
of one percent on each dollar of premiums thereafter. The rate of the
tax on assumed reinsurance premiums shall be two hundred twenty-five
thousandths of one percent on all or any part of the first twenty
million dollars of premiums, one hundred and fifty thousandths of one
percent on all or any part of the second twenty million dollars of
premiums, fifty thousandths of one percent on all or any part of the
third twenty million dollars of premiums and twenty-five thousandths of
one percent on each dollar of premiums thereafter. The tax imposed by
this section shall be equal to the greater of (i) the sum of the tax
imposed on gross direct premiums and the tax imposed on assumed reinsur-
ance premiums or (ii) five thousand dollars.
S 10. This act shall take effect immediately and apply to taxable
years beginning on or after January 1, 2009; provided, however that the
amendments to subparagraph 1 of paragraph (b) of subdivision 4 of
section 211 of the tax law made by section three of this act shall not
affect the expiration of such subparagraph and shall be deemed expired
therewith; the amendments to subsection (d) and paragraph 4 of
subsection (m) of section 1452 of the tax law made by sections four and
five of this act, respectively, shall not affect the expiration and
repeal of such subsection and paragraph and shall be deemed expired and
repealed therewith; and the amendments to paragraph 3 of subsection (f)
of section 1462 of the tax law made by section seven of this act shall
not affect the expiration and reversion of such paragraph and shall
expire and be deemed repealed therewith.
PART G
Section 1. Subdivision 1 of section 187-b of the tax law, as amended
by section 14 of part W-1 of chapter 109 of the laws of 2006, is amended
to read as follows:
1. General. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO
THOUSAND NINE, A taxpayer shall be allowed a credit, to be credited
against the taxes imposed under sections one hundred eighty-three, one
hundred eighty-four, and one hundred eighty-five of this article. Such
credit, to be computed as hereinafter provided, shall be allowed for
alternative fuel vehicle refueling property placed in service during the
taxable year. Provided, however, that the amount of such credit allow-
able against the tax imposed by section one hundred eighty-four of this
article shall be the excess of the credit allowed by this section over
the amount of such credit allowable against the tax imposed by section
one hundred eighty-three of this article.
S 2. Paragraph (g) of subdivision 24 of section 210 of the tax law, as
amended by section 15 of part W-1 of chapter 109 of the laws of 2006, is
amended to read as follows:
(g) Termination. The credit allowed by paragraph (b) of this subdivi-
sion shall not apply in taxable years beginning after December thirty-
first, two thousand [ten] EIGHT.
S 3. Paragraph 6 of subsection (p) of section 606 of the tax law, as
amended by section 16 of part W-1 of chapter 109 of the laws of 2006, is
amended to read as follows:
S. 60--A 30 A. 160--A
(6) Termination. The credit allowed by paragraph two of this
subsection shall not apply in taxable years beginning after December
thirty-first, two thousand [ten] EIGHT.
S 4. Subdivision 25 of section 210 of the tax law, as added by section
1 of part J of chapter 407 of the laws of 1999, is amended to read as
follows:
25. Credit for purchase of an automated external defibrillator. [A]
FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A
taxpayer shall be allowed a credit, to be computed as hereinafter
provided, against the tax imposed by this article, for the purchase,
other than for resale, of an automated external defibrillator, as such
term is defined in section three thousand-b of the public health law.
The amount of credit shall be the cost to the taxpayer of automated
external defibrillators purchased during the taxable year, such credit
not to exceed five hundred dollars with respect to each unit purchased.
The credit allowed under this subdivision for any taxable year shall not
reduce the tax due for such year to less than the higher of the amounts
prescribed in paragraphs (c) and (d) of subdivision one of this section.
S 5. Subsection (s) of section 606 of the tax law, as added by section
3 of part J of chapter 407 of the laws of 1999, is amended to read as
follows:
(s) Credit for purchase of an automated external defibrillator. [A]
FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A
taxpayer shall be allowed a credit as hereinafter provided, against the
tax imposed by this article for the purchase, other than for resale, of
an automated external defibrillator, as such term is defined in section
three thousand-b of the public health law. The amount of credit shall be
the cost to the taxpayer of automated external defibrillators purchased
during the taxable year, such credit not to exceed five hundred dollars
with respect to each unit purchased.
S 6. Subsection (j) of section 1456 of the tax law, as added by
section 4 of part J of chapter 407 of the laws of 1999, is amended to
read as follows:
(j) Credit for purchase of an automated external defibrillator. [A]
FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A
taxpayer shall be allowed a credit as hereinafter provided, against the
tax imposed by this article for the purchase, other than for resale, of
an automated external defibrillator, as such term is defined in section
three thousand-b of the public health law. The amount of the credit
shall be the cost to the taxpayer of automated external defibrillators
purchased during the taxable year, such credit not to exceed five
hundred dollars with respect to each unit purchased. The credit allowed
under this subsection for any taxable year shall not reduce the tax due
for such year to less than the minimum tax fixed by subsection (b) of
section fourteen hundred fifty-five of this article.
S 7. Subdivision (l) of section 1511 of the tax law, as amended by
section 15 of part H3 of chapter 62 of the laws of 2003, is amended to
read as follows:
(l) Credit for purchase of an automated external defibrillator. [A]
FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND NINE, A
taxpayer shall be allowed a credit as hereinafter provided, against the
tax imposed by this article for the purchase, other than for resale, of
an automated external defibrillator, as such term is defined in section
three thousand-b of the public health law. The amount of the credit
shall be the cost to the taxpayer of automated external defibrillators
purchased during the taxable year, such credit not to exceed five
S. 60--A 31 A. 160--A
hundred dollars with respect to each unit purchased. The credit allowed
under this subdivision for any taxable year shall not reduce the tax due
for such year to less than the minimum tax fixed by paragraph four of
subdivision (a) of section fifteen hundred two of this article or by
section fifteen hundred two-a of this article, whichever is applicable.
S 8. Subdivision (a) of section 26 of the tax law, as added by chapter
537 of the laws of 2005, is amended to read as follows:
(a) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU-
ARY FIRST, TWO THOUSAND NINE, A taxpayer, which is subject to tax under
article nine, nine-A, twenty-two, thirty-two or thirty-three of this
chapter and which is a qualified building owner, shall be allowed a
credit against such tax. The amount of the credit allowed under this
section shall equal the sum of the number of qualified security officers
providing protection to a building or buildings owned by the taxpayer
multiplied by three thousand dollars. Provided, however, that in the
case of a worker not so employed for a full year, such amount shall be
prorated to reflect the length of such employment under regulations of
the commissioner.
S 9. Subdivision 1 of section 187-n of the tax law, as added by chap-
ter 537 of the laws of 2005, is amended to read as follows:
1. Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY
FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to be
computed as provided in section twenty-six of this chapter, against the
tax imposed by this article.
S 10. Paragraph 1 of subsection (ii) of section 606 of the tax law, as
added by chapter 537 of the laws of 2005, is amended to read as follows:
(1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU-
ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to
be computed as provided in section twenty-six of this chapter, against
the tax imposed by this article.
S 11. Paragraph 1 of subsection (t) of section 1456 of the tax law, as
added by chapter 537 of the laws of 2005, is amended to read as follows:
(1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU-
ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to
be computed as provided in section twenty-six of this chapter, against
the tax imposed by this article.
S 12. Paragraph 1 of subdivision (x) of section 1511 of the tax law,
as added by chapter 537 of the laws of 2005, is amended to read as
follows:
(1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU-
ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit, to
be computed as provided in section twenty-six of this chapter, against
the tax imposed by this article.
S 13. Subdivision 1 of section 187-n of the tax law, as added by chap-
ter 446 of the laws of 2005, is amended to read as follows:
(1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU-
ARY FIRST, TWO THOUSAND NINE, A taxpayer whose business is not substan-
tially engaged in the commercial generation, distribution, transmission,
or servicing of energy or energy products shall be allowed a credit
against the taxes imposed by sections one hundred eighty-three, one
hundred eighty-four and one hundred eighty-five of this article, equal
to its qualified fuel cell electric generating equipment expenditures.
Provided, however, that the amount of such credit allowable against the
tax imposed by section one hundred eighty-four of this article shall be
the excess of the amount of such credit over the amount of any credit
allowed by this section against the tax imposed by section one hundred
S. 60--A 32 A. 160--A
eighty-three of this article. This credit shall not exceed one thousand
five hundred dollars per generating unit with respect to any taxable
year. The credit provided for herein shall be allowed with respect to
the taxable year in which the fuel cell electric generating equipment is
placed in service.
S 14. Paragraph (a) of subdivision 37 of section 210 of the tax law,
as added by chapter 446 of the laws of 2005, is amended to read as
follows:
(a) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU-
ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit
against the tax imposed by this article, equal to its qualified fuel
cell electric generating equipment expenditures. This credit shall not
exceed one thousand five hundred dollars per generating unit with
respect to any taxable year. The credit provided for herein shall be
allowed with respect to the taxable year in which the fuel cell electric
generating equipment is placed in service.
S 15. Paragraph 1 of subsection (g-2) of section 606 of the tax law,
as added by chapter 446 of the laws of 2005, is amended to read as
follows:
(1) General. [An] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST,
TWO THOUSAND NINE, AN individual taxpayer shall be allowed a credit
against the tax imposed by this article equal to twenty percent of qual-
ified fuel cell electric generating equipment expenditures. This credit
shall not exceed one thousand five hundred dollars per generating unit
with respect to any taxable year. The credit provided for herein shall
be allowed with respect to the taxable year in which the fuel cell elec-
tric generating equipment is placed in service.
S 16. Paragraph 1 of subsection (t) of section 1456 of the tax law, as
added by chapter 446 of the laws of 2005, is amended to read as follows:
(1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU-
ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit
against the tax imposed by this article, equal to its qualified fuel
cell electric generating equipment expenditures. This credit shall not
exceed one thousand five hundred dollars per generating unit with
respect to any taxable year. The credit provided for in this subsection
shall be allowed with respect to the taxable year in which the fuel cell
electric generating equipment is placed in service.
S 17. Paragraph 1 of subdivision (x) of section 1511 of the tax law,
as added by chapter 446 of the laws of 2005, is amended to read as
follows:
(1) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU-
ARY FIRST, TWO THOUSAND NINE, A taxpayer shall be allowed a credit
against the tax imposed by this article, equal to its qualified fuel
cell electric generating equipment expenditures. This credit shall not
exceed one thousand five hundred dollars per generating unit with
respect to any taxable year. The credit provided for in this subdivision
shall be allowed with respect to the taxable year in which the fuel cell
electric generating equipment is placed in service.
S 18. Paragraph (a) of subdivision 12-F of section 210 of the tax law,
as added by section 32 of part A of chapter 56 of the laws of 1998, is
amended to read as follows:
(a) [A] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND
NINE, A taxpayer shall be allowed a credit against the tax imposed by
this article. The amount of the credit shall be equal to one of the
following percentages, per each qualified investment in a qualified
emerging technology company as defined in section thirty-one hundred
S. 60--A 33 A. 160--A
two-e of the public authorities law, made during the taxable year, and
certified by the commissioner, either:
(1) ten percent of qualified investments in qualified emerging tech-
nology companies, except for investments made by or on behalf of an
owner of the business, including, but not limited to, a stockholder,
partner or sole proprietor, or any related person, as defined in subpar-
agraph (C) of paragraph three of subsection (b) of section four hundred
sixty-five of the internal revenue code, and provided, however, that the
taxpayer certifies to the commissioner that the qualified investment
will not be sold, transferred, traded, or disposed of during the four
years following the year in which the credit is first claimed; or
(2) twenty percent of qualified investments in qualified emerging
technology companies, except for investments made by or on behalf of an
owner of the business, including, but not limited to, a stockholder,
partner or sole proprietor, or any related person, as defined in subpar-
agraph (C) of paragraph three of subsection (b) of section four hundred
sixty-five of the internal revenue code, and provided, however, that the
taxpayer certifies to the commissioner that the qualified investment
will not be sold, transferred, traded, or disposed of during the nine
years following the year in which the credit is first claimed.
"Qualified investment" means the contribution of property to a corpo-
ration in exchange for original issue capital stock or other ownership
interest, the contribution of property to a partnership in exchange for
an interest in the partnership, and similar contributions in the case of
a business entity not in corporate or partnership form in exchange for
an ownership interest in such entity.
The total amount of credit allowable to a taxpayer under this provision
for all years, taken in the aggregate, shall not exceed one hundred
fifty thousand dollars in the case of investments made pursuant to
subparagraph one of this paragraph and shall not exceed three hundred
thousand dollars in the case of investments made pursuant to subpara-
graph two of this paragraph.
S 19. Paragraph 1 of subsection (r) of section 606 of the tax law, as
added by section 2 of part I of chapter 407 of the laws of 1999, is
amended to read as follows:
(1) [A] FOR TAXABLE YEARS BEGINNING BEFORE JANUARY FIRST, TWO THOUSAND
NINE, A taxpayer shall be allowed a credit against the tax imposed by
this article. The amount of the credit shall be equal to one of the
following percentages, per each qualified investment in a qualified
emerging technology company as defined in section thirty-one hundred
two-e of the public authorities law, made during the taxable year, and
certified by the commissioner, either:
(A) ten percent of qualified investments in qualified emerging tech-
nology companies, except for investments made by or on behalf of an
owner of the business, including, but not limited to, a stockholder,
partner or sole proprietor, or any related person, as defined in subpar-
agraph (C) of paragraph three of subsection (b) of section four hundred
sixty-five of the internal revenue code, and provided, however, that the
taxpayer certifies to the commissioner that the qualified investment
will not be sold, transferred, traded, or disposed of during the four
years following the year in which the credit is first claimed; or
(B) twenty percent of qualified investments in qualified emerging
technology companies, except for investments made by or on behalf of an
owner of the business, including, but not limited to, a stockholder,
partner or sole proprietor, or any related person, as defined in subpar-
agraph (C) of paragraph three of subsection (b) of section four hundred
S. 60--A 34 A. 160--A
sixty-five of the internal revenue code, and provided, however, that the
taxpayer certifies to the commissioner that the qualified investment
will not be sold, transferred, traded, or disposed of during the nine
years following the year in which the credit is first claimed.
(C) "Qualified investment" means the contribution of property to a
corporation in exchange for original issue capital stock or other owner-
ship interest, the contribution of property to a partnership in exchange
for an interest in the partnership, and similar contributions in the
case of a business entity not in corporate or partnership form in
exchange for an ownership interest in such entity. The total amount of
credit allowable to a taxpayer under this provision for all years, taken
in the aggregate, shall not exceed one hundred fifty thousand dollars in
the case of investments made pursuant to subparagraph (A) of this para-
graph and shall not exceed three hundred thousand dollars in the case of
investments made pursuant to subparagraph (B) of this paragraph.
S 20. Subdivision (a) of section 20 of the tax law, as added by
section 1 of part I of chapter 63 of the laws of 2000, is amended to
read as follows:
(a) Allowance of credit. [A] FOR TAXABLE YEARS BEGINNING BEFORE JANU-
ARY FIRST, TWO THOUSAND NINE, A taxpayer subject to tax under article
nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter
shall be allowed a credit against such tax, pursuant to the provisions
referenced in subdivision (d) of this section. The credit shall be
allowed where a taxpayer has made a certified contribution of at least
ten million dollars to a qualified transportation improvement project in
a prior taxable year. The credit shall be equal to six percent of the
taxpayer's increased qualified business facility payroll for the taxable
year. The aggregate of all credit amounts allowed to the taxpayer pursu-
ant to this section with respect to a certified contribution shall not
exceed the amount of such certified contribution.
S 21. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
of the tax law, as amended by section 2 of part ZZ-1 of chapter 57 of
the laws of 2008, is amended to read as follows:
(B) shall be treated as the owner of a new business with respect to
such share if the corporation qualifies as a new business pursuant to
paragraph (j) of subdivision twelve of section two hundred ten of this
chapter.
The corporation's credit base under
section two hundred ten or section
With respect to the following fourteen hundred fifty-six of this
credit under this section: chapter is:
Investment tax credit Investment credit base
under subsection (a) or qualified
rehabilitation
expenditures under
subdivision twelve of
section two hundred ten
Empire zone Cost or other basis
investment tax credit under subdivision
under subsection (j) twelve-B
of section two hundred
ten
S. 60--A 35 A. 160--A
Empire zone Eligible wages under
wage tax credit subdivision nineteen of
under subsection (k) section two hundred ten
or subsection (e) of
section fourteen hundred
fifty-six
Empire zone Qualified investments
capital tax credit and contributions under
under subsection (l) subdivision twenty of
section two hundred ten
or subsection (d) of
section fourteen hundred
fifty-six
Agricultural property tax Allowable school
credit under subsection (n) district property taxes under
subdivision twenty-two of
section two hundred ten
Credit for employment Qualified first-year wages or
of persons with dis- qualified second-year wages
abilities under under subdivision
subsection (o) twenty-three of section
two hundred ten
or subsection (f)
of section fourteen
hundred fifty-six
Employment incentive Applicable investment credit
credit under subsec- base under subdivision
tion (a-1) twelve-D of section two
hundred ten
Empire zone Applicable investment
employment credit under sub-
incentive credit under division twelve-C
subsection (j-1) of section two hundred ten
Alternative fuels credit [Cost] FOR TAXABLE
under subsection (p) YEARS BEGINNING
BEFORE JANUARY FIRST,
TWO THOUSAND NINE, COST
under subdivision
twenty-four of section two
hundred ten
Qualified emerging Applicable credit base
technology company under subdivision twelve-E
employment credit of section two hundred ten
under subsection (q)
Qualified emerging [Qualified] FOR TAXABLE YEARS
technology company BEGINNING BEFORE JANUARY
capital tax credit FIRST, TWO THOUSAND NINE,
under subsection (r) QUALIFIED
S. 60--A 36 A. 160--A
investments under
subdivision twelve-F of
section two hundred ten
Credit for purchase of an [Cost] FOR TAXABLE YEARS
automated external defibrillator BEGINNING BEFORE JANUARY
under subsection (s) FIRST, TWO THOUSAND
NINE, COST
of an automated
external defibrillator under
subdivision twenty-five of
section two hundred ten
or subsection (j) of section
fourteen hundred fifty-six
Low-income housing Credit amount under
credit under subsection (x) subdivision thirty
of section two hundred ten or
subsection (l) of section
fourteen hundred fifty-six
Credit for transportation [Amount] FOR TAXABLE
improvement contributions YEARS BEGINNING BEFORE
under subsection (z) JANUARY FIRST, TWO
THOUSAND NINE, AMOUNT
of credit under sub-
division thirty-two of section
two hundred ten or subsection
(n) of section fourteen
hundred fifty-six
QEZE credit for real property Amount of credit under
taxes under subsection (bb) subdivision twenty-seven of
section two hundred ten or
subsection (o) of section
fourteen hundred fifty-six
QEZE tax reduction credit Amount of benefit period
under subsection (cc) factor, employment increase factor
and zone allocation
factor (without regard
to pro ration) under
subdivision twenty-eight of
section two hundred ten or
subsection (p) of section
fourteen hundred fifty-six
and amount of tax factor
as determined under
subdivision (f) of section sixteen
Green building credit Amount of green building credit
under subsection (y) under subdivision thirty-one
of section two hundred ten
or subsection (m) of section
fourteen hundred fifty-six
S. 60--A 37 A. 160--A
Credit for long-term Qualified costs under
care insurance premiums subdivision twenty-five-a of
under subsection (aa) section two hundred ten
or subsection (k) of section
fourteen hundred fifty-six
Brownfield redevelopment Amount of credit
credit under subsection under subdivision
(dd) thirty-three of section
two hundred ten
or subsection (q) of
section fourteen hundred
fifty-six
Remediated brownfield Amount of credit under
credit for real property subdivision thirty-four
taxes for qualified of section two hundred
sites under subsection ten or subsection (r) of
(ee) section fourteen hundred
fifty-six
Environmental Amount of credit under
remediation subdivision thirty-five of
insurance credit under section two hundred
subsection (ff) ten or subsection
(s) of section
fourteen hundred
fifty-six
Empire state film production Amount of credit for qualified
credit under subsection (gg) production costs in production
of a qualified film under
subdivision thirty-six of
section two hundred ten
Qualified emerging Qualifying expenditures and
technology company facilities, development activities under
operations and training credit subdivision twelve-G of section
under subsection (nn) two hundred ten
Security training tax [Amount] FOR TAXABLE YEARS
credit under BEGINNING BEFORE JANUARY
subsection (ii) FIRST, TWO THOUSAND
NINE, AMOUNT
of credit
under subdivision thirty-seven
of section two hundred ten or
under subsection (t) of
section fourteen hundred fifty-six
Credit for qualified fuel [Amount] FOR TAXABLE YEARS
cell electric generating equipment BEGINNING BEFORE JANUARY
expenditures under subsection (g-2) FIRST, TWO THOUSAND
NINE, AMOUNT
of credit under
subdivision thirty-seven
S. 60--A 38 A. 160--A
of section two hundred ten
or subsection (t) of
section fourteen hundred
fifty-six
Empire state commercial production Amount of credit for qualified
credit under subsection (jj) production costs in production
of a qualified commercial under
subdivision thirty-eight of sec-
tion two hundred ten
Biofuel production Amount of credit
tax credit under under subdivision
subsection (jj) thirty-eight of
section two hundred ten
Clean heating fuel credit Amount of credit under
under subsection (mm) subdivision thirty-nine of
section two hundred ten
Credit for rehabilitation Amount of credit under
of historic properties subdivision forty of
under subsection (oo) subsection two hundred ten
Credit for companies who Amount of credit under
provide transportation subdivision forty of
to individuals section two hundred ten
with disabilities
under subsection (oo)
S 22. This act shall take effect immediately; provided, however that
the empire state film production credit under subsection (gg), the
empire state commercial production credit under subsection (jj) and the
credit for companies who provide transportation to individuals with
disabilities under subsection (oo) of section 606 of the tax law
contained in section twenty-one of this act shall expire on the same
date as provided in section 9 of part P of chapter 60 of the laws of
2004, as amended, section 10 of part V of chapter 62 of the laws of
2006, as amended and section 5 of chapter 522 of the laws of 2006, as
amended, respectively.
PART H
Section 1. Subparagraph (A) of paragraph 1 of subsection (b) of
section 631 of the tax law is amended by adding a new clause 1 to read
as follows:
(1) FOR PURPOSES OF THIS SUBPARAGRAPH, THE TERM "REAL PROPERTY LOCATED
IN THIS STATE" INCLUDES AN INTEREST IN A PARTNERSHIP, LIMITED LIABILITY
CORPORATION, S CORPORATION, OR NON-PUBLICLY TRADED C CORPORATION WITH
ONE HUNDRED OR FEWER SHAREHOLDERS (HEREINAFTER THE "ENTITY") THAT OWNS
REAL PROPERTY THAT IS LOCATED IN NEW YORK AND HAS A FAIR MARKET VALUE
THAT EQUALS OR EXCEEDS FIFTY PERCENT OF ALL THE ASSETS OF THE ENTITY ON
THE DATE OF SALE OR EXCHANGE OF THE TAXPAYER'S INTEREST IN THE ENTITY.
ONLY THOSE ASSETS THAT THE ENTITY OWNED FOR AT LEAST TWO YEARS BEFORE
THE DATE OF THE SALE OR EXCHANGE OF THE TAXPAYER'S INTEREST IN THE ENTI-
TY ARE TO BE USED IN DETERMINING THE FAIR MARKET VALUE OF ALL THE ASSETS
S. 60--A 39 A. 160--A
OF THE ENTITY ON THE DATE OF SALE OR EXCHANGE. THE GAIN OR LOSS DERIVED
FROM NEW YORK SOURCES FROM THE TAXPAYER'S SALE OR EXCHANGE OF AN INTER-
EST IN AN ENTITY THAT IS SUBJECT TO THE PROVISIONS OF THIS SUBPARAGRAPH
IS THE TOTAL GAIN OR LOSS FOR FEDERAL INCOME TAX PURPOSES FROM THAT SALE
OR EXCHANGE MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH IS THE FAIR
MARKET VALUE OF THE REAL PROPERTY LOCATED IN NEW YORK ON THE DATE OF
SALE OR EXCHANGE AND THE DENOMINATOR OF WHICH IS THE FAIR MARKET VALUE
OF ALL THE ASSETS OF THE ENTITY ON THE DATE OF SALE OR EXCHANGE.
S 2. This act shall take effect immediately and shall apply to sales
or exchanges of entity interests that occur thirty or more days after
the date this act becomes law.
PART I
Section 1. Paragraph (a) of subdivision 1 of section 197-b of the tax
law, as amended by section 1 of part JJ-1 of chapter 57 of the laws of
2008, is amended to read as follows:
(a) For taxable years beginning on or after January first, nineteen
hundred seventy-seven, every taxpayer subject to tax under section one
hundred eighty-two, one hundred eighty-two-a, former section one hundred
eighty-two-b, one hundred eighty-four, one hundred eighty-six-a or one
hundred eighty-six-e of this article, must pay in each year an amount
equal to (i) twenty-five percent of the tax imposed under each of such
sections for the preceding taxable year if the preceding year's tax
exceeded one thousand dollars but was equal to or less than one hundred
thousand dollars, or (ii) [thirty] FORTY percent of the tax imposed
under any of these sections for the preceding taxable year if the
preceding year's tax exceeded one hundred thousand dollars. If the
preceding year's tax under section one hundred eighty-four, one hundred
eighty-six-a or one hundred eighty-six-e of this article exceeded one
thousand dollars and the taxpayer is subject to the tax surcharge
imposed by section one hundred eighty-four-a or one hundred eighty-six-c
of this article, respectively, the taxpayer must also pay in each such
year an amount equal to (i) twenty-five percent of the tax surcharge
imposed under such section for the preceding taxable year if the preced-
ing year's tax exceeded one thousand dollars but was equal to or less
than one hundred thousand dollars, or (ii) [thirty] FORTY percent of the
tax surcharge imposed under that section for the preceding taxable year
if the preceding year's tax exceeded one hundred thousand dollars. The
amount or amounts must be paid with the return or report required to be
filed with respect to the tax or tax surcharge for the preceding taxable
year or with an application for extension of the time for filing the
return or report.
S 2. Subdivision (a) of section 213-b of the tax law, as amended by
section 2 of part JJ-1 of chapter 57 of the laws of 2008, is amended to
read as follows:
(a) First installments for certain taxpayers.--In privilege periods of
twelve months ending at any time during the calendar year nineteen
hundred seventy and thereafter, every taxpayer subject to the tax
imposed by section two hundred nine of this chapter must pay with the
report required to be filed for the preceding privilege period, or with
an application for extension of the time for filing the report, an
amount equal to (i) twenty-five percent of the preceding year's tax if
the preceding year's tax exceeded one thousand dollars but was equal to
or less than one hundred thousand dollars, or (ii) [thirty] FORTY
percent of the preceding year's tax if the preceding year's tax exceeded
S. 60--A 40 A. 160--A
one hundred thousand dollars. If the preceding year's tax under section
two hundred nine of this chapter exceeded one thousand dollars and the
taxpayer is subject to the tax surcharge imposed by section two hundred
nine-B of this chapter, the taxpayer must also pay with the tax
surcharge report required to be filed for the preceding privilege peri-
od, or with an application for extension of the time for filing the
report, an amount equal to (i) twenty-five percent of the tax surcharge
imposed for the preceding year if the preceding year's tax was equal to
or less than one hundred thousand dollars, or (ii) [thirty] FORTY
percent of the tax surcharge imposed for the preceding year if the
preceding year's tax exceeded one hundred thousand dollars.
S 3. Subsection (a) of section 1461 of the tax law, as amended by
section 3 of part JJ-1 of chapter 57 of the laws of 2008, is amended to
read as follows:
(a) Every taxpayer subject to the tax imposed by section fourteen
hundred fifty-one must pay an amount equal to (i) twenty-five percent of
the preceding year's tax if the preceding year's tax exceeded one thou-
sand dollars but was equal to or less than one hundred thousand dollars,
or (ii) [thirty] FORTY percent of the preceding year's tax if the
preceding year's tax exceeded one hundred thousand dollars. The amount
must be paid with the return required to be filed for the preceding
taxable year or with an application for an extension of the time for
filing the return. If the preceding year's tax under section fourteen
hundred fifty-one OF THIS ARTICLE exceeded one thousand dollars and the
taxpayer is subject to the tax surcharge imposed by section fourteen
hundred fifty-five-B OF THIS ARTICLE, the taxpayer must also pay with
the tax surcharge return required to be filed for the preceding taxable
year, or with an application for an extension of the time for filing the
return, an amount equal to (i) twenty-five percent of the tax surcharge
imposed for the preceding year if the preceding year's tax was equal to
or less than one hundred thousand dollars, or (ii) [thirty] FORTY
percent of the tax surcharge imposed for the preceding year if the
preceding year's tax exceeded one hundred thousand dollars.
S 4. Paragraph 1 of subdivision (a) of section 1514 of the tax law, as
amended by section 4 of part JJ-1 of chapter 57 of the laws of 2008, is
amended to read as follows:
(1) Except as otherwise provided in paragraph two of this subdivision,
for taxable years beginning on or after January first, nineteen hundred
seventy-six, every taxpayer subject to tax under this article must pay
in each year an amount equal to (i) twenty-five percent of the tax
imposed under this article for the preceding taxable year if the preced-
ing year's tax exceeded one thousand dollars but was equal to or less
than one hundred thousand dollars, or (ii) [thirty] FORTY percent of the
tax imposed under this article for the preceding taxable year if the
preceding year's tax exceeded one hundred thousand dollars. If the
preceding year's tax exceeded one thousand dollars and the taxpayer is
subject to the tax surcharge imposed by section fifteen hundred five-a
of this article, the taxpayer must also pay an amount equal to (i) twen-
ty-five percent of the tax surcharge imposed under section fifteen
hundred five-a for the preceding taxable year if the preceding year's
tax was equal to or less than one hundred thousand dollars, or (ii)
[thirty] FORTY percent of the tax surcharge imposed for the preceding
taxable year if the preceding year's tax exceeded one hundred thousand
dollars.
S 5. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2010.
S. 60--A 41 A. 160--A
PART J
Section 1. Paragraph 3 of subsection (c) of section 658 of the tax
law, as amended by section 1 of part AA-1 of chapter 57 of the laws of
2008, is amended to read as follows:
(3) Filing fees. (A) Every subchapter K limited liability company,
every limited liability company that is a disregarded entity for federal
income tax purposes, and every [limited liability] partnership [under
article eight-B of the partnership law and every foreign limited liabil-
ity partnership,] which has any income derived from New York sources,
determined in accordance with the applicable rules of section six
hundred thirty-one of this article as in the case of a nonresident indi-
vidual, shall, within thirty days after the last day of the taxable
year, make a payment of a filing fee. The amount of the filing fee is
the amount set forth in subparagraph (B) of this paragraph. The minimum
filing fee is twenty-five dollars for taxable years beginning in two
thousand eight and [after] THEREAFTER. Limited liability companies that
are disregarded [entitled] ENTITIES for federal income tax purposes must
pay a filing fee of twenty-five dollars for taxable years beginning on
or after January first, two thousand eight.
(B) The filing fee will be based on the New York source gross income
of the limited liability company or [limited liability] partnership for
the taxable year immediately preceding the taxable year for which the
fee is due. If the limited liability company or [limited liability]
partnership does not have any New York source gross income for the taxa-
ble year immediately preceding the taxable year for which the fee is
due, the limited liability company or [limited liability] partnership
shall pay the minimum filing fee. PARTNERSHIPS, OTHER THAN LIMITED
LIABILITY PARTNERSHIPS UNDER ARTICLE EIGHT-B OF THE PARTNERSHIP LAW AND
FOREIGN LIMITED LIABILITY PARTNERSHIPS, WITH LESS THAN ONE MILLION
DOLLARS IN NEW YORK SOURCE GROSS INCOME ARE EXEMPT FROM THE FILING FEE.
New York source gross income is the sum of the partners' or members'
shares of federal gross income from the [limited liability] partnership
or limited liability company derived from or connected with New York
sources, determined in accordance with the provisions of section six
hundred thirty-one of this article as if those provisions and any
related provisions expressly referred to a computation of federal gross
income from New York sources. For this purpose, federal gross income is
computed without any allowance or deduction for cost of goods sold.
The amount of the filing fee for taxable years beginning on or after
January first, two thousand eight will be determined in accordance with
the following table:
If the New York source gross income is: The fee is:
not more than $100,000 $25
more than $100,000 but not over $250,000 $50
more than $250,000 but not over $500,000 $175
more than $500,000 but not over $1,000,000 $500
more than $1,000,000 but not over $5,000,000 $1,500
more than $5,000,000 but not over $25,000,000 $3,000
Over $25,000,000 $4,500
(C) No credits provided by this article may be taken against the fee
imposed by this paragraph.
(D) Where the filing fee is not timely paid, it shall be paid upon
notice and demand and shall be assessed, collected and paid in the same
S. 60--A 42 A. 160--A
manner as taxes, and for those purposes any reference in this article to
tax imposed by this article shall be deemed also to refer to this filing
fee.
S 2. Subsection (a) of section 1304-C of the tax law, as amended by
section 5 of part AA-1 of chapter 57 of the laws of 2008, is amended to
read as follows:
(a) In addition to any other taxes or fees authorized by this article
or any other law, any city imposing the taxes authorized by this article
is hereby authorized and empowered to adopt and amend local laws provid-
ing that every subchapter K limited liability company (as such term is
defined in subsection (b) of section thirteen hundred two of this arti-
cle), every limited liability company that is a disregarded entity for
federal income tax purposes and every [limited liability] partnership
[under article eight-B of the partnership law and every foreign limited
liability partnership,] which has any income derived from sources within
such city, determined in accordance with the applicable rules of section
six hundred thirty-one of this chapter as in the case of a state nonres-
ident individual (except that in making that determination any refer-
ences in section six hundred thirty-one of this chapter to "New York
source" or "New York sources" shall be read as references to "New York
city source" or "New York city sources" and any references in that
section to "this state" or "the state" shall be read as references to
"this city" or "the city"), shall within thirty days after the last day
of the taxable year make a payment of a filing fee. The amount of the
filing fee shall be the amount determined under paragraph three of
subsection (c) of section six hundred fifty-eight of this chapter,
except that in making that determination any references in that section
to "New York source gross income" must be read as reference to "New York
city source gross income". Any local law imposing the filing fee author-
ized by this section shall provide that where the filing fee is not
timely paid, it shall be paid upon notice and demand and shall be
assessed, collected and paid in the same manner as the taxes imposed
pursuant to the authority of this article, and for these purposes any
reference in the local law imposing those taxes to the taxes imposed by
that local law shall be deemed also to refer to the filing fee imposed
pursuant to the authority of this section.
S 3. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2009.
PART K
Section 1. Section 957 of the general municipal law, as added by chap-
ter 686 of the laws of 1986, subdivisions (b) and (f) as amended and
subdivisions (c), (g), (i), (j), (k), and (l) as added by chapter 624 of
the laws of 1990, subdivision (d) as amended and subdivision (r) as
added by section 1 of part HH of chapter 59 of the laws of 2006, para-
graphs (iii), (iv), (v) and (vi) of subdivision (d) as added by section
5 of part A of chapter 63 of the laws of 2005, subdivision (e) as
amended and subdivisions (m), (n) and (o) as added by chapter 708 of the
laws of 1993, subdivision (h) as amended by chapter 39 of the laws of
2004, subdivision (p) as added by chapter 170 of the laws of 1994,
subdivision (q) as amended by chapter 161 of the laws of 2005, subdivi-
sions (s) and (t) as added by section 1 of part V-1 of chapter 109 of
the laws of 2006, subdivision (u) as added by chapter 494 of the laws of
2008 and subdivisions (a), (e), (f), (k), and (m) as further amended
S. 60--A 43 A. 160--A
pursuant to section 15 of part GG of chapter 63 of the laws of 2000, is
amended to read as follows:
S 957. Definitions. As used in this article, the following words and
terms shall have the following meanings unless the context shall indi-
cate another or different meaning or intent:
(a) "Applicant" shall mean the county, city, town or village submit-
ting an application in the manner authorized by local law for desig-
nation of an area as an empire zone.
(b) "Commissioner" shall mean the commissioner of economic develop-
ment.
(c) "Minority-owned business enterprise" shall [mean a business enter-
prise, including a sole proprietorship, partnership or corporation, that
is:
(i) at least fifty-one percent owned by one or more minority group
members;
(ii) an enterprise in which such minority ownership is real, substan-
tial and continuing;
(iii) an enterprise in which such minority ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise; and
(iv) an enterprise authorized to do business in this state and inde-
pendently owned and operated] HAVE THE SAME MEANING AS PROVIDED IN
SECTION THREE HUNDRED TEN OF THE EXECUTIVE LAW.
(d) "Empire zone" shall mean an area within the state that has been
designated as an empire zone pursuant to this article and:
(i) all empire zones designated under paragraph (i) of subdivision (a)
and subdivision (d) of section nine hundred fifty-eight of this article
shall be referred to as "investment zones" and shall be wholly contained
within up to three distinct and separate contiguous areas; provided,
however, that empire zones designated prior to the enactment of this
paragraph shall identify up to three distinct and separate contiguous
areas, which shall equal up to their total allotted acreage at the time
of designation by January first, two thousand six. Provided however, the
existing zone must include as much designated acreage into the distinct
and separate contiguous areas as possible. Provided, however, notwith-
standing the provisions of paragraphs (i) and (ii) of subdivision (a) of
section nine hundred fifty-eight and subdivision (d) of section nine
hundred fifty-nine of this article a regionally significant project may
be located outside of the investment zone's distinct and separate
contiguous areas, provided such significant project is located within
the zone applicant's municipal boundaries. Provided further however, if
the investment zone is located in a county that does not have a develop-
ment zone such significant project may be located within the county's
boundaries. For the purpose of this article a "regionally significant
project" shall mean: a manufacturer projecting the creation of fifty or
more jobs; or an agri-business or high tech or biotech business making a
capital investment of ten million dollars and creating twenty or more
jobs; or a financial or insurance services or distribution center creat-
ing three hundred or more jobs; or a clean energy research and develop-
ment enterprise shall be eligible as a regionally significant project as
determined by [the local zone administrative board and] the commission-
er. Other projects may be considered by the zone designation board;
(ii) all empire zones designated under subdivisions (b) and (c) of
section nine hundred fifty-eight of this article shall be referred to as
"development zones" and shall be wholly contained within up to six
distinct and separate contiguous areas. However, an empire zone located
S. 60--A 44 A. 160--A
in more than one county at the time of designation shall be wholly
contained in up to twelve distinct and separate contiguous areas.
Provided, however, that empire zones designated prior to the enactment
of this paragraph shall identify up to six distinct and separate contig-
uous areas, which shall equal up to their total allotted acreage at the
time of designation, by January first, two thousand six or in the case
of an empire zone located in more than one county, at the time of desig-
nation shall identify twelve distinct and separate contiguous areas.
Provided however, the existing zone must include as much designated
acreage into the distinct and separate contiguous areas as possible.
Provided, however, a regionally significant project may be located
outside of the development zone's distinct and separate contiguous
areas. For the purpose of this article a "regionally significant
project" shall mean: a manufacturer projecting the creation of fifty or
more jobs; or an agri-business or high tech or biotech business making a
capital investment of ten million dollars and creating twenty or more
jobs; or a financial or insurance services or distribution center creat-
ing three hundred or more jobs; or a clean energy research and develop-
ment enterprise shall be eligible as a regionally significant project as
determined by [the local zone administrative board and] the commission-
er. Other projects may be considered by the zone designation board;
(iii) provided, however, a zone may apply BY NO LATER THAN MARCH THIR-
TY-FIRST, TWO THOUSAND NINE to add one additional distinct and separate
contiguous area, pursuant to paragraphs (i) and (ii) of this subdivi-
sion, to such zone upon the demonstration of need, provided, however,
such additional distinct and separate contiguous area shall not result
in an empire zone that exceeds the maximum allotted acreage;
(iv) a "development zone", pursuant to paragraph (ii) of this subdivi-
sion, shall apply BY NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND
NINE, pursuant to subdivisions (a) and (d) of section nine hundred
fifty-eight of this article, to have up to three distinct and separate
contiguous areas defined as "investment zones", pursuant to this subdi-
vision;
(v) any certified businesses located outside of the empire zone's
distinct and separate contiguous areas, pursuant to this section, shall
be allowed the empire zone benefits until they are decertified; and
(vi) the boundaries that comprise the distinct and separate contiguous
areas in this subdivision must include at least the real property on one
side of a public thoroughfare when such street is used as a boundary. No
boundary shall be constructed as to connect one tax parcel to another
tax parcel by using a thoroughfare's center line, sidewalk or other
similar means of connecting a non-contiguous area to the zone's distinct
and separate contiguous areas.
(e) "Local empire zone administrative board" shall mean the entity
designated by the applicant that is responsible for monitoring, evaluat-
ing and coordinating all empire zone benefits on behalf of the appli-
cant. Such entity shall consist of at least six members, none of whom
shall be the local empire zone certification officer, and shall be
representative of local businesses, organized labor, community organiza-
tions, financial institutions, local educational institutions and resi-
dents of the empire zone.
(f) ["Local empire zone certification officer" shall mean the official
designated by the applicant who is responsible for jointly certifying
and decertifying together with the commissioner and the commissioner of
labor those business enterprises eligible to receive benefits pursuant
to this article.
S. 60--A 45 A. 160--A
(g)] "Women-owned business enterprise" shall [mean a business enter-
prise, including a sole proprietorship, partnership or corporation, that
is:
(i) at least fifty-one percent owned by one or more United States
citizens or permanent resident aliens who are women;
(ii) an enterprise in which the ownership interest of such women is
real, substantial and continuing;
(iii) an enterprise in which such women ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise; and
(iv) an enterprise authorized to do business in this state and inde-
pendently owned and operated] HAVE THE SAME MEANING AS PROVIDED IN
SECTION THREE HUNDRED TEN OF THE EXECUTIVE LAW.
[(h)] (G) "Locally owned business enterprise" shall mean (i) a busi-
ness firm in which the total ownership interest held by individuals who
are full time bona fide residents of such zone is more than eighty
percent, whose business activities are conducted in a manner whereby at
least fifty percent of the assets of such firm are located and utilized
in such zone, and at least forty percent of such firm's employees are
principally employed in such zone; or (ii) an agricultural cooperative
established pursuant to section one hundred eleven of the cooperative
corporations law; provided however, for business firms located within
zones designated in a city such individuals shall reside within a commu-
nity planning board or within traditional neighborhood boundaries and
provided further however for business firms located within zones outside
of a city such individuals may reside in the county in which the zone is
designated.
[(i)] (H) "Chief executive" shall mean (i) a county executive or
manager of a county; (ii) in a county not having a county executive or
manager, the chairperson or other presiding officer of the county legis-
lative body; (iii) a mayor of a city or village, except where a city or
village has a manager, it shall mean such a manager; or (iv) a supervi-
sor of a town, except where a town has a manager, it shall mean such
manager.
[(j)] (I) "Minority group member" shall [mean a United States citizen
or permanent resident alien who is and can demonstrate membership in one
of the following groups:
(i) Black persons having origins in any of the Black African racial
groups;
(ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,
Central or South American of either Indian or Hispanic origin, regard-
less of race;
(iii) Native American or Alaskan native persons having origins in any
of the original peoples of North America; and
(iv) Asian and Pacific Islander persons having origins in any of the
Far East countries, South East Asia, the Indian subcontinent or the
Pacific Islands] HAVE THE SAME MEANING AS PROVIDED IN SECTION THREE
HUNDRED TEN OF THE EXECUTIVE LAW.
[(k)] (J) "Targeted employee" shall mean a New York resident who
receives empire zone wages pursuant to subdivision nineteen of section
two hundred ten of the tax law and who is (i) an eligible individual
under the provision of the targeted jobs tax credit (section fifty-one
of the internal revenue code), (ii) eligible for benefits under the
provisions of the job training partnership act (P.L. 97-300, as
amended), (iii) a recipient of public assistance benefits, or (iv) an
individual whose income is below the most recently established poverty
S. 60--A 46 A. 160--A
rate promulgated by the United States department of commerce, or a
member of a family whose family income is below the most recently estab-
lished poverty rate promulgated by the appropriate federal agency.
An individual who satisfies the criteria set forth in clause (i), (ii)
or (iv) of this subdivision at the time of initial employment in the job
with respect to which the credit is claimed, or who satisfies the crite-
rion set forth in clause (iii) of this subdivision at such time or at
any time within the previous two years, shall be a targeted employee so
long as such individual continues to receive empire zone wages.
[(l)] (K) "Single enterprise" means two or more related business
enterprises characterized by an absence of arms length relationships
found among enterprises that are not integrated. Factors to be consid-
ered, among other things, in determining the existence of a single
enterprise are interrelation of operations, common management, central-
ized control of labor relations, common ownership and common financial
control.
[(m)] (L) "Zone administrative entity" shall mean a community-based
local development corporation or entity contracting with the local
empire zone board pursuant to paragraph (viii) of subdivision [(b)] A of
section nine hundred sixty-three of this article or the municipality in
which the zone is located in those instances where the municipality
actively participates in the local administration of the zone program.
[(n)] (M) "Human resource development" shall mean job preparation and
placement, skills training and education for zone residents and employ-
ees of zone businesses, child and family care services and facilities,
and activities to improve the health benefits and other benefits
provided by zone businesses to their employees.
[(o)] (N) "Community development projects" shall mean projects spon-
sored by not-for-profit organizations which have been approved by the
zone board, which will advance the zone development plan. For purposes
described in subdivision twenty of section two hundred ten, subsection
(l) of section six hundred six, subsection (d) of section fourteen
hundred fifty-six and subdivision (h) of section fifteen hundred eleven
of the tax law, such projects shall be limited to child care programs
serving zone residents and businesses; community development projects in
direct support of economic development and business revitalization
activities, such as commercial revitalization projects; and business
development activities of local development corporations.
[(p)] (O) "Zone equivalent area" shall mean an area designated as such
pursuant to FORMER subdivision (bb) of section nine hundred fifty-nine
of this article.
[(q)] (P) "Cost benefit analysis" shall mean, FOR PURPOSES OF PARA-
GRAPH (I) OF SUBDIVISION (A) OF SECTION NINE HUNDRED FIFTY-NINE AND
SUBDIVISION (B) OF SECTION NINE HUNDRED SEVENTY OF THIS ARTICLE, a meth-
od of determining whether to certify a business [pursuant to section
nine hundred sixty-three of this article] ENTERPRISE based on the [busi-
ness'] BUSINESS ENTERPRISE'S projected job creation and/or investment
[in the zone] AT THE LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER,
versus the TOTAL amount of empire zone TAX benefits the business ENTER-
PRISE will potentially be allowed to [claim pursuant to sections four-
teen, fifteen, and sixteen of the tax law.] USE AND HAVE REFUNDED TO IT
AND SHALL BE A RATIO OF AT LEAST 20:1, THE NUMERATOR OF WHICH IS THE SUM
OF (I) THE ESTIMATED VALUE OF ALL WAGES AND BENEFITS PAID FOR THE FIRST
THREE YEARS OF CERTIFICATION TO ALL EXISTING AND PROJECTED EMPLOYEES OF
THE BUSINESS ENTERPRISE AT THE LOCATION OR LOCATIONS APPROVED BY THE
COMMISSIONER AND (II) THE ESTIMATED VALUE OF CAPITAL INVESTMENTS FOR THE
S. 60--A 47 A. 160--A
FIRST THREE YEARS OF CERTIFICATION AT THE LOCATION OR LOCATIONS APPROVED
BY THE COMMISSIONER, AND THE DENOMINATOR OF WHICH IS THE ESTIMATED
AMOUNT OF TOTAL EMPIRE ZONE TAX BENEFITS THAT MAY BE USED AND MAY BE
REFUNDED FOR THE FIRST THREE YEARS OF CERTIFICATION AT THE LOCATION OR
LOCATIONS APPROVED BY THE COMMISSIONER.
[Such cost benefit analysis shall include, but not be limited to, an
estimate for the first five years commencing in the year in which the
business is certified, of: (i) the amount of all the state tax credits
under the empire zones program which may be claimed by the entity or its
members, partners, or shareholders each year, (ii) the value of the
sales tax exemption on an annual basis, (iii) the estimated number of
jobs created, (iv) the total annual remuneration and benefits for the
employees within the zone location, (v) the cost of construction, reno-
vation or expansion of the business's location within the zone, and (vi)
the investment being made with respect to tangible personal property or
other tangible property which is depreciable pursuant to section 179(d)
of the Internal Revenue Code. Non-quantifiable factors may include a
business enterprise's positive impact on an area that has high commer-
cial vacancy rates, and/or is characterized by blight and disinvestment
or the business enterprise is part of a strategic industry cluster or
supply chain; or is anticipated to access zone capital credits.]
(Q) "COST BENEFIT ANALYSIS" SHALL MEAN, FOR PURPOSES OF SUBDIVISION
(W) OF SECTION NINE HUNDRED FIFTY-NINE AND SUBDIVISION (D) OF SECTION
NINE HUNDRED SEVENTY OF THIS CHAPTER, A METHOD OF DETERMINING WHETHER TO
CONTINUE TO CERTIFY A BUSINESS ENTERPRISE AT THE LOCATION OR LOCATIONS
APPROVED BY THE COMMISSIONER BASED ON THE BUSINESS ENTERPRISE'S ACTUAL
JOB CREATION AND/OR CAPITAL INVESTMENT VERSUS THE TOTAL AMOUNT OF EMPIRE
ZONE BENEFITS THE BUSINESS ENTERPRISE USED AND HAD REFUNDED AND SHALL BE
A RATIO OF AT LEAST 20:1, THE NUMERATOR OF WHICH IS THE SUM OF (I) THE
ACTUAL VALUE OF ALL WAGES AND BENEFITS PAID FOR AT LEAST THREE YEARS OF
CERTIFICATION TO ALL EMPLOYEES OF THE BUSINESS ENTERPRISE AT THE
LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER AND (II) THE VALUE OF
CAPITAL INVESTMENTS FOR AT LEAST THREE YEARS AT THE LOCATION OR
LOCATIONS APPROVED BY THE COMMISSIONER, AND THE DENOMINATOR OF WHICH IS
THE TOTAL AMOUNT OF EMPIRE ZONE TAX BENEFITS ACTUALLY REFUNDED AND USED
BY THE BUSINESS ENTERPRISE FOR AT LEAST THREE YEARS, AT THE LOCATION OR
LOCATIONS APPROVED BY THE COMMISSIONER.
(r) "Clean energy research and development enterprise" shall mean any
electric generating facility that used pulverized coal technology,
circulating fluidized bed technology or integrated gasification combined
cycle technology and that is capable of capturing carbon dioxide for
sequestration or capable of being retrofitted to capture carbon dioxide
for sequestration.
(s) "Qualified investment project" shall mean a project (i) located
within an empire zone, (ii) at which five hundred or more jobs will be
created, provided such jobs are new to the state and are in addition to
any other jobs previously created by the owner of such project in the
state, and (iii) which will consist of tangible personal property and
other tangible property, including buildings and structural components
of buildings, described in subparagraphs (i), (ii), (iii), (iv) and
clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivision
twelve-B of section two hundred ten of the tax law, the basis of which
for federal income tax purposes will equal or exceed seven hundred fifty
million dollars. Provided however, the owner of such project does not
employ more than two hundred persons in the state at the time such
project is commenced.
S. 60--A 48 A. 160--A
(t) "Significant capital investment project" shall mean a project (i)
located within an empire zone, (ii) which will be either a newly
constructed facility or a newly constructed addition to or expansion of
a qualified investment project, consisting of tangible personal property
and other tangible property, including buildings and structural compo-
nents of buildings, described in subparagraphs (i), (ii), (iii), (iv)
and clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivi-
sion twelve-B of section two hundred ten of the tax law, the basis of
which for federal income tax purposes will equal or exceed seven hundred
fifty million dollars, (iii) which is constructed after the basis for
federal income tax purposes of the property comprising such qualified
investment project equals or exceeds seven hundred fifty million
dollars, and (iv) at which five hundred or more jobs will be created,
provided such jobs are new to the state and are in addition to any other
jobs previously created by the owner of such project in the state.
(u) In the case of a manufacturer: (i) that has acquired a silicon
manufacturing facility: (A) where more than seven hundred fifty persons
are employed; (B) that has been designated as a regionally significant
project as defined in this article; and (C) which has a cost or other
basis for federal income tax purposes in tangible personal property at
such silicon manufacturing facility, including equipment and machinery,
buildings and structural components of buildings, equal to or exceeding
two hundred million dollars; and (ii) that is projecting the creation of
fifty or more silicon manufacturing jobs at the silicon manufacturing
facility referred to in paragraph (i) of this subdivision, then, subject
to the written approval of the commissioner, such manufacturer may elect
an effective date for designation of such manufacturing facility as a
regionally significant project for purposes of this article, and
provided such manufacturer has been certified as an empire zone enter-
prise pursuant to this article, and has obtained the written approval of
the commissioner, may elect an effective date for such certification as
an empire zone enterprise pursuant to this article, provided that such
dates are: (A) no earlier than the date that the manufacturing facility
is acquired; (B) no earlier than sixty days prior to the date upon which
a local law was enacted by the city, county, town or village approving
the inclusion of the regionally significant project within the empire
zone; and (C) no later than the date the local zone administrative board
approves the application for certification as an empire zone enterprise,
and further provided that such effective date for designation and such
effective date for certification as an empire zone enterprise pursuant
to this article shall be the same date. Subject to the written approval
of the commissioner, such election shall be made by such manufacturer to
the commissioner on or before the second anniversary of the date upon
which the local law was enacted by the city, county, town or village
approving the inclusion of the regionally significant project within the
empire zone.
S 2. Paragraph (ii) and the opening paragraph of paragraph (vi) of
subdivision (a), subdivision (b), the opening paragraph of subdivision
(c), the opening paragraph of subdivision (d) and subdivision (g) of
section 958 of the general municipal law, paragraph (ii) and the opening
paragraph of paragraph (vi) of subdivision (a) and the opening paragraph
of subdivision (c) as amended by chapter 708 of the laws of 1993, subdi-
vision (b) as amended by chapter 624 of the laws of 1990, the opening
paragraph of subdivision (d) as amended by chapter 41 of the laws of
2000, subdivision (g) as added by section 5 of part A of chapter 63 of
the laws of 2005, and paragraph (ii) of subdivision (a), subdivision
S. 60--A 49 A. 160--A
(b), the opening paragraph of subdivision (c), and the opening paragraph
of subdivision (d) as further amended pursuant to section 15 of part GG
of chapter 63 of the laws of 2000, are amended to read as follows:
(ii) lands nearby or contiguous to census tracts or block numbering
areas described in paragraph (i) of this subdivision may be eligible to
be included within an empire zone if, upon the request of the applicant
BY MARCH THIRTY-FIRST, TWO THOUSAND NINE, the commissioner finds, in
accordance with regulations promulgated pursuant to this article, that
such additional lands have significant potential for business develop-
ment and job creation, which will enhance economic revitalization of the
zone and benefit zone residents; provided, however, that lands nearby
shall not be included in a zone until the commissioner, in consultation
with the director of the budget, promulgates regulations governing the
inclusion of such lands;
such other requirements as may be established in regulations promul-
gated by the commissioner [with the approval of the director of the
budget and after consultation with the commissioner of labor], including
but not limited to:
(b) Notwithstanding the provisions of paragraph (i) of subdivision (a)
of this section, any county in which the average rate of unemployment in
the two most recent calendar years was at least one and one-quarter
times the state average for those years and in which the rate of poverty
for individuals was at least thirteen percent according to the most
recent census data available, and which does not contain a census tract
or tracts, portion of a block numbering area or a city, town or village
which meets the criteria specified in such paragraph (i) of subdivision
(a), may apply BY NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE
for designation of an area within a municipality as an empire zone. The
area proposed for designation shall be characterized by pervasive pover-
ty, high unemployment and general economic distress.
Notwithstanding the provisions of paragraph (i) of subdivision (a) of
this section, any county may apply BY NO LATER THAN MARCH THIRTY-FIRST,
TWO THOUSAND NINE for designation of an area within a municipality as an
empire zone provided that the following requirements are met:
Notwithstanding the provisions of paragraph (i) of subdivision (a) of
this section, any municipality may apply BY NO LATER THAN MARCH THIRTY-
FIRST, TWO THOUSAND NINE for designation as an empire zone for an area
which shall include a United States census tract or tracts or block
numbering area or areas or portions thereof, each full census tract or
portion of a block numbering area of which according to the most recent
census data available has:
(g) Notwithstanding any other provision of this section, after March
thirty-first, two thousand five, a municipality shall demonstrate in an
application for designation as an empire zone SUBMITTED NO LATER THAN
MARCH THIRTY-FIRST, TWO THOUSAND NINE, that there is no viable alterna-
tive area or areas that has or have existing public sewer or water
infrastructure available other than the proposed zone.
S 3. Section 959 of the general municipal law, as amended by section 5
of part A of chapter 63 of the laws of 2005 and subdivision (w) as
amended by section 2 of part CCC1 of chapter 57 of the laws of 2008, is
amended to read as follows:
S 959. Responsibilities of the commissioner. The commissioner shall:
(a) [After consultation with the director of the budget, the commis-
sioner of labor, and the commissioner of taxation and finance, promul-
gate] PROMULGATE regulations, WHICH, NOTWITHSTANDING ANY PROVISIONS TO
THE CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE ACT, MAY BE ADOPTED
S. 60--A 50 A. 160--A
ON AN EMERGENCY BASIS, governing (i) [criteria of eligibility for empire
zone designation, provided, however, that such criteria be approved by
the director of the budget; (ii) the application process; (iii)] the
[joint] certification by the commissioner[, the commissioner of labor,
and, in the case of an empire zone, the local empire zone certification
officer,] as to the eligibility of business enterprises for benefits
referred to in section nine hundred sixty-six of this article[,
provided, however, that a business enterprise that has shifted its oper-
ations, or some portions thereof, from an area within New York state not
designated as an empire zone or zone equivalent area to an area so
designated shall not be certified to receive such benefits except where
such shift is entirely within a municipality and has been approved by
the local governing body of such municipality or in situations where it
has been established, after a public hearing, that extraordinary circum-
stances exist which warrant the relocation of a business, in whole or
part, into an empire zone or a zone equivalent area from another munici-
pality and the municipality from which the business is relocating
approves of such relocation; or where such shift in operations is from a
business incubator facility operated by a municipality or by a public or
private not-for-profit entity which provides space and business support
services to newly established firms]; and [(iv)] (II) the [joint] decer-
tification by the commissioner[, the commissioner of labor, and, in the
case of an empire zone, the local empire zone certification officer] so
as to revoke the certification of business enterprises for benefits
referred to in section nine hundred sixty-six of this article with
respect to an empire zone or zone equivalent area upon a finding that
(1) the business enterprise made material misrepresentations of fact on
its application for certification OR IN ANY OF ITS BUSINESS ANNUAL
REPORTS, or the business enterprise failed to disclose facts in its
application for certification that would constitute grounds for not
issuing a certification; (2) the business enterprise has failed to
construct, expand, rehabilitate or operate OR INVEST IN its facility
substantially in accordance with the representations contained in its
application for certification; (3) the business enterprise has failed to
create new employment or prevent a loss of employment in the empire zone
or zone equivalent area [provided, however, that such failure was not
due to economic circumstances or conditions which such business could
not anticipate or which were beyond its control]; (4) where applicable,
the business enterprise has failed to submit an annual report after it
has applied for zone [incentives] TAX BENEFITS or program assistance
based on new hires or investments or failed to submit other information
[to the local empire zone certification officer] when due; [or] (5) the
business enterprise has committed substantial violations of laws for the
protection of workers including all federal, state and local labor laws,
rules or regulations; OR (6) THE BUSINESS ENTERPRISE HAS FAILED TO MEET
THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS AS ESTABLISHED BY AND
CONDUCTED PURSUANT TO THIS ARTICLE UNLESS THE COMMISSIONER DETERMINES IN
HIS OR HER SOLE DISCRETION THAT CONTINUED CERTIFICATION IS WARRANTED,
BASED UPON OTHER ECONOMIC, SOCIAL AND ENVIRONMENTAL FACTORS, AS PROVIDED
IN SUBDIVISION (W) OF THIS SECTION; said regulations shall provide that
whenever any business enterprise is decertified with respect to an
empire zone: (A) the date determined to be the earliest event constitut-
ing grounds for revoking certification shall be the effective date of
decertification; (B) its certified single enterprise, if any, may also
be decertified; and (C) the commissioner shall notify the commissioner
of taxation and finance that such decertification has occurred, and such
S. 60--A 51 A. 160--A
notification should include the effective date of such decertification
and the zone or zone equivalent area to which such decertification
applies; WITH RESPECT TO ANY BUSINESS ENTERPRISE DECERTIFIED PURSUANT TO
SUBPARAGRAPH SIX OF PARAGRAPH (II) OF THIS SUBDIVISION, THAT DECERTIF-
ICATION (1) WILL BE EFFECTIVE FOR A TAXABLE YEAR BEGINNING ON OR AFTER
JANUARY FIRST, TWO THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND
NINE AND FOR SUBSEQUENT TAXABLE YEARS FOR A BUSINESS ENTERPRISE FOR
WHICH A REVIEW IS REQUIRED TO BE CONDUCTED PURSUANT TO SUBDIVISION (W)
OF THIS SECTION IN CALENDAR YEAR TWO THOUSAND NINE, AND (2) THEREAFTER
WILL BE EFFECTIVE FOR THE TAXABLE YEAR DURING WHICH THE COMMISSIONER
MAKES HIS OR HER DETERMINATION (PRIOR TO ANY APPEAL) TO REVOKE THE
CERTIFICATION OF A BUSINESS ENTERPRISE AND FOR SUBSEQUENT TAXABLE YEARS;
(b) Receive BY NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE and
review applications for designation of areas as empire zones;
(c) Analyze and make recommendations to the empire zones designation
board for designation of areas as empire zones, provided, however, that
all such areas recommended by the commissioner shall meet the require-
ments of this article;
(d) [Review new applications to replace any previously designated
empire zone the designation of which has been terminated or withdrawn;
(e)] File notice of the designation or redesignation of an empire zone
or of the revision or termination of such designation with the appli-
cant, the department of taxation and finance, the secretary of state,
with the county, city, town or village clerk of each county, city, town,
or village, respectively, in which the empire zone is located, with the
school district governing body in which the empire zone is located, with
the state board of real property services and with other state and local
entities; provided, however, that such notice shall specify the date
such action was taken and shall contain a description sufficient to
identify the empire zone, including the names of the abutting streets,
roads, highways, bodies of water, or other identifying physical
features;
[(f)] (E) Request, and shall receive from any department, division,
board, bureau, commission, agency or public authority of the state such
assistance as may be necessary to establish a procedure whereby applica-
tions submitted by business entities, community-based organizations,
not-for-profit organizations, human service agencies, labor unions and
municipal agencies located within an empire zone requesting financial
and other assistance provided by state programs, including, but not
limited to, capital development, human resource development, business
assistance, job training and job placement shall, consistent with feder-
al law, be given priority over applications submitted by entities not
located in empire zones;
[(g)] (F) Establish a priority for the allocation of authority to
issue private activity bonds for the benefit of municipalities and busi-
ness enterprises located or to be located within empire zones;
[(h)] (G) Coordinate, with the local empire zone administrative board
and state agencies and authorities, the provision of business develop-
ment programs and services for each empire zone in order to stimulate
the creation and development of new small businesses, including new
small minority-owned and women-owned business enterprises, and may
request and shall receive from any department, division, board, bureau,
commission, agency or public authority of the state such assistance as
may be necessary;
[(i)] (H) Coordinate with the comptroller and the commissioner of
taxation and finance a linked deposit program. The comptroller and the
S. 60--A 52 A. 160--A
commissioner of taxation and finance are hereby authorized and empowered
to enter into agreements with financial institutions located in or serv-
ing the empire zones, to provide for the deposit of funds administered
jointly by them in such institutions, at reduced rates of return to the
state, in return for commitments by such institutions to businesses of
loans of comparable amounts, at reduced interest rates, for business
development projects in the zones that will create or preserve jobs;
[(j)] (I) Assist each local empire zone board in preparing a small
business assistance plan as required by section nine hundred sixty-three
of this article and coordinate with the local empire zone administrative
board and state agencies and authorities the development of small busi-
ness procurement, export and marketing programs for businesses within
the empire zones;
[(k)] (J) Promulgate regulations[, in consultation with the commis-
sioner of labor,] for program evaluation and coordinate implementation
of an evaluation system, which is capable of compiling and analyzing
accurate and consistent information necessary for an assessment of
whether statutory objectives and criteria are being met;
[(l)] (K) Review performance objectives and progress in meeting objec-
tives with zone boards and zone administrative entities as part of the
annual administrative contract process;
[(m)] (L) Assist zone boards and zone administrative entities to
effect and implement job training and social services agreements and
programs provided for in paragraphs (v), (vi) and (vii) of subdivision
[(b)] (A) of section nine hundred sixty-three of this article and
request and receive from any agency or authority of the state such
assistance as may be necessary to improve the delivery and coordination
of human resource development programs to the zones;
[(n)] (M) Assist zones in increasing their child care capacity and in
planning special care activities, including the provision of technical
assistance by the department in planning for the provision of child care
services in the zones;
[(o)] (N) Coordinate with the department of labor, the state education
department, the job training partnership council and agencies of the
state the inclusion in annual and biennial plans of such entities strat-
egies for increasing and improving human resource development services
on a priority basis, consistent with federal statutory and regulatory
requirements, to residents of the zones and employees of zone busi-
nesses, including, but not limited to, the governor's plan for coordi-
nation and special services of the job training partnership council, the
jobs plan and Wagner-Peyser annual plan for services of the department
of labor, and the career education state plan of the state education
department;
[(p)] (O) Arrange with the job training partnership council the
provision of the workforce investment act funds for use within the zones
with the cooperation of the service delivery areas in the governor's
plan for coordination and special services;
[(q)] (P) Subject to the availability of funds, arrange for the allo-
cation and reservation of funds from the infrastructure improvement
programs of state agencies and authorities to assist the zones to make
public improvements necessary for community, commercial, industrial and
tourism development projects in support of zone revitalization;
[(r)] (Q) Systematically enlist other state agencies and authorities
to participate in zone programs and projects and in cooperative planning
of interagency zone activities in support of zone revitalization
efforts;
S. 60--A 53 A. 160--A
[(s)] (R) Recommend for economic development loan and grant programs
of the department of economic development, urban development corpo-
ration, job development authority, and science and technology foundation
special terms and conditions for viable zone projects and programs;
[(t)] (S) Award preference to be given to applications submitted by or
on behalf of zones for entrepreneurial assistance programs under article
nine of the omnibus economic development act of nineteen hundred eight-
y-seven to support the creation of new entrepreneurial development and
entrepreneurial support centers;
[(u)] (T) Coordinate with the urban development corporation the
creation of a special category of assistance for zones within the
regional economic development partnership program, which will make
available economic development assistance grants for zone programs and
activities, including, but not limited to, planning, service coordi-
nation, and local institutional capacity building for human resource
development necessary for economic revitalization; planning and develop-
ment of small business incubators; job placement and preparedness
programs for zones residents; education and training programs for zone
businesses; child care programs and projects supportive of business
development; technical assistance for minority and women-owned business
development; training for zone officials; business and tourism develop-
ment and marketing programs; and other innovative programs and activ-
ities in support of economic and community development within the zones;
[and]
[(v)] (U) Assist in the development of a plan, in coordination with
the health and insurance departments, to assist zones in obtaining
affordable employee health insurance for small business enterprises
located within the zone[.];
[(w)] (V) Approve applications for qualification of a business enter-
prise as the owner of a qualified investment project or as the owner of
a significant capital investment project, as defined in subdivisions (s)
and (t), respectively, of section nine hundred fifty-seven of this arti-
cle. As a condition for approval of such application, the commissioner
is authorized to specify certain requirements to be satisfied as a
condition for approval of such application as the commissioner deems
necessary to ensure that the project will make a substantial contrib-
ution to the economic development of this state. An application for
qualification of a business enterprise as the owner of a qualified
investment must be submitted by December thirty-first, two thousand
nine. An application for qualification of a business as the owner of a
significant capital investment project as defined in subdivision (t) of
section nine hundred fifty-seven of this article, which application is
submitted by an entity previously qualified by the commissioner as the
owner of a qualified investment project or an entity which is a related
person, as that term is defined in section 465(b)(3)(c) of the internal
revenue code, to an entity previously qualified by the commissioner as
the owner of a qualified investment project, must be submitted by June
thirtieth, two thousand eleven. No applications submitted after these
dates may be approved; AND
(W) CONDUCT A REVIEW DURING CALENDAR YEAR TWO THOUSAND NINE OF ALL
BUSINESS ENTERPRISES CERTIFIED BEFORE APRIL FIRST, TWO THOUSAND FIVE TO
DETERMINE WHETHER THE BUSINESS ENTERPRISES HAVE MET THE REQUIREMENTS OF
THE COST-BENEFIT ANALYSIS AS SET FORTH IN SUBDIVISION (Q) OF SECTION
NINE HUNDRED FIFTY-SEVEN OF THIS ARTICLE AND THE REGULATIONS PROMULGATED
UNDER THIS ARTICLE. THEREAFTER IN SUCCEEDING CALENDAR YEARS, THE COMMIS-
SIONER SHALL CONDUCT A REVIEW OF ALL BUSINESS ENTERPRISES CERTIFIED ON
S. 60--A 54 A. 160--A
OR AFTER APRIL FIRST, TWO THOUSAND FIVE, TO DETERMINE WHETHER THE BUSI-
NESS ENTERPRISES HAVE MET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS
AS SET FORTH IN SUBDIVISION (Q) OF SECTION NINE HUNDRED FIFTY-SEVEN OF
THIS ARTICLE AND THE REGULATIONS PROMULGATED UNDER THIS ARTICLE. THE
COST-BENEFIT ANALYSES REFERRED TO IN THIS SUBDIVISION SHALL BE BASED
UPON DATA CONTAINED IN AT LEAST THREE BUSINESS ANNUAL REPORTS FILED BY
THE BUSINESS ENTERPRISE. IF THE COMMISSIONER DETERMINES THAT A BUSINESS
ENTERPRISE MEETS THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS DESCRIBED
ABOVE, THE COMMISSIONER SHALL ISSUE AN EMPIRE ZONE RETENTION CERTIFICATE
TO THE BUSINESS ENTERPRISE ESTABLISHING THAT THE BUSINESS ENTERPRISE HAS
RETAINED ITS CERTIFICATION UNDER THIS ARTICLE. IF ANY BUSINESS ENTER-
PRISE FAILS THE COST-BENEFIT ANALYSIS DESCRIBED ABOVE, THE COMMISSIONER
SHALL REVOKE THE CERTIFICATION OF SUCH BUSINESS ENTERPRISE PURSUANT TO
PARAGRAPH (II) OF SUBDIVISION (A) OF THIS SECTION AND AS SPECIFIED HERE-
IN; PROVIDED, HOWEVER, THE COMMISSIONER MAY CONSIDER, IN HIS OR HER SOLE
DISCRETION, OTHER ECONOMIC, SOCIAL AND ENVIRONMENTAL FACTORS WHEN EVALU-
ATING THE COSTS AND BENEFITS OF A PROJECT TO THE STATE AND WHETHER
CONTINUED CERTIFICATION IS WARRANTED BASED ON SUCH FACTORS. THE COMMIS-
SIONER SHALL PROVIDE WRITTEN NOTIFICATION TO SUCH BUSINESS ENTERPRISE OF
HIS OR HER DETERMINATION TO REVOKE THE CERTIFICATION, INCLUDING THE
REASONS THEREFOR. SUCH NOTIFICATION SHALL STATE THAT THE BUSINESS ENTER-
PRISE MAY APPEAL THE DETERMINATION BY SENDING A WRITTEN NOTICE TO THE
COMMISSIONER OF SUCH APPEAL NO LATER THAN TEN BUSINESS DAYS FROM THE
DATE OF THE COMMISSIONER'S REVOCATION NOTIFICATION. PROVIDED THAT THE
BUSINESS ENTERPRISE APPEALS THE COMMISSIONER'S DETERMINATION WITHIN TEN
BUSINESS DAYS OF THE COMMISSIONER'S REVOCATION NOTIFICATION, THE BUSI-
NESS ENTERPRISE MAY PRESENT A WRITTEN SUBMISSION TO THE COMMISSIONER NO
LATER THAN SIXTY DAYS FOLLOWING THE DATE THE COMMISSIONER'S REVOCATION
NOTIFICATION WAS SENT TO THE BUSINESS ENTERPRISE EXPLAINING WHY IT
FAILED THE COST-BENEFIT ANALYSIS. THE COMMISSIONER SHALL CONSIDER THE
EXPLANATION PROVIDED BY THE BUSINESS ENTERPRISE, BUT SHALL NOT REVERSE
THE DETERMINATION TO REVOKE THE BUSINESS ENTERPRISE'S CERTIFICATION IF
THE COMMISSIONER FINDS IN HIS OR HER SOLE DISCRETION THAT THERE WAS
INSUFFICIENT EVIDENCE PRESENTED DEMONSTRATING THAT THE BUSINESS ENTER-
PRISE IN FACT MET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS, OR THAT
ANY EXTRAORDINARY CIRCUMSTANCES OCCURRED WHICH WOULD EXPLAIN WHY THE
BUSINESS ENTERPRISE FAILED THE COST-BENEFIT ANALYSIS.
S 4. Subdivisions (b) and (c) of section 959-b of the general munici-
pal law, as added by section 17 of part W1 of chapter 109 of the laws of
2006, are amended to read as follows:
(b) The commissioner of economic development shall serve as the sole
certification officer for businesses seeking certification as a clean
energy enterprise. The commissioner of economic development, after
consultation with the executive director of the New York state energy
research and development authority, shall promulgate regulations govern-
ing (i) criteria of eligibility for designation of a clean energy enter-
prise, (ii) the application process, and (iii) the certification by the
commissioner of economic development as to the eligibility of business
enterprises for benefits referred to in section nine hundred sixty-six
of this article. A business so certified shall be deemed to be eligible
for such benefits as if such business were located in an investment zone
as defined in paragraph (i) of subdivision (d) of section nine hundred
fifty-seven of this article. No such certification shall be made after
[December] MARCH thirty-first, two thousand [eleven] NINE.
(c) Such enterprise shall be exempt from the requirements of paragraph
(iii) of subdivision (a) of section nine hundred fifty-eight, sections
S. 60--A 55 A. 160--A
[nine hundred sixty-one,] nine hundred sixty-two and nine hundred
sixty-three of this article.
S 5. Subdivisions (a-1) and (a-2) and the opening paragraph of para-
graph (ii) of subdivision (e) of section 960 of the general municipal
law, subdivision (a-1) as amended by section 2 of part HH of chapter 59
of the laws of 2006, subdivision (a-2) as added and the opening para-
graph of paragraph (ii) of subdivision (e) as amended by section 5 of
part A of chapter 63 of the laws of 2005, are amended to read as
follows:
(a-1) The empire zones designation board may consider designating
empire zone acreage for the following categories of regionally signif-
icant projects as set forth in section nine hundred fifty-seven of this
article SUBMITTED FOR APPROVAL NO LATER THAN MARCH THIRTY-FIRST, TWO
THOUSAND NINE: agri-business or high tech or biotech business making a
capital investment of ten million dollars and creating twenty or more
jobs; or a financial or insurance services or distribution center creat-
ing three hundred or more jobs; or a clean energy research and develop-
ment enterprise. Such consideration shall be upon application SUBMITTED
by the [local zone administrative board and/or the] commissioner NO
LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE. Such application shall
be made after a public hearing in accordance with section nine hundred
sixty-nine of this article and in accordance with findings which shall
consider factors including but not limited to: the creation and
retention of a regionally significant number of skilled or otherwise
quality jobs; substantial capital investment; or the export of a
substantial amount of goods or services beyond the immediate region; and
further findings as to why such project cannot be accommodated within
the distinct and separate contiguous areas pursuant to section nine
hundred fifty-seven of this article. Such findings shall be published
once a week for four successive weeks, in two newspapers of the county
of which the project is to be located or if no newspaper is published
therein, in the newspaper nearest thereto. Proof of such publication
shall be submitted to the board. The board shall not act on such project
or projects until thirty days of the final publication of such findings.
(a-2) The empire zones designation board may consider designating
empire zone acreage for other regionally significant projects in accord-
ance with section nine hundred fifty-seven of this article, upon appli-
cation SUBMITTED by the [local zone administrative board and/or the]
commissioner NO LATER THAN MARCH THIRTY-FIRST, TWO THOUSAND NINE. Such
application shall be made after a public hearing in accordance with
section nine hundred sixty-nine of this article and in accordance with
findings which shall consider factors including, but not limited to: the
creation and retention of a regionally significant number of skilled or
otherwise quality jobs; substantial capital investment; or the export of
a substantial amount of goods or services beyond the immediate region;
and further findings as to why such project cannot be accommodated with-
in the distinct and separate contiguous areas pursuant to section nine
hundred fifty-seven of this article. Such findings shall be published
once a week for four successive weeks, in two newspapers of the county
of which the project is to be located or if no newspaper is published
therein, in the newspaper nearest thereto. Proof of such publication
shall be submitted to the board. The board shall not act on such project
or projects until thirty days of the final publication of such findings.
Provided, however, that the commissioner shall promulgate rules and
regulations for the implementation of this subdivision after approval by
the empire zones designation board. Provided further, approval of such
S. 60--A 56 A. 160--A
projects and related regulations requires an affirmative vote by at
least five voting members of such board.
An entity independent of the department shall conduct and submit to
the governor and the legislature by no later than [December] AUGUST
thirty-first, two thousand [nine] TEN, a comprehensive evaluation of the
performance of the zones program and of individual zones on meeting
criteria established pursuant to this section. The criteria by which the
empire zones program and individual zones are to be evaluated shall
include, but not be limited to, the following:
S 6. Section 961 of the general municipal law is REPEALED.
S 7. Subdivision (y) of section 962 of the general municipal law, as
added by section 5 of part A of chapter 63 of the laws of 2005, is
amended to read as follows:
(y) a description of how the local economic development entities, [as
described in paragraph (xii) of subdivision (b) of section nine hundred
sixty-one of this article] INCLUDING BUT NOT LIMITED TO THE LOCAL DEVEL-
OPMENT CORPORATION, LOCAL DEVELOPMENT COUNCILS, AUTHORITIES, AGENCIES
AND ALL OTHER SUCH ENTITLES CONCERNED WITH THE ECONOMIC DEVELOPMENT OF
THE MUNICIPALITY, will integrate its services to allow for the best
possible economic development support for the zone;
S 8. Subdivision (cc) of section 962 of the general municipal law is
REPEALED.
S 9. Subdivision (a) of section 963 of the general municipal law is
REPEALED and subdivisions (b), (c), (d), (e), (f) and (g) are relettered
(a), (b), (c), (d), (e) and (f).
S 10. Subdivision (f) of section 963 of the general municipal law, as
added by section 5 of part A of chapter 63 of the laws of 2005, and as
relettered by section nine of this act, is amended to read as follows:
(f) All [certified] businesses CERTIFIED ON OR BEFORE MARCH
THIRTY-FIRST, TWO THOUSAND NINE are required to provide a certified
annual report to the local zone administration board which report shall
include but not be limited to the following:
(i) Business certification information to include: organization name,
organization address in the zone, contact information, federal employ-
ment ID number, New York state unemployment insurance number, state of
formation or incorporation, verification that the business is authorized
to conduct business in the state of New York;
(ii) Employment numbers calculated in the same manner in which the
employment number is required to be calculated by section fourteen of
the tax law including: total existing full-time equivalent jobs [in the
zone] AT THE LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER as of
the date of certification [within that zone], total existing jobs [in
the zone] AT THE LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER for
the year for which the report is being provided, total remuneration paid
to employees [in the zone] AT THE LOCATION OR LOCATIONS APPROVED BY THE
COMMISSIONER each quarter of the reported year, total number of employ-
ees in all [zones] LOCATIONS, total annual remuneration in all [zones]
LOCATIONS, total annual remuneration paid in New York state for the
reported year, total employment number in New York state for the
reported year as shown on each business' NYS-45 wage reporting form
filed with the department of labor;
(iii) Capital investment to include: total investment made in the
[zone] LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER for the
reported year[, with such investment being made with respect to tangible
personal property or other tangible property which is depreciable pursu-
S. 60--A 57 A. 160--A
ant to section one hundred seventy-nine (d) of the internal revenue
code];
(iv) Tax [credits claimed] BENEFITS USED AND REFUNDED: provide an
estimation of the amount of the [following credits claimed] TAX BENEFITS
USED AND REFUNDED for the reported year by the certified business, or by
the taxpayers within the certified business including its shareholders,
members, partners or the owner of a sole proprietorship[:] INCLUDING THE
wage tax credits, investment tax credits, employment incentive tax cred-
its, real property tax credit, [and] tax reduction credit; and
(v) [Other benefits: estimated value to the certified business of the]
THE sales tax [exemption] CREDITS AND REFUNDS for the reported year.
S 11. Subdivision (a) of section 964 of the general municipal law, as
amended by chapter 708 of the laws of 1993 and as further amended pursu-
ant to section 15 of part GG of chapter 63 of the laws of 2000, is
amended to read as follows:
(a) No more than three empire zone capital corporations may be estab-
lished in each zone for the purpose of raising funds through private and
public grants, donations or investments, to be used in making invest-
ments in, and loans to, business firms certified pursuant to subdivision
(a) of section nine hundred [sixty-three] FIFTY-NINE of this article for
the purpose of encouraging the establishment or expansion of businesses
and the provision of additional job opportunities within such area. A
zone capital corporation may serve one or more zones within an economic
development region or zones within two or more regions. Prior to the
establishment of a zone capital corporation, the zone board and the
commissioner of the department of economic development shall approve the
formation of the proposed zone capital corporation, its board of direc-
tors and management, and its procedures for making, servicing and moni-
toring investments. In no event, however, shall an empire zone capital
corporation acquire an ownership interest in any certified business firm
which amounts to more than twenty-five percent of the ownership interest
of such certified business firm. No loan to or investment in any busi-
ness firm shall be made by an empire zone capital corporation located in
a zone within a town with a population of more than twenty-five thou-
sand, until such corporation has accumulated at least two hundred thou-
sand dollars in capital stock. No loan or investment in any business
firm shall be made by an empire zone capital corporation located in a
zone within a town with a population of less than twenty-five thousand
until such corporation has accumulated at least one hundred thousand
dollars in capital stock. A zone capital corporation shall submit to the
zone board an annual report on its activities.
S 12. Subdivision (b) and the opening paragraph of subdivision (c) of
section 969 of the general municipal law, as amended by section 5 of
part A of chapter 63 of the laws of 2005, are amended to read as
follows:
(b) After consultation with the director of the budget [and the
commissioner of labor], the commissioner may terminate the designation
of an area as an empire zone upon a finding that (1) the applicant has
failed substantially to implement the empire zone development plan with-
in the time stated therein; (2) there has been no substantial business
development or job creation within the area designated as an empire zone
within five years after such designation; (3) there has been inadequate
management and evaluation of the zone at the local level; or (4) the
applicant has repeatedly failed to comply with program reporting
requirements, provided, however, that no termination shall occur unless
and until written notice has been given to the applicant and a public
S. 60--A 58 A. 160--A
hearing has been held thirty days prior to the effective date of such
termination.
The governing body of a city, county, town or village may, by resol-
ution, submit to the commissioner a request to revise the boundaries of
an existing empire zone. The commissioner may[, after consultation with
the commissioner of labor,] approve such revision subject to the follow-
ing provisions:
S 13. The general municipal law is amended by adding a new section 970
to read as follows:
S 970. CERTIFICATION OF MANUFACTURING (INCLUDING HIGH-TECH, BIO-TECH,
CLEAN-TECH AND AGRI-BUSINESS), AND FINANCIAL SERVICE ENTERPRISES, AND
EXTRAORDINARY PROJECTS.
(A) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS ARTI-
CLE, COMMENCING APRIL FIRST, TWO THOUSAND NINE, ONLY (I) MANUFACTURING
(INCLUDING HIGH-TECH, BIO-TECH, CLEAN-TECH, AND AGRI-BUSINESS) AND
FINANCIAL SERVICE ENTERPRISES AND EXTRAORDINARY PROJECTS, AS DEFINED IN
THE REGULATIONS PROMULGATED PURSUANT TO SUBDIVISIONS (B) AND (C) OF THIS
SECTION, AND (II) THE OWNER OF A QUALIFIED INVESTMENT PROJECT OR A
SIGNIFICANT CAPITAL INVESTMENT PROJECT, IN ACCORDANCE WITH THE REQUIRE-
MENTS AND CONDITIONS SET FORTH IN SUBDIVISION (V) OF SECTION NINE
HUNDRED FIFTY-NINE OF THIS ARTICLE, MAY APPLY FOR CERTIFICATION PURSUANT
TO THIS ARTICLE.
(B) THE COMMISSIONER SHALL SERVE AS THE SOLE CERTIFICATION OFFICER FOR
BUSINESS ENTERPRISES APPLYING FOR CERTIFICATION AS MANUFACTURING
(INCLUDING HIGH-TECH, BIO-TECH, CLEAN-TECH AND AGRI-BUSINESS) AND FINAN-
CIAL SERVICE ENTERPRISES. THE COMMISSIONER SHALL PROMULGATE REGULATIONS
(I) DEFINING MANUFACTURING (INCLUDING HIGH-TECH, BIO-TECH, CLEAN-TECH
AND AGRI-BUSINESS) AND FINANCIAL SERVICE ENTERPRISES; (II) GOVERNING THE
CRITERIA FOR THE CERTIFICATION OF MANUFACTURING (INCLUDING HIGH-TECH,
BIO-TECH, CLEAN-TECH AND AGRI-BUSINESS) AND FINANCIAL SERVICE ENTER-
PRISES (WHICH CRITERIA SHALL INCLUDE, BUT NOT BE LIMITED TO, MEETING THE
REQUIREMENTS OF THE COST BENEFIT ANALYSIS REFERRED TO IN SUBDIVISION (P)
OF SECTION NINE HUNDRED FIFTY-SEVEN OF THIS ARTICLE); AND (III) ESTAB-
LISHING THE APPLICATION PROCESS FOR CERTIFICATION. NOTWITHSTANDING ANY
OTHER PROVISIONS TO THE CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE
ACT, SUCH REGULATIONS MAY BE ADOPTED ON AN EMERGENCY BASIS. A BUSINESS
SO CERTIFIED SHALL BE DEEMED TO BE ELIGIBLE FOR BENEFITS REFERRED TO IN
SECTION NINE HUNDRED SIXTY-SIX OF THIS ARTICLE AS IF SUCH BUSINESS WERE
LOCATED IN AN INVESTMENT ZONE AS DEFINED IN PARAGRAPH (I) OF SUBDIVISION
(D) OF SECTION NINE HUNDRED FIFTY-SEVEN OF THIS ARTICLE.
(C) THE COMMISSIONER SHALL SERVE AS THE SOLE CERTIFICATION OFFICER FOR
BUSINESS ENTERPRISES APPLYING FOR CERTIFICATION OF EXTRAORDINARY
PROJECTS. THE COMMISSIONER SHALL PROMULGATE REGULATIONS (I) DEFINING
EXTRAORDINARY PROJECTS; (II) ESTABLISHING THE APPLICATION PROCESS FOR
CERTIFICATION; AND (III) GOVERNING THE CRITERIA FOR CERTIFICATION OF AN
EXTRAORDINARY PROJECT, WHICH CRITERIA SHALL INCLUDE, BUT NOT BE LIMITED
TO, (1) WHETHER THE EXTRAORDINARY PROJECT, IF CERTIFIED, IS REASONABLY
LIKELY TO CREATE SUBSTANTIAL NEW EMPLOYMENT OR PREVENT A SUBSTANTIAL
LOSS OF EMPLOYMENT; (2) WHETHER CERTIFICATION WILL HAVE THE UNDESIRED
EFFECT OF CAUSING INDIVIDUALS TO TRANSFER FROM EXISTING EMPLOYMENT WITH
ANOTHER BUSINESS ENTERPRISE TO SIMILAR EMPLOYMENT WITH THE BUSINESS
ENTERPRISE SO CERTIFIED, AND TRANSFERRING EXISTING EMPLOYMENT FROM ONE
OF MORE OTHER MUNICIPALITIES, TOWNS OR VILLAGES IN THE STATE; (3) WHETH-
ER SUCH EXTRAORDINARY PROJECT IS LIKELY TO BRING SUBSTANTIAL CAPITAL
INVESTMENT; (4) WHETHER THE EXTRAORDINARY PROJECT IS LIKELY TO LEAD TO
THE EXPORT OF A SUBSTANTIAL AMOUNT OF GOODS OR SERVICES BEYOND THE IMME-
S. 60--A 59 A. 160--A
DIATE REGION; (5) WHETHER THE BUSINESS ENTERPRISE, DURING THE THREE
YEARS PRECEDING THE SUBMISSION OF AN APPLICATION FOR CERTIFICATION, HAS
ENGAGED IN A SUBSTANTIAL VIOLATION OR A PATTERN OF VIOLATIONS OF LAWS
REGULATING ENVIRONMENTAL PROTECTION, UNEMPLOYMENT INSURANCE, WORKERS'
COMPENSATION, PUBLIC WORK, CHILD LABOR, EMPLOYMENT OF MINORITIES AND
WOMEN, SAFETY AND HEALTH, OR OTHER LAWS FOR THE PROTECTION OF WORKERS AS
DETERMINED BY FINAL JUDGMENT OF A JUDICIAL OR ADMINISTRATIVE PROCEEDING;
(6) IF THE COMMISSIONER ESTABLISHES THAT THE BUSINESS ENTERPRISE HAS
BEEN FOUND IN A CRIMINAL PROCEEDING TO HAVE VIOLATED, IN THE PREVIOUS
THREE YEARS, ANY OF THE LAWS REFERRED TO IN PARAGRAPH FIVE OF THIS
SUBDIVISION OR REGULATIONS PROMULGATED PURSUANT TO SUCH LAWS, THE CONDI-
TIONS OF ANY PERMIT ISSUED THEREUNDER, OR SIMILAR STATUTE, REGULATION,
ORDER OR PERMIT CONDITION OF ANY OTHER GOVERNMENT AGENCY, FOREIGN OR
DOMESTIC, SUCH BUSINESS SHALL NOT BE CERTIFIED. NOTWITHSTANDING ANY
OTHER PROVISIONS TO THE CONTRARY IN THE STATE ADMINISTRATIVE PROCEDURE
ACT, SUCH REGULATIONS MAY BE ADOPTED ON AN EMERGENCY BASIS. A BUSINESS
SO CERTIFIED SHALL BE DEEMED TO BE ELIGIBLE FOR SUCH BENEFITS AS IF SUCH
BUSINESS WERE LOCATED IN AN INVESTMENT ZONE AS DEFINED IN PARAGRAPH (I)
OF SUBDIVISION (D) OF SECTION NINE-HUNDRED FIFTY-SEVEN OF THIS ARTICLE.
(D) ALL BUSINESS ENTERPRISES CERTIFIED ON OR AFTER APRIL FIRST, TWO
THOUSAND NINE PURSUANT TO SUBDIVISIONS (B) OR (C) OF THIS SECTION OR
PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THIS
ARTICLE SHALL BE REQUIRED TO MEET THE REQUIREMENTS OF THE COST-BENEFIT
ANALYSIS ESTABLISHED IN SUBDIVISION (Q) OF SECTION NINE HUNDRED
FIFTY-SEVEN OF THIS ARTICLE AND THE REGULATIONS PROMULGATED UNDER THIS
ARTICLE AFTER THEY HAVE BEEN CERTIFIED FOR AT LEAST THREE YEARS. FAILURE
TO MEET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS SHALL RESULT IN
THE BUSINESS ENTERPRISE BEING DECERTIFIED PURSUANT TO PARAGRAPH (II) OF
SUBDIVISION (A) OF SECTION NINE HUNDRED FIFTY-NINE OF THIS ARTICLE,
UNLESS THE COMMISSIONER MAKES A DETERMINATION IN HIS OR HER DISCRETION
TO RETAIN THE CERTIFICATION OF A BUSINESS ENTERPRISE, NOTWITHSTANDING
THE FAILURE TO MEET THE REQUIREMENTS OF THE COST-BENEFIT ANALYSIS, IN
ACCORDANCE WITH SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF
THIS ARTICLE.
(E) ALL BUSINESSES CERTIFIED PURSUANT TO THIS SECTION ARE REQUIRED TO
PROVIDE A CERTIFIED ANNUAL REPORT TO THE COMMISSIONER WHICH REPORT SHALL
INCLUDE BUT NOT BE LIMITED TO THE FOLLOWING:
(I) BUSINESS CERTIFICATION INFORMATION TO INCLUDE: ORGANIZATION NAME,
ORGANIZATION ADDRESS, CONTACT INFORMATION, FEDERAL EMPLOYMENT ID NUMBER,
NEW YORK STATE UNEMPLOYMENT INSURANCE NUMBER, STATE OF FORMATION OR
INCORPORATION, VERIFICATION THAT THE BUSINESS IS AUTHORIZED TO CONDUCT
BUSINESS IN THE STATE OF NEW YORK;
(II) EMPLOYMENT NUMBERS CALCULATED IN THE SAME MANNER IN WHICH THE
EMPLOYMENT NUMBER IS REQUIRED TO BE CALCULATED BY SECTION FOURTEEN OF
THE TAX LAW INCLUDING: TOTAL EXISTING FULL-TIME EQUIVALENT JOBS AT THE
LOCATION OR LOCATIONS APPROVED BY THE COMMISSIONER AS OF THE DATE OF
CERTIFICATION, TOTAL EXISTING JOBS AT THE LOCATION OR LOCATIONS APPROVED
BY THE COMMISSIONER FOR THE YEAR FOR WHICH THE REPORT IS BEING PROVIDED,
TOTAL REMUNERATION PAID TO EMPLOYEES AT THE LOCATION OR LOCATIONS
APPROVED BY THE COMMISSIONER EACH QUARTER OF THE REPORTED YEAR, TOTAL
NUMBER OF EMPLOYEES IN ALL LOCATIONS, TOTAL ANNUAL REMUNERATION IN ALL
LOCATIONS, TOTAL ANNUAL REMUNERATION PAID IN NEW YORK STATE FOR THE
REPORTED YEAR, TOTAL EMPLOYMENT NUMBER IN NEW YORK STATE FOR THE
REPORTED YEAR AS SHOWN ON EACH BUSINESS' NYS-45 WAGE REPORTING FORM
FILED WITH THE DEPARTMENT OF LABOR;
S. 60--A 60 A. 160--A
(III) TOTAL CAPITAL INVESTMENT MADE IN THE LOCATION OR LOCATIONS
APPROVED BY THE COMMISSIONER FOR THE REPORTED YEAR;
(IV) TOTAL EMPIRE ZONE TAX BENEFITS: PROVIDE AN ESTIMATION OF THE
TOTAL AMOUNT OF EMPIRE ZONE TAX BENEFITS USED AND THE TOTAL AMOUNT OF
EMPIRE ZONE TAX BENEFITS REFUNDED FOR THE REPORTED YEAR BY THE CERTIFIED
BUSINESS, OR BY THE TAXPAYERS WITHIN THE CERTIFIED BUSINESS INCLUDING
ITS SHAREHOLDERS, MEMBERS, PARTNERS OR THE OWNER OF A SOLE PROPRIETOR-
SHIP, INCLUDING BUT NOT LIMITED TO WAGE TAX CREDITS, INVESTMENT TAX
CREDITS, EMPLOYMENT INCENTIVE TAX CREDITS, REAL PROPERTY TAX CREDIT, TAX
REDUCTION CREDIT; AND SALES TAX BENEFITS.
