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

                                  5523

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 14, 2015
                               ___________

Introduced  by  Sen.  BOYLE  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Investigations and Govern-
  ment Operations

AN ACT to amend the tax law, in relation to renting of  housing  through
  marketplace providers

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

  Section 1. Subdivision (c) of section 1101 of the tax law  is  amended
by adding two new paragraphs 9 and 10 to read as follows:
  (9)  MARKETPLACE  PROVIDER  OF OCCUPANCY. A PERSON WHO, PURSUANT TO AN
AGREEMENT WITH A MARKETPLACE SELLER OF OCCUPANCY, BOTH FACILITATES OCCU-
PANCY BY SUCH MARKETPLACE SELLER OF OCCUPANCY AND  VOLUNTARILY  CONSENTS
TO  ASSUME  THE  SALES TAX COLLECTION AND REMITTANCE RESPONSIBILITIES OF
THE MARKETPLACE SELLER OF OCCUPANCY. A  PERSON  "FACILITATES  OCCUPANCY"
FOR  PURPOSES OF THIS PARAGRAPH WHEN THE PERSON MEETS ALL OF THE FOLLOW-
ING CONDITIONS: (I) SUCH PERSON, OR AN AFFILIATED  PERSON,  DIRECTLY  OR
INDIRECTLY  COLLECTS  OR  RECEIVES  THE  RENT  PAID  BY AN OCCUPANT TO A
MARKETPLACE SELLER OF OCCUPANCY; AND
  (II) SUCH PERSON PERFORMS EITHER OF THE FOLLOWING ACTIVITIES:
  (A) PROVIDES THE FORUM IN WHICH, OR BY MEANS OF WHICH,  THE  OFFER  OF
OCCUPANCY  IS  ACCEPTED, INCLUDING AN INTERNET WEBSITE OR SIMILAR FORUM;
OR
  (B) ARRANGES FOR THE EXCHANGE OF INFORMATION OR MESSAGES  BETWEEN  THE
OCCUPANT AND THE MARKETPLACE SELLER OF OCCUPANCY. A PERSON WHO VOLUNTAR-
ILY  AGREES  TO ASSUME THE SALES TAX COLLECTION AND REMITTANCE RESPONSI-
BILITIES OF THE  MARKETPLACE  SELLER  OF  OCCUPANCY  SHALL  REGISTER  TO
COLLECT  TAX  UNDER  SECTION ELEVEN HUNDRED THIRTY-FOUR OF THIS ARTICLE.
FOR PURPOSES OF THIS PARAGRAPH, TWO PERSONS ARE AFFILIATED IF ONE PERSON
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11157-01-5
              

S. 5523                             2

ANOTHER PERSON OR BY A GROUP  OF  OTHER  PERSONS  WHICH  ARE  AFFILIATED
PERSONS WITH RESPECT TO EACH OTHER.
  (10)  MARKETPLACE SELLER OF OCCUPANCY. ANY PERSON, WHETHER OR NOT SUCH
PERSON IS REQUIRED TO REGISTER  TO  COLLECT  TAX  UNDER  SECTION  ELEVEN
HUNDRED THIRTY-FOUR OF THIS ARTICLE, WHO (I) BOTH:
  (A)  HAS  AN  AGREEMENT WITH A MARKETPLACE PROVIDER OF OCCUPANCY UNDER
WHICH SUCH MARKETPLACE PROVIDER OF OCCUPANCY WILL FACILITATE OCCUPANCIES
FOR SUCH PERSON WITHIN THE MEANING OF PARAGRAPH NINE  OF  THIS  SUBDIVI-
SION; AND
  (B)  HAS  AN  AGREEMENT  WITH  A  MARKETPLACE PROVIDER OF OCCUPANCY TO
PERMIT SUCH MARKETPLACE PROVIDER OF OCCUPANCY TO VOLUNTARILY COLLECT AND
REMIT SALES TAX ON OCCUPANCIES FACILITATED BY SUCH MARKETPLACE  PROVIDER
OF OCCUPANCY; AND
  (II) DIRECTLY OR INDIRECTLY COLLECTS OR RECEIVES RENTS.
  S 2. Paragraph 6 of subdivision (c) of section 1101 of the tax law, as
amended  by  section  2 of part AA of chapter 57 of the laws of 2010, is
amended to read as follows:
  (6) Rent. The consideration  received  for  occupancy,  including  any
service or other charge or amount required to be paid as a condition for
occupancy,  valued  in money, whether received in money or otherwise and
whether received by the operator or a room remarketer or another  person
on  behalf of either of them. RENT SHALL NOT INCLUDE A SEPARATELY STATED
FEE OR SIMILAR CHARGE PAID BY THE OCCUPANT TO THE  MARKETPLACE  PROVIDER
FOR  SERVICES  INCLUDING  BUT NOT LIMITED TO: (I) PROVIDING THE FORUM IN
WHICH, OR BY MEANS OF WHICH, THE OFFER OF OCCUPANCY IS ACCEPTED, INCLUD-
ING AN INTERNET WEBSITE OR SIMILAR FORUM;
  (II) ARRANGING FOR THE EXCHANGE OF INFORMATION OR MESSAGES BETWEEN THE
OCCUPANT AND THE MARKETPLACE SELLER OF OCCUPANCY; OR
  (III) FACILITATING PAYMENT BETWEEN THE MARKETPLACE SELLER OF OCCUPANCY
AND THE OCCUPANT.
  S 3. Subdivision 1 of section 1131 of the tax law, as amended by chap-
ter 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  or  services;  every recipient of amusement charges;
[and] every operator of a hotel; AND EVERY MARKETPLACE PROVIDER OF OCCU-
PANCY AS DESCRIBED IN PARAGRAPH NINE OF SUBDIVISION (C) OF SECTION ELEV-
EN HUNDRED ONE OF THIS ARTICLE.  Said terms shall also include any offi-
cer,  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 proprietor-
ship 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 subdi-
vision  (b) of section eleven hundred one OF THIS ARTICLE shall not be a
"person required to collect any tax imposed by this article" until twen-
ty 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 4. Section 1132 of the tax law is amended by adding a  new  subdivi-
sion (l) to read as follows:
  (L)  (1)  A  MARKET PLACE PROVIDER OF OCCUPANCY SHALL: (I) COMPLY WITH
ALL THE PROVISIONS OF THIS ARTICLE AND ARTICLE TWENTY-NINE OF THIS CHAP-

