S T A T E O F N E W Y O R K
________________________________________________________________________
4769
2009-2010 Regular Sessions
I N A S S E M B L Y
February 6, 2009
___________
Introduced by M. of A. ALESSI -- read once and referred to the Committee
on Ways and Means
AN ACT to amend the tax law, in relation to exempting the sales of wine
and wine products produced in the state from sales and compensating
use taxes during the first week in March
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision (b) of section 1101 of the tax law is amended
by adding a new paragraph 33 to read as follows:
(33) WINE AND WINE PRODUCTS. (I) "WINE" MEANS THE PRODUCT OF THE
NORMAL ALCOHOLIC FERMENTATION OF THE JUICE OF FRESH, SOUND, RIPE GRAPES,
WITH THE USUAL CELLAR TREATMENT AND NECESSARY ADDITIONS TO CORRECT
DEFECTS DUE TO CLIMATIC, SACCHARINE AND SEASONAL CONDITIONS, INCLUDING
CHAMPAGNE, SPARKLING AND FORTIFIED WINE OF AN ALCOHOLIC CONTENT NOT TO
EXCEED TWENTY-FOUR PER CENTUM BY VOLUME. NO OTHER PRODUCT SHALL BE
CALLED "WINE" UNLESS DESIGNATED BY APPROPRIATE PREFIXES DESCRIPTIVE OF
THE FRUIT OR OTHER PRODUCT FROM WHICH THE SAME WAS PREDOMINANTLY
PRODUCED, OR AS ARTIFICIAL OR IMITATION WINE.
(II) "WINE PRODUCT" MEANS A BEVERAGE CONTAINING WINE TO WHICH IS ADDED
CONCENTRATED OR UNCONCENTRATED JUICE, FLAVORING MATERIAL, WATER, CITRIC
ACID, SUGAR AND CARBON DIOXIDE AND CONTAINING NOT MORE THAN SIX PER
CENTUM ALCOHOL BY VOLUME, TO WHICH NOTHING OTHER THAN WINE HAS BEEN
ADDED TO INCREASE THE ALCOHOLIC CONTENT OF SUCH BEVERAGE.
S 2. Subdivision (b) of section 1107 of the tax law is amended by
adding a new clause 12 to read as follows:
(12) EXCEPT AS OTHERWISE PROVIDED BY LAW, THE EXEMPTION PROVIDED FOR
IN PARAGRAPH FORTY-FOUR OF SUBDIVISION (A) OF SECTION ELEVEN HUNDRED
FIFTEEN OF THIS ARTICLE RELATING TO WINE AND WINE PRODUCTS SHALL NOT
APPLY.
S 3. Subdivision (a) of section 1115 of the tax law is amended by
adding a new paragraph 44 to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08139-01-9
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(44) FOR THE FIRST WEEK IN MARCH, THE RETAIL SALE OF WINE AND WINE
PRODUCTS PRODUCED IN THE STATE.
S 4. 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 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. 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), the clothing and footwear exemption provided for in
paragraph thirty of subdivision (a) and the qualified empire zone enter-
prise 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 subdivi-
sion (l) of this section or repeals such resolution or enacts the resol-
ution 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
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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. EXCEPT AS OTHERWISE PROVIDED BY LAW, 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 OMIT THE WINE AND WINE PRODUCT EXEMPTION
PROVIDED FOR IN PARAGRAPH FORTY-FOUR OF SUBDIVISION (A) OF SECTION ELEV-
EN HUNDRED FIFTEEN OF THIS CHAPTER.
S 5. Notwithstanding any other provision of state or local law, ordi-
nance or resolution to the contrary: (a) any city, county or school
district imposing sales and compensating use taxes pursuant to the
authority of subpart B of part 1 of article 29 of the tax law, acting
through its local legislative body, is hereby authorized and empowered
to elect to provide the exemption from such taxes for the same wine and
wine products exempt from state sales and compensating use taxes
described in paragraph 44 of subdivision (a) of section 1115 of the tax
law, for the first week in March, whether such taxes are imposed by
local law, ordinance or resolution, by enacting a resolution in the form
set forth in subdivision (c) of this section; whereupon, upon compliance
with the provisions of subdivision (d) of this section, such enactment
of such resolution shall be deemed to amend such local law, ordinance or
resolution imposing such taxes, and such local law, ordinance or resol-
ution shall be deemed to incorporate such exemption for such period.
(b) Any city having a population of one million or more in which the
taxes imposed by section 1107 of the tax law are in effect, acting
through its local legislative body, is hereby authorized and empowered
to elect to provide the exemption from such taxes for the same wine and
wine products exempt from state sales and compensating use taxes
described in paragraph 44 of subdivision (a) of section 1115 of the tax
law, for the first week in March, by enacting a resolution in the form
set forth in subdivision (c) of this section; whereupon, upon compliance
with the provisions of subdivision (d) of this section, such enactment
of such resolution shall be deemed to be an amendment to such section
1107 of the tax law and such section 1107 shall be deemed to incorporate
such exemption as if it had been duly enacted by the state legislature
and approved by the governor.
(c) 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 purchases of wine and wine products produced
in the state exempt from state sales and compensating use taxes pursuant
to paragraph 44 of subdivision (a) 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 immediately and shall
apply to sales made and uses occurring during the first week in March,
although made or occurring under a prior contract.
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(d) A resolution enacted pursuant to this section shall not be effec-
tive unless (1) it is enacted by February 1, 2010, (2) a certified copy
of such resolution is received no later than February 15, 2010, by the
commissioner of taxation and finance, attention: secretary to the
commissioner of taxation and finance, room 200, building nine, state
office campus, Albany, New York 12227, and (3) certified copies of such
resolutions shall also be filed with the city or county clerk, the
secretary of state and the state comptroller within five business days
after the date it is enacted. The commissioner of taxation and finance
shall accept and give effect to a resolution enacted pursuant to the
authority of this section which is in substantial compliance with the
provisions of this section so as to give notice to the commissioner of
taxation and finance of the intent of a county, city or school district
to provide the exemption authorized by this section.
S 6. The provisions of this act and of any resolution enacted pursuant
thereto, taken separately or together, shall not be construed by any
person or any court or other entity as either (i) a failure or refusal
to continue to impose the taxes imposed by section 1107 of the tax law,
as such taxes may from time to time be amended, or (ii) as a reduction
in the rate at which such taxes are imposed. After the effective date of
this act, the taxes imposed by such section 1107 of the tax law on
receipts from retail sales of and consideration given or contracted to
be given for purchases of such wine and wine products produced in the
state shall, except as provided in section five of this act for the
first week in March, continue to apply, persons liable for such taxes on
purchases of such wine and wine products produced in the state shall
continue to be liable for such taxes, persons required to collect such
taxes on such wine and wine products produced within the state shall
continue to be required to collect and pay over such taxes to the
commissioner of taxation and finance, such commissioner shall continue
to be required to certify such taxes on such wine and wine products
produced in the state as provided by article 28 of the tax law and
section 92-d of the state finance law and the state comptroller shall
continue to be required to deposit, appropriate and pay over such taxes
as required by such section 92-d of the state finance law, in the manner
and to the extent as if this act had not become a law.
S 7. This act shall take effect immediately, and the sales and compen-
sating use tax exemptions provided pursuant to this act shall apply to
sales made and uses occurring the first week in March, although made or
occurring under a prior contract.