S 14. Subdivision 19 of section 210 of the tax law is amended by
adding a new paragraph (e-1) to read as follows:
(E-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
CREDIT.
S 15. Subsection (k) of section 606 of the tax law is amended by
adding a new paragraph 5-a to read as follows:
(5-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
CREDIT.
S 16. Subsection (e) of section 1456 of the tax law is amended by
adding a new paragraph 5-a to read as follows:
(5-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
CREDIT.
S 17. Subdivision (g) of section 1511 of the tax law is amended by
adding a new paragraph 5-a to read as follows:
(5-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
CREDIT.
S 18. Subdivision 12-B of section 210 of the tax law is amended by
adding a new paragraph (d-1) to read as follows:
(D-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
CREDIT.
S 19. Subsection (j) of section 606 of the tax law is amended by
adding a new paragraph 4-a to read as follows:
(4-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
CREDIT.
S 20. Subdivision 12-C of section 210 of the tax law is amended by
adding a new paragraph (c-1) to read as follows:
(C-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED PURSUANT
S. 60--A 61 A. 160--A
TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL
MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE
CREDIT.
S 21. Subsection (j-1) of section 606 of the tax law is amended by
adding a new paragraph 3-a to read as follows:
(3-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
GENERAL MUNICIPAL LAW.
S 22. Subdivision 20 of section 210 of the tax law is amended by
adding a new paragraph (b-1) to read as follows:
(B-1) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
GENERAL MUNICIPAL LAW.
S 23. Subsection (1) of section 606 of the tax law is amended by
adding a new paragraph 1-a to read as follows:
(1-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
GENERAL MUNICIPAL LAW.
S 24. Subsection (d) of section 1456 of the tax law is amended by
adding a new paragraph 2-a to read as follows:
(2-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
GENERAL MUNICIPAL LAW.
S 25. Subdivision (h) of section 1511 of the tax law is amended by
adding a new paragraph 2-a to read as follows:
(2-A) ANY CARRY OVER OF A CREDIT FROM PRIOR TAXABLE YEARS WILL NOT BE
ALLOWED TO AN EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS OF THE CREDIT,
IF AN EMPIRE ZONE RETENTION CERTIFICATE IS NOT ISSUED TO SUCH ENTITY
PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE
GENERAL MUNICIPAL LAW.
S 26. Section 1088 of the tax law is amended by adding a new
subsection (h) to read as follows:
(H) NOTWITHSTANDING ANY OTHER PROVISION IN THIS SECTION, FOR TAXABLE
YEARS BEGINNING ON OR AFTER JANUARY FIRST, TWO THOUSAND EIGHT AND BEFORE
JANUARY FIRST, TWO THOUSAND NINE, INTEREST WILL BE ALLOWED ON AN OVER-
PAYMENT ON ANY RETURN OR REPORT ON WHICH ONE OR MORE EMPIRE ZONE TAX
CREDITS ARE CLAIMED, ONLY FROM THE ONE HUNDRED EIGHTIETH DAY AFTER THE
TAXPAYER FILES WITH THE DEPARTMENT AN EMPIRE ZONE RETENTION CERTIFICATE
ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF
THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE
BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON THE RETURN OR REPORT.
S 27. Section 688 of the tax law is amended by adding a new subsection
(h) to read as follows:
(H) NOTWITHSTANDING ANY OTHER PROVISIONS IN THIS SECTION, FOR TAXABLE
YEARS BEGINNING ON OR AFTER JANUARY FIRST, TWO THOUSAND EIGHT AND BEFORE
JANUARY FIRST, TWO THOUSAND NINE, INTEREST WILL BE ALLOWED ON AN OVER-
PAYMENT ON ANY RETURN OR REPORT ON WHICH ONE OR MORE EMPIRE ZONE TAX
CREDITS ARE CLAIMED, ONLY FROM THE ONE HUNDRED EIGHTIETH DAY AFTER THE
S. 60--A 62 A. 160--A
TAXPAYER FILES WITH THE DEPARTMENT AN EMPIRE ZONE RETENTION CERTIFICATE
ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF
THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE
BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON THE RETURN OR REPORT.
S 28. Subsection (c) of section 1089 of the tax law is amended by
adding a new paragraph 4 to read as follows:
(4) NOTWITHSTANDING PARAGRAPH THREE OF THIS SUBSECTION, NO PETITION
MAY BE FILED BY A TAXPAYER CLAIMING A REFUND OF ONE OR MORE EMPIRE ZONE
TAX CREDITS FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO
THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE, UNTIL SIX
MONTHS HAVE EXPIRED AFTER THE DATE ON WHICH AN EMPIRE ZONE RETENTION
CERTIFICATE WAS ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE
HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE
ENTERPRISE WHICH IS THE BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON
THE RETURN OR REPORT.
S 29. Subsection (c) of section 689 of the tax law is amended by
adding a new paragraph 4 to read as follows:
(4) NOTWITHSTANDING PARAGRAPH THREE OF THIS SUBSECTION, NO PETITION
MAY BE FILED BY A TAXPAYER CLAIMING A REFUND OF ONE OR MORE EMPIRE ZONE
TAX CREDITS FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO
THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE, UNTIL SIX
MONTHS HAVE EXPIRED AFTER THE DATE ON WHICH AN EMPIRE ZONE RETENTION
CERTIFICATE WAS ISSUED PURSUANT TO SUBDIVISION (W) OF SECTION NINE
HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW TO THE EMPIRE ZONE
ENTERPRISE WHICH IS THE BASIS FOR THE TAX CREDIT OR CREDITS CLAIMED ON
THE RETURN OR REPORT.
S 30. Section 1085 of the tax law is amended by adding a new
subsection (k-2) to read as follows:
(K-2) NO PENALTY WILL BE IMPOSED PURSUANT TO SUBSECTION (C) OR (K) OF
THIS SECTION FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO
THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE RESULTING
FROM THE DENIAL OF AN EMPIRE ZONE TAX CREDIT CLAIMED BY THE TAXPAYER
BECAUSE AN EMPIRE ZONE RETENTION CERTIFICATE WAS NOT ISSUED PURSUANT TO
SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC-
IPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS FOR THE TAX
CREDIT OR CREDITS CLAIMED ON THE RETURN OR REPORT.
S 31. Section 685 of the tax law is amended by adding a new subsection
(p-2) to read as follows:
(P-2) NO PENALTY WILL BE IMPOSED PURSUANT TO SUBSECTION (C) OR (P) OF
THIS SECTION FOR A TAXABLE YEAR BEGINNING ON OR AFTER JANUARY FIRST, TWO
THOUSAND EIGHT AND BEFORE JANUARY FIRST, TWO THOUSAND NINE RESULTING
FROM THE DENIAL OF AN EMPIRE ZONE TAX CREDIT CLAIMED BY THE TAXPAYER
BECAUSE AN EMPIRE ZONE RETENTION CERTIFICATE WAS NOT ISSUED PURSUANT TO
SUBDIVISION (W) OF SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNIC-
IPAL LAW TO THE EMPIRE ZONE ENTERPRISE WHICH IS THE BASIS FOR THE TAX
CREDIT OR CREDITS CLAIMED ON THE RETURN.
S 32. Subdivision (z) of section 1115 of the tax law is REPEALED.
S 33. Section 1119 of the tax law is amended by adding a new subdivi-
sion (d) to read as follows:
(D)(1) SUBJECT TO THE CONDITIONS AND LIMITATIONS PROVIDED FOR IN THIS
SECTION, A REFUND OR CREDIT WILL BE ALLOWED FOR TAXES IMPOSED ON THE
RETAIL SALE OF TANGIBLE PERSONAL PROPERTY DESCRIBED IN SUBDIVISION (A)
OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE, AND ON EVERY SALE OF
SERVICES DESCRIBED IN SUBDIVISIONS (B) AND (C) OF SUCH SECTION, AND ON
THE RETAIL SALE OF PRE-WRITTEN COMPUTER SOFTWARE, WHETHER SUBJECT TO THE
TAX UNDER SUBDIVISION (A) OR (G) OF SUCH SECTION, AND CONSIDERATION
S. 60--A 63 A. 160--A
GIVEN OR CONTRACTED TO BE GIVEN FOR, OR FOR THE USE OF, SUCH TANGIBLE
PERSONAL PROPERTY OR SERVICES, OR PRE-WRITTEN COMPUTER SOFTWARE WHERE
SUCH TANGIBLE PERSONAL PROPERTY OR SERVICES OR PRE-WRITTEN COMPUTER
SOFTWARE ARE SOLD TO A QUALIFIED EMPIRE ZONE ENTERPRISE, PROVIDED THAT
(A) SUCH TANGIBLE PERSONAL PROPERTY OR TANGIBLE PERSONAL PROPERTY UPON
WHICH SUCH A SERVICE HAS BEEN PERFORMED OR SUCH SERVICE (OTHER THAN A
SERVICE DESCRIBED IN SUBDIVISION (B) OF SECTION ELEVEN HUNDRED FIVE OF
THIS ARTICLE) OR PRE-WRITTEN COMPUTER SOFTWARE IS DIRECTLY AND PREDOMI-
NANTLY, OR SUCH A SERVICE DESCRIBED IN CLAUSE (A) OR (D) OF PARAGRAPH
ONE OF SUCH SUBDIVISION (B) OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTI-
CLE IS DIRECTLY AND EXCLUSIVELY, USED OR CONSUMED BY SUCH ENTERPRISE IN
AN AREA DESIGNATED AS AN EMPIRE ZONE PURSUANT TO ARTICLE EIGHTEEN-B OF
THE GENERAL MUNICIPAL LAW WITH RESPECT TO WHICH SUCH ENTERPRISE IS
CERTIFIED PURSUANT TO SUCH ARTICLE EIGHTEEN-B, OR (B) SUCH A SERVICE
DESCRIBED IN CLAUSE (B) OR (C) OF PARAGRAPH ONE OF SUBDIVISION (B) OF
SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE IS DELIVERED AND BILLED TO
SUCH ENTERPRISE AT AN ADDRESS IN SUCH EMPIRE ZONE, OR (C) THE ENTER-
PRISE'S PLACE OF PRIMARY USE OF THE SERVICE DESCRIBED IN PARAGRAPH TWO
OF SUCH SUBDIVISION (B) OF SECTION 1105 IS AT AN ADDRESS IN SUCH EMPIRE
ZONE; PROVIDED, FURTHER, THAT, IN ORDER FOR A MOTOR VEHICLE, AS DEFINED
IN SUBDIVISION (C) OF SECTION ELEVEN HUNDRED SEVENTEEN OF THIS ARTICLE,
OR TANGIBLE PERSONAL PROPERTY RELATED TO SUCH A MOTOR VEHICLE TO BE
FOUND TO BE USED PREDOMINANTLY IN SUCH A ZONE, AT LEAST FIFTY PERCENT OF
SUCH MOTOR VEHICLE'S USE SHALL BE EXCLUSIVELY WITHIN SUCH ZONE OR AT
LEAST FIFTY PERCENT OF SUCH MOTOR VEHICLE'S USE SHALL BE IN ACTIVITIES
ORIGINATING OR TERMINATING IN SUCH ZONE, OR BOTH; AND EITHER OR BOTH
SUCH USAGES SHALL BE COMPUTED EITHER ON THE BASIS OF MILEAGE OR HOURS OF
USE, AT THE DISCRETION OF SUCH ENTERPRISE. FOR PURPOSES OF THIS SUBDIVI-
SION, TANGIBLE PERSONAL PROPERTY RELATED TO SUCH A MOTOR VEHICLE SHALL
INCLUDE A BATTERY, DIESEL MOTOR FUEL, AN ENGINE, ENGINE COMPONENTS,
MOTOR FUEL, A MUFFLER, TIRES AND SIMILAR TANGIBLE PERSONAL PROPERTY USED
IN OR ON SUCH A MOTOR VEHICLE.
(2) SUBJECT TO THE CONDITIONS AND LIMITATIONS PROVIDED FOR IN THIS
SECTION, A REFUND OR CREDIT WILL BE ALLOWED FOR TAXES IMPOSED ON THE
RETAIL SALE OF, AND CONSIDERATION GIVEN OR CONTRACTED TO BE GIVEN FOR,
OR FOR THE USE OF, TANGIBLE PERSONAL PROPERTY SOLD TO A CONTRACTOR,
SUBCONTRACTOR OR REPAIRMAN FOR USE IN (A) ERECTING A STRUCTURE OR BUILD-
ING OF A QUALIFIED EMPIRE ZONE ENTERPRISE, (B) ADDING TO, ALTERING OR
IMPROVING REAL PROPERTY, PROPERTY OR LAND OF SUCH AN ENTERPRISE OR (C)
MAINTAINING, SERVICING OR REPAIRING REAL PROPERTY, PROPERTY OR LAND OF
SUCH AN ENTERPRISE, AS THE TERMS REAL PROPERTY, PROPERTY OR LAND ARE
DEFINED IN THE REAL PROPERTY TAX LAW; PROVIDED, HOWEVER, NO CREDIT OR
REFUND WILL BE ALLOWED UNDER THIS PARAGRAPH UNLESS SUCH TANGIBLE
PERSONAL PROPERTY IS TO BECOME AN INTEGRAL COMPONENT PART OF SUCH STRUC-
TURE, BUILDING, REAL PROPERTY, PROPERTY OR LAND LOCATED IN AN AREA
DESIGNATED AS AN EMPIRE ZONE PURSUANT TO ARTICLE EIGHTEEN-B OF THE
GENERAL MUNICIPAL LAW IN, AND WITH RESPECT TO WHICH SUCH ENTERPRISE IS
CERTIFIED PURSUANT TO SUCH ARTICLE EIGHTEEN-B.
(3) EXCEPT AS OTHERWISE PROVIDED BY LAW, THE REFUND OR CREDIT PROVIDED
FOR IN THIS SUBDIVISION WILL NOT APPLY TO TAXES IMPOSED BY PARAGRAPHS
TEN AND THIRTEEN OF SUBDIVISION (C) OF SECTIONS 1105-D, 1105-F, AND
ELEVEN HUNDRED SEVEN OF THIS ARTICLE OR TO TAXES IMPOSED PURSUANT TO THE
AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER.
(4) IN THOSE INSTANCES WHEN THE PROVISIONS OF SUBDIVISION (W) OF
SECTION NINE HUNDRED FIFTY-NINE OF THE GENERAL MUNICIPAL LAW ARE APPLI-
CABLE, NO REFUND OR CREDIT WILL BE ALLOWED UNDER THIS SUBDIVISION UNLESS
S. 60--A 64 A. 160--A
THE QUALIFIED EMPIRE ZONE ENTERPRISE HAS BEEN ISSUED AN EMPIRE ZONE
RETENTION CERTIFICATE.
(5) A TAXPAYER MAY NOT APPLY FOR A CREDIT OR REFUND UNDER THIS SUBDI-
VISION MORE FREQUENTLY THAN ONCE A SALES TAX QUARTER, PURSUANT TO SUBDI-
VISION (B) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THE TAX LAW.
(6) ANY REFERENCE IN THIS CHAPTER TO SUBDIVISION (Z) OF SECTION ELEVEN
HUNDRED FIFTEEN OF THIS ARTICLE WILL BE DEEMED TO BE A REFERENCE TO THIS
SUBDIVISION.
S 34. Paragraph 2 of subdivision (a) of section 14 of the tax law, as
amended by section 1 of part AA of chapter 62 of the laws of 2006, is
amended to read as follows:
(2) for purposes of articles twenty-eight and twenty-nine of this
chapter, during the "sales and use tax benefit period." Such period
shall consist of one hundred twenty consecutive months beginning on the
later of (A) March first, two thousand one, or (B) WITH REGARD TO BUSI-
NESS ENTERPRISES CERTIFIED PURSUANT TO ARTICLE EIGHTEEN-B OF THE GENERAL
MUNICIPAL LAW PRIOR TO APRIL FIRST, TWO THOUSAND NINE, the first day of
the month next following the date of issuance of a qualified empire zone
enterprise certification by the commissioner under subdivision (h) of
this section, OR (C) WITH REGARD TO BUSINESS ENTERPRISES CERTIFIED
PURSUANT TO SUCH ARTICLE EIGHTEEN-B ON OR AFTER APRIL FIRST, TWO THOU-
SAND NINE, THE FIRST DAY OF THE MONTH NEXT FOLLOWING THE DATE OF CERTIF-
ICATION UNDER ARTICLE EIGHTEEN-B AS AN EMPIRE ZONE BUSINESS. Provided
however, such period shall not include any month falling within a taxa-
ble year immediately preceded by a taxable year with respect to which
the business enterprise did not meet the employment test.
S 35. Subdivision (h) of section 14 of the tax law is REPEALED.
S 36. Paragraph 1 of subdivision (a) of section 1210 of the tax law,
as amended by section 4 of part SS1 of chapter 57 of the laws of 2008,
is amended to read as follows:
(i) 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
S. 60--A 65 A. 160--A
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
exemption provided for in subdivision (ee)[,] AND the clothing and foot-
wear exemption provided for in paragraph thirty of subdivision (a) [and
the qualified empire zone enterprise exemptions provided for in subdivi-
sion (z)] of section eleven hundred fifteen of this chapter, unless such
city, county or school district elects otherwise as to either such resi-
dential solar energy systems equipment exemption or such clothing and
footwear exemption [or such qualified empire zone enterprise exemptions;
provided that if such a city having a population of one million or more
in which the taxes imposed by section eleven hundred seven of this chap-
ter are in effect enacts the resolution described in subdivision (k) of
this section or repeals such resolution or enacts the resolution
described in subdivision (l) of this section or repeals such resolution
or enacts the resolution described in subdivision (n) of this section or
repeals such resolution, such resolution or repeal shall also be deemed
to amend any local law, ordinance or resolution enacted by such a city
imposing such taxes pursuant to the authority of this subdivision,
whether or not such taxes are suspended at the time such city enacts its
resolution pursuant to subdivision (k), (l) or (n) of this section or at
the time of any such repeal; provided, further, that any such local law,
ordinance or resolution and section eleven hundred seven of this chap-
ter, as deemed to be amended in the event a city of one million or more
enacts a resolution pursuant to the authority of subdivision (k), (l) or
(n) of this section, shall be further amended, as provided in section
twelve hundred eighteen of this subpart, so that the residential solar
energy systems equipment exemption or the clothing and footwear
exemption or the qualified empire zone enterprise exemptions in any such
local law, ordinance or resolution or in such section eleven hundred
seven are the same, as the case may be, as the residential solar energy
systems equipment exemption provided for in subdivision (ee), the cloth-
ing and footwear exemption in paragraph thirty of subdivision (a) or the
qualified empire zone enterprise exemptions in subdivision (z) of
section eleven hundred fifteen of this chapter].
S 37. Paragraph 4 of subdivision (a) of section 1210 of the tax law,
as amended by section 5 of part SS1 of chapter 57 of the laws of 2008,
is amended to read as follows:
(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
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
S. 60--A 66 A. 160--A
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) shall not
provide the clothing and footwear exemption in paragraph thirty of
subdivision (a) of section eleven hundred fifteen of this chapter but
must exempt clothing and footwear and any item used or consumed to make
or repair exempt clothing and which becomes a physical component part of
that exempt clothing; (viii) shall omit the exemption provided in para-
graph 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, refrigeration and steam, and gas, electric,
refrigeration and steam service of whatever nature for use or consump-
tion directly and exclusively in the production of gas, electricity,
refrigeration or steam; and (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.
S 38. Paragraph 1 of subdivision (b) of section 1210 of the tax law,
as separately amended by section 36 of part Y and section 11 of part GG
of chapter 63 of the laws of 2000, 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 the [exemptions provided for in subdivision (z) of section eleven
hundred fifteen] 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 [exemptions]
PROVISION or, if so elected, to repeal such [exemptions] PROVISION.
S 39. Subdivision (d) of section 1210 of the tax law, as amended by
section 12 of part GG of chapter 63 of the laws of 2000, 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 must go into effect only on one of the follow-
S. 60--A 67 A. 160--A
ing 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) [or providing
for the exemptions described in subdivision (z)] of section eleven
hundred fifteen of this chapter or repealing any such exemption [so
provided and a resolution enacted pursuant to the authority of subdivi-
sion (k) of this section providing such exemption or subdivision (l) of
this section providing such exemptions or repealing such exemption or
exemptions so provided] OR A LOCAL LAW, ORDINANCE OR RESOLUTION PROVID-
ING FOR A REFUND OR CREDIT DESCRIBED IN SUBDIVISION (D) OF SECTION ELEV-
EN 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
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 40. Subdivision (1) of section 1210 of the tax law is REPEALED.
S 41. Subdivision (d) of section 1211 of the tax law, as amended by
chapter 577 of the laws of 1997, is amended to read as follows:
(d) A local law or resolution imposing any tax pursuant to this
section, increasing or decreasing the rate of such tax, repealing or
suspending such tax or providing for the credit or refund described in
clause six of subdivision (a) of section eleven hundred nineteen of this
chapter must go into effect only on one of the following dates: March
first, June first, September first or December first, subject to further
requirement as to effective date provided for in subdivision (b) of this
section; PROVIDED, THAT A LOCAL LAW OR RESOLUTION PROVIDING FOR A REFUND
OR CREDIT DESCRIBED IN SUBDIVISION (D) OF SECTION ELEVEN HUNDRED NINE-
TEEN OF THIS CHAPTER OR REPEALING SUCH PROVISION SO PROVIDED MUST GO
INTO EFFECT ONLY ON MARCH FIRST, SUBJECT TO FURTHER REQUIREMENT AS TO
EFFECTIVE DATE PROVIDED FOR IN SUBDIVISION (B) OF THIS SECTION. No such
local law or resolution shall be effective unless a certified copy of
such local law 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
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
S. 60--A 68 A. 160--A
restriction and notice requirement in section twelve hundred twenty-
three of this article shall also apply.
S 42. Subdivisions (a) and (e) of section 1212 of the tax law, as
amended by section 14 of part GG and subdivision (a) as separately
amended by section 37 of part Y of chapter 63 of the laws of 2000, are
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 [exemptions provided for in subdivision (z) of
section eleven hundred fifteen] 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 school district elects to provide such
[exemptions] PROVISION or, if so elected, to repeal such [exemptions]
PROVISION.
(e) A resolution imposing a tax pursuant to this section, increasing
or decreasing the rate of such tax, or repealing or suspending such tax
must go into effect only on one of the following dates: March first,
June first, September first or December first; provided, that a resol-
ution providing for the [exemptions described in subdivision (z) of
section eleven hundred fifteen] REFUND OR CREDIT DESCRIBED IN SUBDIVI-
SION (D) OF SECTION ELEVEN HUNDRED NINETEEN of this chapter or repealing
such [exemptions so provided] PROVISION must go into effect only on
March first. No such resolution shall be effective unless a certified
copy of such resolution is mailed by registered or certified mail to the
S. 60--A 69 A. 160--A
commissioner at the commissioner's office in Albany at least ninety days
prior to the date it is to become effective. However, the commissioner
may waive and reduce such ninety-day minimum 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 consistent with the commissioner's
duties under section twelve hundred fifty of this article and the
commissioner acts by resolution.
S 43. Notwithstanding any provision of state or local law, ordinance
or resolution to the contrary:
(a) Every local enactment that elected the qualified empire zone
enterprise exemptions described in subdivision (z) of section 1115 of
the tax law elected by a county or city pursuant to the authority of
article 29 of the tax law that is in effect on the day before this act
becomes a law or was elected prior to such date to take effect at a
later date is hereby amended to elect the refund or credit described in
subdivision (d) of section 1119 of the tax law.
(b) A county or city that elected the qualified empire zone enterprise
exemptions described in subdivision (z) of section 1115 of the tax law
pursuant to the authority of article 29 of the tax law may repeal such
exemptions in accord with the provisions of subdivisions (d) and (e) of
section 1210 of the tax law.
S 44. Subdivision (m) of section 14 of the tax law is REPEALED.
S 45. The tax law is amended by adding a new section 17 to read as
follows:
S 17. EMPIRE ZONES TAX BENEFITS REPORT. (A) THE DEPARTMENT OF TAXATION
AND FINANCE MUST PUBLISH AN EMPIRE ZONES TAX BENEFITS REPORT ANNUALLY BY
JANUARY THIRTY-FIRST. THE FIRST REPORT MUST BE PUBLISHED BY JANUARY
THIRTY-FIRST, TWO THOUSAND THIRTEEN.
(B) (1) THE EMPIRE ZONES TAX BENEFITS REPORT MUST CONTAIN THE FOLLOW-
ING INFORMATION ABOUT THE EMPIRE ZONE TAX CREDITS CLAIMED UNDER ARTICLES
NINE, NINE-A, TWENTY-TWO, THIRTY-TWO AND THIRTY-THREE OF THIS CHAPTER
DURING THE PREVIOUS CALENDAR YEAR:
(A) THE NAME OF EACH TAXPAYER CLAIMING A CREDIT; AND
(B) THE AMOUNT OF EACH CREDIT EARNED BY EACH TAXPAYER.
(2) IF THE TAXPAYER CLAIMS A EMPIRE ZONE TAX CREDIT BECAUSE THE
TAXPAYER IS A MEMBER OF A LIMITED LIABILITY COMPANY, A PARTNER IN A
PARTNERSHIP OR A SHAREHOLDER IN A SUBCHAPTER S CORPORATION, THE NAME OF
EACH LIMITED LIABILITY COMPANY, PARTNERSHIP OR SUBCHAPTER S CORPORATION
EARNING ANY OF THOSE CREDITS AND THE AMOUNT OF CREDIT EARNED BY EACH
ENTITY MUST BE INCLUDED IN THE REPORT INSTEAD OF INFORMATION ABOUT THE
TAXPAYER CLAIMING THE CREDIT.
(C) THE EMPIRE ZONES TAX BENEFITS REPORT MUST ALSO CONTAIN THE FOLLOW-
ING INFORMATION ABOUT THE SALES AND USE TAX REFUNDS AND CREDITS CLAIMED
UNDER SUBDIVISION (D) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS CHAPTER
DURING THE PREVIOUS CALENDAR YEAR:
(A) THE NAME OF EACH TAXPAYER CLAIMING A CREDIT OR REFUND; AND
(B) THE TOTAL AMOUNT OF CREDITS OR REFUNDS ALLOWED TO EACH TAXPAYER.
(D) THE INFORMATION INCLUDED IN THE EMPIRE ZONES TAX BENEFITS REPORT
WILL BE BASED ON THE INFORMATION FILED WITH THE DEPARTMENT DURING THE
PREVIOUS CALENDAR YEAR, TO THE EXTENT THAT IT IS PRACTICABLE TO USE THAT
INFORMATION.
S 46. This act shall take effect immediately, provided, however, that:
(a) sections fourteen through twenty-five of this act shall apply to
taxable years beginning on and after April 1, 2009;
S. 60--A 70 A. 160--A
(b) sections thirty-two and thirty-three and sections thirty-six
through forty-three of this act shall take effect on the first day of
the sales tax quarter next commencing at least 60 days after this act
becomes a law; and provided further that any refund or credit allowed
pursuant to the amendments made by section thirty-three of this act may
not be paid for that quarter for at least two hundred seventy days after
this act becomes a law;
(c) section thirty-five of this act shall take effect April 1, 2009;
and
(d) the amendments to subdivision (u) of section 957 of the general
municipal law made by section one of this act shall not affect the
repeal of such subdivision and shall be deemed repealed therewith.
PART L
Section 1. Subdivision 4 of section 22 of the public housing law, as
amended by section 1 of part XX-1 of chapter 57 of the laws of 2008, is
amended to read as follows:
4. Statewide limitation. The aggregate dollar amount of credit which
the commissioner may allocate to eligible low-income buildings under
this article shall be [twenty] TWENTY-FOUR million dollars. The limita-
tion provided by this subdivision applies only to allocation of the
aggregate dollar amount of credit by the commissioner, and does not
apply to allowance to a taxpayer of the credit with respect to an eligi-
ble low-income building for each year of the credit period.
S 2. Paragraph (7) of subdivision (b) of section 18 of the tax law, as
added by chapter 63 of the laws of 2000, is amended to read as follows:
(7) [Bond in lieu of recapture. In the case of a disposition of a
building or an interest therein, the taxpayer shall be discharged from
liability for any recapture under this subdivision by reason of such
disposition if the taxpayer furnishes to the commissioner a bond or
other security acceptable to the commissioner in an amount satisfactory
to the commissioner and for the period required by the commissioner,
and] (A) THE CREDIT RECAPTURE REQUIRED UNDER THIS SUBDIVISION WILL NOT
APPLY SOLELY BY REASON OF THE DISPOSITION OF A BUILDING OR AN INTEREST
THEREIN IF it is reasonably expected that such building will continue to
be operated as an eligible low-income building for the remaining compli-
ance period with respect to such building.
(B) STATUTE OF LIMITATIONS. IF A BUILDING (OR AN INTEREST THEREIN) IS
DISPOSED OF DURING ANY TAXABLE YEAR AND THERE IS ANY REDUCTION IN THE
QUALIFIED BASIS OF SUCH BUILDING WHICH RESULTS IN AN INCREASE IN TAX
UNDER THIS SECTION FOR SUCH TAXABLE OR ANY SUBSEQUENT TAXABLE YEAR, THEN
(I) THE STATUTORY PERIOD FOR THE ASSESSMENT OF ANY DEFICIENCY WITH
RESPECT TO SUCH INCREASE IN TAX WILL NOT EXPIRE BEFORE THE EXPIRATION OF
THREE YEARS FROM THE DATE THE COMMISSIONER OF HOUSING AND COMMUNITY
RENEWAL IS NOTIFIED BY THE TAXPAYER (IN SUCH MANNER AS THE COMMISSIONER
OF HOUSING AND COMMUNITY RENEWAL MAY PRESCRIBE) OF SUCH REDUCTION IN
QUALIFIED BASIS, AND
(II) SUCH DEFICIENCY MAY BE ASSESSED BEFORE THE EXPIRATION OF SUCH
3-YEAR PERIOD NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW OR RULE OF
LAW WHICH WOULD OTHERWISE PREVENT SUCH ASSESSMENT.
S 3. This act shall take effect immediately.
PART M
S. 60--A 71 A. 160--A
Section 1. Subsection (f) of section 615 of the tax law, as added by
chapter 28 of the laws of 1987, is amended to read as follows:
(f) The New York itemized deduction otherwise allowable under this
section shall be reduced by the sum of the amounts determined under
paragraphs one [and], two AND THREE of this subsection.
(1) An amount equal to the New York itemized deduction otherwise
allowable under subsection (a) of this section, multiplied by a percent-
age, such percentage to be determined by multiplying, for taxable years
beginning in nineteen hundred eighty-eight, ten percent, and for taxable
years beginning after nineteen hundred eighty-eight, twenty-five
percent, by a fraction,
(A) in the case of an unmarried individual or married individual
filing a separate return, the numerator of which is the lesser of fifty
thousand dollars or the excess of such individual's New York adjusted
gross income over one hundred thousand dollars and the denominator of
which is fifty thousand dollars;
(B) in the case of a married individual filing a joint return or a
surviving spouse, the numerator of which is the lesser of fifty thousand
dollars or the excess of such individual's New York adjusted gross
income over two hundred thousand dollars and the denominator of which is
fifty thousand dollars;
(C) in the case of a head of household, the numerator of which is the
lesser of fifty thousand dollars or the excess of such individual's New
York adjusted gross income over one hundred fifty thousand dollars and
the denominator of which is fifty thousand dollars.
(2) An amount equal to the New York itemized deduction of an individ-
ual otherwise allowable under subsection (a) of this section, multiplied
by a percentage, such percentage to be determined by multiplying, for
taxable years beginning in nineteen hundred eighty-eight, ten percent,
and for taxable years beginning after nineteen hundred eighty-eight,
twenty-five percent, by a fraction, the numerator of which is the lesser
of fifty thousand dollars or the excess of such individual's New York
adjusted gross income over four hundred seventy-five thousand dollars
and the denominator of which is fifty thousand dollars.
(3) WITH RESPECT TO AN INDIVIDUAL WHOSE NEW YORK ADJUSTED GROSS INCOME
IS OVER ONE MILLION DOLLARS, AN AMOUNT EQUAL TO THE NEW YORK ITEMIZED
DEDUCTION OF AN INDIVIDUAL OTHERWISE ALLOWABLE UNDER SUBSECTION (A) OF
THIS SECTION, EXCEPT THE PORTION OF THE DEDUCTION ATTRIBUTABLE TO ANY
CHARITABLE CONTRIBUTION ALLOWED UNDER SECTION ONE HUNDRED SEVENTY OF THE
INTERNAL REVENUE CODE, MULTIPLIED BY FIFTY PERCENT, FOR TAXABLE YEARS
BEGINNING AFTER TWO THOUSAND EIGHT.
S 2. Clause (ii) of subparagraph (B) of paragraph 3 of subsection (c)
of section 685 of the tax law, as amended by section 2 of part Y3 of
chapter 62 of the laws of 2003, is amended to read as follows:
(ii) one hundred percent of the tax shown on the return of the indi-
vidual for the preceding taxable year. Provided, however, the tax shown
on such return for taxable years beginning in two thousand two shall be
the tax calculated as if such years began in two thousand three.
PROVIDED FURTHER, HOWEVER, THAT THE TAX SHOWN ON SUCH RETURN FOR TAXABLE
YEARS BEGINNING IN TWO THOUSAND EIGHT SHALL BE CALCULATED AS IF PARA-
GRAPH THREE OF SUBSECTION (F) OF SECTION SIX HUNDRED FIFTEEN OF THIS
ARTICLE HAS BEEN IN EFFECT FOR TAXABLE YEARS BEGINNING IN TWO THOUSAND
EIGHT.
S 3. Subdivision (f) of section 11-1715 of the administrative code of
the city of New York, as added by chapter 333 of the laws of 1987, is
amended to read as follows:
S. 60--A 72 A. 160--A
(f) The city itemized deduction otherwise allowable under this section
shall be reduced by the sum of the amounts determined under paragraphs
one [and], two AND THREE of this subdivision.
(1) An amount equal to the city itemized deduction otherwise allowable
under subdivision (a) of this section, multiplied by a percentage, such
percentage to be determined by multiplying, for taxable years beginning
in nineteen hundred eighty-eight, ten percent, and for taxable years
beginning after nineteen hundred eighty-eight, twenty-five percent, by a
fraction,
(A) in the case of an unmarried individual or married individual
filing a separate return, the numerator of which is the lesser of fifty
thousand dollars or the excess of such individual's city adjusted gross
income over one hundred thousand dollars and the denominator of which is
fifty thousand dollars;
(B) in the case of a married individual filing a joint return or a
surviving spouse, the numerator of which is the lesser of fifty thousand
dollars or the excess of such individual's city adjusted gross income
over two hundred thousand dollars and the denominator of which is fifty
thousand dollars;
(C) in the case of a head of household, the numerator of which is the
lesser of fifty thousand dollars or the excess of such individual's city
adjusted gross income over one hundred fifty thousand dollars and the
denominator of which is fifty thousand dollars.
(2) An amount equal to the city itemized deduction of an individual
otherwise allowable under subdivision (a) of this section, multiplied by
a percentage, such percentage to be determined by multiplying, for taxa-
ble years beginning in nineteen hundred eighty-eight, ten percent, and
for taxable years beginning after nineteen hundred eighty-eight, twen-
ty-five percent, by a fraction, the numerator of which is the lesser of
fifty thousand dollars or the excess of such individual's city adjusted
gross income over four hundred seventy-five thousand dollars and the
denominator of which is fifty thousand dollars.
(3) WITH RESPECT TO AN INDIVIDUAL WHOSE CITY ADJUSTED GROSS INCOME IS
OVER ONE MILLION DOLLARS, AN AMOUNT EQUAL TO THE CITY ITEMIZED DEDUCTION
OF AN INDIVIDUAL OTHERWISE ALLOWABLE UNDER SUBDIVISION (A) OF THIS
SECTION, EXCEPT THE PORTION OF THE DEDUCTION ATTRIBUTABLE TO ANY CHARI-
TABLE CONTRIBUTION ALLOWED UNDER SECTION ONE HUNDRED SEVENTY OF THE
INTERNAL REVENUE CODE, MULTIPLIED BY FIFTY PERCENT, FOR TAXABLE YEARS
BEGINNING AFTER TWO THOUSAND EIGHT.
S 4. Clause (ii) of subparagraph (B) of paragraph 3 of subdivision (c)
of section 11-1785 of the administrative code of the city of New York,
as amended by chapter 55 of the laws of 1992, is amended to read as
follows:
(ii) one hundred percent of the tax shown on the return of the indi-
vidual for the preceding taxable year. PROVIDED, HOWEVER, THAT THE TAX
SHOWN ON SUCH RETURN FOR TAXABLE YEARS BEGINNING IN TWO THOUSAND EIGHT
SHALL BE CALCULATED AS IF PARAGRAPH THREE OF SUBDIVISION (F) OF SECTION
11-1715 OF THIS CHAPTER WAS IN EFFECT FOR TAXABLE YEARS BEGINNING IN TWO
THOUSAND EIGHT.
S 5. Notwithstanding the provisions of subsection (c) of section 685
of the tax law or subdivision (c) of section 11-1785 of the administra-
tive code of the city of New York, no addition to tax as a result of an
underpayment of estimated tax that is attributable to the amendments
made by sections one, two and three of this act shall be imposed with
respect to any installment the due date for the payment of which is
prior to 45 days after the date this act shall have become a law.
S. 60--A 73 A. 160--A
S 6. Notwithstanding any provision of law to the contrary, the commis-
sioner of taxation and finance is authorized to prescribe by regulations
the method of determining the amount to be deducted and withheld from
wages on account of taxes imposed by or pursuant to the authority of
article 22 of the tax law in taxable years beginning in 2009 in
connection with the implementation of section one of this act. The
commissioner of taxation and finance may adjust the withholding tables
in regard to taxable years beginning in 2009 to account for the
provisions of this act. In prescribing any such regulations, the commis-
sioner of taxation and finance may adopt rules on an emergency basis
notwithstanding anything to the contrary in section 202 of the state
administrative procedure act. In carrying out his duties and responsi-
bilities under this section, the commissioner of taxation and finance
may accompany any such rule making procedure with a similar procedure
with respect to the taxes required to be deducted and withheld by local
laws imposing taxes pursuant to the authority of articles 30, 30-A and
30-B of the tax law that take effect and become applicable in taxable
years beginning in 2009, the provisions of any other law in relation to
such a procedure to the contrary notwithstanding.
S 7. This act shall take effect immediately.
PART N
Section 1. Subparagraph (B) of paragraph 1 of subsection (b) of
section 631 of the tax law, as amended by chapter 28 of the laws of
1987, is amended to read as follows:
(B) a business, trade, profession or occupation carried on in this
state, INCLUDING INVESTMENT MANAGEMENT SERVICES PERFORMED IN EXCHANGE
FOR CONSIDERATION TO A PARTNERSHIP OR OTHER ENTITY AS DEFINED IN
SUBSECTION (H) OF THIS SECTION; or
S 2. Section 631 of the tax law is amended by adding a new subsection
(h) to read as follows:
(H) SPECIAL RULES FOR PARTNERS PROVIDING INVESTMENT MANAGEMENT
SERVICES. (1) FOR PURPOSES OF THIS SECTION, THE TERM "INVESTMENT MANAGE-
MENT SERVICES TO A PARTNERSHIP OR OTHER ENTITY" MEANS PROVIDING A
SUBSTANTIAL QUANTITY OF ANY OF THE FOLLOWING SERVICES TO THE PARTNERSHIP
OR OTHER ENTITY:
(I) ADVISING THE PARTNERSHIP AS TO THE VALUE OF ANY SPECIFIED ASSET,
OR
(II) ADVISING THE PARTNERSHIP AS TO THE ADVISABILITY OF INVESTING IN,
PURCHASING, OR SELLING ANY SPECIFIED ASSET, OR
(III) MANAGING, ACQUIRING, OR DISPOSING OF ANY SPECIFIED ASSET, OR
(IV) ARRANGING FINANCING WITH RESPECT TO ACQUIRING SPECIFIED ASSETS,
OR
(V) ANY ACTIVITY IN SUPPORT OF ANY SERVICE DESCRIBED IN SUBPARAGRAPHS
(I) THROUGH (IV) OF THIS PARAGRAPH.
(2) FOR PURPOSES OF THIS SUBSECTION, THE TERM "SPECIFIED ASSET" MEANS
SECURITIES (AS DEFINED IN SECTION FOUR HUNDRED SEVENTY-FIVE (C)(2) OF
THE INTERNAL REVENUE CODE WITHOUT REGARD TO THE LAST SENTENCE THEREOF),
REAL ESTATE, COMMODITIES (AS DEFINED IN SECTION FOUR HUNDRED
SEVENTY-FIVE (E)(2) OF THE INTERNAL REVENUE CODE), OR OPTIONS OR DERIVA-
TIVE CONTRACTS WITH RESPECT TO SECURITIES (AS SO DEFINED), REAL ESTATE,
OR COMMODITIES (AS SO DEFINED).
(3) FOR PURPOSES OF THIS SUBSECTION, SUBSECTION (D) OF THIS SECTION
SHALL NOT APPLY.
S. 60--A 74 A. 160--A
S 3. Subsection (d) of section 631 of the tax law is amended to read
as follows:
(d) Purchase and sale for own account.-- A nonresident, other than a
dealer holding property primarily for sale to customers in the ordinary
course of his trade or business, shall not be deemed to carry on a busi-
ness, trade, profession or occupation in this state solely by reason of
the purchase and sale of property or the purchase, sale or writing of
stock option contracts, or both, for his own account EXCEPT WHEN
SUBSECTION (H) OF THIS SECTION APPLIES.
S 4. Subdivision (a) of section 632 of the tax law is amended by
adding new paragraph (3) to read as follows:
(3) IN DETERMINING THE NEW YORK SOURCE INCOME OF A NONRESIDENT SHARE-
HOLDER OF AN S CORPORATION WHERE THE ELECTION PROVIDED FOR IN SUBSECTION
(A) OF SECTION SIX HUNDRED SIXTY IS IN EFFECT AND THE S CORPORATION IS A
PARTNER OF A PARTNERSHIP TO WHICH SECTION 631(H) APPLIES, THERE SHALL BE
INCLUDED THE INCOME AND LOSSES FROM INTANGIBLE PERSONAL PROPERTY,
INCLUDING ANNUITIES, DIVIDENDS, INTEREST AND GAINS FROM THE DISPOSITION
OF INTANGIBLE PERSONAL PROPERTY ATTRIBUTABLE TO THE PARTNERSHIP OF WHICH
SECTION 631(H) APPLIES. THOSE ITEMS OF INCOME AND LOSS AND DEDUCTION
SHALL BE ALLOCABLE BY THE NONRESIDENT SHAREHOLDERS BY THE S CORPO-
RATION'S BUSINESS ALLOCATION PERCENTAGE, DETERMINED UNDER THE REGU-
LATIONS OF THE COMMISSIONER CONSISTENT WITH THE APPLICABLE METHODS AND
RULES FOR ALLOCATION UNDER ARTICLE 9-A.
S 5. This act shall take effect immediately and apply to taxable years
beginning on or after January 1, 2009.
PART O
Section 1. The tax law is amended by adding a new section 30 to read
as follows:
S 30. RESEARCH EXPENDITURES CREDIT. (A) GENERAL. (1) A TAXPAYER
SUBJECT TO TAX UNDER ARTICLE NINE-A, TWENTY-TWO, THIRTY-TWO OR
THIRTY-THREE OF THIS CHAPTER SHALL BE ALLOWED A CREDIT AGAINST SUCH TAX,
PURSUANT TO THE PROVISIONS REFERENCED IN SUBDIVISION (E) OF THIS
SECTION. THE CREDIT IS EQUAL TO TEN PERCENT OF THE EXCESS OF THE TAXPAY-
ER'S NEW YORK RESEARCH EXPENDITURES INCURRED DURING THE TAXABLE YEAR
OVER THE AVERAGE AMOUNT OF THE TAXPAYER'S NEW YORK RESEARCH EXPENDITURES
INCURRED DURING THE TWO IMMEDIATELY PRECEDING TAXABLE YEARS. IF THE
TAXPAYER DOES NOT HAVE TWO IMMEDIATELY PRECEDING TAXABLE YEARS, THEN THE
CREDIT IS EQUAL TO TEN PERCENT OF THE EXCESS OF THE TAXPAYER'S NEW YORK
RESEARCH EXPENDITURES INCURRED DURING THE TAXABLE YEAR OVER THE TAXPAY-
ER'S NEW YORK RESEARCH EXPENDITURES INCURRED DURING THE IMMEDIATELY
PRECEDING TAXABLE YEAR. THE TAXPAYER IS NOT ALLOWED TO CLAIM THIS CREDIT
DURING ITS FIRST TAXABLE YEAR IN NEW YORK. IF THE TAXPAYER IS A PARTNER
IN A PARTNERSHIP THAT IS INCURRING RESEARCH EXPENDITURES, THE AMOUNT OF
CREDIT THE TAXPAYER WILL BE ALLOWED TO CLAIM IS EQUAL TO THE TAXPAYER'S
PRO RATA SHARE OF THE CREDIT THAT THE PARTNERSHIP WOULD HAVE BEEN
ALLOWED TO CLAIM IF IT WERE A TAXPAYER. ANY TAXPAYER THAT HAS RESEARCH
EXPENDITURES THAT MAY BE USED IN CALCULATING BOTH THE CREDIT DESCRIBED
IN THIS SECTION AND THE CREDIT FOR "QUALIFIED EMERGING TECHNOLOGY COMPA-
NY FACILITIES, OPERATIONS AND TRAINING" ALLOWED UNDER EITHER SUBSECTION
(NN) OF SECTION SIX HUNDRED SIX OF THIS CHAPTER OR SUBDIVISION 12-G OF
SECTION TWO HUNDRED TEN OF THIS CHAPTER, MAY USE THOSE EXPENDITURES TO
CALCULATE EITHER THE CREDIT DESCRIBED IN THIS SECTION OR THE CREDIT
ALLOWED UNDER SUCH SUBSECTION (NN) OR SUCH SUBDIVISION (12-G), BUT NOT
BOTH.
S. 60--A 75 A. 160--A
(2) NEW YORK RESEARCH EXPENDITURES EQUAL THE SUM OF:
(A) THE QUALIFIED RESEARCH EXPENSES THAT WOULD QUALIFY FOR THE CREDIT
ALLOWED UNDER SECTION 41 OF THE INTERNAL REVENUE CODE FOR RESEARCH
ACTIVITIES CONDUCTED IN THIS STATE, AND
(B) THE GRANTS MADE FOR QUALIFIED RESEARCH BY THE TAXPAYER TO A QUALI-
FIED RESEARCH CONSORTIUM, AN EDUCATIONAL INSTITUTION, AND AN ORGANIZA-
TION WHICH IS A STATE OR FEDERAL LABORATORY FOR RESEARCH ACTIVITIES TO
BE CONDUCTED BY THAT ORGANIZATION IN THIS STATE.
(B) MEANING OF TERMS. THE TERMS "QUALIFIED RESEARCH EXPENSES", "QUALI-
FIED RESEARCH", "QUALIFIED RESEARCH CONSORTIUM", AND "EDUCATIONAL INSTI-
TUTION" SHALL HAVE THE SAME MEANINGS AS WHEN USED IN SECTION 41 OF THE
INTERNAL REVENUE CODE, AS SUCH SECTION OF SUCH CODE APPLIED ON DECEMBER
THIRTY-FIRST, TWO THOUSAND EIGHT.
(C) RESEARCH EXPENDITURES CREDIT CERTIFICATES. TO BE ELIGIBLE FOR THE
CREDIT ALLOWED BY THIS SECTION, A TAXPAYER SHALL OBTAIN A RESEARCH
EXPENDITURES CREDIT CERTIFICATE FROM THE URBAN DEVELOPMENT CORPORATION.
A TAXPAYER SHALL APPLY TO THE URBAN DEVELOPMENT CORPORATION BY JANUARY
THIRTY-FIRST OF EACH YEAR WITH RESPECT TO NEW YORK RESEARCH EXPENDITURES
INCURRED DURING THE IMMEDIATELY PRECEDING TAXABLE YEAR THAT ENDED ON OR
BEFORE DECEMBER THIRTY-FIRST OF THE PRECEDING YEAR. THE URBAN DEVELOP-
MENT CORPORATION SHALL ISSUE RESEARCH EXPENDITURES CREDIT CERTIFICATES
BY MARCH THIRTY-FIRST OF EACH YEAR, PURSUANT TO PROCEDURES SPECIFIED IN
RULES AND REGULATIONS PROMULGATED BY SUCH CORPORATION. EACH RESEARCH
EXPENDITURES CREDIT CERTIFICATE SHALL SPECIFY THE MAXIMUM AMOUNT OF
CREDIT THAT THE TAXPAYER IS ALLOWED TO CLAIM FOR THE TAXABLE YEAR TO
WHICH THE CREDIT CERTIFICATE RELATES. FOR THE STATE FISCAL YEAR COMMENC-
ING APRIL FIRST, TWO THOUSAND NINE, THE URBAN DEVELOPMENT CORPORATION
SHALL NOT ISSUE, IN THE AGGREGATE, MORE THAN TWENTY MILLION DOLLARS OF
RESEARCH EXPENDITURES CREDIT CERTIFICATES. FOR THE STATE FISCAL YEAR
COMMENCING APRIL FIRST, TWO THOUSAND TEN, THE AGGREGATE AMOUNT OF SUCH
CERTIFICATES SHALL NOT BE MORE THAN THIRTY-THREE MILLION DOLLARS. FOR
THE STATE FISCAL YEAR COMMENCING APRIL FIRST, TWO THOUSAND ELEVEN AND
FOR EACH FISCAL YEAR THEREAFTER, THE AGGREGATE OF SUCH CERTIFICATES
SHALL NOT BE MORE THAN FORTY-FIVE MILLION DOLLARS.
(D) RESEARCH EXPENDITURES CREDIT REPORT. (1) THE DEPARTMENT SHALL
PUBLISH A RESEARCH EXPENDITURES CREDIT REPORT ANNUALLY BY JANUARY THIR-
TY-FIRST. THE FIRST REPORT SHALL BE PUBLISHED BY JANUARY THIRTY-FIRST,
TWO THOUSAND THIRTEEN.
(2)(A) THE RESEARCH EXPENDITURES CREDIT REPORT SHALL CONTAIN THE
FOLLOWING INFORMATION ABOUT THE CREDITS CLAIMED UNDER THIS SECTION
DURING THE PREVIOUS CALENDAR YEAR:
(I) THE NAME OF EACH TAXPAYER CLAIMING A RESEARCH CREDIT; AND
(II) THE AMOUNT OF RESEARCH CREDIT EARNED BY EACH TAXPAYER;
(B) IF THE TAXPAYER CLAIMS A CREDIT PURSUANT TO THIS SECTION BECAUSE
THE TAXPAYER IS A MEMBER OF A LIMITED LIABILITY COMPANY TREATED AS A
PARTNERSHIP FOR FEDERAL TAX PURPOSES, A PARTNER IN A PARTNERSHIP OR A
SHAREHOLDER IN A SUBCHAPTER S CORPORATION, THE NAME OF EACH LIMITED
LIABILITY COMPANY, PARTNERSHIP OR SUBCHAPTER S CORPORATION ASSOCIATED
WITH ANY OF THOSE CREDITS AND THE AMOUNT OF CREDIT ASSOCIATED WITH EACH
ENTITY SHALL BE INCLUDED IN THE REPORT INSTEAD OF INFORMATION ABOUT THE
TAXPAYER CLAIMING THE CREDIT.
(3) THE INFORMATION INCLUDED IN THE RESEARCH EXPENDITURES CREDIT
REPORT SHALL BE BASED ON THE INFORMATION FILED WITH THE DEPARTMENT
DURING THE PREVIOUS CALENDAR YEAR, TO THE EXTENT THAT IT IS PRACTICABLE
TO USE THAT INFORMATION.
S. 60--A 76 A. 160--A
(E) CROSS-REFERENCES. FOR APPLICATION OF THE CREDIT PROVIDED FOR IN
THIS SECTION, SEE THE FOLLOWING PROVISIONS OF THIS CHAPTER:
(1) ARTICLE 9-A: SECTION 210: SUBDIVISION 41.
(2) ARTICLE 22: SECTION 606: SUBSECTION (QQ).
(3) ARTICLE 32: SECTION 1456: SUBSECTION (U).
(4) ARTICLE 33: SECTION 1511: SUBDIVISION (Y).
S 2. Section 210 of the tax law is amended by adding a new subdivision
41 to read as follows:
41. RESEARCH EXPENDITURES CREDIT. (A) ALLOWANCE OF CREDIT. A TAXPAYER
SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN SECTION THIRTY
OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE.
(B) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE HIGHER OF THE AMOUNTS PRESCRIBED IN PARAGRAPHS (C) AND (D) OF
SUBDIVISION ONE OF THIS SECTION. HOWEVER, IF THE AMOUNT OF CREDITS
ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE TAX TO
SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH TAXABLE
YEAR SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR
REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND
EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF
SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON.
S 3. Section 606 of the tax law is amended by adding a new subsection
(qq) to read as follows:
(QQ) RESEARCH EXPENDITURES CREDIT. (1) ALLOWANCE OF CREDIT. A TAXPAY-
ER SHALL BE ALLOWED A CREDIT, TO THE EXTENT ALLOWED UNDER SECTION THIRTY
OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE.
(2) APPLICATION OF CREDIT. IF THE AMOUNT OF THE CREDIT ALLOWED UNDER
THIS SUBSECTION FOR ANY TAXABLE YEAR EXCEEDS THE TAXPAYER'S TAX FOR SUCH
YEAR, THE EXCESS SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDIT-
ED OR REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION SIX HUNDRED
EIGHTY-SIX OF THIS ARTICLE, PROVIDED, HOWEVER, THAT NO INTEREST SHALL BE
PAID THEREON.
S 4. Subparagraph (B) of paragraph (1) of subsection (i) of section
606 of the tax law, as amended by section 2 of part ZZ-1 of chapter 57
of the laws of 2008, is amended to read as follows:
(B) shall be treated as the owner of a new business with respect to
such share if the corporation qualifies as a new business pursuant to
paragraph (j) of subdivision twelve of section two hundred ten of this
chapter.
The corporation's credit base under
section two hundred ten or section
With respect to the following fourteen hundred fifty-six of this
credit under this section: chapter is:
Investment tax credit Investment credit base
under subsection (a) or qualified
rehabilitation
expenditures under
subdivision twelve of
section two hundred ten
Empire zone Cost or other basis
investment tax credit under subdivision
under subsection (j) twelve-B
S. 60--A 77 A. 160--A
of section two hundred
ten
Empire zone Eligible wages under
wage tax credit subdivision nineteen of
under subsection (k) section two hundred ten
or subsection (e) of
section fourteen hundred
fifty-six
Empire zone Qualified investments
capital tax credit and contributions under
under subsection (l) subdivision twenty of
section two hundred ten
or subsection (d) of
section fourteen hundred
fifty-six
Agricultural property tax Allowable school
credit under subsection (n) district property taxes under
subdivision twenty-two of
section two hundred ten
Credit for employment Qualified first-year wages or
of persons with dis- qualified second-year wages
abilities under under subdivision
subsection (o) twenty-three of section
two hundred ten
or subsection (f)
of section fourteen
hundred fifty-six
Employment incentive Applicable investment credit
credit under subsec- base under subdivision
tion (a-1) twelve-D of section two
hundred ten
Empire zone Applicable investment
employment credit under sub-
incentive credit under division twelve-C
subsection (j-1) of section two hundred ten
Alternative fuels credit Cost under subdivision
under subsection (p) twenty-four of section two
hundred ten
Qualified emerging Applicable credit base
technology company under subdivision twelve-E
employment credit of section two hundred ten
under subsection (q)
Qualified emerging Qualified investments under
technology company subdivision twelve-F of
capital tax credit section two hundred ten
under subsection (r)
S. 60--A 78 A. 160--A
Credit for purchase of an Cost of an automated
automated external defibrillator external defibrillator under
under subsection (s) subdivision twenty-five of
section two hundred ten
or subsection (j) of section
fourteen hundred fifty-six
Low-income housing Credit amount under
credit under subsection (x) subdivision thirty
of section two hundred ten or
subsection (l) of section
fourteen hundred fifty-six
Credit for transportation Amount of credit under sub-
improvement contributions division thirty-two of section
under subsection (z) two hundred ten or subsection
(n) of section fourteen
hundred fifty-six
QEZE credit for real property Amount of credit under
taxes under subsection (bb) subdivision twenty-seven of
section two hundred ten or
subsection (o) of section
fourteen hundred fifty-six
QEZE tax reduction credit Amount of benefit period
under subsection (cc) factor, employment increase factor
and zone allocation
factor (without regard
to pro ration) under
subdivision twenty-eight of
section two hundred ten or
subsection (p) of section
fourteen hundred fifty-six
and amount of tax factor
as determined under
subdivision (f) of section sixteen
Green building credit Amount of green building credit
under subsection (y) under subdivision thirty-one
of section two hundred ten
or subsection (m) of section
fourteen hundred fifty-six
Credit for long-term Qualified costs under
care insurance premiums subdivision twenty-five-a of
under subsection (aa) section two hundred ten
or subsection (k) of section
fourteen hundred fifty-six
Brownfield redevelopment Amount of credit
credit under subsection under subdivision
(dd) thirty-three of section
two hundred ten
or subsection (q) of
section fourteen hundred
S. 60--A 79 A. 160--A
fifty-six
Remediated brownfield Amount of credit under
credit for real property subdivision thirty-four
taxes for qualified of section two hundred
sites under subsection ten or subsection (r) of
(ee) section fourteen hundred
fifty-six
Environmental Amount of credit under
remediation subdivision thirty-five of
insurance credit under section two hundred
subsection (ff) ten or subsection
(s) of section
fourteen hundred
fifty-six
Empire state film production Amount of credit for qualified
credit under subsection (gg) production costs in production
of a qualified film under
subdivision thirty-six of
section two hundred ten
Qualified emerging Qualifying expenditures and
technology company facilities, development activities under
operations and training credit subdivision twelve-G of section
under subsection (nn) two hundred ten
Security training tax Amount of credit
credit under under subdivision thirty-seven
subsection (ii) of section two hundred ten or
under subsection (t) of
section fourteen hundred fifty-six
Credit for qualified fuel Amount of credit under
cell electric generating equipment subdivision thirty-seven
expenditures under subsection (g-2) of section two hundred ten
or subsection (t) of
section fourteen hundred
fifty-six
Empire state commercial production Amount of credit for qualified
credit under subsection (jj) production costs in production
of a qualified commercial under
subdivision thirty-eight of sec-
tion two hundred ten
Biofuel production Amount of credit
tax credit under under subdivision
subsection (jj) thirty-eight of
section two hundred ten
Clean heating fuel credit Amount of credit under
under subsection (mm) subdivision thirty-nine of
section two hundred ten
S. 60--A 80 A. 160--A
Credit for rehabilitation Amount of credit under
of historic properties subdivision forty of
under subsection (oo) subsection two hundred ten
Credit for companies who Amount of credit under
provide transportation subdivision forty of
to individuals section two hundred ten
with disabilities
under subsection (oo)
RESEARCH EXPENDITURES CREDIT AMOUNT OF CREDIT UNDER
UNDER SUBSECTION (QQ) SUBDIVISION FORTY-ONE OF
SECTION TWO HUNDRED TEN OR
UNDER SUBSECTION (U) OF SECTION
FOURTEEN HUNDRED FIFTY-SIX
S 5. Section 1456 of the tax law is amended by adding a new subsection
(u) to read as follows:
(U) RESEARCH EXPENDITURES CREDIT. (1) ALLOWANCE OF CREDIT. A TAXPAYER
SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN SECTION THIRTY
OF THIS CHAPTER, AGAINST THE TAX IMPOSED BY THIS ARTICLE.
(2) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBSECTION
FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE MINIMUM TAX FIXED BY PARAGRAPH THREE OF SUBSECTION (B) OF
SECTION FOURTEEN HUNDRED FIFTY-FIVE OF THIS ARTICLE. HOWEVER, IF THE
AMOUNT OF CREDITS ALLOWED UNDER THIS SUBSECTION FOR ANY TAXABLE YEAR
REDUCES THE TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE
IN SUCH TAXABLE YEAR SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE
CREDITED OR REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE
THOUSAND EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS
OF SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON.
S 6. Section 1511 of the tax law is amended by adding a new subdivi-
sion (y) to read as follows:
(Y) RESEARCH EXPENDITURES CREDIT. (1) ALLOWANCE OF CREDIT. A TAXPAYER
SHALL BE ALLOWED A CREDIT, TO BE COMPUTED AS PROVIDED IN SECTION THIRTY
OF THIS CHAPTER, AGAINST THE TAXES IMPOSED BY THIS ARTICLE.
(2) APPLICATION OF CREDIT. THE CREDIT ALLOWED UNDER THIS SUBDIVISION
FOR ANY TAXABLE YEAR SHALL NOT REDUCE THE TAX DUE FOR SUCH YEAR TO LESS
THAN THE MINIMUM TAX FIXED BY THIS ARTICLE. HOWEVER, IF THE AMOUNT OF
CREDITS ALLOWED UNDER THIS SUBDIVISION FOR ANY TAXABLE YEAR REDUCES THE
TAX TO SUCH AMOUNT, ANY AMOUNT OF CREDIT THUS NOT DEDUCTIBLE IN SUCH
TAXABLE YEAR SHALL BE TREATED AS AN OVERPAYMENT OF TAX TO BE CREDITED OR
REFUNDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE THOUSAND
EIGHTY-SIX OF THIS CHAPTER. PROVIDED, HOWEVER, THE PROVISIONS OF
SUBSECTION (C) OF SECTION ONE THOUSAND EIGHTY-EIGHT OF THIS CHAPTER
NOTWITHSTANDING, NO INTEREST SHALL BE PAID THEREON.
S 7. Subdivision 12-G of section 210 of the tax law is amended by
adding a new paragraph (i) to read as follows:
(I) ANY TAXPAYER THAT HAS RESEARCH EXPENDITURES THAT MAY BE USED IN
CALCULATING BOTH THE CREDIT DESCRIBED IN THIS SUBDIVISION AND THE
"RESEARCH EXPENDITURES CREDIT" DESCRIBED IN SECTION THIRTY OF THIS CHAP-
TER, MAY ELECT TO USE THOSE EXPENDITURES TO CALCULATE EITHER THE CREDIT
ALLOWED UNDER THIS SUBDIVISION OR THE CREDIT DESCRIBED IN SECTION THIRTY
OF THIS CHAPTER, BUT NOT BOTH.
S. 60--A 81 A. 160--A
S 8. Subsection (nn) of section 606 of the tax law is amended by
adding a new paragraph (9) to read as follows:
(9) ANY TAXPAYER THAT HAS RESEARCH EXPENDITURES THAT MAY BE USED IN
CALCULATING BOTH THE CREDIT DESCRIBED IN THIS SUBSECTION AND THE
"RESEARCH EXPENDITURES CREDIT" DESCRIBED IN SECTION THIRTY OF THIS CHAP-
TER, MAY USE THOSE EXPENDITURES TO CALCULATE EITHER THE CREDIT ALLOWED
UNDER THIS SUBSECTION OR THE CREDIT DESCRIBED IN SECTION THIRTY OF THIS
CHAPTER, BUT NOT BOTH.
S 9. The chairman of the urban development corporation, after consult-
ing with the commissioner of taxation and finance and the director of
the division of the budget shall promulgate regulations by October 31,
2009 to establish procedures for the awarding and allocation of the
research expenditures credits allowed under section thirty of the tax
law, as added by section one of this act. Such rules and regulations
shall include a description of the standards to be used to evaluate the
applications, the type of documentation to be provided by taxpayers to
substantiate the taxpayer's New York research expenditures, and any
other provisions the chairman determines to be necessary. Notwithstand-
ing any other provisions to the contrary in the state administrative
procedure act, the rules and regulations described in this section shall
be adopted on an emergency basis if necessary.
S 10. The chairman of the urban development corporation shall publish
a report on the research expenditures credit and the research expendi-
tures credit certificate issuance process on or before January first of
each year. Such report shall include, but not be limited to, the
following information:
(a) the total number of recipients and the total amount of credits
awarded;
(b) the name of every recipient of a research credit certificate; and
(c) the amount of credit awarded to each recipient of a research cred-
it certificate.
The report shall be issued no later than 60 days after the conclusion of
the research expenditures credit allocation process.
S 11. The chairman of the urban development corporation shall not
issue research expenditures credit certificates for the credit for
increasing research activities allowed under section 30 of the tax law,
as added by section one of this act, until the director of the division
of the budget, in consultation with the commissioner of taxation and
finance, validates that the Empire Zone Program reforms enacted as part
of the 2009-2010 Executive Budget have resulted in $100 million in
savings for the 2009-10 state fiscal year.
S 12. This act shall take effect immediately and shall apply to taxa-
ble years beginning on or after January 1, 2009; provided, however that
the empire state film production credit under subsection (gg), the
empire state commercial production credit under subsection (jj) and the
credit for companies who provide transportation to individuals with
disabilities under subsection (oo) of section 606 of the tax law
contained in section four of this act shall expire on the same date as
provided in section 9 of part P of chapter 60 of the laws of 2004, as
amended, section 10 of part V of chapter 62 of the laws of 2006, as
amended and section 5 of chapter 522 of the laws of 2006, as amended,
respectively.
PART P
S. 60--A 82 A. 160--A
Section 1. Paragraph (b) of subdivision 12-G of section 210 of the tax
law, as amended by section 1-a of part A of chapter 63 of the laws of
2005, is amended to read as follows:
(b) An eligible taxpayer shall (i) have no more than one hundred full-
time employees, of which at least seventy-five percent are employed in
New York state, EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH, (ii)
have a ratio of research and development funds to net sales, as referred
to in section thirty-one hundred two-e of the public authorities law,
which equals or exceeds six percent during its taxable year, and (iii)
have gross revenues, along with the gross revenues of its affiliates and
related members, not exceeding twenty million dollars for the taxable
year immediately preceding the year the taxpayer is allowed a credit
under this subdivision. For purposes of this paragraph, the term
"related member" shall have the same meaning as set forth in [clauses]
CLAUSE (A) [and (B)] of subparagraph one of paragraph (o) of subdivision
nine of section two hundred eight of this article, and the term "affil-
iates" shall mean those corporations that are members of the same affil-
iated group (as defined in section fifteen hundred four of the internal
revenue code) as the taxpayer. FOR PURPOSES OF SUBPARAGRAPH (I) OF THIS
PARAGRAPH, EMPLOYEES WHO ARE EMPLOYED OUTSIDE THE UNITED STATES DURING
THE TAXABLE YEAR CANNOT BE CONSIDERED; A TAXPAYER THAT MEETS THE EMPLOY-
MENT REQUIREMENTS IN SUBPARAGRAPH (I) OF THIS PARAGRAPH IN THE FIRST
YEAR IN WHICH THE CREDIT ALLOWED BY THIS SUBDIVISION IS CLAIMED WILL NOT
BE CONSIDERED INELIGIBLE SOLELY AS A RESULT OF HAVING MORE THAN ONE
HUNDRED FULL-TIME EMPLOYEES IN OTHER TAXABLE YEARS IN WHICH THE CREDIT
IS CLAIMED, PROVIDED AT LEAST SEVENTY-FIVE PERCENT OF THE FULL-TIME
EMPLOYEES IN THE OTHER TAXABLE YEARS ARE EMPLOYED IN NEW YORK STATE; AND
AN INDIVIDUAL WHO IS A PARTNER IN A PARTNERSHIP THAT IS A QUALIFIED
EMERGING TECHNOLOGY COMPANY WILL BE CONSIDERED A FULL-TIME EMPLOYEE IF
THE INDIVIDUAL PARTNER PARTICIPATES IN THE PARTNERSHIP ON A FULL-TIME
BASIS DURING THE TAXABLE YEAR AND THE INVOLVEMENT OF THE INDIVIDUAL
PARTNER IN THE ACTIVITIES OF THE PARTNERSHIP DURING THE TAXABLE YEAR
SATISFIES THE REQUIREMENTS FOR MATERIAL PARTICIPATION FOR THE SAME TAXA-
BLE YEAR WITHIN THE MEANING OF SUBSECTION (H) OF SECTION 469 OF THE
INTERNAL REVENUE CODE.
S 2. Subparagraphs (i) and (iii) of paragraph 2 of subsection (nn) of
section 606 of the tax law, as amended by section 1-a of part A of chap-
ter 63 of the laws of 2005, are amended to read as follows:
(i) have no more than one hundred full-time employees, of which at
least seventy-five percent are employed in New York state, EXCEPT AS
OTHERWISE PROVIDED IN THIS PARAGRAPH,
(iii) have gross revenues, along with the gross revenues of its affil-
iates and related members, not exceeding twenty million dollars for the
taxable year immediately preceding the year the taxpayer is allowed a
credit under this subsection. For purposes of this paragraph, the term
"related member" shall have the same meaning as set forth in [clauses]
CLAUSE (A) [and (B)] of subparagraph one of paragraph (o) of subdivision
9 of section two hundred eight of this chapter, and the term "affil-
iates" shall mean those corporations that are members of the same affil-
iated group (as defined in section fifteen hundred four of the internal
revenue code) as the taxpayer. FOR PURPOSES OF SUBPARAGRAPH (I) OF THIS
PARAGRAPH, EMPLOYEES WHO ARE EMPLOYED OUTSIDE THE UNITED STATES DURING
THE TAXABLE YEAR CANNOT BE CONSIDERED; A TAXPAYER THAT MEETS THE EMPLOY-
MENT REQUIREMENTS IN SUBPARAGRAPH (I) OF THIS PARAGRAPH IN THE FIRST
YEAR IN WHICH THE CREDIT ALLOWED BY THIS SUBSECTION IS CLAIMED WILL NOT
BE CONSIDERED INELIGIBLE SOLELY AS A RESULT OF HAVING MORE THAN ONE
S. 60--A 83 A. 160--A
HUNDRED FULL-TIME EMPLOYEES IN OTHER TAXABLE YEARS IN WHICH THE CREDIT
IS CLAIMED, PROVIDED AT LEAST SEVENTY-FIVE PERCENT OF THE FULL-TIME
EMPLOYEES IN THE OTHER TAXABLE YEARS ARE EMPLOYED IN NEW YORK STATE; AND
AN INDIVIDUAL WHO IS A PARTNER IN A PARTNERSHIP THAT IS A QUALIFIED
EMERGING TECHNOLOGY COMPANY WILL BE CONSIDERED A FULL-TIME EMPLOYEE IF
THE INDIVIDUAL PARTNER PARTICIPATES IN THE PARTNERSHIP ON A FULL-TIME
BASIS DURING THE TAXABLE YEAR AND THE INVOLVEMENT OF THE INDIVIDUAL
PARTNER IN THE ACTIVITIES OF THE PARTNERSHIP DURING THE TAXABLE YEAR
SATISFIES THE REQUIREMENTS FOR MATERIAL PARTICIPATION FOR THE SAME TAXA-
BLE YEAR WITHIN THE MEANING OF SUBSECTION (H) OF SECTION 469 OF THE
INTERNAL REVENUE CODE.
S 3. This act shall take effect immediately and apply to taxable years
beginning on or after January 1, 2010.
PART Q
Section 1. Subdivision (b) of section 1101 of the tax law is amended
by adding a new paragraph 27-a to read as follows:
(27-A) (I) "CABLE SERVICE" MEANS THE FURNISHING TO PURCHASERS OF
PROGRAMS AND OTHER CONTENT FROM ONE OR MORE TELEVISION OR RADIO STATIONS
OR NETWORKS OR OTHER PERSONS, BY MEANS OF WIRE, CABLE, FIBER-OPTIC,
LASER, MICROWAVE, RADIO WAVE, SATELLITE, OR ANY OTHER MEANS.
(II) "DIRECT-TO-HOME SATELLITE SERVICE" MEANS ONLY PROGRAMMING TRANS-
MITTED OR BROADCAST BY SATELLITE DIRECTLY TO THE SUBSCRIBERS' PREMISES
WITHOUT THE USE OF GROUND RECEIVING OR DISTRIBUTION EQUIPMENT, EXCEPT AT
THE SUBSCRIBERS' PREMISES OR IN THE UPLINK PROCESS TO THE SATELLITE.
S 2. Subdivision (c) of section 1105 of the tax law is amended by
adding a new paragraph 12 to read as follows:
(12) (A) CABLE SERVICE, INCLUDING ANY TANGIBLE PERSONAL PROPERTY AND
ANY SERVICE OR OTHER CONTENT PROVIDED WITH THE CABLE SERVICE, WHETHER OR
NOT FOR A SEPARATE CHARGE, BUT NOT INCLUDING DIRECT-TO-HOME SATELLITE
SERVICE, INTERNET ACCESS SERVICE AS DEFINED IN NOTE SECTION 1101 OF
SECTION 151 OF TITLE 47 OF THE UNITED STATES CODE, OR TELEPHONY OR
TELEGRAPHY OR TELEPHONE OR TELEGRAPH SERVICE OF WHATEVER NATURE.
(B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, IF
CABLE SERVICE IS RECEIVED IN A MOTOR VEHICLE OR VESSEL, THE SERVICE IS
SOURCED TO THE PURCHASER'S "PLACE OF PRIMARY USE," AS THAT TERM IS
DEFINED IN PARAGRAPH TWENTY-SIX OF SUBDIVISION (B) OF SECTION ELEVEN
HUNDRED ONE OF THIS ARTICLE, EXCEPT THAT: (I) THE TERM "MOBILE TELECOM-
MUNICATIONS CUSTOMER" MEANS "PURCHASER"; AND (II) SUBPARAGRAPH (II) OF
SUCH PARAGRAPH DOES NOT APPLY.
S 3. The tax law is amended by adding a new section 1105-E to read as
follows:
S 1105-E. STATE TAX ON DIRECT-TO-HOME SATELLITE SERVICE. (A) A TAX IS
HEREBY IMPOSED AND MUST BE PAID ON DIRECT-TO-HOME SATELLITE SERVICE, AT
A RATE EQUAL TO THE SUM OF: (1) THE STATE RATE IN THE OPENING PARAGRAPH
OF SECTION ELEVEN HUNDRED FIVE OF THIS PART; (2) THE RATE IN SUBDIVISION
(A) OF SECTION ELEVEN HUNDRED NINE OF THIS PART IF THE SERVICE IS DELIV-
ERED WITHIN THE METROPOLITAN COMMUTER TRANSPORTATION DISTRICT ESTAB-
LISHED PURSUANT TO SECTION TWELVE HUNDRED SIXTY-TWO OF THE PUBLIC
AUTHORITIES LAW; AND (3) THE SUM OF THE LOCAL RATES OF TAX DESCRIBED IN
SUBDIVISION (A) OF SECTION TWELVE HUNDRED TEN OR SECTION TWELVE HUNDRED
ELEVEN OF THIS CHAPTER IMPOSED PURSUANT TO THE AUTHORITY OF SUBPART B OF
PART I OF ARTICLE TWENTY-NINE OF THIS CHAPTER IN THE PLACE WHERE THE
SERVICE IS DELIVERED.
S. 60--A 84 A. 160--A
(B) DEPOSIT AND DISTRIBUTION OF REVENUE. AFTER SUBTRACTING THE AMOUNT
DISPOSED OF PURSUANT TO SUBDIVISION (H) OF SECTION TWELVE HUNDRED
SIXTY-ONE OF THIS CHAPTER AND THE AMOUNT DISPOSED OF UNDER SUBDIVISION
(I) OF SECTION ELEVEN HUNDRED NINE OF THIS PART, ANY REMAINING TAXES,
INTEREST AND PENALTIES COLLECTED OR RECEIVED BY THE COMMISSIONER FROM
THE TAX IMPOSED BY THIS SECTION WILL BE DISPOSED OF IN ACCORDANCE WITH
SECTION ONE HUNDRED SEVENTY-ONE-A OF THIS CHAPTER AS PROVIDED IN SECTION
ELEVEN HUNDRED FORTY-EIGHT OF THIS ARTICLE.
(C) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE TAXES IMPOSED BY
THIS SECTION WILL BE IDENTICAL TO, AND ADMINISTERED AND COLLECTED IN A
LIKE MANNER AS, THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED FIVE OF THIS
ARTICLE. ALL THE PROVISIONS OF THIS ARTICLE, INCLUDING THE DEFINITION
AND EXEMPTION PROVISIONS AND THE PROVISIONS RELATING OR APPLICABLE TO
THE ADMINISTRATION, COLLECTION AND DISPOSITION OF THE TAXES IMPOSED BY
THAT SECTION WILL APPLY TO THE TAX IMPOSED BY THIS SECTION SO FAR AS
THOSE PROVISIONS CAN BE MADE APPLICABLE TO THE TAX IMPOSED BY THIS
SECTION, WITH SUCH MODIFICATIONS AS MAY BE NECESSARY IN ORDER TO ADAPT
THE LANGUAGE OF THOSE PROVISIONS TO THE TAX IMPOSED BY THIS SECTION.
THOSE PROVISIONS WILL APPLY WITH THE SAME FORCE AND EFFECT AS IF THE
LANGUAGE OF THOSE PROVISIONS HAD BEEN SET FORTH IN FULL IN THIS SECTION,
EXCEPT TO THE EXTENT THAT ANY OF THOSE PROVISIONS IS EITHER INCONSISTENT
WITH A PROVISION OF THIS SECTION OR IS NOT RELEVANT TO THE TAX IMPOSED
BY THIS SECTION. FOR PURPOSES OF THIS SECTION, ANY REFERENCE IN THIS
CHAPTER TO A TAX OR THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED FIVE OF
THIS ARTICLE WILL BE DEEMED ALSO TO REFER TO THE TAX IMPOSED BY THIS
SECTION UNLESS A DIFFERENT MEANING IS CLEARLY REQUIRED.
(D) SEPARATE STATEMENT OF TAX. EVERY PERSON REQUIRED TO COLLECT THE
TAX IMPOSED BY THIS SECTION SHALL STATE, CHARGE, AND SHOW THAT TAX SEPA-
RATELY FROM THE PRICE OR CHARGE, AND ALSO SEPARATELY FROM ANY OTHER TAX
IMPOSED BY THIS ARTICLE OR OTHER LAW ON ANY SALES SLIP, INVOICE, RECEIPT
OR OTHER STATEMENT OR MEMORANDUM OF THE PRICE OR CHARGE, PAID OR PAYA-
BLE, GIVEN TO THE CUSTOMER.
(E) TAXES TO BE IN ADDITION TO ANY OTHER. THE TAXES IMPOSED BY THIS
SECTION SHALL BE IN ADDITION TO ANY OTHER TAX IMPOSED OR AUTHORIZED TO
BE IMPOSED BY THIS CHAPTER OR OTHER LAW.
(F) TAXES NOT TO APPLY TO OTHER IMPOSITIONS. THE TAXES IMPOSED BY THIS
SECTION SHALL NOT APPLY TO THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED
SEVEN, ELEVEN HUNDRED EIGHT, OR ELEVEN HUNDRED NINE OF THIS ARTICLE OR
TO TAXES AUTHORIZED TO BE IMPOSED BY ARTICLE TWENTY-NINE OF THIS CHAP-
TER.
S 4. Section 1109 of the tax law is amended by adding a new subdivi-
sion (i) to read as follows:
(I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
PORTION OF THE TAXES, INTEREST AND PENALTIES COLLECTED OR RECEIVED BY
THE COMMISSIONER FROM THE TAX IMPOSED BY SECTION ELEVEN HUNDRED FIVE-E
OF THIS PART IN THE AREA OF THE STATE WITHIN THE METROPOLITAN COMMUTER
TRANSPORTATION DISTRICT BASED ON THE RATE OF TAX IN EFFECT IN SUBDIVI-
SION (A) OF THIS SECTION, WILL BE DISPOSED OF IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION (D) OF THIS SECTION.
S 5. Clause (ii) of paragraph 1 of subdivision (b) of section 1116 of
the tax law, as amended by section 1 of part KK-1 of chapter 57 of the
laws of 2008, is amended to read as follows:
(ii) sales, other than for resale, of services described in subdivi-
sion (b) or paragraph five OR TWELVE of subdivision (c) of section elev-
en hundred five of this article OR IN SECTION ELEVEN HUNDRED FIVE-E OF
THIS ARTICLE by that organization, whether or not at a shop or store;
S. 60--A 85 A. 160--A
S 6. Section 1148 of the tax law, as amended by chapter 3 of the laws
of 2004, is amended to read as follows:
S 1148. Deposit and disposition of revenue. All taxes, interest and
penalties collected or received by the commissioner under this article
shall be deposited and disposed of pursuant to the provisions of section
one hundred seventy-one-a of this chapter; provided however, the comp-
troller shall on or before the twelfth day of each month, pay all such
taxes, interest and penalties collected under this article and remaining
to the comptroller's credit in such banks, banking houses or trust
companies at the close of business on the last day of the preceding
month, into the general fund of the state treasury, except as otherwise
provided in sections ninety-two-d and ninety-two-r of the state finance
law [and], sections eleven hundred two, eleven hundred four and eleven
hundred nine of this article, AND SUBDIVISION (B) OF SECTION ELEVEN
HUNDRED FIVE-E OF THIS ARTICLE.
S 7. Section 1261 of the tax law is amended by adding a new subdivi-
sion (h) to read as follows:
(H) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, A PORTION OF
THE TAXES, INTEREST AND PENALTIES COLLECTED OR RECEIVED BY THE COMMIS-
SIONER FROM THE TAX IMPOSED BY SECTION ELEVEN HUNDRED FIVE-E OF THIS
CHAPTER WILL BE ALLOCATED TO EACH LOCALITY THAT IMPOSES THE TAXES
DESCRIBED IN SUBDIVISION (A) OF SECTION TWELVE HUNDRED TEN OR SECTION
TWELVE HUNDRED ELEVEN OF THIS ARTICLE BASED ON THE SUM OF THE LOCAL
RATES OF TAX IN EFFECT IN THAT LOCALITY IMPOSED PURSUANT TO THE AUTHORI-
TY OF SUBPART B OF PART I OF THIS ARTICLE. THE AMOUNT TO BE ALLOCATED TO
EACH LOCALITY WILL BE CERTIFIED BY THE COMMISSIONER IN ACCORDANCE WITH
SUBDIVISION (A) OF THIS SECTION AND, AFTER RESERVING AN AMOUNT FOR
REFUNDS AND THE REASONABLE COSTS OF THE COMMISSIONER IN ACCORDANCE WITH
SUBDIVISION (B) OF THIS SECTION, THE REMAINDER WILL BE NET COLLECTIONS
AND WILL BE DISTRIBUTED TO EACH LOCALITY IN ACCORDANCE WITH THE
PROVISIONS OF THIS PART APPLICABLE TO THE RESPECTIVE LOCALITY.
S 8. In accordance with section 1105-E of the tax law, as added by
section three of this act, the legislature intends that the tax on
direct-to-home satellite service be imposed at the same total rate as
similar services are taxed under article 28 and pursuant to the authori-
ty of article 29 of the tax law, and that, consistent with the
provisions of section 152 of title 47 of the United States code, the
state revenues derived from the tax on direct-to-home satellite service
be shared with each locality that imposes the taxes described in subdi-
vision (a) of section 1210 or 1211 of the tax law as provided in this
act. However, the legislature further intends that, if the state rate
set forth in such section 1105-E is invalidated or reduced by a court of
final, competent jurisdiction, revenues from the sales tax imposed on
direct-to-home satellite service must be preserved by imposing a uniform
state rate of sales tax on that service. Therefore, if a court of final,
competent jurisdiction adjudges the state sales tax rate set forth in
such section 1105-E to be invalid, the state rate imposed on direct-to-
home satellite service will be eight and three-quarters percent and that
rate will apply statewide. The taxes, interest and penalties collected
or received by the commissioner of taxation and finance from such state-
wide rate, after reserving an amount for refunds and the reasonable
costs of the commissioner will be allocated based on the respective
rates among the state and any county and city imposing general sales
taxes pursuant to the authority of subdivision (a) of section 1210 of
the tax law and any school district in which the taxes authorized by
section 1211 of the tax law are in effect, and if the taxes imposed by
S. 60--A 86 A. 160--A
section 1109 of the tax law are in effect where the service is deliv-
ered, will be deposited with the mass transit operating assistance fund
as provided in such section 1109. Moreover, the state rate provided for
in this section will, in that event, take effect on the first day of the
first month following the date the judgment of the court becomes final
and will apply to sales occurring and services rendered on or after that
date, in accordance with the applicable transitional provisions in
section 1106 of the tax law.
S 9. This act shall take effect on June 1, 2009, and shall apply to
sales occurring and services rendered on or after that date in accord-
ance with the applicable transitional provisions in sections 1106 and
1217 of the tax law.
PART R
Section 1. Subdivisions 1 and 19 of section 470 of the tax law, as
amended by section 1 of part MM1 of chapter 57 of the laws of 2008, are
amended to read as follows:
1. "Cigarette." (a) Any roll for smoking made wholly or in part of
tobacco or of any other substance wrapped in paper or in any other
substance not containing tobacco, and (b) any roll for smoking made
wholly or in part of tobacco wrapped in any substance containing tobacco
that, because of its appearance, the type of tobacco used in the filler,
or its packaging and labeling, is likely to be offered to, or purchased
by, consumers as a cigarette described in paragraph (a) of this subdivi-
sion. [However, a roll will not be considered to be a cigarette for
purposes of paragraph (b) of this subdivision if it is not treated as a
cigarette for federal excise tax purposes under the applicable federal
statute in effect on April first, two thousand eight.]
19. "Cigar." Any roll of tobacco wrapped in leaf tobacco or in any
substance containing tobacco (other than any roll of tobacco that is a
cigarette as defined in subdivision one of this section). [However, a
roll will not be considered to be a cigar for purposes of this subdivi-
sion if it is not treated as a cigar for federal excise tax purposes
under the applicable federal statute in effect on April first, two thou-
sand eight.]
S 2. Paragraph (a) of subdivision 1 of section 471-b of the tax law,
as amended by section 2 of part QQ1 of chapter 57 of the laws of 2008,
is amended and a new paragraph (c) is added to read as follows:
(a) Such tax on tobacco products other than snuff AND CIGARS shall be
at the rate of thirty-seven percent of the wholesale price, and is
intended to be imposed only once upon the sale of any tobacco products
other than snuff AND CIGARS.
(C) SUCH TAX ON CIGARS SHALL BE AT THE RATE OF FIFTY CENTS PER CIGAR.
S 3. Section 471-c of the tax law, as separately amended by section 3
of part QQ1 of chapter 57 and chapter 552 of the laws of 2008, is
amended to read as follows:
S 471-c. Use tax on tobacco products. (A) There is hereby imposed and
shall be paid a tax on all tobacco products used in the state by any
person, except that no such tax shall be imposed (1) if the tax provided
in section four hundred seventy-one-b of this article is paid, or (2) on
the use of tobacco products which are exempt from the tax imposed by
said section, or (3) on the use of two hundred fifty cigars or less, or
five pounds or less of tobacco other than roll-your-own tobacco, or
thirty-six ounces or less of roll-your-own tobacco brought into the
state on, or in the possession of, any person.
S. 60--A 87 A. 160--A
[(a)] (I) Such tax on tobacco products other than snuff AND CIGARS
shall be at the rate of thirty-seven percent of the wholesale price.
[(b)] (II) Such tax on snuff shall be at the rate of ninety-six cents
per ounce and a proportionate rate on any fractional parts of an ounce,
provided that cans or packages of snuff with a net weight of less than
one ounce shall be taxed at the equivalent rate of cans or packages
weighing one ounce. Such tax shall be computed based on the net weight
as listed by the manufacturer.
(III) SUCH TAX ON CIGARS SHALL BE AT THE RATE OF FIFTY CENTS PER
CIGAR.
(B) Within twenty-four hours after liability for the tax accrues, each
such person shall file with the commissioner a return in such form as
the commissioner may prescribe together with a remittance of the tax
shown to be due thereon. For purposes of this article, the word "use"
means the exercise of any right or power actual or constructive and
shall include but is not limited to the receipt, storage or any keeping
or retention for any length of time, but shall not include possession
for sale. All the other provisions of this article, if not inconsistent,
shall apply to the administration and enforcement of the tax imposed by
this section in the same manner as if the language of said provisions
had been incorporated in full into this section.
S 4. Paragraphs (e) and (f) of subdivision 2 of section 480 of the tax
law, as amended by chapter 744 of the laws of 1990, are amended and a
new paragraph (g) is added to read as follows:
(e) [Any] SUCH APPLICANT OR ANY controlling person [of such applicant]
has committed any of the acts specified in subdivision three of this
section within the preceding five years, [or]
(f) Such applicant or any controlling person has been finally deter-
mined to have violated any of the provisions of this article or article
twenty-A of this chapter, or any rule or regulation adopted pursuant to
this article or article twenty-A of this chapter[.], OR
(G) AFTER CAREFULLY EVALUATING THE CHARACTER, FITNESS, EXPERIENCE,
MATURITY AND FINANCIAL RESPONSIBILITY OF THE APPLICANT OR ANY CONTROL-
LING PERSON, THE COMMISSIONER DETERMINES THAT THE PUBLIC CONVENIENCE AND
ADVANTAGE WOULD NOT BE SERVED BY APPROVAL OF THE APPLICATION.
S 5. Subparagraphs (ii), (iii) and (iv) of paragraph (b) of subdivi-
sion 3 of section 480 of the tax law, subparagraphs (ii) and (iii) as
added by chapter 860 of the laws of 1987 and subparagraph (iv) as
amended by chapter 61 of the laws of 1989, are amended and two new
subparagraphs (v) and (vi) are added to read as follows:
(ii) Has been convicted in a court of competent jurisdiction, either
within or without the state, of a [felony] CRIME, bearing on the
licensee's duties and obligations under this chapter,
(iii) Has impersonated any person represented to be a wholesale dealer
under this article but not in fact licensed under this section, [or]
(iv) Has knowingly aided and abetted the sale of cigarettes or tobacco
products by a person which such licensee or controlling person knows (A)
has not been licensed by the commissioner [of taxation and finance] and
(B) is a wholesale dealer pursuant to the terms of subdivision eight of
section four hundred seventy of this [chapter.] ARTICLE,
(V) HAS BEEN CONVICTED IN A COURT OF COMPETENT JURISDICTION, EITHER
WITHIN OR WITHOUT THE STATE, OF A CRIME INVOLVING MORAL TURPITUDE, OR
(VI) HAS ENGAGED IN CONDUCT WHICH BEARS ON THE LICENSEE'S OR CONTROL-
LING PERSON'S CHARACTER, FITNESS, EXPERIENCE, MATURITY OR FINANCIAL
RESPONSIBILITY AND WOULD HAVE ALLOWED THE COMMISSIONER TO REFUSE TO
ISSUE A LICENSE TO SUCH LICENSEE.
S. 60--A 88 A. 160--A
S 6. Paragraphs (a) and (b) of subdivision 4 of section 480-a of the
tax law, as added by chapter 629 of the laws of 1996, are amended to
read as follows:
(a) If a retail dealer possesses or sells unstamped or unlawfully
stamped packages of cigarettes, or if a retail dealer is also licensed
as an agent pursuant to section four hundred seventy-two OF THIS ARTICLE
and it possesses unlawfully stamped packages of cigarettes or sells
unstamped or unlawfully stamped packages of cigarettes at retail, OR IF
A RETAIL DEALER POSSESSES OR SELLS TOBACCO PRODUCTS WITH RESPECT TO
WHICH THE TOBACCO PRODUCTS TAX HAS NOT BEEN PAID OR ASSUMED BY A
DISTRIBUTOR OR A TOBACCO PRODUCTS DEALER, (i) its registration shall be
suspended for a period of not more than six months, or (ii) for a second
such possession or sale within a period of five years, its registration
shall be suspended for a period of up to thirty-six months, or (iii) for
a third such possession or sale within a period of five years, its
registration may be revoked for a period of up to five years. A retail
dealer registration shall be suspended or revoked pursuant to this
subdivision immediately upon such dealer's receipt of written notice of
suspension or revocation from the commissioner. If a retail dealer sells
cigarettes OR TOBACCO PRODUCTS through more than one place of business
in this state, the retail dealer registration shall not be suspended or
revoked pursuant to this subdivision, but the certificate of registra-
tion issued to the place of business, cart, stand, truck or other
merchandising device where unstamped or unlawfully stamped cigarettes OR
TOBACCO PRODUCTS WITH RESPECT TO WHICH THE TOBACCO PRODUCTS TAX HAS NOT
BEEN PAID OR ASSUMED BY A DISTRIBUTOR OR A TOBACCO PRODUCTS DEALER were
found shall be suspended or cancelled for possession or sale of
unstamped or unlawfully stamped packages of cigarettes OR SUCH TOBACCO
PRODUCTS, as if such certificate of registration were a retail dealer
registration. A suspension or cancellation of a certificate of registra-
tion shall be treated as if it were a suspension or revocation of a
registration. If unstamped or unlawfully stamped cigarettes OR SUCH
TOBACCO PRODUCTS are found in a retail dealer's warehouse, the suspen-
sion or revocation of the retail dealer's registration pursuant to this
subdivision shall be applicable to each retail place of business in this
state through which such retail dealer sells cigarettes OR TOBACCO
PRODUCTS.