S. 5523                             3

TER AND OF ANY REGULATIONS ADOPTED PURSUANT  THERETO,  AND  TO  ALL  THE
REQUIREMENTS  AND  OBLIGATIONS  THEREOF, INCLUDING THE RIGHT TO ACCEPT A
CERTIFICATE OR OTHER DOCUMENTATION FROM  A  CUSTOMER  SUBSTANTIATING  AN
EXEMPTION  OR  EXCLUSION FROM TAX, AND HAVE ALL THE DUTIES, BENEFITS AND
ENTITLEMENTS OF A PERSON REQUIRED TO COLLECT TAX UNDER THIS ARTICLE  AND
PURSUANT  TO  THE  AUTHORITY OF ARTICLE TWENTY-NINE OF THIS CHAPTER WITH
RESPECT TO SUCH OCCUPANCY, AND SUCH TAX REQUIRED TO BE COLLECTED, AS  IF
SUCH MARKETPLACE PROVIDER OF OCCUPANCY WERE THE OPERATOR WITH RESPECT TO
SUCH  OCCUPANCY, INCLUDING THE RIGHT TO RECEIVE THE REFUND AUTHORIZED BY
SUBDIVISION (E) OF THIS SECTION AND THE CREDIT  ALLOWED  BY  SUBDIVISION
(F) OF SECTION ELEVEN HUNDRED THIRTY-SEVEN OF THIS PART; AND
  (II)  KEEP SUCH RECORDS AND INFORMATION AND COOPERATE WITH THE COMMIS-
SIONER TO ENSURE THE PROPER COLLECTION AND REMITTANCE  OF  TAX  IMPOSED,
COLLECTED  OR  REQUIRED  TO  BE COLLECTED UNDER THIS ARTICLE AND ARTICLE
TWENTY-NINE OF THIS CHAPTER.
  (2) A MARKETPLACE SELLER OF OCCUPANCY IS  NOT  A  PERSON  REQUIRED  TO
COLLECT TAX FOR PURPOSES OF THIS SECTION IN REGARD TO A PARTICULAR OCCU-
PANCY  SUBJECT  TO  TAX  UNDER SUBDIVISION (E) OF SECTION ELEVEN HUNDRED
FIVE OF THIS ARTICLE IF, IN REGARD TO SUCH OCCUPANCY:
  (I) THE MARKETPLACE SELLER OF OCCUPANCY CAN SHOW THAT  SUCH  OCCUPANCY
WAS  FACILITATED  BY A MARKETPLACE PROVIDER OF OCCUPANCY AS DESCRIBED IN
PARAGRAPH NINE OF SUBDIVISION (C) OF SECTION ELEVEN HUNDRED ONE OF  THIS
ARTICLE  FROM  WHOM SUCH MARKETPLACE SELLER OF OCCUPANCY HAS RECEIVED IN
GOOD FAITH A PROPERLY COMPLETED CERTIFICATE  OF  COLLECTION  IN  A  FORM
PRESCRIBED  BY THE COMMISSIONER CERTIFYING THAT THE MARKETPLACE PROVIDER
OF OCCUPANCY HAS AGREED TO ASSUME THE SALES TAX  COLLECTION  AND  FILING
RESPONSIBILITIES  OF  THE MARKETPLACE SELLER OF OCCUPANCY, IS REGISTERED
TO COLLECT SALES TAX AND WILL COLLECT SALES TAX ON ALL TAXABLE  OCCUPAN-
CIES BY THE MARKETPLACE SELLER OF OCCUPANCY AND WITH SUCH OTHER INFORMA-
TION AS THE COMMISSIONER MAY PRESCRIBE; AND
  (II)  ANY  FAILURE OF THE MARKETPLACE PROVIDER OF OCCUPANCY TO COLLECT
THE PROPER AMOUNT OF TAX IN REGARD OF SUCH OCCUPANCY WAS NOT THE  RESULT
OF  SUCH  MARKETPLACE  SELLER  OF  OCCUPANCY  PROVIDING  THE MARKETPLACE
PROVIDER OF OCCUPANCY WITH INCORRECT INFORMATION. THIS  PROVISION  SHALL