(b) A retail dealer who is notified of a suspension or revocation of
its registration pursuant to this subdivision shall have the right to
have the suspension or revocation reviewed by the commissioner or his OR
HER designee by contacting the department at a telephone number or an
address to be disclosed in the notice of suspension or revocation within
ten days of such dealer's receipt of such notification. The retail deal-
er may present written evidence or argument in support of its defense to
the suspension or revocation, or may appear at a scheduled conference
with the commissioner or his OR HER designee to present oral arguments
and written and oral evidence in support of such defense. The commis-
sioner or his OR HER designee is authorized to delay the effective date
of the suspension or revocation to enable the retail dealer to present
further evidence or arguments in connection with the suspension or revo-
cation. The commissioner or his OR HER designee shall cancel the suspen-
sion or revocation of registration if the commissioner or his OR HER
designee is not satisfied by a preponderance of the evidence that the
retail dealer possessed or sold unstamped or unlawfully stamped packages
of cigarettes OR TOBACCO PRODUCTS WITH RESPECT TO WHICH THE TOBACCO
S. 60--A 89 A. 160--A
PRODUCTS TAX HAD NOT BEEN PAID OR ASSUMED BY A DISTRIBUTOR OR A TOBACCO
PRODUCTS DEALER.
S 7. Paragraph (b) of subdivision 1 of section 481 of the tax law, as
amended by chapter 262 of the laws of 2000, subparagraph (i) and clause
(A) of subparagraph (ii) as amended by chapter 604 of the laws of 2008,
is amended and a new paragraph (e) is added to read as follows:
(b) (i) In addition to any other penalty imposed by this article, the
commissioner may (A) impose a penalty of not more than one hundred fifty
dollars for each two hundred cigarettes, or fraction thereof, in excess
of one thousand cigarettes in unstamped or unlawfully stamped packages
in the possession or under the control of any person or (B) impose a
penalty of not more than two hundred dollars for each ten unaffixed
false, altered or counterfeit cigarette tax stamps, imprints or
impressions, or fraction thereof, in the possession or under the control
of any person. In addition, the commissioner may impose a penalty of not
more than seventy-five dollars for each fifty cigars or one pound of
[tobacco] SNUFF, or fraction thereof, in excess of two hundred fifty
cigars or five pounds of [tobacco] SNUFF in the possession or under the
control of any person and a penalty of not more than one hundred fifty
dollars for each fifty cigars or pound of [tobacco] SNUFF, or fraction
thereof, in excess of five hundred cigars or ten pounds of [tobacco]
SNUFF in the possession or under the control of any person, with respect
to which the tobacco products tax has not been paid or assumed by a
distributor or tobacco products dealer; provided, however, that any such
penalty imposed shall not exceed seven thousand five hundred dollars in
the aggregate. The commissioner may impose a penalty of not more than
seventy-five dollars for each fifty cigars or one pound of [tobacco]
SNUFF, or fraction thereof, in excess of fifty cigars or one pound of
[tobacco] SNUFF in the possession or under the control of any tobacco
products dealer or distributor appointed by the commissioner, and a
penalty of not more than one hundred fifty dollars for each fifty cigars
or pound of [tobacco] SNUFF, or fraction thereof, in excess of two
hundred fifty cigars or five pounds of [tobacco] SNUFF in the possession
or under the control of any such dealer or distributor, with respect to
which the tobacco products tax has not been paid or assumed by a
distributor or a tobacco products dealer; provided, however, that any
such penalty imposed shall not exceed fifteen thousand dollars in the
aggregate.
(ii) The penalties imposed by this subparagraph may be imposed by the
commissioner in addition to any other penalty imposed by this article,
but in lieu of the penalties imposed by subparagraph (i) of this para-
graph:
(A) (I) (1) not less than thirty dollars but not more than two hundred
dollars for each two hundred cigarettes, or fraction thereof, in excess
of one thousand cigarettes but less than or equal to five thousand ciga-
rettes in unstamped or unlawfully stamped packages knowingly in the
possession or knowingly under the control of any person or (2) not less
than thirty dollars but not more than two hundred dollars for each ten
unaffixed false, altered or counterfeit cigarette tax stamps, imprints
or impressions, or fraction thereof, less than or equal to two hundred
fifty unaffixed false, altered or counterfeit cigarette tax stamps,
imprints or impressions, knowingly in the possession or [knowing] KNOW-
INGLY under the control of any person;
(II) (1) not less than seventy-five dollars but not more than two
hundred dollars for each two hundred cigarettes, or fraction thereof, in
excess of five thousand cigarettes but less than or equal to twenty
S. 60--A 90 A. 160--A
thousand cigarettes in unstamped or unlawfully stamped packages knowing-
ly in the possession or knowingly under the control of any person or (2)
not less than seventy-five dollars but not more than two hundred dollars
for each ten unaffixed false, altered or counterfeit cigarette tax
stamps, imprints or impressions, or fraction thereof, in excess of two
hundred fifty unaffixed false, altered or counterfeit cigarette tax
stamps, imprints or impressions but less than or equal to one thousand
unaffixed false, altered or counterfeit cigarette tax stamps, imprints
or impressions, knowingly in the possession or knowingly under the
control of any person; and
(III) (1) not less than one hundred dollars but not more than two
hundred dollars for each two hundred cigarettes, or fraction thereof, in
excess of twenty thousand cigarettes in unstamped or unlawfully stamped
packages, knowingly in the possession or knowingly under the control of
any person or (2) not less than one hundred dollars but not more than
two hundred dollars for each ten unaffixed false, altered or counterfeit
cigarette tax stamps, imprints or impressions, or fraction thereof, in
excess of one thousand unaffixed false, altered or counterfeit cigarette
tax stamps, imprints or impressions, knowingly in the possession or
knowingly under the control of any person.
(B)(I) not less than twenty-five dollars but not more than one hundred
dollars for each fifty cigars or one pound of [tobacco] SNUFF, or frac-
tion thereof, in excess of two hundred fifty cigars or five pounds of
[tobacco] SNUFF knowingly in the possession or knowingly under the
control of any person, with respect to which the tobacco products tax
has not been paid or assumed by a distributor or tobacco products deal-
er; and
(II) not less than fifty dollars but not more than two hundred dollars
for each fifty cigars or pound of [tobacco] SNUFF, or fraction thereof,
in excess of five hundred cigars or ten pounds of [tobacco] SNUFF know-
ingly in the possession or knowingly under the control of any person,
with respect to which the tobacco products tax has not been paid or
assumed by a distributor or tobacco products dealer; provided, however,
that any such penalty imposed under this clause shall not exceed ten
thousand dollars in the aggregate.
(C) (I) not less than twenty-five dollars but not more than one
hundred dollars for each fifty cigars or one pound of [tobacco] SNUFF,
or fraction thereof, in excess of fifty cigars or one pound of [tobacco]
SNUFF knowingly in the possession or knowingly under the control of any
person, with respect to which the tobacco products tax has not been paid
or assumed by a distributor or tobacco products dealer; and
(II) not less than fifty dollars but not more than two hundred dollars
for each fifty cigars or pound of [tobacco] SNUFF, or fraction thereof,
in excess of two hundred fifty cigars or five pounds of [tobacco] SNUFF
knowingly in the possession or knowingly under the control of any
person, with respect to which the tobacco products tax has not been paid
or assumed by a distributor or a tobacco products dealer; provided,
however, that any such penalty imposed under this clause shall not
exceed twenty thousand dollars in the aggregate.
(iii) IN ADDITION TO ANY OTHER PENALTY IMPOSED BY LAW, THE COMMISSION-
ER MAY IMPOSE A PENALTY OF TWO HUNDRED PERCENT OF THE AMOUNT OF THE TAX
FOR EACH POUND OF TOBACCO, OTHER THAN CIGARS AND SNUFF, IN THE
POSSESSION OR UNDER THE CONTROL OF ANY PERSON, WITH RESPECT TO WHICH THE
TOBACCO PRODUCTS TAX HAS NOT BEEN PAID OR ASSUMED BY A DISTRIBUTOR OR
TOBACCO PRODUCTS DEALER. PROVIDED, HOWEVER, THE PENALTY IMPOSED UNDER
S. 60--A 91 A. 160--A
THIS SUBPARAGRAPH SHALL ONLY APPLY IF THE AMOUNT OF TOBACCO, OTHER THAN
CIGARS AND SNUFF, EQUALS OR EXCEEDS FIVE POUNDS.
(IV) Any penalty provided for in this paragraph shall be determined as
provided in section four hundred seventy-eight of this [chapter]
ARTICLE, and may be reviewed only pursuant to such section. Such penalty
shall be collected in the same manner as the taxes imposed by this arti-
cle. The commissioner in [the commissioner's] HIS OR HER discretion, may
remit all or part of such penalty. Such penalty shall be paid to the
department and disposed of as hereinafter provided with respect to
moneys derived from the tax.
(E) IN ADDITION TO ANY OTHER PENALTIES THAT MAY BE IMPOSED BY LAW, ANY
OR ALL OF THE FOLLOWING PENALTIES MAY BE IMPOSED:
(I) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN UNDER THIS
ARTICLE ON OR BEFORE THE PRESCRIBED DATE MUST PAY A PENALTY OF FIFTEEN
HUNDRED DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF THREE THOUSAND
DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT THIS
FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT.
(II) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN WITHIN SIXTY
DAYS OF THE DATE PRESCRIBED FOR FILING MUST PAY A PENALTY OF TWO THOU-
SAND DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF FOUR THOUSAND
DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT THIS
FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT.
(III) ANY PERSON WHO FAILS TO FILE A COMPLETE INFORMATIONAL RETURN
MUST PAY A PENALTY OF FIFTEEN HUNDRED DOLLARS FOR THE FIRST VIOLATION
AND A PENALTY OF THREE THOUSAND DOLLARS FOR EACH SUBSEQUENT VIOLATION,
UNLESS IT CAN BE SHOWN THAT THIS FAILURE IS DUE TO REASONABLE CAUSE AND
NOT WILLFUL NEGLECT.
(IV) IN ADDITION TO ANY CRIMINAL PENALTY PROVIDED BY LAW, IF ANY
PERSON MAKES A STATEMENT ON AN INFORMATIONAL RETURN AND, AS OF THE TIME
OF THE STATEMENT, THERE WAS NO REASONABLE BASIS FOR SUCH STATEMENT, THAT
PERSON MUST PAY A PENALTY OF TWO THOUSAND DOLLARS FOR THE FIRST
VIOLATION AND A PENALTY OF FOUR THOUSAND DOLLARS FOR EACH SUBSEQUENT
VIOLATION.
S 8. Section 481 of the tax law is amended by adding a new subdivision
2-a to read as follows:
2-A. ANY OFFICER, DIRECTOR, SHAREHOLDER OR EMPLOYEE OF A CORPORATION
OR OF A DISSOLVED CORPORATION, ANY EMPLOYEE OF A PARTNERSHIP OR ANY
EMPLOYEE OF AN INDIVIDUAL PROPRIETORSHIP, WHO AS AN OFFICER, DIRECTOR,
SHAREHOLDER OR EMPLOYEE IS UNDER A DUTY TO ACT FOR SUCH CORPORATION,
PARTNERSHIP OR PROPRIETORSHIP IN COMPLYING WITH ANY REQUIREMENT OF THIS
ARTICLE, AND ANY PARTNER OF A PARTNERSHIP, THAT FAILS TO PAY THE TAXES
IMPOSED BY OR PURSUANT TO THIS ARTICLE, WILL, IN ADDITION TO OTHER
PENALTIES PROVIDED BY LAW, BE LIABLE FOR A PENALTY EQUAL TO THE TOTAL
AMOUNT OF THE TAX NOT PAID, PLUS PENALTIES AND INTEREST COMPUTED PURSU-
ANT TO THIS SECTION. IF THE COMMISSIONER DETERMINES THAT THIS FAILURE
WAS DUE TO REASONABLE CAUSE AND NOT DUE TO WILLFUL NEGLECT, IT MAY WAIVE
ALL OR PART OF THE PENALTY IMPOSED UNDER THIS SUBDIVISION. THAT PENALTY
WILL BE DETERMINED, ASSESSED, COLLECTED AND PAID IN THE SAME MANNER AS
THE TAXES IMPOSED BY THIS ARTICLE AND WILL BE DISPOSED OF AS HEREINAFTER
PROVIDED WITH RESPECT TO MONEYS DERIVED FROM THE TAX.
S 9. Subdivision 1 of section 11-1301 of the administrative code of
the city of New York, is amended by section 3 of part MM-1 of chapter 57
of the laws of 2008, is amended to read as follows:
1. "Cigarette." (a) Any roll for smoking made wholly or in part of
tobacco or any other substance wrapped in paper or in any other
substance not containing tobacco, and (b) any roll for smoking made
S. 60--A 92 A. 160--A
wholly or in part of tobacco wrapped in any substance containing tobacco
which, because of its appearance, the type of tobacco used in the
filler, or its packaging and labeling, is likely to be offered to, or
purchased by, consumers as a cigarette described in paragraph (a) of
this subdivision. [However, a roll will not be considered to be a ciga-
rette for purposes of paragraph (b) of this subdivision if it is not
treated as a cigarette for federal excise tax purposes under the appli-
cable federal statute in effect on April first, two thousand eight.]
S 10. Subdivision b of section 20-201 of the administrative code of
the city of New York, as amended by section 4 of part MM-1 of chapter 57
of the laws of 2008, is amended to read as follows:
b. "Cigarette" shall mean (1) any roll for smoking made wholly or in
part of tobacco or any other substance wrapped in paper or in any other
substance not containing tobacco, and (2) any roll for smoking made
wholly or in part of tobacco wrapped in any substance containing tobacco
that, because of its appearance, the type of tobacco used in the filler,
or its packaging and labeling, is likely to be offered to, or purchased
by, consumers as a cigarette described in paragraph one of this subdivi-
sion. [However, a roll will not be considered to be a cigarette for
purposes of paragraph two of this subdivision if it is not treated as a
cigarette for federal excise tax purposes under the applicable federal
statute in effect on April first, two thousand eight.]
S 11. Subdivision 2 of section 1 of chapter 235 of the laws of 1952
relating to enabling any city of the state having a population of one
million or more to adopt, and amend local laws, imposing certain speci-
fied types of taxes on cigarettes which the legislature has or would
have power and authority to impose, to provide for the review of such
taxes, and to limit the application of such local laws, as amended by
section 5 of part MM-1 of chapter 57 of the laws of 2008, is amended to
read as follows:
(2) As used herein, the term "cigarette" shall mean and include (a)
any roll for smoking made wholly or in part of tobacco or of any other
substance wrapped in paper or in any other substance not containing
tobacco, and (b) any roll for smoking made wholly or in part of tobacco
wrapped in any substance containing tobacco that, because of its appear-
ance, the type of tobacco used in the filler, or its packaging and
labeling, is likely to be offered to, or purchased by, consumers as a
cigarette described in paragraph (a) of this subdivision. [However, a
roll will not be considered to be a cigarette for purposes of paragraph
(b) of this subdivision if it is not treated as a cigarette for federal
excise tax purposes under the applicable federal statute in effect on
April first, two thousand eight.] The term "cigar" does not include any
cigarette as defined in this subdivision.
S 12. This act shall take effect immediately; provided however that
section one of this act shall take effect April 1, 2009; provided,
further, that any tobacco product manufacturer required to file a
certification between April 16 and April 30, 2008, under subdivision 1
of section 480-b of the tax law, with respect to cigarettes that are
first being defined as cigarettes as a result of the amendments made by
this act, must file that certification no later than 60 days after the
date this act becomes a law; and provided further that sections two,
three and four of this act shall take effect April 1, 2009, and shall
apply to cigars that first become subject to taxation under article 20
of the tax law on or after that date; and provided further that sections
five, six, seven and eight of this act shall take effect on the first
S. 60--A 93 A. 160--A
day of the first month next occurring 90 days after this act becomes a
law and shall apply to sales made on or after such date.
PART S
Section 1. Paragraph 3 of subdivision (b) of section 1101 of the tax
law, as amended by section 21 of part Y of chapter 63 of the laws of
2000, is amended to read as follows:
(3) Receipt. The amount of the sale price of any property and the
charge for any service taxable under this article, including gas and gas
service and electricity and electric service of whatever nature, valued
in money, whether received in money or otherwise AND WHETHER RECEIVED
FROM THE PURCHASER OR A THIRD PARTY, including any amount for which
credit is allowed by the vendor to the purchaser, without any deduction
for expenses [or], early payment discounts [and] OR ANY DISCOUNT GIVEN
FOR A COUPON. RECEIPT also [including] INCLUDES any charges by the
vendor to the purchaser for shipping or delivery, and, with respect to
gas and gas service and electricity and electric service, any charges by
the vendor for transportation, transmission or distribution, regardless
of whether such charges are separately stated in the written contract,
if any, or on the bill rendered to such purchaser and regardless of
whether such shipping or delivery or transportation, transmission, or
distribution is provided by such vendor or a third party, but [exclud-
ing] EXCLUDES any credit for tangible personal property accepted in part
payment and intended for resale. For special rules governing computation
of receipts, see section eleven hundred eleven OF THIS ARTICLE.
S 2. Subdivision (b) of section 1101 of the tax law is amended by
adding a new paragraph 33 to read as follows:
(33) COUPON. (A) AN INSTRUMENT PROVIDED BY A VENDOR OR A THIRD PARTY,
THAT IS PRESENTED AND SURRENDERED BY A PURCHASER TO THE VENDOR IN ORDER
TO RECEIVE A REDUCTION IN THE SALE PRICE, WHETHER OR NOT ANY PORTION OF
THE PRICE REDUCTION IS PAID TO THE VENDOR BY A THIRD PARTY.
(B) FOR PURPOSES OF THE TAX IMPOSED BY SECTION ELEVEN HUNDRED TEN AND
FOR PURPOSES OF SECTION ELEVEN HUNDRED ELEVEN OF THIS ARTICLE, THE TERM
"CONSIDERATION" INCLUDES ANY DISCOUNT GIVEN FOR A COUPON.
S 3. This act shall take effect on June 1, 2009 and shall apply to
sales or uses occurring on or after that date in accordance with the
applicable transitional provisions in sections 1106 and 1217 of the tax
law.
PART T
Section 1. The closing paragraph of subdivision 1 of section 98-a of
the state finance law, as amended by section 13 of part Y of chapter 61
of the laws of 2005, is amended to read as follows:
Provided, however, that income received from the investment of moneys
of the local assistance account, the state purposes account and the
capital projects fund may be credited in whole or in part to one or more
of such funds to the extent necessary to reimburse first instance appro-
priations for interest on temporary obligations issued on behalf of the
fund or funds to be credited. Notwithstanding any other provision of
this section or of any other general or special law, all moneys avail-
able and retained on deposit for the payment of lottery prizes may be
invested OR CAUSED TO BE INVESTED, BY THE COMPTROLLER, OR BY THE DIVI-
SION OF THE LOTTERY IF THE COMPTROLLER HAS AUTHORIZED THE DIVISION OF
THE LOTTERY TO DIRECTLY INVEST SUCH FUNDS, in obligations [by the comp-
S. 60--A 94 A. 160--A
troller] as herein provided[, except that] OR IN THE SAME MANNER AND IN
SUCH SECURITIES OR OTHER INVESTMENTS AS THE TRUSTEE OR TRUSTEES OF A
PUBLIC PENSION FUND ARE AUTHORIZED TO INVEST PURSUANT TO ARTICLE FOUR-A
OF THE RETIREMENT AND SOCIAL SECURITY LAW, AND PROVIDED FURTHER THAT
such obligations need not mature or be redeemable at the option of the
holder within seven years of the date of such investment. Income
received from such investments may be used for the payment of prizes
awarded and made payable in more than one payment, including prizes
awarded and made payable throughout the lifetime of the lottery prize
winner.
S 2. This act shall take effect immediately.
PART U
Section 1. Paragraph 30 of subdivision (a) of section 1115 of the tax
law, as amended by section 84 of part A of chapter 56 of the laws of
1998, is amended to read as follows:
(30) [Clothing] DURING THE SEVEN-DAY PERIODS EACH YEAR BEGINNING THE
MONDAY IMMEDIATELY PRECEDING THE FIRST SUNDAY OF FEBRUARY AND ENDING
SUCH SUNDAY, AND BEGINNING AUGUST TWENTY-FIFTH AND ENDING AUGUST THIR-
TY-FIRST, CLOTHING and footwear for which the receipt or consideration
given or contracted to be given is less than [one] FIVE hundred [ten]
dollars per article of clothing, per pair of shoes or other articles of
footwear or per item used or consumed to make or repair such clothing
and which becomes a physical component part of such clothing.
S 2. Subdivision (g) of section 1109 of the tax law is amended by
adding a new paragraph 9 to read as follows:
(9) NOTWITHSTANDING THAT THE SALES AND COMPENSATING USE TAXES IMPOSED
BY A CITY OF ONE MILLION OR MORE LOCATED IN THE METROPOLITAN COMMUTER
TRANSPORTATION DISTRICT EXEMPT CLOTHING AND FOOTWEAR PURSUANT TO THE
AUTHORITY OF CLAUSE (VII) OF PARAGRAPH FOUR OF SUBDIVISION (A) OF
SECTION TWELVE HUNDRED TEN OF THIS ARTICLE, DURING THE TWO SEVEN-DAY
PERIODS DURING WHICH CLOTHING AND FOOTWEAR ARE EXEMPT FROM THE TAXES
IMPOSED BY THIS ARTICLE, SUCH CITY SHALL, FOR PURPOSES OF THIS SUBDIVI-
SION, BE DEEMED TO HAVE EXEMPTED SUCH CLOTHING AND FOOTWEAR PURSUANT TO
THE AUTHORITY OF PARAGRAPH ONE OF SUBDIVISION (A) OF SECTION TWELVE
HUNDRED TEN OF THIS CHAPTER AND SUCH CITY AND THE STATE SHALL BE SUBJECT
TO THE REIMBURSEMENT AND OTHER PROVISIONS OF THIS SUBDIVISION.
S 3. Paragraph 1 of subdivision (a) of section 1210 of the tax law, as
amended by chapter 306 of the laws of 2005, subparagraph (i) of para-
graph 1 as amended by section 4 of part SS1 of chapter 57 of the laws of
2008 and subparagraph (ii) of paragraph 1 as amended by chapter 144 of
the laws of 2006, is amended to read as follows:
(1) [(i)] 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 arti-
cle, 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 authorized 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
S. 60--A 95 A. 160--A
rents, subject to state tax under sections eleven hundred five and elev-
en 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
authorized 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) of section eleven hundred nineteen of this chapter.
(II) Any local law, ordinance or resolution enacted by any city, coun-
ty or school district, imposing the taxes authorized by this subdivi-
sion, shall omit the residential solar energy systems equipment
exemption provided for in subdivision (ee), the clothing and footwear
exemption provided for in paragraph thirty of subdivision (a) and the
qualified empire zone enterprise exemptions provided for in subdivision
(z) 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 exemption or such clothing and footwear
exemption or such qualified empire zone enterprise exemptions[; provided
that if such a city having a population of one million or more in which
the taxes imposed by section eleven hundred seven of this chapter are in
effect enacts the resolution described in subdivision (k) of this
section or repeals such resolution or enacts the resolution described in
subdivision (l) of this section or repeals such resolution or enacts the
resolution described in subdivision (n) of this section or repeals such
resolution, such resolution or repeal shall also be deemed to amend any
local law, ordinance or resolution enacted by such a city imposing such
taxes pursuant to the authority of this subdivision, whether or not such
taxes are suspended at the time such city enacts its resolution pursuant
to subdivision (k), (l) or (n) of this section or at the time of any
such repeal; provided, further, that any such local law, ordinance or
resolution and section eleven hundred seven of this chapter, as deemed
to be amended in the event a city of one million or more enacts a resol-
ution pursuant to the authority of subdivision (k), (l) or (n) of this
section, shall be further amended, as provided in section twelve hundred
eighteen of this subpart, so that the residential solar energy systems
equipment exemption or the clothing and footwear exemption or the quali-
fied empire zone enterprise exemptions in any such local law, ordinance
or resolution or in such section eleven hundred seven are the same, as
the case may be, as the residential solar energy systems equipment
exemption provided for in subdivision (ee), the clothing and footwear
exemption in paragraph thirty of subdivision (a) or the qualified empire
zone enterprise exemptions in subdivision (z) of section eleven hundred
fifteen of this chapter.
(ii) Notwithstanding any other provision of the law to the contrary,
any county, imposing the taxes authorized by this subdivision, having a
population of not less than one hundred thirty-nine thousand and not
more than one hundred forty thousand, determined in accordance with the
two thousand decennial federal census, may by local law, ordinance or
S. 60--A 96 A. 160--A
resolution elect to exempt from such local sales and compensating use
taxes clothing and footwear, as defined in paragraph fifteen of subdivi-
sion (b) of section eleven hundred one of this chapter, for which the
receipt or consideration given or contracted to be given is less than
one hundred ten dollars per article of clothing, per pair of shoes or
other articles of footwear or per item used or consumed to make or
repair such clothing and which becomes a physical component part of such
clothing. Every such county shall comply with the provisions of subdivi-
sions (d) and (e) of this section, including such provisions applicable
to providing or repealing the exemption described in paragraph thirty of
subdivision (a) of section eleven hundred fifteen of this chapter.]
S 4. Subdivision (k) of section 1210 of the tax law is REPEALED.
S 5. Notwithstanding any provision of state or local law, ordinance or
resolution to the contrary: (a) Every local law, ordinance or resolution
or part of it providing for an exemption of clothing and footwear
described in paragraph 30 of subdivision (a) of section 1115 of the tax
law elected by a county or city (other than a city of one million or
more) pursuant to the authority of article 29 of the tax law that is in
effect on the day before this act shall have become a law or was elected
prior to such date to take effect at a later date is REPEALED.
(b) A county or city (other than a city of one million or more) that
imposes sales and compensating use taxes pursuant to the authority of
paragraph 1 of subdivision (a) of section 1210 of the tax law, acting
through its local legislative body, is authorized to adopt a resolution
to take effect August 1, 2009, to elect the exemption for clothing and
footwear described in paragraph 30 of subdivision (a) of section 1115 of
the tax law, as amended by section one of this act. For the resolution
to be effective, the county or city must: (i) adopt the resolution in
exactly the form prepared by the commissioner of taxation and finance,
on or before July 1, 2009; and (ii) mail a certified copy of it by that
date to the commissioner of taxation and finance otherwise in accordance
with the provisions of subdivision (d) of section 1210 of the tax law;
and (iii) the county or city must also comply with the provisions of
subdivision (e) of such section 1210. Such resolution shall, if properly
adopted pursuant to this section, be deemed to amend the county's or
city's local law, ordinance or resolution imposing its sales and use
taxes to provide this exemption.
S 6. This act shall take effect June 1, 2009, and shall apply in
accordance with applicable transitional provisions in sections 1106 and
1217 of the tax law, provided that a county or city that imposes sales
and compensating use taxes pursuant to the authority of subdivision (a)
of section 1210 of the tax law (other than a city of one million or
more) shall be authorized to adopt a resolution described in section
five of this act on or after the date this act becomes a law.
PART V
Section 1. Subdivision (c) of section 1105 of the tax law is amended
by adding two new paragraphs 10 and 11 to read as follows:
(10) BEAUTY, BARBERING, HAIR RESTORING, MANICURING, PEDICURING, ELEC-
TROLYSIS, MASSAGE SERVICES AND SIMILAR SERVICES, AND EVERY SERVICE SOLD
BY WEIGHT CONTROL SALONS, HEALTH SALONS, GYMNASIUMS, TURKISH AND SAUNA
BATH AND SIMILAR ESTABLISHMENTS AND EVERY CHARGE FOR THE USE OF THOSE
FACILITIES, WHETHER OR NOT ANY TANGIBLE PERSONAL PROPERTY IS TRANSFERRED
IN CONJUNCTION THEREWITH; BUT EXCLUDING SERVICES RENDERED BY A PHYSI-
CIAN, OSTEOPATH, DENTIST, NURSE, PHYSIOTHERAPIST, CHIROPRACTOR, PODIA-
S. 60--A 97 A. 160--A
TRIST, OPTOMETRIST, OPHTHALMIC DISPENSER OR A PERSON PERFORMING SIMILAR
SERVICES LICENSED UNDER TITLE EIGHT OF THE EDUCATION LAW, AS AMENDED,
AND EXCLUDING THOSE SERVICES WHEN PERFORMED ON PETS AND OTHER ANIMALS. A
SALE OF TANGIBLE PERSONAL PROPERTY TO A PERSON FOR USE BY THE PERSON IN
PERFORMING A SERVICE SUBJECT TO THE TAX IMPOSED BY THIS PARAGRAPH IS NOT
A PURCHASE FOR RESALE.
(11) CREDIT RATING AND CREDIT REPORTING SERVICES, INCLUDING, BUT NOT
LIMITED TO, THOSE SERVICES PROVIDED BY MERCANTILE AND CONSUMER CREDIT
RATING OR REPORTING BUREAUS OR AGENCIES AND CREDIT ADJUSTMENT OR
COLLECTION BUREAUS OR AGENCIES, WHETHER RENDERED IN WRITTEN OR ORAL FORM
OR IN ANY OTHER MANNER, EXCEPT TO THE EXTENT OTHERWISE TAXABLE UNDER
OTHER PROVISIONS OF THIS SECTION. A SALE OF TANGIBLE PERSONAL PROPERTY
TO A PERSON FOR USE BY THE PERSON IN PERFORMING A SERVICE SUBJECT TO THE
TAX IMPOSED BY THIS PARAGRAPH IS NOT A PURCHASE FOR RESALE. HOWEVER, A
REFUND OR CREDIT EQUAL TO THE AMOUNT OF THE SALES OR COMPENSATING USE
TAX IMPOSED BY SUBDIVISION (A) OF THIS SECTION OR SECTION ELEVEN HUNDRED
TEN OF THIS PART AND PAID ON THE SALE OR USE OF TANGIBLE PERSONAL PROP-
ERTY WHICH IS LATER USED BY SUCH PURCHASER IN PERFORMING A SERVICE
SUBJECT TO TAX UNDER THIS PARAGRAPH WILL BE ALLOWED THAT PURCHASER
AGAINST THE TAX IMPOSED BY THIS PARAGRAPH AND COLLECTED BY THAT PERSON
ON THE SALE OF THAT SERVICE IF THAT PROPERTY HAS BECOME A PHYSICAL
COMPONENT PART OF THE PROPERTY UPON WHICH THE SERVICE IS PERFORMED OR
HAS BEEN TRANSFERRED TO THE PURCHASER OF THE SERVICE IN CONJUNCTION WITH
THE PERFORMANCE OF THE SERVICE SUBJECT TO TAX, IN THE MANNER PRESCRIBED
BY SUBDIVISION (C) OF SECTION ELEVEN HUNDRED NINETEEN OF THIS ARTICLE.
S 2. The closing paragraph of subdivision (c) of section 1105 of the
tax law, as amended by chapter 190 of the laws of 1990, is amended to
read as follows:
Wages, salaries and other compensation paid by an employer to an
employee for performing as an employee the services described in [para-
graphs (1) through (9) of] this subdivision [(c)] are not receipts
subject to the taxes imposed [under such] BY THIS subdivision.
S 3. Section 1106 of the tax law is amended by adding a new subdivi-
sion (k) to read as follows:
(K) THE TAXES IMPOSED BY PARAGRAPHS TEN AND ELEVEN OF SUBDIVISION (C)
OF SECTION ELEVEN HUNDRED FIVE OF THIS PART MUST BE PAID WITH RESPECT TO
RECEIPTS FROM ALL SALES OF SERVICES ON OR AFTER THE EFFECTIVE DATE OF
SUCH TAXES ALTHOUGH RENDERED OR AGREED TO BE RENDERED UNDER A PRIOR
CONTRACT. WHERE A SERVICE IS SOLD ON A MONTHLY, QUARTERLY, YEARLY OR
OTHER TERM BASIS, THE CHARGE FOR THE SERVICE WILL BE SUBJECT TO THE TAX
IMPOSED BY THOSE PARAGRAPHS TO THE EXTENT THAT THE CHARGE IS APPLICABLE
TO ANY PERIOD ON OR AFTER THE DATE THE TAX BECOMES EFFECTIVE, AND THE
CHARGE SHALL BE APPORTIONED ON THE BASIS OF THE RATIO OF THE NUMBER OF
DAYS FALLING WITHIN THE PERIOD TO THE TOTAL NUMBER OF DAYS IN THE FULL
TERM OR PERIOD.
S 4. Subdivision (a) of section 1110 of the tax law, as amended by
section 28 of part Y of chapter 63 of the laws of 2000, is amended to
read as follows:
(a) Except to the extent that property or services have already been
or will be subject to the sales tax under this article, there is hereby
imposed on every person a use tax for the use within this state on and
after June first, nineteen hundred seventy-one except as otherwise
exempted under this article, (A) of any tangible personal property
purchased at retail, (B) of any tangible personal property (other than
computer software used by the author or other creator) manufactured,
processed or assembled by the user, (i) if items of the same kind of
S. 60--A 98 A. 160--A
tangible personal property are offered for sale by him in the regular
course of business or (ii) if items are used as such or incorporated
into a structure, building or real property by a contractor, subcontrac-
tor or repairman in erecting structures or buildings, or building on, or
otherwise adding to, altering, improving, maintaining, servicing or
repairing real property, property or land, as the terms real property,
property or land are defined in the real property tax law, if items of
the same kind are not offered for sale as such by such contractor,
subcontractor or repairman or other user in the regular course of busi-
ness, (C) of any of the services described in paragraphs (1), (7) [and],
(8) AND (11) of subdivision (c) of section eleven hundred five of this
part, (D) of any tangible personal property, however acquired, where not
acquired for purposes of resale, upon which any of the services
described in paragraphs (2), (3) and (7) of subdivision (c) of section
eleven hundred five of this part have been performed, (E) of any tele-
phone answering service described in subdivision (b) of section eleven
hundred five of this part, (F) of any computer software written or
otherwise created by the user if the user offers software of a similar
kind for sale as such or as a component part of other property in the
regular course of business, (G) of any prepaid telephone calling
service, and (H) of any gas or electricity described in subdivision (b)
of section eleven hundred five of this part.
S 5. Subdivision (d) of section 1115 of the tax law, as amended by
chapter 190 of the laws of 1990, is amended to read as follows:
(d) Services otherwise taxable under paragraph (1), (2), (3), (7)
[or], (8) OR (11) of subdivision (c) of section eleven hundred five OF
THIS ARTICLE shall be exempt from tax under this article if the tangible
property upon which the services were performed is delivered to the
purchaser outside this state for use outside this state.
S 6. Subdivision (z) of section 1115 of the tax law is amended by
adding a new paragraph 4 to read as follows:
(4) THE EXEMPTIONS PROVIDED IN THIS SUBDIVISION SHALL NOT APPLY TO THE
TAX IMPOSED BY PARAGRAPH TEN OF SUBDIVISION (C) OF SECTION ELEVEN
HUNDRED FIVE OF THIS ARTICLE OR TO SIMILAR TAXES IMPOSED PURSUANT TO THE
AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER.
S 7. Subdivision (b) of section 1116 of the tax law is amended by
adding a new paragraph 8 to read as follows:
(8) SALES OF SERVICES DESCRIBED IN PARAGRAPH TEN OR ELEVEN OF SUBDIVI-
SION (C) OF SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE, UNLESS THE
PURCHASER IS AN EXEMPT ORGANIZATION.
S 8. Subdivision 4 of section 1131 of the tax law, as amended by
section 34 of part Y of chapter 63 of the laws of 2000, is amended to
read as follows:
(4) "Property and services the use of which is subject to tax" shall
include: (a) all property sold to a person within the state, whether or
not the sale is made within the state, the use of which property is
subject to tax under section eleven hundred ten of this article or will
become subject to tax when such property is received by or comes into
the possession or control of such person within the state; (b) all
information services, protective and detective services [and], interior
decorating and design services, AND CREDIT RATING AND REPORTING SERVICES
as such services are described in subdivision (c) of section eleven
hundred five of this article, rendered to a person within the state,
whether or not such services are rendered from or at a location within
the state; (c) all services rendered to a person within the state,
whether or not such services are performed within the state, upon tangi-
S. 60--A 99 A. 160--A
ble personal property the use of which is subject to tax under section
eleven hundred ten of this article or will become subject to tax when
such property is received by or comes into possession or control of such
person within the state; (d) all property sold by a person making sales
described in clause (F) of subparagraph (i) of paragraph eight of subdi-
vision (b) of section eleven hundred one of this article to a person
described in such clause (F) who purchases such property at retail,
whether or not the sale is made within the state; (e) all telephone
answering service rendered to a person within the state, whether or not
such services are performed within the state, the use of which is
subject to tax under section eleven hundred ten of this article or will
become subject to tax when such service is received by or comes into
possession or control of such person within the state; (f) all prepaid
telephone calling services sold to a person within the state, whether or
not the sale is made within the state, the use of which services are
subject to tax under section eleven hundred ten of this article or will
become subject to tax when such services are received by or come into
the possession or control of such person within the state, and whether
or not such services are rendered from or at a location within the
state; and (g) all gas or electricity sold to a person within the state,
whether or not the sale is made within the state, the use of which is
subject to tax under section eleven hundred ten of this article or will
become subject to tax when it is received by or comes into the
possession or control of such person within the state, and whether or
not it is rendered from or at a location within the state.
S 9. Paragraphs 2 and 3 of subdivision (a) of section 1212-A of the
tax law, paragraph 2 as amended by chapter 190 of the laws of 1990 and
paragraph 3 as amended by chapter 525 of the laws of 2008, are amended
to read as follows:
(2) [a tax, at the same uniform rate, but at a rate not to exceed four
per centum, in multiples of one-half of one per centum, on the receipts
from every sale of the following services: beauty, barbering, hair
restoring, manicuring, pedicuring, electrolysis, massage services and
similar services, and every sale of services by weight control salons,
health salons, gymnasiums, turkish and sauna bath and similar establish-
ments and every charge for the use of such facilities, whether or not
any tangible personal property is transferred in conjunction therewith;
but excluding services rendered by a physician, osteopath, dentist,
nurse, physiotherapist, chiropractor, podiatrist, optometrist, ophthalm-
ic dispenser or a person performing similar services licensed under
title VIII of the education law, as amended, and excluding such services
when performed on pets and other animals.
(3) for a period beginning no earlier than January first, nineteen
hundred ninety and ending December thirty-first, two thousand eleven,] a
tax, at the same uniform rate, but at a rate not to exceed four per
centum, in multiples of one-half of one per centum, on the receipts from
every sale of any or all of the following services in whole or in part:
[credit rating, credit reporting,] credit adjustment and collection
services, including, but not limited to, those services provided by
mercantile and consumer credit rating or reporting bureaus or agencies
and credit adjustment or collection bureaus or agencies, whether
rendered in written or oral form or in any other manner, except to the
extent otherwise taxable under article twenty-eight of this chapter;
notwithstanding the foregoing, collection services shall not include
those services performed by a law office or a law and collection office,
the maintenance or conduct of which constitutes the practice of law, if
S. 60--A 100 A. 160--A
the services are performed by an attorney at law who has been duly
licensed and admitted to practice law in this state. The local law
imposing the taxes authorized by this paragraph may provide for exclu-
sions and exemptions in addition to those provided for in such para-
graph.
S 10. Paragraphs 1 and 2 of subdivision (b) of section 1212-A of the
tax law, as amended by chapter 190 of the laws of 1990, are amended to
read as follows:
(1) All provisions set forth in article twenty-eight of this chapter
applicable to the taxes imposed under section eleven hundred five OF
THIS CHAPTER, including the definition and exemption provisions of such
article, shall apply in respect to a tax imposed under the authority of
subdivision (a) of this section, except as to rate and except as other-
wise provided herein. A sale of tangible personal property to a person
for use by [him] SUCH PERSON in performing a service subject to the tax
imposed under the authority of paragraph two [or three] of subdivision
(a) of this section shall not be deemed a purchase for resale for
purposes of the taxes imposed by article twenty-eight OF THIS CHAPTER or
pursuant to the authority of this article.
(2) However, with respect to a tax imposed under the authority of
paragraph [three] TWO of subdivision (a) of this section a refund or
credit equal to the amount of the sale or compensating use tax imposed
by section eleven hundred seven of this chapter and paid on the sale or
use of tangible personal property which is later used by such purchaser
in performing a service subject to tax under such paragraph shall be
allowed such purchaser against the tax imposed pursuant to such para-
graph and collected by such person on the sale of such service if such
property has become a physical component part of the property upon which
the service is performed or has been transferred to the purchaser of the
service in conjunction with the performance of the service subject to
tax.
S 11. Section 11-2002 of the administrative code of the city of New
York is REPEALED.
S 12. Subchapter 3 of chapter 20 of title 11 of the administrative
code of the city of New York is REPEALED.
S 13. This act shall take effect June 1, 2009.
PART W
Section 1. Subdivision b of section 1612 of the tax law, as amended by
chapter 140 of the laws of 2008, clauses (D) and (F) of subparagraph
(ii) and subparagraph (iii) of paragraph 1 and paragraph 2 as separately
amended by chapter 286 of the laws of 2008 and clause (G) of subpara-
graph (ii) of paragraph 1 as added and clause (H) of subparagraph (ii)
of paragraph 1 as amended by chapter 286 of the laws of 2008, is amended
to read as follows:
b. 1. Notwithstanding section one hundred twenty-one of the state
finance law, on or before the twentieth day of each month, the division
shall pay into the state treasury, to the credit of the state lottery
fund created by section ninety-two-c of the state finance law, not less
than forty-five percent of the total amount for which tickets have been
sold for games defined in paragraph four of subdivision a of this
section during the preceding month, not less than thirty-five percent of
the total amount for which tickets have been sold for games defined in
paragraph three of subdivision a of this section during the preceding
month, not less than twenty percent of the total amount for which tick-
S. 60--A 101 A. 160--A
ets have been sold for games defined in paragraph two of subdivision a
of this section during the preceding month, provided however that for
games with a prize payout of seventy-five percent of the total amount
for which tickets have been sold, the division shall pay not less than
ten percent of sales into the state treasury and not less than twenty-
five percent of the total amount for which tickets have been sold for
games defined in paragraph one of subdivision a of this section during
the preceding month; and the balance of the total revenue after payout
for prizes for games known as "video lottery gaming," (i) less ten
percent of the total revenue wagered after payout for prizes to be
retained by the division for operation, administration, and procurement
purposes; (ii) less a vendor's fee the amount of which is to be paid for
serving as a lottery agent to the track operator of a vendor track:
(A) having fewer than one thousand one hundred video gaming machines,
at a rate of thirty-six percent for the first fifty million dollars
annually, twenty-nine percent for the next hundred million dollars annu-
ally, and twenty-six percent thereafter of the total revenue wagered at
the vendor track after payout for prizes pursuant to this chapter;
(B) having one thousand one hundred or more video gaming machines, at
a rate of thirty-two percent of the total revenue wagered at the vendor
track after payout for prizes pursuant to this chapter, except for such
facility located in the county of Westchester, in which case the rate
shall be thirty-four percent of the total revenue wagered at the vendor
track after payout for prizes pursuant to this chapter, for a period of
twenty-four months effective beginning April first, two thousand eight;
provided, however, that in the event that the vendor track located in
Westchester county completes a successful restructuring prior to March
thirty-first, two thousand ten, the vendor fee will be reduced to thir-
ty-two percent ninety days following the completion of the successful
restructuring. A successful restructuring is defined as a restructuring
of the existing debt obligations of such vendor track located in West-
chester county that meets the following two conditions:
(i) it requires no more than twenty million dollars of additional
equity invested in such track; and
(ii) results in average net interest costs of less than nine percent.
Notwithstanding the foregoing, the vendor fee at such track will
become thirty-one percent effective April first, two thousand ten and
remain at that level for a period equal to two times the period of time
(measured in days) that the vendor fee was thirty-four percent or until
March thirty-first, two thousand twelve, whichever is later. Notwith-
standing the foregoing, not later than April first, two thousand twelve,
the vendor fee shall become thirty-two percent and remain at that level
thereafter; and except for Aqueduct racetrack, in which case the vendor
fee shall be thirty-eight percent of the total revenue wagered at the
vendor track after payout for prizes pursuant to this chapter;
(C) notwithstanding clauses (A) and (B) of this subparagraph, when the
vendor track is located in an area with a population of less than one
million within the forty mile radius around such track, at a rate of
forty percent for the first fifty million dollars annually, twenty-nine
percent for the next hundred million dollars annually, and twenty-six
percent thereafter of the total revenue wagered at the vendor track
after payout for prizes pursuant to this chapter;
(D) notwithstanding clauses (A), (B) and (C) of this subparagraph,
when the vendor track is located within fifteen miles of a Native Ameri-
can class III gaming facility [or, for a period of five years effective
beginning April first, two thousand eight when the vendor track is
S. 60--A 102 A. 160--A
located within Sullivan county and within sixty miles from any gaming
facility in a contiguous state,] at a rate of forty-two percent of the
total revenue wagered at the vendor track after payout for prizes pursu-
ant to this chapter [unless such vendor track relocates outside the
specified geographic area sooner, in which case such rate shall be as
for all other tracks in the applicable clause of this subparagraph];
[(D) notwithstanding clauses (A), (B) and (C) of this subparagraph,
when the vendor track is within fifteen miles of a Native American
gaming facility, at a rate of forty-two percent of the total revenue
wagered at the vendor track after payout for prizes pursuant to this
chapter;]
(E) notwithstanding clauses (A), (B), (C) and (D) of this subpara-
graph, when a Native American class III gaming facility is established,
after the effective date of this subparagraph, within fifteen miles of
the vendor track, at a rate of forty-two percent of the total revenue
wagered after payout for prizes pursuant to this chapter;
[(F) notwithstanding clauses (A), (B), (C), (D) and (E) of this
subparagraph, the track operator of a vendor track shall be eligible for
a vendor's capital award of up to four percent of the total revenue
wagered at the vendor track after payout for prizes pursuant to this
chapter, which shall be used exclusively for capital project investments
to improve the facilities of the vendor track which promote or encourage
increased attendance at the video lottery gaming facility including, but
not limited to hotels, other lodging facilities, entertainment facili-
ties, retail facilities, dining facilities, events arenas, parking
garages and other improvements that enhance facility amenities; provided
that such capital investments shall be approved by the division, in
consultation with the state racing and wagering board, and that such
vendor track demonstrates that such capital expenditures will increase
patronage at such vendor track's facilities and increase the amount of
revenue generated to support state education programs. The annual amount
of such vendor's capital awards that a vendor track shall be eligible to
receive shall be limited to two million five hundred thousand dollars,
except for Aqueduct racetrack, for which there shall be no vendor's
capital awards. Except for tracks having less than one thousand one
hundred video gaming machines, each track operator shall be required to
co-invest an amount of capital expenditure equal to its cumulative
vendor's capital awards. For all tracks, except for Aqueduct racetrack,
the amount of any vendor's capital award that is not used during any one
year period may be carried over into subsequent years ending before
April first, two thousand thirteen. Any amount attributable to a capital
expenditure approved prior to April first, two thousand thirteen and
completed before April first, two thousand fifteen shall be eligible to
receive the vendor's capital award. In the event that a vendor track's
capital expenditures, approved by the division prior to April first, two
thousand thirteen and completed prior to April first, two thousand
fifteen, exceed the vendor track's cumulative capital award during the
five year period ending April first, two thousand thirteen, the vendor
shall continue to receive the capital award after April first, two thou-
sand thirteen until such approved capital expenditures are paid to the
vendor track subject to any required co-investment. In no event shall
such track facility located in Sullivan county and within sixty miles
from any gaming facility in a contiguous state be eligible for a
vendor's capital award under this section, unless it shall have moved
from such location or the five year period commencing on April first,
two thousand eight has expired, whichever comes first. Any operator of a
S. 60--A 103 A. 160--A
vendor track which has received a vendor's capital award, choosing to
divest the capital improvement toward which the award was applied, prior
to reaching the forty year straightline depreciation value of the
improvement, shall reimburse the state in amounts equal to the total of
any such awards. Any capital award not approved for a capital expendi-
ture at a video lottery gaming facility by April first, two thousand
thirteen shall be deposited in the state lottery fund for education aid;
and]
(E-1) FOR PURPOSES OF THIS SUBDIVISION, THE TERM "CLASS III GAMING"
SHALL HAVE THE MEANING DEFINED IN 25 U.S.C. S 2703(8).
(F) notwithstanding clauses (A), (B), (C), (D) and (E) of this subpar-
agraph, when a vendor track, is located in Sullivan county and within
sixty miles from any gaming facility in a contiguous state such vendor
fee shall, for a period of five years commencing April first, two thou-
sand eight, be at a rate of forty-two percent of the total revenue
wagered at the vendor track after payout for prizes pursuant to this
chapter, after which time such rate shall be as for all tracks in clause
(C) of this subparagraph.
[(G) For purposes of this subdivision, the term "class III gaming"
shall have the meaning defined in 25 U.S.C. S 2703(8).]
(G) notwithstanding any other provisions of this section, when a relo-
cated vendor track at which a qualified capital investment has been made
and no fewer than two thousand full-time, permanent employees have been
newly hired, is located in Sullivan county and is within sixty miles
from any gaming facility in a contiguous state, then for a period of
forty years the division shall pay into the state treasury, to the cred-
it of the state lottery fund created by section ninety-two-c of the
state finance law the greater of (i) twenty-five percent of total reven-
ue after payout for prizes for "video lottery games" or (ii) for the
first eight years of operation thirty-eight million dollars, and begin-
ning in the ninth year of operation such amount shall increase annually
by the lesser of the increase in the consumer price index or two percent
plus the division shall retain an amount equal to all actual expenses
related to operations, administration and procurement of the video
lottery terminal operation at the relocated vendor track, provided,
however, such amount retained by the division shall not exceed seven
percent of total revenue after payout of prizes. In addition, in the
event the division makes a payment pursuant to subclause (i) of this
clause, the division shall pay to the credit of the state lottery fund
created by section ninety-two-c of the state finance law 11.11 percent
of the amount by which total revenue after payout for prizes exceeds two
hundred fifteen million dollars, but in no event shall such payment
exceed five million dollars.
The balance shall be paid as a vendor's fee to the track operator of
the relocated vendor track for serving as a lottery agent under this
chapter.
Provided, however, that in the case of a relocated vendor track with a
qualified capital investment, if at any time after July first, two thou-
sand ten the vendor track experiences an employment shortfall, then the
recapture amount shall apply, for only such period as the shortfall
exists.
For the purposes of this section "qualified capital investment" shall
mean an investment of a minimum of one billion dollars as reflected by
audited financial statements of which not less than three hundred
million dollars shall be comprised of equity and/or mezzanine financing
as an initial investment in a county where twelve percent of the popu-
S. 60--A 104 A. 160--A
lation is below the federal poverty level as measured by the most recent
Bureau of Census Statistics prior to the qualified capital investment
commencing that results in the construction, development or improvement
of at least one eighteen hole golf course, and the construction and
issuance of certificates of occupancy for hotels, lodging, convention
centers, spas, dining, retail and entertainment venues, parking garages
and other capital improvements at or adjacent to the licensed video
gaming facility or licensed vendor track which promote or encourage
increased attendance at such facilities.
For the purposes of this section, "full-time, permanent employee"
shall mean an employee who has worked at the vendor track or related and
adjacent facilities for a minimum of thirty-five hours per week for not
less than four consecutive weeks and who is entitled to receive the
usual and customary fringe benefits extended to other employees with
comparable rank and duties; or two part-time employees who have worked
at the vendor track or related and adjacent facilities for a combined
minimum of thirty-five hours per week for not less than four consecutive
weeks and who are entitled to receive the usual and customary fringe
benefits extended to other employees with comparable rank and duties.
For the purpose of this section "employment goal" shall mean two thou-
sand full-time permanent employees.
For the purpose of this section "employment shortfall" shall mean a
level of employment that falls below the employment goal, as certified
annually by vendor's certified accountants and the chairman of the
empire state development corporation.
For the purposes of this section "recapture amount" shall mean the
difference between the amount of the vendor's fee paid to a vendor track
with a qualified capital investment, and the vendor fee otherwise paya-
ble to a vendor track pursuant to clause (F) of this subparagraph, that
is reimbursable by the vendor track to the division for payment into the
state treasury, to the credit of the state lottery fund created by
section ninety-two-c of the state finance law, due to an employment
shortfall pursuant to the following schedule only for the period of the
employment shortfall:
(i) sixty-six percent of the recapture amount if the employment short-
fall is greater than fifty percent of the employment goal;
(ii) sixty percent of the recapture amount if the employment shortfall
is greater than forty percent of the employment goal;
(iii) forty-five percent of the recapture amount if the employment
shortfall is greater than thirty percent of the employment goal;
(iv) twenty percent of the recapture amount if the employment short-
fall is greater than twenty percent of the employment goal;
(v) ten percent of the recapture amount if the employment shortfall is
greater than ten percent of the employment goal.
(H) notwithstanding clauses (A), (B), (C), (D), (E), (F) and (G) of
this subparagraph, the track operator of a vendor track shall be eligi-
ble for a vendor's capital award of up to four percent of the total
revenue wagered at the vendor track after payout for prizes pursuant to
this chapter, which shall be used exclusively for capital project
investments to improve the facilities of the vendor track which promote
or encourage increased attendance at the video lottery gaming facility
including, but not limited to hotels, other lodging facilities, enter-
tainment facilities, retail facilities, dining facilities, events
arenas, parking garages and other improvements that enhance facility
amenities; provided that such capital investments shall be approved by
the division, in consultation with the state racing and wagering board,
S. 60--A 105 A. 160--A
and that such vendor track demonstrates that such capital expenditures
will increase patronage at such vendor track's facilities and increase
the amount of revenue generated to support state education programs. The
annual amount of such vendor's capital awards that a vendor track shall
be eligible to receive shall be limited to two million five hundred
thousand dollars, except for Aqueduct racetrack, for which there shall
be no vendor's capital awards. Except for tracks having less than one
thousand one hundred video gaming machines, each track operator shall be
required to co-invest an amount of capital expenditure equal to its
cumulative vendor's capital award. For all tracks, except for Aqueduct
racetrack, the amount of any vendor's capital award that is not used
during any one year period may be carried over into subsequent years
ending before April first, two thousand thirteen. Any amount attribut-
able to a capital expenditure approved prior to April first, two thou-
sand thirteen and completed before April first, two thousand fifteen
shall be eligible to receive the vendor's capital award. IN THE EVENT
THAT A VENDOR TRACK'S CAPITAL EXPENDITURES, APPROVED BY THE DIVISION
PRIOR TO APRIL FIRST, TWO THOUSAND THIRTEEN AND COMPLETED PRIOR TO APRIL
FIRST, TWO THOUSAND FIFTEEN, EXCEED THE VENDOR TRACK'S CUMULATIVE CAPI-
TAL AWARD DURING THE FIVE YEAR PERIOD ENDING APRIL FIRST, TWO THOUSAND
THIRTEEN, THE VENDOR SHALL CONTINUE TO RECEIVE THE CAPITAL AWARD AFTER
APRIL FIRST, TWO THOUSAND THIRTEEN UNTIL SUCH APPROVED CAPITAL EXPENDI-
TURES ARE PAID TO THE VENDOR TRACK SUBJECT TO ANY REQUIRED CO-INVEST-
MENT. In no event shall any vendor track that receives a vendor fee
pursuant to clause (F) or (G) of this [paragraph] SUBPARAGRAPH be eligi-
ble for a vendor's capital award under this section. Any operator of a
vendor track which has received a vendor's capital award, choosing to
divest the capital improvement toward which the award was applied, prior
to [reaching the forty year straightline depreciation value of the
improvement] THE FULL DEPRECIATION OF THE CAPITAL IMPROVEMENT IN ACCORD-
ANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, shall reimburse the
state in amounts equal to the total of any such awards. ANY CAPITAL
AWARD NOT APPROVED FOR A CAPITAL EXPENDITURE AT A VIDEO LOTTERY GAMING
FACILITY BY APRIL FIRST, TWO THOUSAND THIRTEEN SHALL BE DEPOSITED INTO
THE STATE LOTTERY FUND FOR EDUCATION AID; and
(iii) less an additional vendor's marketing allowance at a rate of ten
percent for the first one hundred million dollars annually and eight
percent thereafter of the total revenue wagered at the vendor track
after payout for prizes to be used by the vendor track for the marketing
and promotion and associated costs of its video lottery gaming oper-
ations and pari-mutuel horse racing operations, as long as any such
costs associated with pari-mutuel horse racing operations simultaneously
encourage increased attendance at such vendor's video lottery gaming
facilities, consistent with the customary manner of marketing comparable
operations in the industry and subject to the overall supervision of the
division; provided, however, that the additional vendor's marketing
allowance shall not exceed eight percent in any year for any operator of
a racetrack located in the county of Westchester or Queens; provided,
however, a vendor track that receives a vendor fee pursuant to clause
(G) of [this] subparagraph (II) OF THIS PARAGRAPH shall not receive the
additional vendor's marketing allowance. In establishing the vendor fee,
the division shall ensure the maximum lottery support for education
while also ensuring the effective implementation of section sixteen
hundred seventeen-a of this article through the provision of reasonable
reimbursements and compensation to vendor tracks for participation in
such program. Within twenty days after any award of lottery prizes, the
S. 60--A 106 A. 160--A
division shall pay into the state treasury, to the credit of the state
lottery fund, the balance of all moneys received from the sale of all
tickets for the lottery in which such prizes were awarded remaining
after provision for the payment of prizes as herein provided. Any reven-
ues derived from the sale of advertising on lottery tickets shall be
deposited in the state lottery fund.
2. As consideration for the operation of a video lottery gaming facil-
ity, the division, shall cause the investment in the racing industry of
a portion of the vendor fee received pursuant to paragraph one of this
subdivision in the manner set forth in this subdivision. With the excep-
tion of Aqueduct racetrack, each such track shall dedicate a portion of
its vendor fees, received pursuant to clause (A), (B), (C), (D), (E),
(F), or (G) of subparagraph (ii) of paragraph one of this subdivision,
solely for the purpose of enhancing purses at such track, in an amount
equal to eight and three-quarters percent of the total revenue wagered
at the vendor track after pay out for prizes. In addition, WITH THE
EXCEPTION OF AQUEDUCT RACETRACK, one and one-quarter percent of total
revenue wagered at the vendor track after pay out for prizes, received
pursuant to clause (A), (B), (C), (D), (E), (F), or (G) of subparagraph
(ii) of paragraph one of this subdivision, shall be distributed to the
appropriate breeding fund for the manner of racing conducted by such
track.
Provided, further, that nothing in this paragraph shall prevent each
track from entering into an agreement, not to exceed five years, with
the organization authorized to represent its horsemen to increase or
decrease the portion of its vendor fee dedicated to enhancing purses at
such track during the years of participation by such track, or to race
fewer dates than required herein.
3. Nothing in paragraph two of this subdivision shall affect any
agreement in effect on or before the effective date of this paragraph.
S 2. Subdivisions a and b of section 1617-a of the tax law, as amended
by section 2 of part Z3 of chapter 62 of the laws of 2003 and paragraph
3 of subdivision a as amended by chapter 18 of the laws of 2008, are
amended to read as follows:
a. The division of the lottery is hereby authorized to license, pursu-
ant to rules and regulations to be promulgated by the division of the
lottery, the operation of video lottery gaming at Aqueduct, Monticello,
Yonkers, Finger Lakes, and Vernon Downs racetracks, or at any other
racetrack licensed pursuant to article three of the racing, pari-mutuel
wagering and breeding law that are located in a county or counties in
which video lottery gaming has been authorized pursuant to local law,
excluding the licensed racetrack commonly referred to in article three
of the racing, pari-mutuel wagering and breeding law as the "New York
state exposition" held in Onondaga county and the racetracks of the
non-profit racing association known as Belmont Park racetrack and the
Saratoga thoroughbred racetrack. Such rules and regulations shall
provide, as a condition of licensure, that racetracks to be licensed are
certified to be in compliance with all state and local fire and safety
codes, that the division is afforded adequate space, infrastructure, and
amenities consistent with industry standards for such video gaming oper-
ations as found at racetracks in other states, that racetrack employees
involved in the operation of video lottery gaming pursuant to this
section are licensed by the racing and wagering board, and such other
terms and conditions of licensure as the division may establish.
Notwithstanding any inconsistent provision of law, video lottery gaming
at a racetrack pursuant to this section shall be deemed an approved
S. 60--A 107 A. 160--A
activity for such racetrack under the relevant city, county, town, or
village land use or zoning ordinances, rules, or regulations. No [race-
track] ENTITY LICENSED BY THE DIVISION operating video lottery gaming
pursuant to this section may house such gaming activity in a structure
deemed or approved by the division as "temporary" for a duration of
longer than eighteen-months. NOTHING IN THIS SECTION SHALL PROHIBIT THE
DIVISION FROM LICENSING AN ENTITY TO OPERATE VIDEO LOTTERY GAMING AT AN
EXISTING RACETRACK AS AUTHORIZED IN THIS SUBDIVISION WHETHER OR NOT A
DIFFERENT ENTITY IS LICENSED TO CONDUCT HORSE RACING AND PARI-MUTUEL
WAGERING AT SUCH RACETRACK PURSUANT TO ARTICLE TWO OR THREE OF THE
RACING, PARI-MUTUEL WAGERING AND BREEDING LAW.
The division, in consultation with the racing and wagering board,
shall establish standards for approval of the temporary and permanent
physical layout and construction of any facility or building devoted to
a video lottery gaming operation. In reviewing such application for the
construction or reconstruction of facilities related or devoted to the
operation or housing of video lottery gaming operations, the division,
in consultation with the racing and wagering board, shall ensure that
such facility:
(1) possesses superior consumer amenities and conveniences to encour-
age and attract the patronage of tourists and other visitors from across
the region, state, and nation.
(2) has adequate motor vehicle parking facilities to satisfy patron
requirements.
(3) has a physical layout and location that facilitates access to and
from the horse racing track portion of such facility to encourage patro-
nage of live horse racing events that are conducted at such track.
b. [Video] THE HOURS OF OPERATION OF VIDEO lottery gaming shall only
be permitted [for no more than sixteen consecutive hours per day and on
no day shall such operation be conducted past 2:00 a.m] AS PRESCRIBED BY
THE DIVISION OF THE LOTTERY.
S 3. Section 1617-a of the tax law is amended by adding a new subdivi-
sion e to read as follows:
E. THE DIVISION SHALL NOT APPROVE THE CONSTRUCTION OR ALTERATION OF
ANY FACILITY OR BUILDING DEVOTED TO THE OPERATION OR HOUSING OF VIDEO
LOTTERY GAMING UNTIL THE PERSON OR ENTITY SELECTED TO OPERATE SUCH VIDEO
LOTTERY GAMING SHALL HAVE SUBMITTED TO THE DIVISION A STATEMENT OF THE
LOCATION OF THE PROPOSED FACILITY OR BUILDING, TOGETHER WITH A PLAN OF
SUCH RACETRACK, AND PLANS OF ALL EXISTING BUILDINGS, SEATING STANDS AND
OTHER STRUCTURES ON THE GROUNDS OF SUCH RACETRACK, IN SUCH FORM AS THE
DIVISION MAY PRESCRIBE, AND SUCH PLANS SHALL HAVE BEEN APPROVED BY THE
DIVISION. THE DIVISION, AT THE EXPENSE OF THE APPLICANT, MAY ORDER SUCH
ENGINEERING EXAMINATION THEREOF AS THE DIVISION MAY DEEM NECESSARY.
SUCH CONSTRUCTION OR ALTERATION MAY BE MADE ONLY WITH THE APPROVAL OF
THE DIVISION AND AFTER EXAMINATION AND INSPECTION OF THE PLANS THEREOF
AND THE ISSUANCE OF A PERMIT THEREFOR BY THE DIVISION.
S 4. Section 4 of part C of chapter 383 of the laws of 2001, amending
the tax law and other laws relating to authorizing the division of the
lottery to conduct a pilot program involving the operation of video
lottery terminals at certain racetracks, as amended by chapter 140 of
the laws of 2008, is amended to read as follows:
S 4. This act shall take effect immediately[; provided, however, that
the provisions of this act shall expire and be deemed repealed December
31, 2033].
S 5. Section 4 of part C of chapter 383 of the laws of 2001, amending
the tax law and other laws relating to authorizing the division of the
S. 60--A 108 A. 160--A
lottery to conduct a pilot program involving the operation of video
lottery terminals at certain racetracks, as amended by chapter 286 of
the laws of 2008, is amended to read as follows:
S 4. This act shall take effect immediately[; provided, however, that
the provisions of this act shall expire and be deemed repealed December
31, 2050].
S 6. Subdivision a of section 1617-a of the tax law, as amended by
chapter 140 of the laws of 2008, is REPEALED.
S 7. Subdivision a of section 1617-a of the tax law, as amended by
chapter 286 of the laws of 2008, is REPEALED.
S 8. This act shall take effect immediately and shall be deemed to
have been in full force and effect on and after April 1, 2008.
PART X
Section 1. Section 420 of the tax law is amended by adding a new
subdivision 17 to read as follows:
17. "FLAVORED MALT BEVERAGES" MEANS ALCOHOLIC PRODUCTS MANUFACTURED
FROM MALT THAT ALSO CONTAIN LIQUOR AND THAT CONTAIN MORE THAN ONE-HALF
OF ONE PERCENT BUT NOT MORE THAN TWENTY-FOUR PERCENT OF ALCOHOL BY
VOLUME.
S 2. Subdivision 3 of section 420 of the tax law, as amended by chap-
ter 94 of the laws of 1934, is amended to read as follows:
3. "Alcoholic beverages" mean and include beers, FLAVORED MALT BEVER-
AGES, wines or liquors.
S 3. Subdivision 5 of section 420 of the tax law, as amended by chap-
ter 237 of the laws of 1956, is amended to read as follows:
5. "Beers" mean and include all alcoholic beer, lager beer, ale,
porter, and stout, and all other fermented beverages of any name or
description manufactured from malt, wholly or in part, or from any
substitute therefor containing one-half of one per centum, or more, of
alcohol by volume, BUT NOT INCLUDING ANY FLAVORED MALT BEVERAGES.
S 4. Subdivision 7 of section 420 of the tax law, as amended by chap-
ter 80 of the laws of 1935, is amended to read as follows:
7. "Liquors" mean and include any and all distilled or rectified spir-
its, alcohol, brandy, cordial (whether the base therefor be wine or
liquor), whiskey, rum, gin and all other distilled beverages containing
alcohol, including all dilutions and mixtures of one or more of the
foregoing, and also mean and include any alcoholic liquids which would
be wines OR FLAVORED MALT BEVERAGES if the alcoholic content thereof
were not more than twenty-four per centum by volume.
S 5. Subdivision 14 of section 420 of the tax law, as amended by chap-
ter 508 of the laws of 1993, is amended to read as follows:
14. "Noncommercial importer" means a person other than a distributor
who imports or causes to be imported into this state beers, FLAVORED
MALT BEVERAGES, or wines, except that such person shall not be a noncom-
mercial importer where such person imports or causes to be imported into
this state such alcoholic beverages in the quantities and under the
conditions provided by subdivision four of section four hundred twenty-
four OF THIS ARTICLE. Such term is inapplicable with respect to liquors.
S 6. Subdivision 1 of section 424 of the tax law is amended by adding
a new paragraph (e-1) to read as follows:
(E-1) TWO DOLLARS AND FIFTY-FOUR CENTS PER GALLON UPON FLAVORED MALT
BEVERAGES;
S. 60--A 109 A. 160--A
S 7. The opening paragraph of paragraph (g) of subdivision 1 of
section 424 of the tax law, as amended by chapter 508 of the laws of
1993, is amended to read as follows:
For purposes of this chapter, it is presumed that liquors are
possessed for the purpose of sale in this state if the quantity of
liquors possessed in this state, imported or caused to be imported into
this state or produced, distilled, manufactured, compounded, mixed or
fermented in this state exceeds ninety liters. Such presumption may be
rebutted by the introduction of substantial evidence to the contrary. In
any case where the quantity of alcoholic beverages taxable pursuant to
this article is a fractional part of one liter (or one gallon in the
case of beers, FLAVORED MALT BEVERAGES, AND WINES) or an amount greater
than a whole multiple of liters (or gallons in the case of beers,
FLAVORED MALT BEVERAGES AND WINES), the amount of tax levied and imposed
on such fractional part of one liter (or one gallon in the case of
beers, FLAVORED MALT BEVERAGES, AND WINES), or fractional part of a
liter (or gallon) in excess of a whole multiple of liters or gallons
shall be such fractional part of the rate imposed by paragraphs (a)
through (f) OF THIS SUBDIVISION.
S 8. Section 425 of the tax law, as amended by chapter 508 of the laws
of 1993, is amended to read as follows:
S 425. Special provision as to imposition of taxes on certain alcohol-
ic beverages. If a person shall receive any alcoholic beverages from the
distributor with respect thereto, under such circumstances so as to
preclude the collection of the taxes under this article, because this
state was without power to impose such taxes under this article against
such distributor by reason of the constitution or the law of the United
States enacted pursuant thereto or the constitution or laws of this
state, and such person shall thereafter sell or use any such alcoholic
beverages in such manner and under such circumstances as may subject the
same to the taxing power of this state with respect to any sale or use
thereof, such person shall be liable for the tax imposed by section four
hundred twenty-four OF THIS ARTICLE with respect to such sale or use,
and shall make the same reports and returns, pay the same taxes and be
subject to the other applicable provisions of this article relating to
distributors, except that with respect to beers, FLAVORED MALT BEVERAG-
ES, and wines such a person shall not be subject to the provisions of
sections four hundred twenty-one and four hundred twenty-two of this
article if such person does not offer such alcoholic beverages for sale
or use such alcoholic beverages for any commercial purpose. Provided,
further, that if the taxing power of this state does not extend to the
imposition of such taxes on, and the requirement of payment of such
taxes by, such person selling or using such beverages, then such person
shall be required to collect such taxes from its purchaser on the sale
of such beverages and to pay over such taxes to the commissioner. In
such event, the same reports and returns relating to distributors, along
with remittance, shall be required by such person and all the other
provisions of this article relating to distributors shall apply. If such
taxes are not so collected, then such purchaser shall, along with such
person, be liable for such taxes.
S 9. Section 425-a of the tax law, as added by chapter 508 of the laws
of 1993, is amended to read as follows:
S 425-a. Presumption of taxability. For the purpose of the proper
administration of the taxes imposed by this article and to prevent
evasion thereof, it shall be presumed with respect to this chapter that
all alcoholic beverages possessed or found in this state are subject to
S. 60--A 110 A. 160--A
the taxes imposed by this article until the contrary is established by
substantial evidence. Except with respect to a purchase at retail of
beers, FLAVORED MALT BEVERAGES, or wines and a purchase at retail of
ninety liters or less of liquors, no person shall purchase alcoholic
beverages in this state unless the taxes imposed by this article with
respect to such beverages have been assumed by a distributor registered
under this article or paid by such distributor pursuant to and in
accordance with the manner provided herein and evidenced in accordance
with the manner provided herein. In the case of liquors, such taxes
shall be assumed by a distributor in accordance with the invoice
required, and the certification of tax payment included therein, under
section four hundred twenty-seven of this article; in the case of other
alcoholic beverages, the taxes shall be assumed by such distributor
pursuant to and in accordance with the rules or regulations of the
department.
S 10. Section 426 of the tax law, as amended by chapter 891 of the
laws of 1986, is amended to read as follows:
S 426. Records to be kept by brand owners, distributors, owners and
others. Every brand owner, distributor, owner or other person shall
keep a complete and accurate record of all purchases and sales or other
dispositions of alcoholic beverages, and a complete and accurate record
of the number of gallons of beers, FLAVORED MALT BEVERAGES, AND WINES
produced, manufactured, brewed or fermented and liters of all other
alcoholic beverages produced, distilled, manufactured, brewed,
compounded, mixed or fermented. Such records shall be in such form and
contain such other information as the [tax commission] COMMISSIONER
shall prescribe. [Said commission] THE COMMISSIONER, by rule or regu-
lation, also may require the delivery of statements to purchasers of
alcoholic beverages, and prescribe the matters to be contained therein.
Such records and statements, unless required by the [tax commission]
COMMISSIONER to be preserved for a longer period, shall be preserved for
a period of [one year] THREE YEARS and shall be offered for inspection
at any time upon oral or written demand by the commissioner [of taxation
and finance] or his OR HER duly authorized agents, and every such
distributor, brand owner, owner or other person shall make such reports
to the department [of taxation and finance] as may be required by the
[tax commission] COMMISSIONER. Nothing in this section contained shall
be construed to require the keeping of a record of the purchase or
disposition of alcoholic beverages by a consumer thereof, except by a
person who uses the same for commercial purposes, or of the sale of
alcoholic beverages at retail.
S 11. Section 429 of the tax law, as amended by chapter 433 of the
laws of 1978, is amended to read as follows:
S 429. Payment of tax; returns. 1. Every distributor, noncommercial
importer or other person shall, on or before the twentieth day of each
month, file with the department [of taxation and finance] a return, on
forms to be prescribed by the [tax commission] COMMISSIONER and
furnished by such department, stating separately the number of gallons,
or lesser quantity, of beers, FLAVORED MALT BEVERAGES, AND WINES, and
the number of liters, or lesser quantity, of [wines and] liquors sold or
used by such distributor, noncommercial importer or other person in this
state during the preceding calendar month, except that the [tax commis-
sion] COMMISSIONER may, if [it] HE OR SHE deems it necessary in order to
insure the payment of the tax imposed by this article, require returns
to be made at such times and covering such periods as [it] HE OR SHE may
deem necessary. Such return shall contain such further information as
S. 60--A 111 A. 160--A
the [tax commission] COMMISSIONER shall require. The fact that the name
of the distributor, noncommercial importer or other person is signed to
a filed return shall be prima facie evidence for all purposes that the
return was actually signed by such distributor, noncommercial importer
or other person.
2. Each such distributor, noncommercial importer or other person shall
pay to such department with the filing of such return, the tax imposed
by this article, on each gallon, or lesser quantity, of beers, FLAVORED
MALT BEVERAGES, AND WINES and on each liter, or lesser quantity of all
other alcoholic beverages sold or used by such distributor, noncommer-
cial importer or other person in this state, as so reported, during the
period covered by such return, except that, where a distributor has
purchased alcoholic beverages prior to the expiration of the period
covered by the return, upon which the taxes imposed by this article have
been or are required to be paid by another distributor, a credit shall
be allowed for the amount of such taxes.
3. All alcoholic beverages which have come into the possession of a
distributor shall be deemed to have been sold or used by such distribu-
tor unless it shall be proved to the satisfaction of the [tax commis-
sion] COMMISSIONER that such alcoholic beverages have not been sold or
used.
4. A distributor entitled to a refund under the provisions of section
four hundred thirty-four of this [chapter] ARTICLE, in lieu of such
refund, may take credit therefor on a return filed pursuant to this
section, unless the [tax commission] COMMISSIONER shall withdraw such
privilege.
S 12. Subdivision 1 of section 445 of the tax law, as amended by chap-
ter 433 of the laws of 1978, is amended to read as follows:
1. Any city in this state having a population of one million or more,
acting through its local legislative body, is hereby authorized and
empowered to adopt and amend local laws imposing in any such city excise
taxes on a distributor and a noncommercial importer at the following
rates:
(a) Twelve cents per gallon upon beers [and];
(b) Twenty-six and four-tenths cents per liter on the liquors
described in paragraph (f) of subdivision one of section four hundred
twenty-four OF THIS ARTICLE; AND
(C) THIRTY-NINE CENTS PER GALLON UPON FLAVORED MALT BEVERAGES, when
sold or used in such city.
Such local law shall provide that if prior to the date upon which the
taxes go into effect, a contract of sale of any beer or other alcoholic
beverages described above was made, and delivery thereof pursuant to
such contract is made within the city imposing such taxes on or after
the effective date thereof, the vendor shall be deemed a distributor,
and such beer and other alcoholic beverages shall be deemed to be sold,
and shall be subject to the tax at the time of such delivery. THE CITY
HAS THE OPTION OF IMPOSING TAX ON BEERS AND LIQUORS OR ON BEERS,
LIQUORS, AND FLAVORED MALT BEVERAGES.
S 13. (a) If a contract for the sale of flavored malt beverages was
entered into prior to April 1, 2009 and delivery under that contract is
made within the state on or after April 1, 2009, the flavored malt
beverages sold under that contract will be subject to tax under article
18 of the tax law, as amended by this act, at the time of delivery.
(b) In order to subject flavored malt beverages in this state on April
1, 2009 to the increased taxes imposed by section six of this act, a
special floor tax is imposed on each wholesaler or retailer (as defined
S. 60--A 112 A. 160--A
in the alcoholic beverage control law) or other sellers of flavored malt
beverages, other than those registered as distributors under article 18
of the tax law, at the rate of two dollars and forty-three cents per
gallon on all flavored malt beverages in the possession or under the
control on April 1, 2009 of those wholesalers, retailers and other sell-
ers of flavored malt beverages for purposes of sale in the state. Addi-
tionally, any person who is a distributor or manufacturer under article
18 of the tax law is subject to this special floor tax on any flavored
malt beverages in his or her possession or under his or her control on
which the tax under article 18 of the tax law was already imposed at the
beer rate prior to April 1, 2009. The first 25 gallons of all flavored
malt beverages on April 1, 2009 in the possession or under the control
of any manufacturer, wholesaler, retailer, distributor or any other
seller of flavored malt beverages are exempt from this floor tax. This
floor tax is due and payable to the commissioner of taxation and finance
on or before June 22, 2009.
(c) If the city of New York imposes tax on flavored malt beverages
effective April 1, 2009, under the authority of subdivision 1 of section
445 of the tax law, as amended by section twelve of this act, a special
floor tax is imposed on each wholesaler or retailer, as defined in the
alcoholic beverage control law, other than those registered as distribu-
tors under article 18 of the tax law, at the rate of twenty-seven cents
per gallon on all flavored malt beverages in the possession or under the
control on April 1, 2009 of wholesalers, retailers, or all other sellers
of flavored malt beverages, for purposes of sale in that city and the
floor tax authorized by subdivision 2 of section 445 of the tax law does
not apply. Additionally, any person who is a distributor or manufacturer
under article 18 of the tax law is subject to the same special floor tax
on any flavored malt beverages in his or her possession or under his or
her control on which the tax under article 18 of the tax law was already
imposed at the beer rate prior to April 1, 2009. The special city floor
tax authorized by this subdivision must be administered, collected and
enforced jointly with, and under the same terms as, the special floor
tax imposed by subdivision (b) of this section with respect to the
increased taxes imposed by section six of this act. If such city imposes
a tax on flavored malt beverages that is not effective on April 1, 2009,
the provisions of subdivision 2 of section 445 of the tax law do not
apply to the increased taxes authorized by section twelve of this act.
(d) Except as provided in this section, all the provisions of articles
18 and 37 of the tax law will apply to taxes imposed by this section.
(e) The commissioner of taxation and finance is authorized to
prescribe any terms and conditions such commissioner deems advisable and
require any reports such commissioner deems necessary to effectuate the
provisions of this section.
(f) The commissioner of taxation and finance may request from the
state liquor authority, and the state liquor authority is authorized and
directed to provide, any cooperation and assistance, including data,
that will enable such commissioner to carry out the imposition of the
flavored malt beverages tax rate and the implementation of the floor
tax.
S 14. Subdivision 12-c of section 3 of the alcoholic beverage control
law, as renumbered by chapter 366 of the laws of 1992, is renumbered
subdivision 12-d and a new subdivision 12-c is added to read as follows:
12-C. "FLAVORED MALT BEVERAGE" MEANS AND INCLUDES ANY FERMENTED BEVER-
AGES OF ANY NAME OR DESCRIPTION MANUFACTURED FROM MALT, OR FROM ANY
SUBSTITUTE THEREFOR, CONTAINING FLAVORS AND OTHER INGREDIENTS DERIVED
S. 60--A 113 A. 160--A
FROM LIQUOR OR SPIRITS PROVIDED THAT NO MORE THAN FORTY-NINE PERCENT OF
THE OVERALL ALCOHOL CONTENT OF THE FINISHED PRODUCT MAY BE DERIVED FROM
THE ADDITION OF SAID FLAVORS AND OTHER INGREDIENTS. FOR PURPOSES OF THIS
CHAPTER, "FLAVORED MALT BEVERAGES" SHALL BE CONSIDERED "BEER" AND MAY BE
BOUGHT, STORED AND SOLD BY ANY PERSON LICENSED PURSUANT TO THIS CHAPTER
WITH A LICENSE THAT ALREADY CONTAINS THE PRIVILEGE TO BUY, SELL OR STORE
BEER.
S 15. This act shall take effect April 1, 2009.
PART Y
Section 1. Paragraph (a) of subdivision 1 of section 1003 of the
racing, pari-mutuel wagering and breeding law, as amended by chapter 18
of the laws of 2008, is amended to read as follows:
(a) Any racing association or corporation or regional off-track
betting corporation, authorized to conduct pari-mutuel wagering under
this chapter, desiring to display the simulcast of horse races on which
pari-mutuel betting shall be permitted in the manner and subject to the
conditions provided for in this article may apply to the board for a
license so to do. Applications for licenses shall be in such form as may
be prescribed by the board and shall contain such information or other
material or evidence as the board may require. No license shall be
issued by the board authorizing the simulcast transmission of thorough-
bred races from a track located in Suffolk county. The fee for such
licenses shall be five hundred dollars per simulcast facility per year
payable by the licensee to the board for deposit into the general fund.
Except as provided herein, the board shall not approve any application
to conduct simulcasting into individual or group residences, homes or
other areas for the purposes of or in connection with pari-mutuel wager-
ing. The board may approve simulcasting into residences, homes or other
areas to be conducted jointly by one or more regional off-track betting
corporations and one or more of the following: a franchised corporation,
thoroughbred racing corporation or a harness racing corporation or asso-
ciation; provided (i) the simulcasting consists only of those races on
which pari-mutuel betting is authorized by this chapter at one or more
simulcast facilities for each of the contracting off-track betting
corporations which shall include wagers made in accordance with section
one thousand fifteen, one thousand sixteen and one thousand seventeen of
this [chapter] ARTICLE; provided further that the contract provisions or
other simulcast arrangements for such simulcast facility shall be no
less favorable than those in effect on January first, two thousand five;
(ii) that each off-track betting corporation having within its geograph-
ic boundaries such residences, homes or other areas technically capable
of receiving the simulcast signal shall be a contracting party; (iii)
the distribution of revenues shall be subject to contractual agreement
of the parties except that statutory payments to non-contracting
parties, if any, may not be reduced; provided, however, that nothing
herein to the contrary shall prevent a track from televising its races
on an irregular basis primarily for promotional or marketing purposes as
found by the board. For purposes of this paragraph, the provisions of
section one thousand thirteen of this article shall not apply. Any
agreement authorizing an in-home simulcasting experiment commencing
prior to May fifteenth, nineteen hundred ninety-five, may, and all its
terms, be extended until June thirtieth, two thousand [nine] TEN;
provided, however, that any party to such agreement may elect to termi-
nate such agreement upon conveying written notice to all other parties
S. 60--A 114 A. 160--A
of such agreement at least forty-five days prior to the effective date
of the termination, via registered mail. Any party to an agreement
receiving such notice of an intent to terminate, may request the board
to mediate between the parties new terms and conditions in a replacement
agreement between the parties as will permit continuation of an in-home
experiment until June thirtieth, two thousand [nine] TEN; and (iv) no
in-home simulcasting in the thoroughbred special betting district shall
occur without the approval of the regional thoroughbred track.
S 2. Subparagraph (iii) of paragraph d of subdivision 3 of section
1007 of the racing, pari-mutuel wagering and breeding law, as amended by
chapter 18 of the laws of 2008, is amended to read as follows:
(iii) Of the sums retained by a receiving track located in Westchester
county on races received from a franchised corporation, for the period
commencing January first, two thousand eight and continuing through June
thirtieth, two thousand [nine] TEN, the amount used exclusively for
purses to be awarded at races conducted by such receiving track shall be
computed as follows: of the sums so retained, two and one-half percent
of the total pools. Such amount shall be increased or decreased in the
amount of fifty percent of the difference in total commissions deter-
mined by comparing the total commissions available after July twenty-
first, nineteen hundred ninety-five to the total commissions that would
have been available to such track prior to July twenty-first, nineteen
hundred ninety-five.
S 3. The opening paragraph of subdivision 1 of section 1014 of the
racing, pari-mutuel wagering and breeding law, as amended by chapter 18
of the laws of 2008, is amended to read as follows:
The provisions of this section shall govern the simulcasting of races
conducted at thoroughbred tracks located in another state or country on
any day during which a franchised corporation is conducting a race meet-
ing in Saratoga county at Saratoga thoroughbred racetrack until June
thirtieth, two thousand [nine] TEN and on any day regardless of whether
or not a franchised corporation is conducting a race meeting in Saratoga
county at Saratoga thoroughbred racetrack after June thirtieth, two
thousand [nine] TEN. On any day on which a franchised corporation has
not scheduled a racing program but a thoroughbred racing corporation
located within the state is conducting racing, every off-track betting
corporation branch office and every simulcasting facility licensed in
accordance with section one thousand seven (that have entered into a
written agreement with such facility's representative horsemen's organ-
ization, as approved by the board), one thousand eight, or one thousand
nine of this article shall be authorized to accept wagers and display
the live simulcast signal from thoroughbred tracks located in another
state or foreign country subject to the following provisions:
S 4. Subdivision 1 of section 1015 of the racing, pari-mutuel wagering
and breeding law, as amended by chapter 18 of the laws of 2008, is
amended to read as follows:
1. The provisions of this section shall govern the simulcasting of
races conducted at harness tracks located in another state or country
during the period July first, nineteen hundred ninety-four through June
thirtieth, two thousand [nine] TEN. This section shall supersede all
inconsistent provisions of this chapter.
S 5. The opening paragraph of subdivision 1 of section 1016 of the
racing, pari-mutuel wagering and breeding law, as amended by chapter 18
of the laws of 2008, is amended to read as follows:
The provisions of this section shall govern the simulcasting of races
conducted at thoroughbred tracks located in another state or country on
S. 60--A 115 A. 160--A
any day during which a franchised corporation is not conducting a race
meeting in Saratoga county at Saratoga thoroughbred racetrack until June
thirtieth, two thousand [nine] TEN. Every off-track betting corporation
branch office and every simulcasting facility licensed in accordance
with section one thousand seven that have entered into a written agree-
ment with such facility's representative horsemen's organization as
approved by the board, one thousand eight or one thousand nine of this
article shall be authorized to accept wagers and display the live full-
card simulcast signal of thoroughbred tracks (which may include quarter
horse or mixed meetings provided that all such wagering on such races
shall be construed to be thoroughbred races) located in another state or
foreign country, subject to the following provisions; provided, however,
no such written agreement shall be required of a franchised corporation
licensed in accordance with section one thousand seven of this article:
S 6. The opening paragraph of section 1018 of the racing, pari-mutuel
wagering and breeding law, as amended by chapter 18 of the laws of 2008,
is amended to read as follows:
Notwithstanding any other provision of this chapter, for the period
July twenty-fifth, two thousand one through September [ninth] EIGHTH,
two thousand [eight] NINE, when a franchised corporation is conducting a
race meeting within the state at Saratoga Race Course, every off-track
betting corporation branch office and every simulcasting facility
licensed in accordance with section one thousand seven (that has entered
into a written agreement with such facility's representative horsemen's
organization as approved by the board), one thousand eight or one thou-
sand nine of this article shall be authorized to accept wagers and
display the live simulcast signal from thoroughbred tracks located in
another state, provided that such facility shall accept wagers on races
run at all in-state thoroughbred tracks which are conducting racing
programs subject to the following provisions; provided, however, no such
written agreement shall be required of a franchised corporation licensed
in accordance with section one thousand seven of this article.
S 7. Section 32 of chapter 281 of the laws of 1994, amending the
racing, pari-mutuel wagering and breeding law and other laws relating to
simulcasting, as amended by chapter 18 of the laws of 2008, is amended
to read as follows:
S 32. This act shall take effect immediately and the pari-mutuel tax
reductions in section six of this act shall expire and be deemed
repealed on July 1, [2009] 2010; provided, however, that nothing
contained herein shall be deemed to affect the application, qualifica-
tion, expiration, or repeal of any provision of law amended by any
section of this act, and such provisions shall be applied or qualified
or shall expire or be deemed repealed in the same manner, to the same
extent and on the same date as the case may be as otherwise provided by
law; provided further, however, that sections twenty-three and twenty-
five of this act shall remain in full force and effect only until May 1,
1997 and at such time shall be deemed to be repealed.
S 8. Section 54 of chapter 346 of the laws of 1990, amending the
racing, pari-mutuel wagering and breeding law and other laws relating to
simulcasting and the imposition of certain taxes, as amended by chapter
18 of the laws of 2008, is amended to read as follows:
S 54. This act shall take effect immediately; provided, however,
sections three through twelve of this act shall take effect on January
1, 1991, and section 1013 of the racing, pari-mutuel wagering and breed-
ing law, as added by section thirty-eight of this act, shall expire and
be deemed repealed on July 1, [2009] 2010; and section eighteen of this
S. 60--A 116 A. 160--A
act shall take effect on July 1, 2008 and sections fifty-one and fifty-
two of this act shall take effect as of the same date as chapter 772 of
the laws of 1989 took effect.
S 9. Paragraph (a) of subdivision 1 of section 238 of the racing,
pari-mutuel wagering and breeding law, as amended by chapter 115 of the
laws of 2008, is amended to read as follows:
(a) The franchised corporation authorized under this chapter to
conduct pari-mutuel betting at a race meeting or races run thereat shall
distribute all sums deposited in any pari-mutuel pool to the holders of
winning tickets therein, provided such tickets be presented for payment
before April first of the year following the year of their purchase,
less an amount which shall be established and retained by such fran-
chised corporation of between sixteen to seventeen per centum of the
total deposits in pools resulting from on-track regular bets, and eigh-
teen and one-half to twenty-one per centum of the total deposits in
pools resulting from on-track multiple bets and twenty-six per centum of
the total deposits in pools resulting from on-track exotic bets and
sixteen to thirty-six per centum of the total deposits in pools result-
ing from on-track super exotic bets, and twenty-six to thirty-six per
centum when such on-track super exotic betting pools are carried
forward, plus the breaks. The retention rate to be established is
subject to the prior approval of the racing and wagering board. Such
rate may not be changed more than once per calendar quarter to be effec-
tive on the first day of the calendar quarter. "Exotic bets" and
"multiple bets" shall have the meanings set forth in section five
hundred nineteen of this chapter. "Super exotic bets" shall have the
meaning set forth in section three hundred one of this chapter. For
purposes of this section, a "pick six bet" shall mean a single bet or
wager on the outcomes of six races. The breaks are hereby defined as the
odd cents over any multiple of five for payoffs greater than one dollar
five cents but less than five dollars, over any multiple of ten for
payoffs greater than five dollars but less than twenty-five dollars,
over any multiple of twenty-five for payoffs greater than twenty-five
dollars but less than two hundred fifty dollars, or over any multiple of
fifty for payoffs over two hundred fifty dollars. Out of the amount so
retained there shall be paid by such franchised corporation to the
commissioner of taxation and finance, as a reasonable tax by the state
for the privilege of conducting pari-mutuel betting on the races run at
the race meetings held by such franchised corporation, the following
percentages of the total pool for regular and multiple bets five per
centum of regular bets and four per centum of multiple bets plus twenty
per centum of the breaks; for exotic wagers seven and one-half per
centum plus twenty per centum of the breaks, and for super exotic bets
seven and one-half per centum plus fifty per centum of the breaks. For
the period June first, nineteen hundred ninety-five through September
ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be
three per centum and such tax on multiple wagers shall be two and one-
half per centum, plus twenty per centum of the breaks. For the period
September tenth, nineteen hundred ninety-nine through March thirty-
first, two thousand one, such tax on all wagers shall be two and six-
tenths per centum and for the period April first, two thousand one
through December thirty-first, two thousand [nine] TEN, such tax on all
wagers shall be one and six-tenths per centum, plus, in each such peri-
od, twenty per centum of the breaks. Payment to the New York state
thoroughbred breeding and development fund by such franchised corpo-
ration shall be one-half of one per centum of total daily on-track pari-
S. 60--A 117 A. 160--A
mutuel pools resulting from regular, multiple and exotic bets and three
per centum of super exotic bets provided, however, that for the period
September tenth, nineteen hundred ninety-nine through March thirty-
first, two thousand one, such payment shall be six-tenths of one per
centum of regular, multiple and exotic pools and for the period April
first, two thousand one through December thirty-first, two thousand
[nine] TEN, such payment shall be seven-tenths of one per centum of such
pools.
S 10. Paragraph (a) of subdivision 1 of section 238 of the racing,
pari-mutuel wagering and breeding law, as amended by chapter 18 of the
laws of 2008, is amended to read as follows:
(a) The franchised corporation authorized under this chapter to
conduct pari-mutuel betting at a race meeting or races run thereat shall
distribute all sums deposited in any pari-mutuel pool to the holders of
winning tickets therein, provided such tickets be presented for payment
before April first of the year following the year of their purchase,
less an amount which shall be established and retained by such fran-
chised corporation of between twelve to seventeen per centum of the
total deposits in pools resulting from on-track regular bets, and four-
teen to twenty-one per centum of the total deposits in pools resulting
from on-track multiple bets and fifteen to twenty-five per centum of the
total deposits in pools resulting from on-track exotic bets and fifteen
to thirty-six per centum of the total deposits in pools resulting from
on-track super exotic bets, plus the breaks. The retention rate to be
established is subject to the prior approval of the racing and wagering
board. Such rate may not be changed more than once per calendar quarter
to be effective on the first day of the calendar quarter. "Exotic bets"
and "multiple bets" shall have the meanings set forth in section five
hundred nineteen of this chapter. "Super exotic bets" shall have the
meaning set forth in section three hundred one of this chapter. For
purposes of this section, a "pick six bet" shall mean a single bet or
wager on the outcomes of six races. The breaks are hereby defined as the
odd cents over any multiple of five for payoffs greater than one dollar
five cents but less than five dollars, over any multiple of ten for
payoffs greater than five dollars but less than twenty-five dollars,
over any multiple of twenty-five for payoffs greater than twenty-five
dollars but less than two hundred fifty dollars, or over any multiple of
fifty for payoffs over two hundred fifty dollars. Out of the amount so
retained there shall be paid by such franchised corporation to the
commissioner of taxation and finance, as a reasonable tax by the state
for the privilege of conducting pari-mutuel betting on the races run at
the race meetings held by such franchised corporation, the following
percentages of the total pool for regular and multiple bets five per
centum of regular bets and four per centum of multiple bets plus twenty
per centum of the breaks; for exotic wagers seven and one-half per
centum plus twenty per centum of the breaks, and for super exotic bets
seven and one-half per centum plus fifty per centum of the breaks. For
the period June first, nineteen hundred ninety-five through September
ninth, nineteen hundred ninety-nine, such tax on regular wagers shall be
three per centum and such tax on multiple wagers shall be two and one-
half per centum, plus twenty per centum of the breaks. For the period
September tenth, nineteen hundred ninety-nine through March thirty-
first, two thousand one, such tax on all wagers shall be two and six-
tenths per centum and for the period April first, two thousand one
through December thirty-first, two thousand [nine] TEN, such tax on all
wagers shall be one and six-tenths per centum, plus, in each such peri-
S. 60--A 118 A. 160--A
od, twenty per centum of the breaks. Payment to the New York state
thoroughbred breeding and development fund by such franchised corpo-
ration shall be one-half of one per centum of total daily on-track pari-
mutuel pools resulting from regular, multiple and exotic bets and three
per centum of super exotic bets provided, however, that for the period
September tenth, nineteen hundred ninety-nine through March thirty-
first, two thousand one, such payment shall be six-tenths of one per
centum of regular, multiple and exotic pools and for the period April
first, two thousand one through December thirty-first, two thousand
[eight] TEN, such payment shall be seven-tenths of one per centum of
such pools.
S 11. Subdivision 5 of section 1012 of the racing, pari-mutuel wager-
ing and breeding law, as amended by chapter 18 of the laws of 2008, is
amended to read as follows:
5. The provisions of this section shall expire and be of no further
force and effect after June thirtieth, two thousand [nine] TEN.
S 12. This act shall take effect immediately, provided that the amend-
ments to paragraph (a) of subdivision 1 of section 238 of the racing,
pari-mutuel wagering and breeding law made by section nine of this act
shall be subject to the expiration and reversion of such paragraph
pursuant to section 32 of chapter 115 of the laws of 2008, as amended,
when upon such date the provisions of section ten of this act shall take
effect.
PART Z
Section 1. Paragraph 1 of subdivision (j) of section 1111 of the tax
law, as amended by section 1 of part E of chapter 85 of the laws of
2002, is amended to read as follows:
(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 [seven] EIGHT percent and rounding the result
thereof to the nearest whole cent per package.
S 2. This act shall take effect June 1, 2009; and shall apply to sales
made and uses occurring on or after that date in accordance with appli-
cable transitional provisions in article 28 of the tax law.
PART AA
Section 1. Paragraph 17 of subdivision (b) of section 1101 of the tax
law, as added by chapter 309 of the laws of 1996, is amended to read as
follows:
(17) Commercial aircraft. Aircraft used primarily (i) to transport
persons or property, for hire, (ii) by the purchaser of the aircraft
[primarily] to transport such person's tangible personal property in the
conduct of such person's business, or (iii) for both such purposes.
TRANSPORTING PERSONS FOR HIRE DOES NOT INCLUDE TRANSPORTING AGENTS,
EMPLOYEES, OFFICERS, MEMBERS, PARTNERS, MANAGERS OR DIRECTORS OF AFFIL-
IATED PERSONS. PERSONS ARE AFFILIATED PERSONS WITH RESPECT TO EACH OTHER
WHERE ONE OF THE PERSONS HAS AN OWNERSHIP INTEREST OF MORE THAN FIVE
PERCENT, WHETHER DIRECT OR INDIRECT, IN THE OTHER, OR WHERE AN OWNERSHIP
INTEREST OF MORE THAN FIVE PERCENT, WHETHER DIRECT OR INDIRECT, IS HELD
IN EACH OF THE PERSONS BY ANOTHER PERSON OR BY A GROUP OF OTHER PERSONS
THAT ARE AFFILIATED PERSONS WITH RESPECT TO EACH OTHER.
S 2. Subdivision 2 of section 1118 of the tax law, as amended by chap-
ter 651 of the laws of 1999, is amended to read as follows:
S. 60--A 119 A. 160--A
(2) In respect to the use of property or services purchased by the
user while a nonresident of this state, except in the case of tangible
personal property or services which the user, in the performance of a
contract, incorporates into real property located in the state. A person
while engaged in any manner in carrying on in this state any employment,
trade, business or profession, shall not be deemed a nonresident with
respect to the use in this state of property or services in such employ-
ment, trade, business or profession. THIS EXEMPTION DOES NOT APPLY TO
THE USE OF QUALIFIED PROPERTY WHERE THE QUALIFIED PROPERTY IS PURCHASED
PRIMARILY TO CARRY INDIVIDUALS, WHETHER OR NOT FOR HIRE, WHO ARE AGENTS,
EMPLOYEES, OFFICERS, SHAREHOLDERS, MEMBERS, MANAGERS, PARTNERS, OR
DIRECTORS OF (A) THE PURCHASER, WHERE ANY OF THOSE INDIVIDUALS WAS A
RESIDENT OF THIS STATE WHEN THE QUALIFIED PROPERTY WAS PURCHASED OR (B)
ANY AFFILIATED PERSON THAT WAS A RESIDENT WHEN THE QUALIFIED PROPERTY
WAS PURCHASED. FOR PURPOSES OF THIS SUBDIVISION: (I) PERSONS ARE AFFIL-
IATED PERSONS WITH RESPECT TO EACH OTHER WHERE ONE OF THE PERSONS HAS AN
OWNERSHIP INTEREST OF MORE THAN FIVE PERCENT, WHETHER DIRECT OR INDI-
RECT, IN THE OTHER, OR WHERE AN OWNERSHIP INTEREST OF MORE THAN FIVE
PERCENT, WHETHER DIRECT OR INDIRECT, IS HELD IN EACH OF THE PERSONS BY
ANOTHER PERSON OR BY A GROUP OF OTHER PERSONS THAT ARE AFFILIATED
PERSONS WITH RESPECT TO EACH OTHER; (II) "QUALIFIED PROPERTY" MEANS
AIRCRAFT, VESSELS AND MOTOR VEHICLES; AND (III) "CARRY" MEANS TO TAKE
ANY PERSON FROM ONE POINT TO ANOTHER, WHETHER FOR THE BUSINESS PURPOSES
OR PLEASURE OF THAT PERSON.
S 3. This act shall take effect on June 1, 2009, and shall apply to
sales made and uses occurring on or after such date in accordance with
the applicable transitional provisions in sections 1106 and 1217 of the
tax law.
PART BB
Section 1. Subdivision (e-1) of section 1132 of the tax law is
REPEALED.
S 2. This act shall take effect on June 1, 2009.
PART CC
Section 1. Section 208 of the tax law is amended by adding a new
subdivision 20 to read as follows:
20. THE TERM "DIGITAL PRODUCT" MEANS ANY PROPERTY OR SERVICE, OR
COMBINATION THEREOF, OF WHATEVER NATURE DELIVERED TO THE PURCHASER
THROUGH THE USE OF WIRE, CABLE, FIBER-OPTIC, LASER, MICROWAVE, RADIO
WAVE, SATELLITE OR SIMILAR SUCCESSOR MEDIA, OR ANY COMBINATION THEREOF.
DIGITAL PRODUCT INCLUDES, BUT IS NOT LIMITED TO, AN AUDIO WORK, AUDI-
OVISUAL WORK, VISUAL WORK, BOOK OR LITERARY WORK, GRAPHIC WORK, GAME,
INFORMATION OR ENTERTAINMENT SERVICE, STORAGE OF DIGITAL PRODUCTS AND
COMPUTER SOFTWARE BY WHATEVER MEANS DELIVERED. THE TERM "DELIVERED TO"
INCLUDES FURNISHED OR PROVIDED TO OR ACCESSED BY. FOR PURPOSES OF PARA-
GRAPH (A) OF SUBDIVISION TWO OF SECTION TWO HUNDRED NINE-B OF THIS ARTI-
CLE, SUBPARAGRAPH ONE OF PARAGRAPH (A) OF SUBDIVISION THREE OF SECTION
TWO HUNDRED TEN OF THIS ARTICLE AND SUBDIVISIONS TWELVE, TWELVE-B AND
THIRTY-THREE OF SECTION TWO HUNDRED TEN OF THIS ARTICLE, DIGITAL
PRODUCTS WILL BE DEEMED INTANGIBLE PROPERTY. A DIGITAL PRODUCT DOES NOT
INCLUDE LEGAL, MEDICAL, ACCOUNTING, ARCHITECTURAL OR ENGINEERING
SERVICES.
S. 60--A 120 A. 160--A
S 2. Clause (B) of subparagraph 2 of paragraph (a) of subdivision 3 of
section 210 of the tax law, as separately amended by section 1 of part K
and section 13 of part Y of chapter 63 of the laws of 2000, is amended
to read as follows:
(B) services performed within the state, provided, however, that (i)
in the case of a taxpayer engaged in the business of publishing newspa-
pers or periodicals, receipts arising from sales of advertising
contained in such newspapers and periodicals shall be deemed to arise
from services performed within the state to the extent that such newspa-
pers and periodicals are delivered to points within the state, (ii)
receipts from an investment company arising from the sale of management,
administration or distribution services to such investment company shall
be deemed to arise from services performed within the state to the
extent set forth in subparagraph six of this paragraph, (iii) in the
case of taxpayers principally engaged in the activity of air freight
forwarding acting as principal and like indirect air carriage receipts
arising from such activity shall arise from services performed within
the state as follows: one hundred percent of such receipts if both the
pickup and delivery associated with such receipts are made in this state
and fifty percent of such receipts if either the pickup or delivery
associated with such receipts is made in this state and (iv) in the case
of a taxpayer which is a registered securities or commodities broker or
dealer, the receipts specified in subparagraph nine of this paragraph
shall be deemed to arise from services performed within the state to the
extent set forth in such subparagraph nine, [and (iv)] (V) IN THE CASE
OF A TAXPAYER ENGAGED IN THE BUSINESS OF BROADCASTING TELEVISION OR
RADIO PROGRAMS OR OTHERWISE TRANSMITTING TELEVISION OR RADIO PROGRAMS,
RECEIPTS ARISING FROM SALES OF ADVERTISING ON TELEVISION OR RADIO WILL
BE DEEMED TO BE RECEIPTS FROM SERVICES PERFORMED WITHIN THE STATE BASED
ON THE RATIO OF THE NUMBER OF VIEWERS OR LISTENERS WITHIN THE STATE TO
THE TOTAL NUMBER OF VIEWERS OR LISTENERS WITHIN AND WITHOUT THE STATE,
AND (VI) IN THE CASE OF A TAXPAYER NOT DESCRIBED IN SUBCLAUSE (V) OF
THIS CLAUSE, RECEIPTS ARISING FROM SALES OF ADVERTISING THAT IS
FURNISHED, PROVIDED OR DELIVERED TO, OR ACCESSED BY THE VIEWER OR
LISTENER THROUGH THE USE OF WIRE, CABLE, FIBER-OPTIC, LASER, MICROWAVE,
RADIO WAVE, SATELLITE OR SIMILAR SUCCESSOR MEDIA OR ANY COMBINATION
THEREOF, WILL BE DEEMED TO BE RECEIPTS FROM A SERVICE PERFORMED WITHIN
THE STATE BASED ON THE RATIO OR THE NUMBER OF VIEWERS OR LISTENERS WITH-
IN THE STATE TO THE TOTAL NUMBER OF VIEWERS OR LISTENERS WITHIN AND
WITHOUT THE STATE, AND (VII) in the case of receipts arising from the
transportation or transmission of gas through pipes, the portion of such
receipts which constitute receipts from services performed within the
state shall be the product of (I) the total of such receipts and (II) a
fraction, the numerator of which is the taxpayer's transportation units
within the state and the denominator of which is the taxpayer's trans-
portation units within and without the state. A transportation unit is
the transportation of one cubic foot of gas over a distance of one mile,
S 3. Clause (C) of subparagraph 2 of paragraph (a) of subdivision 3 of
section 210 of the tax law, as amended by chapter 802 of the laws of
1975, is amended to read as follows:
(C) EXCEPT AS PROVIDED IN CLAUSE (D) OF THIS SUBPARAGRAPH, rentals
from property situated, and royalties from the use of patents or copy-
rights, AND OTHER SIMILAR INTANGIBLE PROPERTY within the state, [and
receipts from the sales of rights for closed-circuit and cable tele-
vision transmissions of an event (other than events occurring on a regu-
larly scheduled basis) taking place within the state as a result of the
S. 60--A 121 A. 160--A
rendition of services by employees of the corporation, as athletes,
entertainers or performing artists, but only to the extent that such
receipts are attributable to such transmissions received or exhibited
within the state] and
S 4. Clause (D) of subparagraph 2 of paragraph (a) of subdivision 3 of
section 210 of the tax law, as amended by chapter 802 of the laws of
1975, is amended to read as follows:
[(D)] (E) all other business receipts earned within the state, bear to
the total amount of the taxpayer's receipts, similarly computed, arising
during such period from all sales of its tangible personal property,
services, rentals, royalties, [receipts from the sales of rights for
closed-circuit and cable television transmissions] RECEIPTS FROM DIGITAL
PRODUCTS and all other business transactions, whether within or without
the state;
S 5. Subparagraph 2 of paragraph (a) of subdivision 3 of section 210
of the tax law is amended by adding new clause (D) to read as follows:
(D) RECEIPTS FROM THE SALE OF, LICENSE TO USE, OR GRANTING OF REMOTE
ACCESS TO DIGITAL PRODUCTS WITHIN THE STATE DETERMINED ACCORDING TO THE
HIERARCHY OF METHODS SET FORTH IN THIS CLAUSE IN THE ORDER STATED IN
SUBCLAUSES (I) THROUGH (IV) OF THIS CLAUSE. THE TAXPAYER MUST EXERCISE
DUE DILIGENCE UNDER EACH METHOD DESCRIBED IN THIS CLAUSE BEFORE REJECT-
ING IT AND PROCEEDING TO THE NEXT METHOD IN THE HIERARCHY. IF THE
RECEIPT FOR A DIGITAL PRODUCT IS COMPRISED OF A COMBINATION OF PROPERTY
AND SERVICES, IT CANNOT BE DIVIDED INTO SEPARATE COMPONENTS AND IS
CONSIDERED TO BE ONE RECEIPT REGARDLESS OF WHETHER IT IS SEPARATELY
STATED FOR BILLING PURPOSES. THE ENTIRE RECEIPT MUST BE ALLOCATED BY
THIS HIERARCHY.
(I) RECEIPTS ALLOCATED TO THE DELIVERY DESTINATION OF THE DIGITAL
PRODUCT. A DIGITAL PRODUCT IS DEEMED DELIVERED WITHIN THE STATE IF THE
LOCATION FROM WHICH THE PURCHASER OR ITS AUTHORIZED USER ACCESSES OR
USES THE DIGITAL PRODUCT IS IN THE STATE. DESTINATION MAY BE DEMON-
STRATED BY INTERNET PROTOCOL ADDRESS OR OTHER SIMILAR OR SUCCESSOR INDI-
CATOR, THE GEOGRAPHIC LOCATION OF THE EQUIPMENT TO WHICH THE DIGITAL
PRODUCT IS DELIVERED OR FROM WHICH THE DIGITAL PRODUCT IS ACCESSED, OR
THE DELIVERY DESTINATION INDICATED ON A BILL OF LADING OR PURCHASE
INVOICE. A DIGITAL PRODUCT ACCESSED OR USED BY THE PURCHASER OR ITS
AUTHORIZED USER DURING THE TAXPAYER'S TAXABLE YEAR IN MULTIPLE LOCATIONS
IS DELIVERED WITHIN THE STATE TO THE EXTENT THAT THE DIGITAL PRODUCT IS
ACCESSED OR USED IN THE STATE;
(II) THE BILLING ADDRESS OF THE PURCHASER;
(III) THE ZIP CODE OR OTHER GEOGRAPHIC INDICATOR OF THE PURCHASER'S
LOCATION; OR
(IV) THE PERCENTAGE OF THE TAXPAYER'S RECEIPTS WITHIN THE STATE DETER-
MINED PURSUANT TO THIS SUBPARAGRAPH FOR THE PRECEDING TAXABLE YEAR.
HOWEVER, IF THE TAXPAYER WAS NOT SUBJECT TO TAX IN THE PRECEDING TAXABLE
YEAR, THEN THE RECEIPTS WITHIN THE STATE IN THE CURRENT TAXABLE YEAR
DETERMINED PURSUANT TO THIS SUBPARAGRAPH.
S 6. Subparagraph 2 of paragraph (b) of subdivision 2 of section 209-B
of the tax law, as amended by section 3 of part K of chapter 63 of the
laws of 2000, is amended to read as follows:
(2) services performed within the metropolitan commuter transportation
district, provided, however, that (i) in the case of a taxpayer engaged
in the business of publishing newspapers or periodicals, receipts aris-
ing from sales of advertising contained in such newspapers and period-
icals shall be deemed to arise from services performed within the metro-
politan commuter transportation district to the extent that such
S. 60--A 122 A. 160--A
newspapers and periodicals are delivered to points within the metropol-
itan commuter transportation district, (ii) receipts from an investment
company from the sale of management, administration or distribution
services to such investment company shall be deemed to arise from
services performed within the metropolitan commuter transportation
district to the extent set forth in subparagraph six of paragraph (a) of
subdivision three of section two hundred ten of this chapter (except
that references in such subparagraph six to the state shall be deemed,
for purposes of application to this clause, to be references to the
metropolitan commuter transportation district), (iii) in the case of
taxpayers principally engaged in the activity of air freight forwarding
acting as principal and like indirect air carriage receipts arising from
such activity shall arise from services performed within the metropol-
itan commuter transportation district as follows: one hundred percent of
such receipts if both the pickup and delivery associated with such
receipts are made in the metropolitan commuter transportation district
and fifty percent of such receipts if either the pickup or delivery
associated with such receipts is made in the metropolitan commuter
transportation district, [and] (iv) in the case of a taxpayer which is a
registered securities or commodities broker or dealer, the receipts
specified in subparagraph nine of paragraph (a) of subdivision three of
section two hundred ten of this article shall be deemed to arise from
services performed within the metropolitan commuter transportation
district to the extent set forth in such subparagraph nine (except that
references in such subparagraph nine to the state shall be deemed, for
purposes of the application of this clause, to be references to the
metropolitan commuter transportation district) AND (V) IN THE CASE OF A
TAXPAYER ENGAGED IN THE BUSINESS OF BROADCASTING TELEVISION OR RADIO
PROGRAMS OR OTHERWISE TRANSMITTING TELEVISION OR RADIO PROGRAMS,
RECEIPTS ARISING FROM SALES OF ADVERTISING ON TELEVISION OR RADIO WILL
BE DEEMED TO BE RECEIPTS FROM SERVICES PERFORMED WITHIN THE METROPOLITAN
COMMUTER TRANSPORTATION DISTRICT BASED ON THE RATIO OF THE NUMBER OF
VIEWERS OR LISTENERS WITHIN THE METROPOLITAN COMMUTER TRANSPORTATION
DISTRICT TO THE TOTAL NUMBER OF VIEWERS OR LISTENERS WITHIN THE STATE,
AND (VI) IN THE CASE OF A TAXPAYER NOT DESCRIBED IN CLAUSE (V) OF THIS
SUBPARAGRAPH, RECEIPTS ARISING FROM SALES OF ADVERTISING THAT IS
FURNISHED TO, PROVIDED OR DELIVERED TO, OR ACCESSED BY THE VIEWER OR
LISTENER THROUGH THE USE OF WIRE, CABLE, FIBER-OPTIC, LASER, MICROWAVE,
RADIO WAVE, SATELLITE OR SIMILAR SUCCESSOR MEDIA OR ANY COMBINATION
THEREOF, WILL BE DEEMED TO BE RECEIPTS FROM A SERVICE PERFORMED WITHIN
THE METROPOLITAN COMMUTER TRANSPORTATION DISTRICT BASED ON THE RATIO OF
THE NUMBER OF VIEWERS OR LISTENERS WITHIN THE METROPOLITAN COMMUTER
TRANSPORTATION DISTRICT TO THE TOTAL NUMBER OF VIEWERS OR LISTENERS
WITHIN THE STATE,
S 7. Subparagraph 3 of paragraph (b) of subdivision 2 of section 209-B
of the tax law, as amended by chapter 11 of the laws of 1983, is amended
to read as follows:
(3) EXCEPT AS PROVIDED IN SUBPARAGRAPH FOUR OF THIS PARAGRAPH, rentals
from property situated and royalties from the use of patents or copy-
rights AND OTHER SIMILAR INTANGIBLE within the metropolitan commuter
transportation district, [and receipts from the sales of rights for
closed-circuit and cable television transmissions of an event (other
than events occurring on a regularly scheduled basis) taking place with-
in the metropolitan commuter transportation district as a result of the
rendition of services by employees of the corporation, as athletes,
entertainers or performing artists, but only to the extent that such
S. 60--A 123 A. 160--A
receipts are attributable to such transmissions received or exhibited
within the metropolitan commuter transportation district,] and
S 8. Subparagraph 4 of paragraph (b) of subdivision 2 of section 209-B
of the tax law, as amended by chapter 11 of the laws of 1983, is amended
to read as follows:
[(4)] (5) all other business receipts earned within the metropolitan
commuter transportation district, bear to the total amount of the
taxpayer's receipts, similarly computed, arising during such period from
all sales of its tangible personal property, services, rentals, royal-
ties, [receipts from the sales of rights for closed-circuit and cable
television transmissions] RECEIPTS FROM DIGITAL PRODUCTS and all other
business transactions, within the state;
S 9. Paragraph (b) of subdivision 2 of section 209-B of the tax law is
amended by adding a new subparagraph 4 to read as follows:
(4) RECEIPTS FROM THE SALE OF, LICENSE TO USE, OR GRANTING OF REMOTE
ACCESS TO DIGITAL PRODUCTS WITHIN THE METROPOLITAN COMMUTER TRANSPORTA-
TION DISTRICT DETERMINED ACCORDING TO THE HIERARCHY OF METHODS SET FORTH
IN THIS SUBPARAGRAPH IN THE ORDER STATED IN CLAUSES (I) THROUGH (IV) OF
THIS SUBPARAGRAPH. THE TAXPAYER MUST EXERCISE DUE DILIGENCE UNDER EACH
METHOD DESCRIBED IN THIS SUBPARAGRAPH BEFORE REJECTING IT AND PROCEEDING
TO THE NEXT METHOD IN THE HIERARCHY. IF THE RECEIPT FOR A DIGITAL PROD-
UCT IS COMPRISED OF A COMBINATION OF PROPERTY AND SERVICES, IT CANNOT BE
DIVIDED INTO SEPARATE COMPONENTS AND IS CONSIDERED TO BE ONE RECEIPT
REGARDLESS OF WHETHER IT IS SEPARATELY STATED FOR BILLING PURPOSES. THE
ENTIRE RECEIPT MUST BE ALLOCATED BY THIS HIERARCHY.
(I) RECEIPTS ALLOCATED TO THE DELIVERY DESTINATION OF THE DIGITAL
PRODUCT. A DIGITAL PRODUCT IS DEEMED DELIVERED WITHIN THE METROPOLITAN
COMMUTER TRANSPORTATION DISTRICT IF THE LOCATION FROM WHICH THE PURCHAS-
ER OR ITS AUTHORIZED USER ACCESSES OR USES THE DIGITAL PRODUCT IS IN THE
METROPOLITAN COMMUTER TRANSPORTATION DISTRICT. DESTINATION MAY BE DEMON-
STRATED BY INTERNET PROTOCOL ADDRESS OR OTHER SIMILAR OR SUCCESSOR INDI-
CATOR, THE GEOGRAPHIC LOCATION OF THE EQUIPMENT TO WHICH THE DIGITAL
PRODUCT IS DELIVERED OR FROM WHICH THE DIGITAL PRODUCT IS ACCESSED, THE
DELIVERY DESTINATION INDICATED ON A BILL OF LADING OR PURCHASE INVOICE.
A DIGITAL PRODUCT ACCESSED OR USED BY THE PURCHASER OR ITS AUTHORIZED
USER DURING THE TAXPAYER'S TAXABLE YEAR IN MULTIPLE LOCATIONS IS DELIV-
ERED WITHIN THE METROPOLITAN COMMUTER TRANSPORTATION DISTRICT TO THE
EXTENT THAT THE DIGITAL PRODUCT IS ACCESSED OR USED IN THE METROPOLITAN
COMMUTER TRANSPORTATION DISTRICT;
(II) THE BILLING ADDRESS OF THE PURCHASER;
(III) THE ZIP CODE OR OTHER GEOGRAPHIC INDICATOR OF THE PURCHASER'S
LOCATION; OR
(IV) THE PERCENTAGE OF THE TAXPAYER'S RECEIPTS WITHIN THE METROPOLITAN
COMMUTER TRANSPORTATION DISTRICT DETERMINED PURSUANT TO THIS PARAGRAPH
FOR THE PRECEDING TAXABLE YEAR. HOWEVER, IF THE TAXPAYER WAS NOT SUBJECT
TO TAX IN THE PRECEDING TAXABLE YEAR, THEN THE RECEIPTS WITHIN THE
METROPOLITAN COMMUTER TRANSPORTATION DISTRICT IN THE CURRENT TAXABLE
YEAR DETERMINED PURSUANT TO THIS PARAGRAPH.
S 9-a. Subparagraph 4 of paragraph (b) of subdivision 2 of section
186-e of the tax law, as added by section 5 of part S of chapter 85 of
the laws of 2002, is amended to read as follows:
(4) With respect to services [or], property OR DIGITAL PRODUCTS
described in subparagraph (B) of paragraph one of subdivision [(1)] ONE
of section eleven hundred eleven of this chapter and internet access
service, a home service provider shall pay tax on the gross receipt from
any charge that is aggregated with and not separately stated from other
S. 60--A 124 A. 160--A
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 sepa-
rately 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 the subparagraph (B) property, DIGITAL
PRODUCT or service or internet access service, then the charge for such
property, DIGITAL PRODUCT or service shall be based upon the price for
such property, DIGITAL PRODUCT 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, DIGITAL PRODUCT or service, then
the charge for such property, DIGITAL PRODUCT or service shall be based
upon the prevailing retail price of comparable property, DIGITAL PRODUCT
or service sold separately by other home service providers. In any case,
the charge for such property, DIGITAL PRODUCT or service shall be
reasonable and proportionate to the total charge to the mobile telecom-
munications customer. Such charges for such subparagraph (B) services
[or], property, DIGITAL PRODUCTS or internet access service, as the case
may be, will not constitute gross receipts from charges for mobile tele-
communications services. Nothing herein shall be construed to exempt
from tax any service or property, OR DIGITAL PRODUCT otherwise subject
to tax under this section.
S 10. Section 1101 of the tax law is amended by adding a new subdivi-
sion (e) to read as follows:
(E) DIGITAL PRODUCT. (1) WHEN USED IN THIS ARTICLE FOR THE PURPOSES
OF THE TAXES IMPOSED BY SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE
OF THIS ARTICLE AND BY SECTION ELEVEN HUNDRED TEN OF THIS ARTICLE, THE
TERM "DIGITAL PRODUCT" MEANS ANY PROPERTY OR SERVICE OF WHATEVER NATURE,
DELIVERED TO THE PURCHASER THROUGH THE USE OF WIRE, CABLE, FIBER OPTIC,
LASER, MICROWAVE, RADIO WAVE, SATELLITE OR SIMILAR OR SUCCESSOR MEDIA,
OR ANY COMBINATION THEREOF. DIGITAL PRODUCT INCLUDES, BUT IS NOT LIMITED
TO, AN AUDIO WORK, AUDIOVISUAL WORK, VISUAL WORK, BOOK OR LITERARY WORK,
GRAPHIC WORK, GAME, INFORMATION OR ENTERTAINMENT SERVICE, STORAGE OF
DIGITAL PRODUCTS AND COMPUTER SOFTWARE. THE TERM "DELIVERED TO" INCLUDES
FURNISHED OR PROVIDED TO OR ACCESSED BY.
(2) DIGITAL PRODUCT DOES NOT INCLUDE THE FOLLOWING:
(I) ANY TANGIBLE PERSONAL PROPERTY OR SERVICE THAT IS SUBJECT TO TAX
UNDER ANY PROVISION OF THIS ARTICLE OTHER THAN SUBDIVISION (G) OF
SECTION ELEVEN HUNDRED FIVE OF THIS ARTICLE.
(II) ANY SERVICE, OTHER THAN A GAME OR ENTERTAINMENT SERVICE, UNLESS
THAT SERVICE WOULD OTHERWISE BE SUBJECT TO TAX UNDER PARAGRAPHS ONE,
SEVEN OR EIGHT OF SUBDIVISION (C) OF SECTION ELEVEN HUNDRED FIVE OF THIS
ARTICLE IF THAT SERVICE WERE FURNISHED, PROVIDED OR DELIVERED IN TANGI-
BLE FORM OR AS A SERVICE TO TANGIBLE PERSONAL PROPERTY OR REAL PROPERTY.
(III) TELEVISION OR RADIO PROGRAMMING WHERE THE PURCHASER DOES NOT
SELECT BOTH THE CONTENT AND THE TIME AT WHICH THE CONTENT IS DISPLAYED.
(IV) PURCHASER-SELECTED CONTENT SOLD WITH TELEVISION PROGRAMMING FOR A
SINGLE CHARGE.
(V) COMPUTER SOFTWARE THAT IS NOT PRE-WRITTEN COMPUTER SOFTWARE.
S 11. Section 1105 of the tax law is amended by adding a new subdivi-
sion (g) to read as follows:
(G) RECEIPTS FROM EVERY RETAIL SALE OF A DIGITAL PRODUCT. NOTWITH-
STANDING ANY OTHER PROVISION OF LAW, A DIGITAL PRODUCT IS DELIVERED TO
THE LOCATION TO WHICH THE DIGITAL PRODUCT IS TRANSMITTED TO THE PURCHAS-
ER OR ITS AGENT, OR FROM WHICH THE PURCHASER OR ITS AGENT ACCESSES THE
S. 60--A 125 A. 160--A
DIGITAL PRODUCT. FOR PURPOSES OF DETERMINING THE JURISDICTION OR JURIS-
DICTIONS IN WHICH THE RETAIL SALE OF A DIGITAL PRODUCT OCCURS, THE
FOLLOWING RULES APPLY:
(1) RECEIPTS FROM THE RETAIL SALE OF DIGITAL PRODUCTS, OTHER THAN
PRE-WRITTEN COMPUTER SOFTWARE THAT IS NOT IN TANGIBLE FORM, ARE SOURCED
TO THE PLACE WHERE DELIVERED TO THE PURCHASER. THE FOREGOING RULE IS
AMPLIFIED, BUT NOT LIMITED, BY THE FOLLOWING SPECIAL PROVISIONS:
(I) IF THE VENDOR KNOWS, EITHER BY INTERNET PROTOCOL ADDRESS OR OTHER
SIMILAR OR SUCCESSOR INDICATOR, THE GEOGRAPHIC LOCATION OF THE EQUIPMENT
TO WHICH THE DIGITAL PRODUCT IS DELIVERED, THE RETAIL SALE IS SOURCED TO
THE JURISDICTION OR JURISDICTIONS IN WHICH THAT EQUIPMENT IS LOCATED;
(II) IF THE GEOGRAPHIC LOCATION OF THE EQUIPMENT DESCRIBED IN SUBPARA-
GRAPH (I) OF THIS PARAGRAPH IS UNKNOWN, THE RETAIL SALE IS SOURCED TO
THE JURISDICTION OR JURISDICTIONS IN WHICH THE BILLING ADDRESS OF THE
PURCHASER ASSOCIATED WITH THE METHOD OF PAYMENT FOR THE DIGITAL PRODUCT
IS LOCATED;
(III) IF THE GEOGRAPHIC LOCATION OF THE EQUIPMENT DESCRIBED IN SUBPAR-
AGRAPH (I) AND THE BILLING ADDRESS DESCRIBED IN SUBPARAGRAPH (II) OF
THIS PARAGRAPH ARE UNKNOWN, THE RETAIL SALE IS SOURCED TO THE RESIDEN-
TIAL OR BUSINESS STREET ADDRESS OF THE PURCHASER, AS APPLICABLE,
PROVIDED THAT THE USE OF THAT ADDRESS DOES NOT CONSTITUTE BAD FAITH.
(2) RECEIPTS FROM THE RETAIL SALE OF PRE-WRITTEN COMPUTER SOFTWARE
THAT IS NOT IN TANGIBLE FORM ARE SOURCED AS FOLLOWS:
(I) IF THE RECEIPT FROM THE RETAIL SALE OF THE SOFTWARE IS LESS THAN
ONE THOUSAND DOLLARS, OR THE RETAIL SALE OF THE SOFTWARE INCLUDES FEWER
THAN TEN SITE LICENSES, OR BOTH, THE RETAIL SALE OF THE SOFTWARE IS
SOURCED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH ONE OF THIS
SUBDIVISION;
(II) IF THE RECEIPT FROM THE RETAIL SALE OF THE SOFTWARE IS ONE THOU-
SAND DOLLARS OR MORE, OR THE SOFTWARE INCLUDES TEN OR MORE SITE
LICENSES, THE RETAIL SALE OF THE SOFTWARE IS SOURCED IN ACCORDANCE WITH
THE PROVISIONS OF PARAGRAPH ONE OF THIS SUBDIVISION, UNLESS THE VENDOR
HAS TIMELY RECEIVED FROM THE PURCHASER A PROPERLY COMPLETED MULTIPLE
POINTS OF USE CERTIFICATE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVI-
SION (C) OF SECTION ELEVEN HUNDRED THIRTY-TWO OF THIS ARTICLE.
S 12. Subdivision (c) of section 1132 of the tax law, as amended by
chapter 2 of the laws of 1995, is amended to read as follows:
(c) (1) For the purpose of the proper administration of this article
and to prevent evasion of the tax hereby imposed, it shall be presumed
that all receipts for property, DIGITAL PRODUCTS or services of any type
mentioned in subdivisions (a), (b), (c) [and], (d) AND (G) of section
eleven hundred five OF THIS ARTICLE, all rents for occupancy of the type
mentioned in subdivision (e) of [said] SUCH section, and all amusement
charges of any type mentioned in subdivision (f) of [said] SUCH section,
are subject to tax until the contrary is established, and the burden of
proving that any receipt, amusement charge or rent is not taxable here-
under shall be upon the person required to collect tax or the customer.
Except as provided in subdivision (h) or (k) of this section, unless (i)
a vendor, not later than ninety days after delivery of the property OR
DIGITAL PRODUCT, or the rendition of the service, shall have taken from
the purchaser a resale or exemption certificate in such form as the
commissioner may prescribe, signed by the purchaser and setting forth
the purchaser's name and address and, except as otherwise provided by
regulation of the commissioner, the number of the purchaser's certif-
icate of authority, together with such other information as the commis-
sioner may require, to the effect that the property, DIGITAL PRODUCT or
S. 60--A 126 A. 160--A
service was purchased for resale or for some use by reason of which the
sale is exempt from tax under the provisions of section eleven hundred
fifteen OF THIS ARTICLE, and, where such resale or exemption certificate
requires the inclusion of the purchaser's certificate of authority
number or other identification number required by regulations of the
commissioner, that the purchaser's certificate of authority has not been
suspended or revoked and has not expired as provided in section eleven
hundred thirty-four OF THIS PART, or (ii) the purchaser, not later than
ninety days after delivery of the property OR DIGITAL PRODUCT or the
rendition of the service, furnishes to the vendor: any affidavit, state-
ment or additional evidence, documentary or otherwise, which the commis-
sioner may require demonstrating that the purchaser is an exempt organ-
ization described in section eleven hundred sixteen OF THIS ARTICLE, the
sale shall be deemed a taxable sale at retail. Where a resale or
exemption certificate or an affidavit, statement or additional evidence
referred to in the previous sentence is received within the time limit
set forth therein, but is deficient in some material manner, and where
such deficiency is thereafter removed, the receipt of such resale or
exemption certificate or such affidavit, statement or additional
evidence shall be deemed to have satisfied all of the requirements of
the preceding sentence. Where such a resale or exemption certificate or
such an affidavit, statement or additional evidence has been furnished
to the vendor, the burden of proving that the receipt, amusement charge
or rent is not taxable hereunder shall be solely upon the customer. The
vendor shall not be required to collect tax from purchasers who furnish
a resale or exemption certificate, or such an affidavit, statement or
additional evidence in proper form, unless, in the case of a resale or
exemption certificate described in [clause] SUBPARAGRAPH (i) [of the
second sentence] of this paragraph whereon the purchaser's certificate
of authority number, or other identification number required by regu-
lation of the commissioner, is required to be included, such purchaser's
certificate of authority is invalid because it has been suspended or
revoked as provided in section eleven hundred thirty-four OF THIS PART,
and the commissioner has furnished registered vendors with information
identifying those persons whose certificates of authority have been
suspended or revoked, or unless such purchaser's certificate of authori-
ty is invalid because it has expired, and the commissioner has provided
registered vendors with a means of determining whether such expiration
has occurred. Where the vendor accepts such a resale or exemption
certificate from a person identified by the commissioner as one whose
certificate of authority has been suspended or revoked or from a person
whose certificate of authority has been identified as having expired,
the receipt, amusement charge or rent from such transaction shall be
deemed to be a taxable sale at retail.
(2) Notwithstanding paragraph one of this subdivision or any other law
to the contrary, the commissioner may authorize a purchaser, who
acquires tangible personal property, DIGITAL PRODUCTS or services under
circumstances which make it impossible at the time of acquisition to
determine the manner in which the tangible personal property, DIGITAL
PRODUCTS or services will be used, to pay the tax directly to the
commissioner and waive the collection of the tax by the vendor. Subject
to such reasonable conditions as the commissioner may require, the
commissioner shall authorize an omnibus carrier described in subdivision
(b) of section eleven hundred nineteen OF THIS ARTICLE to pay the tax on
the purchase or use of an omnibus directly to the commissioner and waive
the collection of the tax by the vendor. No such authority shall be
S. 60--A 127 A. 160--A
granted or exercised except upon application to the commissioner, and
the issuance by the commissioner, in the commissioner's discretion, of a
direct payment permit. If a direct payment permit is granted, its use
shall be subject to conditions specified by the commissioner, and the
payment of tax on all acquisitions pursuant to the permit shall be made
directly to the commissioner by the permit holder. The commissioner may
suspend or revoke a direct payment permit where the permit holder fails
to comply with any of the provisions of this article or any rule promul-
gated by the commissioner with respect to this article. The notice and
hearing provisions applicable to the revocation and suspension of
certificates of authority under section eleven hundred thirty-four OF
THIS PART shall apply to the suspension and revocation of direct payment
permits. A vendor shall not be required to collect tax from a purchaser
who furnishes a direct payment permit in proper form, unless such
purchaser's direct payment permit has been suspended or revoked by the
commissioner and the commissioner has provided registered vendors with
information identifying those persons whose direct payment permits have
been suspended or revoked. Where a vendor accepts a direct payment
permit from a person whose direct payment permit has been suspended or
revoked, and the commissioner has provided registered vendors with
information identifying those persons whose direct payment permits have
been suspended or revoked, the receipt, amusement charge or rent from
such transaction shall be deemed to be subject to tax.
(3) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, IF A
VENDOR OF PRE-WRITTEN COMPUTER SOFTWARE DESCRIBED IN CLAUSE (II) OF
PARAGRAPH TWO OF SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS
ARTICLE HAS, NOT LATER THAN NINETY DAYS AFTER THE DELIVERY OF THE
PRE-WRITTEN COMPUTER SOFTWARE, TAKEN FROM THE PURCHASER A PROPERLY
COMPLETED MULTIPLE POINTS OF USE CERTIFICATE THAT SETS FORTH THE JURIS-
DICTION OR JURISDICTIONS IN WHICH THE SOFTWARE IS DELIVERED, THE SALE OF
THE SOFTWARE MUST BE SOURCED, AND THE VENDOR MUST ALLOCATE, COLLECT, AND
REMIT THE TAXES IMPOSED BY THIS ARTICLE AND PURSUANT TO THE AUTHORITY OF
ARTICLE TWENTY-NINE OF THIS CHAPTER, BASED ON THE JURISDICTION OR JURIS-
DICTIONS WITHIN NEW YORK STATE IN WHICH EACH USER IS LOCATED, AS INDI-
CATED BY THE PURCHASER IN THE CERTIFICATE. THE MULTIPLE POINTS OF USE
CERTIFICATE SHALL BE IN THE FORM THE COMMISSIONER MAY PRESCRIBE, SIGNED
BY THE PURCHASER, SHALL SET FORTH THE PURCHASER'S NAME AND ADDRESS AND,
EXCEPT AS OTHERWISE PROVIDED BY REGULATION OF THE COMMISSIONER, STATE
THE NUMBER OF THE PURCHASER'S CERTIFICATE OF AUTHORITY, TOGETHER WITH
ANY OTHER INFORMATION THE COMMISSIONER MAY REQUIRE. WHEN A PROPERLY
COMPLETED MULTIPLE POINTS OF USE CERTIFICATE HAS BEEN FURNISHED TO THE
VENDOR, THE BURDEN OF PROVING THE JURISDICTION OR JURISDICTIONS TO WHICH
THE PRE-WRITTEN COMPUTER SOFTWARE WAS DELIVERED WILL BE SOLELY UPON THE
PURCHASER. WHEN A MULTIPLE POINTS OF USE CERTIFICATE IS TIMELY RECEIVED
BY THE VENDOR BUT IS DEFICIENT IN SOME MATERIAL WAY, AND THE DEFICIENCY
IS LATER REMOVED, THE RECEIPT OF THE CERTIFICATE WILL BE DEEMED TO HAVE
SATISFIED ALL OF THE REQUIREMENTS OF THIS PARAGRAPH.
(4) A MULTIPLE POINTS OF USE CERTIFICATE IS NOT VALID IF THE PURCHAS-
ER'S CERTIFICATE OF AUTHORITY HAS BEEN SUSPENDED OR REVOKED AND THE
COMMISSIONER HAS FURNISHED REGISTERED VENDORS WITH INFORMATION IDENTIFY-
ING THOSE PERSONS WHOSE CERTIFICATES OF AUTHORITY HAVE BEEN SUSPENDED OR
REVOKED, OR THE PURCHASER'S CERTIFICATE OF AUTHORITY IS INVALID BECAUSE
IT HAS EXPIRED AS PROVIDED IN SECTION ELEVEN HUNDRED THIRTY-FOUR OF THIS
PART AND THE COMMISSIONER HAS PROVIDED REGISTERED VENDORS WITH A MEANS
OF DETERMINING THAT THE PURCHASER'S CERTIFICATE OF AUTHORITY HAS
EXPIRED. THE VENDOR WILL NOT BE REQUIRED TO COLLECT TAX ALLOCABLE TO THE
S. 60--A 128 A. 160--A
PORTION OF THE RECEIPT THAT THE PROPERLY COMPLETED MULTIPLE POINTS OF
USE CERTIFICATE INDICATES IS ATTRIBUTABLE TO USE OF THE SOFTWARE OUTSIDE
NEW YORK STATE.
S 13. Paragraph (i) of subdivision (d) of section 12 of the tax law,
as added by chapter 615 of the laws of 1998, is amended to read as
follows:
(i) Except as provided in clause (B) of subparagraph (ii) of paragraph
eight of subdivision (b) of section eleven hundred one of this chapter,
a person selling telecommunication services or an Internet access
service shall not be deemed to be a vendor, for purposes of article
twenty-eight or twenty-nine of this chapter, of tangible personal prop-
erty, DIGITAL PRODUCTS or services sold by the purchaser of such tele-
communication services or Internet access service solely because such
purchaser uses such telecommunication services or Internet access
service as a means to sell such tangible personal property, DIGITAL
PRODUCTS or services.
S 14. The opening paragraph of subdivision (b) of section 1101 of the
tax law, as added by chapter 93 of the laws of 1965, is amended to read
as follows:
When used in this article for the purposes of the taxes imposed by
subdivisions (a), (b), (c) [and], (d) AND (G) of section eleven hundred
five and by section eleven hundred ten OF THIS ARTICLE, the following
terms shall mean:
S 15. Paragraph 2 of subdivision (b) of section 1101 of the tax law,
as amended by section 7 of part S of chapter 85 of the laws of 2002, is
amended to read as follows:
(2) Purchaser. A person who purchases property OR A DIGITAL PRODUCT or
to whom are rendered services, the receipts from which are taxable under
this article, including a mobile telecommunications customer.
S 16. Paragraph 3 of subdivision (b) of section 1101 of the tax law,
as amended by section 21 of part Y of chapter 63 of the laws of 2000, is
amended to read as follows:
(3) Receipt. The amount of the sale price of any property OR DIGITAL
PRODUCT and the charge for any service taxable under this article,
including gas and gas service and electricity and electric service of
whatever nature, valued in money, whether received in money or other-
wise, including any amount for which credit is allowed by the vendor to
the purchaser, without any deduction for expenses or early payment
discounts and also including any charges by the vendor to the purchaser
for shipping or delivery, and, with respect to gas and gas service and
electricity and electric service, any charges by the vendor for trans-
portation, transmission or distribution, regardless of whether such
charges are separately stated in the written contract, if any, or on the
bill rendered to such purchaser and regardless of whether such shipping
or delivery or transportation, transmission, or distribution is provided
by such vendor or a third party, but excluding any credit for tangible
personal property accepted in part payment and intended for resale. For
special rules governing computation of receipts, see section eleven
hundred eleven OF THIS ARTICLE.
S 17. Subparagraph (i) of paragraph 4 of subdivision (b) of section
1101 of the tax law, as amended by chapter 190 of the laws of 1990, is
amended to read as follows:
(i) A sale of tangible personal property OR A DIGITAL PRODUCT to any
person for any purpose, other than (A) for resale as such or as a phys-
ical component part of tangible personal property OR, IN THE CASE OF A
DIGITAL PRODUCT, AS A COMPONENT PART OF TANGIBLE PERSONAL PROPERTY, or
S. 60--A 129 A. 160--A
(B) for use by that person in performing the services subject to tax
under paragraphs (1), (2), (3), (5), (7) and (8) of subdivision (c) of
section eleven hundred five OF THIS ARTICLE where the TANGIBLE PERSONAL
property so sold becomes a physical component part OR THE DIGITAL PROD-
UCT BECOMES A COMPONENT PART of the property upon which the services are
performed or where the property so sold is later actually transferred to
the purchaser of the service in conjunction with the performance of the
service subject to tax. Notwithstanding the preceding provisions of
this subparagraph, a sale of any tangible personal property to a
contractor, subcontractor or repairman for use or consumption in erect-
ing structures or buildings, or building on, or otherwise adding to,
altering, improving, maintaining, servicing or repairing real property,
property or land, as the terms real property, property or land are
defined in the real property tax law, is deemed to be a retail sale
regardless of whether the tangible personal property is to be resold as
such before it is so used or consumed, except that a sale of a new
mobile home to a contractor, subcontractor or repairman who, in such
capacity, installs such property is not a retail sale. Notwithstanding
the preceding provisions of this subparagraph, the purchase of a truck,
trailer or tractor-trailer combination for rental or lease to an author-
ized carrier, as described in paragraph twenty-two of subdivision (a) of
section eleven hundred fifteen OF THIS ARTICLE, shall be deemed a retail
sale.
S 18. Clause (A) of subparagraph (iv) of paragraph 4 of subdivision
(b) of section 1101 of the tax law, as added by chapter 93 of the laws
of 1965 and such subparagraph as renumbered by chapter 2 of the laws of
1995, is amended to read as follows:
(A) The transfer of tangible personal property OR A DIGITAL PRODUCT to
a corporation, solely in consideration for the issuance of its stock,
pursuant to a merger or consolidation effected under the law of New York
or any other jurisdiction.
S 19. Paragraph 6 of subdivision (b) of section 1101 of the tax law,
as amended by chapter 498 of the laws of 1994, is amended to read as
follows:
(6) Tangible personal property. Corporeal personal property of any
nature. However, except for purposes of the tax imposed by subdivision
(b) of section eleven hundred five, such term shall not include gas,
electricity, refrigeration and steam. Such term shall also include pre-
written computer software, whether sold as part of a package, as a sepa-
rate component, or otherwise, [and regardless of the medium by means of
which such software is conveyed to a purchaser. Such term shall also
include newspapers and periodicals where the vendor ships or delivers
the entire edition or issue of the newspaper or periodical, with or
without the advertising included in the paper edition or issue, but not
including anything, other than advertising, not in such paper edition or
issue, to the purchaser by means of telephony or telegraphy or other
electronic media, but only where the amount of the sale price to such
purchaser of such newspaper or magazine or the subscription price, in
the case of a subscription to a newspaper or periodical, including any
charge by such vendor for shipping or delivery to the purchaser, is
separately stated to such purchaser] WHEN DELIVERED TO THE PURCHASER IN
TANGIBLE FORM.
S 20. Paragraph 7 of subdivision (b) of section 1101 of the tax law,
as amended by chapter 651 of the laws of 1999, is amended to read as
follows:
S. 60--A 130 A. 160--A
(7) Use. The exercise of any right or power over tangible personal
property OR A DIGITAL PRODUCT, or over any of the services which are
subject to tax under section eleven hundred ten of this article or
pursuant to the authority of article twenty-nine of this chapter, by the
purchaser thereof, and includes, but is not limited to, the receiving,
storage or any keeping or retention for any length of time, withdrawal
from storage, any installation, any affixation to real or personal prop-
erty, or any consumption of such property OR DIGITAL PRODUCT or of any
such service subject to tax under such section eleven hundred ten or
pursuant to the authority of such article twenty-nine. Without limiting
the foregoing, use also [shall include] INCLUDES THE ACCESSING OF A
DIGITAL PRODUCT FROM A LOCATION WITHIN THE STATE, REGARDLESS OF WHERE
THE DIGITAL PRODUCT IS INSTALLED OR RESIDES ON A SERVER OR OTHER EQUIP-
MENT, AND the distribution of [only] tangible personal property OR
DIGITAL PRODUCTS, such as promotional materials, or of any such service
subject to tax under such section eleven hundred ten OF THIS ARTICLE or
pursuant to the authority of such article twenty-nine OF THIS CHAPTER.
S 21. Subparagraph (i) of paragraph 8 of subdivision (b) of section
1101 of the tax law, as amended by chapter 61 of the laws of 1989,
clause (F) as added and clauses (G) and (H) as relettered by chapter 190
of the laws of 1990, is amended to read as follows:
(i) The term "vendor" includes:
(A) A person making sales of tangible personal property, DIGITAL
PRODUCTS or services, the receipts from which are taxed by this article;
(B) A person maintaining a place of business in the state and making
sales, whether at such place of business or elsewhere, to persons within
the state of tangible personal property, DIGITAL PRODUCTS or services,
the use of which is taxed by this article;
(C) A person who solicits business either:
(I) by employees, independent contractors, agents or other represen-
tatives; or
(II) by distribution of catalogs or other advertising matter, without
regard to whether such distribution is the result of regular or system-
atic solicitation, if such person has some additional connection with
the state which satisfies the nexus requirement of the United States
constitution;
and by reason thereof makes sales to persons within the state of tangi-
ble personal property, DIGITAL PRODUCTS or services, the use of which is
taxed by this article;
(D) A person who makes sales of tangible personal property or
services, the use of which is taxed by this article, and who regularly
or systematically delivers such property or services in this state by
means other than the United States mail or common carrier;
(E) A person who regularly or systematically solicits business in this
state by the distribution, without regard to the location from which
such distribution originated, of catalogs, advertising flyers or
letters, or by any other means of solicitation of business, to persons
in this state and by reason thereof makes sales to persons within the
state of tangible personal property, the use of which is taxed by this
article, if such solicitation satisfies the nexus requirement of the
United States constitution;
(F) A person making sales of tangible personal property, the use of
which is taxed by this article, where such person retains an ownership
interest in such property and where such property is brought into this
state by the person to whom such property is sold and the person to whom
such property is sold becomes or is a resident or uses such property in
S. 60--A 131 A. 160--A
any manner in carrying on in this state any employment, trade, business
or profession;
(G) Any other person making sales to persons within the state of
tangible personal property, DIGITAL PRODUCTS or services, the use of
which is taxed by this article, who may be authorized by the commission-
er [of taxation and finance] to collect such tax by part [IV] FOUR of
this article; and
(H) The state of New York, any of its agencies, instrumentalities,
public corporations (including a public corporation created pursuant to
agreement or compact with another state or Canada) or political subdivi-
sions when such entity sells services [or], property OR DIGITAL PRODUCTS
of a kind ordinarily sold by private persons.
S 22. Subparagraph (ii) of paragraph 8 of subdivision (b) of section
1101 of the tax law, as amended by chapter 190 of the laws of 1990,
clause (A) as amended by chapter 75 of the laws of 1998, is amended to
read as follows:
(ii) (A) In addition, when in the opinion of the commissioner it is
necessary for the efficient administration of this article to treat any
salesman, representative, peddler or canvasser as the agent of the
vendor, distributor, supervisor or employer under whom he OR SHE oper-
ates or from whom he OR SHE obtains tangible personal property OR
DIGITAL PRODUCTS sold by him OR HER, or for whom he OR SHE solicits
business, the commissioner may, in his OR HER discretion, treat such
agent as the vendor jointly responsible with his OR HER principal,
distributor, supervisor or employer for the collection and payment over
of the tax. An unaffiliated person providing fulfillment services to a
purchaser shall not be treated as a vendor by the commissioner under
this paragraph with respect to such activity. For purposes of this
clause, persons are affiliated persons with respect to each other where
one of such persons has an ownership interest of more than five percent,
whether direct or indirect, in the other, or where an ownership interest
of more than five percent, whether direct or indirect, is held in each
of such persons by another person or by a group of other persons which
are affiliated persons with respect to each other.
(B) A person shall be deemed a vendor of [the services enumerated in
paragraph nine of subdivision (c)] A DIGITAL PRODUCT SUBJECT TO TAX
UNDER SUBDIVISION (G) of section eleven hundred five of this article,
liable for all the obligations of a vendor, including the collection,
reporting and remittance of the tax imposed under this article and
possessing all the rights of a vendor including the right to an exclu-
sion or a credit or refund of tax as provided in subdivision (e) of
section eleven hundred thirty-two of this article, with respect to [such
services] THE DIGITAL PRODUCTS which are provided by a vendor thereof
and are subject to taxation under this article, where such person, its
affiliate or agent bills, on behalf of such vendor, either (I) as part
of, or as a schedule to, the statement of such person to its purchasers
or (II) separately (without regard to whether or not such person has
customers of its own), [such enumerated services] A DIGITAL PRODUCT
provided by such vendor. For the purpose of this paragraph, "affiliate"
means an entity which directly, indirectly or constructively controls a
vendor of [such enumerated services] DIGITAL PRODUCTS or is controlled
by such vendor or is under the control of, along with such vendor, a
common parent. Provided, however, the provisions of this clause shall
not in any way be construed to otherwise limit or remove the obligations
and liabilities of any person with respect to the tax imposed by this
article.
S. 60--A 132 A. 160--A
S 23. Clause (B) of subparagraph (v) of paragraph 8 of subdivision (b)
of section 1101 of the tax law, as amended by chapter 75 of the laws of
1998, is amended to read as follows:
(B) a person who is not otherwise a vendor who owns tangible personal
property OR A DIGITAL PRODUCT located on the premises of an unaffiliated
person performing fulfillment services for such person.
For purposes of this subparagraph, persons are affiliated persons with
respect to each other where one of such persons has an ownership inter-
est of more than five percent, whether direct or indirect, in the other,
or where an ownership interest of more than five percent, whether direct
or indirect, is held in each of such persons by another person or by a
group of other persons which are affiliated persons with respect to each
other.
S 24. Subparagraph (vi) of paragraph 8 of subdivision (b) of section
1101 of the tax law, as added by section 1 of part OO-1 of chapter 57 of
the laws of 2008, is amended to read as follows:
(vi) For purposes of subclause (I) of clause (C) of subparagraph (i)
of this paragraph, a person making sales of tangible personal property,
DIGITAL PRODUCTS or services taxable under this article ("seller") shall
be presumed to be soliciting business through an independent contractor
or other representative if the seller enters into an agreement with a
resident of this state under which the resident, for a commission or
other consideration, directly or indirectly refers potential customers,
whether by a link on an internet website or otherwise, to the seller, if
the cumulative gross receipts from sales by the seller to customers in
the state who are referred to the seller by all residents with this type
of an agreement with the seller is in excess of ten thousand dollars
during the preceding four quarterly periods ending on the last day of
February, May, August, and November. This presumption may be rebutted by
proof that the resident with whom the seller has an agreement did not
engage in any solicitation in the state on behalf of the seller that
would satisfy the nexus requirement of the United States constitution
during the four quarterly periods in question. Nothing in this subpara-
graph shall be construed to narrow the scope of the terms independent
contractor or other representative for purposes of subclause (I) of
clause (C) of subparagraph (i) of this paragraph.
S 25. Paragraph 12 of subdivision (b) of section 1101 of the tax law,
as amended by chapter 220 of the laws of 2000, is amended to read as
follows:
(12) Promotional materials. Any advertising literature, other related
tangible personal property OR DIGITAL PRODUCTS (whether or not personal-
ized by the recipient's name or other information uniquely related to
such person) and envelopes used exclusively to deliver the same. Such
other related tangible personal property [includes] AND DIGITAL PRODUCTS
INCLUDE, but [is] ARE not limited to, free gifts, complimentary maps or
other items given to travel club members, applications, order forms and
return envelopes with respect to such advertising literature, annual
reports, prospectuses, promotional displays and Cheshire labels but does
not include invoices, statements and the like. Promotional materials
shall also include paper or ink furnished to a printer for use in
providing the services of producing, printing or imprinting promotional
materials or in producing, printing or imprinting promotional materials,
where such paper and ink become a physical component part of the promo-
tional materials and such printer sells such services or such promo-
tional materials to the person who furnished the paper and ink to such
printer.
S. 60--A 133 A. 160--A
S 26. Paragraph 2 of subdivision (d) of section 1103 of the tax law,
as added by chapter 2 of the laws of 1995, is amended to read as
follows:
(2) On or before the twelfth day of each month, after reserving such
amount for such refunds and such costs, the commissioner shall determine
the amount of all revenues so received during the prior month as a
result of the taxes, interest and penalties so imposed and, in addition,
on or before the last day of June and December the commissioner shall
determine in like manner the amount of such moneys received during and
including the first twenty-five days of said months. The commissioner
shall determine the proportion of revenues attributable to receipts for
the period for which the determination is made pursuant to the preceding
sentence from taxes on sales and uses of TANGIBLE PERSONAL property,
DIGITAL PRODUCTS and services and rent and amusement charges imposed by
this article and pursuant to the authority of article twenty-nine of
this chapter and administered by the commissioner which is payable to
each jurisdiction determined without regard to this section. The amount
of revenues so determined pursuant to this section shall be deposited
and distributed by the comptroller in accordance with the same percent-
age amount to which a jurisdiction is entitled determined without regard
to this section. Where the amount so determined in any distribution from
such taxes (other than the tax imposed by this section) is more or less
than the amount due, the amount of the overpayment or underpayment shall
be determined as soon after the discovery of the overpayment or under-
payment as is reasonably possible and subsequent determinations shall be
adjusted by subtracting the amount of any such overpayment from or by
adding the amount of any such underpayment to such number of subsequent
payments as the comptroller and the commissioner shall consider reason-
able in view of the amount of the overpayment or underpayment and all
other pertinent facts and circumstances. The commissioner shall not be
liable for any overestimate or underestimate of the amount of the
distribution. Nor shall the commissioner be liable for any inaccuracy in
any determination with respect to the amount of the distribution or any
required adjustment with respect to the distribution, but the commis-
sioner shall as soon as practicable after discovery of any error adjust
the next determination under this section to reflect any such error.
S 27. Paragraph 9 of subdivision (c) of section 1105 of the tax law,
as amended by chapter 170 of the laws of 1994, is amended to read as
follows:
(9) [(i) The furnishing or provision of an entertainment service or of
an information service (but not an information service subject to tax
under paragraph one of this subdivision), which is furnished, provided,
or delivered by means of telephony or telegraphy or telephone or tele-
graph service (whether intrastate or interstate) of whatever nature,
such as entertainment or information services provided through 800 or
900 numbers or mass announcement services or interactive information
network services. Provided, however, that in no event (i) shall the
furnishing or provision of an information service be taxed under this
paragraph unless it would otherwise be subject to taxation under para-
graph one of this subdivision if it were furnished by printed, mimeo-
graphed or multigraphed matter or by duplicating written or printed
matter in any other manner nor (ii) shall the provision of cable tele-
vision service to customers be taxed under this paragraph.
(ii)] Notwithstanding the rate and date set forth in the opening
undesignated paragraph of this section and notwithstanding the opening
undesignated paragraph of this subdivision, [on and after September
S. 60--A 134 A. 160--A
first, nineteen hundred ninety-three,] in addition to any other tax
imposed under this section, and in addition to any other tax or fee
imposed under any other provision of law, there is hereby imposed and
there shall be paid an additional tax at the rate of five percent upon
the receipts [which are subject to tax under subparagraph (i) of this
paragraph on the] FROM THE furnishing or provision of an entertainment
or information service (BUT NOT AN INFORMATION SERVICE SUBJECT TO TAX
UNDER PARAGRAPH ONE OF THIS SUBDIVISION), WHICH IS FURNISHED, PROVIDED,
OR DELIVERED BY MEANS OF TELEPHONY OR TELEGRAPHY OR TELEPHONE OR TELE-
GRAPH SERVICE (WHETHER INTRASTATE OR INTERSTATE) OF WHATEVER NATURE,
SUCH AS ENTERTAINMENT OR INFORMATION SERVICES PROVIDED THROUGH 800 OR
900 NUMBERS OR MASS ANNOUNCEMENT SERVICES OR INTERACTIVE INFORMATION
NETWORK SERVICES, AND which is received by the customer exclusively in
an aural manner. PROVIDED, HOWEVER, THAT IN NO EVENT (I) SHALL THE
FURNISHING OR PROVISION OF AN INFORMATION SERVICE BE TAXED UNDER THIS
PARAGRAPH UNLESS IT WOULD OTHERWISE BE SUBJECT TO TAXATION UNDER PARA-
GRAPH ONE OF THIS SUBDIVISION IF IT WERE FURNISHED BY PRINTED, MIMEO-
GRAPHED OR MULTIGRAPHED MATTER OR BY DUPLICATING WRITTEN OR PRINTED
MATTER IN ANY OTHER MANNER NOR (II) SHALL THE PROVISION OF CABLE TELE-
VISION SERVICE TO CUSTOMERS BE TAXED UNDER THIS PARAGRAPH. Such addi-
tional tax shall not be imposed by section eleven hundred seven, eleven
hundred eight or eleven hundred nine of this [article] PART and shall
not be included among the taxes authorized to be imposed pursuant to the
authority of article twenty-nine of this chapter.
S 28. The closing paragraph of subdivision (c) of section 1105 of the
tax law, as amended by chapter 190 of the laws of 1990, is amended to
read as follows:
Wages, salaries and other compensation paid by an employer to an
employee for performing as an employee the services described in [para-
graphs (1) through (9) of this subdivision] SUBDIVISIONS (c) AND (G) OF
THIS SECTION are not receipts subject to the taxes imposed under such
[subdivision] SUBDIVISIONS.
S 29. Clause 3 of subdivision (b) of section 1107 of the tax law, as
amended by chapter 651 of the laws of 1999, is amended to read as
follows:
(3) Where a sale of tangible personal property, A DIGITAL PRODUCT or
services, including an agreement therefor, is made in a city in which
the taxes imposed by subdivision (a) of this section apply, but the
TANGIBLE PERSONAL property OR DIGITAL PRODUCT sold, the TANGIBLE
PERSONAL property upon which the services were performed or such service
is or will be delivered to the purchaser elsewhere, such sale will not
be subject to taxes imposed by such subdivision (a). However, if deliv-
ery occurs or will occur in any city where the tax imposed by such
subdivision (a) applies, a vendor will be required to collect from the
purchaser the sales or compensating use taxes imposed by this section.
For the purposes of this section delivery shall be deemed to include
transfer of possession to the purchaser and the receiving of the TANGI-
BLE PERSONAL property or of the service by the purchaser AND, FOR A
DIGITAL PRODUCT, DELIVERY WILL BE DETERMINED IN ACCORDANCE WITH THE
RULES IN SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART.
S 30. Clause 5 of subdivision (b) of section 1107 of the tax law, as
amended by chapter 376 of the laws of 1989, is amended to read as
follows:
(5) Where a retail sales tax or a compensating use tax was legally due
and paid to any municipal corporation in this state, without any right
to a refund or credit thereof, with respect to the sale or use of tangi-
S. 60--A 135 A. 160--A
ble personal property, A DIGITAL PRODUCT or any of the services subject
to sales or compensating use tax, if the use of such property, DIGITAL
PRODUCT or services is then subject to the compensating use tax imposed
by this section and such tax is at a higher rate than the rate of tax
imposed by such municipal corporation, the tax imposed by this section
shall also apply but only to the extent of the difference in such rates.
S 31. Subdivision (b) of section 1108 of the tax law, as added by
chapter 168 of the laws of 1975, paragraph 1 as separately amended by
section 4 of part B and section 4 of part S of chapter 63 of the laws of
2000 and paragraph 3 as amended by chapter 651 of the laws of 1999, is
amended to read as follows:
(b) Exceptions. (1) Notwithstanding any provision of law to the
contrary, the receipts from the following shall be exempt from the tax
on retail sales and the compensating use tax imposed by this section:
All sales of tangible personal property OR DIGITAL PRODUCTS for use or
consumption directly and predominantly in the production of tangible
personal property, DIGITAL PRODUCTS, gas, electricity, refrigeration or
steam, for sale, by manufacturing, processing, generating, assembling,
refining, mining or extracting; and all sales of tangible personal prop-
erty OR DIGITAL PRODUCTS 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.
(2) The transitional provisions contained in section eleven hundred
six OF THIS PART shall not apply to the taxes imposed by this section.
(3) Where a sale of tangible personal property, A DIGITAL PRODUCT or
services, including an agreement therefor, is made in a city in which
the taxes imposed by subdivision (a) of this section apply, but the
TANGIBLE PERSONAL property OR DIGITAL PRODUCT sold, the TANGIBLE
PERSONAL property upon which the services were performed or such service
is or will be delivered to the purchaser elsewhere, such sale will not
be subject to taxes imposed by such subdivision (a). However, if deliv-
ery occurs or will occur in any city where the tax imposed by such
subdivision (a) applies, a vendor will be required to collect from the
purchaser[,] the sales or compensating use taxes imposed by this
section. For the purposes of this section delivery shall be deemed to
include transfer of possession to the purchaser and the receiving of the
TANGIBLE PERSONAL property or of the service by the purchaser AND, FOR A
DIGITAL PRODUCT, DELIVERY WILL BE DETERMINED IN ACCORDANCE WITH THE
RULES IN SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART.
(4) The provisions of section twelve hundred fourteen OF THIS CHAPTER
shall be applicable to this section, but any reference in that section
to a local sales or use tax imposed by a city shall mean the additional
taxes imposed by subdivision (a) [hereof] OF THIS SECTION.
(5) Where a retail sales tax or a compensating use tax was legally due
and paid to any municipal corporation in this state, without any right
to a refund or credit thereof, with respect to the sale or use of tangi-
ble personal property, A DIGITAL PRODUCT or any of the services subject
to sales or compensating use tax, if the use of such TANGIBLE PERSONAL
property, DIGITAL PRODUCT or services is then subject to the compensat-
ing use tax imposed by this section and such tax is at a higher rate
than the rate of tax imposed by such municipal corporation, the tax
imposed by this section shall also apply but only to the extent of the
difference in such rates. For purposes of this subdivision, a payment to
the [tax commission] COMMISSIONER of a tax imposed by a municipal corpo-
ration shall be deemed a payment to such municipal corporation.
S. 60--A 136 A. 160--A
S 32. Subdivision (c) of section 1109 of the tax law, as amended by
chapter 651 of the laws of 1999, is amended to read as follows:
(c) Deliveries outside the district; deliveries within the district of
property sold or serviced elsewhere. Where a sale of tangible personal
property, A DIGITAL PRODUCT or services, including an agreement there-
for, is made in the district in which the taxes imposed by this section
apply, but the TANGIBLE PERSONAL property OR DIGITAL PRODUCT sold, the
TANGIBLE PERSONAL property upon which the services were performed or
such service is or will be delivered to the purchaser elsewhere, such
sale will not be subject to taxes imposed by this section. However, if
delivery occurs or will occur in the district where the tax imposed by
this section applies, a vendor will be required to collect from the
purchaser the sales or compensating use taxes imposed by this section.
For the purposes of this section, delivery shall be deemed to include
transfer of possession to the purchaser and the receiving of the TANGI-
BLE PERSONAL property or of the service by the purchaser AND, FOR A
DIGITAL PRODUCT, DELIVERY WILL BE DETERMINED IN ACCORDANCE WITH THE
RULES IN SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART.
The provisions of section twelve hundred fourteen of this chapter shall
be applicable to this section, but any reference in that section to a
local sales or use tax imposed by a city, county or school district
shall mean the additional taxes imposed by this section.
S 33. Subdivision (a) of section 1110 of the tax law, as amended by
section 28 of part Y of chapter 63 of the laws of 2000, is amended to
read as follows:
(a) Except to the extent that property or services have already been
or will be subject to the sales tax under this article, there is hereby
imposed on every person a use tax for the use within this state on and
after June first, nineteen hundred seventy-one except as otherwise
exempted under this article, (A) of any tangible personal property OR
DIGITAL PRODUCT purchased at retail, (B) of any tangible personal prop-
erty OR DIGITAL PRODUCT (other than computer software used by the author
or other creator) manufactured, processed or assembled by the user, (i)
if items of the same kind of tangible personal property OR DIGITAL PROD-
UCT are offered for sale by him OR HER in the regular course of business
or (ii) if items are used as such or incorporated into a structure,
building or real property by a contractor, subcontractor or repairman in
erecting structures or buildings, or building on, or otherwise adding
to, altering, improving, maintaining, servicing or repairing real prop-
erty, property or land, as the terms real property, property or land are
defined in the real property tax law, if items of the same kind are not
offered for sale as such by such contractor, subcontractor or repairman
or other user in the regular course of business, (C) of any of the
services described in paragraphs [(1), (7) and (8)] ONE, SEVEN AND EIGHT
of subdivision (c) of section eleven hundred five of this part, (D) of
any tangible personal property OR DIGITAL PRODUCT, however acquired,
where not acquired for purposes of resale, upon which any of the
services described in paragraphs [(2), (3) and (7)] TWO, THREE AND SEVEN
of subdivision (c) of section eleven hundred five of this part have been
performed, (E) of any telephone answering service described in subdivi-
sion (b) of section eleven hundred five of this part, (F) of any comput-
er software OR DIGITAL PRODUCT written or otherwise created by the user
if the user offers software OR A DIGITAL PRODUCT of a similar kind for
sale as such or as a component part of other property in the regular
course of business, (G) of any prepaid telephone calling service, and
S. 60--A 137 A. 160--A
(H) of any gas or electricity described in subdivision (b) of section
eleven hundred five of this part.
S 34. Subdivision (b) of section 1110 of the tax law, as separately
amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991,
is amended to read as follows:
(b) For purposes of clause (A) of subdivision (a) of this section, the
tax shall be at the rate of four percent of the consideration given or
contracted to be given for such TANGIBLE PERSONAL property OR DIGITAL
PRODUCT, or for the use of such TANGIBLE PERSONAL property OR DIGITAL
PRODUCT, including any charges for shipping or delivery as described in
paragraph three of subdivision (b) of section eleven hundred one OF THIS
ARTICLE, but excluding any credit for tangible personal property
accepted in part payment and intended for resale.
S 35. Subdivision (c) of section 1110 of the tax law, as amended by
section 1 of part E of chapter 407 of the laws of 1999, is amended to
read as follows:
(c) For purposes of subclause (i) of clause (B) of subdivision (a) of
this section, the tax shall be at the rate of four percent of the price
at which items of the same kind of tangible personal property OR DIGITAL
PRODUCT are offered for sale by the user, and the mere storage, keeping,
retention or withdrawal from storage of tangible personal property OR A
DIGITAL PRODUCT by the person who manufactured, processed or assembled
such property OR DIGITAL PRODUCT shall not be deemed a taxable use by
[him] THAT PERSON; provided, however, that if the user uses such an item
itself on its own premises (not including making a gift of such tangible
personal property OR DIGITAL PRODUCT), solely in the conduct of the
user's own business operations, and the item retains its characteristic
as EITHER tangible personal property OR A DIGITAL PRODUCT when so used,
the tax shall be at the rate, and on the consideration, described in
subdivision (d) of this section.
S 36. Subdivision (f) of section 1110 of the tax law, as separately
amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991,
is amended to read as follows:
(f) For purposes of clauses (C), (D), and (E) of subdivision (a) of
this section, the tax shall be at the rate of four percent of the
consideration given or contracted to be given for the service, including
the consideration for any tangible personal property OR DIGITAL PRODUCT
transferred in conjunction with the performance of the service and also
including any charges for shipping and delivery of the property so
transferred and of the tangible personal property OR DIGITAL PRODUCT
upon which the service was performed as such charges are described in
paragraph three of subdivision (b) of section eleven hundred one OF THIS
ARTICLE.
S 37. Subdivision (g) of section 1110 of the tax law, as separately
amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991,
is amended to read as follows:
(g) For purposes of clause (F) of subdivision (a) of this section, the
tax shall be at the rate of four percent of the consideration given or
contracted to be given for the tangible personal property which consti-
tutes the blank medium, such as disks or tapes, used in conjunction with
the software OR DIGITAL PRODUCT, or for the use of such property, and
the mere storage, keeping, retention or withdrawal from storage of
computer software OR DIGITAL PRODUCTS described in such clause (F) by
its author or other creator shall not be deemed a taxable use by such
person.
S. 60--A 138 A. 160--A
S 38. Subdivision (h) of section 1110 of the tax law, as added by
chapter 651 of the laws of 1999, is amended to read as follows:
(h) For purposes of clause (G) of subdivision (a) of this section, the
tax shall be at the rate of four percent of the consideration given or
contracted to be given for the service, including the consideration for
any tangible personal property OR DIGITAL PRODUCTS transferred in
conjunction with the service and also including any charges for shipping
and delivery of the TANGIBLE PERSONAL property OR DIGITAL PRODUCT so
transferred as such charges are described in paragraph three of subdivi-
sion (b) of section eleven hundred one OF THIS ARTICLE; provided that,
if the user offers like services for sale in the regular course of busi-
ness, the tax shall be at the rate of four percent of the price at which
the user offers such like services for sale.
S 39. Subdivision (a) of section 1111 of the tax law, as amended by
chapter 473 of the laws of 1969, is amended to read as follows:
(a) The retail sales tax imposed under subdivision (a) of section
eleven hundred five and the compensating use tax imposed under section
eleven hundred ten OF THIS PART, when computed in respect to tangible
personal property OR A DIGITAL PRODUCT 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 OR
DIGITAL PRODUCT are offered for sale by him OR HER, except to the extent
otherwise provided in section eleven hundred ten of this [chapter] PART.
S 40. Subdivision (b) of section 1111 of the tax law, as added by
chapter 93 of the laws of 1965, is amended to read as follows:
(b) Tangible personal property OR A DIGITAL PRODUCT, 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 compensat-
ing 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 TANGIBLE
PERSONAL property OR DIGITAL PRODUCT was used outside [such] THIS state
by him OR HER for more than six months prior to its use within this
state, [such] THE TANGIBLE PERSONAL property OR DIGITAL PRODUCT shall be
taxed on the basis of current market value of the TANGIBLE PERSONAL
property OR DIGITAL PRODUCT at the time of its first use within this
state. The value of [such] THE TANGIBLE PERSONAL property OR DIGITAL
PRODUCT, for compensating use tax purposes, may not exceed its cost.
(2) That the compensating use tax on such tangible personal property
OR DIGITAL PRODUCT 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 TANGIBLE PERSONAL property OR DIGITAL PRODUCT for the period of use
within this state.
S 41. Subdivision (l) of section 1111 of the tax law, as added by
section 10 of part S of chapter 85 of the laws of 2002, is amended to
read as follows:
(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 AND DIGITAL PRODUCTS that are ancillary to the provision of
S. 60--A 139 A. 160--A
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 OR DIGITAL PRODUCT
provided therewith.
(2) With respect to services [or], property OR DIGITAL PRODUCTS
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,
DIGITAL PRODUCT or service which is not telephony or telegraphy or tele-
phone 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 telecommuni-
cations 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, DIGITAL PRODUCT or service, then the charge for such property,
DIGITAL PRODUCT or service shall be based upon the price for such prop-
erty, DIGITAL PRODUCT 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, DIGITAL PRODUCT or service, then the
charge for such property, DIGITAL PRODUCT or service shall be based upon
the prevailing retail price of comparable property, DIGITAL PRODUCT or
service sold separately by other home service providers. In any case,
the charge for such property, DIGITAL PRODUCT or service shall be
reasonable and proportionate to the total charge to the mobile telecom-
munications customer. Such charges for such services [or], property OR
DIGITAL PRODUCTS, 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 OR DIGITAL PRODUCT otherwise subject to tax or
exempt from tax under this article.
(3) (A) Any charge for a service [or], property OR DIGITAL PRODUCT
billed by or for a mobile telecommunications customer's home service
provider shall be deemed to be provided by such mobile telecommuni-
cations 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.
S 42. Subdivision (a) of section 1112 of the tax law, as added by
section 6 of part K of chapter 61 of the laws of 2005, is amended to
read as follows:
(a) Where TANGIBLE PERSONAL property, DIGITAL PRODUCTS or services
subject to sales or compensating use tax have been purchased on or from
a qualified Indian reservation, as defined in section four hundred
seventy of this chapter, the purchaser shall not be relieved of his or
S. 60--A 140 A. 160--A
her liability to pay the tax due. Such tax due and not collected shall
be paid by the purchaser directly to the department.
S 43. The opening paragraph of subdivision (a) of section 1115 of the
tax law, as added by chapter 93 of the laws of 1965, is amended to read
as follows:
Receipts from the following shall be exempt from the tax on retail
sales imposed under [subdivision] SUBDIVISIONS (a) AND (G) of section
eleven hundred five OF THIS ARTICLE and the compensating use tax imposed
under section eleven hundred ten OF THIS ARTICLE:
S 44. Clause (A) of paragraph 6 of subdivision (a) of section 1115 of
the tax law, as amended by section 5 of part B of chapter 63 of the laws
of 2000, is amended to read as follows:
(A) Tangible personal property OR A DIGITAL PRODUCT, whether or not
incorporated in a building or structure, for use or consumption predomi-
nantly either in the production for sale of tangible personal property
by farming or in a commercial horse boarding operation, or in both.
S 45. Paragraph 7 of subdivision (a) of section 1115 of the tax law,
as added by chapter 93 of the laws of 1965, is amended to read as
follows:
(7) Tangible personal property OR A DIGITAL PRODUCT sold by a morti-
cian, undertaker or funeral director. However, all tangible personal
property OR DIGITAL PRODUCTS sold to a mortician, undertaker or funeral
director for use in the conducting of funerals shall not be deemed a
sale for resale within the meaning of paragraph [(4)] FOUR of subdivi-
sion (b) of section eleven hundred one of this [chapter] ARTICLE and
shall not be exempt from the retail sales tax.
S 46. Paragraph 8 of subdivision (a) of section 1115 of the tax law,
as added by chapter 93 of the laws of 1965, is amended to read as
follows:
(8) Commercial vessels primarily engaged in interstate or foreign
commerce and TANGIBLE PERSONAL property OR DIGITAL PRODUCTS used by or
purchased for the use of such vessels for fuel, provisions, supplies,
maintenance and repairs (other than articles purchased for the original
equipping of a new ship).
S 47. Paragraph 10 of subdivision (a) of section 1115 of the tax law,
as amended by chapter 851 of the laws of 1974, is amended to read as
follows:
(10) Tangible personal property OR A DIGITAL PRODUCT purchased for use
or consumption directly and predominantly in research and development in
the experimental or laboratory sense. Such research and development
shall not be deemed to include the ordinary testing or inspection of
materials or products for quality control, efficiency surveys, manage-
ment studies, consumer surveys, advertising, promotions or research in
connection with literary, historical or similar projects.
S 48. Paragraph 12-a of subdivision (a) of section 1115 of the tax
law, as added by section 7 of part S of chapter 63 of the laws of 2000,
is amended to read as follows:
(12-a) Tangible personal property OR A DIGITAL PRODUCT for use or
consumption directly and predominantly in the receiving, initiating,
amplifying, processing, transmitting, retransmitting, switching or moni-
toring of switching of telecommunications services for sale or internet
access services for sale or any combination thereof. Such tangible
personal property OR A DIGITAL PRODUCT exempt under this subdivision
shall include, but not be limited to, tangible personal property OR A
DIGITAL PRODUCT used or consumed to upgrade systems to allow for the
receiving, initiating, amplifying, processing, transmitting, retransmit-
S. 60--A 141 A. 160--A
ting, switching or monitoring of switching of telecommunications
services for sale or internet access services for sale or any combina-
tion thereof. As used in this paragraph, the term "telecommunications
services" shall have the same meaning as defined in paragraph (g) of
subdivision one of section one hundred eighty-six-e of this chapter.
S 49. Paragraph 21 of subdivision (a) of section 1115 of the tax law,
as added by chapter 773 of the laws of 1978, is amended to read as
follows:
(21) Commercial aircraft primarily engaged in intrastate, interstate
or foreign commerce, machinery or equipment to be installed on such
aircraft and property OR A DIGITAL PRODUCTS used by or purchased for the
use of such aircraft for maintenance and repairs and flight simulators
purchased by commercial airlines.
S 50. Paragraph 24 of subdivision (a) of section 1115 of the tax law,
as added by chapter 799 of the laws of 1985, is amended to read as
follows:
(24) Fishing vessels used directly and predominantly in the harvesting
of fish for sale, and property OR DIGITAL PRODUCTS used by or purchased
for the use of such vessels for fuel, provisions, supplies, maintenance
and repairs. For the purpose of this paragraph the term fishing vessel
shall not include any vessel used predominantly for sport fishing
purposes.
S 51. Paragraph 28 of subdivision (a) of section 1115 of the tax law,
as added by chapter 166 of the laws of 1991, is amended to read as
follows:
(28) Computer software designed and developed by the author or creator
to the specifications of a specific purchaser which is transferred
directly or indirectly to a corporation which is a member of an affil-
iated group of corporations [within the meaning of subparagraph six of
paragraph (b) of subdivision seventeen of section two hundred eight of
this chapter except for clauses (ii) and (iii) of such subparagraph]
that includes such purchaser, or to a partnership in which such purchas-
er and other members of such affiliated group have at least a fifty
percent capital or profits interest (but only if the transfer is not in
pursuance of a plan having as its principal purpose the avoidance or
evasion of tax under this article), but in no case including computer
software which is pre-written, as defined in paragraph six of subdivi-
sion (b) of section eleven hundred one of this article and available to
be sold to customers in the ordinary course of the seller's business.
"AFFILIATED GROUP" HAS THE SAME MEANING THAT TERM HAS IN SECTION 1504 OF
THE INTERNAL REVENUE CODE, EXCEPT THAT REFERENCES TO "AT LEAST EIGHTY
PERCENT" IN THAT SECTION MUST BE READ AS "MORE THAN FIFTY PERCENT."
S 52. Paragraph 35 of subdivision (a) of section 1115 of the tax law,
as amended by section 1 of part HH of chapter 407 of the laws of 1999,
is amended to read as follows:
(35) Computer system hardware used or consumed directly and predomi-
nantly in designing and developing computer software OR DIGITAL PRODUCTS
for sale or in providing the service, for sale, of designing and devel-
oping internet websites.
S 53. Paragraph 38 of subdivision (a) of section 1115 of the tax law,
as added by section 1 of part T of chapter 63 of the laws of 2000, is
amended to read as follows:
(38) (A) Machinery or equipment or other tangible personal property
(including parts, tools and supplies) OR A DIGITAL PRODUCT for use or
consumption by a broadcaster directly and predominantly in the
production (including post-production) of live or recorded programs
S. 60--A 142 A. 160--A
which are used or consumed by a broadcaster predominantly for the
purpose of broadcast over-the-air by such broadcaster or transmission
through a cable television or direct broadcast satellite system by such
broadcaster. Tangible personal property OR A DIGITAL PRODUCT, which is
described in the preceding sentence, and which is leased by a broadcast-
er to another person for that person's use or consumption directly and
predominantly in the production (including post-production) of such live
or recorded programs by such person, shall be deemed to be used or
consumed by the lessor for purposes of applying the directly and predom-
inantly requirement of this subparagraph.
(B) Machinery or equipment or other tangible personal property
(including parts, tools and supplies) OR A DIGITAL PRODUCT for use or
consumption by a broadcaster directly and predominantly in the trans-
mission of live or recorded programs over-the-air or through a cable
television or direct broadcast satellite system by such broadcaster.
Tangible personal property OR A DIGITAL PRODUCT, which is described in
the preceding sentence, and which is leased by a broadcaster to another
person for that person's use or consumption directly and predominantly
in the transmission of such live or recorded programs by such person,
shall be deemed to be used or consumed by the lessor for purposes of
applying the directly and predominantly requirement of this subpara-
graph.
(C) For purposes of this paragraph: (i) the term "broadcaster" means a
television or radio station licensed by the federal communications
commission, a television or radio broadcast network or a cable tele-
vision network. The term "television or radio broadcast network" means
an organization which produces and/or purchases programs intended for
transmission by affiliated television or radio stations licensed by the
federal communications commission and which has distribution facilities
or circuits available to such affiliated stations during all or some
portion of one or more days during each week. The term "cable television
network" means an organization which produces and/or purchases programs
intended for transmission either by direct broadcast satellite systems
or by cable systems pursuant to an affiliation or similar agreement and
which has distribution facilities or circuits available to such direct
broadcast satellite systems or such cable systems during all or some
portion of one or more days during each week. For the purpose of
subparagraph (B) of this paragraph, the term "broadcaster" shall not
include cable system operators and direct broadcast satellite system
operators. Provided, however, for the purpose of subparagraph (A) of
this paragraph, such term shall also include a cable system operator or
a direct broadcast satellite system operator solely with respect to
machinery or equipment or other tangible personal property (including
parts, tools and supplies) OR A DIGITAL PRODUCT for use or consumption
by it directly and predominantly in the production (including post-pro-
duction) of live or recorded programs intended for transmission to its
viewers over its system; (ii) the term "programs" means any performance,
event, play, story or literary, musical, artistic or other work used for
entertainment or educational purposes, including but not limited to
news, news specials, sporting events, game shows, talk shows and commer-
cials; and (iii) the term "recorded programs" means any program
contained on film, tape, disc or any other [physical] media.
S 54. Paragraph 39 of subdivision (a) of section 1115 of the tax law,
as added by chapter 66 of the laws of 2002, is amended to read as
follows:
S. 60--A 143 A. 160--A
(39) Tangible personal property OR A DIGITAL PRODUCT for use or
consumption directly and predominantly in the production, including
editing, dubbing and mixing, of a film for sale regardless of the medium
by means of which the film is conveyed to a purchaser. For purposes of
this paragraph, the term "film" means feature films, documentary films,
shorts, television films, television commercials and similar
productions.
S 55. Subdivision (d) of section 1115 of the tax law, as amended by
chapter 190 of the laws of 1990, is amended to read as follows:
(d) Services otherwise taxable under paragraph [(1), (2), (3), (7) or
(8)] ONE, TWO, THREE, SEVEN OR EIGHT of subdivision (c) of section elev-
en hundred five OF THIS ARTICLE shall be exempt from tax under this
article if the tangible property OR DIGITAL PRODUCT upon which the
services were performed is delivered to the purchaser outside this state
for use outside this state.
S 56. Subdivision (l) of section 1115 of the tax law, as added by
chapter 185 of the laws of 1987, is amended to read as follows:
(l) Tangible personal property OR A DIGITAL PRODUCT manufactured,
processed or assembled and donated by the manufacturer, processor or
assembler to an organization described in subdivision (a) of section
eleven hundred sixteen shall be exempt from tax under this article
provided that the manufacturer, processor or assembler offers the same
kind of tangible personal property OR DIGITAL PRODUCT for sale in the
regular course of business and provided further that the manufacturer,
processor or assembler has not made any other use of the tangible
personal property OR DIGITAL PRODUCT which is donated. Nothing in this
subdivision shall be construed to allow a refund or credit of tax prop-
erly paid pursuant to this article.
S 57. Paragraph 7 of subdivision (n) of section 1115 of the tax law,
as added by chapter 220 of the laws of 2000, is amended to read as
follows:
(7) Mechanicals, layouts, artwork, photographs, color separations and
like property, WHETHER OR NOT IN TANGIBLE FORM, shall be exempt from tax
under this article where such property is purchased, manufactured, proc-
essed or assembled by a person who furnishes such property to a printer
and the printer uses such property directly and predominantly in the
production of promotional materials exempt under paragraph four of this
subdivision, or in performing services exempt under paragraph five of
this subdivision, for sale by such printer to the person who furnished
such property to the printer.
S 58. Paragraph 8 of subdivision (n) of section 1115 of the tax law,
as added by chapter 309 of the laws of 1996 and as renumbered by chapter
220 of the laws of 2000, is amended to read as follows:
(8) Nothing in this subdivision shall be construed to exempt tangible
personal property OR A DIGITAL PRODUCT (i) purchased by a person (other
than exempt promotional materials described in paragraph four of this
subdivision) or (ii) manufactured, processed or assembled by the
manufacturer, processor or assembler, who furnishes such TANGIBLE
PERSONAL property OR DIGITAL PRODUCT to the vendor of promotional mate-
rials exempt under paragraph one or four of this subdivision to be
included as free gifts with such exempt promotional materials to be
mailed or shipped to such purchaser's or such manufacturer's, process-
or's or assembler's customers or prospective customers or who otherwise
uses such TANGIBLE PERSONAL property OR DIGITAL PRODUCT in this state,
for example, by giving or donating the property as free gifts to another
person, unless such tangible personal property OR DIGITAL PRODUCT is
S. 60--A 144 A. 160--A
mailed, shipped or otherwise distributed from a point within this state
to such customers or prospective customers located outside this state
for use outside this state.
S 59. Subdivision (o) of section 1115 of the tax law, as added by
chapter 166 of the laws of 1991, is amended to read as follows:
(o) Services otherwise taxable under subdivision (c) of section eleven
hundred five or under section eleven hundred ten OF THIS ARTICLE shall
be exempt from tax under this article where performed on computer soft-
ware of any nature; provided, however, that where such services are
provided to a customer in conjunction with the sale of tangible personal
property OR A DIGITAL PRODUCT, any charge for such services shall be
exempt only when such charge is reasonable and separately stated on an
invoice or other statement of the price given to the purchaser.
S 60. Subdivision (x) of section 1115 of the tax law, as added by
section 3 of part C of chapter 407 of the laws of 1999, is amended to
read as follows:
(x) Receipts from every sale of, and consideration given or contracted
to be given for, or for the use of, the following tangible personal
property, DIGITAL PRODUCTS and services shall be exempt from the taxes
imposed by this article:
(1) Tangible personal property OR A DIGITAL PRODUCT for use or
consumption directly and predominantly in production of live dramatic or
musical arts performances in a theater or other similar place of assem-
bly (but not including a roof garden, cabaret or other similar place),
with a seating capacity of one hundred or more chairs that are rigidly
anchored to the construction or fixed in place so as to prevent movement
in any direction, but only where it can be shown at the time [such] THE
tangible personal property OR DIGITAL PRODUCT is purchased that such
performances are to be presented to the public in such theater or other
similar place on a regular basis of at least five performances per week
for a period of at least two consecutive weeks, the content of each such
performance shall be the same and a charge is or is to be made for
admission to the place where such performances occur. For purposes of
this subdivision, the term "place of assembly" shall mean a place of
assembly with a stage in which scenery and scenic elements are used, as
described in section 27-232 and subdivision (a) of section 27-255 of the
administrative code of the city of New York (as such section and subdi-
vision [exist] EXISTED on January first, nineteen hundred ninety-eight),
and for which an approved seating plan is required to be kept, as
described in section 27-528 of the administrative code of the city of
New York (as such section [exists] EXISTED on January first, nineteen
hundred ninety-eight), whether or not such theater or other similar
place is located in such city. Nothing in this paragraph shall be
construed to exempt tangible personal property which is permanently
affixed to, or becomes an integral component part of, a structure,
building, or real property.
(2) Services described in paragraph two or three of subdivision (c) of
section eleven hundred five of this article when rendered with respect
to TANGIBLE PERSONAL property OR A DIGITAL PRODUCT exempt under para-
graph one of this subdivision.
S 61. Paragraph 1 of subdivision (z) of section 1115 of the tax law,
as amended by section 17 of part CC of chapter 85 of the laws of 2002,
is amended to read as follows:
(1) Receipts from the retail sale of tangible personal property
described in subdivision (a) of section eleven hundred five of this
article, receipts from every sale of services described in subdivisions
S. 60--A 145 A. 160--A
(b) and (c) of such section [eleven hundred five], RECEIPTS FROM THE
RETAIL SALE OF PRE-WRITTEN COMPUTER SOFTWARE, WHETHER SUBJECT TO TAX
UNDER SUBDIVISION (A) OR (G) OF SUCH SECTION, and consideration given or
contracted to be given for, or for the use of, such tangible personal
property [or], services [shall be] OR PRE-WRITTEN COMPUTER SOFTWARE ARE
exempt from the taxes imposed by this article where such tangible
personal property [or], services OR PRE-WRITTEN COMPUTER SOFTWARE are
sold to a qualified empire zone enterprise, provided that (i) such
TANGIBLE PERSONAL property or TANGIBLE PERSONAL property upon which such
a service has been performed, or such service (other than a service
described in subdivision (b) of section eleven hundred five OF THIS
ARTICLE) OR THE PRE-WRITTEN COMPUTER SOFTWARE is directly and predomi-
nantly, or such a service described in clause (A) or (D) of paragraph
one of such subdivision (b) of section eleven hundred five is directly
and exclusively, used or consumed by such enterprise in an area desig-
nated as an empire zone pursuant to article eighteen-B of the general
municipal law with respect to which such enterprise is certified pursu-
ant to such article eighteen-B, or (ii) such a service described in
clause (B) or (C) of paragraph one of such subdivision (b) of section
eleven hundred five is delivered and billed to such enterprise at an
address in such empire zone; provided, further, that, in order for a
motor vehicle, as defined in subdivision (c) of section eleven hundred
seventeen of this [article] PART, or tangible personal property related
to such a motor vehicle to be found to be used predominantly in such a
zone, at least fifty percent of such motor vehicle's use shall be exclu-
sively within such zone or at least fifty percent of such motor vehi-
cle's use shall be in activities originating or terminating in such
zone, or both; and either or both such usages shall be computed either
on the basis of mileage or hours of use, at the discretion of such
enterprise. For purposes of this subdivision, tangible personal property
related to such a motor vehicle shall include a battery, diesel motor
fuel, an engine, engine components, motor fuel, a muffler, tires and
similar tangible personal property used in or on such a motor vehicle.