BE  ADMINISTERED  IN  A MANNER CONSISTENT WITH SUBPARAGRAPH (I) OF PARA-
GRAPH ONE OF SUBDIVISION (C) OF THIS SECTION  AS  IF  A  CERTIFICATE  OF
COLLECTION  WERE  A RESALE OR EXEMPTION CERTIFICATE FOR PURPOSES OF SUCH
SUBPARAGRAPH, INCLUDING WITH REGARD TO THE COMPLETENESS OF SUCH  CERTIF-
ICATE  OF COLLECTION AND THE TIMING OF ITS ACCEPTANCE BY THE MARKETPLACE
SELLER OF OCCUPANCY.  PROVIDED THAT, WITH REGARD TO ANY OCCUPANCIES SOLD
BY A MARKETPLACE SELLER OF OCCUPANCY THAT ARE FACILITATED BY  A  MARKET-
PLACE  PROVIDER  OF  OCCUPANCY  WHO  IS AFFILIATED WITH SUCH MARKETPLACE
SELLER OF OCCUPANCY AS DESCRIBED IN PARAGRAPH NINE OF SUBDIVISION (C) OF
SECTION ELEVEN HUNDRED ONE OF THIS  ARTICLE,  A  MARKETPLACE  SELLER  OF
OCCUPANCY  SHALL  BE  DEEMED  LIABLE AS A PERSON UNDER A DUTY TO ACT FOR
SUCH MARKETPLACE PROVIDER OF OCCUPANCY FOR PURPOSES OF  SUBDIVISION  ONE
OF SECTION ELEVEN HUNDRED THIRTY-ONE OF THIS PART.
  (3) THE COMMISSIONER MAY, IN HIS OR HER DISCRETION: (I) DEVELOP STAND-
ARD LANGUAGE, OR APPROVE LANGUAGE DEVELOPED BY A MARKETPLACE PROVIDER OF
OCCUPANCY,  IN  WHICH THE MARKETPLACE PROVIDER OF OCCUPANCY AS DESCRIBED
IN PARAGRAPH NINE OF SUBDIVISION (C) OF SECTION ELEVEN  HUNDRED  ONE  OF
THIS  ARTICLE  OBLIGATES  ITSELF TO COLLECT THE TAX ON BEHALF OF ALL THE
MARKETPLACE SELLERS OF OCCUPANCY; AND
  (II) PROVIDE BY REGULATION OR OTHERWISE THAT  THE  INCLUSION  OF  SUCH
LANGUAGE  IN  THE  MARKETPLACE  PROVIDER OF OCCUPANCY'S AGREEMENT WITH A
MARKETPLACE SELLER OF OCCUPANCY THAT IS PUBLICLY AVAILABLE WILL HAVE THE

S. 5523                             4

SAME EFFECT AS A MARKETPLACE  SELLER  OF  OCCUPANCY'S  ACCEPTANCE  OF  A
CERTIFICATE  OF  COLLECTION  FROM SUCH MARKETPLACE PROVIDER OF OCCUPANCY
UNDER SUBPARAGRAPH TWO OF THIS PARAGRAPH.
  (4) IN THE EVENT A MARKETPLACE SELLER OF OCCUPANCY IS A ROOM REMARKET-
ER  AS  DEFINED  IN PARAGRAPH EIGHT OF SUBDIVISION (C) OF SECTION ELEVEN
HUNDRED ONE OF THIS ARTICLE, AND ALL OTHER PROVISIONS OF  THIS  SUBDIVI-
SION  ARE MET SUCH THAT A MARKETPLACE PROVIDER OF OCCUPANCY IS OBLIGATED
TO COLLECT TAX, AND DOES IN FACT COLLECT TAX AS EVIDENCED BY  THE  BOOKS
AND  RECORDS OF SUCH MARKETPLACE SELLER, THEN THE PROVISIONS OF SUBDIVI-
SION (E) OF SECTION ELEVEN HUNDRED NINETEEN OF  THIS  ARTICLE  SHALL  BE
APPLICABLE.
  S 5. This act shall take effect immediately.