S 62. Paragraph 1 of subdivision (a) of section 1116 of the tax law,
as amended by chapter 530 of the laws of 1976, is amended to read as
follows:
(1) The state of New York, or any of its agencies, instrumentalities,
public corporations (including a public corporation created pursuant to
agreement or compact with another state or Canada) or political subdivi-
sions where it is the purchaser, user or consumer, or where it is a
vendor of services, DIGITAL PRODUCTS or property of a kind not ordinar-
ily sold by private persons;
S 63. Paragraph 2 of subdivision (a) of section 1116 of the tax law,
as amended by chapter 530 of the laws of 1976, is amended to read as
follows:
(2) The United States of America, and any of its agencies and instru-
mentalities, insofar as it is immune from taxation where it is the
purchaser, user or consumer, or where it sells services, DIGITAL
PRODUCTS or property of a kind not ordinarily sold by private persons;
S 64. Paragraph 3 of subdivision (a) of section 1116 of the tax law,
as amended by chapter 530 of the laws of 1976, is amended to read as
follows:
(3) The United Nations or any international organization of which the
United States of America is a member where it is the purchaser, user or
consumer, or where it sells services, DIGITAL PRODUCTS or property of a
kind not ordinarily sold by private persons;
S. 60--A 146 A. 160--A
S 65. Paragraph 9 of subdivision (a) of section 1116 of the tax law,
as amended by chapter 591 of the laws of 2005, is amended to read as
follows:
(9) A credit union, as defined in subdivision nine of section two of
the banking law, where it is the purchaser, user, or consumer, or where
it is a vendor of services, DIGITAL PRODUCTS or property of a kind not
ordinarily sold by private persons.
S 66. Subdivision (b) of section 1116 of the tax law, as amended by
chapter 888 of the laws of 1983, paragraph 1 as amended by section 1 of
part KK-1 of chapter 57 of the laws of 2008, paragraph 5 as amended by
chapter 619 of the laws of 1995, paragraph 6 as added by chapter 2 of
the laws of 1995 and paragraph 7 as added by chapter 387 of the laws of
1996, is amended to read as follows:
(b) Nothing in this section shall exempt:
(1) (i) retail sales of tangible personal property OR DIGITAL PRODUCTS
by any shop or store operated by an organization described in paragraph
[(4), (5) or (6)] FOUR, FIVE OR SIX of subdivision (a) of this section;
(ii) sales, other than for resale, of services described in subdivision
(b) or paragraph five of subdivision (c) of section eleven hundred five
of this article by that organization, whether or not at a shop or store;
(iii) retail sales of tangible personal property OR DIGITAL PRODUCTS and
sales, other than for resale, of those services by that organization,
made with a degree of regularity, frequency, and continuity by remote
means, such as by telephone, the internet, mail order or otherwise; or
(iv) retail sales of tangible personal property OR DIGITAL PRODUCTS by
lease or rental by that organization as lessor, whether or not at a shop
or store;
(2) sales of food or drink in or by a restaurant, tavern or other
establishment operated by an organization described in paragraph [(1)]
ONE, paragraph [(4)] FOUR, paragraph [(5)] FIVE or paragraph [(6)] SIX
of subdivision (a) of this section, other than sales exempt under para-
graph (ii) of subdivision (d) of section eleven hundred five OF THIS
ARTICLE, from the taxes imposed hereunder, unless the purchaser is an
organization exempt under this section;
(3) sales of the service of providing parking, garaging or storing for
motor vehicles by an organization described in paragraph [(4)] FOUR or
paragraph [(5)] FIVE of subdivision (a) of this section operating a
garage (other than a garage which is part of premises occupied solely as
a private one or two family dwelling), parking lot or other place of
business engaged in providing parking, garaging or storing for motor
vehicles; [or]
(4) sales of tangible personal property, DIGITAL PRODUCTS or services
by cooperative and foreign corporations doing business in this state
pursuant to the rural electric cooperative law, unless the purchaser is
an organization exempt under this section[.];
(5) purchases of motor fuel or diesel motor fuel from the tax required
to be prepaid pursuant to section eleven hundred two of this article and
retail sales of motor fuel or diesel motor fuel subject to the tax
imposed by sections eleven hundred five and eleven hundred ten of this
article, except that purchases of such fuel by an organization described
in paragraph one or two of subdivision (a) of this section for its own
use or consumption, purchases of motor fuel by a hospital included in
the organizations described in paragraph four of such subdivision for
its own use and consumption, purchases of motor fuel and diesel motor
fuel by a fire company or fire department, as defined in section three
of the volunteer firefighters' benefit law or a voluntary ambulance
S. 60--A 147 A. 160--A
service, as defined in section three thousand one of the public health
law, for such department, company or service's own use and consumption
for use in firefighting vehicles, apparatus or equipment, or emergency
rescue or first aid response vehicles, apparatus or equipment, owned and
operated by such department, company or service if such company, depart-
ment or service qualifies as an exempt organization pursuant to the
provisions of paragraph four of subdivision (a) of this section and
purchases of diesel motor fuel by an organization described in paragraph
four of such subdivision for its own heating use and consumption shall
be exempt from such tax required to be prepaid and from retail sales and
use taxes on such fuel[.];
(6) purchases of cigarettes from the tax required to be prepaid pursu-
ant to section eleven hundred three of this article, except that no
prepayment of tax shall be required on sales of cigarettes sold under
such circumstances that this state is without power to impose such tax
or sold to the United States or sold to or by a voluntary unincorporated
organization of the armed forces of the United States operating a place
for sale of goods pursuant to regulations promulgated by the appropriate
executive agency of the United States, to the extent provided in such
regulations and written policy statements of such agency applicable to
such sales[.]; OR
(7) rent received by a hotel operated by a college or university,
where such hotel offers one hundred or more rooms for occupancy, and
where the individual paying said rent is not doing business on behalf of
any organization exempted pursuant to subdivision (a) of this section.
S 67. Subdivision 2 of section 1118 of the tax law, as amended by
chapter 651 of the laws of 1999, is amended to read as follows:
(2) In respect to the use of TANGIBLE PERSONAL property, DIGITAL
PRODUCTS or services purchased by the user while a nonresident of this
state, except in the case of tangible personal property or services
which the user, in the performance of a contract, incorporates into real
property located in the state. A person while engaged in any manner in
carrying on in this state any employment, trade, business or profession,
shall not be deemed a nonresident with respect to the use in this state
of TANGIBLE PERSONAL property, DIGITAL PRODUCTS or services in such
employment, trade, business or profession.
S 68. Subdivision 3 of section 1118 of the tax law, as amended by
chapter 286 of the laws of 1985, is amended to read as follows:
(3) In respect to the use of TANGIBLE PERSONAL property, DIGITAL
PRODUCTS or services upon the sale of which the purchaser would be
expressly exempt from the taxes imposed under subdivision (a), (b) [or],
(c) OR (G) of section eleven hundred five OF THIS ARTICLE. In respect
to the use of TANGIBLE PERSONAL property to the extent that it is exempt
from the sales tax under subdivision (g) of section eleven hundred elev-
en of this article.
S 69. Subdivision 4 of section 1118 of the tax law, as added by chap-
ter 93 of the laws of 1965, is amended to read as follows:
(4) In respect to the use of TANGIBLE PERSONAL property OR A DIGITAL
PRODUCT which is converted into or becomes a component part of a product
produced for sale by the purchaser.
S 70. Paragraph (a) of subdivision 7 of section 1118 of the tax law,
as amended by chapter 300 of the laws of 1967, is amended to read as
follows:
(a) In respect to the use of TANGIBLE PERSONAL property, A DIGITAL
PRODUCT or services to the extent that a retail sales or use tax was
legally due and paid thereon, without any right to a refund or credit
S. 60--A 148 A. 160--A
thereof, to any other state or jurisdiction within any other state but
only when it is shown that such other state or jurisdiction allows a
corresponding exemption with respect to the sale or use of tangible
personal property, DIGITAL PRODUCTS or services upon which such a sales
tax or compensating use tax was paid to this state. To the extent that
the tax imposed by this article is at a higher rate than the rate of tax
in the first taxing jurisdiction, this exemption shall be inapplicable
and the tax imposed by section eleven hundred ten of this [chapter]
ARTICLE shall apply to the extent of the difference in such rates,
except as provided in paragraph (b) of this subdivision.
S 71. Section 1118 of the tax law is amended by adding a new subdivi-
sion 13 to read as follows:
(13) IN RESPECT TO THE USE IN THIS STATE OF A DIGITAL PRODUCT, OTHER
THAN COMPUTER SOFTWARE DESCRIBED IN PARAGRAPH ELEVEN OF THIS SUBDIVI-
SION, BEFORE THE EFFECTIVE DATE OF A CHAPTER OF THE LAWS OF TWO THOUSAND
NINE THAT ADDED THIS SUBDIVISION.
S 72. Subdivision (a) of section 1119 of the tax law, as amended by
chapter 686 of the laws of 1986 and as further amended by section 15 of
part GG of chapter 63 of the laws of 2000, is amended to read as
follows:
(a) Subject to the conditions and limitations provided for herein, a
refund or credit shall be allowed for a tax paid pursuant to subdivision
(a) of section eleven hundred five or section eleven hundred ten OF THIS
ARTICLE (1) on the sale or use of tangible personal property if the
purchaser or user, in the performance of a contract, later incorporates
that tangible personal property into real property located outside this
state, (2) on the sale or use of tangible personal property OR DIGITAL
PRODUCTS purchased in bulk, or any portion thereof, which is stored and
not used by the purchaser or user within this state if that property is
subsequently reshipped by such purchaser or user to a point outside this
state for use outside this state, (3) on the sale to or use by a
contractor or subcontractor of tangible personal property OR DIGITAL
PRODUCTS if that TANGIBLE PERSONAL property OR DIGITAL PRODUCT is used
by him OR HER solely in the performance of a pre-existing lump sum or
unit price construction contract, (4) on the sale or use within this
state of tangible personal property, not purchased for resale, if the
use of such property in this state is restricted to fabricating such
property (including incorporating it into or assembling it with other
tangible personal property), processing, printing or imprinting such
property and such property is then shipped to a point outside this state
for use outside this state, (5) on the sale to or use by a veterinarian
of drugs or medicine if such drugs or medicine are used by such veteri-
narian in rendering services, which are exempt pursuant to subdivision
(f) of section eleven hundred fifteen of this [chapter] PART, to live-
stock or poultry used in the production for sale of tangible personal
property by farming or if such drugs or medicine are sold to a person
qualifying for the exemption provided for in paragraph [(6)] SIX of
subdivision (a) of section eleven hundred fifteen of this [chapter] PART
for use by such person on such livestock or poultry, or (6) on the sale
of tangible personal property purchased for use in constructing, expand-
ing or rehabilitating industrial or commercial real property (other than
property used or to be used exclusively by one or more registered
vendors primarily engaged in the retail sale of tangible personal prop-
erty) located in an area designated as an empire zone pursuant to arti-
cle eighteen-B of the general municipal law, but only to the extent that
such property becomes an integral component part of the real property.
S. 60--A 149 A. 160--A
(For the purpose of [clause (3) of the preceding sentence] PARAGRAPH
THREE OF THIS SUBDIVISION, the term "pre-existing lump sum or unit price
construction contract" shall mean a contract for the construction of
improvements to real property under which the amount payable to the
contractor or subcontractor is fixed without regard to the costs
incurred by him in the performance thereof, and which (i) was irrevoca-
bly entered into prior to the date of the enactment of this article or
the enactment of a law increasing the rate of tax imposed under this
article, or (ii) resulted from the acceptance by a governmental agency
of a bid accompanied by a bond or other performance guaranty which was
irrevocably submitted prior to such date.) Where the tax on the sale or
use of such tangible personal property OR DIGITAL PRODUCT has been paid
to the vendor, to qualify for such refund or credit, such tangible
personal property OR DIGITAL PRODUCT must be incorporated into real
property as required in [clause (1) above] PARAGRAPH ONE OF THIS SUBDI-
VISION, reshipped as required in [clause (2) above] PARAGRAPH TWO OF
THIS SUBDIVISION, used in the manner described in [clauses (3), (4), (5)
and (6) above] PARAGRAPHS THREE, FOUR, FIVE AND SIX OF THIS SUBDIVISION
within three years after the date such tax was payable to the [tax
commission] COMMISSIONER by the vendor pursuant to section eleven
hundred thirty-seven OF THIS ARTICLE. Where the tax on the sale or use
of such tangible personal property OR DIGITAL PRODUCT was paid by the
applicant for the credit or refund directly to the [tax commission]
COMMISSIONER, to qualify for such refund or credit, such tangible
personal property OR DIGITAL PRODUCT must be incorporated into real
property as required in [clause (1) above] PARAGRAPH ONE OF THIS SUBDI-
VISION, reshipped as required in [clause (2) above] PARAGRAPH TWO OF
THIS SUBDIVISION, used in the manner described in [clauses (3), (4), (5)
and (6) above] PARAGRAPHS THREE, FOUR, FIVE AND SIX OF THIS SUBDIVISION
within three years after the date such tax was payable to the [tax
commission] COMMISSIONER by such applicant pursuant to this article. An
application for a refund or credit pursuant to this section must be
filed with [such commission] THE COMMISSIONER within the time provided
by subdivision (a) of section eleven hundred thirty-nine OF THIS
ARTICLE. Such application shall be in such form as the [tax commission]
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 that
[he] THE APPLICANT files [his] THE application for credit. However, the
taking of the credit on the return shall be deemed to be part of the
application for credit and shall be subject to the provisions in respect
to applications for credit in section eleven hundred thirty-nine OF THIS
ARTICLE as provided in subdivision (e) of such section. With respect to
a sale or use described in [clause (3) above] PARAGRAPH THREE OF THIS
SUBDIVISION where a pre-existing lump sum or unit price construction
contract was irrevocably entered into prior to the date of the enactment
of this article or the bid accompanied by the performance guaranty was
irrevocably submitted to the governmental agency prior to such date, the
purchaser or user shall be entitled to a refund or credit only of the
amount by which the tax on such sale or use imposed under this article
plus any tax imposed under the authority of article twenty-nine OF THIS
CHAPTER exceeds the amount computed by applying against such sale or use
the local rate of tax, if any, in effect at the time such contract was
entered into or such bid was submitted.
In the case of the enactment of a law increasing the rate of tax
imposed by this article, the purchaser or user shall be entitled only to
S. 60--A 150 A. 160--A
a refund or credit of the amount by which the increased tax on such sale
or use imposed under this article plus any tax imposed under the author-
ity of article twenty-nine OF THIS CHAPTER exceeds the amount computed
by applying against such sale or use the state and local rates of tax in
effect at the time such contract was entered into or such bid was
submitted.
S 73. Subdivision (c) of section 1119 of the tax law, as amended by
chapter 760 of the laws of 1992, is amended to read as follows:
(c) A refund or credit equal to the amount of sales or compensating
use tax imposed by this article and pursuant to the authority of article
twenty-nine OF THIS CHAPTER, and paid on the sale or use of tangible
personal property OR A DIGITAL PRODUCT, shall be allowed the purchaser
where [such] THE TANGIBLE PERSONAL property OR DIGITAL PRODUCT is later
used by the purchaser in performing a service subject to tax under para-
graph [(1), (2), (3), (5), (7) or (8)] ONE, TWO, THREE, FIVE, SEVEN OR
EIGHT of subdivision (c) of section eleven hundred five or under section
eleven hundred ten OF THIS ARTICLE and such TANGIBLE PERSONAL property
has become a physical component part OR, IN THE CASE OF A DIGITAL PROD-
UCT, A COMPONENT PART, of the property upon which the service is
performed or has been transferred to the purchaser of the service in
conjunction with the performance of the service subject to tax or if a
contractor, subcontractor or repairman purchases tangible personal prop-
erty and later makes a retail sale of such tangible personal property,
the acquisition of which would not have been a sale at retail to him but
for the second to last sentence of subparagraph (i) of paragraph [(4)]
FOUR of subdivision (b) of section eleven hundred one OF THIS ARTICLE.
An application for the refund or credit provided for herein must be
filed with the commissioner [of taxation and finance] within the time
provided by subdivision (a) of section eleven hundred thirty-nine OF
THIS ARTICLE. Such application 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 that [he] THE
APPLICANT files [his] THE application for credit. However, the taking of
the credit on the return shall be deemed to be part of the application
for credit. The procedure for granting or denying such applications for
refund or credit and review of such determinations shall be as provided
in subdivision (e) of section eleven hundred thirty-nine OF THIS
ARTICLE.
S 74. Subdivision 1 of section 1131 of the tax law, as amended by
chapter 576 of the laws of 1994, is amended to read as follows:
(1) "Persons required to collect tax" or "person required to collect
any tax imposed by this article" shall include: every vendor of tangible
personal property, DIGITAL PRODUCTS or services; every recipient of
amusement charges; and every operator of a hotel. Said terms shall also
include any officer, director or employee of a corporation or of a
dissolved corporation, any employee of a partnership, any employee or
manager of a limited liability company, or any employee of an individual
proprietorship who as such officer, director, employee or manager is
under a duty to act for such corporation, partnership, limited liability
company or individual proprietorship in complying with any requirement
of this article; and any member of a partnership or limited liability
company. Provided, however, that any person who is a vendor solely by
reason of clause (D) or (E) of subparagraph (i) of paragraph [(8)] EIGHT
of subdivision (b) of section eleven hundred one OF THIS ARTICLE shall
not be a "person required to collect any tax imposed by this article"
S. 60--A 151 A. 160--A
until twenty days after the date by which such person is required to
file a certificate of registration pursuant to section eleven hundred
thirty-four OF THIS PART.
S 75. Subdivision 2 of section 1131 of the tax law, as added by chap-
ter 93 of the laws of 1965, is amended to read as follows:
(2) "Customer" shall include: every purchaser of tangible personal
property, DIGITAL PRODUCTS or services; every patron paying or liable
for the payment of any amusement charge; and every occupant of a room or
rooms in a hotel.
S 76. Subdivision 3 of section 1131 of the tax law, as amended by
chapter 621 of the laws of 1967, is amended to read as follows:
(3) "Tax" shall include any tax imposed by sections eleven hundred
five[,] or eleven hundred ten OF THIS ARTICLE, and any amount payable to
the [tax commission] COMMISSIONER by a person required to file a return,
as provided in section eleven hundred thirty-seven OF THIS PART.
S 77. Paragraphs (a), (c), and (d) of subdivision 4 of section 1131 of
the tax law, as amended by section 34 of part Y of chapter 63 of the
laws of 2000, is amended to read as follows:
(a) all property AND DIGITAL PRODUCTS sold to a person within the
state, whether or not the sale is made within the state, the use of
which property [is] OR DIGITAL PRODUCTS ARE subject to tax under section
eleven hundred ten of this article or will become subject to tax when
such property [is] OR DIGITAL PRODUCTS ARE received by or [comes] COME
into the possession or control of such person within the state; (c) all
services rendered to a person within the state, whether or not such
services are performed within the state, upon tangible personal property
OR DIGITAL PRODUCTS the use of which is subject to tax under section
eleven hundred ten of this article or will become subject to tax when
[such] THE TANGIBLE PERSONAL property OR DIGITAL PRODUCT is received by
or comes into possession or control of such person within the state; (d)
all TANGIBLE PERSONAL property OR DIGITAL PRODUCTS sold by a person
making sales described in clause (F) of subparagraph (i) of paragraph
eight of subdivision (b) of section eleven hundred one of this article
to a person described in such clause (F) who purchases [such] THE TANGI-
BLE PERSONAL property OR DIGITAL PRODUCT at retail, whether or not the
sale is made within the state;
S 78. Subdivision 11 of section 1131 of the tax law, as added by chap-
ter 170 of the laws of 1994, is amended to read as follows:
(11) "Temporary vendor" shall include any person who makes sales of
tangible personal property, DIGITAL PRODUCTS or services subject to tax
(other than at a show or entertainment event) in not more than two
consecutive quarterly periods in any twelve month period, as such quar-
terly periods are described in subdivision (b) of section eleven hundred
thirty-six of this [article] PART.
S 79. Subdivision (e) of section 1132 of the tax law, as amended by
section 2-d of part M-1 of chapter 109 of the laws of 2006, is amended
to read as follows:
(e) The commissioner may provide, by regulation, for the exclusion
from taxable receipts, gallons of motor fuel or diesel motor fuel sold,
amusement charges or rents of amounts representing sales where the
contract of sale has been cancelled, the property OR DIGITAL PRODUCT
returned or the receipt, charge or rent has been ascertained to be
uncollectible or, in case the tax has been paid upon such receipt,
gallons, charge or rent, for refund of or credit for the tax so paid.
Where the commissioner provides for a credit for the tax so paid, he or
she shall require an application for credit to be filed, but he or she
S. 60--A 152 A. 160--A
may also allow the applicant to immediately take the credit on the
return which is due coincident with or immediately subsequent to the
time the applicant files his or her application for credit. However, the
taking of the credit on the return shall be deemed to be part of the
application for credit and shall be subject to the provisions in respect
to applications for credit in section eleven hundred thirty-nine of this
part as provided in subdivision (e) of such section.
S 80. Paragraph 2 of subdivision (e-1) of section 1132 of the tax law,
as added by chapter 664 of the laws of 2006, is amended to read as
follows:
(2) A vendor shall be considered the vendor of the tangible personal
property, DIGITAL PRODUCT or services giving rise to a worthless account
even though the TANGIBLE PERSONAL property, DIGITAL PRODUCT or services
are sold by a leased department or concession provided all the following
conditions are met:
(i) the leased department or concession accounts for and pays over all
of its receipts to the lessor-vendor;
(ii) the lessor-vendor reports and remits to the department the tax on
all of the leased department or concession's receipts; and
(iii) the transfer of all the receivables from the leased department
or concession to the lessor-vendor is made without any discount for any
credit transactions which involve the lessor-vendor's receivables and
without recourse to the leased department or concession.
S 81. Paragraph 1 of subdivision (a) of section 1134 of the tax law,
as amended by section 160 of part A of chapter 389 of the laws of 1997,
is amended to read as follows:
(1) (i) Every person required to collect any tax imposed by this arti-
cle, other than a person who is a vendor solely by reason of clause (D),
(E) or (F) of subparagraph (i) of paragraph eight of subdivision (b) of
section eleven hundred one of this article, commencing business or open-
ing a new place of business, (ii) every person purchasing or selling
tangible personal property OR DIGITAL PRODUCTS for resale commencing
business or opening a new place of business, (iii) every person selling
automotive fuel including persons who or which are not distributors,
(iv) every person described in this subdivision who takes possession of
or pays for business assets under circumstances requiring notification
by such person to the commissioner pursuant to subdivision (c) of
section eleven hundred forty-one of this [chapter] PART, (v) every
person selling cigarettes including persons who or which are not agents,
and (vi) every person described in subparagraph (i), (ii), (iii), (iv)
or (v) of this paragraph or every person who is a vendor solely by
reason of clause (D), (E) or (F) of subparagraph (i) of paragraph eight
of subdivision (b) of section eleven hundred one of this article who or
which has had its certificate of authority revoked under paragraph four
of this subdivision, shall file with the commissioner a certificate of
registration, in a form prescribed by the commissioner, at least twenty
days prior to commencing business or opening a new place of business or
such purchasing, selling or taking of possession or payment, whichever
comes first. Every person who is a vendor solely by reason of clause (D)
of subparagraph (i) of paragraph eight of subdivision (b) of section
eleven hundred one of this article shall file with the commissioner a
certificate of registration, in a form prescribed by such commissioner,
within thirty days after the day on which the cumulative total number of
occasions that such person came into the state to deliver property or
services, for the immediately preceding four quarterly periods ending on
the last day of February, May, August and November, exceeds twelve.
S. 60--A 153 A. 160--A
Every person who is a vendor solely by reason of clause (E) of subpara-
graph (i) of paragraph eight of subdivision (b) of section eleven
hundred one of this article shall file with the commissioner a certif-
icate of registration, in a form prescribed by such commissioner, within
thirty days after the day on which the cumulative total, for the imme-
diately preceding four quarterly periods ending on the last day of
February, May, August and November, of such person's gross receipts from
sales of property delivered in this state exceeds three hundred thousand
dollars and number of such sales exceeds one hundred. Every person who
is a vendor solely by reason of clause (F) of subparagraph (i) of para-
graph eight of subdivision (b) of section eleven hundred one of this
article shall file with the commissioner a certificate of registration,
in a form prescribed by such commissioner, within thirty days after the
day on which tangible personal property in which such person retains an
ownership interest is brought into this state by the person to whom such
property is sold, where the person to whom such property is sold becomes
or is a resident or uses such property in any manner in carrying on in
this state any employment, trade, business or profession. Information
with respect to the notice requirements of a purchaser, transferee or
assignee and such person's liability pursuant to the provisions of
subdivision (c) of section eleven hundred forty-one of this [chapter]
PART shall be included in or accompany the certificate of registration
form furnished the applicant. The commissioner shall also include with
such information furnished to each applicant general information about
the tax imposed under this article including information on records to
be kept, returns and payments, notification requirements and forms. Such
certificate of registration may be amended in accordance with rules
promulgated by the commissioner.
S 82. Paragraph 3 of subdivision (a) of section 1134 of the tax law,
as amended by chapter 2 of the laws of 1995, is amended to read as
follows:
(3) A person, other than one described in clauses (A), (B), and (C) of
subparagraph (i) of paragraph [(8)] EIGHT of subdivision (b) of section
eleven hundred one OF THIS ARTICLE, and other than one described in
clause (D), (E) or (F) of such subparagraph who is required to file a
certificate of registration with the commissioner, but who makes sales
to persons within the state of tangible personal property, DIGITAL
PRODUCTS or services, the use of which is subject to tax under this
article, may if such person so elects file a certificate of registration
with the commissioner who may, in the commissioner's discretion and
subject to such conditions as the commissioner may impose, issue to such
person a certificate of authority to collect the compensating use tax
imposed by this article.
S 83. Paragraph 3 of subdivision (a) of section 1136 of the tax law,
as amended by chapter 2 of the laws of 1995, is amended to read as
follows:
(3) However, a person required to register with the commissioner as
provided in section eleven hundred thirty-four OF THIS PART only because
such person is purchasing or selling tangible personal property OR
DIGITAL PRODUCTS for resale, and who is not required to collect any tax
or pay any tax directly to the commissioner under this article, shall
file an information return annually in such form as the commissioner may
prescribe. Likewise, a person, who is required to register and who is
selling automotive fuel who is not a distributor of motor fuel, shall
file an information return quarterly or, if the commissioner deems
necessary, monthly, in such form as the commissioner shall prescribe.
S. 60--A 154 A. 160--A
S 84. Paragraph 4 of subdivision (a) of section 1136 of the tax law,
as amended by section 2-e of part M-1 of chapter 109 of the laws of
2006, is amended to read as follows:
(4) The return of a vendor of tangible personal property, DIGITAL
PRODUCTS or services shall show such vendor's receipts from sales and
the number of gallons of any motor fuel or diesel motor fuel sold and
also the aggregate value of tangible personal property, DIGITAL PRODUCTS
and services and number of gallons of such fuels sold by the vendor, the
use of which is subject to tax under this article, and the amount of tax
payable thereon pursuant to the provisions of section eleven hundred
thirty-seven of this part. The return of a recipient of amusement charg-
es shall show all such charges and the amount of tax thereon, and the
return of an operator required to collect tax on rents shall show all
rents received or charged and the amount of tax thereon.
S 85. Subdivision (a) of section 1137 of the tax law, as amended by
section 2-f of part M-1 of chapter 109 of the laws of 2006, is amended
to read as follows:
(a) Every person required to file a return under the preceding section
whose total taxable receipts (as "taxable receipts" are described in
subdivision (a) of such section), amusement charges and rents are
subject to the tax imposed pursuant to subdivisions (a), (c), (d), (e)
[and], (f) AND (G) of section eleven hundred five of this article shall,
at the time of filing such return, pay to the commissioner the total of
the following:
(i) Four percent of the total of all receipts, amusement charges and
rents subject to tax under this article, and if any of such receipts,
amusement charges and rents are subject to local tax imposed pursuant to
article twenty-nine of this chapter, an additional percentage of the
total thereof equal to the percentage rate of such local tax;
(ii) All taxes imposed by section eleven hundred ten OF THIS ARTICLE
or pursuant to article twenty-nine of this chapter upon such person's
use of TANGIBLE PERSONAL property, DIGITAL PRODUCTS or services;
(iii) All moneys collected by such person, purportedly as tax imposed
by this article or pursuant to article twenty-nine of this chapter, with
respect to any receipt, gallon of motor fuel or diesel motor fuel sold,
amusement charge or rent not subject to tax, and all moneys collected
with respect to any receipt, gallon of such fuel, amusement charge or
rent subject to tax, purportedly in accordance with a schedule
prescribed by the commissioner but actually in excess of the amount
stated in such schedule as the amount to be collected; and
(iv) The correct number of cents per gallon of motor fuel and diesel
motor fuel sold subject to tax under this article, and, if any of such
gallons sold are subject to local tax imposed pursuant to article twen-
ty-nine of this chapter, an additional number of cents per gallon sold
subject to such local taxes equal to the rates of such taxes.
S 86. Paragraph (ii) of subdivision (b) of section 1137 of the tax
law, as amended by section 2-f of part M-1 of chapter 109 of the laws of
2006, is amended to read as follows:
(ii) All taxes imposed by section eleven hundred ten OF THIS ARTICLE
or pursuant to article twenty-nine of this chapter upon such person's
use of TANGIBLE PERSONAL property, DIGITAL PRODUCTS or services;
S 87. Paragraph 1 of subdivision (e) of section 1137 of the tax law,
as amended by chapter 95 of the laws of 1976 and such subdivision as
relettered by chapter 89 of the laws of 1976, is amended to read as
follows:
S. 60--A 155 A. 160--A
(1) The amount so payable to the [tax commission] COMMISSIONER for the
period for which a return is required to be filed shall be due and paya-
ble to the [tax commission] COMMISSIONER on the date limited for the
filing of the return for such period, without regard to whether a return
is filed or whether the return which is filed correctly shows the amount
of receipts, amusement charges or rents or the value of property,
DIGITAL PRODUCTS or services sold or purchased or the taxes due thereon.
S 88. Subparagraph (B) of paragraph 3 of subdivision (a) of section
1138 of the tax law, as amended by chapter 456 of the laws of 1998, is
amended to read as follows:
(B) The liability, pursuant to subdivision (a) of section eleven
hundred thirty-three of this article, of any officer, director or
employee of a corporation or of a dissolved corporation, member or
employee of a partnership or employee of an individual proprietorship
who as such officer, director, employee or member is under a duty to act
for such corporation, partnership or individual proprietorship in
complying with any requirement of this article for the tax imposed,
collected or required to be collected, or for the tax required to be
paid or paid over to the [tax commission] COMMISSIONER under this arti-
cle, and the amount of such tax liability (whether or not a return is
filed under this article, whether or not such return when filed is
incorrect or insufficient, or where the tax shown to be due on the
return filed under this article has not been paid or has not been paid
in full) shall be determined by the [tax commission] COMMISSIONER in the
manner provided for in paragraphs one and two of this subdivision. Such
determination shall be an assessment of the tax and liability for the
tax with respect to such person unless such person, within ninety days
after the giving of notice of such determination, shall apply to the
division of tax appeals for a hearing. If such determination is identi-
cal to or arises out of a previously issued determination of tax of the
corporation, dissolved corporation, partnership or individual proprie-
torship for which such person is under a duty to act, an application
filed with the division of tax appeals on behalf of the corporation,
dissolved corporation, partnership or individual proprietorship shall be
deemed to include any and all subsequently issued personal determi-
nations and a separate application to the division of tax appeals for a
hearing shall not be required. The [tax commission] COMMISSIONER may,
nevertheless, [of its] ON HIS OR HER own motion, redetermine such deter-
mination of tax or liability for tax. Where the [tax commission] COMMIS-
SIONER determines or redetermines that the amount of tax claimed to be
due from a vendor of tangible personal property, DIGITAL PRODUCTS or
services, a recipient of amusement charges, or an operator of a hotel is
erroneous or excessive in whole or in part, [it] THE COMMISSIONER shall
redetermine the amount of tax properly due from any such person as a
person required to collect tax with respect to such vendor, recipient,
or operator, and if such amount is less than the amount of tax for which
such person would have been liable in the absence of such determination
or redetermination, [it] THE COMMISSIONER shall reduce such liability
accordingly. Furthermore, the [tax commission] COMMISSIONER may, [of
its] ON HIS OR HER own motion, abate on behalf of any such person, any
part of the tax determined to be erroneous or excessive whether or not
such tax had become finally and irrevocably fixed with respect to such
person but no claim for abatement may be filed by any such person. The
provisions of this paragraph shall not be construed to limit in any
manner the powers of the attorney general under subdivision (a) of
section eleven hundred forty-one OF THIS PART or the powers of the [tax
S. 60--A 156 A. 160--A
commission] COMMISSIONER to issue a warrant under subdivision (b) of
such section against any person whose liability has become finally and
irrevocably fixed.
S 89. Subparagraph (i) of paragraph 3 of subdivision (a) of section
1145 of the tax law, as amended by chapter 2 of the laws of 1995, is
amended to read as follows:
(i) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four OF THIS PART who, without possessing
a valid certificate of authority, (A) sells tangible personal property,
DIGITAL PRODUCTS or services subject to tax, receives amusement charges
or operates a hotel, (B) purchases or sells tangible personal property
OR DIGITAL PRODUCTS for resale, (C) sells automotive fuel, or (D) sells
cigarettes shall, in addition to any other penalty imposed by this chap-
ter, be subject to a penalty in an amount not exceeding five hundred
dollars for the first day on which such sales or purchases are made,
plus an amount not exceeding two hundred dollars for each subsequent day
on which such sales or purchases are made, not to exceed ten thousand
dollars in the aggregate.
S 90. Subparagraph (i) of paragraph 1 of subdivision (a) of section
1210 of the tax law, as amended by section 4 of part SS-1 of chapter 57
of the laws of 2008, is amended to read as follows:
(i) 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. 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 OR DIGITAL PRODUCTS for use or consumption
directly and predominantly in the production of tangible personal prop-
erty, gas, electricity, refrigeration or steam, for sale, by manufactur-
ing, processing, generating, assembly, refining, mining or extracting;
and all sales of tangible personal property OR DIGITAL PRODUCTS for use
or consumption predominantly either in the production of tangible
personal property, for sale, by farming or in a commercial horse board-
ing 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 subdivision (a) of section eleven hundred
nineteen of this chapter. 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 equip-
ment exemption provided for in subdivision (ee), the clothing and foot-
wear exemption provided for in paragraph thirty of subdivision (a) and
the qualified empire zone enterprise exemptions provided for in subdivi-
sion (z) of section eleven hundred fifteen of this chapter, unless such
S. 60--A 157 A. 160--A
city, county or school district elects otherwise as to either such resi-
dential solar energy systems equipment exemption or such clothing and
footwear exemption or such qualified empire zone enterprise exemptions;
provided that if such a city having a population of one million or more
in which the taxes imposed by section eleven hundred seven of this chap-
ter are in effect enacts the resolution described in subdivision (k) of
this section or repeals such resolution or enacts the resolution
described in subdivision (l) of this section or repeals such resolution
or enacts the resolution described in subdivision (n) of this section or
repeals such resolution, such resolution or repeal shall also be deemed
to amend any local law, ordinance or resolution enacted by such a city
imposing such taxes pursuant to the authority of this subdivision,
whether or not such taxes are suspended at the time such city enacts its
resolution pursuant to subdivision (k), (l) or (n) of this section or at
the time of any such repeal; provided, further, that any such local law,
ordinance or resolution and section eleven hundred seven of this chap-
ter, as deemed to be amended in the event a city of one million or more
enacts a resolution pursuant to the authority of subdivision (k), (l) or
(n) of this section, shall be further amended, as provided in section
twelve hundred eighteen of this subpart, so that the residential solar
energy systems equipment exemption or the clothing and footwear
exemption or the qualified empire zone enterprise exemptions in any such
local law, ordinance or resolution or in such section eleven hundred
seven are the same, as the case may be, as the residential solar energy
systems equipment exemption provided for in subdivision (ee), the cloth-
ing and footwear exemption in paragraph thirty of subdivision (a) or the
qualified empire zone enterprise exemptions in subdivision (z) of
section eleven hundred fifteen of this chapter.
S 91. Paragraph 2 of subdivision (l) of section 1210 of the tax law,
as amended by section 13 of part GG of chapter 63 of the laws of 2000,
is amended to read as follows:
(2) Form of Resolution: Be it enacted by the (insert proper title of
local legislative body) as follows:
Section one. Receipts from sales of and consideration given or
contracted to be given for, or for the use of, property, PRE-WRITTEN
COMPUTER SOFTWARE and services exempt from state sales and compensating
use taxes pursuant to subdivision (z) of section 1115 of the tax law
shall also be exempt from sales and compensating use taxes imposed in
this jurisdiction.
Section two. This resolution shall take effect March 1, (insert the
year, but not earlier than the year 2001) and shall apply to sales made,
services rendered and uses occurring on and after that date in accord-
ance with the applicable transitional provisions in sections 1106, 1216
and 1217 of the New York tax law.
S 92. Paragraph 2 of subdivision (b) of section 1212-A of the tax law,
as amended by chapter 190 of the laws of 1990, is amended to read as
follows:
(2) However, with respect to a tax imposed under the authority of
paragraph three of subdivision (a) of this section a refund or credit
equal to the amount of the sale or compensating use tax imposed by
section eleven hundred seven of this chapter and paid on the sale or use
of tangible personal property OR A DIGITAL PRODUCT which is later used
by such purchaser in performing a service subject to tax under such
paragraph shall be allowed such purchaser against the tax imposed pursu-
ant to such paragraph and collected by such person on the sale of such
service if such TANGIBLE PERSONAL property has become a physical compo-
S. 60--A 158 A. 160--A
nent part OR THE DIGITAL PRODUCT BECOMES A COMPONENT PART of the proper-
ty upon which the service is performed or IF SUCH TANGIBLE PERSONAL
PROPERTY OR DIGITAL PRODUCT has been transferred to the purchaser of the
service in conjunction with the performance of the service subject to
tax.
S 93. Section 1213 of the tax law, as amended by chapter 651 of the
laws of 1999, is amended to read as follows:
S 1213. Deliveries outside the jurisdiction where sale is made. Where
a sale of tangible personal property, A DIGITAL PRODUCT or services,
including prepaid telephone calling services, but not including other
services described in subdivision (b) of section eleven hundred five OF
THIS CHAPTER, including an agreement therefor, is made in any city,
county or school district, but the TANGIBLE PERSONAL property OR DIGITAL
PRODUCT sold, the property upon which the services were performed or
prepaid telephone calling or other service is or will be delivered to
the purchaser elsewhere, such sale shall not be subject to tax by such
city, county or school district. However, if delivery occurs or will
occur in a city, county or school district imposing a tax on the sale or
use of such property, DIGITAL PRODUCT, prepaid telephone calling or
other services, the vendor shall be required to collect from the
purchaser, as provided in section twelve hundred fifty-four OF THIS
ARTICLE, the aggregate sales or compensating use taxes imposed by the
city, if any, county and school district in which delivery occurs or
will occur, for distribution by the commissioner to such taxing juris-
diction or jurisdictions. For the purposes of this section delivery
shall be deemed to include transfer of possession to the purchaser and
the receiving of the TANGIBLE PERSONAL property or of the service,
including prepaid telephone calling service, by the purchaser AND, FOR A
DIGITAL PRODUCT, DELIVERY WILL BE DETERMINED IN ACCORDANCE WITH THE
RULES IN SUBDIVISION (G) OF SECTION ELEVEN HUNDRED FIVE OF THIS CHAPTER.
S 94. Section 1235 of the tax law, as amended by chapter 459 of the
laws of 1968, is amended to read as follows:
S 1235. Taxes paid to other jurisdictions. (a) With respect to taxes
imposed pursuant to subdivision (a) of section twelve hundred ten OF
THIS ARTICLE and pursuant to section twelve hundred eleven OF THIS ARTI-
CLE, the use of tangible personal property OR A DIGITAL PRODUCT
purchased at retail and of any of the services subject to the sales tax
shall be exempt from the compensating use tax authorized under subdivi-
sion (a) of such section twelve hundred ten and under section twelve
hundred eleven OF THIS ARTICLE, to the extent that a retail sales tax or
a compensating use tax was legally due and paid thereon, without any
right to a refund or credit thereof, to (1) any municipal corporation in
this state or (2) any other state or jurisdiction within any other
state, but only when it is shown that such other state or jurisdiction
allows a corresponding exemption with respect to the sale or use of
tangible personal property, A DIGITAL PRODUCT or of any of the services
upon which such a sale or compensating use tax was paid to this state
and any of its municipal corporations, except as provided in subdivision
(b) of this section.
(b) To the extent that a compensating use tax imposed pursuant to this
article and the compensating use tax imposed by article twenty-eight OF
THIS CHAPTER are at a higher aggregate rate than the rate of tax imposed
in any other state or jurisdiction within any other state, the exemption
provided in subdivision (a) of this section shall be inapplicable and
the taxes imposed pursuant to this article and by article twenty-eight
OF THIS CHAPTER shall apply to the extent of the difference between such
S. 60--A 159 A. 160--A
aggregate rate and the rate paid in such other state or jurisdiction.
In such event, the amount payable shall be allocated between the tax
imposed pursuant to this article and the tax imposed by article twenty-
eight OF THIS CHAPTER in proportion to the respective rates of such
taxes. Where a retail sales tax or a compensating use tax was legally
due and paid to any municipal corporation in this state, without any
right to a refund or credit thereof, with respect to the sale or use of
tangible personal property, A DIGITAL PRODUCT or any of the services
subject to sales or compensating use tax, if the use of such property,
DIGITAL PRODUCT or services is then subject to a compensating use tax
imposed by any other municipal corporation in this state and such tax is
at a higher rate than the rate of tax imposed by the first municipal
corporation, the tax of the municipal corporation with the higher rate
shall also apply but only to the extent of the difference in such rates
and such tax shall be distributable to such municipal corporation,
pursuant to section twelve hundred sixty-one OF THIS ARTICLE, without
allocation as hereinabove provided. Where a retail sales tax or a
compensating use tax was legally due and paid to this state only, with
respect to the sale or use of tangible personal property, A DIGITAL
PRODUCT or any of the services subject to sales or compensating use tax,
if the use of such property, DIGITAL PRODUCT or services is then subject
to a compensating use tax imposed by a municipal corporation in this
state, such tax shall be distributable to the municipal corporation,
pursuant to section twelve hundred sixty-one OF THIS ARTICLE, without
allocation as hereinabove provided.
(c) For purposes of this section, a payment to the [tax commission]
COMMISSIONER of a tax imposed by a municipal corporation shall be deemed
a payment to such municipal corporation.
S 95. Subdivision (a) of section 1251 of the tax law, as amended by
chapter 155 of the laws of 1982, is amended to read as follows:
(a) Every person required to collect any of the taxes imposed under
the authority of section twelve hundred ten, twelve hundred eleven,
twelve hundred twelve or twelve hundred twelve-A OF THIS ARTICLE shall
file a return as required by subdivision (a) of section eleven hundred
thirty-six OF THIS CHAPTER with the [tax commission] COMMISSIONER,
except that return for the quarterly period ending August thirty-first,
nineteen hundred sixty-five shall only cover the month of August, nine-
teen hundred sixty-five. The return of a vendor of tangible personal
property, DIGITAL PRODUCTS or services shall show his OR HER receipts
from sales and also the aggregate value of tangible personal property,
DIGITAL PRODUCTS and services sold by him OR HER, the use of which is
subject to a tax imposed under the authority of this article and the
amount of taxes required to be collected with respect to such sales and
use. The return of a recipient of amusement charges shall show all such
charges and the amount of tax thereon, and the return of an operator
required to collect tax on rents shall show all rents received or
charged and the amount of tax thereon. Every person required to file a
part-quarterly return pursuant to subdivision (a) of section eleven
hundred thirty-six OF THIS CHAPTER shall file a return for the same
periods for the taxes imposed pursuant to this article. Provided, howev-
er, where a part-quarterly return described in paragraph (i) or (ii) of
subdivision (a) of section eleven hundred thirty-six OF THIS CHAPTER is
filed for purposes of complying with this section and section eleven
hundred thirty-six or subdivision (a) or (b) of section eleven hundred
thirty-seven-A OF THIS CHAPTER, on such returns separate amounts due for
the taxes imposed by each county, city or school district, pursuant to
S. 60--A 160 A. 160--A
the authority of section twelve hundred ten, twelve hundred eleven,
twelve hundred twelve or twelve hundred twelve-A OF THIS ARTICLE, need
not be shown. Rather, such returns shall only show the aggregate amount
of all such local taxes calculated in the manner provided for in para-
graph (i) or (ii) of subdivision (a) of section eleven hundred thirty-
six OF THIS CHAPTER except that in the case of a short-form, part-quar-
terly return, where a county, city or school district did not impose a
tax in the comparable quarter of the immediately preceding year, the tax
for that locality shall be calculated on such basis as the [tax commis-
sion] COMMISSIONER shall by regulation prescribe.
S 96. Section 1252 of the tax law, as added by chapter 93 of the laws
of 1965, subdivision (a) as amended by chapter 89 of the laws of 1976
and subdivision (b) as amended by chapter 169 of the laws of 1970, is
amended to read as follows:
S 1252. Payment of tax. (a) Every person required to file a return or
returns under subdivision (a) of the preceding section shall, at the
time of filing such return or returns, pay to the [state tax commission]
COMMISSIONER the amount which section eleven hundred thirty-seven or
section eleven hundred thirty-seven-A of [article twenty-eight] THIS
CHAPTER requires to be paid with respect to local taxes imposed pursuant
to this article. The amount so required to be paid for the period for
which a return or returns is required to be filed shall be due and paya-
ble to the [state tax commission] COMMISSIONER on the date limited for
the filing of the return or returns for such period, without regard to
whether a return is filed or whether the return which is filed clearly
shows the amount of receipts, amusement charges or returns or the value
of property, DIGITAL PRODUCTS or services sold or purchased or the taxes
due thereon. Where the [state tax commission] COMMISSIONER, in [its]
HIS OR HER discretion, deems it necessary to protect the revenues to be
obtained under this article, [it] THE COMMISSIONER shall have the power
to require a bond, cash or other security under procedures which are set
forth in section eleven hundred thirty-seven OF THIS CHAPTER.
(b) The [tax commission] COMMISSIONER, in [its] HIS OR HER discretion,
may require or permit any or all persons liable for any tax or required
to collect any tax authorized under section twelve hundred ten, twelve
hundred eleven, twelve hundred twelve or twelve hundred twelve-A OF THIS
ARTICLE to make payment to such banks, banking houses or trust companies
designated by the [tax commission] COMMISSIONER and to file returns with
such banks, banking houses or trust companies, as agent of the [state
tax commission] COMMISSIONER, in lieu of paying the taxes imposed under
the authority of section twelve hundred ten, twelve hundred eleven,
twelve hundred twelve or twelve hundred twelve-A directly to the [state
tax commission] COMMISSIONER. However, the [tax commission] COMMISSION-
ER can only designate such banks, banking houses and trust companies
which are already designated by the comptroller as depositories pursuant
to section eleven hundred forty-eight of this chapter.
S 97. Subdivision (b) of section 1254 of the tax law, as amended by
chapter 169 of the laws of 1970, is amended to read as follows:
(b) Where the state of New York, any of its agencies, instrumentali-
ties, public corporations (including a public corporation created pursu-
ant to agreement or compact with another state or Canada) or political
subdivisions sells services [or], property OR DIGITAL PRODUCTS of a kind
ordinarily sold by private persons it shall be considered a vendor for
purposes of the taxes imposed under the authority of sections twelve
hundred ten, twelve hundred eleven, twelve hundred twelve and twelve
hundred twelve-A OF THIS ARTICLE and shall be required to collect the
S. 60--A 161 A. 160--A
taxes imposed by cities, counties and school districts under the author-
ity of such sections.
S 98. Subdivision (d) of section 1817 of the tax law, as added by
chapter 65 of the laws of 1985, is amended to read as follows:
(d) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four of this chapter who, without possess-
ing a valid certificate of authority, willfully (1) sells tangible
personal property, A DIGITAL PRODUCT or services subject to tax,
receives amusement charges or operates a hotel, (2) purchases or sells
tangible personal property OR A DIGITAL PRODUCT for resale, or (3) sells
automotive fuel; and any person who fails to surrender a certificate of
authority as required by such article shall be guilty of a misdemeanor.
S 99. Subdivision (e) of section 1817 of the tax law, as amended by
chapter 765 of the laws of 1985, is amended to read as follows:
(e) Any person required to obtain a certificate of authority under
section eleven hundred thirty-four of this chapter who within five years
after a determination by the [tax commission] COMMISSIONER, pursuant to
such section, to suspend, revoke or refuse to issue a certificate of
authority has become final, and without possession of a valid certif-
icate of authority (1) sells tangible personal property, A DIGITAL PROD-
UCT or services subject to tax, receives amusement charges or operates a
hotel, (2) purchases or sells tangible personal property OR A DIGITAL
PRODUCT for resale, or (3) sells automotive fuel, shall be guilty of a
misdemeanor. It shall be an affirmative defense that such person
performed the acts described in this subdivision without knowledge of
such determination. Any person who violates a provision of this subdivi-
sion, upon conviction, shall be subject to a fine in any amount author-
ized by this article, but not less than five hundred dollars, in addi-
tion to any other penalty provided by law.
S 100. Section 66 of the rural electric cooperative law, as amended by
chapter 888 of the laws of 1983, is amended to read as follows:
S 66. License fee in lieu of all franchise, excise, income, corpo-
ration and sales and compensating use taxes. Each cooperative and
foreign corporation doing business in this state pursuant to this chap-
ter shall pay annually, on or before the first day of July, to the
[state tax commission] COMMISSIONER OF TAXATION AND FINANCE, a fee of
ten dollars, but shall be exempt from all other franchise, excise,
income, corporation and sales and compensating use taxes whatsoever. The
exemption from the sales and compensating use taxes provided by this
section shall not apply to the taxes imposed pursuant to section eleven
hundred seven or eleven hundred eight of the tax law. Nothing contained
in this section shall be deemed to exempt such corporations from
collecting and paying over sales and compensating use taxes on retail
sales of tangible personal property, DIGITAL PRODUCTS and services made
by such corporations to purchasers required to pay such taxes imposed
pursuant to article twenty-eight or authorized pursuant to the authority
of article twenty-nine of the tax law.
S 101. This act shall take effect immediately; provided however, that:
1. sections one through nine-a of this act shall apply to taxable
years beginning on and after January 1, 2010; and
2. sections ten through one hundred of this act shall take effect June
1, 2009 and shall apply to sales or uses occurring on or after that date
in accordance with applicable transitional provisions in sections 1106
and 1217 of the tax law.
PART DD
S. 60--A 162 A. 160--A
Section 1. Subdivision (b) of section 523 of the tax law, as amended
by section 7 of part M-1 of chapter 109 of the laws of 2006, is amended
to read as follows:
(b) Rate of tax. The tax imposed by this section shall be at a compos-
ite rate determined by adding together (1) a fuel tax component which
shall be equal to the applicable rate per gallon in effect under the
taxes on motor fuel and diesel motor fuel imposed by article twelve-A of
this chapter and (2) a sales tax component, which shall be equal to [the
sum of (A) a state sales and compensating use tax subcomponent, equal
to] the [applicable] rate per gallon APPLICABLE TO THE RECEIPTS FROM THE
SALE OF A GALLON OF MOTOR FUEL OR DIESEL MOTOR FUEL in effect under the
sales and compensating use taxes [on motor fuel and diesel motor fuel]
imposed by sections eleven hundred five and eleven hundred ten of this
chapter [as described in subdivision (m) of section eleven hundred elev-
en of this chapter] plus [(B) a local sales and compensating use tax
subcomponent, which shall be the lower of (i) the lowest applicable rate
per gallon in effect under the sales and compensating use taxes on such
fuels in effect in any county of this state imposing a local sales and
compensating use tax on a cents per gallon basis pursuant to the author-
ity of subpart B of part one of article twenty-nine of this chapter, or
(ii) the equivalent rate per gallon based on] the highest rate applica-
ble to the receipts from the sale of a gallon of motor fuel or diesel
motor fuel in effect in any locality of this state imposing a local
sales and compensating use tax on [a percentage rate basis on] the sale
of motor fuel and diesel motor fuel pursuant to the authority of subpart
B of part one of article twenty-nine of this chapter. Provided, however,
that the total rate per gallon applicable to the receipts from the sale
of a gallon of such fuels imposed under [clause (ii) of subparagraph (B)
of] paragraph two of this subdivision shall not exceed [three] SEVEN
percent. Such TOTAL equivalent rate per gallon under [clause (ii) of
subparagraph B of] paragraph two of this subdivision shall be determined
as provided in subdivision (d) [or (m)] of section eleven hundred eleven
of this chapter and the schedules prescribed by the commissioner pursu-
ant to such subdivision (d), and shall be based on the average price per
gallon (including all federal and state and any local taxes included in
such price or imposed on the use or consumption of such fuels upon which
the state and local sales and compensating use taxes are computed but
determined without the inclusion of any state or local sales tax on
receipts from sales of such fuels) paid by the carrier during the
reporting period for all motor fuel and diesel motor fuel purchased for
use in its operations either within or without this state. [For purposes
of clause (ii) of subparagraph (B) of paragraph two of this subdivision,
the] THE price for motor fuel and diesel motor fuel purchased by such
carrier shall be deemed to be the prevailing price for motor fuel and
diesel motor fuel, as established by the commissioner each calendar
quarter pursuant to this section, applicable to the reporting period.
The commissioner shall for each calendar quarter establish a prevailing
price for motor fuel and diesel motor fuel based on the prices being
charged on any given day during the first fifteen days of the previous
calendar quarter at a minimum of ten selected truck stops widely scat-
tered throughout the state. The tax imposed by this section shall be
computed by multiplying such composite rate by the amount of motor fuel
or diesel motor fuel, as the case may be, used by a carrier in its oper-
ations within this state during each reporting period. The amount of
motor fuel and diesel motor fuel used in the operations of any carrier
within this state shall be determined by dividing the number of miles
S. 60--A 163 A. 160--A
traveled in this state subject to tax under this section by the average
miles per gallon for the type of fuel. Where the records of any carrier
are inadequate or incomplete, the qualified motor vehicles of a carrier
filing returns shall be deemed to have consumed, on the average, one
gallon of diesel motor fuel for every four miles traveled or one gallon
of motor fuel for every three miles traveled unless substantial evidence
discloses that a different amount was consumed; provided, however, that
if the commissioner enters into a cooperative agreement pursuant to
section five hundred twenty-eight of this article and such agreement
prescribes a different average miles per gallon deemed to be consumed,
the commissioner shall prescribe such different average.
S 2. Subdivision (c) of section 524 of the tax law, as amended by
section 8 of part M-1 of chapter 109 of the laws of 2006, is amended to
read as follows:
(c) Actual price. Every carrier which can substantiate that its aver-
age price paid per gallon (including all federal and state and any local
taxes included in such price or imposed on the use or consumption of
such fuels upon which the state and local sales and compensating use
taxes are computed but determined [with out] WITHOUT the inclusion of
any state or local sales tax on receipts from sales of such fuels)
during a reporting period is less than the prevailing price determined
for such period pursuant to subdivision (b) of section five hundred
twenty-three of this article[, if such calculation was based upon an
amount determined under clause (ii) of subparagraph (B) of paragraph two
of subdivision (b) of section five hundred twenty-three of this arti-
cle,] may apply for a refund of the difference between the tax paid
relating to the sales tax component computed based upon such prevailing
price for such period and the tax relating to the sales tax component
computed based upon the carrier's actual average purchase price for such
period. Such refund must be applied for on or before the last day of the
month immediately following the four-year period commencing with the end
of the reporting period which gave rise to the refund.
S 3. Subdivision (n) of section 1111 of the tax law, as amended by
section 10 of part W-1 of chapter 109 of the laws of 2006, is amended to
read as follows:
(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.
S 4. Paragraph 7 of subdivision (a) of section 1136 of the tax law, as
amended by section 2-e of part M-1 of chapter 109 of the laws of 2006,
is amended to read as follows:
(7) Taxable receipts as used in this section shall include taxable
receipts from the sale of automotive fuel and cigarettes and any
receipts from the sale of motor fuel or diesel motor fuel or cigarettes
in this state whether or not such receipts are subject to the taxes
imposed by section eleven hundred two, eleven hundred three, eleven
hundred five or eleven hundred ten of this article and regardless of
whether the provisions of section eleven hundred twenty or eleven
S. 60--A 164 A. 160--A
hundred twenty-one of this article are applicable to the taxes imposed
in respect of such receipts [or numbers of gallons of motor fuel or
diesel motor fuel sold].
S 5. Section 8 of part A of chapter 35 of the laws of 2006 amending
the tax law relating to computing sales and compensating use tax on
motor fuel and diesel motor fuel and amending the tax law and the gener-
al business law relating to requiring retail dealers of motor fuel and
diesel motor fuel to reduce prices for such fuel, is amended to read as
follows:
S 8. This act shall take effect immediately, provided that sections
one through five of this act shall take effect June 1, 2006; PROVIDED
THAT THIS ACT SHALL EXPIRE JUNE 1, 2009, IN ACCORDANCE WITH THE APPLICA-
BLE TRANSITIONAL PROVISIONS OF ARTICLES 28 AND 29 OF THE TAX LAW, WHEN
UPON SUCH DATE THE PROVISIONS OF THIS ACT SHALL BE DEEMED REPEALED AND
ANY LOCAL LAW, ORDINANCE OR RESOLUTION ENACTED PURSUANT TO THIS ACT OR
PURSUANT TO PROVISIONS OF THE TAX LAW AS ADDED OR AMENDED BY THIS ACT
SHALL BE DEEMED TO BE REPEALED THEREWITH; PROVIDED, HOWEVER, THAT ALL
PROVISIONS OF STATE OR LOCAL LAW, ORDINANCE OR RESOLUTION AND OF REGU-
LATIONS ADOPTED THEREUNDER, IN RESPECT OF ASSESSMENT, PAYMENT, DETERMI-
NATION, COLLECTION, CREDIT AND REFUND OF TAXES IMPOSED THEREUNDER, THE
KEEPING OF RECORDS AND THE FILING OF RETURNS FOR THE PURPOSES OF SUCH
TAXES, THE SECRECY OF RETURNS, AND DISPOSITION OF REVENUES AND NET
COLLECTIONS, SHALL CONTINUE IN EFFECT WITH RESPECT TO ALL SUCH TAXES
ACCRUED THROUGH AND INCLUDING MAY 31, 2009.
S 6. Section 14 of part M-1 of chapter 109 of the laws of 2006 amend-
ing the tax law and other laws relating to the sales tax imposed on
motor fuel and diesel motor fuel, is amended to read as follows:
S 14. This act shall take effect immediately; provided that:
(a) sections one through ten of this act shall take effect on the same
date and in the same manner as part A of chapter 35 of the laws of 2006,
takes effect; PROVIDED THAT SECTIONS ONE THROUGH TWO-D, TWO-F, THREE,
THREE-B THROUGH SIX, NINE, AND TEN OF THIS ACT SHALL EXPIRE JUNE 1,
2009, IN ACCORDANCE WITH THE APPLICABLE TRANSITIONAL PROVISIONS OF ARTI-
CLES 28 AND 29 OF THE TAX LAW, WHEN UPON SUCH DATE SUCH SECTIONS OF THIS
ACT SHALL BE DEEMED REPEALED AND ANY LOCAL LAW, ORDINANCE OR RESOLUTION
ENACTED PURSUANT TO THIS ACT OR PURSUANT TO PROVISIONS OF THE TAX LAW AS
ADDED OR AMENDED BY THIS ACT SHALL BE DEEMED TO BE REPEALED THEREWITH;
PROVIDED, HOWEVER, THAT ALL PROVISIONS OF STATE OR LOCAL LAW, ORDINANCE
OR RESOLUTION AND OF REGULATIONS ADOPTED THEREUNDER, IN RESPECT OF
ASSESSMENT, PAYMENT, DETERMINATION, COLLECTION, CREDIT AND REFUND OF
TAXES IMPOSED THEREUNDER, THE KEEPING OF RECORDS AND THE FILING OF
RETURNS FOR THE PURPOSES OF SUCH TAXES, THE SECRECY OF RETURNS, AND
DISPOSITION OF REVENUES AND NET COLLECTIONS, SHALL CONTINUE IN EFFECT
WITH RESPECT TO ALL SUCH TAXES ACCRUED THROUGH AND INCLUDING MAY 31,
2009; and
(b) sections eleven, twelve and thirteen of this act shall take effect
on the same date and in the same manner as part B of chapter 35 of the
laws of 2006, takes effect.
S 7. The repeal of any provision of state or local law, ordinance or
resolution by this act shall not be construed to take away, impair or
affect any right or remedy acquired or given by the provisions hereby
repealed; and all existing suits or proceedings may be continued and
completed; and all offenses committed or penalties or forfeitures
incurred shall continue and remain in force with the same effect as
though this act had not become law.
S. 60--A 165 A. 160--A
S 8. Notwithstanding any other provision of law: (a) The commissioner
of taxation and finance may prescribe the schedules of regional average
retail sales prices pursuant to paragraph 3 of subdivision (e) of
section 1111 of the tax law, as restored by this act, any date after
this act becomes a law and that action will be timely for the period
beginning June 1, 2009, if it is taken after the date this act becomes a
law and prior to June 1, 2009, and the notice prescribed by subparagraph
(iii) of such paragraph 3 is filed after the date this act becomes a law
and prior to June 1, 2009.
(b) The commissioner of taxation and finance is authorized on any date
after this act becomes a law to adopt regulations by emergency action to
set forth the methodology to determine the regional average retail sell-
ing prices and to establish the sales tax components and the motor fuel
and diesel motor fuel composite rates for the fuel use taxes imposed by
article 21-A of the tax law for the quarter including the effective date
of this act and the next calendar quarter.
S 9. This act shall take effect immediately; provided however that
sections one, two, three, four, five, six and seven of this act shall
take effect June 1, 2009, and shall apply in accordance with applicable
transitional provisions in articles 28 and 29 of the tax law; provided
however that the amendment to subdivision (n) of section 1111 of the tax
law made by section three of this act shall not affect the repeal of
such subdivision and shall be deemed repealed therewith.
PART EE
Section 1. Section 502 of the tax law is amended by adding a new
subdivision 6 to read as follows:
6. A. THE COMMISSIONER MAY REQUIRE THE USE OF DECALS AS EVIDENCE THAT
A CARRIER HAS A VALID CERTIFICATE OF REGISTRATION FOR EACH MOTOR VEHICLE
OPERATED OR TO BE OPERATED ON THE PUBLIC HIGHWAYS OF THIS STATE AS
REQUIRED BY PARAGRAPH A OF SUBDIVISION ONE OF THIS SECTION. IF THE
COMMISSIONER REQUIRES THE USE OF DECALS, THE COMMISSIONER SHALL ISSUE
FOR EACH MOTOR VEHICLE WITH A VALID CERTIFICATE OF REGISTRATION A DECAL
THAT SHALL BE OF A SIZE AND DESIGN AND CONTAINING SUCH INFORMATION AS
THE COMMISSIONER PRESCRIBES. THE FEE FOR ANY DECAL ISSUED PURSUANT TO
THIS PARAGRAPH IS FOUR DOLLARS. IN THE CASE OF THE LOSS, MUTILATION, OR
DESTRUCTION OF A DECAL, THE COMMISSIONER SHALL ISSUE A NEW DECAL UPON
PROOF OF THE FACTS AND PAYMENT OF FOUR DOLLARS. THE DECAL SHALL BE FIRM-
LY AND CONSPICUOUSLY AFFIXED UPON THE MOTOR VEHICLE FOR WHICH IT IS
ISSUED AS CLOSELY AS PRACTICAL TO THE REGISTRATION OR LICENSE PLATES AND
AT ALL TIMES BE VISIBLE AND LEGIBLE. NO DECAL IS TRANSFERABLE. A DECAL
SHALL BE VALID UNTIL IT EXPIRES OR IS REVOKED, SUSPENDED, OR SURREN-
DERED.
B. THE COMMISSIONER MAY REQUIRE THE USE OF SPECIAL DECALS AS EVIDENCE
THAT AN AUTOMOTIVE FUEL CARRIER HAS A VALID SPECIAL CERTIFICATE OF
REGISTRATION FOR EACH MOTOR VEHICLE OPERATED OR TO BE OPERATED ON THE
PUBLIC HIGHWAYS OF THIS STATE TO TRANSPORT AUTOMOTIVE FUEL AS REQUIRED
BY PARAGRAPH B OF SUBDIVISION ONE OF THIS SECTION. IF THE COMMISSIONER
REQUIRES THE USE OF SPECIAL DECALS, THE COMMISSIONER SHALL ISSUE FOR
EACH MOTOR VEHICLE WITH A VALID SPECIAL CERTIFICATE OF REGISTRATION A
SPECIAL DECAL THAT SHALL BE DISTINCTIVELY COLORED AND OF A SIZE AND
DESIGN AND CONTAINING SUCH INFORMATION AS THE COMMISSIONER PRESCRIBES.
THE FEE FOR ANY SPECIAL DECAL ISSUED PURSUANT TO THIS PARAGRAPH IS FOUR
DOLLARS. IN THE CASE OF THE LOSS, MUTILATION, OR DESTRUCTION OF A
SPECIAL DECAL, THE COMMISSIONER SHALL ISSUE A NEW SPECIAL DECAL UPON
S. 60--A 166 A. 160--A
PROOF OF THE FACTS AND PAYMENT OF FOUR DOLLARS. THE SPECIAL DECAL SHALL
BE FIRMLY AND CONSPICUOUSLY AFFIXED UPON THE MOTOR VEHICLE FOR WHICH IT
IS ISSUED PURSUANT TO THE RULES AND REGULATIONS PRESCRIBED BY THE
COMMISSIONER TO ENABLE THE EASY IDENTIFICATION OF THE AUTOMOTIVE FUEL
CARRIER CERTIFICATE OF REGISTRATION NUMBER AND AT ALL TIMES BE VISIBLE
AND LEGIBLE. NO SPECIAL DECAL IS TRANSFERABLE AND SHALL BE VALID UNTIL
IT EXPIRES OR IS REVOKED, SUSPENDED, OR SURRENDERED.
C. THE SUSPENSION OR REVOCATION OF ANY CERTIFICATE OF REGISTRATION
ISSUED UNDER THIS ARTICLE SHALL BE DEEMED TO INCLUDE THE SUSPENSION AND
REVOCATION OF ANY DECAL ISSUED UNDER THIS SUBDIVISION.
S 2. Subdivision 5-a of section 509 of the tax law, as amended by
section 4 of part E of chapter 60 of the laws of 2007, is amended to
read as follows:
5-a. To take possession of any certificate of registration which has
been suspended or revoked under the provisions of this article AND ANY
DECAL ISSUED IN CONJUNCTION THEREWITH, and any certificate of registra-
tion which is being used for a motor vehicle other than the one for
which it was issued AND ANY DECAL THAT IS ON A MOTOR VEHICLE OTHER THAN
THE ONE FOR WHICH IT WAS ISSUED, OR TO DIRECT ANY PEACE OFFICER, ACTING
PURSUANT TO HIS OR HER SPECIAL DUTIES, OR ANY POLICE OFFICER OR ANY
EMPLOYEE OF THE DEPARTMENT TO TAKE POSSESSION THEREOF AND RETURN THE
SAME TO THE COMMISSIONER.
S 3. Subdivision 8 of section 509 of the tax law, as amended by
section 5 of part E of chapter 60 of the laws of 2007, is amended to
read as follows:
8. To issue replacement certificates of registration OR DECALS at such
times as the commissioner may deem necessary for the proper and effi-
cient enforcement of the provisions of this article, but not more often
than once every year and to require the surrender of the then outstand-
ing certificates of registration AND DECALS. All of the provisions of
this article with respect to certificates of registration AND DECALS
shall be applicable to replacement certificates of registration AND
DECALS issued hereunder, except that the replacement certificate of
registration OR DECAL shall be issued upon payment of a fee of four
dollars for each motor vehicle and two dollars for any trailer, semi-
trailer, dolly or other device drawn thereby for which a certificate of
registration OR DECAL is required to be issued under this article;
S 4. Paragraph (e) of subdivision 1 of section 512 of the tax law, as
added by section 8 of part E of chapter 60 of the laws of 2007, is
amended to read as follows:
(e) In addition to any other penalty imposed by this chapter, any
person who fails to obtain a certificate of registration OR DECAL as
required under this article shall, after due notice and an opportunity
for a hearing, for a first violation be liable for a civil fine not less
than five hundred dollars but not to exceed two thousand dollars and for
a second or subsequent violation within three years following a prior
finding of violation be liable for a civil fine not less than one thou-
sand dollars but not to exceed three thousand five hundred dollars.
S 5. Clause (i) of subparagraph (A) of paragraph 1 of subdivision (a)
of section 1815 of the tax law, as amended by section 10 of part E of
chapter 60 of the laws of 2007, is amended to read as follows:
(i) Use or cause or permit to be used, any public highway in this
state for the operation of a motor vehicle subject to the provisions of
article twenty-one of this chapter without first applying for and
obtaining the certificate of registration required under such article OR
A DECAL THAT HAS BEEN SUSPENDED OR REVOKED OR THAT WAS ISSUED FOR A
S. 60--A 167 A. 160--A
MOTOR VEHICLE OTHER THAN THE ONE ON WHICH AFFIXED. THE OPERATION OF ANY
MOTOR VEHICLE ON ANY PUBLIC HIGHWAY OF THIS STATE WITHOUT A DECAL
REQUIRED UNDER SUCH ARTICLE SHALL BE PRESUMPTIVE EVIDENCE THAT A CERTIF-
ICATE OF REGISTRATION OR DECAL HAS NOT BEEN OBTAINED FOR SUCH MOTOR
VEHICLE;
S 6. This act shall take effect immediately.
PART FF
Section 1. Clauses (G) and (H) of subparagraph (i) of paragraph 8 of
subdivision (b) of section 1101 of the tax law, as amended by chapter 61
of the laws of 1989 and as relettered by chapter 190 of the laws of
1990, are amended and a new clause (I) is added to read as follows:
(G) Any other person making sales to persons within the state of
tangible personal property or services, the use of which is taxed by
this article, who may be authorized by the commissioner of taxation and
finance to collect such tax by part IV of this article; [and]
(H) The state of New York, any of its agencies, instrumentalities,
public corporations (including a public corporation created pursuant to
agreement or compact with another state or Canada) or political subdivi-
sions when such entity sells services or property of a kind ordinarily
sold by private persons[.]; AND
(I) A SELLER OF TANGIBLE PERSONAL PROPERTY OR SERVICES, THE USE OF
WHICH IS TAXED BY THIS ARTICLE IF EITHER (I) AN AFFILIATED PERSON THAT
IS A VENDOR AS OTHERWISE DEFINED IN THIS PARAGRAPH USES IN THE STATE
TRADEMARKS, SERVICE MARKS, OR TRADE NAMES THAT ARE THE SAME AS THOSE THE
SELLER USES; OR (II) AN AFFILIATED PERSON ENGAGES IN ACTIVITIES IN THE
STATE THAT INURE TO THE BENEFIT OF THE SELLER, IN ITS DEVELOPMENT OR
MAINTENANCE OF A MARKET FOR ITS GOODS OR SERVICES IN THE STATE, TO THE
EXTENT THAT THOSE ACTIVITIES OF THE AFFILIATE ARE SUFFICIENT TO SATISFY
THE NEXUS REQUIREMENT OF THE UNITED STATES CONSTITUTION. FOR PURPOSES OF
THIS CLAUSE, "AFFILIATED PERSON" HAS THE SAME MEANING AS IN CLAUSE (B)
OF SUBPARAGRAPH (V) OF THIS PARAGRAPH. NOTHING IN THIS CLAUSE SHALL BE
CONSTRUED TO NARROW THE SCOPE OF ANY OTHER PROVISION IN THIS PARAGRAPH.
S 2. This act shall take effect June 1, 2009 and shall apply to sales
made or uses occurring on or after such date in accordance with the
applicable transitional provisions of sections 1106 and 1217 of the tax
law.
PART GG
Section 1. Subdivision 6 of section 212 of the racing, pari-mutuel
wagering and breeding law, as added by chapter 18 of the laws of 2008,
is amended and a new subdivision 7-a is added to read as follows:
6. Within thirty days following the appointment of the members of the
franchise oversight board, the members of the oversight board shall
establish a local advisory board for each racing operation comprised of
the following members to meet at least twice yearly:
a. The local advisory board for the Saratoga racetrack facility shall
be comprised of fifteen members and include five designees from each of
the following: the board of supervisors, the mayor of the city of Sara-
toga and the franchised corporation.
b. The local advisory board for the Aqueduct racetrack facility shall
be comprised of fifteen members, nine of whom shall be designees of New
York City Queens Community Board Ten, three designees of the franchised
corporation and three designees of the video lottery gaming operator.
S. 60--A 168 A. 160--A
C. THE LOCAL ADVISORY BOARD OF BELMONT PARK SHALL CONSIST OF FIFTEEN
PERSONS, TWO OF WHOM SHALL BE DESIGNEES OF THE NEW YORK CITY QUEENS
COMMUNITY BOARD THIRTEEN, FOUR OF WHOM SHALL BE DESIGNEES OF THE COUNTY
EXECUTIVE OF THE COUNTY OF NASSAU, THREE OF WHOM SHALL BE DESIGNEES OF
THE SUPERVISOR OF THE TOWN OF HEMPSTEAD, THREE DESIGNEES OF THE FRAN-
CHISED CORPORATION AND THREE DESIGNEES OF THE VIDEO LOTTERY GAMING OPER-
ATOR.
The members of the local advisory boards shall serve for a period of
two years. In the event of a vacancy occurring during a term of appoint-
ment by reason of death, resignation, disqualification or otherwise such
vacancy shall be filled for the unexpired term in the same manner as the
original appointment. The members of the local advisory board shall
serve without compensation, except that each member shall be allowed the
necessary and actual expenses incurred in the performance of his or her
duties pursuant to this section.
7-A. THE LOCAL ADVISORY BOARD OF BELMONT PARK SHALL, AFTER CONDUCTING
PUBLIC HEARINGS WITHIN THE UNINCORPORATED HAMLET OF ELMONT AND THE
AFFECTED COMMUNITIES, DEVELOP A STRATEGIC MASTER PLAN FOR THE REVITALI-
ZATION OF BELMONT PARK RACETRACK, THE DEVELOPMENT OF A VIDEO LOTTERY
TERMINAL GAMING FACILITY AND REDEVELOPMENT OF THE UNINCORPORATED HAMLET
OF ELMONT AND THE AFFECTED COMMUNITIES.
S 2. Clause (B) of subparagraph (ii) of paragraph 1 of subdivision b
of section 1612 of the tax law, as amended by chapter 140 of the laws of
2008, is amended to read as follows:
(B) having one thousand one hundred or more video gaming machines, at
a rate of thirty-two percent of the total revenue wagered at the vendor
track after payout for prizes pursuant to this chapter, except for such
facility located in the county of Westchester, in which case the rate
shall be thirty-four percent of the total revenue wagered at the vendor
track after payout for prizes pursuant to this chapter, for a period of
twenty-four months effective beginning April first, two thousand eight;
provided, however, that in the event that the vendor track located in
Westchester county completes a successful restructuring prior to March
thirty-first, two thousand ten, the vendor fee will be reduced to thir-
ty-two percent ninety days following the completion of the successful
restructuring. A successful restructuring is defined as a restructuring
of the existing debt obligations of such vendor track located in West-
chester county that meets the following two conditions:
(i) it requires no more than twenty million dollars of additional
equity invested in such track; and
(ii) results in average net interest costs of less than nine percent.
Notwithstanding the foregoing, the vendor fee at such track will
become thirty-one percent effective April first, two thousand ten and
remain at that level for a period equal to two times the period of time
(measured in days) that the vendor fee was thirty-four percent or until
March thirty-first, two thousand twelve, whichever is later. Notwith-
standing the foregoing, not later than April first, two thousand twelve,
the vendor fee shall become thirty-two percent and remain at that level
thereafter; and except for Aqueduct racetrack, in which case the vendor
fee shall be thirty-eight percent of the total revenue wagered at the
vendor track after payout for prizes pursuant to this chapter; AND
EXCEPT FOR BELMONT RACETRACK, IN WHICH CASE THE VENDOR FEE SHALL BE
THIRTY-SIX AND ONE-HALF PERCENT OF THE TOTAL REVENUE WAGERED AT THE
VENDOR TRACK AFTER PAYOUT FOR PRIZES PURSUANT TO THIS CHAPTER;
S. 60--A 169 A. 160--A
S 3. Subparagraph (iii) of paragraph 1 of subdivision b of section
1612 of the tax law, as separately amended by chapters 140 and 286 of
the laws of 2008, is amended to read as follows:
(iii) less an additional vendor's marketing allowance at a rate of ten
percent for the first one hundred million dollars annually and eight
percent thereafter of the total revenue wagered at the vendor track
after payout for prizes to be used by the vendor track for the marketing
and promotion and associated costs of its video lottery gaming oper-
ations and pari-mutuel horse racing operations, as long as any such
costs associated with pari-mutuel horse racing operations simultaneously
encourage increased attendance at such vendor's video lottery gaming
facilities, consistent with the customary manner of marketing comparable
operations in the industry and subject to the overall supervision of the
division; provided, however, that the additional vendor's marketing
allowance shall not exceed eight percent in any year for any operator of
a racetrack located in the county of Westchester [or], Queens OR NASSAU;
provided, however, a vendor track that receives a vendor fee pursuant to
clause (G) of [this] subparagraph (II) OF THIS PARAGRAPH shall not
receive the additional vendor's marketing allowance. In establishing the
vendor fee, the division shall ensure the maximum lottery support for
education while also ensuring the effective implementation of section
sixteen hundred seventeen-a of this article through the provision of
reasonable reimbursements and compensation to vendor tracks for partic-
ipation in such program. Within twenty days after any award of lottery
prizes, the division shall pay into the state treasury, to the credit of
the state lottery fund, the balance of all moneys received from the sale
of all tickets for the lottery in which such prizes were awarded remain-
ing after provision for the payment of prizes as herein provided. Any
revenues derived from the sale of advertising on lottery tickets shall
be deposited in the state lottery fund.
S 4. Clause (F) of subparagraph (ii) of paragraph 1 of subdivision b
of section 1612 of the tax law, as amended by chapter 140 of the laws of
2008, is amended to read as follows:
(F) notwithstanding clauses (A), (B), (C), (D) and (E) of this subpar-
agraph, the track operator of a vendor track shall be eligible for a
vendor's capital award of up to four percent of the total revenue
wagered at the vendor track after payout for prizes pursuant to this
chapter, which shall be used exclusively for capital project investments
to improve the facilities of the vendor track which promote or encourage
increased attendance at the video lottery gaming facility including, but
not limited to hotels, other lodging facilities, entertainment facili-
ties, retail facilities, dining facilities, events arenas, parking
garages and other improvements that enhance facility amenities; provided
that such capital investments shall be approved by the division, in
consultation with the state racing and wagering board, and that such
vendor track demonstrates that such capital expenditures will increase
patronage at such vendor track's facilities and increase the amount of
revenue generated to support state education programs. The annual amount
of such vendor's capital awards that a vendor track shall be eligible to
receive shall be limited to two million five hundred thousand dollars,
except for Aqueduct [racetrack] AND BELMONT RACETRACKS, for which there
shall be no vendor's capital awards. Except for tracks having less than
one thousand one hundred video gaming machines, each track operator
shall be required to co-invest an amount of capital expenditure equal to
its cumulative vendor's capital awards. For all tracks, except for Aque-
duct [racetrack] AND BELMONT RACETRACKS, the amount of any vendor's
S. 60--A 170 A. 160--A
capital award that is not used during any one year period may be carried
over into subsequent years ending before April first, two thousand thir-
teen. Any amount attributable to a capital expenditure approved prior to
April first, two thousand thirteen and completed before April first, two
thousand fifteen shall be eligible to receive the vendor's capital
award. In the event that a vendor track's capital expenditures, approved
by the division prior to April first, two thousand thirteen and
completed prior to April first, two thousand fifteen, exceed the vendor
track's cumulative capital award during the five year period ending
April first, two thousand thirteen, the vendor shall continue to receive
the capital award after April first, two thousand thirteen until such
approved capital expenditures are paid to the vendor track subject to
any required co-investment. In no event shall such track facility
located in Sullivan county and within sixty miles from any gaming facil-
ity in a contiguous state be eligible for a vendor's capital award under
this section, unless it shall have moved from such location or the five
year period commencing on April first, two thousand eight has expired,
whichever comes first. Any operator of a vendor track which has received
a vendor's capital award, choosing to divest the capital improvement
toward which the award was applied, prior to reaching the forty year
straightline depreciation value of the improvement, shall reimburse the
state in amounts equal to the total of any such awards. Any capital
award not approved for a capital expenditure at a video lottery gaming
facility by April first, two thousand thirteen shall be deposited in the
state lottery fund for education aid; and
S 5. Paragraph 2 of subdivision b of section 1612 of the tax law, as
separately amended by chapters 140 and 286 of the laws of 2008, is
amended to read as follows:
2. As consideration for the operation of a video lottery gaming facil-
ity, the division, shall cause the investment in the racing industry of
a portion of the vendor fee received pursuant to paragraph one of this
subdivision in the manner set forth in this subdivision. With the excep-
tion of Aqueduct [racetrack] AND BELMONT RACETRACKS, each such track
shall dedicate a portion of its vendor fees, received pursuant to clause
(A), (B), (C), (D), (E), (F), or (G) of subparagraph (ii) of paragraph
one of this subdivision, solely for the purpose of enhancing purses at
such track, in an amount equal to eight and three-quarters percent of
the total revenue wagered at the vendor track after pay out for prizes.
In addition, WITH THE EXCEPTION OF THE AQUEDUCT AND BELMONT RACETRACKS,
one and one-quarter percent of total revenue wagered at the vendor track
after pay out for prizes, received pursuant to clause (A), (B), (C),
(D), (E), (F), or (G) of subparagraph (ii) of paragraph one of this
subdivision, shall be distributed to the appropriate breeding fund for
the manner of racing conducted by such track.
Provided, further, that nothing in this paragraph shall prevent each
track from entering into an agreement, not to exceed five years, with
the organization authorized to represent its horsemen to increase or
decrease the portion of its vendor fee dedicated to enhancing purses at
such track during the years of participation by such track, or to race
fewer dates than required herein.
S 6. Section 1612 of the tax law is amended by adding three new subdi-
visions h, i and j to read as follows:
H. THE VIDEO LOTTERY GAMING OPERATOR SELECTED TO OPERATE A VIDEO
LOTTERY TERMINAL FACILITY AT BELMONT WILL BE SUBJECT TO A MEMORANDUM OF
UNDERSTANDING BETWEEN THE GOVERNOR, TEMPORARY PRESIDENT OF THE SENATE
AND THE SPEAKER OF THE ASSEMBLY. NOTWITHSTANDING SUBPARAGRAPH (I) OF
S. 60--A 171 A. 160--A
PARAGRAPH A OF SUBDIVISION EIGHT OF SECTION TWO HUNDRED TWELVE OF THE
RACING, PARI-MUTUEL WAGERING AND BREEDING LAW, THE STATE, PURSUANT TO AN
AGREEMENT WITH THE VIDEO LOTTERY GAMING OPERATOR TO OPERATE A VIDEO
LOTTERY TERMINAL FACILITY AT BELMONT, MAY AUTHORIZE, AS PART OF SUCH
AGREEMENT OR IN CONJUNCTION WITH SUCH AGREEMENT AT THE TIME IT IS
EXECUTED, ADDITIONAL DEVELOPMENT AT THE BELMONT RACING FACILITY. THE
SELECTION SHALL BE MADE IN CONSULTATION WITH THE FRANCHISED CORPORATION,
BUT IS NOT SUBJECT TO SUCH CORPORATION'S APPROVAL. THE FRANCHISED CORPO-
RATION SHALL NOT BE ELIGIBLE TO COMPETE TO OPERATE OR TO OPERATE A VIDEO
LOTTERY TERMINAL FACILITY AT BELMONT. THE STATE WILL USE ITS BEST
EFFORTS TO ENSURE THAT THE VIDEO LOTTERY TERMINAL FACILITY AT BELMONT IS
OPENED AS SOON AS IS PRACTICABLE AND WILL, IF PRACTICABLE, PURSUE THE
CONSTRUCTION OF A TEMPORARY VIDEO LOTTERY TERMINAL FACILITY AT BELMONT
SUBJECT TO STAYING WITHIN AN AGREED BUDGET FOR SUCH VIDEO LOTTERY TERMI-
NAL FACILITY AND SUBJECT TO SUCH TEMPORARY FACILITY NOT HAVING AN
ADVERSE IMPACT ON OPENING OF THE PERMANENT FACILITY AT BELMONT.
I. IN CONSIDERATION OF ITS LICENSURE AND PARTICIPATION IN THIS
PROGRAM, THE VIDEO LOTTERY GAMING OPERATOR AT BELMONT RACETRACK SHALL
REINVEST IN THE RACING INDUSTRY A PERCENTAGE OF THE VENDOR FEE RECEIVED
PURSUANT TO SUBDIVISION B OF THIS SECTION IN THE MANNER SET FORTH IN
THIS SUBDIVISION. THE VIDEO LOTTERY GAMING OPERATOR AT BELMONT RACETRACK
SHALL PROVIDE THE FOLLOWING PERCENTAGES OF ITS VENDOR FEE TO THE FRAN-
CHISED CORPORATION ESTABLISHED PURSUANT TO SECTION TWO HUNDRED SIX OF
THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW, AS FOLLOWS:
1. THREE AND THREE-QUARTERS PERCENT OF THE TOTAL WAGERED AFTER PAYOUT
OF PRIZES FOR THE PURPOSE OF ENHANCING PURSES AT AQUEDUCT RACETRACK,
BELMONT PARK RACETRACK AND SARATOGA RACE COURSE.
2. THREE-QUARTERS PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF PRIZES
FOR AN APPROPRIATE BREEDING FUND FOR THE MANNER OF RACING CONDUCTED AT
AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND SARATOGA RACE COURSE.
3. TWO PERCENT OF THE TOTAL REVENUE WAGERED AFTER PAYOUT OF PRIZES TO
BE DEPOSITED INTO AN ACCOUNT OF THE FRANCHISED CORPORATION ESTABLISHED
PURSUANT TO SECTION TWO HUNDRED SIX OF THE RACING, PARI-MUTUEL WAGERING
AND BREEDING LAW TO BE USED FOR CAPITAL EXPENDITURES IN MAINTAINING AND
UPGRADING AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND SARATOGA RACE
COURSE.
4. ONE AND ONE-HALF PERCENT OF THE TOTAL REVENUE WAGERED AFTER PAYOUT
FOR PRIZES TO BE DEPOSITED INTO AN ACCOUNT OF THE FRANCHISED CORPORATION
ESTABLISHED PURSUANT TO SECTION TWO HUNDRED SIX OF THE RACING, PARI-MU-
TUEL WAGERING AND BREEDING LAW TO BE USED FOR GENERAL THOROUGHBRED
RACING OPERATIONS AT AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND
SARATOGA RACE COURSE.
5. PARAGRAPHS ONE, TWO, THREE AND FOUR OF THIS SUBDIVISION SHALL BE
KNOWN COLLECTIVELY AS THE "BELMONT RACING SUPPORT PAYMENTS".
J. NOTWITHSTANDING ANY PROVISION OF SUBDIVISION B OR F OF THIS SECTION
TO THE CONTRARY, UPON COMMENCEMENT OF THE OPERATION OF VIDEO LOTTERY
GAMING AT BELMONT RACETRACK, THE VENDOR FEE TO BE PAID FOR SERVING AS A
LOTTERY AGENT TO THE TRACK OPERATOR OF AQUEDUCT RACETRACK, SHALL BE
THIRTY-SEVEN AND ONE-QUARTER PERCENT OF THE TOTAL REVENUE WAGERED AT THE
VENDOR TRACK AFTER PAYOUT FOR PRIZES PURSUANT TO THIS ARTICLE FOR THE
FIRST YEAR OF OPERATION OF VIDEO LOTTERY GAMING AT AQUEDUCT RACETRACK,
THIRTY-SIX AND EIGHT HUNDRED SEVENTY-FIVE-THOUSANDTHS PERCENT OF THE
TOTAL REVENUE WAGERED AT THE VENDOR TRACK AFTER PAYOUT FOR PRIZES PURSU-
ANT TO THIS ARTICLE FOR THE SECOND YEAR OF OPERATION OF VIDEO LOTTERY
GAMING AT AQUEDUCT RACETRACK, AND THIRTY-SIX AND ONE-HALF PERCENT OF THE
TOTAL REVENUE WAGERED AT THE VENDOR TRACK AFTER PAYOUT FOR PRIZES PURSU-
S. 60--A 172 A. 160--A
ANT TO THIS ARTICLE FOR THE THIRD YEAR OF OPERATION OF VIDEO LOTTERY
GAMING AT AQUEDUCT RACETRACK AND THEREAFTER. AS CONSIDERATION FOR THE
OPERATION OF THE VIDEO LOTTERY GAMING FACILITY AT AQUEDUCT RACETRACK,
THE DIVISION SHALL CAUSE THE INVESTMENT IN THE RACING INDUSTRY OF THE
FOLLOWING PERCENTAGES OF THE VENDOR FEE DESCRIBED IN THIS SUBDIVISION TO
BE DEPOSITED OR PAID, AS FOLLOWS:
1. THREE AND ONE-QUARTER PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF
PRIZES FOR THE FIRST YEAR OF OPERATION OF VIDEO LOTTERY GAMING AT AQUE-
DUCT RACETRACK, THREE AND ONE-HALF PERCENT OF THE TOTAL WAGERED AFTER
PAYOUT OF PRIZES FOR THE SECOND YEAR OF OPERATION, AND THREE AND THREE-
QUARTERS PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF PRIZES FOR THE
THIRD YEAR OF OPERATION AND THEREAFTER, FOR THE PURPOSE OF ENHANCING
PURSES AT AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND SARATOGA RACE
COURSE.
2. ONE-HALF PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF PRIZES FOR
THE FIRST YEAR OF OPERATION OF VIDEO LOTTERY GAMING AT AQUEDUCT RACE-
TRACK, SIX HUNDRED TWENTY-FIVE THOUSANDTHS PERCENT OF THE TOTAL WAGERED
AFTER PAYOUT OF PRIZES FOR THE SECOND YEAR OF OPERATION, AND THREE-QUAR-
TERS PERCENT OF THE TOTAL WAGERED AFTER PAYOUT OF PRIZES FOR THE THIRD
YEAR OF OPERATION AND THEREAFTER, FOR AN APPROPRIATE BREEDING FUND FOR
THE MANNER OF RACING CONDUCTED AT AQUEDUCT RACETRACK, BELMONT PARK RACE-
TRACK AND SARATOGA RACE COURSE.
3. TWO PERCENT OF THE TOTAL REVENUE WAGERED AFTER PAYOUT OF PRIZES TO
BE DEPOSITED INTO AN ACCOUNT OF THE FRANCHISED CORPORATION ESTABLISHED
PURSUANT TO SECTION TWO HUNDRED SIX OF THE RACING, PARI-MUTUEL WAGERING
AND BREEDING LAW TO BE USED FOR CAPITAL EXPENDITURES IN MAINTAINING AND
UPGRADING AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND SARATOGA RACE
COURSE.
4. ONE AND ONE-HALF PERCENT OF THE TOTAL REVENUE WAGERED AFTER PAYOUT
FOR PRIZES TO BE DEPOSITED INTO AN ACCOUNT OF THE FRANCHISED CORPORATION
ESTABLISHED PURSUANT TO SECTION TWO HUNDRED SIX OF THE RACING, PARI-MU-
TUEL WAGERING AND BREEDING LAW TO BE USED FOR GENERAL THOROUGHBRED
RACING OPERATIONS AT AQUEDUCT RACETRACK, BELMONT PARK RACETRACK AND
SARATOGA RACE COURSE.
5. PARAGRAPHS ONE, TWO, THREE AND FOUR OF THIS SUBDIVISION SHALL BE
KNOWN COLLECTIVELY AS THE "AQUEDUCT RACING SUPPORT PAYMENTS".
S 7. The opening paragraph of subdivision a of section 1617-a of the
tax law, as amended by section 2 of part Z3 of chapter 62 of the laws of
2003, is amended to read as follows:
The division of the lottery is hereby authorized to license, pursuant
to rules and regulations to be promulgated by the division of the
lottery, the operation of video lottery gaming at Aqueduct AND BELMONT,
Monticello, Yonkers, Finger Lakes, and Vernon Downs racetracks, or at
any other racetrack licensed pursuant to article three of the racing,
pari-mutuel wagering and breeding law that are located in a county or
counties in which video lottery gaming has been authorized pursuant to
local law, excluding the licensed racetrack commonly referred to in
article three of the racing, pari-mutuel wagering and breeding law as
the "New York state exposition" held in Onondaga county and the [race-
tracks] RACETRACK of the [non-profit racing association] FRANCHISED
CORPORATION known as [Belmont Park racetrack and] the Saratoga thorough-
bred racetrack. Such rules and regulations shall provide, as a condi-
tion of licensure, that racetracks to be licensed are certified to be in
compliance with all state and local fire and safety codes, that the
division is afforded adequate space, infrastructure, and amenities
consistent with industry standards for such video gaming operations as
S. 60--A 173 A. 160--A
found at racetracks in other states, that racetrack employees involved
in the operation of video lottery gaming pursuant to this section are
licensed by the racing and wagering board, and such other terms and
conditions of licensure as the division may establish. Notwithstanding
any inconsistent provision of law, video lottery gaming at a racetrack
pursuant to this section shall be deemed an approved activity for such
racetrack under the relevant city, county, town, or village land use or
zoning ordinances, rules, or regulations. No racetrack operating video
lottery gaming pursuant to this section may house such gaming activity
in a structure deemed or approved by the division as "temporary" for a
duration of longer than eighteen-months.
S 8. The opening paragraph of subdivision a of section 1617-a of the
tax law, as amended by chapter 140 of the laws of 2008, is amended to
read as follows:
The division of the lottery is hereby authorized to license, pursuant
to rules and regulations to be promulgated by the division of the
lottery, the operation of video lottery gaming at Aqueduct [racetrack]
AND BELMONT RACETRACKS. Such rules and regulations shall provide, as a
condition of licensure, that [such racetrack is] RACETRACKS TO BE
LICENSED ARE certified to be in compliance with all state and local fire
and safety codes, that the division is afforded adequate space, infras-
tructure, and amenities consistent with industry standards for such
video gaming operations as found at racetracks in other states, that
racetrack employees involved in the operation of video lottery gaming
pursuant to this section are licensed by the racing and wagering board,
and such other terms and conditions of licensure as the division may
establish. Notwithstanding any inconsistent provision of law, video
lottery gaming at a racetrack pursuant to this section shall be deemed
an approved activity for such racetrack under the relevant city, county,
town, or village land use or zoning ordinances, rules, or regulations.
No racetrack operating video lottery gaming pursuant to this section may
house such gaming activity in a structure deemed or approved by the
division as "temporary" for a duration of longer than eighteen-months.
S 9. This act shall take effect immediately; provided, that section
eight of this act shall take effect on the same date and in the same
manner as section 13 of chapter 140 of the laws of 2008 when upon such
date the provisions of section seven of this act, shall expire and be
deemed repealed; provided, further, that the amendments to section
1617-a of the tax law, made by sections seven and eight of this act,
shall not affect the expiration and repeal of such section, and shall
expire and be deemed repealed therewith; and provided further that the
amendments to section 212 of the racing, pari-mutuel wagering and breed-
ing law, made by section one of this act shall take effect on the same
date and in the same manner as such section takes effect pursuant to
chapter 18 of the laws of 2008.
PART HH
Section 1. Subdivision 1 of section 171-a of the tax law, as amended
by section 1 of part R of chapter 60 of the laws of 2004, is amended to
read as follows:
1. All taxes, interest, penalties and fees collected or received by
the commissioner or the commissioner's duly authorized agent under arti-
cles nine (except section one hundred eighty-two-a thereof and except as
otherwise provided in section two hundred five thereof), nine-A,
twelve-A (except as otherwise provided in section two hundred eighty-
S. 60--A 174 A. 160--A
four-d thereof), thirteen, thirteen-A (except as otherwise provided in
section three hundred twelve thereof), eighteen, nineteen, twenty
(except as otherwise provided in section four hundred eighty-two there-
of), twenty-one, twenty-two, twenty-six, twenty-six-B, twenty-eight
(except as otherwise provided in section eleven hundred two [or], eleven
hundred three OR ELEVEN HUNDRED FIVE-D thereof), twenty-eight-A, thir-
ty-one (except as otherwise provided in section fourteen hundred twen-
ty-one thereof), thirty-two, thirty-three and thirty-three-A of this
chapter shall be deposited daily in one account with such responsible
banks, banking houses or trust companies as may be designated by the
comptroller, to the credit of the comptroller. Such an account may be
established in one or more of such depositories. Such deposits shall be
kept separate and apart from all other money in the possession of the
comptroller. The comptroller shall require adequate security from all
such depositories. Of the total revenue collected or received under such
articles of this chapter, the comptroller shall retain in the comp-
troller's hands such amount as the commissioner may determine to be
necessary for refunds or reimbursements under such articles of this
chapter [and article ten thereof] out of which amount the comptroller
shall pay any refunds or reimbursements to which taxpayers shall be
entitled under the provisions of such articles of this chapter [and
article ten thereof]. The commissioner and the comptroller shall main-
tain a system of accounts showing the amount of revenue collected or
received from each of the taxes imposed by such articles. The comp-
troller, after reserving the amount to pay such refunds or reimburse-
ments, shall, on or before the tenth day of each month, pay into the
state treasury to the credit of the general fund all revenue deposited
under this section during the preceding calendar month and remaining to
the comptroller's credit on the last day of such preceding month, (i)
except that the comptroller shall pay to the state department of social
services that amount of overpayments of tax imposed by article twenty-
two of this chapter and the interest on such amount which is certified
to the comptroller by the commissioner as the amount to be credited
against past-due support pursuant to subdivision six of section one
hundred seventy-one-c of this [chapter] ARTICLE, (ii) and except that
the comptroller shall pay to the New York state higher education
services corporation and the state university of New York or the city
university of New York respectively that amount of overpayments of tax
imposed by article twenty-two of this chapter and the interest on such
amount which is certified to the comptroller by the commissioner as the
amount to be credited against the amount of defaults in repayment of
guaranteed student loans and state university loans or city university
loans pursuant to subdivision five of section one hundred seventy-one-d
and subdivision six of section one hundred seventy-one-e of this [chap-
ter] ARTICLE, (iii) and except further that, notwithstanding any law,
the comptroller shall credit to the revenue arrearage account, pursuant
to section ninety-one-a of the state finance law, that amount of over-
payment of tax imposed by article nine, nine-A, twenty-two, thirty,
thirty-A, thirty-B, thirty-two or thirty-three of this chapter, and any
interest thereon, which is certified to the comptroller by the commis-
sioner as the amount to be credited against a past-due legally enforcea-
ble debt owed to a state agency pursuant to paragraph (a) of subdivision
six of section one hundred seventy-one-f of this article, provided,
however, [he] THE COMPTROLLER shall credit to the special offset fiduci-
ary account, pursuant to section ninety-one-c of the state finance law,
any such amount creditable as a liability as set forth in paragraph (b)
S. 60--A 175 A. 160--A
of subdivision six of section one hundred seventy-one-f of this article,
(iv) and except further that the comptroller shall pay to the city of
New York that amount of overpayment of tax imposed by article nine,
nine-A, twenty-two, thirty, thirty-A, thirty-B, thirty-two, or thirty-
three of this chapter and any interest thereon that is certified to the
comptroller by the commissioner as the amount to be credited against
city of New York tax warrant judgment debt pursuant to section one
hundred seventy-one-l of this article, (v) and except further that the
comptroller shall pay to a non-obligated spouse that amount of overpay-
ment of tax imposed by article twenty-two of this chapter and the inter-
est on such amount which has been credited pursuant to section one
hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy-
one-e, one hundred seventy-one-f or one hundred seventy-one-l of this
article and which is certified to the comptroller by the commissioner as
the amount due such non-obligated spouse pursuant to paragraph six of
subsection (b) of section six hundred fifty-one of this chapter; and
(vi) the comptroller shall deduct a like amount which the comptroller
shall pay into the treasury to the credit of the general fund from
amounts subsequently payable to the department of social services, the
state university of New York, the city university of New York, or the
higher education services corporation, or the revenue arrearage account
or special offset fiduciary account pursuant to section ninety-one-a or
ninety-one-c of the state finance law, as the case may be, whichever had
been credited the amount originally withheld from such overpayment, and
(vii) with respect to amounts originally withheld from such overpayment
pursuant to section one hundred seventy-one-l of this article and paid
to the city of New York, the comptroller shall collect a like amount
from the city of New York.
S 2. The tax law is amended by adding a new section 1105-D to read as
follows:
S 1105-D. ADDITIONAL STATE SALES AND COMPENSATING USE TAXES ON CERTAIN
BEVERAGE PRODUCTS. NOTWITHSTANDING ANY LAW TO THE CONTRARY:
(A) IMPOSITION OF ADDITIONAL TAXES. (1) IN ADDITION TO THE SALES AND
COMPENSATING USE TAXES IMPOSED BY SUBDIVISION (A) OF SECTION ELEVEN
HUNDRED FIVE AND CLAUSES (A) AND (B) OF SUBDIVISION (A) OF SECTION ELEV-
EN HUNDRED TEN OF THIS PART, THERE ARE HEREBY IMPOSED AND THERE SHALL BE
PAID ADDITIONAL SALES AND COMPENSATING USE TAXES, AT THE RATE OF EIGH-
TEEN PERCENT, ON (I) FRUIT DRINKS THAT CONTAIN LESS THAN SEVENTY PERCENT
OF NATURAL FRUIT JUICE AND (II) SOFT DRINKS, SODAS, AND BEVERAGES SUCH
AS ARE ORDINARILY DISPENSED AT SODA FOUNTAINS OR IN CONNECTION THEREWITH
(OTHER THAN COFFEE, TEA AND COCOA), WHETHER OR NOT THE ITEM IS SOLD IN
LIQUID FORM, WHICH EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION SHALL BE
IDENTICAL TO THE TAXES IMPOSED BY SUCH SUBDIVISION (A) OF SECTION ELEVEN
HUNDRED FIVE AND CLAUSES (A) AND (B) OF SUBDIVISION (A) OF SECTION ELEV-
EN HUNDRED TEN OF THIS PART.
(2) IN ADDITION TO THE SALES TAXES IMPOSED BY SUBDIVISION (D) AND
PARAGRAPH THREE OF SUBDIVISION (F) OF SECTION ELEVEN HUNDRED FIVE OF
THIS PART, THERE ARE HEREBY IMPOSED AND THERE SHALL BE PAID ADDITIONAL
SALES TAXES, AT THE RATE OF EIGHTEEN PERCENT, ON (I) FRUIT DRINKS WHICH
CONTAIN LESS THAN SEVENTY PERCENT OF NATURAL FRUIT JUICE AND (II) SOFT
DRINKS, SODAS AND BEVERAGES SUCH AS ARE ORDINARILY DISPENSED AT SODA
FOUNTAINS OR IN CONNECTION THEREWITH (OTHER THAN COFFEE, TEA AND COCOA),
WHETHER OR NOT THE ITEM IS SOLD IN LIQUID FORM, WHICH EXCEPT AS OTHER-
WISE PROVIDED IN THIS SECTION SHALL BE IDENTICAL TO THE TAXES IMPOSED BY
SUCH SUBDIVISION (D) AND PARAGRAPH THREE OF SUBDIVISION (F) OF SECTION
ELEVEN HUNDRED FIVE OF THIS PART.
S. 60--A 176 A. 160--A
(B) SPECIAL RULES FOR COMPUTING RECEIPTS AND CONSIDERATION. (1) IF A
VENDOR SELLS, OR A RECIPIENT CHARGES FOR, A DRINK, SODA OR BEVERAGE
SUBJECT TO THE ADDITIONAL TAXES IMPOSED BY THIS SECTION TOGETHER WITH
OTHER PROPERTY OR WITH SERVICES (FOR EXAMPLE, AS PART OF A MEAL OR A
SPECIAL PROMOTION, OR MIXED WITH AN ALCOHOLIC OR OTHER BEVERAGE) OR
TOGETHER WITH A COVER, MINIMUM, ENTERTAINMENT OR OTHER CHARGE OR TOGETH-
ER WITH OTHER CHARGES OF A ROOF GARDEN, CABARET OR OTHER SIMILAR PLACE,
FOR A SINGLE PRICE OR CHARGE, AND THE VENDOR ALSO SEPARATELY SELLS, OR
THE RECIPIENT ALSO SEPARATELY CHARGES FOR, SUCH A DRINK, SODA OR BEVER-
AGE IN THE SAME FORM AND CONDITION, QUANTITIES, AND PACKAGING, THEN THE
TAX IMPOSED BY THIS SECTION SHALL APPLY TO THE AMOUNT AT WHICH THAT
VENDOR OR RECIPIENT SEPARATELY SELLS OR CHARGES FOR SUCH DRINK, SODA OR
BEVERAGE IN THE SAME FORM AND CONDITION, QUANTITY, AND PACKAGING.
(2) IF A VENDOR SELLS, OR A RECIPIENT CHARGES FOR, A DRINK, SODA, OR
BEVERAGE SUBJECT TO THE ADDITIONAL TAXES IMPOSED BY THIS SECTION TOGETH-
ER WITH OTHER PROPERTY OR WITH SERVICES (FOR EXAMPLE, AS PART OF A MEAL
OR A SPECIAL PROMOTION, OR MIXED WITH AN ALCOHOLIC OR OTHER BEVERAGE) OR
TOGETHER WITH A COVER, MINIMUM, ENTERTAINMENT OR OTHER CHARGE OR TOGETH-
ER WITH OTHER CHARGES OF A ROOF GARDEN, CABARET OR OTHER SIMILAR PLACE,
FOR A SINGLE PRICE OR CHARGE, BUT THE VENDOR DOES NOT SEPARATELY SELL,
OR THE RECIPIENT DOES NOT SEPARATELY CHARGE FOR, SUCH A DRINK, SODA OR
BEVERAGE IN THE SAME FORM AND CONDITION, QUANTITIES, AND PACKAGING, THEN
THE TAX IMPOSED BY THIS SECTION SHALL BE COMPUTED ON FIVE HUNDRED
PERCENT OF THE VENDOR'S OR RECIPIENT'S COST FOR SUCH DRINK, SODA OR
BEVERAGE. FOR PURPOSES OF THIS PARAGRAPH, "COST" MEANS THE CONSIDERATION
GIVEN OR CONTRACTED TO BE GIVEN FOR SUCH PROPERTY, OR FOR THE USE OF
SUCH PROPERTY, INCLUDING ANY CHARGES FOR SHIPPING OR DELIVERY AS
DESCRIBED IN PARAGRAPH THREE OF SUBDIVISION (B) OF SECTION ELEVEN
HUNDRED ONE OF THIS ARTICLE, BUT EXCLUDING ANY CREDIT FOR TANGIBLE
PERSONAL PROPERTY ACCEPTED IN PART PAYMENT AND INTENDED FOR RESALE.
(3) THE ADDITIONAL COMPENSATING USE TAX IMPOSED BY PARAGRAPH ONE OF
SUBDIVISION (A) OF THIS SECTION SHALL BE COMPUTED IN THE SAME MANNER AS
THE ADDITIONAL SALES TAX IS COMPUTED UNDER PARAGRAPH ONE OR TWO OF THIS
SUBDIVISION IN LIKE CIRCUMSTANCES.
(C) APPLICABILITY OF CERTAIN EXEMPTIONS AND EXCLUSIONS FROM TAX. (1)
THE EXEMPTIONS FOR PROVISIONS AND OTHER PROPERTY IN PARAGRAPHS EIGHT,
TWENTY-FOUR AND FORTY-THREE OF SUBDIVISION (A) AND IN SUBDIVISION (Z) OF
SECTION ELEVEN HUNDRED FIFTEEN OF THIS ARTICLE SHALL NOT APPLY TO THE
TAXES IMPOSED BY PARAGRAPH ONE OF SUBDIVISION (A) OF THIS SECTION.
(2) THE EXCLUSION FROM TAX IN SUBPARAGRAPH (B) OF PARAGRAPH (II) OF
SUBDIVISION (D) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART SHALL NOT
APPLY TO THE TAX IMPOSED BY PARAGRAPH TWO OF SUBDIVISION (A) OF THIS
SECTION.
(3) SALES OF DRINK IN OR BY A RESTAURANT, TAVERN, OR OTHER ESTABLISH-
MENT OPERATED BY AN ORGANIZATION DESCRIBED IN PARAGRAPH ONE, FOUR, FIVE
OR SIX OF SUBDIVISION (A) OF SECTION ELEVEN HUNDRED SIXTEEN OF THIS
ARTICLE, INCLUDING SALES OTHERWISE EXEMPT UNDER PARAGRAPH (II) OF SUBDI-
VISION (D) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART, SHALL BE SUBJECT
TO THE TAXES IMPOSED BY PARAGRAPH TWO OF SUBDIVISION (A) OF THIS
SECTION, UNLESS THE PURCHASER IS AN ORGANIZATION DESCRIBED IN SUBDIVI-
SION (A) OF SECTION ELEVEN HUNDRED SIXTEEN OF THIS ARTICLE.
(4) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO IMPOSE ANY TAX ON
FOOD EXEMPT FROM TAX PURSUANT TO SUBDIVISION (K) OF SECTION ELEVEN
HUNDRED FIFTEEN OF THIS ARTICLE.
(D) TAX FILERS UNDER SECTION TEN OF THIS CHAPTER FOR THE MONTHS OF
FEBRUARY AND MARCH, TWO THOUSAND NINE. IF A PERSON IS REQUIRED TO
S. 60--A 177 A. 160--A
COLLECT OR PAY OR PAY OVER ANY TAX IMPOSED BY THIS SECTION AND THAT
PERSON IS REQUIRED TO MAKE PAYMENTS OF TAX IN ACCORD WITH SECTION TEN OF
THIS CHAPTER, THAT PERSON SHALL, FOR PURPOSES OF PAYMENTS REQUIRED TO BE
MADE UNDER SECTION TEN OF THIS CHAPTER DURING THE MONTHS OF FEBRUARY AND
MARCH, TWO THOUSAND NINE, INCLUDE IN THE PAYMENTS FOR EACH OF THOSE
MONTHS THE AMOUNT DESCRIBED IN SUBCLAUSE (II) OF CLAUSE (I) OF SUBPARA-
GRAPH (A) OF PARAGRAPH ONE OF SUBDIVISION (C) OF SECTION TEN OF THIS
CHAPTER WITH RESPECT TO THE LIABILITY FOR THE TAXES IMPOSED BY THIS
SECTION FOR SUCH MONTHS, TOGETHER WITH ANY OTHER AMOUNTS REQUIRED BY
SECTION TEN OF THIS CHAPTER FOR THOSE MONTHS.
(E) SEPARATE STATEMENT OF TAX. EVERY PERSON REQUIRED TO COLLECT THE
TAX IMPOSED BY THIS SECTION SHALL STATE, CHARGE, AND SHOW THAT TAX SEPA-
RATELY FROM THE PRICE OR CHARGE, AND ALSO SEPARATELY FROM ANY OTHER TAX
IMPOSED BY THIS ARTICLE OR OTHER LAW ON ANY SALES SLIP, INVOICE, RECEIPT
OR OTHER STATEMENT OR MEMORANDUM OF THE PRICE OR CHARGE, PAID OR PAYA-
BLE, GIVEN TO THE CUSTOMER.
(F) VENDOR COLLECTION CREDIT NOT TO INCLUDE TAX IMPOSED BY THIS
SECTION. THE TAXES IMPOSED BY, AND COLLECTED OR PAID OR PAID OVER UNDER,
THIS SECTION SHALL NOT BE INCLUDED OR CONSIDERED IN COMPUTING THE CREDIT
ALLOWED BY SUBDIVISION (F) OF SECTION ELEVEN HUNDRED THIRTY-SEVEN OF
THIS ARTICLE.
(G) INCORPORATION OF OTHER PROVISIONS OF THIS ARTICLE. EXCEPT AS
OTHERWISE PROVIDED IN THIS SECTION, SECTIONS ELEVEN HUNDRED FIVE AND
ELEVEN HUNDRED TEN AND THE OTHER SECTIONS OF THIS ARTICLE, INCLUDING THE
DEFINITION AND EXEMPTION PROVISIONS, SHALL APPLY FOR PURPOSES OF THE
TAXES IMPOSED BY THIS SECTION IN THE SAME MANNER AND WITH THE SAME FORCE
AND EFFECT AS IF THE LANGUAGE OF THOSE SECTIONS HAD BEEN INCORPORATED IN
FULL INTO THIS SECTION AND HAD EXPRESSLY REFERRED TO THE TAXES IMPOSED
BY THIS SECTION.
(H) TAXES TO BE IN ADDITION TO ANY OTHER. THE TAXES IMPOSED BY THIS
SECTION SHALL BE IN ADDITION TO ANY OTHER TAX IMPOSED OR AUTHORIZED TO
BE IMPOSED BY THIS CHAPTER OR OTHER LAW.
(I) TAXES NOT TO APPLY TO OTHER IMPOSITIONS. THE TAXES IMPOSED BY THIS
SECTION SHALL NOT APPLY TO THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED
SEVEN, ELEVEN HUNDRED EIGHT, OR ELEVEN HUNDRED NINE OF THIS PART OR TO
TAXES AUTHORIZED TO BE IMPOSED BY ARTICLE TWENTY-NINE OF THIS CHAPTER.
(J) DEPOSIT AND DISPOSITION OF REVENUE. ALL TAXES, FEES, INTEREST, AND
PENALTIES COLLECTED OR RECEIVED BY THE COMMISSIONER UNDER THIS SECTION
SHALL BE DEPOSITED AND DISPOSED OF PURSUANT TO THE PROVISIONS OF SECTION
ONE HUNDRED SEVENTY-ONE-A OF THIS CHAPTER. HOWEVER, ALL OF THOSE TAXES,
INTEREST AND PENALTIES SHALL BE DEPOSITED TO THE CREDIT OF THE TOBACCO
CONTROL AND INSURANCE INITIATIVES POOL TO BE ESTABLISHED AND DISTRIBUTED
BY THE COMMISSIONER OF HEALTH IN ACCORDANCE WITH SECTION TWENTY-EIGHT
HUNDRED SEVEN-V OF THE PUBLIC HEALTH LAW. TO EFFECT THE DEPOSIT AND
DISPOSITION OF REVENUES ARISING FROM THE TAXES IMPOSED BY THIS SECTION
DURING PERIODS FOR WHICH THE COMMISSIONER DOES NOT HAVE ADEQUATE DATA,
THE COMMISSIONER IS AUTHORIZED TO ESTIMATE THE AMOUNT OF THOSE TAXES FOR
ANY PERIOD AND TO CERTIFY SUCH AMOUNTS AS REQUIRED BASED ON SUCH ESTI-
MATES. THESE ESTIMATES MAY BE BASED ON INFORMATION AVAILABLE TO THE
COMMISSIONER AT THE TIME DISTRIBUTIONS SHALL BE MADE UNDER THIS SUBDIVI-
SION AND MAY BE ESTIMATED ON THE BASIS OF RESPECTIVE STATE AND LOCAL
SALES AND COMPENSATING USE TAX RATES, PERCENTAGES, OR OTHER INDICES
CALCULATED FROM RETURNS, REPORTS, OR DISTRIBUTIONS FROM PRIOR PERIODS
FOR THESE OR OTHER PERIODS OR WITH RESPECT TO SALES AND COMPENSATING USE
TAXES IMPOSED BY COUNTIES AND CITIES THAT IMPOSE TAXES PURSUANT TO
SUBDIVISION (A) OF SECTION TWELVE HUNDRED TEN OF THIS CHAPTER. THE
S. 60--A 178 A. 160--A
COMMISSIONER IS AUTHORIZED TO REQUIRE WHATEVER INFORMATION THE COMMIS-
SIONER DEEMS NECESSARY TO COMPLY WITH THE REQUIREMENTS OF THIS SUBDIVI-
SION FROM PERSONS REQUIRED TO FILE RETURNS, REPORTS, OR SCHEDULES UNDER
THIS SECTION. IF ESTIMATED DISTRIBUTIONS ARE MADE UNDER THIS SECTION,
THEY MUST BE RECONCILED BASED ON TAX RETURNS AS SOON AS IS PRACTICABLE.
NEITHER THE COMMISSIONER NOR THE COMPTROLLER SHALL BE HELD LIABLE FOR
ANY INACCURACY IN THE DETERMINATIONS AND CERTIFICATIONS MADE PURSUANT TO
THIS SUBDIVISION. ANY OVERPAYMENT OR UNDERPAYMENT SHALL BE ADJUSTED IN
THE MANNER DESCRIBED IN SUBDIVISION (C) OF SECTION TWELVE HUNDRED
SIXTY-ONE OF THIS CHAPTER, PROVIDED THAT NO INTEREST IS TO BE PAID ON
ANY OVERPAYMENT OR UNDERPAYMENT.
(K) THIS SECTION SHALL NOT APPLY TO DIET SODA OR TO WATER PRODUCTS.
"DIET SODA" MEANS NON-ALCOHOLIC CARBONATED BEVERAGE THAT DOES NOT
CONTAIN SUGAR AND IS SWEETENED WITH ARTIFICIAL SWEETENER. "WATER
PRODUCTS" MEANS PLAIN WATER, PLAIN WATER TO WHICH ONLY CARBONATION HAS
BEEN ADDED, AND PLAIN WATER, CARBONATED OR NOT, WITH MERE NATURAL
FLAVORINGS ADDED, BUT NOT INCLUDING ANY CARBONATED WATER THAT CONTAINS
SUGAR, FRUIT JUICE, OR OTHER ADDITIVES OR FLAVORINGS.
S 3. Paragraph 1 of subdivision (a) of section 1115 of the tax law, as
amended by section 1 of part O of chapter 63 of the laws of 2000, is
amended to read as follows:
(1) Food, food products, beverages, dietary foods and health supple-
ments, sold for human consumption but not including (i) candy and
confectionery, (ii) fruit drinks which contain less than seventy percent
of natural fruit juice, (iii) soft drinks, sodas and beverages such as
are ordinarily dispensed at soda fountains or in connection therewith
(other than coffee, tea and cocoa) and (iv) beer, wine or other alcohol-
ic beverages, all of which shall be subject to the retail sales and
compensating use taxes, whether or not the item is sold in liquid form.
The food [and drink] excluded from the exemption provided by this para-
graph under [subparagraphs] SUBPARAGRAPH (i)[, (ii) and (iii)] of this
paragraph shall be exempt under this paragraph when sold for seventy-
five cents or less through any vending machine activated by the use of
coin, currency, credit card or debit card. With the exception of the
provision in this paragraph providing for an exemption for certain food
[or drink] sold for seventy-five cents or less through vending machines,
nothing herein shall be construed as exempting food or drink from the
tax imposed under subdivision (d) of section eleven hundred five OF THIS
ARTICLE.
S 4. Subparagraph 15 of paragraph j of subdivision 1 of section 54 of
the state finance law, as added by chapter 430 of the laws of 1997, is
amended to read as follows:
(15) article twenty-eight of the tax law, EXCEPT TAXES, PENALTIES AND
INTEREST IMPOSED BY SECTION ELEVEN HUNDRED FIVE-D OF THE TAX LAW;
S 5. Subdivisions (g) and (k) of section 1817 of the tax law, subdivi-
sion (g) as amended by chapter 412 of the laws of 1986 and subdivision
(k) as amended by chapter 3 of the laws of 2004, are amended to read as
follows:
(g) Any person (1) who willfully fails to charge separately [the] ANY
tax OR TAXES imposed under article twenty-eight of this chapter or to
state [such] ANY SUCH tax OR TAXES separately on any bill, statement,
memorandum or receipt issued or employed by [him] SUCH PERSON upon which
the tax is required to be stated separately as provided in subdivision
(a) of section eleven hundred thirty-two OR SECTION ELEVEN HUNDRED
FIVE-D of this chapter; or (2) who shall refer or cause reference to be
S. 60--A 179 A. 160--A
made to ANY such tax OR TAXES in a form or manner other than that
required by such article twenty-eight, shall be guilty of a misdemeanor.
(k) The penalties provided for in this section shall not preclude
prosecution pursuant to the penal law with respect to the willful fail-
ure of any person to pay over to the state any sales tax imposed by
section eleven hundred four, eleven hundred five, ELEVEN HUNDRED FIVE-D,
eleven hundred seven, eleven hundred eight or eleven hundred nine of
this chapter or by any local law adopted by any city or county pursuant
to article twenty-nine of this chapter, whenever such person has been
required to collect and has collected any such sales tax. In any such
prosecution under the penal law, a person who has been required to
collect and has collected any such tax shall be deemed to have acted in
a fiduciary character with respect to the state or a political subdivi-
sion thereof, and the tax OR TAXES collected shall be deemed to have
been entrusted to such person by the state or a political subdivision
thereof.
S 6. Subdivisions (a) and (b) of section 92-dd of the state finance
law, as added by section 89 of part B of chapter 58 of the laws of 2005,
are amended to read as follows:
(a) On and after April first, two thousand five, such fund shall
consist of the revenues heretofore and hereafter collected or required
to be deposited pursuant to paragraph (a) of subdivision eighteen of
section twenty-eight hundred seven-c, and sections twenty-eight hundred
seven-j, twenty-eight hundred seven-s and twenty-eight hundred seven-t
of the public health law, [section] SECTIONS four hundred eighty-two AND
ELEVEN HUNDRED FIVE-D of the tax law and required to be credited to the
tobacco control and insurance initiatives pool, subparagraph (O) of
paragraph four of subsection (j) of section four thousand three hundred
one of the insurance law, section twenty-seven of part A of chapter one
of the laws of two thousand two and all other moneys credited or trans-
ferred thereto from any other fund or source pursuant to law.
(b) The pool administrator under contract with the commissioner of
health pursuant to section twenty-eight hundred seven-y of the public
health law shall continue to collect moneys required to be collected or
deposited pursuant to paragraph (a) of subdivision eighteen of section
twenty-eight hundred seven-c, and sections twenty-eight hundred seven-j,
twenty-eight hundred seven-s and twenty-eight hundred seven-t of the
public health law, and shall deposit such moneys in the HCRA resources
fund. The comptroller shall deposit moneys collected or required to be
deposited pursuant to [section] SECTIONS four hundred eighty-two AND
ELEVEN HUNDRED FIVE-D of the tax law and required to be credited to the
tobacco control and insurance initiatives pool, subparagraph (O) of
paragraph four of subsection (j) of section four thousand three hundred
one of the insurance law, section twenty-seven of part A of chapter one
of the laws of two thousand two and all other moneys credited or trans-
ferred thereto from any other fund or source pursuant to law in the HCRA
resources fund.
S 7. This act shall take effect June 1, 2009, and shall apply to sales
and charges made, uses occurring and services rendered on and after such
date, in accordance with applicable transitional provisions in section
1106 of the tax law.
PART II
Section 1. Section 1 of part J of chapter 405 of the laws of 1999,
amending the real property tax law relating to improving the adminis-
S. 60--A 180 A. 160--A
tration of the school tax relief (STAR) program, as amended by section 3
of part PP-1 of chapter 57 of the laws of 2008, is amended to read as
follows:
Section 1. Notwithstanding the provisions of article 5 of the general
construction law, the provisions of the tax law amended by sections
94-a, 94-d and 94-g of chapter 2 of the laws of 1995 are hereby revived
and shall continue in full force and effect as they existed on March 31,
1999 [through May 31, 2010, when upon such date they shall expire and be
repealed]. Sections 1, 2, 3, 4, and 5, and such part of section 10 of
chapter 336 of the laws of 1999 as relates to providing for the effec-
tiveness of such sections 1, 2, 3, 4 and 5 shall be nullified in effect
on the effective date of this section, except that the amendments made
to: paragraph (2) of subdivision a of section 1612 of the tax law by
such section 1; and subdivision b of section 1612 of the tax law by such
section 2; and the repeal of section 152 of chapter 166 of the laws of
1991 made by such section 5 shall continue to remain in effect.
S 2. Paragraph 1 of subdivision a of section 1612 of the tax law, as
amended by chapter 336 of the laws of 1999, is amended to read as
follows:
(1) sixty percent of the total amount for which tickets have been sold
for a lawful lottery game introduced on or after the effective date of
this paragraph[, subject to the following provisions:
(A) drawings in such game shall be held during no more than thirteen
hours each day, no more than eight hours of which shall be consecutive;
(B) such game shall be available only on premises occupied by licensed
lottery sales agents, subject to the following provisions:
(i) if the licensee holds a license issued pursuant to the alcoholic
beverage control law to sell alcoholic beverages for consumption on the
premises, then not less than twenty-five percent of the gross sales must
result from sales of food;
(ii) if the licensee does not hold a license issued pursuant to the
alcoholic beverage control law to sell alcoholic beverages for consump-
tion on the premises, then the premises must have a minimum square
footage greater than two thousand five hundred square feet;
(iii) notwithstanding the foregoing provisions, television equipment
that automatically displays the results of such drawings may be
installed and used without regard to the percentage of food sales or the
square footage if such premises are used as:
(I) a commercial bowling establishment, or
(II) a facility authorized under the racing, pari-mutuel wagering and
breeding law to accept pari-mutuel wagers;
(C) the rules for the operation of such game shall be as prescribed by
regulations promulgated and adopted by the division, provided however,
that such rules shall provide that no person under the age of twenty-one
may participate in such games on the premises of a licensee who holds a
license issued pursuant to the alcoholic beverage control law to sell
alcoholic beverages for consumption on the premises; and, provided,
further, that such regulations may be revised on an emergency basis not
later than ninety days after the enactment of this paragraph in order to
conform such regulations to the requirements of this paragraph]; or
S 3. This act shall take effect immediately.
PART JJ
Section 1. Section 1617 of the tax law, as added by section 3 of part
D of chapter 383 of the laws of 2001, is amended to read as follows:
S. 60--A 181 A. 160--A
S 1617. Joint, multi-jurisdiction, and out-of-state lottery. The
director may enter into an agreement with a government-authorized group
of one or more other jurisdictions providing for the operation and
administration of a joint, multi-jurisdiction, and out-of-state
lottery[, except the director may not agree to participate in the games
of more than one such group at any single time]. Such a joint, multi-
jurisdiction, and out-of-state lottery game or games may include a
combined drawing, a combined prize pool, the transfer of sales and prize
monies to other jurisdictions as may be necessary, and such other coop-
erative arrangements as the director deems necessary or desirable.
S 2. This act shall take effect immediately.
PART KK
Section 1. The alcoholic beverage control law is amended by adding a
new section 79-e to read as follows:
S 79-E. GROCERY OR DRUG STORE WINE LICENSE. 1. ANY PERSON MAY APPLY
TO THE AUTHORITY FOR A LICENSE TO SELL FROM THE LICENSED PREMISES WINE
IN SEALED CONTAINERS FOR CONSUMPTION OFF SUCH PREMISES.
2. NO SUCH LICENSE SHALL BE ISSUED, HOWEVER, TO ANY PERSON FOR ANY
PREMISES OTHER THAN A GROCERY STORE, AS DEFINED IN SUBDIVISION THIRTEEN
OF SECTION THREE OF THIS CHAPTER, OR A DRUG STORE, AS DEFINED IN SUBDI-
VISION TWELVE OF SECTION THREE OF THIS CHAPTER.
3. (A) NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, EXCEPT FOR
GOOD CAUSE SHOWN, THE AUTHORITY SHALL ISSUE A GROCERY STORE OR DRUG
STORE WINE LICENSE TO THE HOLDER OF A LICENSE TO SELL BEER AT RETAIL FOR
CONSUMPTION OFF THE PREMISES PURSUANT TO SECTION FIFTY-FOUR OF THIS
CHAPTER, OR BEER AND WINE PRODUCTS AT RETAIL FOR CONSUMPTION OFF THE
PREMISES PURSUANT TO SECTION FIFTY-FOUR-A OF THIS CHAPTER, AT THE
REQUEST OF SUCH LICENSEE.
(B) FOR THE PURPOSES OF THIS SUBDIVISION, THE PREMISES OF THE GROCERY
STORE OR DRUG STORE WINE LICENSEE SHALL BE THE SAME AS THE PREMISES
LICENSED UNDER SECTION FIFTY-FOUR OR FIFTY-FOUR-A OF THIS CHAPTER.
(C) NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, ANY LICENSE
ISSUED PURSUANT TO THIS SECTION SHALL RUN CONCURRENTLY WITH THE UNDERLY-
ING LICENSE UNDER SECTION FIFTY-FOUR OR FIFTY-FOUR-A OF THIS CHAPTER,
AND SHALL BE DEEMED EXPIRED AT SUCH TIME AS THE UNDERLYING LICENSE
EXPIRES.
4. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, THE AUTHORITY
MAY ISSUE A LICENSE UNDER THIS SECTION TO THE HOLDER OF A LICENSE TO
SELL WINE AT RETAIL FOR CONSUMPTION OFF THE PREMISES PURSUANT TO SECTION
SEVENTY-NINE OF THIS ARTICLE, PROVIDED THAT: (A) THE LICENSEE MEETS THE
REQUIREMENTS OF SUBDIVISION TWO OF THIS SECTION; AND (B) UPON ISSUANCE
OF A LICENSE, THE LICENSEE UNDER THIS SECTION SURRENDERS THE LICENSE
CERTIFICATE ISSUED PURSUANT TO SUCH SECTION SEVENTY-NINE.
5. SUCH APPLICATION SHALL BE IN SUCH FORM AND SHALL CONTAIN SUCH
INFORMATION AS SHALL BE REQUIRED BY THE RULES OF THE AUTHORITY AND SHALL
BE ACCOMPANIED BY A CHECK OR DRAFT IN THE AMOUNT REQUIRED BY THIS ARTI-
CLE FOR SUCH LICENSE.
6. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, ANY PERSON
RECEIVING A LICENSE PURSUANT TO THIS SECTION SHALL NOT BE SUBJECT TO THE
PROVISIONS OF SUBDIVISION TWO, THREE OR FOUR OF SECTION SEVENTY-NINE OF
THIS ARTICLE.
7. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, ANY PERSON
RECEIVING A LICENSE PURSUANT TO THIS SECTION SHALL NOT BE SUBJECT TO THE
PROVISIONS OF SECTION EIGHTY OF THIS ARTICLE.
S. 60--A 182 A. 160--A
8. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, ANY PERSON
RECEIVING A LICENSE PURSUANT TO THIS SECTION SHALL NOT BE SUBJECT TO THE
PROVISIONS OF SUBDIVISION TWO, PARAGRAPH (A) OF SUBDIVISION THREE, PARA-
GRAPH (B) OF SUBDIVISION TEN, OR PARAGRAPH (C) OF SUBDIVISION TEN OF
SECTION ONE HUNDRED FIVE OF THIS CHAPTER.
9. (A) A ONE-TIME FRANCHISE FEE SHALL BE PAID FOR BY EACH RETAIL
OUTLET TO THE STATE LIQUOR AUTHORITY. THIS FRANCHISE FEE IS HEREBY
IMPOSED AT A RATE OF 0.46 OF ONE PERCENT OF THE TOTAL GROSS SALES OF THE
LICENSEE IN THE PREVIOUS YEAR.
(B) IN THE EVENT AN APPLICANT HAS BEEN IN BUSINESS FOR LESS THAN
TWELVE MONTHS PRIOR TO THE FILING OF THE APPLICATION FOR THIS LICENSE,
SUCH APPLICANT SHALL, IN ACCORDANCE WITH THE RULES OF THE AUTHORITY,
REMIT AN ESTIMATE OF ITS FRANCHISE FEE BASED ON SQUARE FOOTAGE AT A
LICENSEE'S LOCATION PURSUANT TO THE FOLLOWING SCHEDULE:
SQUARE FOOTAGE AT FRANCHISE FEE
LICENSEE'S LOCATION PER LOCATION
0-999 $825
1,000-1,999 $1,650
2,000-3,999 $3,300
4,000-9,999 $8,250
10,000-19,999 $16,500
20,000-24,999 $33,000
25,000-29,999 $82,500
30,000-39,999 $132,000
40,000 AND GREATER $495,000
WITHIN SIXTY DAYS AFTER SUCH LICENSEE SHALL HAVE BEEN IN BUSINESS FOR
TWELVE MONTHS, SUCH LICENSEE SHALL SUBMIT TO THE AUTHORITY, IN ACCORD-
ANCE WITH THE RULES OF THE AUTHORITY, A STATEMENT SHOWING ITS ACTUAL
TOTAL GROSS SALES FOR THE FIRST TWELVE MONTHS OF OPERATION AND THE FRAN-
CHISE FEE DUE PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. IN THE
EVENT THE FRANCHISE FEE DETERMINED PURSUANT TO SUCH PARAGRAPH EXCEEDS
THE AMOUNT PAID PURSUANT TO THIS PARAGRAPH, THE LICENSEE SHALL REMIT
PAYMENT FOR THE BALANCE OF THE REQUIRED FRANCHISE FEE WITHIN SUCH
SIXTY-DAY PERIOD. FAILURE TO REMIT PAYMENT WITHIN SUCH SIXTY-DAY PERIOD
SHALL BE GROUNDS FOR CANCELLATION OR REVOCATION OF SUCH LICENSE. IN THE
EVENT THAT THE FRANCHISE FEE DUE PURSUANT TO PARAGRAPH (A) OF THIS
SUBDIVISION IS LESS THAN THE AMOUNT PAID PURSUANT TO THIS PARAGRAPH, THE
LICENSEE SHALL BE ENTITLED TO A REFUND EQUAL TO THE DIFFERENCE BETWEEN
THE FRANCHISE FEE PAID PURSUANT TO THIS PARAGRAPH AND THE AMOUNT DUE
PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION.
(C) NO LICENSE SHALL BE ISSUED PURSUANT TO THIS SECTION UNTIL THE
FRANCHISE FEE OR ESTIMATED FRANCHISE FEE UNDER THIS SUBDIVISION REQUIRED
BY EITHER PARAGRAPH (A) OR (B) OF THIS SUBDIVISION HAS BEEN PAID IN
FULL.
(D) THE FRANCHISE FEE SHALL BE DEPOSITED AND DISPOSED OF IN THE SAME
MANNER AS ANY LICENSE FEE AS PROVIDED IN SECTION ONE HUNDRED TWENTY-FIVE
OF THIS CHAPTER.
10. THE STATE LIQUOR AUTHORITY MAY MAKE SUCH RULES AS IT DEEMS NECES-
SARY TO CARRY OUT THE PROVISIONS OF THIS SECTION.
S 2. Section 83 of the alcoholic beverage control law is amended by
adding a new subdivision 8 to read as follows:
8. THE ANNUAL FEE FOR A GROCERY OR DRUG STORE WINE LICENSE PURSUANT TO
SECTION SEVENTY-NINE-E OF THIS ARTICLE SHALL BE ONE HUNDRED TEN DOLLARS.
WHERE, HOWEVER, THE APPLICANT IS THE HOLDER OF TWO OR MORE SUCH
LICENSES, THE ANNUAL FEE FOR EACH ADDITIONAL LICENSE SHALL BE DOUBLE THE
AMOUNT HEREINABOVE SET FORTH.
S. 60--A 183 A. 160--A
S 3. Subdivision 2-a of section 100 of the alcoholic beverage control
law, as amended by chapter 249 of the laws of 2002, is amended to read
as follows:
2-a. No retailer shall employ, or permit to be employed, or shall
suffer to work, on any premises licensed for retail sale hereunder, any
person under the age of eighteen years, as a hostess, waitress, waiter,
or in any other capacity where the duties of such person require or
permit such person to sell, dispense or handle alcoholic beverages;
except that: (1) any person under the age of eighteen years and employed
by any person holding a grocery or drug store beer license shall be
permitted to handle and deliver beer and wine products for such licen-
see, (2) any person under the age of eighteen employed as a cashier by a
person holding a grocery or drug store beer license shall be permitted
to record and receive payment for beer and wine product sales when in
the presence of and under the direct supervision of a person eighteen
years of age or over, (2-a) any person under the age of eighteen years
and employed by a person holding a grocery store or drug store beer
license as either a cashier or in any other position to which handling
of containers which may have held alcoholic beverages is necessary,
shall be permitted to handle the containers if such have been presented
for redemption in accordance with the provisions of title ten of article
twenty-seven of the environmental conservation law, [and] (3) any person
under the age of eighteen years employed as a dishwasher, busboy, or
other such position as to which handling of containers which may have
held alcoholic beverages is necessary shall be permitted to do so under
the direct supervision of a person of legal age to purchase alcoholic
beverages in the state, (4) ANY PERSON UNDER THE AGE OF EIGHTEEN YEARS
AND EMPLOYED BY ANY PERSON HOLDING A GROCERY OR DRUG STORE WINE LICENSE
SHALL BE PERMITTED TO HANDLE AND DELIVER WINE FOR SUCH LICENSEE, AND (5)
ANY PERSON UNDER THE AGE OF EIGHTEEN EMPLOYED AS A CASHIER BY A PERSON
HOLDING A GROCERY OR DRUG STORE WINE LICENSE SHALL BE PERMITTED TO
RECORD AND RECEIVE PAYMENT FOR WINE WHEN IN THE PRESENCE OF AND UNDER
THE DIRECT SUPERVISION OF A PERSON EIGHTEEN YEARS OF AGE OR OVER.
S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law.
PART LL
Section 1. Paragraphs (a), (b), (c), and (d) of subdivision 1 of
section 424 of the tax law, paragraph (a) as amended by section 1 of
part V of chapter 63 of the laws of 2000, paragraph (b) as amended by
chapter 490 of the laws of 1993, and paragraphs (c) and (d) as amended
by chapter 170 of the laws of 1994, are amended to read as follows:
(a) [Eleven] TWENTY-FOUR cents per gallon upon beers;
(b) [Eighteen and ninety-three hundredths] FIFTY-ONE cents per gallon
upon still wines, except cider containing more than three and two-tenths
per centum of alcohol by volume, upon which the tax shall be three and
seventy-nine hundredths cents per gallon;
(c) [Eighteen and ninety-three hundredths] FIFTY-ONE cents per gallon
upon artificially carbonated sparkling wines, except artificially carbo-
nated sparkling cider containing more than three and two-tenths per
centum of alcohol by volume, upon which the tax shall be three and
seventy-nine hundredths cents per gallon;
(d) [Eighteen and ninety-three hundredths] FIFTY-ONE cents per gallon
upon natural sparkling wines, except natural sparkling cider containing
more than three and two-tenths per centum of alcohol by volume, upon
S. 60--A 184 A. 160--A
which the tax shall be three and seventy-nine hundredths cents per
gallon;
S 2. (a) If a contract for the sale of beer and wines was entered into
prior to April 1, 2009 and delivery under that contract is made within
the state on or after April 1, 2009, the beer and wines sold under that
contract will be subject to tax under article 18 of the tax law, as
amended by this act, at the time of delivery.
(b) In order to subject beer and wines in this state on April 1, 2009
to the increased taxes imposed by section one of this act, a special
floor tax is imposed on each wholesaler or retailer (as defined in the
alcoholic beverage control law) or other sellers of beer and wine, other
than those registered as distributors under article 18 of the tax law,
at the rates shown below with respect to all beer and wines in the
possession or under the control on April 1, 2009 of those wholesalers,
retailers and other sellers of beer and wines for purposes of sale in
the state. Additionally, any person who is a distributor or manufacturer
under article 18 of the tax law is subject to this special floor tax on
any beer and wines in his or her possession or under his or her control
on which the tax under article 18 of the tax law was already imposed.
The rate of the floor tax will be:
(1) On beer, thirteen cents per gallon; and
(2) On wines, thirty-two and seven hundredths cents per gallon.
This floor tax will be due and payable to the commissioner of taxation
and finance on or before June 22, 2009.
(c) Except as provided in this section, all the provisions of articles
18 and 37 of the tax law will apply to floor taxes imposed by this
section.
(d) The commissioner of taxation and finance is authorized to
prescribe any terms and conditions the commissioner deems advisable and
require any reports the commissioner deems necessary to effectuate the
provisions of this section.
(e) The commissioner of taxation and finance may request from the
state liquor authority, and the state liquor authority is authorized and
directed to provide, any cooperation and assistance, including data,
that will enable the commissioner to carry out the imposition and imple-
mentation of the floor tax.
S 3. This act shall take effect April 1, 2009.
PART MM
Section 1. Paragraph 1 of subdivision (a) of section 1160 of the tax
law, as added by chapter 190 of the laws of 1990, is amended to read as
follows:
(1) [On and after June first, nineteen hundred ninety, in] IN addition
to any tax imposed under any other article of this chapter, there is
hereby imposed and there shall be paid a tax of [five] SIX percent upon
the receipts from every rental of a passenger car which is a retail sale
of such passenger car.
S 2. Paragraph 2 of subdivision (a) of section 1160 of the tax law, as
amended by chapter 166 of the laws of 1991, is amended to read as
follows:
(2) Except to the extent that a passenger car rental described in
paragraph one of this subdivision has already been or will be subject to
the tax imposed under such paragraph and except as otherwise exempted
under this article, there is hereby imposed on every person and there
shall be paid a use tax for the use within this state [on and after June
S. 60--A 185 A. 160--A
first, nineteen hundred ninety] of any passenger car rented by the user,
which is a purchase at retail of such passenger car, but not including
any lease of a passenger car to which subdivision (i) of section eleven
hundred eleven of this chapter applies. For purposes of this paragraph,
the tax shall be at the rate of [five] SIX percent of the consideration
given or contracted to be given for such property, or for the use of
such property, including any charges for shipping or delivery as
described in paragraph three of subdivision (b) of section eleven
hundred one of this chapter, but excluding any credit for tangible
personal property accepted in part payment and intended for resale.
S 3. This act shall take effect June 1, 2009, and shall apply to sales
made or uses occurring on or after such date in accordance with applica-
ble transitional provisions in sections 1106 and 1217 of the tax law.
PART NN
Section 1. Subdivision (b) of section 1101 of the tax law is amended
by adding a new paragraph 34 to read as follows:
(34) "TRANSPORTATION SERVICE" SHALL MEAN THE SERVICE OF TRANSPORTING,
CARRYING OR CONVEYING A PERSON OR PERSONS BY ANY MEANS, INCLUDING BUT
NOT LIMITED TO (I) TAXICAB, CHARTER, BLACK CAR, LIMOUSINE, COACH,
FOR-HIRE VEHICLE, COMMUTER VAN, OR OTHER VEHICLE SERVICE, (II)
HORSE-DRAWN CAB OR COACH SERVICE, AND PEDICAB SERVICE, (III) INTRA-STATE
CHARTER BUS, VESSEL, TRAIN, AND PLANE SERVICE, (IV) CHARTER FISHING
SERVICE, AND (V) SIGHTSEEING SERVICE REGARDLESS OF WHETHER SCHEDULED OR
THE MEANS OF CONVEYANCE; WHETHER ONE-WAY OR ROUND-TRIP; WHETHER TO A
SINGLE DESTINATION OR TO MULTIPLE DESTINATIONS; AND WHETHER THE COMPEN-
SATION PAID BY OR ON BEHALF OF THE PASSENGER IS BASED ON MILEAGE, TRIP,
TIME CONSUMED OR ANY OTHER BASIS. A SERVICE THAT BEGINS AND ENDS IN
THIS STATE IS DEEMED INTRA-STATE EVEN IF IT PASSES OUTSIDE THIS STATE
DURING A PORTION OF THE TRIP. HOWEVER, TRANSPORTATION SERVICE DOES NOT
INCLUDE (I) "COMMUTER SERVICE" CONSISTING OF MASS TRANSPORTATION
SERVICE, LOCAL TRANSIT SERVICE, SUBWAY OR COMMUTER RAIL SERVICE, AND
OTHER SCHEDULED SERVICE; (II) VESSEL OR FERRY SERVICE DESCRIBED IN
SUBDIVISION (B) OF SECTION ELEVEN HUNDRED NINETEEN OR PARAGRAPH
FORTY-THREE OF SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FIFTEEN OF THIS
ARTICLE, (III) THE TRANSPORTATION OF CHILDREN TO AND FROM SCHOOLS AND
DAY CAMPS OPERATED BY AN ENTITY OR ORGANIZATION DESCRIBED IN PARAGRAPH
ONE, TWO, THREE, FOUR, OR SIX OF SUBDIVISION (A) OF SECTION ELEVEN
HUNDRED SIXTEEN OF THIS ARTICLE, (IV) TRANSPORTATION OF PERSONS IN
CONNECTION WITH FUNERALS, OR (V) AMBULANCE, AMBULETTE, OR EMERGENCY
SERVICE TRANSPORTATION, WHETHER GROUND, WATER, OR AIR. TRANSPORTATION
SERVICE INCLUDES TRANSPORTING, CARRYING, OR CONVEYING PROPERTY OF THE
PERSON BEING TRANSPORTED, WHETHER OWNED BY OR IN THE CARE OF SUCH
PERSON. IN ADDITION TO WHAT IS INCLUDED IN THE DEFINITION OF "RECEIPT"
IN PARAGRAPH THREE OF THIS SUBDIVISION, RECEIPTS FROM THE SALE OF TRANS-
PORTATION SERVICE SUBJECT TO TAX INCLUDE ANY HANDLING, CARRYING,
BAGGAGE, BOOKING SERVICE, ADMINISTRATIVE OR OTHER CHARGE, OF ANY NATURE,
MADE IN CONJUNCTION WITH THE TRANSPORTATION SERVICE.
S 2. Subdivision (c) of section 1105 of the tax law is amended by
adding a new paragraph 13 to read as follows:
(13) TRANSPORTATION SERVICE, WHETHER OR NOT ANY TANGIBLE PERSONAL
PROPERTY IS TRANSFERRED IN CONJUNCTION THEREWITH, AND REGARDLESS OF
WHETHER THE CHARGE IS PAID IN THIS STATE OR OUT OF STATE SO LONG AS THE
SERVICE IS PROVIDED IN THIS STATE.
S. 60--A 186 A. 160--A
S 3. Section 1106 of the tax law is amended by adding a new subdivi-
sion (1) to read as follows:
(1) THE TAX IMPOSED BY PARAGRAPH THIRTEEN OF SUBDIVISION (C) OF
SECTION ELEVEN HUNDRED FIVE OF THIS PART MUST BE PAID WITH RESPECT TO
RECEIPTS FROM ALL SALES OF SERVICES ON OR AFTER THE EFFECTIVE DATE OF
SUCH PARAGRAPH ALTHOUGH RENDERED OR AGREED TO BE RENDERED UNDER A PRIOR
CONTRACT. WHERE A SERVICE IS SOLD ON A MONTHLY, QUARTERLY, YEARLY, OR
OTHER TERM BASIS, THE CHARGE FOR THE SERVICE WILL BE SUBJECT TO THE TAX
IMPOSED BY THAT PARAGRAPH TO THE EXTENT THAT THE CHARGE IS APPLICABLE TO
ANY PERIOD ON OR AFTER THE DATE THE TAX BECOMES EFFECTIVE, AND THE
CHARGE MUST BE APPORTIONED ON THE BASIS OF THE RATIO OF THE NUMBER OF
DAYS FALLING WITHIN THE PERIOD TO THE TOTAL NUMBER OF DAYS IN THE FULL
TERM OR PERIOD.
S 4. Section 1111 of the tax law is amended by adding a new subdivi-
sion (o) to read as follows:
(O) (1) IF A TRANSPORTATION SERVICE SUBJECT TO TAX UNDER PARAGRAPH
THIRTEEN OF SUBDIVISION (C) OF SECTION ELEVEN HUNDRED FIVE OF THIS PART
IS PROVIDED BY TAXICAB, BLACK CAR, LIMOUSINE OR OTHER VEHICLE, AND THE
OWNER OR LESSOR OF THE VEHICLE LEASES OR RENTS THE VEHICLE TO AN UNRE-
LATED PERSON WHO PROVIDES THE TRANSPORTATION SERVICE, SUCH AS A TAXICAB
DRIVER WHO DRIVES A TAXICAB 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 THIRTEEN IS DEEMED TO BE IMPOSED ON THE UNRELATED PERSON,
(IV) THE OWNER OR LESSOR, AS VENDOR, MUST COLLECT THE TAX FROM THE UNRE-
LATED 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 TAXICAB OR OTHER LICENSE OR MEDALLION, 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 REGU-
LATES TAXICAB, BLACK CAR, LIMOUSINE OR OTHER VEHICLE SERVICE FARES MUST
ADJUST THOSE FARES TO INCLUDE THEREIN THE TAX IMPOSED BY PARAGRAPH THIR-
TEEN 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 THIRTEEN 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 PARA-
GRAPH. NEITHER THE FAILURE OF A MUNICIPAL OR OTHER PUBLIC CORPORATION TO
ADJUST FARES NOR THE FAILURE OF ANY PERSON TO ADJUST THE METERS OR
S. 60--A 187 A. 160--A
DEVICES WILL RELIEVE ANY PERSON FROM THE OBLIGATION TO COLLECT 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.
S 5. Subdivision (z) of section 1115 of the tax law is amended by
adding a new paragraph 5 to read as follows:
(5) THE EXEMPTIONS PROVIDED IN THIS SUBDIVISION SHALL NOT APPLY TO THE
TAX IMPOSED BY PARAGRAPH THIRTEEN OF SUBDIVISION (C) OF SECTION ELEVEN
HUNDRED FIVE OF THIS ARTICLE OR TO SIMILAR TAXES IMPOSED PURSUANT TO THE
AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER.
S 6. Section 1213 of the tax law, as amended by chapter 651 of the
laws of 1999, is amended to read as follows:
S 1213. Deliveries outside the jurisdiction where sale is made. Where
a sale of tangible personal property or services, including prepaid
telephone calling services, but not including other services described
in subdivision (b) of section eleven hundred five OF THIS CHAPTER,
including an agreement therefor, is made in any city, county or school
district, but the property sold, the property upon which the services
were performed or prepaid telephone calling or other service is or will
be delivered to the purchaser elsewhere, such sale shall not be subject
to tax by such city, county or school district. However, if delivery
occurs or will occur in a city, county or school district imposing a tax
on the sale or use of such property, prepaid telephone calling or other
services, the vendor shall be required to collect from the purchaser, as
provided in section twelve hundred fifty-four OF THIS ARTICLE, the
aggregate sales or compensating use taxes imposed by the city, if any,
county and school district in which delivery occurs or will occur, for
distribution by the commissioner to such taxing jurisdiction or juris-
dictions. For the purposes of this section delivery shall be deemed to
include transfer of possession to the purchaser and the receiving of the
property or of the service, including prepaid telephone calling service,
by the purchaser. NOTWITHSTANDING THE FOREGOING, WHERE A TRANSPORTATION
SERVICE DESCRIBED IN PARAGRAPH THIRTEEN OF SUBDIVISION (C) OF SECTION
ELEVEN HUNDRED FIVE OF THIS CHAPTER BEGINS IN ONE JURISDICTION BUT ENDS
IN ANOTHER JURISDICTION, ANY TAX IMPOSED BY THIS ARTICLE SHALL BE DUE
THE JURISDICTION OR JURISDICTIONS WHERE THE SERVICE COMMENCED.
S 7. This act shall take effect June 1, 2009.
PART OO
Section 1. Paragraph 2 of subdivision (d) of section 1101 of the tax
law, as added by chapter 93 of the laws of 1965, is amended to read as
follows:
(2) Admission charge. The amount paid for admission, including any
DUES (OTHER THAN DUES PAID TO A CLUB DESCRIBED IN PARAGRAPH THIRTEEN OF
THIS SUBDIVISION), MEMBERSHIP FEE, PARTICIPATION FEE, USAGE FEE, OR
service charge, and any charge for entertainment [or], amusement, or
SPORTS, AND ANY AMOUNT PAID for the use of ANY DEVICES, RIDES, GAMES,
EQUIPMENT, APPARATUS, OR ANY OTHER facilities therefor AT A PLACE OF
AMUSEMENT OTHER THAN LAWFULLY OPERATED VIDEO LOTTERY TERMINALS.
S 2. Paragraph 4 of subdivision (d) of section 1101 of the tax law, as
added by chapter 93 of the laws of 1965, is amended to read as follows:
(4) Charge of a roof garden, cabaret or other similar place. Any
charge made for admission, refreshment, service, or merchandise OR FOR
S. 60--A 188 A. 160--A
THE USE OF ANY FACILITIES FOR ENTERTAINMENT OR AMUSEMENT at a roof
garden, cabaret or other similar place.
S 3. Paragraph 6 of subdivision (d) of section 1101 of the tax law, as
amended by chapter 470 of the laws of 1979, is amended to read as
follows:
(6) Dues. Any dues or membership fee including any assessment, irre-
spective of the purpose for which made, and any charges for social,
ATHLETIC or sports privileges or facilities[, except charges for sports
privileges or facilities offered to members' guests which would other-
wise be exempt if paid directly by such guests], AND FOR THE USE OF
OTHER FACILITIES FURNISHED OR LEASED BY A CLUB TO ITS MEMBERS OR GUESTS.
S 4. Paragraph 10 of subdivision (d) of section 1101 of the tax law,
as added by chapter 93 of the laws of 1965, is amended to read as
follows:
(10) Place of amusement. Any place where A PERFORMANCE IS GIVEN, A
MOTION PICTURE OR OTHER THEATER, FAIR, RACE TRACK, EXHIBITION, CIRCUS,
GOLF COURSE, ATHLETIC FIELD, SPORTING ARENA, CLUB (OTHER THAN A CLUB
DESCRIBED IN PARAGRAPH THIRTEEN OF THIS SUBDIVISION), GYMNASIUM, BOWLING
ALLEY, SHOOTING GALLERY, SWIMMING POOL, BEACH, SKATING RINK, SKIING
MOUNTAIN OR FACILITY, CAMPGROUND, PARK AND ANY OTHER PLACE WHERE any
EQUIPMENT, APPARATUS, EXHIBIT, DISPLAY, OR OTHER facilities for enter-
tainment, amusement, or sports are provided, INCLUDING AMUSEMENT DEVICES
OR RIDES AND GAMES OF CHANCE OR SKILL, WHETHER OR NOT CONTAINED IN AN
ENCLOSURE AND WHETHER OR NOT COIN-OPERATED.
S 5. Paragraph 12 of subdivision (d) of section 1101 of the tax law,
as amended by chapter 609 of the laws of 1986, is amended to read as
follows:
(12) Roof garden, cabaret or other similar place. Any roof garden,
cabaret or other similar place which furnishes a public performance for
profit, INCLUDING ANY HOTEL, RESTAURANT, HALL OR OTHER PUBLIC PLACE
WHERE MUSIC AND DANCING PRIVILEGES OR ANY OTHER ENTERTAINMENT, EXCEPT
INSTRUMENTAL OR MECHANICAL MUSIC ALONE, ARE AFFORDED TO PATRONS IN
CONJUNCTION WITH THE SERVING OR SELLING OF FOOD, REFRESHMENT OR MERCHAN-
DISE, but not including a place where merely live dramatic or musical
arts performances are offered in conjunction with the serving or selling
of food, refreshment or merchandise, so long as such serving or selling
of food, refreshment or merchandise is merely incidental to such
performances. A PERFORMANCE WILL BE REGARDED AS BEING FURNISHED FOR
PROFIT EVEN THOUGH THE CHARGE MADE FOR ADMISSION, REFRESHMENT, SERVICE
OR MERCHANDISE IS NOT INCREASED BY REASON OF THE FURNISHING OF THAT
PERFORMANCE.
S 6. Paragraph 13 of subdivision (d) of section 1101 of the tax law,
as added by chapter 93 of the laws of 1965, is amended to read as
follows:
(13) Social [or], athletic, OR SPORTING club. Any club or organization
of which a material purpose or activity is social [or], athletic OR
SPORTING, OR ANY COMBINATION OF THOSE PURPOSES OR ACTIVITIES.
S 7. The opening paragraph of paragraph (i) of subdivision (d) of
section 1105 of the tax law, as amended by chapter 405 of the laws of
1971, is amended to read as follows:
The receipts from every sale of beer, wine or other alcoholic beverag-
es or any other drink of any nature, or from every sale of food and
drink of any nature or of food alone, when sold in or by restaurants,
taverns or other establishments in this state, or by caterers, including
in the amount of such receipts any cover, minimum, entertainment, ADMIS-
S. 60--A 189 A. 160--A
SION, or other charge made to patrons or customers (except those
receipts taxed pursuant to subdivision (f) of this section):
S 8. Paragraph 1 of subdivision (f) of section 1105 of the tax law, as
amended by section 100 of part A of chapter 389 of the laws of 1997, is
amended to read as follows:
(1) Any admission charge [where such admission charge is in excess of
ten cents] to or for the use of any place of amusement in the state[,
except charges for admission to race tracks, boxing, sparring or wrestl-
ing matches or exhibitions which charges are taxed under any other law
of this state, or dramatic or musical arts performances, or live circus
performances, or motion picture theaters, and except charges to a patron
for admission to, or use of, facilities for sporting activities in which
such patron is to be a participant, such as bowling alleys and swimming
pools] OR TO OR FOR THE USE OF ANY EQUIPMENT, APPARATUS, DEVICES, RIDES,
GAMES, OR OTHER FACILITIES AT THAT PLACE OF AMUSEMENT, OTHER THAN A
LAWFULLY OPERATED VIDEO LOTTERY TERMINAL, REGARDLESS OF WHETHER THE
CHARGE IS PAID IN THIS STATE OR OUT OF STATE SO LONG AS THE PLACE OF
AMUSEMENT IS IN THIS STATE. For any person having the permanent use or
possession of a box or seat or a lease or a license, other than a season
ticket, for the use of a box or seat at a place of amusement, the tax
shall be upon the amount for which a similar box or seat is sold for
each performance or exhibition at which the box or seat is used or
reserved by the holder, licensee or lessee, and shall be paid by the
holder, licensee or lessee.
S 9. Paragraph 2 of subdivision (f) of section 1105 of the tax law, as
amended by chapter 673 of the laws of 1995, is amended to read as
follows:
(2) (i) The dues paid to any social [or], athletic OR SPORTING club in
this state if the dues of an active annual member, exclusive of the
initiation fee, are in excess of ten dollars per year, and on the initi-
ation fee alone, regardless of the amount of dues, if such initiation
fee is in excess of ten dollars, REGARDLESS OF WHETHER THE DUES OR
INITIATION FEE IS PAID IN THIS STATE OR OUT OF THIS STATE SO LONG AS THE
CLUB IS IN THIS STATE. Where the tax on dues applies to any such social
[or], athletic OR SPORTING club, the tax shall be paid by all members,
other than honorary members, thereof regardless of the amount of their
dues, and shall be paid on all dues or initiation fees [for a period
commencing on or after August first, nineteen hundred sixty-five]. In
the case of a life membership, the tax shall be upon the amount paid as
life membership dues, however, a life member, other than an honorary
member, paying an annual sales tax, based on the dues of an active annu-
al member, shall continue such payments until the total amount of such
tax paid is equal to the amount of tax that would have otherwise been
due had the tax been imposed at the time such paid life membership has
been purchased and at the then applicable rate.
(ii) Dues and initiation fees paid to the following shall not be
subject to the tax imposed by this paragraph:
(A) A fraternal society, order or association operating under the
lodge system; OR
(B) Any fraternal association of students of a college or university[;
(C) A homeowners association. For purposes of this subparagraph, a
homeowners association is an association (including a cooperative hous-
ing or apartment corporation) (I) the membership of which is comprised
exclusively of owners or residents of residential dwelling units,
including owners of units in a condominium, and including shareholders
in a cooperative housing or apartment corporation, where such units are
S. 60--A 190 A. 160--A
located in a defined geographical area such as a housing development or
subdivision and (II) which operates social or athletic facilities
located in such area for use (whether or not exclusive) by such owners
or residents].
S 10. Paragraph 3 of subdivision (f) of section 1105 of the tax law,
as amended by chapter 72 of the laws of 1971, is amended to read as
follows:
(3) The amount paid as charges of a roof garden, cabaret or other
similar place in the state, REGARDLESS OF WHETHER PAID IN THIS STATE OR
OUT OF STATE SO LONG AS THE PLACE IS IN THIS STATE.
S 11. Section 1122 of the tax law is REPEALED.
S 12. Section 1123 of the tax law is REPEALED.
S 13. Paragraph 4 of subdivision (a) of section 1210 of the tax law,
as amended by section 5 of part SS-1 of chapter 57 of the laws of 2008,
is amended to read as follows:
(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
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) shall not
provide the clothing and footwear exemption in paragraph thirty of
subdivision (a) of section eleven hundred fifteen of this chapter but
must exempt clothing and footwear and any item used or consumed to make
or repair exempt clothing and which becomes a physical component part of
that exempt clothing; (viii) shall omit the exemption provided in para-
graph 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, refrigeration and steam, and gas, electric,
refrigeration and steam service of whatever nature for use or consump-
tion directly and exclusively in the production of gas, electricity,
refrigeration or steam; and (x) shall omit, unless such city elects
otherwise, the provision for refund or credit contained in clause six of
subdivision (a) of section eleven hundred nineteen of this chapter.
S. 60--A 191 A. 160--A
S 14. Paragraph 2 of subdivision (b) of section 1210 of the tax law,
as amended by section 36 of part Y of chapter 63 of the laws of 2000, is
amended to read as follows:
(2) In respect to the taxes described in such subdivisions (b), (d),
(e) and (f) of section eleven hundred five of this chapter and in such
clauses (E), (G) and (H) of subdivision (a) of section eleven hundred
ten of this chapter and the transitional provisions in such section
eleven hundred six covering those taxes, all provisions of a local law
imposing any such tax, 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 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 city or county and with such limitations and special
provisions as are set forth in this article; provided, however, that any
local law enacted by any city of one million or more, imposing the taxes
authorized by this subdivision, shall omit the exemption provided in
subdivision (c) of section eleven hundred fifteen of this chapter [and
may omit the exception provided in paragraph (1) 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
such patron is to be a participant, such as bowling alleys and swimming
pools. The transitional provisions contained in subdivision (d) of
section eleven hundred six of this chapter shall apply in the same
manner and to the same extent to a tax imposed by omitting the exception
in paragraph (1) of subdivision (f) of section eleven hundred five of
this chapter, as described in the preceding sentence, except that an
equivalent date shall be substituted to accord with the date when the
tax so imposed becomes effective]. The tax described in any one of such
subdivisions (b), (d), (e) and (f) of section eleven hundred five of
this chapter, including the related transitional provisions in [such]
section eleven hundred six of this chapter, and the taxes described in
clauses (E), (G) and (H) of subdivision (a) of section eleven hundred
ten of this chapter where the tax described in such subdivision (b) of
section eleven hundred five of this chapter is imposed, may not be
imposed by a city or county unless the local law, ordinance or resol-
ution imposes such tax so as to include all portions and all types of
receipts, charges or rents, as the case may be, subject to state tax
under the applicable subdivision of section eleven hundred five of this
chapter and uses subject to tax under the applicable provisions of
section eleven hundred ten of this chapter where the tax described in
subdivision (b) of section eleven hundred five of this chapter is
imposed.
S 15. Subdivision (h) of section 1210 of the tax law, as added by
chapter 168 of the laws of 1975, is amended to read as follows:
(h) Notwithstanding the provisions of subdivision (f) of this section,
any city having a population of one million or more in which a municipal
assistance corporation is created under article ten of the public
authorities law shall continue to be authorized and empowered to adopt
and amend local laws, imposing taxes, at a rate not to exceed four
percent on the receipts of sales from the services of laundering, dry-
cleaning, tailoring, weaving, pressing, shoe repairing and shoe shin-
ing[, and charges to a patron for admission to, or use of, facilities
for sporting activities in which such patron is to be a participant such
as bowling alleys and swimming pools]. Such taxes shall be administered,
S. 60--A 192 A. 160--A
collected and distributed by the [state tax commission] COMMISSIONER as
provided in subpart B of part III and in part IV of this article.
S 16. This act shall take effect June 1, 2009, and shall apply in
accordance with applicable transitional provisions in sections 1106 and
1217 of the tax law.
PART PP
Section 1. Paragraph 9 of subdivision (b) of section 1101 of the tax
law, as amended by chapter 61 of the laws of 1989, is amended to read as
follows:
(9) Capital improvement. (i) An addition or alteration to real proper-
ty which:
(A) Substantially adds to the value of the real property, or appre-
ciably prolongs [the] ITS useful life [of the real property]; and
(B) Becomes part of the real property or is permanently affixed to
[the real property] IT so that removal would cause material damage to
[the property] IT or TO THE article itself; and
(C) Is intended to become a permanent installation; AND
(D) IN THE CASE OF A BUILDING OR OTHER STRUCTURE, CONSTITUTES NEW
CONSTRUCTION OR A NEW ADDITION TO OR TOTAL RECONSTRUCTION OF EXISTING
CONSTRUCTION.
(ii) A mobile home shall not constitute [an addition or] A capital
improvement [to real property, property or land], regardless of the
nature of its installation.
(iii) Notwithstanding the provisions of subparagraph (i) of this para-
graph: (A) Floor covering, such as carpet, carpet padding, linoleum and
vinyl roll flooring, carpet tile, linoleum tile and vinyl tile,
installed as the initial finished floor covering in new construction or
a new addition to or total reconstruction of existing construction shall
constitute [an addition or] A capital improvement [to real property,
property or land]; and
(B) Floor covering, such as carpet, carpet padding, linoleum and vinyl
roll flooring, carpet tile, linoleum tile and vinyl tile, installed
other than as described in clause (A) of this subparagraph shall not
constitute [an addition or] A capital improvement [to real property,
property or land].
S 2. Subparagraph (iii) of paragraph 3 of subdivision (c) of section
1105 of the tax law, as separately amended by chapters 103 and 471 of
the laws of 1981, is amended to read as follows:
(iii) for installing property which, when installed, will constitute
[an addition or] A capital improvement [to real property, property or
land, as the terms real property, property or land are defined in the
real property tax law as such term capital improvement is defined in
paragraph nine of subdivision (b) of section eleven hundred one of this
chapter]; and
S 3. Paragraph 5 of subdivision (c) of section 1105 of the tax law, as
amended by chapter 321 of the laws of 2005, is amended to read as
follows:
(5) Maintaining, servicing or repairing real property[, property or
land, as such terms are defined in the real property tax law], whether
the services are performed in or outside of a building, as distinguished
from adding to or improving such real property[, property or land,] by a
capital improvement [as such term capital improvement is defined in
paragraph nine of subdivision (b) of section eleven hundred one of this
article], but excluding (i) services rendered by an individual who is
S. 60--A 193 A. 160--A
not in a regular trade or business offering his services to the public,
(ii) services rendered directly with respect to real property[, property
or land] used or consumed directly and predominantly in the production
for sale of gas or oil by manufacturing, processing, generating, assem-
bling, refining, mining, or extracting, (iii) services rendered with
respect to real property[, property or land] used or consumed predomi-
nantly either in the production of tangible personal property, for sale,
by farming or in a commercial horse boarding operation, or in both and
(iv) services of removal of waste material from a facility regulated as
a transfer station or construction and demolition debris processing
facility by the department of environmental conservation, provided that
the waste material to be removed was not generated by the facility.
S 4. Subdivision (e) of section 1110 of the tax law, as separately
amended by sections 19, 158 and 161 of chapter 166 of the laws of 1991,
is amended to read as follows:
(e) Notwithstanding the foregoing[,] provisions of this section, for
purposes of clause (B) of subdivision (a) of this section, there shall
be no tax on any portion of such price which represents the value added
by the user to tangible personal property which he fabricates and
installs to the specifications of [an addition or] A capital improvement
[to real property, property or land, as the terms real property, proper-
ty or land are defined in the real property tax law], over and above the
prevailing normal purchase price prior to such fabrication of such
tangible personal property which a manufacturer, producer or assembler
would charge an unrelated contractor who similarly fabricated and
installed such tangible personal property to the specifications of [an
addition or] A capital improvement [to such real property, property or
land].
S 5. Paragraph 17 of subdivision (a) of section 1115 of the tax law,
as amended by chapter 221 of the laws of 1971, is amended to read as
follows:
(17) Tangible personal property sold by a contractor, subcontractor or
[repairman] REPAIRPERSON to a person other than an organization
described in subdivision (a) of section eleven hundred sixteen OF THIS
PART, for whom [he] THE CONTRACTOR, SUBCONTRACTOR OR REPAIRPERSON is
[adding to, or improving real property, property or land by] PERFORMING
OR IS ABOUT TO PERFORM a capital improvement, [or for whom he is about
to do any of the foregoing,] if such tangible personal property is to
become an integral component part of [such structure, building or] THE
real property [; provided, however, that if such sale is made pursuant
to a contract irrevocably entered into before September first, nineteen
hundred sixty-nine, no exemption shall exist under this paragraph] UPON
WHICH THE CAPITAL IMPROVEMENT IS OR WILL BE PERFORMED.
S 6. Subparagraph (iii) of paragraph 37 of subdivision (a) of section
1115 of the tax law, as added by section 1 of part C of chapter 63 of
the laws of 2000, is amended to read as follows:
(iii) Receipts from the retail sale of the tangible personal property
exempt pursuant to subparagraph (i) of this paragraph if purchased by an
operator of an internet data center, shall be exempt when purchased by a
contractor, subcontractor or [repairman] REPAIRPERSON for use as
described in such subparagraph (i), where such property is to become [a]
AN INTEGRAL COMPONENT PART OF REAL PROPERTY DESCRIBED IN SUCH SUBPARA-
GRAPH (I) OF THIS PARAGRAPH UPON WHICH THE capital improvement [to real
property] IS TO BE PERFORMED.
S. 60--A 194 A. 160--A
S 7. Subparagraph (iii) of paragraph 1 of subdivision (aa) of section
1115 of the tax law, as added by section 2 of part T of chapter 63 of
the laws of 2000, is amended to read as follows:
(iii) The services described in paragraph five of subdivision (c) of
section eleven hundred five of this article when performed on property
described in paragraph thirty-eight of subdivision (a) of this section
which subsequent to its installation has become [an addition or] A capi-
tal improvement [to real property, property or land, as such terms are
defined in the real property tax law].
S 8. This act shall take effect June 1, 2009, and shall apply in
accordance with applicable transitional provisions in sections 1106 and
1217 of the tax law.
PART QQ
Section 1. Paragraph b of subdivision 1 of section 502 of the tax
law, as amended by section 1 of part E of chapter 60 of the laws of
2007, is amended to read as follows:
b. Every automotive fuel carrier shall apply to the commissioner for a
special certificate of registration, in place of the certificate of
registration described in paragraph a of this subdivision, for each
motor vehicle operated or to be operated by him on the public highways
in this state to transport automotive fuel. Provided, however, a special
certificate of registration shall not be required under this paragraph
for a tractor or other self-propelled device which, except with respect
to the fuel in the ordinary fuel tank intended for its propulsion,
transports automotive fuel solely by means of a trailer, dolly or other
device drawn by such tractor or other self-propelled device if a certif-
icate of registration prescribed by paragraph a of this subdivision has
been issued for the self-propelled device. Application shall be made
upon an application form prescribed by the commissioner. The applica-
tion shall be accompanied by a fee of [five] FIFTEEN dollars for each
trailer, semi-trailer, dolly or other device [and fifteen dollars for
each self-propelled device] listed in the application. The commissioner
shall issue without further charge such special certificate of registra-
tion for each motor vehicle listed in the application or a consolidated
certificate of registration for all or any portion of such vehicles of
such carrier. All of the provisions of this article with respect to
certificates of registration shall be applicable to the special certif-
icates of registration issued to automotive fuel carriers under this
paragraph as if those provisions had been set forth in full in this
paragraph and expressly referred to the special certificates of regis-
tration required by this paragraph except to the extent that any such
provision is either inconsistent with a provision of this paragraph or
not relevant to the certificates of registration required by this para-
graph. Any certificate of registration shall not be transferable, and
shall be valid until revoked, suspended or surrendered. Such special
certificate of registration shall be maintained in the carrier's regular
place of business. Nothing contained in this paragraph shall in any way
exempt an automotive fuel carrier from payment of the taxes imposed
pursuant to this article.
S 2. Subdivision 8 of section 509 of the tax law, as amended by
section 5 of part E of chapter 60 of the laws of 2007, is amended to
read as follows:
8. To issue replacement certificates of registration at such times as
the commissioner may deem necessary for the proper and efficient
S. 60--A 195 A. 160--A
enforcement of the provisions of this article, but not more often than
once every year and to require the surrender of the then outstanding
certificates of registration. All of the provisions of this article with
respect to certificates of registration shall be applicable to replace-
ment certificates of registration issued hereunder, except that the
replacement certificate of registration shall be issued upon payment of
a fee of [four] FIFTEEN dollars for each motor vehicle and [two dollars]
for any trailer, semi-trailer, dolly or other device drawn thereby for
which a certificate of registration is required to be issued under this
article;
S 3. This act shall take effect immediately.
PART RR
Section 1. The tax law is amended by adding a new section 1105-F to
read as follows:
S 1105-F. ADDITIONAL STATE SALES AND COMPENSATING USE TAX ON CERTAIN
LUXURY PROPERTY. (A) DEFINITIONS. FOR PURPOSES OF THE TAX IMPOSED BY
THIS SECTION, THE FOLLOWING TERMS MEAN:
(1) PASSENGER MOTOR VEHICLE. 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, BUT NOT INCLUDING A VEHICLE
PURCHASED FOR USE EXCLUSIVELY IN THE ACTIVE CONDUCT OF A TRADE OR BUSI-
NESS OF TRANSPORTING PERSONS OR PROPERTY FOR COMPENSATION OR HIRE, A
VEHICLE PURCHASED FOR USE EXCLUSIVELY IN PROVIDING EMERGENCY MEDICAL
SERVICES, OR A DEMONSTRATOR VEHICLE.
(2) VESSEL. A VESSEL, AS DEFINED IN SECTION TWENTY-TWO HUNDRED FIFTY
OF THE VEHICLE AND TRAFFIC LAW, BUT NOT INCLUDING A COMMERCIAL VESSEL,
AS DEFINED IN PARAGRAPH SIXTEEN OF SUBDIVISION (B) OF SECTION ELEVEN
HUNDRED ONE OF THIS ARTICLE, A VESSEL PURCHASED FOR USE EXCLUSIVELY IN
PROVIDING EMERGENCY MEDICAL SERVICES, OR A DEMONSTRATOR VESSEL.
(3) AIRCRAFT. ANY AIRCRAFT THAT IS PROPELLED BY A MOTOR OR ENGINE AND
IS CAPABLE OF CARRYING ONE OR MORE INDIVIDUALS, BUT NOT INCLUDING
COMMERCIAL AIRCRAFT AS DEFINED IN PARAGRAPH SEVENTEEN OF SUBDIVISION (B)
OF SECTION ELEVEN HUNDRED ONE OF THIS ARTICLE, AN AIRCRAFT PURCHASED FOR
USE EXCLUSIVELY IN PROVIDING EMERGENCY MEDICAL SERVICES, OR A DEMONSTRA-
TOR AIRCRAFT.
(4) JEWELRY. ALL ARTICLES COMMONLY OR COMMERCIALLY KNOWN AS JEWELRY,
WHETHER REAL OR IMITATION, INCLUDING BUT NOT LIMITED TO RINGS, EARRINGS,
NECKLACES, BRACELETS AND WATCHES, AND ALSO INCLUDING LOOSE PEARLS AND
PRECIOUS AND SEMI-PRECIOUS STONES.
(5) FUR CLOTHING AND FOOTWEAR. CLOTHING AND FOOTWEAR MADE, IN WHOLE OR
IN PART, OF ANY ANIMAL SKIN OR PART THEREOF WITH HAIR, FLEECE, OR FUR
FIBERS ATTACHED THERETO, IN EITHER ITS RAW OR PROCESSED STATE, BUT NOT
INCLUDING SKINS THAT ARE CONVERTED INTO LEATHER OR THAT IN PROCESSING
HAVE HAD THE HAIR, FLEECE, OR FUR FIBER COMPLETELY REMOVED.
(B) IMPOSITION OF ADDITIONAL TAXES. NOTWITHSTANDING ANY OTHER LAW TO
THE CONTRARY, IN ADDITION TO THE SALES AND COMPENSATING USE TAXES
IMPOSED BY SUBDIVISION (A) OF SECTION ELEVEN HUNDRED FIVE AND SUBDIVI-
SION (A) OF SECTION ELEVEN HUNDRED TEN OF THIS PART, THERE ARE HEREBY
IMPOSED AND THERE SHALL BE PAID ADDITIONAL SALES AND COMPENSATING USE
TAXES, AT THE RATE OF FIVE PERCENT, ON THE RETAIL SALE OR USE WITHIN THE
STATE OF THE FOLLOWING:
(1) A PASSENGER MOTOR VEHICLE TO THE EXTENT THAT THE SALE PRICE
EXCEEDS SIXTY THOUSAND DOLLARS;
S. 60--A 196 A. 160--A
(2) A VESSEL TO THE EXTENT THAT THE SALE PRICE EXCEEDS TWO HUNDRED
THOUSAND DOLLARS;
(3) AN AIRCRAFT TO THE EXTENT THAT THE SALE PRICE EXCEEDS FIVE HUNDRED
THOUSAND DOLLARS;
(4) JEWELRY OR FUR CLOTHING AND FOOTWEAR TO THE EXTENT THAT THE SALE
PRICE PER ITEM OF JEWELRY OR FUR CLOTHING AND FOOTWEAR EXCEEDS TWENTY
THOUSAND DOLLARS. AN ITEM THAT IS ORDINARILY SOLD AS A PAIR, SUCH AS
EARRINGS OR GLOVES, ARE CONSIDERED TO BE ONE ITEM FOR PURPOSES OF THIS
SECTION.
(C) SPECIAL RULES FOR COMPUTING RECEIPTS AND CONSIDERATION. NOTWITH-
STANDING ANY CONTRARY PROVISION OF THIS ARTICLE OR OTHER LAW, FOR
PURPOSES OF THIS SECTION:
(1) SALE PRICE HAS THE SAME DEFINITION AS RECEIPT, BUT WITHOUT ANY
DEDUCTION FOR TANGIBLE PERSONAL PROPERTY ACCEPTED IN PART PAYMENT AND
INTENDED FOR RESALE. SALE PRICE ALSO INCLUDES THE PRICE OF ANY PROPERTY
INSTALLED ON A PASSENGER MOTOR VEHICLE, VESSEL, OR AIRCRAFT BY THE
VENDOR OF THAT VEHICLE, VESSEL OR AIRCRAFT WITHIN SIX MONTHS OF THE SALE
OF THE VEHICLE, VESSEL OR AIRCRAFT, PLUS ANY CHARGE FOR INSTALLING THAT
PROPERTY, BUT DOES NOT INCLUDE THE SALE PRICE OF ANY PROPERTY INSTALLED
ON A PASSENGER MOTOR VEHICLE TO MAKE IT ADAPTABLE FOR USE BY A PERSON
WITH A DISABILITY, OR THE REPLACEMENT OF DAMAGED, DEFECTIVE, OR MALFUNC-
TIONING PROPERTY, OR ANY CHARGE FOR INSTALLING THAT PROPERTY.
(2) WITH RESPECT TO ANY LEASE OF A PASSENGER MOTOR VEHICLE, VESSEL, OR
AIRCRAFT FOR A TERM OF ONE YEAR OR MORE, SALE PRICE MEANS THE MANUFAC-
TURER'S SUGGESTED RETAIL PRICE FOR THAT VEHICLE, VESSEL, OR AIRCRAFT,
WITHOUT ANY DEDUCTION FOR TANGIBLE PERSONAL PROPERTY ACCEPTED IN PART
PAYMENT AND INTENDED FOR RESALE. THE TAX DUE UNDER THIS SECTION MUST BE
COLLECTED AT THE TIME THE FIRST PAYMENT IS MADE UNDER THE LEASE, OPTION
TO RENEW, OR SIMILAR PROVISION OR COMBINATION OF THEM, OR AS OF THE DATE
OF REGISTRATION WITH THE COMMISSIONER OF MOTOR VEHICLES, WHICHEVER IS
EARLIER.
(D) INCORPORATION OF OTHER PROVISIONS OF THIS ARTICLE. EXCEPT AS
OTHERWISE PROVIDED IN THIS SECTION, THE TAXES IMPOSED BY THIS SECTION
WILL BE IDENTICAL TO, AND ADMINISTERED AND COLLECTED IN A LIKE MANNER
AS, THE TAXES IMPOSED BY SECTIONS ELEVEN HUNDRED FIVE AND ELEVEN HUNDRED
TEN OF THIS PART. ALL THE PROVISIONS OF THIS ARTICLE, INCLUDING THE
DEFINITION AND EXEMPTION PROVISIONS AND THE PROVISIONS RELATING OR
APPLICABLE TO THE ADMINISTRATION, COLLECTION, AND DISPOSITION OF THE
TAXES IMPOSED BY THOSE SECTIONS WILL APPLY TO THE TAX IMPOSED BY THIS
SECTION SO FAR AS THOSE PROVISIONS CAN BE MADE APPLICABLE TO THE TAX
IMPOSED BY THIS SECTION, WITH SUCH MODIFICATIONS AS MAY BE NECESSARY IN
ORDER TO ADAPT THE LANGUAGE OF THOSE PROVISIONS TO THE TAX IMPOSED BY
THIS SECTION. THOSE PROVISIONS WILL APPLY WITH THE SAME FORCE AND EFFECT
AS IF THE LANGUAGE OF THOSE PROVISIONS HAD BEEN SET FORTH IN FULL IN
THIS SECTION, EXCEPT TO THE EXTENT THAT ANY OF THOSE PROVISIONS ARE
EITHER INCONSISTENT WITH A PROVISION OF THIS SECTION OR ARE NOT RELEVANT
TO THE TAX IMPOSED BY THIS SECTION. FOR PURPOSES OF THIS SECTION, ANY
REFERENCE TO RECEIPT OR CONSIDERATION WILL BE READ AS SALE PRICE AS
DEFINED BY THIS SECTION AND ANY REFERENCE IN THIS CHAPTER TO A TAX OR
THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED FIVE OR ELEVEN HUNDRED TEN
OF THIS PART WILL BE DEEMED ALSO TO REFER TO THE TAX IMPOSED BY THIS
SECTION UNLESS A DIFFERENT MEANING IS CLEARLY REQUIRED. NOTWITHSTANDING
THE FOREGOING, THE EXEMPTION PROVIDED BY SUBDIVISION (Z) OF SECTION
ELEVEN HUNDRED FIFTEEN OF THIS ARTICLE SHALL NOT APPLY TO THE TAX
IMPOSED BY THIS SECTION.
S. 60--A 197 A. 160--A
(E) SEPARATE STATEMENT OF TAX. EVERY PERSON REQUIRED TO COLLECT THE
TAX IMPOSED BY THIS SECTION SHALL STATE, CHARGE, AND SHOW THAT TAX SEPA-
RATELY FROM THE PRICE OR CHARGE, AND ALSO SEPARATELY FROM ANY OTHER TAX
IMPOSED BY THIS ARTICLE OR OTHER LAW ON ANY SALES SLIP, INVOICE,
RECEIPT, OR OTHER STATEMENT OR MEMORANDUM OF THE PRICE OR CHARGE, PAID
OR PAYABLE, GIVEN TO THE CUSTOMER.
(F) VENDOR COLLECTION CREDIT NOT TO INCLUDE TAX IMPOSED BY THIS
SECTION. THE TAXES IMPOSED BY, AND COLLECTED OR PAID OVER UNDER, THIS
SECTION SHALL NOT BE INCLUDED OR CONSIDERED IN COMPUTING THE CREDIT
ALLOWED BY SUBDIVISION (F) OF SECTION ELEVEN HUNDRED THIRTY-SEVEN OF
THIS ARTICLE.
(G) TAXES TO BE IN ADDITION TO ANY OTHER. THE TAXES IMPOSED BY THIS
SECTION SHALL BE IN ADDITION TO ANY OTHER TAX IMPOSED OR AUTHORIZED TO
BE IMPOSED BY THIS CHAPTER OR OTHER LAW.
(H) TAXES NOT TO APPLY TO OTHER IMPOSITIONS. THE TAXES IMPOSED BY THIS
SECTION SHALL NOT APPLY TO THE TAXES IMPOSED BY SECTION ELEVEN HUNDRED
SEVEN, ELEVEN HUNDRED EIGHT, OR ELEVEN HUNDRED NINE OF THIS PART OR TO
TAXES AUTHORIZED TO BE IMPOSED BY ARTICLE TWENTY-NINE OF THIS CHAPTER.
S 2. This act shall take effect June 1, 2009, and shall apply to sales
made or uses occurring on or after such date in accordance with applica-
ble transitional provisions in section 1106 of the tax law.
PART SS
Section 1. This act enacts into law major components of legislation
which are necessary to implement the state fiscal plan for the 2009-2010
state fiscal year. Each component is wholly contained within a Subpart
identified as Subparts A through P. The effective date for each partic-
ular provision contained within such Subpart is set forth in the last
section of such Subpart. Any provision in any section contained within a
Subpart, including the effective date of the Subpart, which makes a
reference to a section "of this act", when used in connection with that
particular component, shall be deemed to mean and refer to the corre-
sponding section of the Subpart in which it is found. Section three of
this Part sets forth the general effective date of this Part.
SUBPART A
Section 1. The tax law is amended by adding a new section 1703 to read
as follows:
S 1703. INFORMATION RETURN RELATING TO DEPOSITS AND BANK SETTLEMENTS.
1. DEFINITIONS. FOR PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
(A) "ACCOUNT" MEANS ANY ACCOUNT WITH A BANK AND INCLUDES, WITHOUT
LIMITATION, A CHECKING, TIME, INTEREST, SAVINGS, OR BROKERAGE ACCOUNT.
(B) "BANK" MEANS A FINANCIAL INSTITUTION AS DEFINED IN PARAGRAPH (C)
OF SUBDIVISION ONE OF SECTION SEVENTEEN HUNDRED ONE OF THIS ARTICLE.
(C) "CASH" MEANS CURRENCY AUTHORIZED OR ADOPTED AS A MEDIUM OF
EXCHANGE BY A DOMESTIC OR FOREIGN GOVERNMENT.
(D) "CHECK" MEANS A NEGOTIABLE INSTRUMENT DRAWN ON A BANK AND PAYABLE
ON DEMAND.
(E) "REPORTABLE SETTLEMENT" MEANS A FINAL PAYMENT DEPOSITED INTO AN
ACCOUNT HOLDER'S ACCOUNT, BY ANY BANK, ASSOCIATION OF BANKS, OR OTHER
PAYORS REGULARLY CLEARING ITEMS, AS PAYMENT FOR TRANSACTIONS IN WHICH
THE ACCOUNT HOLDER ACCEPTED SOMETHING OTHER THAN A CHECK OR CASH AS
PAYMENT FOR GOODS SOLD OR SERVICES PROVIDED.
S. 60--A 198 A. 160--A
2. THE DEPARTMENT SHALL SUPPLY EACH BANK WITH A LIST OF ALL REGIS-
TERED SALES TAX VENDORS BY DECEMBER THIRTY-FIRST OF EACH YEAR. EACH BANK
SHALL MAKE AN INFORMATION RETURN FOR EACH CALENDAR YEAR SETTING FORTH:
(A) THE NAME, ADDRESS, AND TAXPAYER IDENTIFICATION NUMBER OF EACH
ACCOUNT HOLDER WHICH IS A REGISTERED SALES TAX VENDOR BASED ON THE LIST
SUPPLIED BY THE DEPARTMENT FOR THAT CALENDAR YEAR; (B) THE GROSS AMOUNT
OF THAT ACCOUNT HOLDER'S REPORTABLE SETTLEMENTS DURING THE CALENDAR
YEAR; AND (C) THE GROSS AMOUNTS, DESIGNATED AS SUCH, OF EACH OF THE
FOLLOWING: CASH, CHECKS AND OTHER FUNDS DEPOSITED INTO THAT ACCOUNT
HOLDER'S ACCOUNT DURING THE CALENDAR YEAR. THAT INFORMATION RETURN SHALL
BE FILED ELECTRONICALLY WITH THE DEPARTMENT ON OR BEFORE JANUARY THIR-
TY-FIRST OF THE FOLLOWING YEAR.
3. (A) ANY BANK FAILING TO FILE AN INFORMATION RETURN REQUIRED BY
SUBDIVISION TWO OF THIS SECTION WITHIN THE TIME PRESCRIBED OR FAILING TO
INCLUDE CORRECT INFORMATION IN THAT RETURN SHALL, IN ADDITION TO ANY
OTHER PENALTY PROVIDED IN THIS CHAPTER OR OTHERWISE IMPOSED BY LAW, BE
SUBJECT TO A PENALTY OF FIFTY DOLLARS FOR EACH FAILURE, BUT THE TOTAL
AMOUNT IMPOSED ON ANY SUCH BANK FOR SUCH FAILURES DURING ANY CALENDAR
YEAR SHALL NOT EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS.
(B) THE COMMISSIONER MAY WAIVE ALL OR ANY PORTION OF ANY PENALTY
IMPOSED BY THIS SUBDIVISION WITH RESPECT TO ANY VIOLATION IF: (I) THE
COMMISSIONER DETERMINES THAT FAILURE TO PROVIDE INFORMATION OR TO
INCLUDE TRUE AND CORRECT INFORMATION IN A RETURN REQUIRED TO BE FILED,
OR TO TIMELY FILE A RETURN, WAS DUE TO REASONABLE CAUSE AND NOT DUE TO
WILLFUL NEGLECT; OR (II) RESCINDING THE PENALTY WOULD PROMOTE COMPLIANCE
WITH THE REQUIREMENTS OF THIS CHAPTER AND EFFECTIVE TAX ADMINISTRATION.
S 2. This act shall take effect immediately; provided however that
information returns required to be filed by January 31, 2010 shall
include information regarding reportable settlements and deposits that
were made on and after January 1, 2009.
SUBPART B
Section 1. Section 1142 of the tax law is amended by adding a new
subdivision 6-a to read as follows:
6-A. (A) TO USE GENERALLY ACCEPTED STATISTICAL SAMPLING TECHNIQUES TO
DETERMINE THE AMOUNT OF TAX DUE UNDER THIS ARTICLE. ANY SUCH DETERMI-
NATION WILL NOT BE DEEMED TO BE AN ESTIMATE BASED ON AN EXTERNAL INDEX
AND WILL NOT BE PRECLUDED BY ANY PROVISION OF SECTION ELEVEN HUNDRED
THIRTY-EIGHT OF THIS PART OR ANY OTHER LAW. THE COMMISSIONER IS NOT
AUTHORIZED UNDER THIS SUBDIVISION TO USE THESE SAMPLING TECHNIQUES TO
DETERMINE TAX DUE IN THE CASE OF A PERSON WHOSE "GROSS RECEIPTS OR
SALES", AS THAT TERM IS USED FOR FEDERAL INCOME TAX REPORTING PURPOSES,
ARE LESS THAN ONE MILLION DOLLARS IN EACH OF THE THREE TAXABLE YEARS FOR
FEDERAL INCOME TAX PURPOSES IMMEDIATELY PRECEDING THE CALENDAR YEAR IN
WHICH THE AUDIT IS COMMENCED, OR, IF THAT INFORMATION IS NOT AVAILABLE
FOR THOSE YEARS, IN THE THREE MOST RECENT OF THOSE YEARS (OR A LESSER
NUMBER OF YEARS IF ONLY THE LESSER NUMBER OF YEARS IS AVAILABLE) FOR
WHICH THAT INFORMATION IS AVAILABLE, UNLESS THE PERSON CONSENTS IN WRIT-
ING THAT THE COMMISSIONER MAY USE THESE TECHNIQUES TO DETERMINE TAX.
(B) THE TECHNIQUES TO DETERMINE TAX AUTHORIZED BY THIS SUBDIVISION
WILL BE IN ADDITION TO OTHER METHODS AUTHORIZED BY LAW, AND NOTHING IN
THIS SUBDIVISION MAY BE CONSTRUED TO LIMIT THE USE OF THOSE OTHER METH-
ODS. NOR MAY ANYTHING IN THIS SUBDIVISION OR OTHER PROVISION OF LAW BE
CONSTRUED TO LIMIT THE COMMISSIONER'S AUTHORITY AND POWER TO USE GENER-
ALLY ACCEPTED STATISTICAL SAMPLING TECHNIQUES TO EXAMINE RECORDS
S. 60--A 199 A. 160--A
REQUIRED TO BE KEPT BY THIS ARTICLE AND RETURNS AND REPORTS REQUIRED TO
BE FILED OR SUBMITTED BY THIS ARTICLE. NO SUCH EXAMINATION BY STATIS-
TICAL SAMPLING TECHNIQUES OR THE RESULTS THEREOF WILL BE DEEMED TO BE AN
ESTIMATE BASED ON AN EXTERNAL INDEX OR PRECLUDED BY ANY PROVISION OF
SECTION ELEVEN HUNDRED THIRTY-EIGHT OF THIS PART OR OTHER LAW.
S 2. This act shall take effect immediately; provided, however, that
the provisions of this act shall, with respect to the determination of
tax due under article 28 of the tax law or under or pursuant to the
authority of other provisions of the tax law which incorporate or make
reference to such article 28, apply to any tax due that has not been
assessed on the date this act becomes a law.
SUBPART C
Section 1. Section 1135 of the tax law is amended by adding a new
subdivision (h) to read as follows:
(H) NOTWITHSTANDING THE PROVISIONS OF SECTION THREE HUNDRED FIVE AND
THREE HUNDRED NINE OF THE STATE TECHNOLOGY LAW OR ANY OTHER LAW, THE
COMMISSIONER MAY REQUIRE ANY PERSON WHO HAS ELECTED TO MAINTAIN IN AN
ELECTRONIC FORMAT ANY PORTION OF THE RECORDS REQUIRED TO BE MAINTAINED
BY THAT PERSON UNDER THIS ARTICLE, TO MAKE THE ELECTRONIC RECORDS AVAIL-
ABLE AND ACCESSIBLE TO THE COMMISSIONER, NOTWITHSTANDING THAT THE
RECORDS ARE ALSO MAINTAINED IN A HARD COPY FORMAT.
S 2. Section 1145 of the tax law is amended by adding a new subdivi-
sion (i) to read as follows:
(I) ANY PERSON REQUIRED TO MAKE OR MAINTAIN RECORDS UNDER THIS ARTICLE
(BUT NOT INCLUDING THE RECORDS REQUIRED UNDER SECTION ELEVEN HUNDRED
FORTY-TWO-A OF THIS PART) WHO FAILS TO MAKE OR MAINTAIN OR MAKE AVAIL-
ABLE TO THE COMMISSIONER THESE RECORDS IS SUBJECT TO A PENALTY OF ONE
THOUSAND DOLLARS FOR THE FIRST QUARTER OR PART THEREOF FOR WHICH THE
FAILURE OCCURS AND FIVE THOUSAND DOLLARS FOR EACH ADDITIONAL QUARTERLY
PERIOD OR PART THEREOF FOR WHICH THE FAILURE OCCURS. THIS PENALTY IS IN
ADDITION TO ANY OTHER PENALTY PROVIDED FOR IN THIS ARTICLE BUT MAY NOT
BE IMPOSED AND COLLECTED MORE THAN ONCE FOR FAILURES FOR THE SAME QUAR-
TERLY PERIOD OR PART THEREOF. IF THE COMMISSIONER DETERMINES THAT A
FAILURE TO MAKE OR MAINTAIN OR MAKE AVAILABLE RECORDS IN ANY QUARTER WAS
ENTIRELY DUE TO REASONABLE CAUSE AND NOT TO WILLFUL NEGLECT, THE COMMIS-
SIONER MUST REMIT THE PENALTY IMPOSED FOR THAT QUARTER. THESE PENALTIES
WILL BE PAID AND DISPOSED OF IN THE SAME MANNER AS OTHER REVENUES FROM
THIS ARTICLE. THESE PENALTIES WILL BE DETERMINED, ASSESSED, COLLECTED,
PAID AND ENFORCED IN THE SAME MANNER AS THE TAX IMPOSED BY THIS ARTICLE,
AND ALL THE PROVISIONS OF THIS ARTICLE RELATING TO TAX WILL BE DEEMED
ALSO TO APPLY TO THE PENALTIES IMPOSED BY THIS SUBDIVISION. FOR PURPOSES
OF THE PENALTY IMPOSED BY THIS SUBDIVISION, A PERSON WILL BE CONSIDERED
TO HAVE FAILED TO MAKE OR MAINTAIN THE REQUIRED RECORDS WHEN THE RECORDS
MADE OR MAINTAINED BY THAT PERSON FOR A QUARTERLY PERIOD MAKE IT VIRTU-
ALLY IMPOSSIBLE TO VERIFY SALES RECEIPTS OR THE TAXABILITY OF THOSE
RECEIPTS AND TO CONDUCT A COMPLETE AUDIT.
S 3. Section 1145 of the tax law is amended by adding a new subdivi-
sion (j) to read as follows:
(J) ANY PERSON REQUIRED TO MAKE OR MAINTAIN RECORDS UNDER THIS ARTICLE
WHO FAILS TO PRESENT AND MAKE AVAILABLE THESE RECORDS IN AN AUDITABLE
FORM IS SUBJECT TO A PENALTY OF ONE THOUSAND DOLLARS FOR EACH QUARTERLY
PERIOD OR PART THEREOF FOR WHICH RECORDS MAINTAINED BY THAT PERSON ARE
NOT PRESENTED AND MADE AVAILABLE BY THAT PERSON IN AUDITABLE FORM, EVEN
IF THESE RECORDS ARE ADEQUATE TO VERIFY CREDITS, RECEIPTS, AND THE TAXA-
S. 60--A 200 A. 160--A
BILITY THEREOF AND TO PERFORM A COMPLETE AUDIT. THIS PENALTY IS IN ADDI-
TION TO ANY OTHER PENALTY PROVIDED FOR IN THIS ARTICLE, BUT WILL NOT BE
IMPOSED AND COLLECTED MORE THAN ONCE FOR THESE FAILURES FOR THE SAME
QUARTERLY PERIOD OR PART THEREOF. IF THE COMMISSIONER DETERMINES THAT
ANY FAILURE DESCRIBED IN THIS SUBDIVISION FOR A QUARTERLY PERIOD WAS
ENTIRELY DUE TO REASONABLE CAUSE AND NOT TO WILLFUL NEGLECT, THE COMMIS-
SIONER MUST REMIT THE PENALTY IMPOSED FOR THAT QUARTER. THE PENALTIES
IMPOSED BY THIS SUBDIVISION WILL BE PAID AND DISPOSED OF IN THE SAME
MANNER AS OTHER REVENUES FROM THIS ARTICLE. THESE PENALTIES WILL BE
DETERMINED, ASSESSED, COLLECTED, PAID AND ENFORCED IN THE SAME MANNER AS
THE TAX IMPOSED BY THIS ARTICLE, AND ALL THE PROVISIONS OF THIS ARTICLE
RELATING TO TAX WILL BE DEEMED ALSO TO APPLY TO THE PENALTIES IMPOSED BY
THIS SUBDIVISION. FOR PURPOSES OF THE PENALTY IMPOSED BY THIS SUBDIVI-
SION, A PERSON WILL BE CONSIDERED TO HAVE FAILED TO PRESENT AND MAKE
RECORDS AVAILABLE IN AUDITABLE FORM WHEN THE RECORDS PRESENTED BY THAT
PERSON FOR THAT QUARTER LACK SUFFICIENT ORGANIZATION, SUCH AS BY DATE,
INVOICE NUMBER, SALES RECEIPTS, OR SEQUENTIAL NUMBERING, OR ARE OTHER-
WISE INADEQUATE (WITHOUT REORGANIZING, REORDERING OR OTHERWISE REARRANG-
ING THE RECORDS INTO AN AUDITABLE FORM) TO PERMIT DIRECT RECONCILIATION
OF THE RECEIPTS, INVOICES OR OTHER SOURCE DOCUMENTS WITH THE ENTRIES FOR
THE QUARTERLY PERIOD IN THE BOOKS AND RECORDS AND ON THE RETURNS OF THAT
PERSON.
S 4. Section 1145 of the tax law is amended by adding a new subdivi-
sion (k) to read as follows:
(K) ANY PERSON WHO, HAVING ELECTED TO MAINTAIN IN AN ELECTRONIC FORMAT
ANY PORTION OR ALL OF THE RECORDS HE OR SHE IS REQUIRED TO MAKE AND
MAINTAIN BY THIS ARTICLE, FAILS TO PRESENT AND MAKE THESE RECORDS AVAIL-
ABLE AND ACCESSIBLE TO THE COMMISSIONER IN ELECTRONIC FORMAT, IS SUBJECT
TO A PENALTY OF FIVE THOUSAND DOLLARS FOR EACH QUARTERLY PERIOD OR PART
THEREOF FOR WHICH THESE ELECTRONIC RECORDS ARE NOT PRESENTED AND MADE
AVAILABLE AND ACCESSIBLE UPON REQUEST, NOTWITHSTANDING THAT THE RECORDS
MAY ALSO BE MAINTAINED AND AVAILABLE IN HARD COPY FORMAT. THIS PENALTY
IS IN ADDITION TO ANY OTHER PENALTY PROVIDED FOR IN THIS ARTICLE, BUT
MAY NOT BE IMPOSED AND COLLECTED MORE THAN ONCE FOR A FAILURE FOR THE
SAME QUARTERLY PERIOD OR PART THEREOF. PROVIDED, HOWEVER, NOTHING IN
THIS SUBDIVISION WILL PREVENT THE SEPARATE IMPOSITION, IF APPLICABLE, OF
ANY PENALTY IMPOSED BY SUBDIVISION (I) OR (J) OF THIS SECTION FOR THE
SAME QUARTERLY PERIOD OR PART THEREOF. IF THE COMMISSIONER DETERMINES
THAT THE FAILURE TO PRESENT AND MAKE ELECTRONICALLY MAINTAINED RECORDS
AVAILABLE AND ACCESSIBLE FOR A QUARTERLY PERIOD WAS ENTIRELY DUE TO
REASONABLE CAUSE AND NOT TO WILLFUL NEGLECT, THE COMMISSIONER MUST REMIT
THE PENALTY IMPOSED FOR THAT QUARTER. THESE PENALTIES WILL BE PAID AND
DISPOSED OF IN THE SAME MANNER AS OTHER REVENUES FROM THIS ARTICLE.
THESE PENALTIES WILL BE DETERMINED, ASSESSED, COLLECTED, PAID AND
ENFORCED IN THE SAME MANNER AS THE TAX IMPOSED BY THIS ARTICLE, AND ALL
THE PROVISION OF THIS ARTICLE RELATING TO TAX WILL BE DEEMED ALSO TO
APPLY TO THE PENALTY IMPOSED BY THIS SUBDIVISION. FOR PURPOSES OF THE
PENALTY IMPOSED BY THIS SUBDIVISION, A FAILURE TO PRESENT AND MAKE
AVAILABLE AND ACCESSIBLE A RECORD MAINTAINED IN ELECTRONIC FORMAT
INCLUDES NOT ONLY THE DENIAL OF ACCESS TO THE REQUESTED RECORDS THAT
WERE MAINTAINED ELECTRONICALLY, BUT ALSO THE FAILURE TO MAKE AVAILABLE
TO THE COMMISSIONER THE INFORMATION, KNOWLEDGE, OR MEANS NECESSARY TO
ACCESS AND OTHERWISE USE THE ELECTRONICALLY MAINTAINED RECORDS IN THE
INSPECTION AND EXAMINATION OF THESE RECORDS.
S 5. This act shall take effect immediately and apply to failures
occurring on and after such date, except that subdivision (i) of section
S. 60--A 201 A. 160--A
1145 of the tax law, as added by section two of this act, shall only
apply for records required to be made and maintained for sales tax quar-
terly periods commencing on or after such date.
SUBPART D
Section 1. Subsection (g) of section 685 of the tax law, as amended by
chapter 9 of the laws of 1976, is amended to read as follows:
(g) Willful failure to collect and pay over tax.-- Any person required
to collect, truthfully account for, and pay over the tax imposed by this
article who willfully fails to collect such tax or truthfully account
for and pay over such tax or willfully attempts in any manner to evade
or defeat the tax or the payment thereof, shall, in addition to other
penalties provided by law, be liable to a penalty equal to THE SUM OF
(I) the total amount of the tax evaded, or not collected, or not
accounted for and paid over, (II) THE INTEREST THAT HAS ACCRUED ON THE
TOTAL AMOUNT OF TAX EVADED ON THE DATE THIS PENALTY IS FIRST IMPOSED
UNTIL THIS PENALTY IS PAID WITH INTEREST THEREON, AND (III) THE ADDITION
TO TAX PROVIDED BY SUBSECTION (A) OF THIS SECTION. No addition to tax
under subsections (b) or (e) OF THIS SECTION shall be imposed for any
offense to which this subsection applies. The tax commission shall have
the power, in its discretion, to waive, reduce or compromise any penalty
under this subsection.
S 2. This act shall take effect immediately and shall apply to taxable
years beginning on or after January 1, 2009.
SUBPART E
Section 1. Paragraph (d) of subdivision 1 of section 289-b of the tax
law, as amended by chapter 61 of the laws of 1989, is amended to read as
follows:
(d) If the failure to pay any tax within the time required by or
pursuant to this article is due to fraud, in lieu of the penalties and
interest provided for in paragraphs (a) and (b) of this subdivision,
there shall be added to the tax (i) a penalty of [fifty per centum of]
THREE TIMES the amount of tax due, plus (ii) interest on such unpaid tax
at the underpayment rate set by the commissioner of taxation and finance
pursuant to subdivision twenty-sixth of section one hundred seventy-one
of this chapter for the period beginning on the last day prescribed by
this article for the payment of such tax (determined without regard to
any extension of time for paying) and ending on the day on which such
tax is paid[, plus (iii) for the period beginning on the last day
prescribed by this article for the payment of such tax (determined with-
out regard to any extension of time for paying) and ending on the day
the amount of tax due is finally determined or, if earlier, on the day
on which such tax is paid, an amount equal to fifty per centum of the
interest payable under subparagraph (ii) of this paragraph on that
portion of the unpaid tax which is attributable to fraud].
S 2. Subdivision 1 of section 289-b of the tax law is amended by
adding a new paragraph (e-1) to read as follows:
(E-1) IN ADDITION TO ANY OTHER PENALTIES THAT MAY BE IMPOSED BY LAW,
ANY OF THE FOLLOWING PENALTIES MAY BE IMPOSED.
(I) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN UNDER THIS
ARTICLE ON OR BEFORE THE PRESCRIBED DATE, MUST PAY A PENALTY OF FIFTEEN
HUNDRED DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF THREE THOUSAND
S. 60--A 202 A. 160--A
DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT SUCH
FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT.
(II) ANY PERSON WHO FAILS TO FILE AN INFORMATIONAL RETURN WITHIN SIXTY
DAYS OF THE DATE PRESCRIBED FOR FILING MUST PAY A PENALTY OF TWO THOU-
SAND DOLLARS FOR THE FIRST VIOLATION AND A PENALTY OF FOUR THOUSAND
DOLLARS FOR EACH SUBSEQUENT VIOLATION, UNLESS IT CAN BE SHOWN THAT SUCH
FAILURE IS DUE TO REASONABLE CAUSE AND NOT WILLFUL NEGLECT.
(III) ANY PERSON WHO FAILS TO FILE A COMPLETE INFORMATIONAL RETURN
MUST PAY A PENALTY OF FIFTEEN HUNDRED DOLLARS FOR THE FIRST VIOLATION
AND A PENALTY OF THREE THOUSAND DOLLARS FOR EACH SUBSEQUENT VIOLATION,
UNLESS IT CAN BE SHOWN THAT SUCH FAILURE IS DUE TO REASONABLE CAUSE AND
NOT WILLFUL NEGLECT.
(IV) IF ANY PERSON MAKES A STATEMENT ON AN INFORMATIONAL RETURN AND,
AS OF THE TIME OF THE STATEMENT, THERE WAS NO REASONABLE BASIS FOR THAT
STATEMENT, THAT PERSON MUST PAY A PENALTY OF TWO THOUSAND DOLLARS FOR
THE FIRST VIOLATION AND A PENALTY OF FOUR THOUSAND DOLLARS FOR EACH
SUBSEQUENT VIOLATION.
S 3. Paragraph (d) of subdivision 1 of section 433 of the tax law, as
amended by chapter 61 of the laws of 1989, is amended to read as
follows:
(d) If the failure to pay any tax within the time required by or
pursuant to this article is due to fraud, in lieu of the penalties and
interest provided for in paragraphs (a) and (b) of this subdivision,
there shall be added to the tax (i) a penalty of [fifty per centum of]
THREE TIMES the amount of tax due, plus (ii) interest on such unpaid tax
at the underpayment rate set by the commissioner of taxation and finance
pursuant to subdivision twenty-sixth of section one hundred seventy-one
of this chapter for the period beginning on the last day prescribed by
this article for the payment of such tax (determined without regard to
any extension of time for paying) and ending on the day on which such
tax is paid[, plus (iii) for the period beginning on the last day
prescribed by this article for the payment of such tax (determined with-
out regard to any extension of time for paying) and ending on the day
the amount of tax due is finally determined or, if earlier, on the day
on which such tax is paid, an amount equal to fifty per centum of the
interest payable under subparagraph (ii) of this paragraph on that
portion of the unpaid tax which is attributable to fraud].
S 4. Subparagraph (iv) of paragraph (a) of subdivision 1 of section
481 of the tax law, as amended by chapter 61 of the laws of 1989, is
amended to read as follows:
(iv) If the failure to pay any tax within the time required by or
pursuant to this article is due to fraud, in lieu of the penalties and
interest provided for in subparagraphs (i) and (ii) of this paragraph,
there shall be added to the tax (A) a penalty of [fifty per centum of]
THREE TIMES the amount of tax due, plus (B) interest on such unpaid tax
at the underpayment rate set by the commissioner of taxation and finance
pursuant to subdivision twenty-sixth of section one hundred seventy-one
of this chapter for the period beginning on the last day prescribed by
this article for the payment of such tax (determined without regard to
any extension of time for paying) and ending on the day on which such
tax is paid[, plus (C) for the period beginning on the last day
prescribed by this article for the payment of such tax (determined with-
out regard to any extension of time for paying) and ending on the day
the amount of tax due is finally determined or, if earlier, on the day
on which such tax is paid, an amount equal to fifty per centum of the
S. 60--A 203 A. 160--A
interest payable under clause (B) of this subparagraph on that portion
of the unpaid tax which is attributable to fraud].
S 5. Paragraph (d) of subdivision 1 of section 512 of the tax law, as
amended by chapter 61 of the laws of 1989, is amended to read as
follows:
(d) If the failure to pay any tax within the time required by or
pursuant to this article is due to fraud, in lieu of the penalties and
interest provided for in paragraphs (a) and (b) of this subdivision,
there shall be added to the tax (i) a penalty of [fifty per centum of]
THREE TIMES the amount of tax due, plus (ii) interest on such unpaid tax
at the underpayment rate set by the commissioner of taxation and finance
pursuant to subdivision twenty-sixth of section one hundred seventy-one
of this chapter for the period beginning on the last day prescribed by
this article for the payment of such tax (determined without regard to
any extension of time for paying) and ending on the day on which such
tax is paid[, plus (iii) for the period beginning on the last day
prescribed by this article for the payment of such tax (determined with-
out regard to any extension of time for paying) and ending on the day
the amount of tax due is finally determined or, if earlier, on the day
on which such tax is paid, an amount equal to fifty per centum of the
interest payable under subparagraph (ii) of this paragraph on that
portion of the unpaid tax which is attributable to fraud].
S 6. Subdivision (d) of section 527 of the tax law, as added by chap-
ter 170 of the laws of 1994, is amended to read as follows:
(d) Fraud. If the failure to pay any tax within the time required by
or pursuant to this article is due to fraud, in lieu of the penalties
provided for in subdivision (b) of this section, there shall be added to
the tax (1) a penalty of [fifty percent of] THREE TIMES the amount of
tax due[, plus (2) for the period beginning on the last day prescribed
by this article for the payment of such tax (determined without regard
to any extension of time for paying) and ending on the day the amount of
tax due is finally determined or, if earlier, on the day on which such
tax is paid, an interest penalty equal to fifty percent of the interest
payable under subdivision (a) of this section on that portion of the
unpaid tax which is attributable to fraud].
S 7. Paragraph 1 of subsection (e) of section 685 of the tax law, as
amended by chapter 65 of the laws of 1985, is amended to read as
follows:
(1) If any part of a deficiency is due to fraud, there shall be added
to the tax an amount equal to [fifty percent of] THREE TIMES the defi-
ciency.
S 8. Paragraph 2 of subsection (e) of section 685 of the tax law is
REPEALED and paragraphs 3 and 4 are renumbered paragraphs 2 and 3.
S 9. Subsection (q) of section 685 of the tax law, as added by chapter
65 of the laws of 1985, is amended to read as follows:
(q) Frivolous tax returns AND SPECIFIED FRIVOLOUS SUBMISSIONS.-- (1)
If any individual files what purports to be a return of any tax imposed
by this article but which does not contain information on which the
substantial correctness of the self-assessment may be judged, or
contains information that on its face indicates that the self-assessment
is substantially incorrect; and such conduct is due to a position which
is frivolous, INCLUDING A POSITION IDENTIFIED AS FRIVOLOUS UNDER PARA-
GRAPH THREE OF THIS SUBSECTION, or an intent [(which appears on the
purported return)] to delay or impede the administration of this arti-
cle, then such individual shall pay a penalty not exceeding five
S. 60--A 204 A. 160--A
[hundred] THOUSAND dollars. This penalty shall be in addition to any
other penalty provided by law.
(2) PENALTY FOR SPECIFIED FRIVOLOUS SUBMISSIONS. (A) ANY PERSON WHO
SUBMITS A SPECIFIED FRIVOLOUS SUBMISSION SHALL PAY A PENALTY OF FIVE
THOUSAND DOLLARS. THIS PENALTY SHALL BE IN ADDITION TO ANY OTHER PENALTY
PROVIDED BY LAW.
(B) THE TERM "SPECIFIED FRIVOLOUS SUBMISSION" MEANS A SPECIFIED
SUBMISSION IF ANY PORTION OF THAT SUBMISSION (I) IS BASED ON A POSITION
THAT THE COMMISSIONER HAS IDENTIFIED AS FRIVOLOUS UNDER PARAGRAPH THREE
OF THIS SUBDIVISION, OR (II) REFLECTS A DESIRE TO DELAY OR IMPEDE THE
ADMINISTRATION OF THIS CHAPTER.
(C) THE TERM "SPECIFIED SUBMISSION" MEANS A REQUEST FOR CONCILIATION
CONFERENCE, A PETITION TO THE DIVISION OF TAX APPEALS, AN APPLICATION
FOR AN INSTALLMENT PAYMENT AGREEMENT, OR AN OFFER IN COMPROMISE.
(D) IF THE COMMISSIONER PROVIDES AN INDIVIDUAL WITH NOTICE THAT A
SUBMISSION IS A SPECIFIED FRIVOLOUS SUBMISSION AND THAT PERSON WITHDRAWS
THE SUBMISSION WITHIN THIRTY DAYS AFTER SUCH NOTICE, THE PENALTY IMPOSED
UNDER THIS PARAGRAPH WILL NOT APPLY WITH RESPECT TO THAT SUBMISSION.
(3) LISTING OF FRIVOLOUS POSITIONS. THE COMMISSIONER WILL PRESCRIBE
(AND PERIODICALLY REVISE) A LIST OF POSITIONS THAT THE COMMISSIONER HAS
IDENTIFIED AS FRIVOLOUS FOR PURPOSES OF THIS SUBSECTION.
(4) REDUCTION OF PENALTY. THE COMMISSIONER MAY REDUCE THE AMOUNT OF
ANY PENALTY IMPOSED UNDER THIS SECTION IF THE COMMISSIONER DETERMINES
THAT SUCH A REDUCTION WOULD PROMOTE COMPLIANCE WITH AND ADMINISTRATION
OF THIS CHAPTER.
S 10. Section 685 of the tax law is amended by adding a new subsection
(cc) to read as follows:
(CC) FALSE OR FRAUDULENT DOCUMENT PENALTY. ANY TAXPAYER THAT SUBMITS A
FALSE OR FRAUDULENT DOCUMENT TO THE DEPARTMENT WILL BE SUBJECT TO A
PENALTY OF ONE HUNDRED DOLLARS PER DOCUMENT SUBMITTED, OR FIVE HUNDRED
DOLLARS PER TAX RETURN SUBMITTED. THIS PENALTY WILL BE IN ADDITION TO
ANY OTHER PENALTY OR ADDITION PROVIDED BY LAW.
S 11. Paragraph 1 of subsection (f) of section 1085 of the tax law, as
amended by chapter 65 of the laws of 1985, is amended to read as
follows:
(1) If any part of a deficiency is due to fraud, there shall be added
to the tax an amount equal to [fifty percent of] THREE TIMES the defi-
ciency.
S 12. Paragraph 2 of subsection (f) of section 1085 of the tax law is
REPEALED and paragraph 3 is renumbered paragraph 2.
S 13. Section 1085 of the tax law is amended by adding a new
subsection (u) to read as follows:
(U) FALSE OR FRAUDULENT DOCUMENT PENALTY. ANY TAXPAYER THAT SUBMITS A
FALSE OR FRAUDULENT DOCUMENT TO THE DEPARTMENT WILL BE SUBJECT TO A
PENALTY OF ONE HUNDRED DOLLARS PER DOCUMENT SUBMITTED, OR FIVE HUNDRED
DOLLARS PER TAX RETURN SUBMITTED. THIS PENALTY WILL BE IN ADDITION TO
ANY OTHER PENALTY OR ADDITION PROVIDED BY LAW.
S 14. Paragraph 2 of subdivision (a) of section 1145 of the tax law,
as amended by section 12 of part R of chapter 85 of the laws of 2002, is
amended to read as follows:
(2) If the failure to pay or pay over any tax to the commissioner
within the time required by this article is due to fraud, in lieu of the
penalties and interest provided for in subparagraphs (i) and (ii) of
paragraph one of this subdivision, there shall be added to the tax (i) a
penalty of [fifty percent of] THREE TIMES the amount of the tax due,
plus (ii) interest on such unpaid tax at the rate of fourteen percent
S. 60--A 205 A. 160--A
per annum or the underpayment rate of interest set by the commissioner
pursuant to section eleven hundred forty-two OF THIS PART, whichever is
greater, for the period beginning on the last day prescribed by this
article for the payment of such tax (determined without regard to any
extension of time for paying) and ending on the day on which such tax is
paid[, plus (iii) for the period beginning on the last day prescribed by
this article for the payment of such tax (determined without regard to
any extension of time for paying) and ending on the day the amount of
tax due is finally determined or, if earlier, on the day on which such
tax is paid, an amount equal to fifty percent of the interest payable
under subparagraph (ii) of this paragraph, on that portion of the unpaid
tax which is attributable to fraud].
S 15. Section 1145 of the tax law is amended by adding two new subdi-
visions (i) and (j) to read as follows:
(I) AIDING OR ASSISTING IN THE GIVING OF FRAUDULENT RETURNS, REPORTS,
STATEMENTS OR OTHER DOCUMENTS. ANY PERSON WHO, WITH THE INTENT THAT TAX
BE EVADED, FOR A FEE OR OTHER COMPENSATION OR AS AN INCIDENT TO THE
PERFORMANCE OF OTHER SERVICES FOR WHICH THAT PERSON RECEIVES COMPEN-
SATION, AIDS OR ASSISTS IN, OR PROCURES, COUNSELS, OR ADVISES THE PREPA-
RATION OR PRESENTATION UNDER THIS ARTICLE, OR IN CONNECTION WITH ANY
MATTER ARISING UNDER THIS ARTICLE, OF ANY RETURN, REPORT, DECLARATION,
STATEMENT OR OTHER DOCUMENT THAT IS FRAUDULENT OR FALSE AS TO ANY MATE-
RIAL MATTER, OR SUPPLIES ANY FALSE OR FRAUDULENT INFORMATION, WHETHER OR
NOT SUCH FALSITY OR FRAUD IS WITH THE KNOWLEDGE OR CONSENT OF THE PERSON
AUTHORIZED OR REQUIRED TO PRESENT THAT RETURN, REPORT, DECLARATION,
STATEMENT OR OTHER DOCUMENT, WILL PAY A PENALTY NOT EXCEEDING FIVE THOU-
SAND DOLLARS. THE DEFINITIONS IN SUBSECTION (L) OF SECTION TEN HUNDRED
EIGHTY-FIVE OF THIS CHAPTER APPLY FOR THE PURPOSES OF THIS PENALTY.
(J) FALSE OR FRAUDULENT DOCUMENT PENALTY. ANY TAXPAYER THAT SUBMITS A
FALSE OR FRAUDULENT DOCUMENT TO THE DEPARTMENT WILL BE SUBJECT TO A
PENALTY OF ONE HUNDRED DOLLARS PER DOCUMENT SUBMITTED, OR FIVE HUNDRED
DOLLARS PER TAX RETURN SUBMITTED. THIS PENALTY WILL BE IN ADDITION TO
ANY OTHER PENALTY PROVIDED BY LAW.
S 16. Subdivision (iii) of section 12 of part N of chapter 61 of the
laws of 2005 amending the tax law relating to certain transactions and
related information, as amended by section 1 of part DD-1 of chapter 57
of the laws of 2008, is amended to read as follows:
(iii) provided, further, that the provisions of this act, except
section five of this act, shall expire and be deemed repealed July 1,
2011. The commissioner of taxation and finance shall cause to be
prepared a written report on the tax shelter law. Notwithstanding any
other provision of law to the contrary, such report shall include, but
not be limited to, statistical information regarding the listed and
reportable transactions and avoidance transactions under this act. A
copy of such report shall be delivered to the governor, the temporary
president of the senate, and the speaker of the assembly no later than
April 1, 2007; provided, that, such expiration and repeal shall not
affect any requirement imposed pursuant to this act.
S 17. This act shall take effect immediately and apply to returns and
other documents filed or required to be filed and actions taken and
omissions occurring on or after the date this act becomes a law;
provided however, that sections seven through thirteen of this act shall
apply to taxable years beginning on or after January 1, 2009.
SUBPART F
S. 60--A 206 A. 160--A
Section 1. Paragraphs (b) and (e) of subdivision 3-a of section 170 of
the tax law, as added by chapter 282 of the laws of 1986, are amended to
read as follows:
(b) A request for a conciliation conference shall be applied for in
the manner as set forth by regulation of the commissioner and, notwith-
standing any provision of law to the contrary, shall suspend the running
of the period of limitations for the filing of a petition protesting
such notice and requesting a hearing, EXCEPT THAT THE RECIPIENT OF A
WRITTEN NOTICE DESCRIBED IN PARAGRAPH (H) OF THIS SUBDIVISION WILL HAVE
THIRTY DAYS FROM THE TIME SUCH REQUEST OF DISCONTINUANCE IS MADE TO
PETITION THE DIVISION OF TAX APPEALS FOR A HEARING. [To discontinue the
conciliation proceeding, the recipient of the notice shall make a
request in writing and such person shall have ninety days from the time
such request of discontinuance is made to petition the division of tax
appeals for a hearing.] The commissioner shall notify the division of
tax appeals when any person requests a conference or requests to discon-
tinue such conference.
(e) A conciliation order shall be rendered within thirty days after
the proceeding is concluded and such order shall, in the absence of a
showing of fraud, malfeasance or misrepresentation of a material fact,
be binding upon the department and the person who requested the confer-
ence, except such order shall not be binding on such person if such
person petitions for the hearing provided for under this chapter within
ninety days after the conciliation order is issued, OR, FOR A CONCIL-
IATION ORDER AFFIRMING A WRITTEN NOTICE DESCRIBED IN PARAGRAPH (H) OF
THIS SUBDIVISION, WITHIN THIRTY DAYS AFTER THE CONCILIATION ORDER IS
ISSUED, notwithstanding any other provision of law to the contrary.
S 2. Subdivision 3-a of section 170 the tax law is amended by adding a
new paragraph (h) to read as follows:
(H) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, ANY PERSON
WHO SEEKS REVIEW BY THE BUREAU OF CONCILIATION AND MEDIATION SERVICES OF
A WRITTEN NOTICE THAT ADVISES THAT PERSON OF (I) THE PROPOSED CANCELLA-
TION, REVOCATION, OR SUSPENSION OF A LICENSE, PERMIT, REGISTRATION, OR
OTHER CREDENTIAL ISSUED UNDER THE AUTHORITY OF THIS CHAPTER, (II) THE
DENIAL OF AN APPLICATION FOR A LICENSE, PERMIT, REGISTRATION, OR OTHER
CREDENTIAL ISSUED UNDER THE AUTHORITY OF THIS CHAPTER EXCLUDING AN
APPLICATION TO RENEW A CERTIFICATE OF AUTHORITY FILED PURSUANT TO PARA-
GRAPH FIVE OF SUBDIVISION (A) OF SECTION ONE THOUSAND ONE HUNDRED THIR-
TY-FOUR OF THIS CHAPTER AND ANY OTHER LAW, OR, (III) THE IMPOSITION OF A
FRAUD PENALTY UNDER THIS CHAPTER, MUST REQUEST A CONCILIATION CONFERENCE
WITHIN THIRTY DAYS OF RECEIPT OF THAT NOTICE.
S 3. Section 2008 of the tax law, as amended by chapter 401 of the
laws of 1987, is amended to read as follows:
S 2008. Commencement of proceedings. 1. All proceedings in the divi-
sion of tax appeals shall be commenced by the filing of a petition with
the division of tax appeals protesting any written notice of the divi-
sion of taxation which has advised the petitioner of a tax deficiency, a
determination of tax due, a denial of a refund or credit application, a
cancellation, revocation or suspension of a license, permit or registra-
tion, a denial of an application for a license, permit or registration
or any other notice which gives a person the right to a hearing in the
division of tax appeals under this chapter or other law.
2. EXPEDITED HEARINGS. (A) NOTWITHSTANDING ANY PROVISION LAW TO THE
CONTRARY, ANY PERSON WHO RECEIVES A WRITTEN NOTICE THAT ADVISES THAT
PERSON OF (I) THE PROPOSED CANCELLATION, REVOCATION, OR SUSPENSION OF A
LICENSE, PERMIT, REGISTRATION, OR OTHER CREDENTIAL ISSUED UNDER THE
S. 60--A 207 A. 160--A
AUTHORITY OF THIS CHAPTER, (II) THE DENIAL OF AN APPLICATION FOR A
LICENSE, PERMIT, REGISTRATION, OR OTHER CREDENTIAL ISSUED UNDER THE
AUTHORITY OF THIS CHAPTER EXCLUDING AN APPLICATION TO RENEW A CERTIF-
ICATE OF AUTHORITY FILED PURSUANT TO PARAGRAPH FIVE OF SUBDIVISION (A)
OF SECTION ONE THOUSAND ONE HUNDRED THIRTY-FOUR OF THIS CHAPTER AND ANY
OTHER LAW, OR, (III) THE IMPOSITION OF A FRAUD PENALTY UNDER THIS CHAP-
TER, MUST FILE A PETITION WITH THE DIVISION OF TAX APPEALS WITHIN THIRTY
DAYS OF RECEIPT OF THAT NOTICE (UNLESS THAT PERSON HAS REQUESTED A
CONCILIATION CONFERENCE AS PROVIDED IN SUBDIVISION THREE-A OF SECTION
ONE HUNDRED SEVENTY OF THIS CHAPTER), OR THE CANCELLATION, REVOCATION,
SUSPENSION, DENIAL, OR PENALTY WILL BE PERMANENTLY AND IRREVOCABLY
FIXED. AN EXPEDITED HEARING MUST BE SCHEDULED WITHIN TEN BUSINESS DAYS
OF RECEIPT OF THE PETITION.
(B) IN THE CASE OF ANY EXPEDITED HEARING PROVIDED FOR UNDER THIS
SUBDIVISION, THE ADMINISTRATIVE LAW JUDGE MUST RENDER A DECISION WITHIN
THIRTY DAYS FROM RECEIPT OF THE PETITION. WHEN EXCEPTION IS TAKEN TO AN
ADMINISTRATIVE LAW JUDGE'S DETERMINATION, THE TAX APPEALS TRIBUNAL MUST
ISSUE ITS DECISION WITHIN THREE MONTHS FROM RECEIPT OF THE PETITION. ANY
REQUEST BY THE PETITIONER THAT DELAYS THE EXPEDITED HEARING PROCESS WILL
EXTEND THE TIME LIMITATIONS IMPOSED ON THE TRIBUNAL OR THE ADMINISTRA-
TIVE LAW JUDGE TO ISSUE A DECISION OR DETERMINATION. THE TRIBUNAL OR
ADMINISTRATIVE LAW JUDGE MAY NOT APPROVE ANY POSTPONEMENT OR OTHER DELAY
WITHOUT A SHOWING OF EXIGENT CIRCUMSTANCES BY THE MOVING PARTY AND MUST
RENDER A DEFAULT DETERMINATION OR DECISION AGAINST THE DILATORY PARTY
FOR ANY UNWARRANTED DELAY.
(C) IN ANY CASE WHERE AN EXPEDITED HEARING IS REQUIRED UNDER THIS
SUBDIVISION, IF THE COMMISSIONER BELIEVES THAT THE COLLECTION OF ANY TAX
OR THE PUBLIC SAFETY WILL BE JEOPARDIZED BY DELAY, HE OR SHE MAY IMME-
DIATELY CANCEL, REVOKE, OR SUSPEND A LICENSE, PERMIT, REGISTRATION, OR
OTHER CREDENTIAL ISSUED UNDER THE AUTHORITY OF THIS CHAPTER BEFORE THE
COMMENCEMENT OF THOSE PROCEEDINGS. WRITTEN NOTICE OF THE CANCELLATION,
REVOCATION, OR SUSPENSION MUST BE GIVEN TO THE LICENSEE, PERMITTEE,
REGISTRANT, OR OTHERWISE CREDENTIALED PERSON BY REGISTERED OR CERTIFIED
MAIL OR PERSONAL SERVICE AS PROVIDED BY THE CIVIL PRACTICE LAW AND
RULES. THE LICENSE, PERMIT, REGISTRATION, OR OTHER CREDENTIAL WILL BE
PERMANENTLY AND IRREVOCABLY CANCELLED, REVOKED, OR SUSPENDED, UNLESS THE
LICENSEE, PERMITTEE, REGISTRANT, OR OTHERWISE CREDENTIALED PERSON, WITH-
IN THIRTY DAYS OF RECEIPT OF THE WRITTEN NOTICE, FILES A PETITION WITH
THE DIVISION OF TAX APPEALS TO REVIEW THE CANCELLATION, REVOCATION, OR
SUSPENSION. AN EXPEDITED HEARING MUST BE SCHEDULED WITHIN TEN BUSINESS
DAYS OF RECEIPT OF THE PETITION.
S 4. This act shall take effect immediately and shall apply to notices
issued on and after such date.
SUBPART G
Section 1. The tax law is amended by adding a new section 1702 to read
as follows:
S 1702. CLAIMS FOR AWARDS FOR INFORMATION RELATING TO NONCOMPLIANCE
WITH THE TAX LAW. 1. THE COMMISSIONER, PURSUANT TO STANDARDS SET FORTH
IN REGULATIONS, IS AUTHORIZED TO AWARD SUCH SUMS AS HE OR SHE DEEMS
APPROPRIATE, FOR INFORMATION REPORTED TO THE COMMISSIONER THAT LEADS TO
THE DETERMINATION OF SUBSTANTIAL UNDERPAYMENTS OF TAX OR LEADS TO THE
PROSECUTION AND CONVICTION OF PERSONS GUILTY OF VIOLATING, ATTEMPTING TO
VIOLATE, OR CONSPIRING TO VIOLATE PROVISIONS OF THIS CHAPTER OR THE
PENAL LAW THAT RELATE TO THE UNDERPAYMENT OF TAXES, THE FILING OF FALSE
S. 60--A 208 A. 160--A
OR FRAUDULENT TAX DOCUMENTS OR ANY REGISTRATION OR LICENSING REQUIREMENT
OF THIS CHAPTER. THE COMMISSIONER SHALL PROMULGATE REGULATIONS TO SPECI-
FY THE AWARD VALUES, INCLUDING MINIMUM AND MAXIMUM AWARD LEVELS. THE
PROCEDURES FOR PROVIDING INFORMATION AND CLAIMING AWARDS MAY BE SET
FORTH IN FORMS AND INSTRUCTIONS.
2. ALL AWARDS PAID PURSUANT TO THIS SECTION SHALL BE PAID, SUBJECT TO
THE AVAILABILITY OF APPROPRIATION AUTHORITY, FROM THE GENERAL FUND OF
THE STATE UPON CERTIFICATION BY THE COMMISSIONER.
3. THE AWARD DETERMINED BY THE COMMISSIONER TO BE PAYABLE UNDER THIS
SECTION SHALL BE EITHER A PRESCRIBED PERCENTAGE OF THE AMOUNT OF TAX
(BUT NOT PENALTY OR INTEREST) COLLECTED BY THE DEPARTMENT AS A RESULT OF
THE INFORMATION PROVIDED, OR A LUMP SUM AWARD. THE COMMISSIONER IS
AUTHORIZED TO PRESCRIBE BY REGULATION THE CIRCUMSTANCES WHEN A LUMP SUM
AWARD WOULD BE PAYABLE AND THE AMOUNTS. IN NO EVENT MAY A LUMP SUM
AWARD EXCEED ONE THOUSAND DOLLARS.
4. TO BE ELIGIBLE FOR AN AWARD OTHER THAN IN INSTANCES WHERE A LUMP
SUM AWARD IS AUTHORIZED, THE AMOUNT OF TAX EVADED OR UNPAID AS A RESULT
OF THE ACTIONS BEING REPORTED PURSUANT TO THIS SECTION MUST BE AT LEAST
FIVE THOUSAND DOLLARS IF THE TAX AT ISSUE IS THE PERSONAL INCOME TAX AND
THIRTY THOUSAND DOLLARS FOR ALL OTHER TAXES. A PERSON IS INELIGIBLE FOR
AN AWARD IF THAT PERSON HAS BEEN CONVICTED OF A CRIME RELATING TO THE
ACTIONS BEING REPORTED UNDER THIS SECTION, OR PARTICIPATED IN THAT CRIME
EVEN IF NOT CHARGED, OR IF THAT PERSON PLANNED AND INITIATED THE ACTIONS
THAT ARE BEING REPORTED PURSUANT TO THIS SECTION.
5. THE IDENTITY OF A CLAIMANT FOR AN AWARD MADE PURSUANT TO THE
PROVISIONS OF THIS SECTION CANNOT BE DISCLOSED. A CLAIM FOR AN AWARD MAY
BE SUBMITTED BY THE EXECUTOR, ADMINISTRATOR, OR OTHER LEGAL REPRESEN-
TATIVE ON BEHALF OF A DECEASED INFORMANT. AN EMPLOYEE OR OFFICER OF THE
DEPARTMENT, OR IMMEDIATE FAMILY MEMBER OF AN EMPLOYEE OR OFFICER OF THE
DEPARTMENT, IS NOT ELIGIBLE FOR ANY AWARD AVAILABLE PURSUANT TO THE
PROVISIONS OF THIS SECTION. IF, AT THE TIME A PERSON CAME INTO
POSSESSION OF INFORMATION OTHERWISE ELIGIBLE FOR AN AWARD, THAT PERSON
WAS AN EMPLOYEE OR OFFICER OF THE DEPARTMENT, OR AN IMMEDIATE FAMILY
MEMBER OF AN EMPLOYEE OR OFFICER OF THE DEPARTMENT, THAT INFORMATION IS
INELIGIBLE FOR AN AWARD.
S 2. This act shall take effect immediately.
SUBPART H
Section 1. Subparagraph (A) of paragraph (4) of subdivision (a) of
section 674 of the tax law, as amended by chapter 477 of the laws of
1998, is amended to read as follows:
(4)(A) All employers described in paragraph one of subsection (a) of
section six hundred seventy-one of this part, including those whose
wages paid are not sufficient to require the withholding of tax from the
wages of any of their employees, all employers required to provide the
wage reporting information for the employees described in subdivision
one of section one hundred seventy-one-a of this chapter, and all
employers liable for unemployment insurance contributions or for
payments in lieu of such contributions pursuant to article eighteen of
the labor law, shall file a quarterly combined withholding, wage report-
ing and unemployment insurance return detailing the preceding calendar
quarter's withholding tax transactions, such quarter's wage reporting
information, such quarter's unemployment insurance contributions, and
such other related information as the commissioner of taxation and
finance or the commissioner of labor, as applicable, may prescribe. In
S. 60--A 209 A. 160--A
addition, the return covering the last calendar quarter of each year
shall also include withholding reconciliation information for such
calendar year. Such returns shall be filed no later than the last day of
the month following the last day of each calendar quarter[; provided,
however, that an employer may provide the wage reporting information
covering the last calendar quarter of each year, and the withholding
reconciliation information for such year no later than February twenty-
eighth of the succeeding year].
S 2. This act shall take effect immediately.
SUBPART I
Section 1. The tax law is amended by adding a new section 179-a to
read as follows:
S 179-A. TAX LEVIES UPON A BRANCH OR SEPARATE OFFICE OF A BANK.
NOTWITHSTANDING SECTION 4-106 OF THE UNIFORM COMMERCIAL CODE, ANY OTHER
PROVISIONS OF ARTICLE THREE OR FOUR OF THE UNIFORM COMMERCIAL CODE, OR
ANY OTHER LAW OR RULING TO THE CONTRARY, A BRANCH OR SEPARATE OFFICE OF
A BANK IS NOT A SEPARATE BANK FOR THE PURPOSE OF THE RECEIPT OF NOTICE
OF AND COMPLIANCE WITH A TAX LEVY SERVED ON ANY BRANCH OR OFFICE OF THE
SAME BANK LOCATED WITHIN THE STATE.
S 2. This act shall take effect immediately.
SUBPART J
Section 1. Subdivision 4 of section 20.40 of the criminal procedure
law is amended by adding a new paragraph (m) to read as follows:
(M) AN OFFENSE UNDER THE TAX LAW OR THE PENAL LAW OF FILING A FALSE OR
FRAUDULENT RETURN, REPORT, DOCUMENT, DECLARATION, STATEMENT, OR FILING,
OR OF TAX EVASION, FRAUD, OR LARCENY RESULTING FROM THE FILING OF A
FALSE OR FRAUDULENT RETURN, REPORT, DOCUMENT, DECLARATION, OR FILING IN
CONNECTION WITH THE PAYMENT OF TAXES TO THE STATE OR A POLITICAL SUBDI-
VISION OF THE STATE, MAY BE PROSECUTED IN ANY COUNTY IN WHICH AN UNDER-
LYING TRANSACTION REFLECTED, REPORTED OR REQUIRED TO BE REFLECTED OR
REPORTED, IN WHOLE OR PART, ON SUCH RETURN, REPORT, DOCUMENT, DECLARA-
TION, STATEMENT, OR FILING OCCURRED.
S 2. Subdivision 1 of section 470.05 of the penal law, as added by
chapter 489 of the laws of 2000, is amended to read as follows:
1. Knowing that the property involved in one or more financial trans-
actions represents the proceeds of criminal conduct:
(a) he or she conducts one or more such financial transactions which
in fact involve the proceeds of specified criminal conduct:
(i) With intent to:
(A) promote the carrying on of criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of criminal conduct; or
(B) avoid any transaction reporting requirement imposed by law; and
(b) The total value of the property involved in such financial trans-
action or transactions exceeds five thousand dollars; or
S. 60--A 210 A. 160--A
S 3. Subdivision 1 of section 470.10 of the penal law, as added by
chapter 489 of the laws of 2000, is amended to read as follows:
1. Knowing that the property involved in one or more financial trans-
actions represents:
(a) the proceeds of the criminal sale of a controlled substance, he or
she conducts one or more such financial transactions which in fact
involve the proceeds of the criminal sale of a controlled substance:
(i) With intent to:
(A) promote the carrying on of specified criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of specified criminal conduct;
or
(B) avoid any transaction reporting requirement imposed by law; and
(iii) The total value of the property involved in such financial tran-
saction or transactions exceeds ten thousand dollars; or
(b) the proceeds of criminal conduct, he or she conducts one or more
such financial transactions which in fact involve the proceeds of speci-
fied criminal conduct:
(i) With intent to:
(A) promote the carrying on of criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of criminal conduct; or
(B) avoid any transaction reporting requirement imposed by law; and
(iii) The total value of the property involved in such financial tran-
saction or transactions exceeds fifty thousand dollars; or
S 4. Subdivision 1 of section 470.15 of the penal law, as added by
chapter 489 of the laws of 2000, is amended to read as follows:
1. Knowing that the property involved in one or more financial trans-
actions represents:
(a) the proceeds of the criminal sale of a controlled substance, he or
she conducts one or more such financial transactions which in fact
involve the proceeds of the criminal sale of a controlled substance:
(i) With intent to:
(A) promote the carrying on of specified criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of specified criminal conduct;
or
(B) avoid any transaction reporting requirement imposed by law; and
S. 60--A 211 A. 160--A
(iii) The total value of the property involved in such financial tran-
saction or transactions exceeds fifty thousand dollars; or
(b) the proceeds of specified criminal conduct, he or she conducts one
or more such financial transactions which in fact involve the proceeds
of specified criminal conduct:
(i) With intent to:
(A) promote the carrying on of specified criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of specified criminal conduct;
or
(B) avoid any transaction reporting requirement imposed by law; and
(iii) The total value of the property involved in such financial tran-
saction or transactions exceeds one hundred thousand dollars; or
S 5. Subdivision 1 of section 470.20 of the penal law, as added by
chapter 489 of the laws of 2000, is amended to read as follows:
1. Knowing that the property involved in one or more financial trans-
actions represents:
(a) the proceeds of the criminal sale of a controlled substance, he or
she conducts one or more such financial transactions which in fact
involve the proceeds of the criminal sale of a controlled substance:
(i) With intent to:
(A) promote the carrying on of specified criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of specified criminal conduct;
or
(B) avoid any transaction reporting requirement imposed by law; and
(iii) The total value of the property involved in such financial tran-
saction or transactions exceeds five hundred thousand dollars; or
(b) the proceeds of a class A, B or C felony, or of a crime in any
other jurisdiction that is or would be a class A, B or C felony under
the laws of this state, he or she conducts one or more such financial
transactions which in fact involve the proceeds of any such felony:
(i) With intent to:
(A) promote the carrying on of specified criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of specified criminal conduct;
or
(B) avoid any transaction reporting requirement imposed by law; and
S. 60--A 212 A. 160--A
(iii) The total value of the property involved in such financial tran-
saction or transactions exceeds one million dollars.
S 6. Subdivision 1 of section 470.21 of the penal law, as added by
section 18 of part A of chapter 1 of the laws of 2004, is amended to
read as follows:
1. Knowing that the property involved in one or more financial trans-
actions represents either the proceeds of an act of terrorism as defined
in subdivision one of section 490.05 of this part, or a monetary instru-
ment given, received or intended to be used to support a violation of
article four hundred ninety of this part:
(a) he or she conducts one or more such financial transactions which
in fact involve either the proceeds of an act of terrorism as defined in
subdivision one of section 490.05 of this part, or a monetary instrument
given, received or intended to be used to support a violation of article
four hundred ninety of this part:
(i) With intent to:
(A) promote the carrying on of criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of either the proceeds of an act of terrorism
as defined in subdivision one of section 490.05 of this part, or a mone-
tary instrument given, received or intended to be used to support a
violation of article four hundred ninety of this part; or
(B) avoid any transaction reporting requirement imposed by law; and
(b) the total value of the property involved in such financial trans-
action or transactions exceeds one thousand dollars; or
S 7. Subdivision 1 of section 470.22 of the penal law, as added by
section 18 of part A of chapter 1 of the laws of 2004, is amended to
read as follows:
1. Knowing that the property involved in one or more financial trans-
actions represents either the proceeds of an act of terrorism as defined
in subdivision one of section 490.05 of this part, or a monetary instru-
ment given, received or intended to be used to support a violation of
article four hundred ninety of this part:
(a) he or she conducts one or more such financial transactions which
in fact involve either the proceeds of an act of terrorism as defined in
subdivision one of section 490.05 of this part, or a monetary instrument
given, received or intended to be used to support a violation of article
four hundred ninety of this part:
(i) With intent to:
(A) promote the carrying on of specified criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of either the proceeds of an act of terrorism
as defined in subdivision one of section 490.05 of this part, or a mone-
S. 60--A 213 A. 160--A
tary instrument given, received or intended to be used to support a
violation of article four hundred ninety of this part; or
(B) avoid any transaction reporting requirement imposed by law; and
(b) the total value of the property involved in such financial trans-
action or transactions exceeds five thousand dollars; or
S 8. Subdivision 1 of section 470.23 of the penal law, as added by
section 18 of part A of chapter 1 of the laws of 2004, is amended to
read as follows:
1. Knowing that the property involved in one or more financial trans-
actions represents either the proceeds of an act of terrorism as defined
in subdivision one of section 490.05 of this part, or a monetary instru-
ment given, received or intended to be used to support a violation of
article four hundred ninety of this part:
(a) he or she conducts one or more such financial transactions which
in fact involve either the proceeds of an act of terrorism as defined in
subdivision one of section 490.05 of this part, or a monetary instrument
given, received or intended to be used to support a violation of article
four hundred ninety of this part:
(i) With intent to:
(A) promote the carrying on of specified criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of either the proceeds of an act of terrorism
as defined in subdivision one of section 490.05 of this part, or a mone-
tary instrument given, received or intended to be used to support a
violation of article four hundred ninety of this part; or
(B) avoid any transaction reporting requirement imposed by law; and
(b) the total value of the property involved in such financial trans-
action or transactions exceeds twenty-five thousand dollars; or
S 9. Subdivision 1 of section 470.24 of the penal law, as added by
section 18 of part A of chapter 1 of the laws of 2004, is amended to
read as follows:
1. Knowing that the property involved in one or more financial trans-
actions represents either the proceeds of an act of terrorism as defined
in subdivision one of section 490.05 of this part, or a monetary instru-
ment given, received or intended to be used to support a violation of
article four hundred ninety of this part:
(a) he or she conducts one or more financial transactions which in
fact involve either the proceeds of an act of terrorism as defined in
subdivision one of section 490.05 of this part, or a monetary instrument
given, received or intended to be used to support a violation of article
four hundred ninety of this part:
(i) With intent to:
(A) promote the carrying on of specified criminal conduct; or
(B) engage in conduct constituting a felony as set forth in section
[eighteen hundred two,] eighteen hundred three, eighteen hundred four,
eighteen hundred five, [eighteen hundred seven or eighteen hundred
eight] OR EIGHTEEN HUNDRED SIX of the tax law; or
(ii) Knowing that the transaction or transactions in whole or in part
are designed to:
S. 60--A 214 A. 160--A
(A) conceal or disguise the nature, the location, the source, the
ownership or the control of the proceeds of either the proceeds of an
act of terrorism as defined in subdivision one of section 490.05 of this
part, or a monetary instrument given, received or intended to be used to
support a violation of article four hundred ninety of this part; or
(B) avoid any transaction reporting requirement imposed by law; and
(iii) The total value of the property involved in such financial tran-
saction or transactions exceeds seventy-five thousand dollars.
S 10. Subdivision 5 of section 480-a of the tax law, as amended by
chapter 760 of the laws of 1992 and as renumbered by chapter 629 of the
laws of 1996, is amended to read as follows:
5. Except for subdivision [(k)] (I) of section eighteen hundred four-
teen of this chapter, the criminal penalties set forth in article thir-
ty-seven of this chapter shall not apply to a violation of this section.
S 11. Paragraph 7 of subdivision (m) of section 1111 of the tax law,
as added by section 1 of part M1 of chapter 109 of the laws of 2006, is
amended to read as follows:
(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 [(t)] (N) of section
eighteen hundred seventeen of this chapter, section three hundred nine-
ty-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 oper-
ation 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 certif-
icate 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.
S 12. Paragraph 5 of subdivision (f) of section 1137 of the tax law,
as added by chapter 170 of the laws of 1994, is amended to read as
follows:
(5) (i) Where a person takes a credit pursuant to this subdivision in
an amount greater than allowed or under circumstances where the credit
is not authorized, or (ii) where a person takes a credit pursuant to
this subdivision at the time of filing a return for a quarterly or long-
er period and such person later becomes subject to a penalty imposed
under subparagraph (vi) of paragraph one of subdivision (a) or under
paragraph two of subdivision (a) of section eleven hundred forty-five of
this [article] PART or is later found guilty of a crime or offense under
section EIGHTEEN HUNDRED THREE, EIGHTEEN HUNDRED FOUR, EIGHTEEN HUNDRED
S. 60--A 215 A. 160--A
FIVE, EIGHTEEN HUNDRED SIX, OR eighteen hundred seventeen of this chap-
ter, relating to the period for which the return was filed, the amount
of such credit taken in such greater amount, under such circumstances or
for such period shall be disallowed and the person shall be required to
pay, as tax, an amount equal to the credit so taken, at such time and in
such manner as prescribed by the commissioner; provided, however, that
such amount shall be paid and disposed of in the same manner as other
revenues from this article, and may be determined, assessed, collected
and enforced in the same manner as the tax imposed by this article.
S 13. Subdivision (c) of section 1800 of the tax law, as added by
chapter 65 of the laws of 1985, is amended to read as follows:
(c) As used in this article, the term "felony" and the term "misdemea-
nor" shall have the same meaning as they have in the penal law, and the
disposition of such offenses and the sentences imposed therefor shall be
as provided in such law except; (1) notwithstanding the provisions of
paragraph a of subdivision one of section 80.00 and paragraph (a) of
subdivision one of section 80.10 of the penal law relating to the fine
for a felony, the court may impose a fine not to exceed THE GREATER OF
DOUBLE THE AMOUNT OF THE UNDERPAID TAX LIABILITY RESULTING FROM THE
COMMISSION OF THE CRIME OR fifty thousand dollars, [except that] OR, in
the case of a corporation the fine may not exceed THE GREATER OF DOUBLE
THE AMOUNT OF THE UNDERPAID TAX LIABILITY RESULTING FROM THE COMMISSION
OF THE CRIME OR two hundred fifty thousand dollars and (2) notwithstand-
ing the provisions of subdivision one of section 80.05 and paragraph (b)
of subdivision one of section 80.10 of the penal law relating to the
fine for a class A misdemeanor, the court may impose a fine not to
exceed ten thousand dollars, except that in the case of a corporation
the fine may not exceed twenty thousand dollars.
S 14. The part heading of part 2 of article 37 of the tax law, as
added by chapter 65 of the laws of 1985, is amended to read as follows:
PART II-[INCOME, EARNINGS AND CORPORATE TAXES] TAX FRAUD ACTS AND
PENALTIES
S 15. Section 1801 of the tax law is REPEALED and a new section 1801
is added to read as follows:
S 1801. TAX FRAUD ACTS. (A) AS USED IN THIS ARTICLE, "TAX FRAUD ACT"
MEANS WILLFULLY ENGAGING IN AN ACT OR ACTS OR WILLFULLY CAUSING ANOTHER
TO ENGAGE IN AN ACT OR ACTS PURSUANT TO WHICH A PERSON:
(1) FAILS TO MAKE, RENDER, SIGN, CERTIFY, OR FILE ANY RETURN OR REPORT
REQUIRED UNDER THIS CHAPTER OR ANY REGULATION PROMULGATED UNDER THIS
CHAPTER WITHIN THE TIME REQUIRED BY OR UNDER THE PROVISIONS OF THIS
CHAPTER OR SUCH REGULATION;
(2) KNOWING THAT A RETURN, REPORT, STATEMENT OR OTHER DOCUMENT UNDER
THIS CHAPTER CONTAINS ANY FALSE OR FRAUDULENT INFORMATION, OR OMITS ANY
MATERIAL INFORMATION, FILES OR SUBMITS THAT RETURN, REPORT, STATEMENT OR
DOCUMENT WITH THE STATE OR ANY POLITICAL SUBDIVISION OF THE STATE, OR
WITH ANY PUBLIC OFFICE OR PUBLIC OFFICER OF THE STATE OR ANY POLITICAL
SUBDIVISION OF THE STATE;
(3) KNOWINGLY SUPPLIES OR SUBMITS FALSE OR FRAUDULENT INFORMATION IN
CONNECTION WITH ANY RETURN, AUDIT, INVESTIGATION, OR PROCEEDING OR FAILS
TO SUPPLY INFORMATION WITHIN THE TIME REQUIRED BY OR UNDER THE
PROVISIONS OF THIS CHAPTER OR ANY REGULATION PROMULGATED UNDER THIS
CHAPTER;
(4) ENGAGES IN ANY SCHEME TO DEFRAUD THE STATE OR A POLITICAL SUBDIVI-
SION OF THE STATE OR A GOVERNMENT INSTRUMENTALITY WITHIN THE STATE BY
FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS OR PROMISES IN CONNECTION
S. 60--A 216 A. 160--A
WITH ANY TAX IMPOSED UNDER THIS CHAPTER OR ANY MATTER UNDER THIS CHAP-
TER;
(5) FAILS TO REMIT ANY TAX COLLECTED IN THE NAME OF THE STATE OR ON
BEHALF OF THE STATE OR ANY POLITICAL SUBDIVISION OF THE STATE WHEN SUCH
COLLECTION IS REQUIRED UNDER THIS CHAPTER;
(6) FAILS TO COLLECT ANY TAX REQUIRED TO BE COLLECTED UNDER ARTICLES
TWELVE-A, EIGHTEEN, TWENTY, TWENTY-TWO OR TWENTY-EIGHT OF THIS CHAPTER,
OR PURSUANT TO THE AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER;
(7) WITH INTENT TO EVADE ANY TAX FAILS TO PAY THAT TAX; OR
(8) ISSUES AN EXEMPTION CERTIFICATE, INTERDISTRIBUTOR SALES CERTIF-
ICATE, RESALE CERTIFICATE, OR ANY OTHER DOCUMENT CAPABLE OF EVIDENCING A
CLAIM THAT TAXES DO NOT APPLY TO A TRANSACTION, WHICH HE OR SHE DOES NOT
BELIEVE TO BE TRUE AND CORRECT AS TO ANY MATERIAL MATTER, WHICH OMITS
ANY MATERIAL INFORMATION, OR WHICH IS FALSE, FRAUDULENT, OR COUNTERFEIT.
(B) FOR PURPOSES OF THIS SUBDIVISION, "THIS CHAPTER" INCLUDES ANY
"RELATED STATUTE" OR ANY "RELATED INCOME OR EARNINGS TAX STATUTE", AS
DEFINED IN SECTION EIGHTEEN HUNDRED OF THIS ARTICLE.
S 16. Section 1802 of the tax law is REPEALED and a new section 1802
is added to read as follows:
S 1802. CRIMINAL TAX FRAUD IN THE FIFTH DEGREE. A PERSON COMMITS CRIM-
INAL TAX FRAUD IN THE FIFTH DEGREE WHEN HE OR SHE COMMITS A TAX FRAUD
ACT. CRIMINAL TAX FRAUD IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR.
S 17. Section 1803 of the tax law is REPEALED and a new section 1803
is added to read as follows:
S 1803. CRIMINAL TAX FRAUD IN THE FOURTH DEGREE. A PERSON COMMITS
CRIMINAL TAX FRAUD IN THE FOURTH DEGREE WHEN HE OR SHE COMMITS A TAX
FRAUD ACT OR ACTS AND, WITH THE INTENT TO EVADE ANY TAX DUE UNDER THIS
CHAPTER, OR TO DEFRAUD THE STATE OR ANY SUBDIVISION THEREOF, THE PERSON
PAYS THE STATE AND/OR A POLITICAL SUBDIVISION OF THE STATE (WHETHER BY
MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) IN EXCESS OF ONE
THOUSAND DOLLARS LESS THAN THE TAX LIABILITY THAT IS DUE. CRIMINAL TAX
FRAUD IN THE FOURTH DEGREE IS A CLASS E FELONY.
S 18. Section 1804 of the tax law is REPEALED and a new section 1804
is added to read as follows:
S 1804. CRIMINAL TAX FRAUD IN THE THIRD DEGREE. A PERSON COMMITS CRIM-
INAL TAX FRAUD IN THE THIRD DEGREE WHEN HE OR SHE COMMITS A TAX FRAUD
ACT OR ACTS AND, WITH THE INTENT TO EVADE ANY TAX DUE UNDER THIS CHAP-
TER, OR TO DEFRAUD THE STATE OR ANY POLITICAL SUBDIVISION OF THE STATE,
THE PERSON PAYS THE STATE AND/OR A POLITICAL SUBDIVISION OF THE STATE
(WHETHER BY MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) IN
EXCESS OF THREE THOUSAND DOLLARS LESS THAN THE TAX LIABILITY THAT IS
DUE. CRIMINAL TAX FRAUD IN THE THIRD DEGREE IS A CLASS D FELONY.
S 19. Section 1805 of the tax law is REPEALED and a new section 1805
is added to read as follows:
S 1805. CRIMINAL TAX FRAUD IN THE SECOND DEGREE. A PERSON COMMITS
CRIMINAL TAX FRAUD IN THE SECOND DEGREE WHEN HE OR SHE COMMITS A TAX
FRAUD ACT OR ACTS AND, WITH THE INTENT TO EVADE ANY TAX DUE UNDER THIS
CHAPTER, OR TO DEFRAUD THE STATE OR ANY SUBDIVISION OF THE STATE, THE
PERSON PAYS THE STATE AND/OR A POLITICAL SUBDIVISION OF THE STATE
(WHETHER BY MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) IN
EXCESS OF FIFTY THOUSAND DOLLARS LESS THAN THE TAX LIABILITY THAT IS
DUE. CRIMINAL TAX FRAUD IN THE SECOND DEGREE IS A CLASS C FELONY.
S 20. Section 1806 of the tax law is REPEALED and a new section 1806
is added to read as follows:
S 1806. CRIMINAL TAX FRAUD IN THE FIRST DEGREE. A PERSON COMMITS CRIM-
INAL TAX FRAUD IN THE FIRST DEGREE WHEN HE OR SHE COMMITS A TAX FRAUD
S. 60--A 217 A. 160--A
ACT OR ACTS AND, WITH THE INTENT TO EVADE ANY TAX DUE UNDER THIS CHAP-
TER, OR TO DEFRAUD THE STATE OR ANY SUBDIVISION OF THE STATE, THE PERSON
PAYS THE STATE AND/OR A POLITICAL SUBDIVISION OF THE STATE (WHETHER BY
MEANS OF UNDERPAYMENT OR RECEIPT OF REFUND OR BOTH) IN EXCESS OF ONE
MILLION DOLLARS LESS THAN THE TAX LIABILITY THAT IS DUE. CRIMINAL TAX
FRAUD IN THE FIRST DEGREE IS A CLASS B FELONY.
S 21. Section 1807 of the tax law is REPEALED and a new section 1807
is added to read as follows:
S 1807. AGGREGATION. FOR PURPOSES OF THIS ARTICLE, THE PAYMENTS DUE
AND NOT PAID UNDER ARTICLE ONE OF THIS CHAPTER PURSUANT TO A COMMON
SCHEME OR PLAN, OR DUE AND NOT PAID CONTINUOUSLY OVER CONSECUTIVE PERI-
ODS MAY BE CHARGED AS A CONTINUING CRIME IN A SINGLE COUNT, AND THE
AMOUNT OF UNDERPAID TAX LIABILITY MAY BE AGGREGATED OVER ALL TAX PERIODS
ENCOMPASSED BY THE SCHEME TO DEFRAUD OR OVER THE CONSECUTIVE YEARS OF
UNDERPAYMENT.
S 22. Section 1808 of the tax law is REPEALED.
S 23. Sections 1809 and 1810 of the tax law are REPEALED.
S 24. Section 1811 of the tax law, as amended by section 116, subdivi-
sions (a) and (b) as separately amended by section 145 of chapter 190 of
the laws of 1990, is amended to read as follows:
S 1811. Estate, gift and transfer taxes.[--(a) Failure to file a
return or report, or pay tax.--Any person required under article twen-
ty-six, twenty-six-A or twenty-six-B of this chapter to pay tax, or make
a return or report, who, with intent to evade tax or any requirement of
such articles, fails to pay such tax or make such return or report, at
the time or times so required, shall be guilty of a misdemeanor.
(b) Fraudulent returns, reports, statements or other documents.--(1)
Any person who, with intent to evade the tax or any requirement of arti-
cle twenty-six, twenty-six-A or twenty-six-B of this chapter or any
lawful requirement of the commissioner of taxation and finance there-
under, makes and subscribes any return, report, statement or other docu-
ment which is required to be filed with or furnished to the commissioner
or to any person, pursuant to or under the provisions of such articles,
which he does not believe to be true and correct as to every material
matter shall be guilty of a misdemeanor.
(2) Any person who, with intent to evade the tax or any requirement of
article twenty-six, twenty-six-A or twenty-six-B of this chapter or any
lawful requirement of the commissioner of taxation and finance there-
under, who delivers or discloses to the commissioner or to any person,
pursuant to or under the provisions of such articles, any list, return,
report, account, statement or other document known by him to be fraudu-
lent or to be false as to any material matter shall be guilty of a
misdemeanor.
(3) For purposes of this section, the omission by any person of any
material matter with intent to deceive shall constitute the delivery or
disclosure of a document known by him to be fraudulent or to be false as
to any material matter.
(c)] Wrongful entry into safe deposit box.--Any person who enters a
safe deposit box of a decedent, or a box standing in the joint names of
such a decedent and one or more persons, with knowledge of the death of
the lessee of such box, which entry results in an evasion of the tax
imposed by article twenty-six of this chapter shall be guilty of a
misdemeanor.
S 25. Section 1812 of the tax law, as added by chapter 65 of the laws
of 1985, paragraphs 4 and 5 of subdivision (c) as added and subdivision
(d) as amended by chapter 261 of the laws of 1988 and subdivisions (g)
S. 60--A 218 A. 160--A
and (h) as added by chapter 276 of the laws of 1986, is amended to read
as follows:
S 1812. Motor fuel taxes.--(a) Attempt to evade or defeat tax.--Any
person who willfully attempts in any manner to evade or defeat any tax
imposed by article twelve-A of this chapter or the payment thereof
shall, in addition to other penalties provided by law, be guilty of a
class E felony.
(b) [Willful failure to file a return or report, or pay tax.--Any
person required under article twelve-A of this chapter to pay tax, or
make a return or report, who willfully fails to pay such tax or make
such return or report, at the time or times so required, shall be guilty
of a misdemeanor.
(c) Fraudulent returns, reports, statements or other documents.--(1)
Any person who willfully makes and subscribes any return, report, state-
ment or other document which is required to be filed with or furnished
to the tax commission or to any person, pursuant to the provisions of
article twelve-A of this chapter, which he does not believe to be true
and correct as to every material matter shall be guilty of a class E
felony.
(2) Any person who willfully delivers or discloses to the tax commis-
sion or to any person, pursuant to the provisions of article twelve-A of
this chapter, any list, return, report, account, statement or other
document known by him to be fraudulent or to be false as to any material
matter shall be guilty of a misdemeanor.
(3) For purposes of this section, the omission by any person of any
material matter with intent to deceive shall constitute the delivery or
disclosure of a document known by him to be fraudulent or to be false as
to any material matter.
(4) Any person who willfully issues an exempt transaction certificate
(or similar document which has been prescribed by the commissioner of
taxation and finance) or interdistributor sale certificate in order to
claim an exemption from the taxes imposed on Diesel motor fuel by arti-
cle twelve-A of this chapter which he does not believe to be true and
correct as to any material matter shall, in addition to any other penal-
ty provided by law, be guilty of a misdemeanor.
(5)] Any person who willfully accepts an exempt transaction certif-
icate (or similar document which has been prescribed by the commissioner
[of taxation and finance]) or interdistributor sale certificate with
respect to claiming exemption from the taxes imposed on Diesel motor
fuel by article twelve-A of this chapter which he does not believe to be
true and correct as to any material matter shall, in addition to any
other penalty provided by law, be guilty of a misdemeanor.
[(d)] (C) Any owner of a filling station who shall willfully and know-
ingly have in his custody, possession or under his control any motor
fuel or Diesel motor fuel on which (1) the taxes imposed by or pursuant
to the authority of such article have not been assumed or paid by a
distributor registered as such under such article or (2) the taxes
imposed by or pursuant to the authority of such article have not been
included in the cost to him of such fuel where such taxes were required
to have been passed through to him and included in the cost to him of
such fuel, shall in either case, be guilty of a class E felony. For
purposes of this subdivision, such owner shall willfully and knowingly
have in his custody, possession or under his control any motor fuel or
Diesel motor fuel on which such taxes have not been assumed or paid by a
distributor registered as such where such owner has knowledge of the
requirement that such taxes be paid and where, to his knowledge, such
S. 60--A 219 A. 160--A
taxes have not been assumed or paid by a registered distributor on such
motor fuel or Diesel motor fuel. Such owner shall willfully and knowing-
ly have in his custody, possession or under his control any motor fuel
or Diesel motor fuel on which such taxes are required to have been
passed through to him and have not been included in his cost where such
owner has knowledge of the requirement that such taxes be passed through
and where to his knowledge such taxes have not been so included.
[(e)] (D) Any willful act or omission, other than those described in
subdivision (a), (b), OR (c) [or (d)] of this section, by any person
which constitutes a violation of any provision of article twelve-A of
this chapter shall constitute a misdemeanor.
[(f)] (E) The provisions of this section shall apply for purposes of
the tax imposed pursuant to the authority of section two hundred eight-
y-four-b of this chapter.
[(g) Any person who, being duly subpoenaed, pursuant to section one
hundred seventy-four of this chapter or the provisions of the civil
practice law and rules, in connection with a matter arising under arti-
cle twelve-A of this chapter, to attend as a witness or to produce
books, accounts, records, memoranda, documents or other papers who (i)
fails or refuses to attend without lawful excuse, (ii) refuses to be
sworn, (iii) refuses to answer any material and proper question, or (iv)
refuses, after reasonable notice, to produce books, accounts, records,
memoranda, documents or other papers in his possession or under his
control which constitute material and proper evidence shall be guilty of
a misdemeanor.
(h)] (F) Any person who willfully makes a manifest required by section
two hundred eighty-six-b of this chapter which he does not believe to be
true and correct as to every material matter or who willfully produces
any manifest for inspection as required under section two hundred eight-
y-six-b of this chapter which is known to be fraudulent or to be false
as to any material matter shall be guilty of a class E felony.
S 26. Section 1812-f of the tax law, as added by chapter 190 of the
laws of 1990, is amended to read as follows:
S 1812-f. Article thirteen-A tax. (a) [Attempt to evade or defeat tax.
Any person who willfully attempts in any manner to evade or defeat any
tax imposed by article thirteen-A of this chapter or the payment thereof
shall be guilty of a misdemeanor; provided, however, that if the tax
liability evaded or defeated as a result of such conduct is equal to or
greater than one thousand dollars, such person shall be guilty of class
E felony.
(b) Willful failure to file a return or report, or pay tax. Any person
required under article thirteen-A of this chapter to pay tax, or make a
return or report, who willfully fails to pay such tax or make such
return or report, at the time or times so required, shall be guilty of a
misdemeanor.
(c) Fraudulent returns, reports, statements or other documents. (1)
Any person who willfully makes and subscribes any return, report, state-
ment or other document which is required to be filed with or furnished
to the commissioner of taxation and finance or to any person, pursuant
to the provisions of article thirteen-A of this chapter, which he does
not believe to be true and correct as to every material matter shall be
guilty of a misdemeanor. Provided, however, where such person substan-
tially understates on such return, report, statement, or other document
his tax liability under such article, such person shall be guilty of a
class E felony. For purposes of this subdivision, the term "substantial-
ly understates" refers to the excess amount of the tax required to be
S. 60--A 220 A. 160--A
shown on the return or report for the taxable period over the amount of
the tax imposed which is shown on the return, report, statement, or
other document, provided that the excess is one thousand dollars or
more, and provided that the taxpayer, acting without reasonable ground
for believing that his conduct is lawful, intended to evade at least the
amount of such excess.
(2) Any person who willfully delivers or discloses to the commissioner
of taxation and finance or to any person, pursuant to the provisions of
article thirteen-A of this chapter, any list, return, report, account,
statement or other document known by him to be fraudulent or to be false
as to any material matter shall be guilty of a misdemeanor.
(3) For purposes of this section, the omission by any person of any
material matter with intent to deceive shall constitute the delivery or
disclosure of a document known by him to be fraudulent or to be false as
to any material matter.
(4) Any person who willfully issues an exempt transaction certificate
(or similar document which has been prescribed by the commissioner of
taxation and finance) or interdistributor sale certificate in order to
claim an exemption from taxes imposed with respect to diesel motor fuel
or residual petroleum product by article thirteen-A of this chapter
which he does not believe to be true and correct as to any material
matter shall be guilty of a misdemeanor.
(5)] Any person who willfully accepts an exempt transaction certif-
icate (or similar document which has been prescribed by the commissioner
of taxation and finance) or interdistributor sale certificate with
respect to claiming exemption from the taxes imposed with respect to
diesel motor fuel or residual petroleum product by article thirteen-A of
this chapter which he does not believe to be true and correct as to any
material matter shall be guilty of a misdemeanor.
[(d)] (B) Any willful act or omission, other than those described in
SECTION EIGHTEEN HUNDRED ONE OF THIS ARTICLE OR subdivision (a)[, (b)]
or (c) of this section, by any person which constitutes a violation of
any provision of article thirteen-A of this chapter shall constitute a
misdemeanor.
[(e) Any person who duly is subpoenaed, pursuant to section one
hundred seventy-four of this chapter or the provisions of the civil
practice law and rules, in connection with a matter arising under arti-
cle thirteen-A of this chapter, to attend as a witness or to produce
books, accounts, records, memoranda, documents or other papers and who
(i) fails or refuses to attend without lawful excuse, (ii) refuses to be
sworn, (iii) refuses to answer any material and proper question, or (iv)
refuses, after reasonable notice, to produce books, accounts, records,
memoranda, documents or other papers in his possession or under his
control which constitute material and proper evidence shall be guilty of
a misdemeanor.
(f)] (C) Any person who willfully makes a movement tracking document
required pursuant to subdivision (b) of section three hundred fifteen of
this chapter, which he does not believe to be true and correct as to
every material matter or who willfully produces any such document for
inspection as required under subdivision (b) of section three hundred
fifteen of this chapter which he knows to be fraudulent or to be false
as to any material matter shall be guilty of a misdemeanor; provided,
however, that if the tax liability under article thirteen-A of this
chapter with respect to the product being transported, is equal to or
greater than one thousand dollars, such person shall be guilty of a
class E felony.
S. 60--A 221 A. 160--A
S 27. Section 1813 of the tax law, as added by chapter 65 of the laws
of 1985, subdivisions (h), (i) and (j) as added by chapter 508 of the
laws of 1993, is amended to read as follows:
S 1813. Alcoholic beverage tax.--(a) [Attempt to evade or defeat tax.-
-Any person who willfully attempts in any manner to evade or defeat any
tax imposed by article eighteen of this chapter or the payment thereof
shall, in addition to other penalties provided by law, be guilty of a
misdemeanor.
(b) Willful failure to file a return or report, or pay tax.--Any
person required under article eighteen of this chapter to pay or make a
return or report, who willfully fails to pay such tax or make such
return or report at the time or times so required, shall be guilty of a
misdemeanor.
(c) Fraudulent returns, reports, statements or other documents.--(1)
Any person who willfully makes and subscribes any return, report, state-
ment or other document which is required to be filed with or furnished
to the tax commission or to any person, pursuant to article eighteen of
this chapter, which he does not believe to be true and correct as to
every material matter shall be guilty of a class E felony.
(2) Any person who willfully delivers or discloses to the tax commis-
sion or to any person, pursuant to article eighteen of this chapter, any
list, return, report, account, statement or other document known by him
to be fraudulent or to be false as to any material matter shall be guil-
ty of a misdemeanor.
(3) For purposes of this section, the omission by any person of any
material matter with intent to deceive shall constitute the delivery or
disclosure of a document known by him to be fraudulent or to be false as
to any material matter.
(d)] Unlawful use of stamps.--Any person who shall counterfeit stamps
prescribed by section four hundred thirty-eight of this chapter or who
shall willfully remove or alter or knowingly permit to be removed or
altered, the cancellation or defacing marks required to be placed upon
any stamp under provisions of article eighteen of this chapter with
intent to use such stamp, or who shall willfully open any container of
alcoholic beverages without first destroying the stamp affixed thereto
or who shall knowingly or willfully buy, prepare for use, use, have in
his possession or suffer to be used any washed, restored or counterfeit
stamp shall be guilty of a misdemeanor.
[(e)] (B) Unlawful use of alcoholic beverages.--Any person who shall
willfully sell or use any alcoholic beverages upon which tax has not
been paid by the affixation of stamps as prescribed pursuant to section
four hundred thirty-eight of this chapter shall be guilty of a misdemea-
nor.
[(f)] (C) Any willful act or omission, other than those described in
SECTION EIGHTEEN HUNDRED ONE OF THIS ARTICLE OR subdivision (a)[,] OR
(b)[, (c), (d) or (e)] of this section, by any person which constitutes
a violation of any provision of article eighteen of this chapter shall
constitute a misdemeanor.
[(g)] (D) The provisions of this section shall apply for purposes of
any tax imposed pursuant to the authority of section four hundred
forty-five of this chapter.
[(h)] (E) Person not registered as a distributor. (1) Any person
required to be registered as a distributor pursuant to the provisions of
article eighteen of this chapter who, while not so registered, knowingly
imports or causes to be imported into the state, for sale or use there-
in, any liquors or, who, except in accordance with clause (i) or (ii) of
S. 60--A 222 A. 160--A
paragraph (b) of subdivision four of section four hundred twenty of this
chapter, knowingly produces, distills, manufactures, compounds, mixes or
ferments in this state any such liquors for sale, or who, as a purchaser
of a warehouse receipt, knowingly causes liquors covered by such receipt
to be removed from a warehouse in this state, shall be guilty of a class
A misdemeanor. Provided, however, that any person who has twice been
convicted under this section within the preceding five years, shall be
guilty of a class E felony for any subsequent violation of this para-
graph.
(2) Any person who, while not registered as a distributor pursuant to
the provisions of article eighteen of this chapter, knowingly and inten-
tionally imports or causes to be imported into this state, for sale or
use therein, more than three hundred sixty liters of liquors into this
state in a one-year period or, except in accordance with clause (i) or
(ii) of paragraph (b) of subdivision four of section four hundred twenty
of this chapter, knowingly and intentionally produces, distills, manu-
factures, compounds, mixes or ferments for sale more than three hundred
sixty liters of such liquors within this state in a one-year period, or,
as a purchaser of a warehouse receipt, knowingly and intentionally caus-
es more than three hundred sixty liters of liquors in a one-year period
to be removed from a warehouse in this state, shall be guilty of a class
E felony.
(3) For purposes of this subdivision, it shall be presumed that the
importation or the causing to be imported into this state or the
production, distillation, manufacture, compounding, mixing or fermenting
in this state of more than ninety liters of such liquors by any person
in a one-year period is for purposes of sale. Such presumption may be
rebutted by the introduction of substantial evidence to the contrary.
[(i)] (F) Person not registered as a distributor for city purposes.
(1) Any person required to be registered as a distributor for city
purposes pursuant to the provisions of section four hundred forty-five
of article eighteen of this chapter who, while not so registered, know-
ingly imports or causes to be imported into such city, for sale or use
therein, any liquors or, who, except in accordance with clause (i) or
(ii) of paragraph (b) of subdivision four of section four hundred twenty
of this chapter as incorporated into such section four hundred forty-
five, knowingly produces, distills, manufactures, compounds, mixes or
ferments in such city any such liquors for sale, or who, as a purchaser
of a warehouse receipt, causes liquors covered by such receipt to be
removed from a warehouse in this state, shall be guilty of a class A
misdemeanor. Provided, however, that any person who has twice been
convicted under this section within the preceding five years shall be
guilty of a class E felony for any subsequent violation of this para-
graph.
(2) Any person who, while not registered as a distributor for city
purposes pursuant to the provisions of section four hundred forty-five
of article eighteen of this chapter, knowingly and intentionally imports
or causes to be imported into such city, for sale or use therein, more
than three hundred sixty liters of liquors into such city in a one-year
period or, except in accordance with clause (i) or (ii) of paragraph (b)
of subdivision four of section four hundred twenty of this chapter as
incorporated into such section four hundred forty-five, knowingly and
intentionally produces, distills, manufactures, compounds, mixes or
ferments for sale more than three hundred sixty liters of such liquors
within such city in a one-year period, or, as a purchaser of a warehouse
receipt, knowingly and intentionally causes more than three hundred
S. 60--A 223 A. 160--A
sixty liters of liquors in a one-year period to be removed from a ware-
house in this [store] STATE, shall be guilty of a class E felony.
(3) For purposes of this subdivision, it shall be presumed that the
importation or the causing to be imported into such city or the
production, distillation, manufacture, compounding, mixing or fermenting
in such city of more than ninety liters of liquors by any person in a
one-year period is for purposes of sale. Such presumption may be
rebutted by the introduction of substantial evidence to the contrary.
[(j)] (G) Any person, other than the distributor registered under
article eighteen of this chapter which imported or caused the liquors to
be imported into this state, who shall willfully and knowingly have in
his custody, possession or under his control liquors with respect to
which the taxes imposed by or pursuant to the authority of article eigh-
teen of this chapter have not been assumed or paid by a distributor
registered as such under such article, shall be guilty of a class B
misdemeanor; if such person shall willfully and knowingly have more than
ninety liters of such liquors in his custody or possession or under his
control, such person shall be guilty of a class A misdemeanor; or if
such person shall knowingly and intentionally have more than three
hundred sixty liters of such liquors in his custody or possession or
under his control, such person shall be guilty of a class E felony. For
purposes of this subdivision, such person shall willfully and knowingly
have in his custody, possession or under his control any liquors with
respect to which such taxes have not been assumed or paid by a distribu-
tor registered as such where such person has knowledge of the require-
ment of such taxes and where, to his knowledge, such taxes have not been
assumed or paid by a registered distributor with respect to such
liquors.
S 28. Section 1814 of the tax law, as added by chapter 65 of the laws
of 1985, the section heading and subdivisions (c), (g) and (h) as
amended and subdivision (j) as added by chapter 61 of the laws of 1989,
paragraph 2 of subdivision (a) and paragraph 1 of subdivision (e) as
amended by chapter 508 of the laws of 2004, subdivisions (d) and (e) as
amended by chapter 262 of the laws of 2000 and subdivision (k) as added
by chapter 190 of the laws of 1990, is amended to read as follows:
S 1814. Cigarette and tobacco products tax.--(a) [Attempt to evade or
defeat tax.--(1) Any person who willfully attempts in any manner to
evade or defeat any tax imposed by article twenty of this chapter or the
payment thereof shall, in addition to other penalties provided by law,
be guilty of a misdemeanor.
(2)] Any person who willfully attempts in any manner to evade or
defeat the taxes imposed by article twenty of this chapter or payment
thereof on (i) ten thousand cigarettes or more (ii) twenty-two thousand
cigars or more, or (iii) four hundred forty pounds of tobacco or more or
has previously been convicted two or more times of a violation of para-
graph one of this subdivision shall be guilty of a class E felony.
(b) [Willful failure to file a return or report, or pay tax.--Any
person required under article twenty of this chapter to pay or make a
return or report, who willfully fails to pay such tax or make such
return or report, at the time or times so required, shall be guilty of a
misdemeanor.
(c) Fraudulent returns, reports, statements or other documents.--(1)
Any person who willfully makes and subscribes any return, report, state-
ment or other document which is required to be filed with or furnished
to the commissioner of taxation and finance or to any person, pursuant
to article twenty of this chapter, which he does not believe to be true
S. 60--A 224 A. 160--A
and correct as to every material matter shall be guilty of a misdemea-
nor.
(2) Any person who willfully delivers or discloses to the commissioner
of taxation and finance or to any person, pursuant to article twenty of
this chapter, any list, return, report, account, statement or other
document known by him to be fraudulent or to be false as to any material
matter shall be guilty of a misdemeanor.
(3) For purposes of this section, the omission by any person of any
material matter with intent to deceive shall constitute the delivery or
disclosure of a document known by him to be fraudulent or to be false as
to any material matter.
(d)] Any person, other than an agent licensed by the commissioner, who
possesses or transports for the purpose of sale any unstamped or unlaw-
fully stamped packages of cigarettes subject to tax imposed by section
four hundred seventy-one of this chapter, or who sells or offers for
sale unstamped or unlawfully stamped packages of cigarettes in violation
of the provisions of article twenty of this chapter shall be guilty of a
misdemeanor. Any person who violates the provisions of this subdivision
after having previously been convicted of a violation of this subdivi-
sion within the preceding five years shall be guilty of a class E felo-
ny.
[(e)] (C) (1) Any person, other than an agent licensed by the commis-
sioner, who willfully possesses or transports for the purpose of sale
ten thousand or more cigarettes subject to the tax imposed by section
four hundred seventy-one of this chapter in any unstamped or unlawfully
stamped packages or who willfully sells or offers for sale ten thousand
or more cigarettes in any unstamped or unlawfully stamped packages in
violation of article twenty of this chapter shall be guilty of a class E
felony.
(2) Any person, other than an agent licensed by the commissioner, who
willfully possesses or transports for the purpose of sale thirty thou-
sand or more cigarettes subject to the tax imposed by section four
hundred seventy-one of this chapter in any unstamped or unlawfully
stamped packages or who willfully sells or offers for sale thirty thou-
sand or more cigarettes in any unstamped or unlawfully stamped packages
in violation of article twenty of this chapter shall be guilty of a
class D felony.
[(f)] (D) For the purposes of this section, the possession or trans-
portation within this state by any person, other than an agent, at any
one time of five thousand or more cigarettes in unstamped or unlawfully
stamped packages shall be presumptive evidence that such cigarettes are
possessed or transported for the purpose of sale and are subject to the
tax imposed by section four hundred seventy-one of this chapter. With
respect to such possession or transportation any provisions of article
twenty of this chapter providing for a time period during which a use
tax imposed by such article may be paid on unstamped cigarettes or
unlawfully or improperly stamped cigarettes or during which such ciga-
rettes may be returned to an agent shall not apply. The possession with-
in this state of more than four hundred cigarettes in unstamped or
unlawfully stamped packages by any person other than an agent at any one
time shall be presumptive evidence that such cigarettes are subject to
tax as provided by article twenty of this chapter.
[(g)] (E) Nothing in this section shall apply to common or contract
carriers or warehousemen while engaged in lawfully transporting or stor-
ing unstamped packages of cigarettes as merchandise, or lawfully trans-
porting or storing tobacco products, nor to any employee of such carrier
S. 60--A 225 A. 160--A
or warehouseman acting within the scope of his employment, nor to public
officers or employees in the performance of their official duties
requiring possession or control of unstamped or unlawfully stamped pack-
ages of cigarettes or possession or control of tobacco products, nor to
temporary incidental possession by employees or agents of persons
lawfully entitled to possession, nor to persons whose possession is for
the purpose of aiding police officers in performing their duties.
[(h)] (F) Any willful act or omission, other than those described in
SECTION EIGHTEEN HUNDRED ONE OF THIS ARTICLE OR subdivision (a), (b),
(c), (d), (e), [(f),] (g), (H) OR (i) [or (j)] of this section, by any
person which constitutes a violation of any provision of article twenty
of this chapter shall constitute a misdemeanor.
[(i)] (G) Any person who falsely or fraudulently makes, alters or
counterfeits any stamp prescribed by the tax commission under the
provisions of article twenty of this chapter, or causes or procures to
be falsely or fraudulently made, altered or counterfeited any such
stamp, or knowingly and willfully utters, purchases, passes or tenders
as true any such false, altered or counterfeited stamp, or knowingly and
willfully possesses any cigarettes in packages bearing any such false,
altered or counterfeited stamp, and any person who knowingly and will-
fully makes, causes to be made, purchases or receives any device for
forging or counterfeiting any stamp, prescribed by the tax commission
under the provisions of article twenty of this chapter, or who knowingly
and willfully possesses any such device, shall be guilty of a class E
felony. For the purposes of this subdivision, the words "stamp
prescribed by the tax commission" shall include a stamp, impression or
imprint made by a metering machine, the design of which has been
approved by such commission.
[(j)] (H) (1) Any dealer, other than a distributor appointed by the
commissioner of taxation and finance under article twenty of this chap-
ter, who shall knowingly transport or have in his custody, possession or
under his control more than ten pounds of tobacco or more than five
hundred cigars upon which the taxes imposed by article twenty of this
chapter have not been assumed or paid by a distributor appointed by the
commissioner of taxation and finance under article twenty of this chap-
ter, or other person treated as a distributor pursuant to section four
hundred seventy-one-d of this chapter, shall be guilty of a misdemeanor
punishable by a fine of not more than five thousand dollars or by a term
of imprisonment not to exceed thirty days.
(2) Any person, other than a dealer or a distributor appointed by the
commissioner [of taxation and finance] under article twenty of this
chapter, who shall knowingly transport or have in his custody,
possession or under his control more than fifteen pounds of tobacco or
more than seven hundred fifty cigars upon which the taxes imposed by
article twenty of this chapter have not been assumed or paid by a
distributor appointed by the commissioner [of taxation and finance]
under article twenty of this chapter, or other person treated as a
distributor pursuant to section four hundred seventy-one-d of this chap-
ter shall be guilty of a misdemeanor punishable by a fine of not more
than five thousand dollars or by a term of imprisonment not to exceed
thirty days.
(3) Any person, other than a distributor appointed by the commissioner
[of taxation and finance] under article twenty of this chapter, who
shall knowingly transport or have in his custody, possession or under
his control twenty-five hundred or more cigars or fifty or more pounds
of tobacco upon which the taxes imposed by article twenty of this chap-
S. 60--A 226 A. 160--A
ter have not been assumed or paid by a distributor appointed by the
commissioner [of taxation and finance] under article twenty of this
chapter, or other person treated as a distributor pursuant to section
four hundred seventy-one-d of this chapter shall be guilty of a misde-
meanor. Provided further, that any person who has twice been convicted
under this subdivision shall be guilty of a class E felony for any
subsequent violation of this section, regardless of the amount of tobac-
co products involved in such violation.
(4) For purposes of this subdivision, such person shall knowingly
transport or have in his custody, possession or under his control tobac-
co or cigars on which such taxes have not been assumed or paid by a
distributor appointed by the commissioner [of taxation and finance]
where such person has knowledge of the requirement of the tax on tobacco
products and, where to his knowledge, such taxes have not been assumed
or paid on such tobacco products by a distributor appointed by the
commissioner of taxation and finance.
[(k)] (I) Any person who falsely or fraudulently makes, alters or
counterfeits a registration certificate or sticker required under the
provisions of section four hundred eighty-a of this chapter, or causes
or procures to be falsely or fraudulently made, altered or counterfeited
any such registration certificate or sticker, or knowingly and willfully
utters, purchases, passes or tenders as true any such false, altered or
counterfeited registration certificate or sticker, and any person who
knowingly and willfully makes, causes to be made, purchases or receives
any device for forging or counterfeiting any registration certificate or
sticker required under the provisions of such section, or who knowingly
and willfully possesses any such device, shall be guilty of a class B
misdemeanor.
S 29. Section 1815 of the tax law, as amended by chapter 170 of the
laws of 1994, clause (i) of subparagraph (A) of paragraph 1 of subdivi-
sion (a) as amended by section 10, subparagraph (B) of paragraph 1 of
subdivision (a) as amended by section 11 and subparagraph (C) of para-
graph 1 of subdivision (a) as amended by section 12 of part E of chapter
60 of the laws of 2007, is amended to read as follows:
S 1815. Highway use and fuel use taxes. - (a) Violations. (1) It shall
be unlawful for any person to:
(A) (i) Use or cause or permit to be used, any public highway in this
state for the operation of a motor vehicle subject to the provisions of
article twenty-one of this chapter without first applying for and
obtaining the certificate of registration required under such article;
(ii) Use or cause or permit to be used, any public highway in this
state for the operation of a qualified motor vehicle subject to the
provisions of article twenty-one-A of this chapter without first obtain-
ing the license and decal required pursuant to such article or to carry
or cause or permit to be carried upon any qualified motor vehicle a
license or decal which has been suspended or revoked or which was issued
for a qualified motor vehicle other than the one on which carried. The
operation of any qualified motor vehicle on any public highway of this
state without carrying thereon the license or decal required under such
article shall be presumptive evidence that a license or decal has not
been obtained for such qualified motor vehicle;
(B) Operate, or cause or permit to be operated, on any public highway
any motor vehicle subject to the provisions of article twenty-one of
this chapter having an actual gross or unloaded weight in excess of the
gross or unloaded weight set forth on the certificate of registration
issued for such motor vehicle;
S. 60--A 227 A. 160--A
(C) Fail to deliver or surrender, pursuant to the provisions of arti-
cle twenty-one or twenty-one-A of this chapter or any rule or regulation
promulgated by the commissioner, a certificate of registration or
license or decal to such commissioner, or any person directed by such
commissioner to take possession thereof;
(D) Fail [to make any return under article twenty-one or twenty-one-A
of this chapter or] to keep records of operations of motor vehicles or
qualified motor vehicles as the commissioner shall prescribe;
(E) [Make any false return; or
(F)] Violate any other provision of article twenty-one or twenty-one-A
of this chapter or any rule or regulation promulgated thereunder.
(2) Any person who violates any provision of this subdivision, upon a
first conviction shall be subject to a fine of not less than one hundred
dollars or more than two hundred fifty dollars; and upon a second or
subsequent conviction to a fine of not less than two hundred fifty
dollars or more than five hundred dollars or by imprisonment for not
more than ten days. Except as otherwise provided by law such a violation
shall not be a crime and the penalty or punishment imposed therefor
shall not be deemed for any purpose a penal or criminal penalty or
punishment and shall not impose any disability upon or affect or impair
the credibility as a witness, or otherwise, of any person convicted
thereof.
(3) For the purposes of conferring jurisdiction upon courts and police
officers, and on the officers specified in subdivision four of section
2.10 of the criminal procedure law and on judicial officers generally,
such violations shall be deemed traffic infractions and for such purpose
only all provisions of law relating to traffic infractions shall apply
to such violations; provided, however, that the commissioner of motor
vehicles, any hearing officer appointed by him, or any administrative
tribunal authorized to hear and determine any charges or offenses which
are traffic infractions shall not have jurisdiction of such infractions.
(4) Upon the conviction of any person for a violation of any of the
provisions of this subdivision, the trial court or the clerk thereof
shall within forty-eight hours certify the facts of the case to the
commissioner and such certificate shall be presumptive evidence of the
facts recited therein. If any such conviction shall be reversed upon
appeal therefrom, the person whose conviction has been so reversed may
serve upon the commissioner a certified copy of the order of reversal
and the commissioner shall thereupon record the same.
(b) [Felonies. Any person who files or causes to be filed any return,
affidavit or statement required or permitted by article twenty-one or
twenty-one-A of this chapter which is willfully false or fraudulent or
who willfully fails to file a return with intent to evade the tax is
guilty of a class E felony.
(c)] An official weigh slip or ticket issued and certified by any
truck weigher in the employ of the department of transportation or by
any duly licensed weight master shall constitute prima facie evidence of
the information therein set forth and of the operation of the vehicle
therein described upon a public highway and shall be admissible before
any court in any violation proceeding or criminal proceeding.
S 30. Section 1817 of the tax law, as added by chapter 65 of the laws
of 1985, paragraph 1 of subdivision (c) as amended by chapter 411 of the
laws of 1986, subdivision (e) as amended by chapter 765 of the laws of
1985, subdivision (g) as amended by chapter 412 of the laws of 1986,
subdivision (h) as amended by chapter 275 of the laws of 1986, subdivi-
sion (i) as amended by chapter 261 of the laws of 1988, subdivision (k)
S. 60--A 228 A. 160--A
as amended by chapter 3 of the laws of 2004, subdivisions (l) and (s) as
amended and subdivisions (q) and (r) as added by chapter 2 of the laws
of 1995, subdivision (o) as added by chapter 61 of the laws of 1989,
subdivision (p) as added by chapter 810 of the laws of 1992 and subdivi-
sion (t) as added by section 3 of part A of chapter 35 of the laws of
2006, is amended to read as follows:
S 1817. Sales and compensating use taxes.--(a) [Willful failure to
file a return or report.--Any person required under article twenty-eight
of this chapter to make a return or report (other than a return of
compensating use tax), who willfully fails to make such return or
report, at the time or times so required, shall be guilty of a misdemea-
nor.
(b) Fraudulent returns, reports, statements or other documents.--(1)
Any person who willfully makes and subscribes any return, report, state-
ment or other document which is required to be filed with or furnished
to the tax commission or to any person, pursuant to the provisions of
article twenty-eight of this chapter, which he does not believe to be
true and correct as to every material matter shall be guilty of a misde-
meanor.
(2) Any person who willfully delivers or discloses to the tax commis-
sion or to any person, pursuant to the provisions of article twenty-
eight of this chapter, any list, return, report, account, statement or
other document known by him to be fraudulent or to be false as to any
material matter shall be guilty of a misdemeanor.
(3) For purposes of this section, the omission by any person of any
material matter with intent to deceive shall constitute the delivery or
disclosure of a document known by him to be fraudulent or to be false as
to any material matter.
(c) Failure to collect tax.--(1) Any person who willfully fails to
collect the tax imposed under article twenty-eight of this chapter from
a customer shall, in addition to other penalties provided by law, be
guilty of a misdemeanor.
(2) A person is guilty of failure to collect sales tax when he fails
to collect a sales tax required to be collected by article twenty-eight
of this chapter and when (a) he does so with intent to defraud the state
or a political subdivision thereof and thereby deprives the state or a
political subdivision thereof, or both together, of ten thousand dollars
or more, or (b) he does so with intent to defraud the state or a poli-
tical subdivision thereof through a common scheme or plan consisting of
ten or more failures to collect the required tax on sales in the amount
of one hundred dollars or more each. Failure to collect sales tax under
this paragraph is a class E felony.
(d)] Any person required to obtain a certificate of authority under
section eleven hundred thirty-four of this chapter who, without possess-
ing a valid certificate of authority, willfully (1) sells tangible
personal property or services subject to tax, receives amusement charges
or operates a hotel, (2) purchases or sells tangible personal property
for resale, or (3) sells automotive fuel; and any person who fails to
surrender a certificate of authority as required by such article shall
be guilty of a misdemeanor.
[(e)] (B) Any person required to obtain a certificate of authority
under section eleven hundred thirty-four of this chapter who within five
years after a determination by the tax commission, pursuant to such
section, to suspend, revoke or refuse to issue a certificate of authori-
ty has become final, and without possession of a valid certificate of
authority (1) sells tangible personal property or services subject to
S. 60--A 229 A. 160--A
tax, receives amusement charges or operates a hotel, (2) purchases or
sells tangible personal property for resale, or (3) sells automotive
fuel, shall be guilty of a misdemeanor. It shall be an affirmative
defense that such person performed the acts described in this subdivi-
sion without knowledge of such determination. Any person who violates a
provision of this subdivision, upon conviction, shall be subject to a
fine in any amount authorized by this article, but not less than five
hundred dollars, in addition to any other penalty provided by law.
[(f)] (C) Any person who willfully fails to file a notice of a show as
required by article twenty-eight of this chapter or who willfully rents,
leases or grants a license to use space for a show or operates a show
without obtaining a permit pursuant to paragraph two of subdivision (b)
of section eleven hundred thirty-four of this chapter shall be guilty of
a misdemeanor.
[(g)] (D) Any person (1) who willfully fails to charge separately the
tax imposed under article twenty-eight of this chapter or to state such
tax separately on any bill, statement, memorandum or receipt issued or
employed by him upon which the tax is required to be stated separately
as provided in subdivision (a) of section eleven hundred thirty-two of
this chapter; or (2) who shall refer or cause reference to be made to
such tax in a form or manner other than that required by such article
twenty-eight, shall be guilty of a misdemeanor.
[(h)] (E) Any person willfully failing to file a bond or other securi-
ty or deposit taxes in any banking institution where such filing or
deposit is required pursuant to the provisions of paragraph two or three
of subdivision (e) of section eleven hundred thirty-seven of this chap-
ter shall be guilty of a misdemeanor.
[(i)] (F) Any owner of a filling station who shall willfully and know-
ingly have in his custody, possession or under his control any motor
fuel or diesel motor fuel on which (1) the prepaid tax imposed by
section eleven hundred two of this chapter has not been assumed or paid
by a distributor registered as such under article twelve-A of this chap-
ter or (2) the prepaid tax imposed by section eleven hundred two of this
chapter was required to have been passed through to him and has not been
included in the cost of such fuel to him, shall in either case, be guil-
ty of a class E felony. For purposes of this subdivision, such owner
shall willfully and knowingly have in his custody, possession or under
his control any motor fuel or diesel motor fuel on which such tax has
not been assumed or paid by a distributor registered as such where such
owner has knowledge of the requirement that such tax be paid and where,
to his knowledge, such tax has not been assumed or paid by such regis-
tered distributor on such motor fuel or diesel motor fuel. Such owner
shall willfully and knowingly have in his custody, possession or under
his control motor fuel or diesel motor fuel on which such tax is
required to have been passed through to him and has not been included in
the cost to him where such owner has knowledge of the requirement that
such tax be passed through and where to his knowledge such tax has not
been so included.
[(j)] (G) Any person who willfully fails to keep any records required
by article twenty-eight of this chapter shall be guilty of a misdemea-
nor.
[(k)] (H) The penalties provided for in this section shall not
preclude prosecution pursuant to the penal law with respect to the will-
ful failure of any person to pay over to the state any sales tax imposed
by section eleven hundred four, eleven hundred five, eleven hundred
seven, eleven hundred eight or eleven hundred nine of this chapter or by
S. 60--A 230 A. 160--A
any local law adopted by any city or county pursuant to article twenty-
nine of this chapter, whenever such person has been required to collect
and has collected any such sales tax. In any such prosecution under the
penal law, a person who has been required to collect and has collected
any such tax shall be deemed to have acted in a fiduciary character with
respect to the state or a political subdivision thereof, and the tax
collected shall be deemed to have been entrusted to such person by the
state or a political subdivision thereof.
[(l) Any person who willfully fails to pay sales or compensating use
tax, or to file a return of compensating use tax imposed by or pursuant
to the authority of article twenty-eight or twenty-nine of this chapter,
with respect to the purchase or use of automotive fuel or cigarettes
shall be guilty of a misdemeanor.
(m) Any person who willfully issues a false or fraudulent resale or
other exemption certificate or document with intent to evade tax shall
be guilty of a misdemeanor.
(n) Any person who, being duly subpoenaed, pursuant to section one
hundred seventy-four of this chapter or the provisions of the civil
practice law and rules, in connection with a matter arising under arti-
cle twenty-eight of this chapter, to attend as a witness or to produce
books, accounts, records, memoranda, documents or other papers who (i)
fails or refuses to attend without lawful excuse, (ii) refuses to be
sworn, (iii) refuses to answer any material and proper question, or (iv)
refuses, after reasonable notice, to produce books, accounts, records,
memoranda, documents or other papers in his possession or under his
control which constitute material and proper evidence shall be guilty of
a misdemeanor.
(o)] (I) Any entertainment promoter who willfully authorizes an enter-
tainment vendor, to whom such promoter has either directly or indirectly
rented, leased, granted a license to use or under any other arrangement
made space available in order for such vendor to make taxable sales of
tangible personal property at an entertainment event, without first
requiring such vendor to obtain a certificate of authority or who will-
fully fails to obtain an entertainment promoter certificate as required
under article twenty-eight of this chapter shall be guilty of a misde-
meanor.
[(p)] (J) Any person described in subdivision (a) of section eleven
hundred forty-two-A of this chapter who willfully fails to include all
information required under such section on a ticket or other memorandum
as described in such section shall be guilty of a misdemeanor.
[(q)] (K) Any owner of a place of business selling cigarettes at
retail who shall willfully and knowingly have in such owner's custody or
possession or under such owner's control any cigarettes on which (1) the
prepaid tax imposed by section eleven hundred three of this chapter has
not been assumed or paid by an agent licensed as such under article
twenty of this chapter or (2) the prepaid tax imposed by section eleven
hundred three of this chapter was required to have been passed through
to such owner and has not been included in the cost of such cigarettes
to such owner shall, in either case, be guilty of a misdemeanor.
Provided, however, if the amount of cigarettes is twenty thousand or
more, such owner shall be guilty of a class E felony. For purposes of
this subdivision, such owner shall willfully and knowingly have in such
owner's custody or possession or under such owner's control any ciga-
rettes on which such tax has not been assumed or paid by an agent
licensed as such under such article twenty where such owner has know-
ledge of the requirement that such tax be assumed or paid and where, to
S. 60--A 231 A. 160--A
such owner's knowledge, such tax has not been assumed or paid by such an
agent on such cigarettes. Such owner shall willfully and knowingly have
in such owner's custody or possession or under such owner's control
cigarettes on which such tax is required to have been passed through to
such owner and has not been included in the cost to such owner where
such owner has knowledge of the requirement that such tax be passed
through and where to such owner's knowledge such tax has not been so
included.
[(r)] (L) Any person who falsely or fraudulently makes, alters or
counterfeits any stamp prescribed by the commissioner under the
provisions of article twenty-eight or pursuant to the authority of arti-
cle twenty-nine of this chapter, or causes or procures to be falsely or
fraudulently made, altered or counterfeited any such stamp, or knowingly
and willfully utters, purchases, passes or tenders as true any such
false, altered or counterfeited stamp, or knowingly and willfully
possesses any cigarettes in packages bearing any such false, altered or
counterfeited stamp, and any person who knowingly and willfully makes,
causes to be made, purchases or receives any device for forging or coun-
terfeiting any stamp prescribed by the commissioner under the provisions
of article twenty-eight or pursuant to the authority of article twenty-
nine of this chapter, or who knowingly and willfully possesses any such
device, shall be guilty of a class E felony. For the purposes of this
subdivision, the words "stamp prescribed by the commissioner" shall
include a stamp, impression or imprint made by a metering machine, the
design of which has been approved by the commissioner.
[(s)] (M) All of the provisions of this section shall apply for
purposes of any taxes administered by the commissioner and imposed
pursuant to the authority of article twenty-nine of this chapter and for
the purposes of any taxes imposed by article twenty-eight-A of this
chapter. References in subdivisions [(i), (l), (q) and (r)] (F), (K),
AND (L) of this section to taxes imposed by or pursuant to the authority
of article twenty-eight or twenty-nine of this chapter include the taxes
required to be prepaid pursuant to section eleven hundred two or eleven
hundred three of this chapter.
[(t)] (N) (1) Every person engaged in the retail sale of motor fuel
and/or diesel motor fuel or a distributor of such fuels, as defined in
article twelve-A of this chapter, shall comply with the provisions of
section three hundred ninety-two-i of the general business law by reduc-
ing the prices charged for motor fuel and diesel motor fuel in an amount
equal to any reduction in taxes prepaid by the distributor or imposed on
retail customers resulting from computing sales and compensating use
taxes at a cents per gallon rate pursuant to the provisions of paragraph
two of subdivision (e) and subdivision (m) of section one thousand one
hundred eleven of this chapter.
(2) The commissioner, in cooperation with the state consumer
protection board, shall monitor the prices charged by persons engaged in
the retail sale or distribution of motor fuel and diesel motor fuel.
(3) Upon a finding by the commissioner that a person engaged in the
retail sale of motor fuel and/or diesel motor fuel or in the distrib-
ution of such fuels has violated the provisions of section three hundred
ninety-two-i of the general business law, the commissioner shall provide
notice of such violation to such person and hold a hearing on such
violation, with an opportunity for the accused to be heard, not less
than ten days after notice is provided. A violation of section three
hundred ninety-two-i of the general business law shall subject the
S. 60--A 232 A. 160--A
person violating such section to a civil penalty of up to five thousand
dollars for each day such violation occurs.
S 31. Section 1818 of the tax law, as added by chapter 65 of the laws
of 1985, is amended to read as follows:
S 1818. Real estate transfer tax.--Any willful act or omission, by any
person which constitutes a violation of any provision of article thir-
ty-one of this chapter [or any willful attempt to evade or defeat the
tax imposed by such article] shall constitute a misdemeanor.
S 32. Section 1820 of the tax law, as added by chapter 833 of the laws
of 1987, is amended to read as follows:
S 1820. Boxing and wrestling exhibitions tax. Any willful act or omis-
sion by any person which constitutes a violation of any provision of
article nineteen of this chapter [or any willful attempt to evade or
defeat the tax imposed by such article] shall constitute a misdemeanor.
S 33. The tax law is amended by adding three new sections 1831, 1832
and 1833 to read as follows:
S 1831. FAILURE TO OBEY SUBPOENAS. ANY PERSON WHO IS DULY SUBPOENAED,
PURSUANT TO SECTION ONE HUNDRED SEVENTY-FOUR OF THIS CHAPTER OR THE
PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES, IN CONNECTION WITH ANY
MATTER ARISING UNDER THIS CHAPTER, OR ANY RELATED INCOME OR EARNINGS TAX
STATUTE, TO ATTEND AS A WITNESS OR TO PRODUCE BOOKS, ACCOUNTS, RECORDS,
MEMORANDA, DOCUMENTS OR OTHER PAPERS, AND WHO (1) FAILS OR REFUSES TO
ATTEND WITHOUT LAWFUL EXCUSE, (2) REFUSES TO BE SWORN, (3) WITHOUT
ASSERTING A VALID LEGAL PRIVILEGE REFUSES TO ANSWER ANY MATERIAL AND
PROPER QUESTION, OR (4) WITHOUT ASSERTING A VALID LEGAL PRIVILEGE
REFUSES, AFTER REASONABLE NOTICE, TO PRODUCE BOOKS, ACCOUNTS, RECORDS,
MEMORANDA, DOCUMENTS OR OTHER PAPERS THAT CONSTITUTE MATERIAL AND PROPER
EVIDENCE IN HIS OR HER POSSESSION OR UNDER HIS OR HER CONTROL, SHALL BE
GUILTY OF A MISDEMEANOR.
S 1832. NON-PREEMPTION; PENAL LAW ANTICIPATORY OFFENSES AND ACCESSO-
RIAL LIABILITY APPLY. (A) UNLESS EXPRESSLY STATED OTHERWISE, THE PENAL-
TIES PROVIDED IN THIS CHAPTER SHALL NOT PRECLUDE PROSECUTION FOR ANY
OFFENSE UNDER THE PENAL LAW OR ANY OTHER CRIMINAL STATUTE.
(B) THE OFFENSES SPECIFIED IN TITLE G OF THE PENAL LAW AND THE
PROVISIONS OF ARTICLE TWENTY OF THE PENAL LAW ARE APPLICABLE TO ALL
OFFENSES DEFINED IN THIS CHAPTER.
S 1833. TAX PREPARER REGISTRATION. A COMMERCIAL TAX RETURN PREPARER,
AS DEFINED BY PARAGRAPH THREE OF SUBDIVISION (A) OF SECTION THIRTY-TWO
OF THIS CHAPTER, WHO WILLFULLY AND WITH THE INTENT TO EVADE THE REQUIRE-
MENTS OF SECTION THIRTY-TWO OF THIS CHAPTER, FAILS TO SIGN HIS OR HER
NAME TO ANY TAX RETURN THAT REQUIRES A SIGNATURE OR FAILS TO REGISTER AS
REQUIRED BY SUCH SECTION THIRTY-TWO, WILL BE GUILTY OF A CLASS A MISDE-
MEANOR.
S 34. This act shall take effect immediately and apply to offenses
committed on and after such effective date.
SUBPART K
Section 1. Section 702 of the county law is amended by adding a new
subdivision 7 to read as follows:
7. NOTWITHSTANDING ANY PROVISION OF LAW WITH RESPECT TO THE REQUIRE-
MENTS OF RESIDENCE, A DISTRICT ATTORNEY MAY APPOINT ONE OR MORE ATTOR-
NEYS EMPLOYED BY THE DEPARTMENT OF TAXATION AND FINANCE AS SPECIAL
ASSISTANT DISTRICT ATTORNEYS WITH RESPECT TO ANY INVESTIGATION OR PROSE-
CUTION CONCERNING, IN WHOLE OR PART, A VIOLATION OF ARTICLE THIRTY-SEVEN
S. 60--A 233 A. 160--A
OF THE TAX LAW OR OF THE PENAL LAW AS IT APPLIES TO THE ENFORCEMENT OF
ANY PROVISION OF THE TAX LAW.
S 2. This act shall take effect immediately.
SUBPART L
Section 1. Subdivision 4 of section 1700 of the tax law, as added by
section 1 of part CC1 of chapter 57 of the laws of 2008, is amended to
read as follows:
4. To participate in the voluntary disclosure and compliance program,
an eligible taxpayer must apply by submitting a disclosure statement in
the form and manner prescribed by the commissioner. The disclosure
statement shall contain all the information the commissioner reasonably
deems necessary to effectively administer the program. As long as all
the requirements of the voluntary disclosure and compliance program are
met, no application shall be denied solely because the taxpayer has
admitted that the delinquency was the result of willful or fraudulent
conduct. Except in instances where the taxpayer has failed to comply
with the terms of a voluntary disclosure and compliance agreement, the
commissioner shall not use the taxpayer's disclosure as evidence in any
proceeding brought against the taxpayer or reveal the contents of the
disclosure to any law enforcement or other agency. HOWEVER, THE DISCLO-
SURE OF ANY RETURNS OR REPORTS FILED UNDER THIS PROGRAM WITH THE SECRE-
TARY OF THE TREASURY OF THE UNITED STATES, HIS OR HER DELEGATES, OR THE
PROPER TAX OFFICER OF ANY STATE OR CITY IS PERMITTED AS OTHERWISE
PROVIDED FOR IN THIS CHAPTER.
S 2. This act shall take effect immediately.
SUBPART M
Section 1. Paragraph a of subdivision twenty-sixth of section 171 of
the tax law, as amended by section 1 of part M3 of chapter 62 of the
laws of 2003, is amended to read as follows:
a. Set the overpayment and underpayment rates of interest for purposes
of articles twelve-A, eighteen, twenty and twenty-one of this chapter.
Such rates shall be the overpayment and underpayment rates of interest
set pursuant to subsection (e) of section one thousand ninety-six of
this chapter, but the underpayment rate shall not be less than [six]
SEVEN AND ONE-HALF percent per annum. Any such rates set by such commis-
sioner shall apply to taxes, or any portion thereof, which remain or
become due or overpaid (other than overpayments under such article twen-
ty and not including reimbursements, if any, under any of such articles)
on or after the date on which such rates become effective and shall
apply only with respect to interest computed or computable for periods
or portions of periods occurring in the period during which such rates
are in effect. In computing the amount of any interest required to be
paid under such articles by such commissioner or by the taxpayer, or any
other amount determined by reference to such amount of interest, such
interest and such amount shall be compounded daily.
S 2. Subsections (a) and (j) of section 684 of the tax law, as amended
by section 6 of part R of chapter 85 of the laws of 2002, are amended to
read as follows:
(a) General.--If any amount of income tax is not paid on or before the
last date prescribed in this article for payment, interest on such
amount at the underpayment rate set by the commissioner pursuant to
section six hundred ninety-seven OF THIS PART, or if no rate is set, at
S. 60--A 234 A. 160--A
the rate of [six per cent] SEVEN AND ONE-HALF PERCENT per annum shall be
paid for the period from such last date to the date paid, whether or not
any extension of time for payment was granted. Interest under this
subsection shall not be paid if the amount thereof is less than one
dollar. If the time for filing of a return of tax withheld by an employ-
er is extended, the employer shall pay interest for the period for which
the extension is granted and may not charge such interest to the employ-
ee.
(j) Interest on erroneous refund.--Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner, shall bear interest at the underpayment rate set by the
commissioner pursuant to section six hundred ninety-seven OF THIS PART,
or if no rate is set, at the rate of [six per cent] SEVEN AND ONE-HALF
PERCENT per annum from the date of the payment of the refund, but only
if it appears that any part of the refund was induced by fraud or a
misrepresentation of a material fact.
S 3. Paragraph 1 of subsection (c) of section 685 of the tax law, as
amended by section 7 of part R of chapter 85 of the laws of 2002, is
amended to read as follows:
(1) Addition to the tax.--Except as otherwise provided in this
subsection and subsection (d) OF THIS SECTION, in the case of any under-
payment of estimated tax by an individual, there shall be added to the
tax under this article for the taxable year an amount determined by
applying the underpayment rate established under subsection (j) of
section six hundred ninety-seven OF THIS PART, or if no rate is set, at
the rate of [six] SEVEN AND ONE-HALF percent per annum, to the amount of
the underpayment for the period of the underpayment. Such period shall
run from the due date for the required installment to the earlier of the
fifteenth day of the fourth month following the close of the taxable
year or, with respect to any portion of the underpayment, the date on
which such portion is paid. For purposes of determining such date, a
payment of estimated tax shall be credited against unpaid required
installments in the order in which such installments are required to be
paid. There shall be four required installments for each taxable year,
due on April fifteenth, June fifteenth and September fifteenth of such
taxable year and on January fifteenth of the following taxable year.
S 4. Paragraph 1 of subsection (j) of section 697 of the tax law, as
amended by section 2 of part M3 of chapter 62 of the laws of 2003, is
amended to read as follows:
(1) The commissioner shall set the overpayment and underpayment rates
of interest to be paid pursuant to sections six hundred eighty-four, six
hundred eighty-five and six hundred eighty-eight OF THIS PART, but if no
such rates of interest are set, such [rates] OVERPAYMENT RATE shall be
deemed to be set at six percent per annum AND SUCH UNDERPAYMENT RATE
SHALL BE DEEMED TO BE SET AT SEVEN AND ONE-HALF PERCENT PER ANNUM. Such
rates shall be the rates prescribed in paragraphs two and four of this
subsection, but the underpayment rate shall not be less than [six] SEVEN
AND ONE-HALF percent per annum. Any such rates set by the commissioner
shall apply to taxes, or any portion thereof, which remain or become due
or overpaid on or after the date on which such rates become effective
and shall apply only with respect to interest computed or computable for
periods or portions of periods occurring in the period during which such
rates are in effect.
S 5. Paragraph 2 of subsection (j) of section 697 of the tax law, as
amended by section 10 of part R of chapter 85 of the laws of 2002, is
amended to read as follows:
S. 60--A 235 A. 160--A
(2) Rates of interest. (A) Overpayment rate. The overpayment rate of
interest set under this subsection shall be the [sum of (i) the] federal
short-term rate as provided under paragraph three of this subsection[,
plus (ii) two percentage points].
(B) Underpayment rate. The underpayment rate of interest set under
this subsection shall be the sum of (i) the federal short-term rate as
provided under paragraph three of this subsection, plus (ii) [four] FIVE
AND ONE-HALF percentage points.
S 6. Subsections (a) and (j) of section 1084 of the tax law, as
amended by section 123 and subsection (j) as relettered by section 148
of chapter 61 of the laws of 1989, are amended to read as follows:
(a) General.--If any amount of tax is not paid on or before the last
date prescribed in article nine or nine-a OF THIS CHAPTER for payment,
interest on such amount at the underpayment rate set by the commissioner
[of taxation and finance] pursuant to section one thousand ninety-six OF
THIS ARTICLE, or if no rate is set, at the rate of [six] SEVEN AND ONE-
HALF percent per annum shall be paid for the period from such last date
to the date paid, whether or not any extension of time for payment was
granted. Interest under this subsection shall not be paid if the amount
thereof is less than one dollar.
(j) Interest on erroneous refund.---Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner [of taxation and finance], shall bear interest at the
underpayment rate set by the commissioner pursuant to section one thou-
sand ninety-six OF THIS ARTICLE, or if no rate is set, at the rate of
[six] SEVEN AND ONE-HALF percent per annum from the date of the payment
of the refund, but only if it appears that any part of the refund was
induced by fraud or a misrepresentation of a material fact.
S 7. Paragraph 1 of subsection (c) of section 1085 of the tax law, as
amended by chapter 57 of the laws of 1993, is amended to read as
follows:
(1) If any taxpayer fails to file a declaration of estimated tax under
article nine-A OF THIS CHAPTER, or fails to pay all or any part of an
amount which is applied as an installment against such estimated tax, it
shall be deemed to have made an underpayment of estimated tax. There
shall be added to the tax for the taxable year an amount at the under-
payment rate set by the commissioner pursuant to section one thousand
ninety-six OF THIS ARTICLE, or if no rate is set, at the rate of [six]
SEVEN AND ONE-HALF percent per annum upon the amount of the underpayment
for the period of the underpayment but not beyond the fifteenth day of
the third month following the close of the taxable year. The amount of
the underpayment shall be, with respect to any installment of estimated
tax computed on the basis of the preceding year's tax, the excess of the
amount required to be paid over the amount, if any, paid on or before
the last day prescribed for such payment or, with respect to any other
installment of estimated tax, the excess of the amount of the install-
ment which would be required to be paid if the estimated tax were equal
to ninety-one percent of the tax shown on the return for the taxable
year (or if no return was filed, ninety-one percent of the tax for such
year) over the amount, if any, of the installment paid on or before the
last day prescribed for such payment. In any case in which there would
be no underpayment if "eighty percent" were substituted for "ninety-one
percent" each place it appears in this subsection, the addition to the
tax shall be equal to seventy-five percent of the amount otherwise
determined. No underpayment shall be deemed to exist with respect to a
S. 60--A 236 A. 160--A
declaration or installment otherwise due on or after the termination of
existence of the taxpayer.
S 8. Paragraph 1 of subsection (e) of section 1096 of the tax law, as
amended by section 3 of part M3 of chapter 62 of the laws of 2003, is
amended to read as follows:
(1) Authority to set interest rates.---The commissioner shall set the
overpayment and underpayment rates of interest to be paid pursuant to
sections two hundred thirteen, two hundred thirteen-b, two hundred
fifty-eight, two hundred sixty-three, two hundred ninety-four, one thou-
sand eighty-four, one thousand eighty-five, one thousand eighty-eight,
fourteen hundred sixty-one and fourteen hundred sixty-three OF THIS
CHAPTER, but if no such rate or rates of interest are set, such OVERPAY-
MENT rate [or rates] shall be deemed to be set at six percent per annum
AND SUCH UNDERPAYMENT RATE SHALL BE DEEMED TO BE SET AT SEVEN AND
ONE-HALF PERCENT PER ANNUM. Such overpayment and underpayment rates
shall be the rates prescribed in paragraph two of this subsection, but
the underpayment rate shall not be less than [six] SEVEN AND ONE-HALF
percent per annum. Any such rates set by the commissioner shall apply to
taxes, or any portion thereof, which remain or become due or overpaid on
or after the date on which such rates become effective and shall apply
only with respect to interest computed or computable for periods or
portions of periods occurring in the period during which such rates are
in effect.
S 9. Paragraph 2 of subsection (e) of section 1096 of the tax law, as
amended by chapter 61 of the laws of 1989 and subparagraph (B) as
amended by section 11 of part R of chapter 85 of the laws of 2002, is
amended to read as follows:
(2) General rule. (A) Overpayment rate. The overpayment rate set under
this subsection shall be the [sum of (i) the] federal short-term rate as
provided under paragraph three of this subsection[, plus (ii) two
percentage points].
(B) Underpayment rate. The underpayment rate set under this subsection
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subsection, plus (ii) [five] SEVEN percentage
points.
S 10. Subdivision (d) of section 1139 of the tax law, as amended by
chapter 61 of the laws of 1989, is amended to read as follows:
(d) (1) Except in respect to an overpayment made on a return described
in paragraph [(ii)] TWO of subdivision (a) of section eleven hundred
thirty-six [hereof] OF THIS PART or on a return described in subdivision
(c) of section eleven hundred thirty-seven-A OF THIS PART, interest
shall be allowed and paid upon any refund made or credit allowed pursu-
ant to this section except as otherwise provided in PARAGRAPH TWO OF
THIS SUBDIVISION OR subdivision (e) of this section and except that no
interest shall be allowed or paid if the amount thereof would be less
than one dollar. Such interest shall be at the overpayment rate set by
the commissioner [of taxation and finance] pursuant to section eleven
hundred forty-two OF THIS PART, or if no rate is set, at the rate of six
[per cent] PERCENT per annum from the date when the tax, penalty or
interest refunded or credited was paid to a date preceding the date of
the refund check by not more than thirty days, provided, however, that
for the purposes of this subdivision any tax paid before the last day
prescribed for its payment shall be deemed to have been paid on such
last day. In the case of a REFUND OR CREDIT CLAIMED ON A return of tax
which is filed after the last date prescribed for filing such return
(determined with regard to extensions), OR CLAIMED ON AN APPLICATION FOR
S. 60--A 237 A. 160--A
REFUND OR CREDIT, no interest shall be allowed or paid for any day
before the date on which the return OR APPLICATION is filed. For
purposes of this subdivision, a return OR APPLICATION FOR REFUND OR
CREDIT shall not be treated as filed until it is filed in processible
form. A return OR APPLICATION is in a processible form if [such return]
IT is filed on a permitted form, and [such return] contains the taxpay-
er's name, address and identifying number and the required signatures,
and sufficient required information (whether on the return OR APPLICA-
TION or on required attachments) to permit the mathematical verification
of tax liability shown on the return OR REFUND OR CREDIT CLAIMED ON THE
APPLICATION.
(2) IF A REFUND IS MADE OR A CREDIT IS ALLOWED WITHIN THREE MONTHS
AFTER THE LAST DATE PRESCRIBED OR PERMITTED BY EXTENSION OF TIME FOR
FILING A RETURN ON WHICH THE REFUND OR CREDIT WAS CLAIMED OR WITHIN
THREE MONTHS AFTER THE RETURN WAS FILED, WHICHEVER IS LATER, OR WITHIN
THREE MONTHS AFTER AN APPLICATION FOR REFUND OR CREDIT IS FILED ON WHICH
THAT REFUND OR CREDIT WAS CLAIMED, NO INTEREST WILL BE ALLOWED OR PAID
ON THAT REFUND OR CREDIT.
S 11. Subdivision 9 of section 1142 of the tax law, as amended by
section 4 of part M3 of chapter 62 of the laws of 2003, is amended to
read as follows:
9. To set the overpayment and underpayment rates of interest for
purposes of sections eleven hundred thirty-nine and eleven hundred
forty-five OF THIS PART. Such rates shall be the overpayment and under-
payment rates of interest set pursuant to subsection (e) of section one
thousand ninety-six of this chapter, but the underpayment rate shall not
be less than [six] SEVEN AND ONE-HALF percent per annum. Any such rates
set by the commissioner shall apply to taxes, or any portion thereof,
which remain or become due or overpaid on or after the date on which
such rates become effective and shall apply only with respect to inter-
est computed or computable for periods or portions of periods occurring
in the period during which such rates are in effect. In computing the
amount of any interest required to be paid under this article by the
commissioner or by the taxpayer, or any other amount determined by
reference to such amount of interest, such interest and such amount
shall be compounded daily. The preceding sentence shall not apply for
purposes of computing the amount of any interest for failure to pay
estimated tax under subparagraph (iv) of paragraph one of subdivision
(a) of section [one thousand one] ELEVEN hundred forty-five of this
[article] PART.
S 12. Subparagraph (ii) of paragraph 1 and paragraph 2 of subdivision
(a) of section 1145 of the tax law, as amended by section 12 of part R
of chapter 85 of the laws of 2002, are amended to read as follows:
(ii) If any amount of tax is not paid on or before the last date
prescribed in this article for payment, interest on such amount at the
rate of fourteen AND ONE-HALF percent per annum or at the underpayment
rate set by the commissioner pursuant to section eleven hundred forty-
two OF THIS PART, whichever is greater, shall be paid for the period
from such last date to the date paid, whether or not any extension of
time for payment was granted. Interest under this subparagraph shall
not be paid if the amount thereof is less than one dollar.
(2) If the failure to pay or pay over any tax to the commissioner
within the time required by this article is due to fraud, in lieu of the
penalties and interest provided for in subparagraphs (i) and (ii) of
paragraph one of this subdivision, there shall be added to the tax (i) a
penalty of fifty percent of the amount of the tax due, plus (ii) inter-
S. 60--A 238 A. 160--A
est on such unpaid tax at the rate of fourteen AND ONE-HALF percent per
annum or the underpayment rate of interest set by the commissioner
pursuant to section eleven hundred forty-two OF THIS PART, whichever is
greater, for the period beginning on the last day prescribed by this
article for the payment of such tax (determined without regard to any
extension of time for paying) and ending on the day on which such tax is
paid, plus (iii) for the period beginning on the last day prescribed by
this article for the payment of such tax (determined without regard to
any extension of time for paying) and ending on the day the amount of
tax due is finally determined or, if earlier, on the day on which such
tax is paid, an amount equal to fifty percent of the interest payable
under subparagraph (ii) of this paragraph, on that portion of the unpaid
tax which is attributable to fraud.
S 13. Paragraph (a) of subdivision 1 of section 1405 of the abandoned
property law, as amended by section 13 of part R of chapter 85 of the
laws of 2002, is amended to read as follows:
(a) Notwithstanding any other provision of law, no owner of abandoned
property shall be entitled to receive interest on account of such aban-
doned property from and after the date a payment of such abandoned prop-
erty is hereafter made to the state comptroller pursuant to this chapter
or any law relating to abandoned property, whether or not he OR SHE was
entitled to interest on such property prior to such date, except that
interest at the overpayment rate set by the commissioner of taxation and
finance pursuant to subsection (j) of section six hundred ninety-seven
of the tax law, [less] PLUS one percentage point, shall accrue to aban-
doned property hereafter paid to the state comptroller under the follow-
ing provisions of this chapter, for the first five years such property
is held by him OR HER:
(i) paragraph (a) of subdivision one of section three hundred of this
chapter; or
(ii) subdivision one of section four hundred of this chapter; or
(iii) paragraph (a) of subdivision one of section six hundred of this
chapter; or
(iv) subdivision one of section [ten hundred] ONE THOUSAND of this
chapter.
S 14. Subdivision 6 of section 72-0201 of the environmental conserva-
tion law, as amended by section 14 of part R of chapter 85 of the laws
of 2002, is amended to read as follows:
6. In addition to any penalty that may be assessed pursuant to subdi-
vision five of this section, there shall be collected interest upon the
unpaid amount at the underpayment rate set by the commissioner of taxa-
tion and finance pursuant to section one thousand ninety-six of the tax
law, minus [two] FOUR percentage points. Such interest shall accrue
thirty days from the date prescribed for fee payment until payment is
actually made to the department.
S 15. Subparagraph (iii) of paragraph 2 of subsection (a) of section
1112 of the insurance law, as amended by section 15 of part R of chapter
85 of the laws of 2002, is amended to read as follows:
(iii) If any insurer fails to pay all or any part of the initial
payment or estimated payment due pursuant to subparagraph (i) or (ii) of
this paragraph, it shall be deemed to have made an underpayment. There
shall be added to the amount due pursuant to paragraph one of this
subsection, an amount at the rate set for underpayments by the commis-
sioner of taxation and finance pursuant to section one thousand ninety-
six of the tax law, minus [two] FOUR percentage points, or if no rate is
set, at the rate of six percent per annum upon the amount of the under-
S. 60--A 239 A. 160--A
payment for the period of the underpayment. In computing the amount of
any interest required to be paid, such interest shall not be compounded.
The amount of the underpayment shall be, with respect to the initial
payment or any estimated payment, the excess of the amount required to
be paid over the amount, if any, paid on or before the last day
prescribed for such payment. If the superintendent demands payment of
the initial payment or any estimated payment, and if such amount is paid
within ten days after the date of such demand, interest on the amount so
paid shall not be imposed for the period after the date of such demand.
No portion of the interest imposed pursuant to this subparagraph may be
waived.
S 16. Subparagraph (iv) of paragraph 2 of subsection (a) of section
1112 of the insurance law, as amended by chapter 61 of the laws of 1989,
is amended to read as follows:
(iv) Notwithstanding the provisions of section sixteen of the state
finance law, interest shall be allowed and paid at the rate set for
overpayments, PLUS TWO PERCENTAGE POINTS, by the commissioner of taxa-
tion and finance pursuant to section one thousand ninety-six of the tax
law, or if no rate is set, at the rate of six percent per annum upon any
overpayment, from the date payment was due to a date (to be determined
by the superintendent) preceding the date of a refund check by not more
than thirty days. In the case of a payment which is made after the last
date prescribed for payment of such payment, no interest shall be
allowed or paid for any day before the date on which the payment was
made. In computing the amount of interest required to be paid, such
interest shall not be compounded. No interest shall be allowed or paid
if the amount thereof is less than one dollar.
S 17. Paragraph (a) of subsection 4 of section 9110 of the insurance
law, as amended by section 16 of part R of chapter 85 of the laws of
2002, is amended to read as follows:
(a) Interest. If any amount of tax is not paid on or before the date
prescribed for payment thereof in subsection two of this section, inter-
est on such amount of tax at the underpayment rate set by the commis-
sioner of taxation and finance pursuant to section one thousand ninety-
six of the tax law, plus [three] ONE percentage [points] POINT, shall be
paid to the superintendent for the period from the date prescribed for
payment until the date paid.
S 18. Paragraph (a) of subsection 4 of section 9111 of the insurance
law, as amended by section 17 of part R of chapter 85 of the laws of
2002, is amended to read as follows:
(a) Interest. If any amount of tax is not paid on or before the date
prescribed for payment thereof in subsection two of this section, inter-
est on such amount of tax at the underpayment rate set by the commis-
sioner of taxation and finance pursuant to section one thousand ninety-
six of the tax law, plus [three] ONE percentage [points] POINT, shall be
paid to the superintendent for the period from the date prescribed for
payment until the date paid.
S 19. Paragraph 1 of subsection (d) of section 9111-a of the insurance
law, as amended by section 18 of part R of chapter 85 of the laws of
2002, is amended to read as follows:
(1) Interest. If any amount of tax is not paid on or before the date
prescribed for payment thereof in paragraph two of this subsection,
interest on such amount of tax at the underpayment rate set by the
commissioner of taxation and finance pursuant to section one thousand
ninety-six of the tax law, plus [three] ONE percentage [points] POINT,
S. 60--A 240 A. 160--A
shall be paid to the superintendent for the period from the date
prescribed for payment until the date paid.
S 20. Paragraph 1 of subsection (d) of section 9111-b of the insurance
law, as amended by section 19 of part R of chapter 85 of the laws of
2002, is amended to read as follows:
(1) Interest. If any amount of tax is not paid on or before the date
prescribed for payment thereof in paragraph two of this subsection,
interest on such amount of tax at the underpayment rate set by the
commissioner of taxation and finance pursuant to section one thousand
ninety-six of the tax law, plus [three] ONE percentage [points] POINT,
shall be paid to the superintendent for the period from the date
prescribed for payment until the date paid.
S 21. Paragraph 1 of subsection (d) of section 9111-c of the insurance
law, as amended by section 20 of part R of chapter 85 of the laws of
2002, is amended to read as follows:
(1) Interest. If any amount of tax is not paid on or before the date
prescribed for payment thereof in paragraph two of this subsection,
interest on such amount of tax at the underpayment rate set by the
commissioner of taxation and finance pursuant to section one thousand
ninety-six of the tax law, plus [three] ONE percentage [points] POINT,
shall be paid to the superintendent for the period from the date
prescribed for payment until the date paid.
S 22. Subparagraph (i) of paragraph (a) of subdivision 3 of section 77
of the lien law, as amended by section 21 of part R of chapter 85 of the
laws of 2002, is amended to read as follows:
(i) Relief to compel an interim or final accounting by the trustee; to
identify and recover trust assets in the hands of any person together
with interest accrued thereon from the time of the diversion. Interest
shall be computed at the rate equal to the underpayment rate set by the
commissioner of taxation and finance pursuant to subsection (e) of
section one thousand ninety-six of the tax law, minus [two] FOUR
percentage points; to set aside as a diversion any unauthorized payment,
assignment or other transfer, whether voluntary or involuntary; to
enjoin a diversion; to recover damages for breach of trust or partic-
ipation therein;
S 23. Paragraph (a) of subdivision 8 of section 43.04 of the mental
hygiene law, as amended by section 22 of part R of chapter 85 of the
laws of 2002, is amended to read as follows:
(a) If an estimated payment made for a month to which an assessment
applies is less than ninety percent of the actual amount due for such
month, interest shall be due and payable to the commissioner of the
office of mental retardation and developmental disabilities on the
difference between the amount paid and the amount due from the day of
the month the estimated payment was due until the date of payment. The
rate of interest shall be twelve percent per annum or at the rate of
interest set by the commissioner of taxation and finance with respect to
underpayments of tax pursuant to subsection (e) of section one thousand
ninety-six of the tax law minus [two] FOUR percentage points. Interest
under this paragraph shall not be paid if the amount thereof is less
than one dollar. Interest, if not paid by the due date of the following
month's estimated payment, may be collected by the commissioner of the
office of mental retardation and developmental disabilities pursuant to
paragraph (c) of subdivision six of this section in the same manner as
an assessment pursuant to subdivision two of this section.
S. 60--A 241 A. 160--A
S 24. Paragraph (a) of subdivision 8 of section 43.06 of the mental
hygiene law, as amended by section 23 of part R of chapter 85 of the
laws of 2002, is amended to read as follows:
(a) If an estimated payment made for a month to which an assessment
applies is less than ninety percent of the actual amount due for such
month, interest shall be due and payable to the commissioner on the
difference between the amount paid and the amount due from the day of
the month the estimated payment was due until the date of payment. The
rate of interest shall be twelve percent per annum or at the rate of
interest set by the commissioner of taxation and finance with respect to
underpayments of tax pursuant to subsection (e) of section one thousand
ninety-six of the tax law minus [two] FOUR percentage points. Interest
under this paragraph shall not be paid if the amount thereof is less
than one dollar. Interest, if not paid by the due date of the following
month's estimated payment, may be collected by the commissioner pursuant
to paragraph (c) of subdivision six of this section in the same manner
as an assessment pursuant to subdivision two of this section.
S 25. Subparagraph (i) of paragraph (c) of subdivision 20 of section
2807-c of the public health law, as amended by section 24 of part R of
chapter 85 of the laws of 2002, is amended to read as follows:
(i) Interest shall be due and payable to the commissioner by a general
hospital or by a payor paying directly to a pool on the difference
between the amount paid to a pool and the amount due to such pool by the
hospital or payor from the day of the month the payment was due until
the date of payment. The rate of interest shall be twelve percent per
annum or at the rate of interest set by the commissioner of taxation and
finance with respect to underpayments of tax pursuant to subsection (e)
of section one thousand ninety-six of the tax law minus [two] FOUR
percentage points. Interest under this paragraph shall not be paid if
the amount thereof is less than one dollar. Interest may be collected by
the commissioner in the same manner as an arrearage pursuant to this
subdivision.
S 26. Paragraph (a) of subdivision 8 of section 2807-d of the public
health law, as amended by section 25 of part R of chapter 85 of the laws
of 2002, is amended to read as follows:
(a) If an estimated payment made for a month to which an assessment
applies is less than ninety percent of the actual amount due for such
month, interest shall be due and payable to the commissioner on the
difference between the amount paid and the amount due from the day of
the month the estimated payment was due until the date of payment. The
rate of interest shall be twelve percent per annum or at the rate of
interest set by the commissioner of taxation and finance with respect to
underpayments of tax pursuant to subsection (e) of section one thousand
ninety-six of the tax law minus [two] FOUR percentage points. Interest
under this paragraph shall not be paid if the amount thereof is less
than one dollar. Interest, if not paid by the due date of the following
month's estimated payment, may be collected by the commissioner pursuant
to paragraph (c) of subdivision six of this section in the same manner
as an assessment pursuant to subdivision two of this section.
S 27. Subparagraph (i) of paragraph (c) of subdivision 4 of section
2807-f of the public health law, as amended by section 26 of part R of
chapter 85 of the laws of 2002, is amended to read as follows:
(i) If a payment made for a month to which a payment factor applies is
less than ninety percent of the actual amount due for such month, inter-
est shall be due and payable to the commissioner by a health maintenance
organization on the difference between the amount paid and the amount
S. 60--A 242 A. 160--A
due from the day of the month the payment was due until the date of
payment. The rate of interest shall be twelve percent per annum or, if
greater, at the rate of interest set by the commissioner of taxation and
finance with respect to underpayments of tax pursuant to subsection (e)
of section one thousand ninety-six of the tax law minus [two] FOUR
percentage points. Interest under this paragraph shall not be paid if
the amount thereof is less than one dollar.
S 28. Paragraph (a) of subdivision 8 of section 2807-j of the public
health law, as amended by section 27 of part R of chapter 85 of the laws
of 2002, is amended to read as follows:
(a) If a payment made pursuant to this section or to section twenty-
eight hundred seven-s or twenty-eight hundred seven-t of this article
for a month to which an allowance applies is less than ninety percent of
the amount due or which the commissioner estimates, based on available
financial and statistical data, is due for such month, interest shall be
due and payable to the commissioner by a designated provider of
services, or by a third-party payor, other than a state governmental
agency, that has elected to pay an allowance directly, on the difference
between the amount paid and the amount due or estimated to be due from
the day of the month the payment was due until the date of payment. The
rate of interest shall be twelve percent per annum or, if greater, at
the rate of interest set by the commissioner of taxation and finance
with respect to underpayments of tax pursuant to subsection (e) of
section one thousand ninety-six of the tax law minus [two] FOUR percent-
age points. Interest under this paragraph shall not be paid if the
amount thereof is less than one dollar. Interest due from a designated
provider of services, if not paid by the due date of the following
month's payment, may be collected by the commissioner pursuant to para-
graph (c) of subdivision six of this section in the same manner as an
allowance pursuant to subdivision two of this section.
S 29. Paragraph (a) of subdivision 8 of section 3614-a of the public
health law, as amended by section 28 of part R of chapter 85 of the laws
of 2002, is amended to read as follows:
(a) If an estimated payment made for a month to which an assessment
applies is less than ninety percent of the actual amount due for such
month, interest shall be due and payable to the commissioner on the
difference between the amount paid and the amount due from the day of
the month the estimated payment was due until the date of payment. The
rate of interest shall be twelve percent per annum or at the rate of
interest set by the commissioner of taxation and finance with respect to
underpayments of tax pursuant to subsection (e) of section one thousand
ninety-six of the tax law minus [two] FOUR percentage points. Interest
under this paragraph shall not be paid if the amount thereof is less
than one dollar. Interest, if not paid by the due date of the following
month's estimated payment, may be collected by the commissioner pursuant
to paragraph (c) of subdivision six of this section in the same manner
as an assessment pursuant to subdivision two of this section.
S 30. Paragraph (a) of subdivision 8 of section 3614-b of the public
health law, as amended by section 29 of part R of chapter 85 of the laws
of 2002, is amended to read as follows:
(a) If an estimated payment made for a month to which assessment
applies is less than ninety percent of the actual amount due for such
month, interest shall be due and payable to the commissioner on the
difference between the amount paid and the amount due from the day of
the month the estimated payment was due until the date of the payment.
The rate of interest shall be twelve percent per annum or at the rate of
S. 60--A 243 A. 160--A
interest set by the commissioner of taxation and finance with respect to
underpayment of tax pursuant to subsection (e) of section one thousand
ninety-six of the tax law minus [two] FOUR percentage points. Interest
under this paragraph shall not be paid if the amount thereof is less
than one dollar. Interest, if not paid by the due date of the following
month's estimated payment, may be collected by the commissioner pursuant
to paragraph (c) of subdivision six of this section in the same manner
as an assessment pursuant to subdivision two of this section.
S 31. Subdivision 2 of section 726 of the real property tax law, as
amended by section 30 of part R of chapter 85 of the laws of 2002, is
amended to read as follows:
2. Interest shall be paid on the amount of any refund made pursuant to
this section, computed from the date of payment of the tax or other levy
or portion thereof refunded; provided, however, that interest on the
amount of any such refund for the period after any final order determin-
ing the assessment reviewed to be excessive, unequal or unlawful, or
determining that real property was misclassified, notwithstanding that
an appeal in the proceeding or from such order may be pending, shall be
paid only from the date that application for audit and payment of such
refund shall have been duly made to the appropriate fiscal officer or
body. Such rate of interest shall be the overpayment rate set by the
commissioner of taxation and finance pursuant to subsection (j) of
section six hundred ninety-seven of the tax law, PLUS TWO PERCENTAGE
POINTS, and such interest rate shall not be greater than nine percent
per annum. Provided, the interest rate of the first calendar quarter
set forth in the first month of the calendar year shall be the annual
interest rate, and shall be the rate of interest prescribed by this
subdivision. If, as a result of an appeal, there shall be an increase in
the amount to be refunded, for the purposes of computing the interest
thereon the determination upon such appeal shall be deemed a determi-
nation only with respect to such increase.
S 32. Subdivision 2 of section 924-a of the real property tax law, as
amended by chapter 355 of the laws of 2003, is amended to read as
follows:
2. The rate of interest applicable to the third calendar quarter of
each year, as set by the commissioner of taxation and finance pursuant
to subparagraph (A) of paragraph two of subsection (j) of section six
hundred ninety-seven of the tax law, PLUS TWO PERCENTAGE POINTS, shall
be the rate of interest applicable to unpaid real property taxes for
purposes of this section. Such commissioner shall set such rate on or
before the fifteenth day of July in each year. Such rate shall be effec-
tive for all warrants issued for a collection period commencing on or
after the first day of September next succeeding the date the rate of
interest is set. Provided, however, the rate of interest prescribed by
this subdivision shall in no event be less than twelve per centum per
annum. The state board shall inform each affected municipality of any
change in the rate established pursuant to this subdivision.
S 33. Paragraph (a) of subdivision 7 of section 367-i of the social
services law, as amended by section 32 of part R of chapter 85 of the
laws of 2002, is amended to read as follows:
(a) If an estimated payment made for a month to which an assessment
applies is less than ninety percent of the actual amount due for such
month, interest shall be due and payable to the commissioner of health
on the difference between the amount paid and the amount due from the
day of the month the estimated payment was due until the date of
payment. The rate of interest shall be twelve percent per annum or at
S. 60--A 244 A. 160--A
the rate of interest set by the commissioner of taxation and finance
with respect to underpayments of tax pursuant to subsection (e) of
section one thousand ninety-six of the tax law minus [two] FOUR percent-
age points. Interest under this paragraph shall not be paid if the
amount thereof is less than one dollar. Interest, if not paid by the due
date of the following month's estimated payment, may be collected by the
commissioner of health pursuant to paragraph (c) of subdivision five of
this section in the same manner as an assessment pursuant to subdivision
two of this section.
S 34. Subdivision 4 of section 18 of the state finance law, as amended
by section 33 of part R of chapter 85 of the laws of 2002, is amended to
read as follows:
4. Unless provided otherwise by contract, statute or regulation, a
debtor that fails to make payment of a debt within the period set forth
in subdivision three of this section shall pay, in addition to the
amount of debt, the greater of: (a) interest on the outstanding balance
of the debt, accruing on the date on which the receipt of the first
billing invoice or first notice occurs, computed at the underpayment
rate which is in effect on the date which the receipt of the first bill-
ing invoice or first billing notice occurs; or (b) a late payment charge
of ten dollars. For the purposes of this section, the underpayment rate
shall be that rate set by the commissioner of taxation and finance and
published in the state register pursuant to subsection (e) of section
one thousand ninety-six of the tax law minus [two] FOUR percentage
points. With respect to specific classes of debt collected by a state
agency, the director of the budget or official of a state agency so
designated by the director of the budget may approve the assessment of
interest or late payment charges at a date later than the thirtieth day
following such debtor's receipt of any billing invoice or notice sent by
the state agency.
S 35. Subdivisions (a) and (j) of section 11-1784 of the administra-
tive code of the city of New York, as amended by section 34 of part R of
chapter 85 of the laws of 2002, are amended to read as follows:
(a) General. If any amount of income tax is not paid on or before the
last date prescribed in this chapter for payment, interest on such
amount at the underpayment rate set by the commissioner of taxation and
finance pursuant to section 11-1797 OF THIS SUBCHAPTER, or if no rate is
set, at the rate of [six] SEVEN AND ONE-HALF percent per annum shall be
paid for the period from such last date to the date paid, whether or not
any extension of time for payment was granted. Interest under this
subdivision shall not be paid if the amount thereof is less than one
dollar. If the time for filing of a return of tax withheld by an employ-
er is extended, the employer shall pay interest for the period for which
the extension is granted and may not charge such interest to the employ-
ee.
(j) Interest on erroneous refund. Any portion of tax or other amount
which has been erroneously refunded, and which is recoverable by the
commissioner of taxation and finance, shall bear interest at the under-
payment rate set by such commissioner pursuant to section 11-1797 OF
THIS SUBCHAPTER, or if no rate is set, at the rate of [six] SEVEN AND
ONE-HALF percent per annum from the date of the payment of the refund,
but only if it appears that any part of the refund was induced by fraud
or a misrepresentation of a material fact.
S 36. Paragraph 1 of subdivision (c) of section 11-1785 of the admin-
istrative code of the city of New York, as amended by section 35 of part
R of chapter 85 of the laws of 2002, is amended to read as follows:
S. 60--A 245 A. 160--A
(1) Addition to the tax. Except as otherwise provided in this subdivi-
sion and subdivision (d) OF THIS SECTION, in the case of any underpay-
ment of estimated tax by an individual, there shall be added to the tax
under this chapter for the taxable year an amount determined by applying
the underpayment rate established under section 11-1797 OF THIS SUBCHAP-
TER, or if no rate is set, at the rate of [six] SEVEN AND ONE-HALF
percent per annum, to the amount of the underpayment for the period of
the underpayment. Such period shall run from the due date for the
required installment to the earlier of the fifteenth day of the fourth
month following the close of the taxable year or, with respect to any
portion of the underpayment, the date on which such portion is paid. For
purposes of determining such date, a payment of estimated tax shall be
credited against unpaid required installments in the order in which such
installments are required to be paid. There shall be four required
installments for each taxable year, due on April fifteenth, June
fifteenth and September fifteenth of such taxable year and on January
fifteenth of the following taxable year.
S 37. Paragraph 1 of subdivision (j) of section 11-1797 of the admin-
istrative code of the city of New York, as amended by section 5 of part
M3 of chapter 62 of the laws of 2003, is amended to read as follows:
(1) Authority to set interest rates. The commissioner of taxation and
finance shall set the overpayment and underpayment rates of interest to
be paid pursuant to sections 11-1784, 11-1785 and 11-1788 OF THIS
SUBCHAPTER, but if no such rates of interest are set, such [rates] OVER-
PAYMENT RATE shall be deemed to be set at six percent per annum AND THE
UNDERPAYMENT RATE SHALL BE DEEMED TO BE SET AT SEVEN AND ONE-HALF
PERCENT PER ANNUM. Such rates shall be the rates prescribed by para-
graphs two and four of this subdivision, but the underpayment rate shall
not be less than [six] SEVEN AND ONE-HALF percent per annum. Any such
rates set by such commissioner shall apply to taxes, or any portion
thereof, which remain or become due or overpaid on or after the date on
which such rates become effective and shall apply only with respect to
interest computed or computable for periods or portions of periods
occurring in the period during which such rates are in effect.
S 38. Paragraph 2 of subdivision (j) of section 11-1797 of the admin-
istrative code of the city of New York, as amended by section 37 of part
R of chapter 85 of the laws of 2002, is amended to read as follows:
(2) Rates of interest. (A) Overpayment rate. The overpayment rate of
interest set under this subdivision shall be the [sum of (i) the] feder-
al short-term rate as provided under paragraph three of this subdivi-
sion[, plus (ii) two percentage points].
(B) Underpayment rate. The underpayment rate of interest set under
this subdivision shall be the sum of (i) the federal short-term rate as
provided under paragraph three of this subdivision, plus (ii) [four]
FIVE AND ONE-HALF percentage points.
S 39. This act shall take effect immediately, and shall apply to the
interest chargeable or due on taxes or on any other amounts, or any
portion thereof, that remain or become due or overpaid on that day,
except that:
(a) Section ten of this act shall take effect on June 1, 2009, and
shall apply to refunds or credits claimed on returns or applications for
refund or credit filed on or after that date;
(b) Provided, however, that the amendments to paragraph (a) of subdi-
vision 8 of section 2807-j of the public health law made by section
twenty-eight of this act shall not affect the expiration of such section
and shall be deemed to expire therewith; and
S. 60--A 246 A. 160--A
(c) Notwithstanding any other provision of law, for the calendar quar-
ter in which this act becomes a law, the department of taxation and
finance may provide appropriate general notice of the new interest rates
for that calendar quarter within twenty days after the date this act has
become a law, without needing to have notice of the rates published in
advance in the State Register, and shall cause such a notice to be
published in the State Register as soon as is practicable.
SUBPART N
Section 1. Section 1136 of the tax law is amended by adding a new
subdivision (i) to read as follows:
(I) (1) THE FOLLOWING PERSONS MUST FILE, IN ADDITION TO ANY OTHER
RETURN REQUIRED BY THIS CHAPTER, ANNUAL INFORMATION RETURNS WITH THE
COMMISSIONER PROVIDING THE INFORMATION SPECIFIED BELOW ABOUT THEIR TRAN-
SACTIONS WITH VENDORS, HOTEL OPERATORS, AND RECIPIENTS OF AMUSEMENT
CHARGES:
(A) EVERY INSURER LICENSED TO ISSUE MOTOR VEHICLE PHYSICAL DAMAGE OR
MOTOR VEHICLE PROPERTY DAMAGE LIABILITY INSURANCE FOR MOTOR VEHICLES
REGISTERED IN THIS STATE IF, DURING THE PERIOD COVERED BY THE RETURN, IT
HAS PAID CONSIDERATION OR AN AMOUNT UNDER AN INSURANCE CONTRACT FOR THE
SERVICING OR REPAIR OF A MOTOR VEHICLE ON BEHALF OF AN INSURED. FOR EACH
PERSON TO WHOM THE INSURER HAS PAID THE CONSIDERATION OR AMOUNT
DESCRIBED IN THE PRECEDING SENTENCE, THE RETURN MUST REPORT THE TOTAL
AMOUNT PAID FOR THAT PERIOD, ALONG WITH THE OTHER INFORMATION REQUIRED
BY PARAGRAPH TWO OF THIS SUBDIVISION.
(B) EVERY FRANCHISOR, AS DEFINED BY SECTION SIX HUNDRED EIGHTY-ONE OF
THE GENERAL BUSINESS LAW, THAT HAS AT LEAST ONE FRANCHISEE, AS DEFINED
BY SUBDIVISION FOUR OF SECTION SIX HUNDRED EIGHTY-ONE OF THE GENERAL
BUSINESS LAW, THAT IS REQUIRED TO BE REGISTERED UNDER SECTION ELEVEN
HUNDRED THIRTY-FOUR OF THIS PART. FOR EACH FRANCHISEE, THE RETURN MUST
INCLUDE THE GROSS SALES OF THE FRANCHISEE IN THIS STATE REPORTED BY THE
FRANCHISEE TO THE FRANCHISOR, THE TOTAL AMOUNT OF SALES BY THE FRANCHI-
SOR TO THE FRANCHISEE, AND ANY INCOME REPORTED TO THE FRANCHISOR BY EACH
FRANCHISEE, ALONG WITH THE INFORMATION REQUIRED BY PARAGRAPH TWO OF THIS
SUBDIVISION.
(C) EVERY WHOLESALER, AS DEFINED BY SECTION THREE OF THE ALCOHOLIC
BEVERAGE CONTROL LAW, IF IT HAS MADE A SALE OF AN ALCOHOLIC BEVERAGE, AS
DEFINED BY SECTION FOUR HUNDRED TWENTY OF THIS CHAPTER, WITHOUT COLLECT-
ING SALES OR USE TAX DURING THE PERIOD COVERED BY THE RETURN, EXCEPT (I)
A SALE TO A PERSON THAT HAS FURNISHED AN EXEMPT ORGANIZATION CERTIFICATE
TO THE WHOLESALER FOR THAT SALE; OR (II) A SALE TO ANOTHER WHOLESALER
WHOSE LICENSE UNDER THE ALCOHOLIC BEVERAGE CONTROL LAW DOES NOT ALLOW IT
TO MAKE RETAIL SALES OF THE ALCOHOLIC BEVERAGE. FOR EACH VENDOR, OPERA-
TOR, OR RECIPIENT TO WHOM THE WHOLESALER HAS MADE A SALE WITHOUT
COLLECTING SALES OR COMPENSATING USE TAX, THE RETURN MUST INCLUDE THE
TOTAL VALUE OF THOSE SALES MADE DURING THE PERIOD COVERED BY THE RETURN
(EXCEPTING THE SALES DESCRIBED IN CLAUSES (I) AND (II) OF THIS SUBPARA-
GRAPH) AND THE VENDOR'S, OPERATOR'S OR RECIPIENT'S STATE LIQUOR AUTHORI-
TY LICENSE NUMBER, ALONG WITH THE INFORMATION REQUIRED BY PARAGRAPH TWO
OF THIS SUBDIVISION.
(2) THE RETURNS REQUIRED BY PARAGRAPH ONE OF THIS SUBDIVISION MUST
ALSO INCLUDE, FOR EACH VENDOR, OPERATOR, OR RECIPIENT ABOUT WHOM INFOR-
MATION IS REQUIRED TO BE REPORTED UNDER SUCH PARAGRAPH, THE NAME AND
ADDRESS, AND THE CERTIFICATE OF AUTHORITY OR FEDERAL IDENTIFICATION
NUMBER, AND ANY OTHER INFORMATION REQUIRED BY THE COMMISSIONER. THE
S. 60--A 247 A. 160--A
COMMISSIONER MAY, IN THE COMMISSIONER'S DISCRETION, REQUIRE THE REPORT-
ING OF LESS THAN ALL THE INFORMATION OTHERWISE REQUIRED TO BE REPORTED
BY THIS PARAGRAPH AND PARAGRAPH ONE OF THIS SUBDIVISION.
(3) THE RETURNS REQUIRED BY PARAGRAPH ONE OF THIS SUBDIVISION MUST BE
FILED ANNUALLY ON OR BEFORE MARCH TWENTIETH AND MUST COVER THE FOUR
SALES TAX QUARTERLY PERIODS IMMEDIATELY PRECEDING SUCH DATE. NOTWITH-
STANDING SECTION THREE HUNDRED FIVE OF THE STATE TECHNOLOGY LAW OR ANY
OTHER LAW TO THE CONTRARY, THE RETURNS MUST BE FILED ELECTRONICALLY IN
THE MANNER PRESCRIBED BY THE COMMISSIONER.
(4) ANY PERSON REQUIRED TO FILE A RETURN UNDER PARAGRAPH ONE OF THIS
SUBDIVISION MUST, ON OR BEFORE MARCH TWENTIETH, GIVE TO EACH VENDOR,
OPERATOR, OR RECIPIENT ABOUT WHOM INFORMATION IS REQUIRED TO BE REPORTED
IN THE RETURN THE INFORMATION PERTAINING TO THAT PERSON. THE COMMISSION-
ER MAY PRESCRIBE A FORM TO BE USED TO PROVIDE THE INFORMATION REQUIRED
TO BE GIVEN BY THIS PARAGRAPH.
(5) NOTHING IN THIS SUBDIVISION IS TO BE CONSTRUED TO LIMIT THE
PERSONS FROM WHOM THE COMMISSIONER CAN SECURE INFORMATION OR THE INFOR-
MATION THE COMMISSIONER CAN REQUIRE FROM THOSE PERSONS PURSUANT TO THE
COMMISSIONER'S AUTHORITY UNDER SECTION ELEVEN HUNDRED FORTY-THREE OF
THIS PART OR ANY OTHER PROVISION OF LAW.
S 2. Section 1145 of the tax law is amended by adding a new subdivi-
sion (i) to read as follows:
(I)(1) EVERY PERSON REQUIRED TO FILE AN INFORMATION RETURN BY SUBDIVI-
SION (I) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART WHO (A) FAILS
TO PROVIDE ANY OF THE INFORMATION REQUIRED BY PARAGRAPH ONE OR TWO OF
SUBDIVISION (I) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART FOR A
VENDOR, OPERATOR, OR RECIPIENT, OR WHO FAILS TO INCLUDE ANY SUCH INFOR-
MATION THAT IS TRUE AND CORRECT (WHETHER OR NOT SUCH A REPORT IS FILED)
FOR A VENDOR, OPERATOR, OR RECIPIENT, OR (B) FAILS TO PROVIDE THE INFOR-
MATION REQUIRED BY PARAGRAPH FOUR OF SUBDIVISION (I) OF SECTION ELEVEN
HUNDRED THIRTY-SIX OF THIS PART TO A VENDOR, OPERATOR, OR RECIPIENT
SPECIFIED IN PARAGRAPH FOUR OF SUBDIVISION (I) OF SECTION ELEVEN HUNDRED
THIRTY-SIX OF THIS PART, WILL, IN ADDITION TO ANY OTHER PENALTY PROVIDED
IN THIS ARTICLE OR OTHERWISE IMPOSED BY LAW, BE SUBJECT TO A PENALTY OF
FIVE HUNDRED DOLLARS FOR TEN OR FEWER FAILURES, AND UP TO FIFTY DOLLARS
FOR EACH ADDITIONAL FAILURE.
(2) EVERY PERSON FAILING TO FILE AN INFORMATION RETURN REQUIRED BY
SUBDIVISION (I) OF SECTION ELEVEN HUNDRED THIRTY-SIX OF THIS PART WITHIN
THE TIME REQUIRED BY SUBDIVISION (I) OF SECTION ELEVEN HUNDRED
THIRTY-SIX OF THIS PART WILL, IN ADDITION TO ANY OTHER PENALTY PROVIDED
FOR IN THIS ARTICLE OR OTHERWISE IMPOSED BY LAW, BE SUBJECT TO A PENALTY
IN AN AMOUNT NOT TO EXCEED TWO THOUSAND DOLLARS FOR EACH SUCH FAILURE,
PROVIDED THAT THE MINIMUM PENALTY UNDER THIS PARAGRAPH IS FIVE HUNDRED
DOLLARS.
(3) IN NO EVENT WILL THE PENALTY IMPOSED BY PARAGRAPH ONE, OR THE
AGGREGATE OF THE PENALTIES IMPOSED UNDER PARAGRAPHS ONE AND TWO OF THIS
SUBDIVISION, EXCEED TEN THOUSAND DOLLARS FOR ANY ANNUAL FILING PERIOD AS
DESCRIBED BY PARAGRAPH THREE OF SUBDIVISION (I) OF SECTION ELEVEN
HUNDRED THIRTY-SIX OF THIS PART.
(4) IF THE COMMISSIONER DETERMINES THAT ANY OF THE FAILURES THAT ARE
SUBJECT TO PENALTY UNDER THIS SUBDIVISION WAS ENTIRELY DUE TO REASONABLE
CAUSE AND NOT DUE TO WILLFUL NEGLECT, THE COMMISSIONER MUST REMIT THE
PENALTY IMPOSED UNDER THIS SUBDIVISION. THESE PENALTIES WILL BE DETER-
MINED, ASSESSED, COLLECTED, PAID, DISPOSED OF AND ENFORCED IN THE SAME
MANNER AS TAXES IMPOSED BY THIS ARTICLE AND ALL THE PROVISIONS OF THIS
S. 60--A 248 A. 160--A
ARTICLE RELATING THERETO WILL BE DEEMED ALSO TO REFER TO THESE PENAL-
TIES.
S 3. This act shall take effect immediately, provided that the first
return required by subdivision (i) of section 1136 of the tax law, as
added by section one of this act, shall be due on or before September
20, 2009 and shall cover the period March 1, 2009 through August 31,
2009; provided, further, that the returns required to be filed by such
subdivision on or before March 20, 2010, shall cover the period from
September 1, 2009 to February 28, 2010.
SUBPART O
Section 1. Section 6 of the tax law is REPEALED and a new section 6 is
added to read as follows:
S 6. FILING OF TAX WARRANTS AND RELATED RECORDS IN THE DEPARTMENT OF
STATE. (A) DEFINITIONS. AS USED IN THIS SECTION:
(1) "DATE OF FILING" MEANS THE DATE ON WHICH THE DEPARTMENT OF STATE
ENTERS THE COMPLETE DATA RECEIVED FROM THE DEPARTMENT REGARDING A
WARRANT OR RELATED RECORD INTO THE DEPARTMENT OF STATE DATABASE FOR TAX
WARRANTS AND RELATED RECORDS FOR FILING;
(2) "ELECTRONIC" HAS THE SAME MEANING GIVEN SUCH TERM BY SUBDIVISION
ONE OF SECTION THREE HUNDRED TWO OF THE STATE TECHNOLOGY LAW;
(3) "RELATED RECORDS" MEANS ONE OR MORE OF THE FOLLOWING: SATISFAC-
TION-PIECE, VACATUR OF A WARRANT, AMENDED WARRANT, RELEASE OF LIEN, OR
OTHER DOCUMENT AUTHORIZED BY APPLICABLE LAW, RELATED TO A WARRANT, OTHER
THAN A WARRANT;
(4) "RELATED STATUTE" MEANS ANY LAW, ORDINANCE OR RESOLUTION ENACTED
PURSUANT TO THE AUTHORITY OF THIS CHAPTER, THE ENVIRONMENTAL CONSERVA-
TION LAW, THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW, OR ANY
OTHER LAW, THAT IMPOSES A TAX;
(5) "TAX" MEANS ANY TAX, SPECIAL ASSESSMENT, FEE, ADDITION TO TAX,
PENALTY, INTEREST, OR OTHER IMPOSITION THAT IS ADMINISTERED BY THE
COMMISSIONER, AS WELL AS CHILD SUPPORT AND COMBINED CHILD AND SPOUSAL
SUPPORT ARREARS COLLECTED BY THE COMMISSIONER PURSUANT TO THE PROVISIONS
OF SECTION ONE HUNDRED SEVENTY ONE-I OF THIS CHAPTER; AND
(6) "WARRANT" MEANS A WARRANT ISSUED BY THE COMMISSIONER TO COLLECT
ANY TAX.
(B) FILING IN THE DEPARTMENT OF STATE. (1) FILING OF TAX WARRANTS.
NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER OR A RELATED STATUTE TO
THE CONTRARY, ALL WARRANTS MUST BE FILED BY THE DEPARTMENT SOLELY IN THE
DEPARTMENT OF STATE. NO FEE WILL BE REQUIRED TO BE PAID FOR THESE
FILINGS. ON THE DATE OF FILING OF A WARRANT:
(1) THE AMOUNT OF THE TAX STATED IN THE WARRANT WILL BECOME A LIEN
UPON THE TITLE TO AND INTEREST IN ALL REAL, PERSONAL OR OTHER PROPERTY
LOCATED IN THE STATE, OWNED BY THE PERSON OR PERSONS NAMED IN THE
WARRANT. THE LIEN SO CREATED WILL
(A) ATTACH TO ALL REAL PROPERTY AND RIGHTS TO REAL PROPERTY LOCATED IN
THE STATE THAT IS OWNED BY THE PERSON OR PERSONS NAMED IN THE WARRANT AT
ANY TIME DURING THE PERIOD OF THE LIEN, INCLUDING ANY REAL PROPERTY OR
RIGHTS TO REAL PROPERTY LOCATED IN THE STATE THAT IS ACQUIRED BY THE
PERSON OR PERSONS AFTER THE LIEN ARISES; AND
(B) APPLY TO ALL PERSONAL OR OTHER PROPERTY AND RIGHTS TO PERSONAL OR
OTHER PROPERTY LOCATED IN THE STATE THAT IS OWNED BY THE PERSON OR
PERSONS NAMED IN THE WARRANT AT ANY TIME DURING THE PERIOD OF THE LIEN,
INCLUDING ANY PERSONAL OR OTHER PROPERTY OR RIGHTS TO PERSONAL OR OTHER
S. 60--A 249 A. 160--A
PROPERTY LOCATED IN THE STATE THAT IS ACQUIRED BY THE PERSON OR PERSONS
AFTER THE LIEN ARISES.
(2) THE COMMISSIONER WILL, IN THE RIGHT OF THE PEOPLE OF THE STATE OF
NEW YORK, BE DEEMED TO HAVE OBTAINED A JUDGMENT AGAINST THE PERSON OR
PERSONS NAMED IN THE WARRANT FOR THE AMOUNT OF THE TAX STATED IN THE
WARRANT.
(C) IF THE DEPARTMENT FILED A WARRANT IN A COUNTY CLERK'S OFFICE
BEFORE OCTOBER FIRST, TWO THOUSAND NINE, THEN, AS OF OCTOBER FIRST, TWO
THOUSAND NINE AND THEREAFTER, THE DEPARTMENT WILL BE DEEMED TO HAVE
FILED THAT WARRANT IN THE COUNTY CLERK'S OFFICE IN EVERY OTHER COUNTY OF
THE STATE, AND THE COMMISSIONER WILL BE DEEMED TO HAVE OBTAINED A JUDG-
MENT IN EVERY OTHER COUNTY OF THE STATE AGAINST THE PERSON OR PERSONS
NAMED IN THAT WARRANT FOR THE AMOUNT OF THE TAX STATED IN THAT WARRANT.
BY OCTOBER FIRST, TWO THOUSAND NINE, THE COMMISSIONER MUST PROVIDE
NOTICE, IN A FORM PRESCRIBED BY THE COMMISSIONER, TO ALL PERSONS
AFFECTED BY THIS SUBDIVISION.
(D) ENFORCEMENT OF A JUDGMENT OBTAINED PURSUANT TO THE PROVISIONS OF
SUBDIVISION (B) OR (C) OF THIS SECTION WILL BE AS PRESCRIBED IN ARTICLE
FIFTY-TWO OF THE CIVIL PRACTICE LAW AND RULES.
(E) FILING OF RELATED RECORDS. (1) NOTWITHSTANDING ANY PROVISION OF
THIS CHAPTER OR A RELATED STATUTE TO THE CONTRARY, IF THE DEPARTMENT IS
FILING ANY RELATED RECORD, THE RECORD MUST BE FILED SOLELY IN THE
DEPARTMENT OF STATE; PROVIDED, HOWEVER, THAT ANY RELATED RECORD FILED ON
OR AFTER OCTOBER FIRST, TWO THOUSAND NINE THAT PERTAINS TO A WARRANT
FILED PRIOR TO OCTOBER FIRST, TWO THOUSAND NINE, MUST BE FILED IN THE
DEPARTMENT OF STATE.
(2) NO FEE WILL BE REQUIRED TO BE PAID FOR THE FILINGS DESCRIBED IN
PARAGRAPH ONE OF THIS SUBDIVISION.
(F) MANNER OF FILING WITH THE DEPARTMENT OF STATE AND PUBLIC NOTICE OF
FILINGS. THE DEPARTMENT MUST FILE WARRANTS AND RELATED RECORDS ELECTRON-
ICALLY WITH THE DEPARTMENT OF STATE. THE DEPARTMENT OF STATE WILL
PROVIDE ACKNOWLEDGEMENT TO THE DEPARTMENT OF THE DATE OF FILING OF THE
WARRANTS AND RELATED RECORDS. THE DEPARTMENT OF STATE MUST ALSO MAKE
INFORMATION REGARDING THE WARRANTS AND RELATED RECORDS, INCLUDING THE
DATE OF FILING, AVAILABLE TO THE PUBLIC. THIS INFORMATION MUST BE
SEARCHABLE ELECTRONICALLY BY THE NAME OF THE PERSON OR PERSONS LISTED IN
THE TAX WARRANT. WARRANT AND RELATED RECORD INFORMATION MUST BE MADE
AVAILABLE TO THE PUBLIC ELECTRONICALLY.
S 2. Subdivision 1 of section 174-a of the tax law, as added by chap-
ter 176 of the laws of 1997, is amended to read as follows:
1. General rule. Notwithstanding any provision of law to the contrary,
the provisions of the civil practice law and rules relating to the dura-
tion of a lien of a docketed judgment in and upon real property of a
judgment debtor, and the extension of [any such] THAT lien, [shall] WILL
apply to any warrant filed on behalf of the commissioner against a
taxpayer with [the clerk of a county wherein such taxpayer owns or has
an interest in real property] ANY RECORDING OR FILING OFFICER, INCLUDING
A COUNTY CLERK OR THE DEPARTMENT OF STATE, whether [such] THE warrant is
being enforced by a sheriff or an officer or employee of the department.
S 3. Section 279-b of the tax law is amended by adding a new closing
paragraph to read as follows:
NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE OF
FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND JUDG-
MENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN THESE
MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE.
S. 60--A 250 A. 160--A
S 4. Section 289 of the tax law is amended by adding a new closing
paragraph to read as follows:
NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE OF
FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND JUDG-
MENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN THESE
MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE.
S 5. Section 431 of the tax law is amended by adding a new subdivision
4 to read as follows:
4. NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE
OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND
JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN
THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE.
S 6. Section 479 of the tax law is amended by adding a new closing
paragraph to read as follows:
NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE OF
FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND JUDG-
MENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN THESE
MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE.
S 7. Subdivisions 3, 4 and 5 of section 511 of the tax law are renum-
bered subdivisions 4, 5 and 6, and a new subdivision 3 is added to read
as follows:
3. NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE
OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND
JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN
THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE.
S 8. Section 692 of the tax law is amended by adding a new subsection
(j) to read as follows:
(J) NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE
OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND
JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN
THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE.
S 9. Subsection (j) of section 1092 of the tax law is relettered
subsection (k), and a new subsection (j) is added to read as follows:
(J) NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE
OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND
JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN
THESE MATTERS FOR PURPOSES OF ANY TAX TO WHICH THIS ARTICLE APPLIES.
S 10. Subdivision (c) of section 1141 of the tax law is relettered
subdivision (d), and a new subdivision (c) is added to read as follows:
(C) NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE
OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND
JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN
THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE.
S 11. Section 1414 of the tax law is amended by adding a new subdivi-
sion (c) to read as follows:
(C) NOTWITHSTANDING ANY PROVISION OF THIS SECTION CONCERNING THE PLACE
OF FILING OF A TAX WARRANT AND THE CREATION THEREBY OF A TAX LIEN AND
JUDGMENT, THE PROVISIONS OF SECTION SIX OF THIS CHAPTER WILL GOVERN
THESE MATTERS FOR PURPOSES OF THE TAXES IMPOSED BY THIS ARTICLE.
S 12. This act shall take effect October 1, 2009; provided, however,
that:
(a) effective immediately, the department of taxation and finance and
the department of state are authorized to take any steps necessary to
implement the provisions of this act on its effective date on or before
such date; and
S. 60--A 251 A. 160--A
(b) the provisions of this act shall apply to warrants and related
records pertaining to those warrants filed, or deemed to have been
filed, on or after October 1, 2009.
SUBPART P
Section 1. Subdivision (c) of section 1141 of the tax law, as amended
by chapter 27 of the laws of 1977, the third undesignated paragraph as
added by chapter 706 of the laws of 1980, is amended to read as follows:
(c) Whenever a person required to collect tax shall make a sale,
transfer, or assignment in bulk of any part or the whole of his OR HER
business assets, otherwise than in the ordinary course of business, the
purchaser, transferee or assignee shall at least ten days before taking
possession of the subject of said sale, transfer or assignment, or
paying therefor, notify the [tax commission] COMMISSIONER by registered
mail of the proposed sale and of the price, terms and conditions thereof
whether or not the seller, transferrer or assignor, has represented to,
or informed the purchaser, transferee or assignee that he OR SHE owes
any tax, PENALTY, OR INTEREST pursuant to this article, and whether or
not the purchaser, transferee, or assignee has knowledge that such
taxes, PENALTY, OR INTEREST are owing, and whether any such taxes,
PENALTY, OR INTEREST are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the [tax commission] COMMISSIONER as required by the preceding
paragraph, or whenever the [tax commission] COMMISSIONER shall inform
the purchaser, transferee or assignee that a possible claim for such tax
or taxes, PENALTY, OR INTEREST exists, any sums of money, property or
choses in action, or other consideration, which the purchaser, transfer-
ee or assignee is required to transfer over to the seller, transferrer
or assignor shall be subject to a first priority right and lien for any
such taxes, PENALTY, OR INTEREST theretofore or thereafter determined to
be due from the seller, transferrer or assignor to the state, and the
purchaser, transferee or assignee is forbidden to transfer to the sell-
er, transferrer or assignor any such sums of money, property or choses
in action to the extent of the amount of the state's claim. Within nine-
ty days of receipt of the notice of the sale, transfer, or assignment
from the purchaser, transferee or assignee, the [tax commission] COMMIS-
SIONER shall give notice to the purchaser, transferee or assignee and to
the seller, transferrer, or assignor of the total amount of any tax or
taxes, PENALTY, OR INTEREST which the state claims to be due from the
seller, transferrer, or assignor to the state, and whenever the [tax
commission] COMMISSIONER shall fail to give such notice to the purchas-
er, transferee, or assignee and the seller, transferrer, or assignor
within ninety days from receipt of notice of the sale, transfer, or
assignment, such failure will release the purchaser, transferee or
assignee from any further obligation to withhold any sums of money,
property or choses in action, or other consideration, which the purchas-
er, transferee or assignee is required to transfer over to the seller,
transferrer or assignor[, except that with respect to pending matters
such ninety day periods shall not begin to run until ninety days after
the effective date of this provision]. For failure to comply with the
provisions of this subdivision the purchaser, transferee or assignee[,
in addition to being subject to the liabilities and remedies imposed
under the provisions of article six of the uniform commercial code,]
shall be personally liable for the payment to the state of any such
taxes, PENALTY, OR INTEREST theretofore or thereafter determined to be
S. 60--A 252 A. 160--A
due to the state from the seller, transferrer or assignor, except that
the liability of the purchaser, transferee or assignee shall be limited
to an amount not in excess of the purchase price or fair market value of
the business assets sold, transferred or assigned to such purchaser,
transferee, or assignee, whichever is higher, and such liability may be
assessed and enforced in the same manner as the liability for tax under
this article. Upon receipt within the ninety days as aforesaid of the
notice of the total amount of the state's claim from the [tax commis-
sion] COMMISSIONER, and demand for payment thereof, the purchaser,
transferee or assignee may make payment of such claim to the state from
any sums of money, property, or choses in action withheld in accord with
the provisions of this paragraph, except that such payment shall be
limited to an amount not in excess of the purchase price or fair market
value of the business assets sold, transferred, or assigned to such
purchaser, transferee, or assignee, whichever is higher, and upon making
the payment, such purchaser, transferee, or assignee shall be relieved
of all liability for such amounts to the seller, transferrer, or assig-
nor, and such amounts paid to the state shall be deemed satisfaction of
the tax liability of the seller, transferrer, or assignor to the extent
of the amount of such payment. ANY REFERENCE IN ANY PROVISION OF LAW TO
THE LIABILITY OF A PURCHASER, TRANSFEREE, OR ASSIGNEE FOR TAX UNDER THIS
SUBDIVISION SHALL INCLUDE THE LIABILITY OF THE PURCHASER, TRANSFEREE OR
ASSIGNEE FOR PENALTY OR INTEREST UNDER THIS SUBDIVISION.
Where the liability of a purchaser, transferee or assignee, for the
payment to the state of any such taxes, PENALTY, OR INTEREST determined
to be due from the seller, transferrer or assignor, has been wholly paid
or satisfied or no longer exists, the [tax commission] COMMISSIONER
shall mail to such purchaser, transferee or assignee a notice, addressed
to his last known address, setting forth that such liability has been
wholly paid or satisfied or no longer exists. The [tax commission]
COMMISSIONER shall include in such notice the following additional
information:
(1) the name and last known address of the purchaser, transferee or
assignee;
(2) the amount of the lien paid, satisfied or vacated; and
(3) a statement to the effect that consumer reporting agencies must
delete from a credit file any reference to the particular tax lien with-
in thirty days of receipt from the purchaser, transferee or assignee of
such notice. Provided, however, no order or decree in a bankruptcy
proceeding shall be construed as giving rise to the requirement that the
notice provided for in this paragraph be given.
S 2. This act shall take effect June 1, 2009 and shall apply to sales,
transfers, or assignments in bulk occurring on or after that date.
S 2. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provisions had not been included herein.
S 3. This act shall take effect immediately provided, however, that
the applicable effective date of Subparts A through P of this act shall
be as specifically set forth in the last section of such Subparts.
S. 60--A 253 A. 160--A
S 2. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provisions had not been included herein.
S 3. This act shall take effect immediately provided, however, that
the applicable effective date of Parts A through SS of this act shall be
as specifically set forth in the last section of such Parts.